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Kar HC │ Can the statement recorded under Section 164 of Cr.PC be considered to be evidence under Section 35 of the POCSO Act? Whether the accused is entitled to bail in case the mandate under Section 35 of the POCSO Act has not been completed?

Karnataka High Court: A Division Bench of B. V. Nagarathna and M.G. Uma JJ. held that the accused does not have a right to seek bail for the reason that the mandate under Section 35 of the POCSO Act has not been completed.

The facts of the case are such that the victim, Kum Panchami was residing at Spoorthi Adoption and Fit Institution where she was given in adoption but because of some differences between the adopted child and the family, adoption was cancelled and the child started staying in Spoorthi Institution. The petitioner-accused 1 used to enter the institution during night hours and have sexual intercourse with the victims who are staying in the said Institution. Cases of sexual assault were also reported. A case under Sections 376(1), 376(3), 377, 506 of Penal Code, 1860 i.e. IPC; Sections 5(f)(i)(o)(p), 6, 21(2) of the Protection of Children from Sexual Offences Act, 2012 (‘the POCSO Act’ for short); and Sections 3(1)(w)(i)(ii), 3(2)(v), 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. A single Judge bench dismissed the petition on merits holding that no case of bail is made out. The instant petition was filed to answer the references before a Special Bench headed by Chief Justice.

Counsel of petitioner-accused submitted that as per Section 35(1) of POCSO Act evidence of the child had to be recorded within a period of thirty days of taking cognizance of the offence by the trial Court. If the same is not so recorded, the reason for the delay has also to be recorded by the said Court. Further, as per Section 35(2) of the POCSO Act, the trial Court, having not completed the trial within a period of one year from the date of taking cognizance of the offences, petitioner/accused 1 was entitled to be released on bail.

Counsel for the respondent submitted that the statement of the victim under Section 161 of the Cr.P.C. had been recorded before the Magistrate, but the said statement recorded cannot be construed as evidence in terms of Section 35(1) of the POCSO Act. Merely because there was a delay in recording evidence or in the adjudication of the case and evidently Section 35 of the POCSO Act had not been complied with in the instant cases that would not straight away entitle the petitioner/accused 1 to be enlarged on bail.

Issue 1: Can the statement recorded under Section 164 of Cr.PC be considered to be evidence under Section 35 of the POCSO Act?

The Court further observed that Section 35 of the POCSO Act consists of two parts: firstly, it deals with the period for recording of evidence of the child and disposal of case. Sub-section (1) of Section 35 states that the evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and reasons for delay, if any, shall be recorded by the Special Court. Secondly, Sub-section (2) prescribes the period of one year from the date of taking cognizance of the offence for the purpose of completion of the trial. Of course, the said period prescribed is to be complied with, as far as possible, by the Special Court.

The Court further observed that on reading the relevant provisions of the POCSO Act, it clearly indicates that the said Act is a special legislation for the protection of children from offences of sexual assault, harassment and pornography, etc. The POCSO Act being a special piece of legislation must over-ride the general legislation. In this regard, it would be useful to observe that the POCSO Act is a combination of both substantive law as well as procedural or adjective law. Substantive criminal offences have been created under various provisions of the POCSO Act and the manner in which the adjudication of said offences ought to take place, namely the procedure to be followed is also provided for under the POCSO Act.

The Court further observed that Section 164 of Criminal Procedure Code i.e. Cr.P.C., deals with recording of confessions and statements by any Metropolitan or Judicial Magistrate made to him in the course of an investigation, the same is relatable to Sections 25 and 26 of the POCSO Act. But, Section 35 of the POCSO Act does not deal with recording of statement of a child, but recording of evidence of the child and disposal of the case. The said Section is relatable to Chapter XXIII of Cr.P.C., which deals with evidence in inquiries and trials, including mode of taking and recording of evidence. But, Section 35 of the POCSO Act, being under a special enactment, would prevail over the general provisions of Cr.P.C., particularly when there is any inconsistency between the said Section and Cr.P.C., as per the provisions of Section 42A of the POCSO Act.

The Court observed that a statement under Section 164 of Cr.P.C. is during the course of investigation or at any time afterwards before the commencement of the trial. But, the evidence recorded before the Special Court under Section 35 of the POCSO Act is during the course of the trial. The two cannot be equated and neither are they on same plane, hence the recording of statement under Section 164 of Cr.P.C. being prior to the commencement of the trial, it cannot be considered to be evidence under sub-section (1) of Section 35 of the POCSO Act.

The Court thus held “the statement recorded under Section 164 of Cr.P.C. made in the course of investigation by the victim child, cannot be considered as evidence recorded under Section 35 of the POCSO Act.”

Issue 2: Whether the accused is entitled to bail in case the mandate under Section 35 of the POCSO Act has not been completed?

The Court observed that the main object behind Section 35 of the POCSO Act is that the victim child must not only be rendered speedy justice but, at the same time, it is necessary to get over the legal proceeding at the earliest, so that the child could concentrate on rehabilitation and get on with his or her life.

The Court further observed that the expression “as far as possible”, is used by the Parliament, having regard to the genuine difficulties faced in the conclusion of a trial concerning a victim child under the provisions of the POCSO Act. If the evidence of the child is to be recorded within a period of thirty days from the date of taking cognizance of the offence, the trial under the provisions of the POCSO Act being a sessions trial, would mean that all provisions of Cr.P.C. which are not inconsistent with the provisions of the POCSO Act would apply and hence, there may be reasons beyond the control of the Special Court, for not being able to complete the trial under the POCSO Act within a period of one year from the date of taking cognizance of the offence.

The Court relied on judgment Neeru Yadav v. State of Uttar Pradesh, (2016) 15 SCC 422, wherein the guiding factors regarding the grant of bail under provisions of the POCSO Act were laid down:

(i) The nature of accusations and the severity of the punishment, in case of the accusation entail a conviction and the nature of evidence in support of the accusations;

(ii) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant;

(iii) Prima facie satisfaction of the court in support of the charge

The Court relied on judgment Varinder Kumar v. State of Himachal Pradesh, (2020) 3 SCC 321 and observed that individual rights of the accused as well as the societal interest for bringing the offender to book and for the system to send the right message to all in the society—be it the law-abiding citizen or the potential offender, have to be balanced. “Human Rights” are not only of the accused but also of the victim, the symbolic member of the society.

The Court thus observed that the object and purpose of Section 35 of the POCSO Act is to ensure that the victim child is secured from the trauma of trial of the case at the earliest so that she or he could be rehabilitated and reintegrated into society at the earliest. The said provision is not to be interpreted in favour of the accused so as to mandate release of the accused, if for any reason, evidence is not recorded within a period of thirty days of taking cognizance of the offence or the Special Court not completing the trial of one year from the date of taking cognizance of the offence.

The Court held “If for reasons beyond the control of the Special Court, the evidence of the child is not recorded within the period of thirty days of the Special Court taking cognizance of the offence, or if the trial itself is not completed within a period of one year from the date of cognizance of the offence, the same cannot lead to the accused being released on bail.”

[Hanumantha Mogaveera v. State of Karnataka, 2021 SCC OnLine Kar 12300, decided on 23-04-2021]

Arunima Bose, Editorial Assistant has put this report together

Case Briefs High Courts

Tri HC | Strong prima facie case leaves no ground for custodial immunity; Court rejects bail application in matter of Ss. 377 and 506 of IPC and S. 6 of POCSO

Tripura High Court: S.G. Chattopadhyay J., rejected a bail application which was filed in the matter of an FIR registered under Sections 377 and 506 of the Penal Code, 1860 and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO hereunder) for committing sexual assault on the son of the informant.

The mother of the victim lodged the written ejahar alleging that the accused who was a private tutor of her son, a boy aged 9 years, used to give private tuition to her son regularly in the house of the accused of the last 3 months. When the informant found her son reluctant to go to his said private tutor and she also noticed that her son was not feeling well she asked him as to what happened to him. In reply, he told his mother that he was feeling pain in his rectum because his private tutor inserted his genital organ into his rectum at the time of his taking tuition from him. Knowing this, mother of the victim had immediately taken her son to the hospital where injuries were found in his rectum.

Apprehending arrest, the accused had approached this court for pre-arrest bail.

The Court after perusing all the records observed that the victim became very upset after the occurrence and after the medical tests when they came to know about the occurrence the accused private tutor also left his home. The Court further observed that same statement had been given by her husband and one of the neighbours who came to know about the occurrence from the parents of the victim. The 9 years old victim had also unfolded the entire incidence before the Judicial Magistrate who recorded his statement under Section 164(5) CrPC. About the medical evidence it was found that the IO had already approached the medical officer to record his findings in the medical report and such report was awaited.

The Court while rejecting the bail application found that materials available on record had made out a strong prima facie case against the accused petitioner and in view of the above, this court was of the view that this was not a fit case in which the accused may be given the benefit of custodial immunity by granting pre-arrest bail.[Indrajit Ghosh v. State of Tripura, 2021 SCC OnLine Tri 112, decided on 26-02-2021]

Suchita Shukla, Editorial Assistant ahs put this story together.

Case Briefs Supreme Court Roundups

Supreme Court Monthly Roundup – January 2021

No sexual assault if no ‘skin to skin’ contact? Supreme Court stays Bombay High Court’s “dangerous precedent” on POCSO Act

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has stayed the controversial Bombay High Court judgment wherein the High Court had acquitted the accused under Section 8 of the POCSO Act, 2012 on the ground that the accused had no sexual intent in committing the offence under POCSO Act because there was no direct physical contact, i.e., skin to skin.

The said order came after Attorney General for India K. K. Venugopal brought to the Court’s notice that the Nagpur Bench of Bombay High Court has passed a judgment dated 19.01.2021 is likely to set “a dangerous precedent”.

The Court, hence, permitted the Attorney General to file an appropriate petition against the said judgment and in the meantime, stayed the acquittal of the accused in the case in question.

The bench, further, issued notice to the accused and the State of Maharashtra returnable two weeks.

In judgment dated 19.01.2021, Pushpa V. Ganediwala, J., of Bombay High Court’s Nagpur Bench, expressed that since there was no direct physical contact i.e. skin to skin with sexual intent without penetration, the said would not amount to ‘sexual assault’.

The Bench expressed that the act of pressing of the breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’.

[Attorney General for India v. Satish, 2021 SCC OnLine SC 42, order dated 27.01.2021]

ALSO READ

Bombay HC on Sexual Assault | Would ‘pressing of breast’ and ‘attempt to remove salwar’ of a child fall under S. 7 and punishable under S. 8 of POCSO Act?

Case Briefs High Courts

Bom HC | 70-year old man convicted under S. 10 POCSO Act for touching breast of a minor child aged 8 years old amounting to ‘aggravated sexual assault’

Bombay High Court: Vinay Joshi, J., altered the conviction for rape and penetrative sexual assault to an act of aggravated form of sexual assault punishable under Section 10 of the POCSO Act in light of touching the breast of the child.

Appellant aged 67 years was convicted under Sections 376 and 450 of the Penal Code, 1860 and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

Accused was acquitted from the charge of committing offence punishable under Section 377 IPC. Accused challenged the conviction in the instant appeal.

Informant was residing along with his family members, including his daughter/victim girl aged 8 years. Two sons of the informant had been to their school and the minor victim was alone at the house as she was ill. In the afternoon the informant returned to his house for lunch and found that the house was locked from within, therefore, he peeped from the window and saw that appellant by lifting frock of the victim was moving his hand on her neck, cheek and chest.

Later, the informant shouted to open the door and hurriedly left the place. Victim disclosed that the accused moved his hand on her body, kissed her as well as put his finger in his anal part.

In regard to the above reference, informant lodged a report against the said incident.

Special Judge framed charge under relevant provisions of IPC and POCSO Act further on the appreciation of evidence held that the prosecution succeeded in proving the offence punishable under Sections 376 and 450 IPC, Sections 4 and 6 of the POCSO Act.

The prosecution case, in short, is about rape and aggravated penetrative sexual assault by the accused on a minor victim aged 8 years.

Analysis and Decision

Bench stated that the act of accused of touching the breast of the victim with sexual intent amounts to an aggravated form of sexual assault, which is punishable under Section 10 of the POCSO Act.

Since the medical evidence nowhere supported that there was insertion or penetration of finger into the anal region, it is doubtful whether the accused penetrated his finger into the anal region of the victim.

If two view emerges from the situation, the view favourable to the accused would take precedence. On mere assumption or possibility, the accused cannot be convicted.

All the sexual assaults on children below 12 years amount to an aggravated form of sexual assault.

With regard to the age of the accused, which is near about 70 years, the imprisonment of 5 years would meet the ends of justice. From the set of circumstances laid down, it is clear that the house-trespass was merely in order to commit an offence punishable with imprisonment, which is punishable under Section 451 of the Penal Code, 1860.

In view of the above, criminal appeal as partly allowed.

Conviction under Section 376 of IPC and Sections 4 and 6 of the POCSO Act, is hereby quashed and set aside, instead the accused was convicted for the offence punishable under Section 10 of the POCSO Act and.

Further, instead of conviction under Section 450 IPC, the appellant is convicted for the offence punishable under Section 451 of the IPC.

Hence appellant will be entitled to set off under Section 428 of the CrPC. [Tukaram Ashruji Khandare v. State of Maharashtra, 2020 SCC OnLine Bom 2802, decided on 22-10-2020]

Advocate for the appellant, R.V. Gahilot and H.R. Dhumale, A.P.P. for the respondent.

Case Briefs High Courts

Chh HC | Bail granted to accused under POCSO Act on grounds of non-objection by the victim/ complainant

Chhattisgarh High Court: Prashant Kumar Mishra J., allowed the application and granted bail in the matter concerning offence under Protection of Children from Sexual Offences Act, 2012 (POCSO).

The facts of the case are such that the father of the prosecutrix lodged FIR informing that his daughter left the house in the afternoon and did not return till evening informing over his mobile that she will not be returning in the night. Later, in her Section 164 Criminal Procedure Code,1973 statement the prosecutrix stated that she is in love with the applicant for about 6-7 months prior to the incident and had gone with him of her own and stayed in the house of the applicant’s maternal uncle. In her diary statement, she alleged that first sexual intercourse happened on 14-5-2020 and thereafter, on 5-6-2020 thereby stating that she is having an affair with the applicant. Hence the applicant was arrested for the offence under Section 363, 366 & 376 of the Indian Penal Code and Sections 4, 6 of the Protection of Children from Sexual Offences Act, 2012. Aggrieved by this, instant bail application has been filed before the Court.

The submissions made before the Court are that the prosecutrix and her father has no objection if the applicant is allowed bail.

The Court observed that the prosecutrix is less than 16 years of age, however, considering the affair and no objection of herself and her father during the hearing of the bail application, bail was granted.

In view of the above, the application was allowed and disposed off.[Diwakar Yadav v. State of Chhattisgarh, 2020 SCC OnLine Chh 491, decided on 02-11-2020]

Arunima Bose, Editorial Assistant has put this story together

Case Briefs High Courts

Guj HC | Rape charges on boy filed by minor wife quashed; Costs imposed on parents for ruining childhood of minors

Gujarat High Court: A.S. Supehia, J., quashed a rape case against a boy which was filed by his minor wife.

The FIR mentioned that the prosecutrix was married to the petitioner- accused on 07-02-2015 at the age of 11 years and that she was forced to maintain the physical relationship by her husband against her wishes after 2016 when she was taken to her in-law’s house. During the pendency of the petition, an affidavit was filed by the complainant, stating that the dispute had been amicably resolved between the families and she does not want to further pursue the criminal prosecution and counsel for both respective parties have submitted that in the respective communities of both the boy and the girl, the custom of child marriage was still prevailing and hence, the prosecutrix and the petitioner were married by their parents when they were minors.

The Court after perusing the records after the completion of investigation observed that it was an established fact that the parents had solemnized the marriage of the accused and prosecutrix when they were minor and the proceedings under the Prohibition of Child Marriage Act, 2006 have also been initiated. Further, the Court was not detrimental or adverse to the settlement arrived at between the families, stating that the reckless and irresponsible demeanor of the parents of both the boy and the girl cannot be ignored. The Court further stated,

The parents of the prosecutrix were well aware of all the consequences of getting her married at the age of eleven. Uniformly, the parents of the petitioner are also responsible. Both the parents have imprisoned the minors in marriage and forced them to develop relationship of husband and wife which is a gross violation of their human rights. They are forced by the parents to face the rigors of married life at the tender age despite their being a prohibition under the law. Thus, the genesis of the impugned FIR lies in the child marriage arraigned by the respective parents.

The Court opined that the criminal machinery alleging such serious offences under Penal Code, 1860 and POCSO cannot be allowed to be misused and the parents of such children who resort such tactics cannot be let-off easily without fastening any accountability.

The Court while quashing the FIR against the boy imposed cost on the families of the prosecutrix and the petitioner holding them responsible for ruining their childhood by dragging them in such a disreputable controversy. The Court quoted from the judgment of the Supreme Court in Aarushi Dhasmana v. Union of India, (2013) 9 SCC 475 where K.S.P. Radhakrishnan, J., had observed,

“Law of this land has always recognised the rights of parents with their wards/minors and first and foremost consideration of the Court is “welfare of the children”, which overrides the views or opinions of the parents.”[Applicant v. State of Gujarat, R/Criminal Misc. Application No. 12832 of 2020, decided on 20-10-2020]

Suchita Shukla, Editorial Assistant has put this story together

Case Briefs High Courts

Pat HC | Seriousness of “alleged” offence cannot be made a ground for rejecting bail under Juvenile Justice Act, 2015

Patna High Court: In an application challenging the order of rejection of bail passed by Additional Sessions Judge, Ashwani Kumar Singh, J., set it aside enlarging the appellant-accused on bail.

The instant application has been filed by the appellant under Section 101(5) of the Juvenile Justice (Care & Protection of Children) Act, 2015 (JJ Act) challenging the order dated 24-09-2019 passed in Child Case No. 6 of 219 by the Additional Sessions Judge, Buxar in connection with P.S. Case No. 21 of 2019 registered under Section 376 of the Penal Code, 1860 and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

The factual background in the present matter is that serious allegations have been placed on the appellant for committing the act of rape on the victim aged 13. The FIR was registered on the basis of the written report submitted by the mother of the victim subsequent to which, the appellant was arrested and produced before the Special Judge (POCSO), Buxar. Further, the statement of the victim was recorded under Section 164 of the Criminal Procedure Code, 1973.

Contradictory to the FIR, the victim made no mention of rape in her statement and spoke of a meeting between the appellant and herself.

Later, a petition was filed by the appellant before the Special Judge, Buxar claiming the on the day of occurrence he was a juvenile. During this period of time, a bail application was filed which was adjourned to different dates. With the bail application still pending, the Special Judge (POCSO), Buxar sent the case to Juvenile Justice Board, Buxar for the examination of his claim of juvenility. The Board determined the appellant’s age and declared him a juvenile vide order dated 02-08-2018. Subsequently, the Board made an assessment of the physical and mental ability of the appellant under Section 15 of the JJ Act and found it fit to transfer the appellant’s case to Children’s Court and accordingly, transferred the entire case record to the court of Special Judge (POCSO), Buxar for the trial of the appellant as an adult.

Later on, the Special Judge (POCSO), Buxar vide order dated 24-09-2019 rejected the bail application of the appellant. Upon careful perusal of the impugned order dated 24-09-2019, this Court observed that the bail application has been rejected primarily due to the serious nature of the offence and the charge-sheet that has been filed against the appellant. The trial court has erred by overlooking the victim’s statement under Section 164 CrPC. Also, undue importance has been given to the inconclusive medical report which only raises the possibility of a sexual act with the victim. The manner in which the alleged crime was committed hasn’t been indicated anywhere. The report of the probation officer seems completely hypothetical and beyond any reasoning. The Court also relied on the judgment in the case of Lalu Kumar v. State of Bihar, 2019 SCC OnLine Pat 1697.

In view of the above, the Court found the impugned order unsustainable and set it aside. In addition to this, the appellant has been released on bail. The appeal has been allowed.

[X9 v. State of Bihar, 2020 SCC OnLine Pat 1665, decided on 15-10-2020]

*The name of the appellant-accused has been withheld as per the statutory provisions prescribed under Section 74 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Yashvardhan Shrivastav, Editorial Assistant has put this story together

Case Briefs High Courts

MP HC | Scope and extent of bail conditions under S. 437(3) CrPC are wide enough to include reformative measures like community service, but ought not be onerous and excessive in nature; HC decides scope and application of Bail under POCSO and SC/ST Act

Madhya Pradesh High Court: Anand Pathak, J., while deciding an application against cancellation of bail said: in cases where “any bail application of accused is allowed or rejected under Section 439 CrPC by the Special Court then appeal shall not lie under Section 14–A(2) of the Atrocities Act. Only an application under Section 439 CrPC for bail shall lie.”

Brief Facts

The instant applicant under Section 439(2) of Code of Criminal Procedure has been preferred by the applicant-complainant for cancellation of bail granted to respondent 2, the accused who was enlarged on bail by this Court vide order dated 26-02-2020 in Criminal Appeal No. 1759/2020. Accused is facing trial for offence under Section 363, 366-A, 376 of the Penal Code, Section 3 (1)(w)(ii) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 3/4 of Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”).

Issue

Whether High Court can entertain an application under Section 439(2) of CrPC for cancellation of bail granted in exercise of powers conferred under Section 14-A(2) of Atrocities Act?
Whether the Court granting bail in an appeal under Section 14-A(2) of Atrocities Act can be recalled/cancelled as the order granting bail does not attain finality?
Whether in an offence where the provisions of the Atrocities Act and POCSO Act are involved, the procedural law of the POCSO Act will apply or the provisions of Atrocities Act?
Whether, in a composite offence involving of provisions of POCSO Act and Atrocities Act, an order refusing bail under Section 439 CrPC will be appealable as per Section 14-A(2) of Atrocities Act or an application under Section 439 CrPC will lie before the High Court?
What is the scope and extent of bail conditions as referred in Section 437(3) of CrPC?

Observations

Answering issue (i) and (ii), the Court explained the altered position of Section 439 CrPC, after the recent amendment to the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, remarking,

“By virtue of such amendments, which came into being in year 2016, concurrent jurisdiction of this Court to grant regular bail under Section 439 CrPC has been taken away and in place of concurrent jurisdiction, an appellate jurisdiction has been conferred by way of an appeal under Section 14-A(2) of Atrocities Act. Although, provisions of appeal has been made but it still emanates from an order of refusal of bail by Special Court under Section 439 of CrPC. Original statutory source of Section 439 is still intact. Only difference is replacement of concurrent jurisdiction with appellate jurisdiction.”

The Court reiterated the legislative intent of the amendment enforced in 2016 and said that, the very objective of it was Speedy Trial and Protection of Victim’s Rights. It further elaborated the definition of Victim under the Atrocities Act in comparison with the definition stated under Section 2(wa) CrPC. Furthermore, the Court acknowledged the Victim’s right to appear before the Court at the time of hearing of bail application as enshrined under the said Act. With respect to intent and objectives of the Act, the Court placed reliance on, Provision of Section 14-A, SC/CT (Prevention of Atrocities) Amendment Act, 2015 (Allahabad HC, Criminal Writ and Public Interest Litigation No. 8/2018) and Bishveshwar Mishra v. State of Bihar (Patna HC, Criminal Miscellaneous No. 25276/2016)

Furthermore, the Court relying upon the case of Puran v. Rambilas, (2001) 6 SCC 338, held that the High Court being the superior court has inherent powers to cancel the bail and no interpretation which restricts these powers or nullifies Section 439(2), CrPC can supersede. Reflecting upon the Mischief Rule of Interpretation, the Court highlighted four principles that must be considered for true interpretation of any statute: (i) What was the common law before making of the Act, (ii) What was the mischief and defect for which the common law did not provide, (iii) What remedy the Parliament has resolved and appointed to cure the disease of the Commonwealth and (iv) The true reason of the remedy.
The court further cited, Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752, elaborating on secondary victimization of the complainant, the term as coined by the Supreme Court;

“… today, the rights of an accused far outweigh the rights of the victim of an offence in many respects. There needs to be some balancing of the concerns and equalising their rights so that the criminal proceedings are fair to both.”

Regarding the application of procedural laws in case of two special laws, for instance, POCSO and Atrocities Act, as in the present case, the Court said that provisions of POCSO Act are in addition and not in derogation of the provisions of any law including Atrocities Act. Since the victim is a minor girl, almost a child, and the objective of POCSO Act is to protect children from sexual offences, the Special Court under POCSO Act would be the appropriate forum rather than the Special Court under Atrocities Act.
With respect to issue (iv), the Court said, against the order of Special Court (POCSO Act), application under Section 439 CrPC for bail shall be maintainable instead of appeal under Section 14-A(2) of the Atrocities Act.
Discussing the scope and extent of bail conditions under Section 437(3) of CrPC, the Court said that it has a wider scope to cover community service and other reformative measures, not being “excessive, freakish and onerous” in nature. For concluding the same, reliance was placed upon Report Nos. 36, 47, 156, 268 of the Law Commission of India and as reflected in the particular judgment of the Supreme Court in the case of Munish Bhasin v. State (NCT of Delhi), (2009) 4 SCC 45, and Sumit Mehta v. State (NCT of Delhi), (2013) 15 SCC 570.

Decision

While deciding the question of jurisdiction and grant of bail, the Court directed the office to place this matter before the Acting Chief Justice of the High Court for issuance of necessary guidance and for circulation amongst District and Sessions Judges for information and compliance. It further said,

“When an accused is being tried under the Atrocities Act as well as the POCSO Act simultaneously, then Special Courts under POCSO Act shall have the jurisdiction and if in the event that any bail application of accused is allowed or rejected under Section 439 of Cr.P.C. by that Special Court then appeal shall not lie under Section 14-A (2) of the Atrocities Act. Only an application under Section 439 of Cr.P.C. for bail shall lie.”

The true reason for the remedy is to provide speedy justice to the victims and for the provisions to act as a deterrent to the miscreants. The right of victims to approach the High Court in case of bail condition should not be violated to defeat the very spirit of the SC/ST Amendment Act in 2015.[Sunita Gandharva v. State of M.P., 2020 SCC OnLine MP 2193, decided on 8-10-2020]

Sakshi Shukla, Editorial Assistant has put this story together

Case Briefs High Courts

Bom HC | “Consent induced by fiduciary relationship not a free consent”: Bom HC while refusing bail to rape accused business partner of victim’s father

Bombay High Court: Bharati Dangre, J., while addressing a petition with regard to the rape of a minor girl, made an observation that:

“Rape” is just not a forcible intercourse, it means to inhabit and destroy everything.

A minor victim girl registered a complaint based on which offences for Sections 376, 354-D, 506 of Penal Code, 1860 were invoked against the applicant.

Since the complaint was registered by a minor, provisions of Sections 3, 4, 11 and 12 of the Protection of Children from the Sexual Offences Act, 2012 were also invoked.

Victim who was acquainted with the applicant who was a business partner of the victim’s father.

She alleged that from the month of October, 2019, the applicant started texting her on her Whatsapp and expressed his liking towards her and also sought sexual favours from her, which was turned down by the victim girl.

Applicant sent a message to the victim stating that he wanted to discuss an important family matter with her and asked her to meet the next day. Next day, when she was waiting for a bus to arrive the applicant approached her on a two-wheeler and she was asked to accompany him.

She was then taken to a nearby farmhouse and by making an emotional appeal and threatening that she if did not agree, he will commit suicide, she was forced to commit sexual intercourse with him. She was also threatened that she should not disclose the incident to her parents and if she does so, it would adversely affect the partnership business.

Again after the above incident, the applicant forced the victim in a similar manner and indulged with her physically.

After a few days of the second incident, the victim disclosed it to her parents and after due deliberation, the report was lodged.

Bench on perusal of the above stated that it is not very unlikely that a young girl aged 17 years became disquieted after the act of ravage and did not gather the courage to speak to her parents about the said incident.

The victim girl was also conscious of the fact that the applicant was a business partner of her father.

The whole episode of the applicant indulging with a minor girl, a daughter of his business partner itself speak of his intention.

FIDUCIARY RELATIONSHIP

Court further observed that the applicant took advantage of the fiduciary relationship, which he shared with the victim girl and put her in a vulnerable situation.

CONSENT

Assuming but not accepting that the victim girl consented for maintaining the physical relationship, her consent is not free consent.

Further, adding to the above, penal code does not recognise the consent by a minor girl to be consent in the eyes of law and in the present case, in the backdrop of narration by the victim, her consent can naturally be said to be induced by a fiduciary relationship which she shared and on that count also, it is not free consent.

“Offence of rape as defined in Section 375 of the IPC, made punishable under Section 376, is attracted when a man commits an act of rape without the consent of the girl or when such consent is obtained by putting her in fear of death or of hurt. The hurt may be physical or mental.”

The consent of the victim girl under 18 years of age is also of no legal consequences when it comes to an offence of rape punishable under Section 376 IPC.

In view of the above observations, High Court did not release the applicant on bail and rejected the bail application. [Amit Raosao Patil v. State of Maharashtra, 2020 SCC OnLine Bom 917, decided on 09-09-2020]

Case Briefs Tribunals/Commissions/Regulatory Bodies

NHRC issues notice to UP Govt. & Union Ministry of Jal Shakti over alleged gang-rape, murder of minor girl

The National Human Rights Commission India has taken suo motu cognizance of media reports that a 13-year-old girl belonging to Scheduled Caste was gang-raped and killed when she had gone to relieve herself on the farmland owned by one of the accused on 15-08-2020. Reportedly the victim was tortured before strangled to death. It is mentioned in the news report that there is a toilet in the victim’s house but it’s not functional.

The Commission has issued notices to the Chief Secretary and DGP, Government of Uttar Pradesh calling for detailed reports in the matter within 06 weeks including disbursement of the statutory relief as per rules framed under provisions of the SC/ST (POA) Act to the family of the victim, action taken against the guilty and the status of the FIRs registered in the matter. The Chief Secretary is also expected to sensitize the district authorities in the State to create awareness that the toilets should not be constructed for mere fulfillment of the government records, they are to be actually made functional.

The Commission found it appropriate to forward a copy of the news item to the Secretary, Union Ministry of Jal Shakti, which is the Nodal Ministry for the ‘Swachchh Bharat Abhiyan.’ It is expected from the Ministry to issue guidelines to all the States and Union Territories to ensure that the toilets are not only constructed but also used to make the country clean and save the women from the heinous crimes committed by anti-social elements when they go out to relieve themselves. He is also expected to respond within 6 weeks.

According to the media reports, both the accused have been arrested by the police. The Senior Superintendent of Police, Kheri has reportedly stated that the FIR has been registered under relevant sections of IPC and POCSO Act. He has further added that the National Security Act will be slapped against the accused who were arrested by the police within few hours after the incident.

National Human Rights Commission

[Press Release dt. 17-08-2020]

Case Briefs High Courts

Bom HC | Step father accused of sexually abusing step daughter granted bail since investigation in case complete

Bombay High Court: Sandeep K. Shinde, J., granted bail to the applicant accused of sexually abusing her step daughter.

Applicant sought enlargement on bail in the case registered for the offences punishable under Sections 354, 354A of the Penal Code, 1860 and Section 8, 9(n) of the Protection of Children from Sexual Offences Act, 2012.

After the demise of first husband, complainant got married to the applicant and started residing at applicant’s house with her daughters from first and second marriage.

Later, being subjected to harassment from applicant she moved out of his house to her mother’s house. In April, 2019, one of the daughters from the first marriage of the complainant told her that she was sexually abused by her step father i.e. the applicant.

Complaints under Sections 504 and 506 of Penal Code, 1860 were filed against the applicant.

Applicant’s counsel invited Court’s attention to a letter addressed by the elder daughter of the complainant from first marriage to the Senior Inspector of the Police wherein she had alleged attempts by her mother to push her in the prostitution.

Further he added that the complainant’s version was suspicious, particularly, in view of her elder daughter’s complaint to police, which was not been enquired into.

The Bench perused the relevant documents as pointed and referred, and in Court’s opinion a case was made out for releasing the applicant on bail.

That even otherwise, investigation in the case is over. Offence punishable under Sections 354, 354A and Section 12 of the POCSO Act, may extend to 5 and 3 years respectively.

Bail application was allowed. [Makrand Chandrakant Bapardekar v. State of Maharashtra, 2020 SCC OnLine Bom 779 , decided on 13-07-2020]

Case Briefs High Courts

Bom HC | POCSO Act overrides S. 14-A of SC/ST Act: Court while granting bail to applicant accused of sexual assault/rape on minor victim belonging to scheduled caste

Bombay High Court: Bharati Dangre, J., allowed a bail application and granted bail to the applicant who was accused of committing the offence of sexual assault on a minor victim.

The preliminary question before the High Court was whether the present application was maintainable because according to S.V. Gavan, APP, since the offence alleged was under SC/ST (Prevention of Atrocities) Act, 1989, an appeal would be required to be preferred under Section 14-A of the SC/ST Act.

The Court, however, agreed with the judgments other High Courts cited by Abhijeet A. Desai, counsel for the applicant, wherein it has been held that the Protection of Children from Sexual Offences Act, 2012, being a special enactment and also a subsequent enactment and containing a non obstante clause, the bar created under Section 14-A of the SC/ST Act would not operate.

Then, considering the main plea in the present application, the Court noted that age of the victim was 15 years 4 months and 23 days and that of the applicant was 21 years. The victim was in a friendly relationship with the accused/ On the date of incident, she accompanied the victim to a lodge where they remained for almost 1.5-2 hours. Considering the victim was a minor, the Court noted that any submission as to the consent of the victim is futile.

It was noted that the accused was in custody since 12th November 2019; investigation was complete and chargesheet has been filed. The Court was of the opinion that on merits, there was no prohibition that applicant could not be released on bail. However, to ensure that the victim is kept away from the applicant so she may depose freely, the applicant was directed to give an undertaking that he will not enter into the jurisdiction of Pune City since the victim is a resident of Pune.

As far as the allegations under the SC/ST Act were concerned, except in a statement of the victim recorded under Section 164 CrPC, where she had disclosed that applicant abused her by mentioning her caste, there was no other material to attract the offences under the SC/ST Act. The Court stated that the effect of the statement under Section 164 CrPC and the content therein and its appreciation would be done at the time of trial. It was not the case of the prosecution that the applicant was aware that the victim belongs to scheduled caste and therefore intentionally he assaulted her sexually, being conscious of this fact. Therefore, perusal of the material in the chargesheet did not prima facie attract the provisions contained in the SC/ST Act.

In such view of the matter, the High Court released the applicant on bail, subject to the conditions imposed. [Suraj S. Paithankar v. State of Maharashtra, Bail Application No. 817 of 2020, dated 3-7-2020]

Case Briefs High Courts

[POCSO] Guj HC | Lack of legal awareness amongst children, lends them as offenders in serious matters; Minor boy lent himself in the net of law by taking away minor girl

Gujarat High Court: A Division Bench of Sonia Gokani and N.V. Anjaria, JJ.,while addressing matter wherein a minor boy had taken away the minor girl and were missing for a significant amount of time, stated that,

“…right kind of understanding needs to be given, in the form of legal awareness amongst the children and college students so that society can simultaneously protect very young minor boys, who due to their lack of understanding of law, turn into the offenders in serious matters.”

Background of the case

On 18th March, 2020 a report was filed before the Court wherein it was stated that the the Investigating Officer had intimated his superior of the factum of the minor girl having been abducted by his son.

Further bearing in mind the young age of the corpus, the Deputy Superintendent of Police had been handed over the investigation.

On 1st June, 2020 Court had directed SP Mehsana to file his report and to make all efforts to trace the corpus and produce before the Court.

In response to the above, till date his team has not been able to get the custody of the corpus.

Present position in the matter

Corpus has been present in the Court through video conference. Superintendent of Police, Mehsana submitted that the corpus was not found from the residence of respondent 5 but was found from some place of the relatives.

Court observed that, corpus has shown her disinclination when inquired specifically by this Court to join the parents.

She being a minor, her wish would have no relevance, however, she cannot be forced to go to her parents, as according to her, they tried to engage her elsewhere before she turns major, so that, she may not be able to exercise her own wish and marry the person of her own choice.

As she was unwilling to join the parents, Court directed for her to be housed at Women Protection Home, Patan.

Further the Court noticed that respondent 5 who himself is a minor was yet to be found.

Bench was pained to learn that respondent 5 himself being a minor had chosen to take away the corpus who is also a minor lending himself in the net of law, particularly of the POCSO Act.

“…young boys who themselves are not major, many a times without realizing the consequences of their act, or many a times actuated by frenzy of youth, with careless approach towards stringent laws eventually label themselves as offenders in the matters of POCSO, and face serious consequences of rigorous punishment prescribed under the law.”

Police Superintendent ensured the Court that he would take up the issue with Anti-Human Trafficking cell and District Legal Services Authority for creating awareness amongst the youngsters.

Parents could meet the girl at women protection home in the presence of one of the office bearers only with the clear understanding that she can’t be forced to do anything against her will.

In view of the above. matter is to be posted on 25th August, 2020. [Vikramsinh Champaksinh Parmar v. State of Gujarat, 2020 SCC OnLine Guj 960 , decided on 29-06-2020]

Case Briefs High Courts

[POCSO] Sikk HC | Delicate balance to be maintained between judicial perception of victim’s anguish and presumption of innocence of accused

Sikkim High Court: A Division Bench of Bhaskar Raj Pradhan and Arup Kumar Goswami, JJ. while upholding the Judgment of acquittal passed by Special Judge (POCSO), held that,

A delicate balance is required to be maintained between the judicial perception of the anguish of the victim and the presumption of innocence of the accused and an inequitable tilt either way may not render sound justice.

Sole testimony of minor prosecutrix was that she was sexually assaulted by respondent that was disbelieved by Special Judge (POCSO).

Assistant Public Prosecutor submitted that the sole testimony as stated above had not been demolished during the cross-examination and as such the Special Judge erred in discarding it.

Complainant (PW-1) with whom the minor prosecutrix was staying for the last 4 months had filed the FIR against the respondent. In the FIR it was stated that when complainant enquired from the minor prosecutrix, she was informed that respondent had been assaulting and raping her for a very long time.

Gynaecologist opined that clinical and cytopathological report was not suggestive of recent forceful sexual intercourse. She admitted that hymen can tear and rupture from so many other things besides sexual intercourse.

Minor Prosecutrix further stated that although PW-1 and her husband slept together in the same house but nobody noticed the respondent sexually assaulting her and whenever she tried to raise an alarm he used to put his hand on her mouth.

Daughter of the respondent told minor witness (PW-3) that the minor prosecutrix was a girl of immoral character. The minor prosecutrix deposed that she was deeply hurt and mentally affected after hearing this and started crying when the complainant (PW-1) saw her. At this moment, the minor prosecutrix told the complainant (PW-1) about the sexual assault.

Decision of the Court

Bench — keeping in mind the ambit and scope of the judicial examination in the present appeal against acquittal, stated that judgment of acquittal passed by the Special Judge is neither perverse nor against the weight of the evidence on record.

Special Judge had disbelieved the deposition of penetrative sexual assault made by the minor prosecutrix. Disbelief was fortified by the medical as well as forensic evidence.

Reasoning for the above decision

Defence had brought out the animosity between the complainant (PW-1) and the sole prosecutrix on the one side and the respondent and his daughter on the other. The negative result of both the medical and forensic evidence collected immediately after the alleged assault does not help the prosecution case further, more so, when she alleged forceful penetrative sexual assault.

Defence has also been able to bring out certain facts about the altercations and fight between them immediately preceding the lodging of the FIR.

All of the above leans towards the claim of innocence of the respondent.

Thus, in the above view, judgment of acquittal is upheld. [State of Sikkim v. Karna Bahadur Rai, 2020 SCC OnLine Sikk 33, decided on 14-03-2020]

Case Briefs Supreme Court

SC quashes trial against a man in a sexual assault case of a 6-year-old. Here’s why

Supreme Court:

“The heinous crime committed should not be led into prosecuting a person only because he was part of the Management of the School.”

The bench of L Nageswara Rao and Hemant Gupta, JJ said while quashing the trial against a member of the School management in a case relating to sexual assault of a 6-year-old girl in her school in Haldwani.

The FIR filed by the father of the prosecuterix mentioned that a teacher had sexually assaulted his daughter. In the first statement recorded, the prosecuterix mentioned that the teacher had deliberately and repeatedly assaulted her. However, in another statement, she stated that after she returned from washroom, two Uncles came and picked her away. She also mentioned that these two persons work outside school. She said that one of them wore spectacles. The father of the prosecutrix filed an application to summon the person who wears spectacles, as identified by the victim. She then identified the appellant as the bespectacled person. The principal of the School, however, in a statement issued by her, said that the anger was directed against the Management of the School of which the appellant is a part and hence, his name was dragged in a offence he never committed.

Considering the facts and circumstances of the case, the Court noticed that the prosecutrix is a small child. It is parents of the child who have taken the photographs either from the website of the School or from the Facebook to introduce a person with spectacles as an accused. The initial version of the father of the prosecutrix and of the prosecutrix herself, as disclosed by her father in the FIR, is assault by one person. It said that even if the father of the child has basis to be angry with the Management of the School but, there is no prima facie case of any active part on the part of the appellant is made out in violating the small child. The involvement of other persons on the statement of the child of impressionable age does not inspire confidence that the appellant is liable to be proceeded under Section 319 of the Code. In fact, it is suggestive role of the family which influences the mind of the child to indirectly implicate the appellant.

“Obviously, the father of the child must have anger against the Management of the School as his child was violated when she was studying in the School managed by the appellant but, we find that the anger of the father against the Management of the School including the appellant is not sufficient to make him to stand trial for the offences punishable under Section 376(2) of the IPC read with Sections 5/6 of the POCSO Act.”

The Court also took note of the fact that the prosecution after investigations has found no material to charge the appellant. It, hence, held that statement of the child so as to involve a person wearing spectacles as an accused does not inspire confidence disclosing more than prima facie to make him to stand trial of the offences. Therefore, the order of summoning the appellant under Section 319 of the Code is not legal.

[Mani Pushpak Joshi v. State of Uttarakhand, 2019 SCC OnLine SC 1362, decided on 17.10.2019]

Hot Off The Press News

Digital Exploitation of Children

Information given by the Minister of Women and Child Development, Smriti Zubin Irani —

“Police” and “Public Order” are State subjects as per the Constitution of India. States/UTs are primarily responsible for prevention, detection, investigation and prosecution of crimes including crimes related to exploitation of children; through their law enforcement machinery. The law enforcement agencies take legal action as per provisions of law against persons involved in digital sexual exploitation/ abuse of children. The Information Technology (IT) Act, 2000 has adequate provisions to deal with prevailing cybercrimes. Section 67B of the Act specifically provides stringent punishment for publishing, browsing or transmitting child pornography in electronic form. Further, sections 354A and 354D of Indian Penal Code provide punishment for cyber bullying and cyber stalking against women.

Details of further action taken by the Government are as under:

Ministry of Home Affairs has approved a scheme namely ‘Cyber Crime Prevention against Women and Children (CCPWC)’ under which an online Cyber Crime reporting portal, (www.cybercrime.gov.in) has been launched to enable public to report complaints pertaining to Child Pornography/ Child Sexual Abuse Material, rape/gang rape imageries or sexually explicit content. This portal facilitates the public to lodge complaints anonymously or through Report and track option. Steps have also been taken to spread awareness, issue of alerts/advisories, training of law enforcement agencies, improving cyber forensic facilities etc. These steps help to prevent such cases and speed up investigation. A handbook on Cyber Safety for Adolescents/Students has been released (Copy available on www.cybercrime.gov.in and www.mha.gov.in) and sent to all States/ Union Territories for wide circulation. Cyber Crime awareness campaign has been launched through twitter handle (@CyberDost) and radio across the country.

The Ministry of Women and Child Development had enacted the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) as a special law to protect children from offences of sexual assault, sexual harassment and pornography. Section 13 to Section 15 deals with the issue of child pornography.

Section 14 and Section 15 lays down the punishment for using the child for pornographic purposes and for storage of pornographic material involving the child.

Further Section 28 of the POCSO Act 2012 provides for the establishment of Special Courts for the purpose of providing speedy trial of offences under the Act.

Section 43 of the POCSO Act, 2012 provides that the Central Government and every State Government takes all measures to give wide publicity to the provisions of the Act. In accordance with this, MWCD has taken various steps from time to time to create awareness of the provisions of the POCSO Act through electronic and print media, consultations, workshops and training programmes with stakeholders concerned. Further, the National Commission for Protection of Child Rights (NCPCR) and State Commission for Protection of Child Rights (SCPCRs) are also mandated to monitor the implementation of the POCSO Act, 2012.

Government has taken a number of steps to be implemented by Internet Service Providers (ISPs) to protect children from sexual abuse online. These include:

Government blocks the websites containing extreme Child sexual Abuse Material (CSAM) based on INTERPOL’s “Worst-of-list” shared periodically by the Central Bureau of Investigation (CBI) which is the National Nodal Agency for Interpol. The list is shared with Department of Telecommunications (DoT), who then directs major ISPs to block such websites.

Government ordered major Internet Service Providers(ISPs) in India to adopt and disable/remove the online CSAM dynamically based on Internet Watch Foundation (IWF), UK list.

Ministry of Electronics and Information Technology (MeitY) has implemented a major programme on Information Security Education and Awareness (ISEA). A dedicated website for information security awareness (https://www.infosecawareness.in) has also been set up.

Press Release dt. 18-07-2019

[Source: PIB]

Hot Off The Press News

Fund and set up special POCSO courts: SC tells Centre

Supreme Court: The Court has directed the Centre to fund and set up exclusive courts in every district where 100 or more cases under the Protection of Children from Sexual Offences (POCSO) Act are pending. The bench of Ranjan Gogoi, CJ and Deepak Gupta ordered that the special courts for the trial of cases of sexual offences against children should start functioning with 60 days.

“These courts will not hear any other cases except those under the POCSO Act”

The Court added that the fund will not only take care of the appointment of presiding officers but also court staff, support staff, besides the infrastructure for vulnerable court complexes.

The bench also directed the chief secretaries of all states to ensure the effective functioning of the forensic science laboratories (FSL).

The order came after amicus curiae and senior advocate V Giri submitted his report on the directions of the court. Giri said there is a lack of proper judicial infrastructure for the trial of POCSO cases.

Earlier, the Supreme Court had asked its registry to collate district-wise data from the registrars of all the high courts on the total number of child rape cases and how long these have been pending.

Centre has to file a progress report within 4 weeks.

(Source: ANI)

Case Briefs High Courts

Sikk HC | Lack of injury on genitals of victim not conclusive proof of non-commission of rape – ocular testimony of victim has greater evidentiary value vis-a-vis medical evidence

Sikkim High Court: Bhaskar Raj Pradhan, J. hearing a criminal appeal filed by a person convicted of rape and sexual assault under Penal Code, 1860 (hereinafter ‘IPC’) and Protection of Children from Sexual Offences Act, 2012 (hereinafter ‘POCSO’), partly allowed the appeal and set aside conviction under POCSO Act on the ground that punishment imposed under IPC was greater and more rigorous than that imposed under POCSO Act.

Appellant, a taxi driver, was hired by the victim and her two friends to go sightseeing in and around Gangtok. It was alleged that he took the girls for sightseeing and during this period became violent with the victim’s friend. When they wished to return, he began making demands for money and forced the victim’s friend to get off from the car and drove off with the victim while she was unconscious. The victim filed a criminal case against the appellant for commission of rape, penetrative sexual assault on a minor as well as for voluntary causing hurt. Special Judge, POCSO Act convicted the accused-appellant under Sections 323, 354, 354B, 376(1) of IPC and Sections 3(a) and 4 of the POCSO Act. Aggrieved thereby, this appeal was filed.

K. T. Tamang, legal aid counsel for the appellant, argued that since there was a gap between the alleged incident and the seizure of the victim’s article along with the appellants clothing it could not be ascertained if the bodily fluids found on the clothes belonged to the appellant. He relied on the case Ramdas v. State of Maharashtra, (2007) 2 SCC 170 to ask for corroboration of the victim’s testimony as she had hidden that she had consumed alcohol. He argued that based on the admission made by the Investigating Officer (IO), the appellant and the victim’s friend had purchased the alcohol. Hence, the victim had not been sedated but had consumed alcohol. He also submitted that the medical evidence ruled out all the possibilities of ocular evidence being true and thus ocular evidence should be disbelieved, as per the case of Abdul Sayeed v. State of MP, (2010) 10 SCC 259.

SK Chetri (Additional Public Prosecutor) appeared for the State and established the minority of the victim at the time of the incident. He also proved that it was the appellant who had driven the victim and her two friends on the day of the incident. He further proved that victim’s friend was hit by the appellant while they were in the car before they were made to get off from the vehicle. He had also successfully proved that there were bruise marks on the victim’s neck and contusions on the appellant’s chest both of which dated back to the time of the offence. The victim’s deposition was further corroborated by both oral as well as material evidence, although there were a few minor discrepancies between the witness statements.

The Court observed that besides the deposition of the victim about penetration there was no direct medical proof of rape. However, the victim was 17.5 years of age at the time of the commission of the offence and therefore capable of understanding what rape meant. In addition to this, the injuries on the victim as well as the appellant reflected signs of resistance. It was noted that the evidence of the victim was not totally inconsistent with the medical evidence, and it was settled that ocular testimony of a witness has greater evidentiary value vis-a`-vis medical evidence. Even the medical evidence did not completely rule out the possibilities of the commission of rape by the appellant. Further, there was no direct contradiction between ocular and medical evidence.

The Court was of the view that the Special Judge could have punished the appellant only under Section 376 IPC and not under Section 4 of the POCSO Act. Consequently, the sentence under Section 4 of the POCSO Act was set aside as punishment under Section 376(1) IPC mandated the compulsory imposition of rigorous imprisonment with hard labor which was greater in degree than the one provided under Section 4 of the POCSO Act. Hence, the appeal was partly allowed.[Prem Rai v. State of Sikkim, 2019 SCC OnLine Sikk 81, decided on 07-06-2019]

Case Briefs High Courts

Tri HC | Doctrine of Proportionate Punishment | Sentence under POCSO reduced in absence of specific evidence that accused touched private parts of prosecutrix

Tripura High Court: Arindam Lodh, J. reduced the sentence of 5 years rigorous imprisonment awarded to the appellant by the trial Judge to 3 years for the commission of an offence under Section 7 (sexual assault) made punishable under Section 8 of the Protection of Children from Sexual Offences Act, 2012.

The appellant was tried and convicted for committing the offence of sexual assault on the prosecutrix when she was returning from mela. The appellant had filed the present appeal against the said judgment. R.G. Chakraborty, Advocate representing the appellant strenuously argued that the entire story was false and the appellant was totally innocent. Per contra, A. Roy Barman, Additional Public Prosecutor appearing for the State submitted that the prosecution had been able to prove the case beyond any shadow of doubt.

As per prosecutrix’s evidence, the High Court found that the appellant came in contact with the prosecutrix physically with sexual intention. However, there was no evidence that the appellant touched private parts of the prosecutrix. The Court was of the opinion that while maintaining the appellant’s conviction, the order of sentence passed against him warrant’s alteration. It was observed: “Since there is no specific evidence that the appellant had touched the private parts of the prosecutrix, in my opinion following the doctrine of proportionate punishment, justice would be made if the sentence of 5 years is reduced to 3 years.” The sentence was reduced accordingly. At the same time, other parts of the impugned judgment relating to conviction and sentence under Section 341 and 342 IPC remained unaltered. [Asok Das v. State of Tripura, 2019 SCC OnLine Tri 190, decided on 13-05-2019]

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