POCSO

Case BriefsHigh Courts

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 BriefsTribunals/Commissions/Regulatory Bodies

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 BriefsHigh Courts

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 BriefsHigh Courts

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 BriefsHigh Courts

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 BriefsHigh Courts

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 BriefsSupreme Court

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 PressNews

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 PressNews

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 BriefsHigh Courts

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 BriefsHigh Courts

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]

Case BriefsHigh Courts

Bombay High Court: Sadhana S. Jadhav, J. allowed an appeal filed against the decision of the trial court whereby the appellant was convicted for offences punishable under Section 376 IPC (punishment for rape) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (punishment for penetrative sexual assault).

The appellant was accused of committing rape upon the prosecutrix on pretext of marriage. He was tried and convicted by the trial court as aforesaid.

Arjun Rajput, counsel for the appellant assailed the judgment of the trial court. Per contra, S.S. Pednekar, Assistant Public Prosecutor appearing for the State supported the impugned judgment.

The High Court noted that evidence of the prosecutrix, on which appellant’s conviction was primarily based, did not inspire confidence. Also, several witnesses turned hostile. The Court stated, “witness may lie, but the circumstances will not lie.” As per the FIR, the appellant and prosecutrix had already made a plan to go out on the day of the alleged incident. It was observed, “The papers of investigation would indicate that the appellant was in love with the prosecutrix and that has led to initiation of criminal prosecution. The parents of the prosecutrix and that has led to initiation of criminal prosecution. The fact that the prosecutrix had voluntarily missed the classes and decided to accompany him would be sufficient to indicate that she was not forced to accompany the appellant.”

The Court noted further, “The appellant seemed to be so frustrated with the criminal prosecution that he made no efforts even to defend himself. In his statement under Section 313 CrPC he has only stated that he does not wish to speak about the incident. The papers of investigation would further indicate that the appellant felt betrayed by the prosecutrix. That it was a love affair between two youngsters, which had landed in criminal prosecution of a young boy.”

In such circumstances, the Court allowed the appeal and set aside the conviction and sentence awarded to the appellant by the trial court. [Gorakshya Arjun Mahakal v. State of Maharashtra, 2019 SCC OnLine Bom 520, dated 13-03-2019]

Case BriefsHigh Courts

Gujarat High Court: The Bench of A.Y. Kogje, J. allowed a bail application under Section 439 of the Code of Criminal Procedure, 1973 in connection with FIR registered for the offence punishable under Sections 363, 366 and 376(2)(I)(N) IPC and under Sections 3(A), 4, 5(L), 6, 7, 8, 11(6) and 12 of the POCSO Act, 2012.

Additional Public Prosecutor appearing for the respondent-State opposed grant of regular bail looking to the nature and gravity of the offence.

The cardinal fact that was taken into account was that the applicant was aged 24 years, unmarried and was a student whereas the prosecutrix was aged 16 years. The Court while allowing the application stated that by history narrated before the Medical Officer, the element of love affair could not have been ruled out and therefore the present was found to be a fit case to enlarge the accused on bail. [Harsul v. State of  Gujarat, 2019 SCC OnLine Guj 68, Order dated 16-01-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of S.B. Shukre and S.M. Modak, JJ. allowed a set of criminal appeals filed against the judgment of Sessions Judge whereby the appellants were convicted under Section 376 (2)(n) IPC and under various sections of Protection of Children from Sexual Offences Act, 2012 and Prohibition of Child Marriage Act, 2006.

The appellants were the husband, parents, neighbours, etc. of the victim. The prosecution alleged that the victim was married to her husband when she was 15 years of age. She was pressurised by her parents. Soon after the wedding, the husband consummated the marriage with the victim. She was not able to resist the advances and acts of the husband who was 29 years of age. One day, on the pretext of celebrating he birthday with her parents, the victim ran away and lodged an FIR against the husband, her parents and other accused. The matter went to trial and the court convicted the accused as aforesaid. Aggrieved thereby, the convicts preferred the present appeals.

Mahesh Rai and A.A. Dhawas, Advocates for the appellants vehemently argued against the conviction and seriously disputed age of the victim at the time of the incident. They relied on evidence of one Vasanti, an employee of Municipal Council, Chandrapur. Notably, Vasanti was a prosecution witness but her evidence wherein she brought birth register proved that the victim was born in 1994 and not in 1999 as claimed by the prosecution. Thus, at the relevant time, the victim was more than 18 years of age. Therefore she could not be treated as a ‘child’ for the purpose of either POCSO or the Child Marriage Act.

The High Court, noting the above evidence stated that the same was reliable. It observed, “After having examined its own witness and after having not declared the witness with the permission of the Court as hostile to the prosecution, it is not permissible under the law for the prosecution to disown its own witness”. On the aspect of other evidence especially the ossification test, the Court relied on Mahadeo v. State of Maharashtra, (2013) 14 SCC 637 and State of M.P. v. Anoop Singh, (2015) 7 SCC 773. The Court stated, “The ossification test would come into picture only when the documentary and other evidence brought on record by the prosecution does not convincingly or beyond reasonable doubt establish the age of the victim, wherever it is relevant”. Thus, the victim not being a ‘child’ at the relevant time, the appellants were acquitted of offences under POCSO and Child Marriage Act. Further, regarding Section 376(2)(n) IPC, it was noted that the victim admitted that after the marriage she did not object to the acts of the husband and therefore even that offence was not established. Hence, the appellants were acquitted of all the charges. [Vimalbai Manohar Doballiwar v. State of Maharashtra, 2018 SCC OnLine Bom 6956, dated 19-12-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Madan B. Lokur and Deepak Gupta, JJ. laid down directions and threw light in a very precise and analytical manner on two very important and pertinent issues:

  • Identity of adult victims of rape and children who are victims of sexual abuse should be protected so that they are not subjected to unnecessary ridicule, social ostracisation and harassment;
  • Issues relating to non-disclosure of the name and identity of a victim falling within the purview of the POCSO.

The present judgment has been in a detailed manner written down in two parts dealing with the above-stated issues separately.

“Victim of a sexual offence, especially a victim of rape, is treated worse than the perpetrator of the crime.”

The bench while stating that a victim of rape is treated like a “pariah” and ostracised from society, stated that many times cases of rape do not even get reported because of the false notions of so-called ‘honour’ which the family of the victim wants to uphold.

“Victims’ first brush with justice is an unpleasant one where she is made to feel that she is at fault; she is the cause of the crime.”

Court made it clear that they do not want to in any manner curtail the right of the defence to cross-examine the prosecutrix, but the same should be done with a certain level of decency and respect at large. Efforts have been made to sensitise the courts, but experience has shown that despite the earliest admonitions, the first as far back in 1996, State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, the Courts even today reveal the identity of the victim. Further, the Court referred to Section 228A IPC (Disclosure of identity of the victim of certain offences etc.), Section 327 CrPC, 1973 (Courts should be open and normally public should have access to the Courts) , stated that vide the Amendment Act of 1983, cases of rape, gang rape etc. were excluded from the category of cases to be tried in open Court. Sub-Section (1) of Section 228A states that any person who makes known the name and identity of a person who is an alleged victim of an offence falling under Sections 376, 376A, 376AB, 376B, 376C, 376DA, 376DB or 376E commits a criminal offence. Sub-Section (2) of Section 228A is making known the identity of the victim by printing or publication under certain circumstances described therein.  Bench making it clear that the phrase “matter which may make known the identity of the person” does not solely mean that only the name of the victim should not be disclosed but it also means that the identity of the victim should not be discernible from any matter published in the media. The clarity also lead to the bench stating that, no person can print or publish the name of the victim or disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.

Next pointer on which the Court threw light was on the investigation taken by police officers, they should also as far as possible either use a pseudonym to describe the victim unless it is absolutely necessary to write down her identity. FIR relating the offence of rape against women or offences against children falling within the purview of POCSO shall not be put in the public domain. Memos or Correspondence exchanged or issued with the name of the victim in it should not be disclosed to media and not be furnished to any person under RTI Act, 2015.

Another vexatious issue is in regard to the “next kin of the victim” giving an authority to the chairman or secretary of recognized welfare institutions to declare the name of the victim—For the stated issue, Court was of the opinion that, it is not necessary to disclose the identity of the victim to arouse public opinion and sentiment, If a campaign has to be started to protect the rights of the victim, it can be done so without disclosing her identity. Therefore, the Court stated that even under the authorization of the next of the kin, without permission of the competent authority, the identity should not be disclosed.

Sub-Section (3) of Section 228A IPC, lays down that nobody can print or publish any matter in relation to any proceedings within the purview of Section 228A IPC and Section 327 (2) CrPC.

If the accused is acquitted and the victim of the offence wants to file an appeal under Section 372 CrPC, the victim can pray to the Court that she may be permitted to file a petition for the same under a pseudonymous name.

Issue 2- Issues which relate to non-disclosure of the name and identity of a victim falling within the purview of the POCSO.

“India is a signatory to the United Nations Convention on the Rights of Child, 1989 and Parliament thought it fit to enact POCSO in the year 2012, which specifically deals with sexual offences against all children.”

Section 24(5) and Section 33(7) makes it amply clear that the name and identity of the child is not to be disclosed at any time during the course of investigation or trial and the identity of the child is protected from the public or media.

Section 37 states that trial is to be conducted in camera which would mean that the media cannot be present; the purpose of POCSO is to ensure that the identity of the child is not disclosed unless the Special Court in writing permits such disclosure and disclosure can only be made if it is in the interest of the child, for instance,e the identity of the child cannot be established even by the investigating team, then the permission of photograph to be published can be given by the Special Court of Investigative Team.

Learned amicus curiae placed that the definition of ‘interest of child’ has not been given anywhere to which the Court stated that it is neither feasible nor would it be advisable to clearly lay down what is the meaning of the phrase “interest of the child”, as each case will have to be dealt within its own factual scenario.

The bench further detailed out that media has to be not only circumspect but a duty has been cast upon the media to ensure that it does nothing and gives no information which could directly or indirectly lead to the identity of the child being disclosed.

“Media should be cautious not to sensationalise the same.”

Sensationalising such cases may garner Television Rating Points (TRPs) but does no credit to the credibility of the media.

A child belonging to a small village, the disclosure of the name of the village may contravene the provisions of Section 23(2) POCSO because it will just require a person to go to the village and find out who the child is—Media is not only bound to not disclose the identity of the child but by law is mandated not to disclose any material which can lead to the disclosure of the identity of the child and such violation would amount to an offence under Section 23(4). Another point raised by the amicus curiae was that the publication should only mean a living child to which the Supreme Court was in total disagreement, as in the case of dead victims, the factor which was to be kept in mind was the dignity of the dead which they cannot be denied of.

The decision of Calcutta High Court in, Bijoy v. State of W.B.,2017 SCC OnLine Cal 417, detailed out the reasons while dealing with the provisions of POCSO and held that neither during investigation nor during the trial name of the victim should be disclosed. The judgment also laid down directions to ensure that the provisions of the law are followed in letter and spirit, and the fundamental rights of child victims are protected, to which the Supreme Court bench in the present case is in agreement.

The Bench requested the Chairpersons and Members of all the Juvenile Justice Committee of all the High Courts to go through the judgment of the Calcutta High Court stated above and issue directions keeping in view the needs of each High Court/State. The Court also detailed out the establishments of  “One Stop Centres”, by taking inspiration from “BHAROSA” in Hyderabad which can be used as a model for other one-stop centres in the country.

Thus, the Court disposed of the petitions and based on the above-stated discussion laid down 9-directions which can be referred to in the judgment. [Nipun Saxena v. Union of India,2018 SCC OnLine SC 2772, decided on 11-12-2018]

Case BriefsHigh Courts

Bombay High Court: A Single judge Bench comprising of K.L. Wadane, J. partly allowed a criminal appeal filed against the judgment of the trial court whereby the appellant was convicted under Sections 450 and 354-A IPC along with Section 8 of the Protection of Children from Sexual Offences Act, 2000.

The appellant was accused of committing sexual assault on a minor victim on the pretext of giving her chocolate. the accusation and charges against the appellant stood proved in the trial court. Consequently, he was convicted as aforesaid and sentenced accordingly. Aggrieved thereby, the appellant preferred the instant appeal.

The High Court, after perusal of the record, partly affirmed the judgment of the trial court to the extent it convicted the appellant under Section 354-A IPC and Section 8 POCSO Act. However, regarding Section 450 IPC, it was observed that an accused can be convicted for the offence punishable under the said Section only if another offence for which he has been convicted is punishable with imprisonment for life; otherwise, the conviction under Section 450 IPC is bad in the eyes of law. Since in the instant case, the other offences for which the appellant was convicted were not punishable with imprisonment for life, the Court acquitted him from the offence punishable under Section 450 IPC. The appeal was disposed of in the terms above. [Hanumant v. State of Maharashtra,2018 SCC OnLine Del 12142, dated 29-09-2018]

Hot Off The PressNews

Supreme Court: The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar & Dr. DY Chandrachud, JJ directed all High Courts to ensure that the cases of sexual assault of children are fast-tracked and decided expeditiously by special courts. The bench also asked the the high courts to instruct the trial courts not to grant unnecessary adjournments during trial of cases under the Protection of Children from Sexual Offences (POCSO) Act.  The Court also directed that the High Courts may constitute a committee of three judges to regulate and monitor the trials of sexual assault cases of children.

The Court was hearing the petition filed by advocate Alakh Alok Srivastava after the horrific incident of rape of an 8-month girl child allegedly by her 28-year-old cousin on January 28 in a locality near Netaji Subhash Place in north-west Delhi had come to light.  He had also sought the provision of death penalty in such cases and framing of guidelines that investigation and trial of cases involving rape of children below 12 years of age under POSCO Act, should be completed in six months from the date of registration of the FIR.

The Union Cabinet had on April 21 approved the ordinance to provide stringent punishment, including death penalty, for those convicted of rape of girls below 12 years. The move of the Centre came after a public outcry for award of death penalty to such sexual offenders, including the assaulters of an 8-year-old girl who was gang raped and killed at Kathua district of Jammu and Kashmir recently.

Source: PTI

Case BriefsSupreme Court

Supreme Court: While hearing the plea seeking compensation of Rs 10 lakh for the parents of an eight-month old baby who was allegedly raped by her 28-year-old cousin in Delhi in the month of January 2018. The 3-judge bench Dipak Misra, AM Khanwilkar and Dr. DY Chandrachud, JJ directed the Registrar Generals of all the High Courts to send intimation to the Supreme Court Registry about the pendency of the cases instituted under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and the status of those cases. The Court said that the Registrar Generals may constitute a team, if necessary, to prepare district-wise data.

Earlier, on 01.02.2018, the petitioner had submitted before the Court that there should be speedy disposal of the cases registered under the POCSO Act. Hence, the Court had asked him to file a chart containing data with regard to the cases pending at various places, along with the reasons for delayed disposal, so that the Court can take a holistic view of the matter.

The Court will now take up the matter on 20.04.2018. [Alakh Alok Srivastava v. Union of India, 2018 SCC OnLine SC 212, order dated 12.03.2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench of the Delhi High Court comprising of S.P. Garg, J., disposed of a criminal appeal which challenged a judgment by which, the appellant was held guilty for committing the offences punishable under Sections 354/354A/451 IPC and Section 10 POCSO Act. The appellant, under the conviction, was awarded various prison terms with fine.

The prosecution case was that the appellant had made non-consensual physical contact with the prosecutrix and had outraged her modesty at her house. The prosecutrix was aged around 9 years. The prosecutrix gave a vivid description of the incident in the complaint, implicating the appellant as the perpetrator. In the trial, eight witnesses were examined to establish the prosecution’s case. On the other hand, defence produced no evidence.

The extensive cross-examination, the prosecutrix was subjected to, uncovered no inconsistencies in her testimony. She was consistent throughout at different stages of investigation and trial. She proved the version given before the police as well as before the learned presiding officer without any material variation. No ulterior motive could be assigned to the prosecutrix in implicating the appellant. Under Section 313 CrPC, the appellant came with the plea for the first time that he had borrowed Rs 5,000 from the victim’s father and upon defaulting, the victim’s father had demanded Rs. 10,000 and upon failing to pay this money, he was falsely implicated.

The Court noted that evidence was put forward as to when and for what purpose the appellant had borrowed the money. Further, it was held to be highly unbelievable that for a sum of Rs. 5000, the victim’s father would demand Rs. 10,000 from the appellant, much less have his daughter subjected to negativity associated with such a serious issue. The appellant, further, did not deny his presence at the spot, nor did he deny his visits to the victim’s house. The Court found no reason to set aside the conviction.

However, regarding the sentence order, the Court noted that the appellant had been sentenced under POCSO Act as well as IPC for various offences, the ingredients of which were almost identical. Maximum sentence under Section 10 of the POCSO Act had been awarded. Hence, sentences under Sections 354.354A and 451 IPC were set aside. Appeal disposed of. [Vinay v. State (NCT of Delhi), 2018 SCC OnLine Del 7257, decided on 16.2.2018]

Case BriefsHigh Courts

Bombay High Court: In the order passed by the Bench of A.M. Badar, J., rejecting the application filed for grant of bail where the father being the accused was charged with offences under Sections 6, 10 and 12 of the Protection of Children from Sexual Offences Act, 2012 and under Sections 354-A, 376(2)(f) and (i), 506, 509 of the Penal Code, 1860.

The application was rejected, on the basis of statements of other inmates of the house and also relying on the FIR lodged by the victim on 18-4-2017, stating the accused to be indulged in sexual assaults against her since the past several years. The learned counsel for the prosecutrix drew attention to the testimony of the teacher in front of whom she accepted that she was being molested from past 4-5 years and due to the fear of her father as well as mother she had never disclosed about the incident. It was also stated by the victim that the applicant has committed rape on her when she was in seventh standard alone at her house.

Relying on the circumstantial evidence and testimony of other witnesses and doing away with the evidence from the victim , the Court was convinced that no case of bail was made out. The request for holding a mini trial was also rejected. Not giving much consideration to the subsequential change of stance by the daughter considering it prima facie for protection of the accused and also considering the circumstances and evidences, the court decided against the appellant. [Devendra Bansraj Singh v. State of Maharashtra,  2017 SCC OnLine Bom 9120, decided on 9-11-2017]