POCSO

Karnataka High Court
Case BriefsHigh Courts

   

Karnataka High Court: M Nagaprasanna, J. allowed the petition filed seeking further cross examination of the child victim as the victim has now attained 18 years of age and the rigour given under S. 33(5) Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ ) is not applicable now.

The petitioner was alleged to have indulged in acts which had become an offence punishable under Sections 4 and 6 POCSO Act and Section 376 of Penal Code, 1860 (‘IPC’). FIR was thereby filed, and the matter is pending consideration before the Sessions Judge. The petitioner filed an application under Section 311 Criminal Procedure Code (‘CrPC’) seeking recall of the victim for further cross-examination which was rejected. Aggrieved by this, an instant petition was filed.

The Court observed that in terms of Section 311 CrPC, a Court may at any stage of any inquiry, trial or other proceeding, recall a witness for re-examination, if his evidence appears to be essential for a just decision in the case.

Placing reliance on V N Patil v. K Niranjan Kumar, (2021) 3 SCC 661 wherein it was observed that the aim of every Court is to discover the truth. Section 311 CrPC is one of such provisions which strengthen the arms of a court in its effort to unearth the truth except where applications are filed as an abuse of the process of law. Such discretion will have to be exercised by the Court.

The Court noted that in terms of Section 33(5) POCSO Act, the Special Court must ensure that the child is not called repeatedly to testify in the Court. A reading of Section 33(5) POCSO Act, would clearly indicate the intention behind such enactment that in genuine cases the child-victim is not harassed. That would not mean that the accused can be deprived of his right to cross-examination in a trial, particularly, where offence punishable is beyond ten years. The mandatory nature to recall the witness for cross examination, if the evidence appears to be essential, is always necessary for a just decision in a case, except in cases where repeated applications under Section 311 CrPC are filed frivolously.

The Court further noted that the other factor that is necessary to be noticed is, the current age of the victim once the victim crosses 18 years of age, the rigour of Section 33(5) POCSO Act gets diluted, as it is the child-victim who shall not be called for cross examination or re-examination repeatedly. The word ‘child’ is defined under Section 2(1)(d) POCSO Act, to mean a person below 18 years of age. On the child reaching 18 years of age, the rigour under Section 33(5) POCSO Act gets diluted and sequentially, will not become a bar for seeking further cross-examination of the victim under Section 311 of the CrPC.

The Court held “the victim ought to have been permitted to be cross-examined by accepting the application seeking to recall the witness”.

[Mahammad Ali Akbar v. State of Karnataka, Criminal Petition No. 4449 of 2022, decided on 06-06-2022]

Advocates who appeared in this case :

Mr Syed Muzakkir Ahmed, Advocate, for the petitioner;

Mrs KP Yashodha, Advocate, for the respondent.

*Arunima Bose, Editorial Assistant has reported this brief.

Meghalaya High Court
Case BriefsHigh Courts

Meghalaya High Court: The Division Bench of Sanjib Banerjee, CJ. and W. Diengdoh, J. disposed of an appeal assailing the judgment of conviction of April 27, 2021 finding the appellant guilty under Section 376(2) of the Penal Code, 1860, the main thrust of the argument was against the sentence of 20 years’ rigorous imprisonment awarded along with the fine of Rs.50,000/-. 

 

The survivor was all of three years and a half at the time of the incident and the evidence of the medical practitioner who examined her immediately after the first information report was lodged was that she was young, unable to speak and had a condition that impaired her speech. The appellant had confessed that on September 4, 2009, when the survivor was alone, the appellant picked her up and took her to a bedroom, tried to penetrate her followed by fingering the survivor. His sisters who were in the other room called out to her when they heard the noises. Immediately, he removed his finger from her vagina. (The survivor) climbed down from the bed crying and rushed outside.  

 

The Court noted that at no stage before the trial court did the appellant make an attempt to disown the statement that was attributed to him as being recorded under Section 164 of the Criminal Procedure Code, 1973; nor did he retract there from in course of any of his answers to the questions put by the Fast Track Court or the subsequent regular court under Section 313 of the Code. It was concluded that the commission of the offence under Section 376(2) of the Penal Code by the appellant stood established beyond reasonable doubt. 

 

The Court stated that issue which is of relevance is as to the sentence awarded against the appellant. In this regard the Court noted that it is evident that the conviction primarily rests on the confessional statement of the appellant herein. There is no doubt that there is an element of remorse that comes out from the statement. Considering the conduct of the appellant and his confession made at the earliest stage from which he had not retracted, the sentence stood reduced from 20 years’ R.I. to 15 years’ R.I. together with the fine of Rs.50,000/-. The order of punishment was modified accordingly without interfering with the fine imposed. 

[Armishal L. Marshillong v. State of Meghalaya, Crl.A.No.16 of 2021, decided on June 13, 2022] 

For the Appellant : Mr H.R. Nath, Mr A. Sharma and Ms B. Sun 

For the Respondents : Mr K. Khan and Mr S. Sengupta 

*Suchita Shukla, Editorial Assistant has reported this brief. 

 

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: A Division Bench of Mukta Gupta and Mini Pushkarna, JJ. upheld the impugned conviction order considering the accused has committed heinous crime of rape on a four year girl of tender age within his close family.

The facts of the case are such that the appellant is alleged to have committed aggravated penetrative sexual assault upon baby ‘M’ and was charged for offence punishable under Section 6 of the Protection of children from of Sexual Offences Act i.e. POCSO Act. The appellant was thereby awarded sentence of imprisonment for life along with fine of Rs 10,000 in default of payment of fine, the Trial Court has further awarded sentence of Simple Imprisonment for a period of one month, for the said offence. The present is an appeal under Section 374(2) read with Section 383 Criminal Procedure Code i.e. CrPC challenging the order passed by Additional Sessions Judge-01 (POCSO), South-East District, Saket Courts, New Delhi and prayed for leniency by reducing the sentence awarded to the appellant.

Counsel for appellants submitted that the prosecution has not been successful in establishing the guilt of the appellant in respect of offence punishable under Section 6 of the POCSO Act. It was contended that the testimony of the prosecution witnesses did not inspire any confidence and no conviction or sentence can possibly be awarded on the basis of such evidence. It was also submitted that the witnesses who were the parents of the victim had turned hostile and had rather deposed in favour of the appellant. Further, even the victim was not examined, which was fatal to the prosecution case.

Counsel for appellants submitted that there were mitigating circumstances in favour of the appellant for considering his case for reduction of sentence. She argued that the appellant had clean antecedents; was 35 years of age at the time of offence; he was married and his wife and six children were dependent on him, the appellant being the sole bread earner. She further argued that the jail conduct of the appellant was satisfactory and on path of the reformation. Thus, she prayed for reduction in the sentence awarded to the appellant.

The Court observed that the law is very clear in this regard that evidence of hostile witness need not be totally rejected. It can be accepted to the extent his version is found to be dependable and is consistent with the case of prosecution or defense.

It was further observed that the contention as raised by the counsel for the appellant that the victim child was not examined cannot be fatal to the prosecution case, for the reason that the victim was too young, hardly 4 years old at the time of the incident. Being of such tender age she was not in a position to give any statement. The Trial Court has rightly held that the tender age of the victim coupled with her lack of maturity to understand as to what ghastly/ wrong act had been committed with her, was the reason why she was not examined, or arrayed as a witness. Thus, the witnesses presented and evidence produced sufficiently proves penetrative sexual assault even in the absence of any direct evidence/ testimony of the victim or her parents. This scientific evidence coupled with the other circumstantial evidence unerringly point to the committal of the offence by the accused.

The Court held that the “Trial Court rightly held that this sufficiently proves penetrative sexual assault even in the absence of any direct evidence/ testimony of the victim or her parents. This scientific evidence coupled with the other circumstantial evidence unerringly point to the committal of the offence by the accused”

The Court further held “As regards the prayer for leniency by reducing the sentence awarded to the appellant, the act of the accused, considering the fact that he was already married having six children and being related to the parents of the minor victim, does not inspire any case for leniency in his favour. The accused has committed heinous crime of rape on a four year girl of tender age within his close family. This Court finds no justification in reducing the sentence awarded to the appellant.” [Mukish v. State, 2022 SCC OnLine Del 1762, decided on 19-05-2022]

 

Apperances

For Petitioner: Ms Inderjeet Sidhu,

For State: Mr Tarang Srivastava and Yogesh Tanwar

*Arunima Bose, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Taking note of the alarming rise in the number of sexual offenses being committed against school children, Bechu Kurian Thomas, J., issued directions to the Kerala Government and Central Board of Secondary Education (CBSE) to necessarily prescribe sessions/classes in school curriculum on the provisions of the Protection of Children from Sexual Offences Act, 2012 as well as the amendments brought into section 376 of IPC in 2013.  

Emphasising the need to focus on prevention rather than punishment, the Court remarked,  

“Unfortunately, the statute does not distinguish between the conservative concept of the term rape and the sexual interactions arising out of pure affection and biological changes. The statutes do not contemplate the biological inquisitiveness of adolescence and treat all ‘intrusions’ on bodily autonomy, whether by consent or otherwise, as rape for certain age group of victims.” 

The Court observed that in many cases, the perpetrators of the crime are either students or persons young in age because unmindful of the consequences, teenagers and adolescents indulge in sexual relationships, and by the time they realise the consequences, it gets too late.  

“A meaningful life could practically be snuffed out by an immature or negligent act arising out of human curiosity or biological cravings, which Psychologists regard as natural.”  

Noticeably, the amendments brought into the Indian Penal Code, 1860, and the enactment of the POCSO Act, envisage very harsh consequences for such offensive acts. However, the Court noted,  

“…the statutory diktat, on the scope and purport of the terms sexual assault, aggravated sexual assault and penetrative sexual assault apart from minimum punishments are most often, unknown to the students and youths.” 

Acknowledging that ignorance of law is not an excuse, the Court opined that it is the State which has failed to achieve the real purpose of the amendments brought into section 376 IPC and the enactment of the POCSO Act; which are manifold – punishment of the offender is only one while prevention is another. The latter purpose will be achieved only if consciousness and awareness of its provisions are created from the schools itself.  

Therefore, the Court, suo motu, directed to implead three parties as additional respondents, i.e., the State of Kerala represented by the Secretary Department of Education, Central Board of Secondary Education, Kerala State Legal Services Authority with the intent to issue directions for paving the way for better awareness on the statutes concerned in schools in Kerala. 

The Court directed that the school curriculum must of necessity prescribe sessions/classes on the provisions of the POCSO Act as well as the amendments brought into section 376 of IPC. 

The matter is posted on 31-08-2022 for further hearing.  

[Anoop v. State of Kerala, 2022 SCC OnLine Ker 2982, decided on 08-06-2022]  

Appearance by:  

For the Applicant: Nireesh Mathew, Advocate  

For the State: Public Prosecutor  

For Victim Rights Center: Parvathy Menon, Advocate  

For CBSE: S.Nirmal, Advocate 

Kamini Sharma, Editorial Assistant has put this report together 

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Ravindra Maithani, J. allowed an appeal against an order of the Trial Court which convicted a man of raping a girl and thereby ordered that the man be released from jail forthwith.

The facts stated by the prosecution were that the prosecutrix left her house to get some goods from the market but did not return. She returned on the next day. She told that the appellant, accompanied by the co-accused Rajat enticed her in Scooty. The appellant then took her to his Aunt’s house. He made her drink beer and, in the night, forcibly raped her and threatened her to life if she reveals it to anyone. A case was registered under the POCSO Act, 2012 and under Sections 363, 376 and 506 IPC. Upon further investigation, age of the prosecutrix was ascertained to be above 18 years and the complaint under the POCSO Act, 2012 was dropped.

In order to establish the offence, it must be proved that the act was done without the ‘consent’ of the prosecutrix. The Court referred to the case of Satpal Singh v. State of Haryana, (2010) 8 SCC 714, which stated-

“30. An act of helplessness in the face of inevitable compulsions is not consent in law. More so, it is not necessary that there should be actual use of force. A threat of use of force is sufficient.”

Also, it is well laid down that where the sexual intercourse by the accused is proved and the woman states before the court that she did not consent, the court shall presume that the woman did not consent.

However, the Court opined that conviction cannot be based on the statement of the prosecutrix alone unless it qualifies the parameters of reliability, credibility and truthfulness.

The Court noted the following points to come to the conclusion that the prosecutrix gave her consent to the act:

  • At the first instance, why did the prosecutrix joined the company of the appellant and Rajat. If Rajat wanted to speak to her and she was not willing for it, she would have simply denied it.
  • According to the prosecutrix, she was in the market. She was not all alone. Instead of Rajat raising alarm, why the prosecutrix did not raise alarm? Why did she join the appellant and the co-accused? In her cross examination, the prosecutrix has categorically stated that she did not raise any alarm.
  • In her statement, the prosecutrix categorically tells that on mutual consent she had gone Pauri. She also bought a beer for herself on the way. It means she was not forced to go to Pauri by the appellant.
  • The room in which the prosecutrix was sleeping in was bolted in from the inside. The appellant called her 2:30 in the night. But she did not inform about it to anyone instead she silently unbolted the door and sneaked into the kitchen suggesting that she was a consenting party. This belies her statement that she was raped forcefully.
  • In her statement, she told that after the incident, she slept quietly. She did not tell about it to anyone in the house she was staying on the next day also.

In view of the above arguments, the Court was of the view that the prosecution could not establish the offence under Section 375 IPC since the act was with the free and voluntary consent of the prosecutrix. The Court further ordered that the appellant be released from jail. [Sanjay Semwal v. State of Uttarakhand, Criminal Appeal No. 265 of 2021, decided on 11-11-2021]

Advocates before the Court:

For Appellant: Mr V.B.S. Negi, Senior Advocate, assisted by Ms Prabha Naithani

For State: Mr Lalit Miglani, A.G.A.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Prasanna B. Varale and S.M. Modak, JJ., quashed an FIR filed for an offence under Section 376 of the Penal Code, 1860 and Section 4 of the POCSO Act, on noting that the dispute was settled and the girl and boy wanted to get married.

In the present matter, the applicant was accused of an offence registered under Section 376 of the Penal Code, 1860 and under Section 4 of the Protection of Children from Sexual Offences Act (POCSO Act).

The above-said offence was registered on the complaint of the father of the victim-girl. He filed the complaint about sexual abuse and sexual harassment of her minor daughter; hence the applicant was arrested, and charge-sheet was also filed.

The dispute was later settled, during the pendency of the prosecution.

Analysis and Decision

High Court on reading the affidavit filed by the victim-girl found that the applicant and the victim were in love with each other and now they decided to marry after settling in life in their respective careers.

The girl’s parents had also filed affidavits and gave an explanation for misunderstanding while lodging the FIR. Further, they added that they have accepted the friendship between their daughter and the appellant. Though the Court did not accept the said explanation.

High Court quashed the FIR for the reasons that both agreed to marry, and the no-objection given by the victim-girl.

Bench added that, when the applicant was in the Court, he was asked about his readiness to marry the victim-girl, and he gave the undertaking to marry her.

Therefore, the application was allowed. [Nauman Suleman Khan v. State of Maharashtra, 2022 SCC OnLine Bom 1148, decided on 29-4-2022]

Advocates before the Court:

Adv. Datta Mane, for the Applicant.

Mr. K. V. Saste, APP for the Respondent-State.

Mr. Hrishikesh P. Hartalkar, for Respondent 2.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: H.P. Sandesh, J. allowed the petition and granted bail to the petitioner in connection with a crime registered in  Magadi Police Station, Ramanagara District, for the offence punishable under Sections 8 and 12 of the POCSO Act.

The factual matrix of the case of the prosecution is that this petitioner is a PT teacher and he misbehaved with a student who is studying in 10th standard and he had indulged in the same act when she was in 8th and 9th standard also. When the victim girl was unable to tolerate the act of this petitioner, a complaint was given to the Principal of the school and pursuance of the said complaint, the Principal of the school had lodged the complaint and case has been registered under Sections 8 and 12 of POCSO Act. This petition is filed under Section 439 of CrPC. seeking regular bail of the petitioner in a crime registered at Magadi Police Station, Ramanagara District, for the offence punishable under Sections 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short).

Counsel for the petitioner submitted that the petitioner is aged about 55 years and the complaint discloses that there was a delay in lodging the complaint and afterthought only a false complaint is lodged and no such complaint is filed earlier and investigation has already been completed and the petitioner has been in custody from last two months. The maximum punishment for the said offence is five years and hence he may be enlarged on bail subject to conditions.

Counsel for the respondent-State submitted that the complainant immediately has not lodged the complaint. When the victim girl brought to the notice of the friends, the friends told her to lodge a complaint with the Principal and accordingly the complaint is lodged and statement under Section 164 CrPC of the victim was also recorded before the Court wherein also she has reiterated the very act of the petitioner.

The Court observed that particularly the complaint given by the Principal, specific allegation is made against the petitioner that this petitioner had indulged in committing of the offence under Sections 8 and 12 of the POCSO Act and the fact that the victim girl is a student of this petitioner is not in dispute. However, having taken note of the punishment provided for the said offence is for a period of maximum five years and the petitioner is in custody from last two months and investigation has already been completed and charge-sheet is also filed, hence there is no need of custodial trial and the matter requires to be decided in trial.

The Court held “it is appropriate to exercise the powers under Section 439 of Cr.P.C. with conditions.” [N R Sugandaraju v. State of Karnataka, Criminal Petition No. 2917 of 2022, decided on 17-05-2022]

Appearances

For Petitioners- Mr. IS Pramod Chandra

For respondents- Mr. KS Abhijith and M Somashekhara

Arunima Bose, Editorial Assistant has reported this brief.

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court, Srinagar: Sanjay Dhar, J., expressed that, in the cases involving offences of serious nature falling under IPC or POCSO Act, where the victim happens to be a minor child, the Court has to be alive to the need for protecting the victims and the witnesses and it is the duty of the Court to ensure that victim and witnesses, in such serious matters, are made to feel secure while deposing before the Court.

The petitioner invoked the jurisdiction of this Court under Section 439 CrPC seeking bail arising out of an FIR for offences under Sections 376, 109 IPC and 4 POCSO Act.

As per the prosecution case, the victim along with her father lodged a complaint alleging that the victim, who was aged about 14 years, was sent by her father to the house of the accused who happened to be the husband of the petitioner, for learning embroidery work. It was alleged that after 8 days, the victim came back to her home and two days thereafter, accused called her whereafter the victim started crying.

Further, the father of the victim enquired about the reason for crying and the victim narrated that she had been raped by the accused after making her unconscious.

In view of the above, FIR was registered, and an investigation began.

After investigation of the case, petitioner’s role as an abettor came to the fore and as such, offence under Section 109 IPC was added to offences under Section 376 IPC and 4 POCSO Act.

Later the charge sheet was laid before the trial court against the petitioner and her husband, and they started facing trial for offences under Section 376, 109 IPC read with Sections 4 and 17 of the POCSO Act.

Analysis, Law and Decision

When it comes to offences punishable under a special enactment, such as POCSO Act, something more is required to be kept in mind in view of the special provisions contained in the said enactment.

“The provisions of CrPC including the provisions as to grant of bail are applicable to the proceedings in respect of offences under the POSCO Act.” 

The Bench stated that the present application was required to be dealt with by this Court in accordance with the provisions contained in Section 439 CrPC.

Coming to the facts of the present case, the petitioner was alleged to have aided and abetted her husband, the main accused, in the commission of rape upon the prosecutrix, who, as per the prosecution case, was aged about 14 years at the relevant time.

The prosecutrix had clearly implicated the petitioner and her husband in her statement recorded under Section 164 CrPC.

Bench stated that there may be certain contradictions in the statement of prosecutrix recorded during trial of the case when the same was compared with her statements recorded during the investigation of the case, but it is not open to the Court to minutely examine and weigh the evidence at the time of considering the bail plea of the petitioner.

“…the prosecutrix in her statement recorded during her trial, has supported the prosecution case and she has reiterated that she was raped twice by the husband of the petitioner with the aid and assistance of the petitioner.” 

From the perusal of the record, it was clear that the petitioner was involved in the commission of offence under Section 376/109 IPC read with Sections 4 and 17 of the POCSO Act.

“Abetment of an offence carries the same punishment as is provided for that offence. Section 376(3) IPC provides punishment in a case where rape has been committed upon a woman under 16 years of age.”

High Court expressed that,

It is not an ordinary offence where the perpetrator of the crime is a young boy, but it is a case where the perpetrators of the crime happen to be persons aged more than four times that of the age of the victim.

Further, the gap in the age of the accused and the victim made their alleged act more heinous and it showed an element of perversion in the offence alleged.

Hence, merely because the petitioner happened to be a woman it did not entitle her to the concession of bail. 

High Court rejected the bail application. [Zubeeda v. Union Territory of J&K, Bail App No. 8 of 2022, decided on 21-5-2022]

Advocates before the Court:

For the Petitioner(s): Mr. B. A. Bashir, Sr. Advocate. with Ms. Falak Bashir, Advocate

For the Respondent(s): Mr Sajad Ashraf, GA

Case BriefsHigh Courts

Madhya Pradesh High Court: Vivek Agarwal, J. deciding a second bail application filed by the applicant in connection with Crime under Sections 376, 376(2)(N), 506 of IPC and Sections 3,4,5J(ii), 5L POCSO Act and Sections 3(1)(w)(II), 3(1)(w)(II), 3(II)(V) of SC/ST Act directed the Trial Court to ask the prosecutrix to refund the compensation amount paid by the State.

The earlier bail application was dismissed as withdrawn with liberty to file an application after prosecutrix was examined and FSL/DNA report was brought on record.

Counsel for the applicant submitted that prosecutrix was examined before the trial court on 23-03-2022 and she had turned hostile, not supporting the prosecution story. It was submitted that the trial will take time to conclude thus the applicant must be enlarged on bail.

The Court allowed the bail application after taking into consideration that the prosecutrix was already examined, she had not supported the prosecution story and applicant was in custody since 03-11-2021. The Court further asked the Trial Court to consider issuing a direction against the prosecutrix to refund the amount received by her because she admitted in her examination in chief that she has lodged false report on account of some oral dispute between the parties.

“Alleged false report is lodged, therefore she is not entitled to keep the amount of compensation paid by the State government collected from the tax payer of the country.”

[Bablesh Patel v. State of Madhya Pradesh, 2022 SCC OnLine MP 982, decided on 17-05-2022]

For petitioner: Mr Kamlesh Singh Rajpoot

For respondent: Mr Vivek Lakhera

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Orissa High Court: V Narasingh, J. disposed of the bail application and restrained the Court to not grant any further adjournments and released the petitioner on bail.

The facts of the case are such that the petitioner is an CCL i.e. child in conflict with law and an accused on the files of Additional Session Judge-Cum- Special Judge Protection of Children from Sexual Offences Act i.e. POCSO Act, Bargarh, arising out of J.G.R. under Sections 450/307/302/34/120-B of Penal Code, 1860 i.e. IPC and is in custody since 08-12-2018. Being aggrieved by the rejection of her application for bail U/s.439 Cr.P.C. by the Additional Session Judge-Cum- Special Judge POCSO Act, Bargarh, by order dated 23-07-2019 in the aforementioned case, the present BLAPL was filed.

The petitioner is in custody since 08-12-2018. The Court called for up to date information of the investigation and the case by various notices but the case diary was not made available to this Court.

The Court observed that as the petitioner is in custody since 08-12-2018, she cannot be allowed to suffer because of the apathy of investigating agency. The proceedings of the High Court cannot be held hostage to the whims of the investigating agency and for their lackadaisical attitude, rights of an accused cannot be marginalized, needs no emphasis.

The Court remarked “It is indeed disconcerting that the concerned District police administration have scant regard for the orders passed by this Court and have chosen to disregard repeated communication from the office of the Advocate General for submission of Case Diary for which the Case has to suffer adjournments.”

The Court further remarked It is fervently hoped that necessary corrective action shall be taken so as to make the Police machinery more responsive to the needs of administration of justice.

The Court thus held “Considering the age of the petitioner and the period of custody this Court is constrained not to grant any further adjournment to the counsel for the State.”

It was directed to the authorities “the petitioner to be released on bail on such terms to be fixed” [Roshni Meher  v. State of Odisha, 2022 SCC OnLine Ori 1393, decided on 12.05.2022]

Appearances

For Petitioner: Mr. D.P. Pattanaik

For Opposite Party: Ms. S. Mishra

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In an interesting case, the Division Bench comprising of L. Nageswara Rao and B.R, Gavai, JJ., acquitted the appellant  who raped his own niece and later on married her.

The Court took note of the custom in Tamilnadu which permits the marriage of a girl with her maternal uncle; and the statement of the prosecutrix that she is leading a happy married life with the appellant to hold that,

“This Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix”.  

The appellant belonged to Valayar community, which is the most backward community in the State of Tamilnadu and was working as a woodcutter on daily wages in a private factory. An FIR was lodged against him for committing raping his niece under Sections 5(j)(ii) read with Section 6, 5(I) read with Section 6 and 5(n) read with Section 6 of Protection of Child from Sexual Offences (POCSO) Act, 2012.

The Trial Court convicted the appellant and sentenced him to ten years rigorous imprisonment, which was upheld by the High Court. Aggrieved thereby, the appellant had approached the Supreme Court.

The appellant submitted that the allegation against him was that he had physical relations with the prosecutrix on the promise of marrying her. The appellant  argued, since he has in fact married the prosecutrix and they have two children it would not be in the interest of justice to disturb the family life of the appellant and the prosecutrix.

On the contrary, the State opposed the grant of any relief to the appellant contending that the prosecutrix was aged 14 years on the date of the offence and gave birth to the first child when she was 15 years and, second child was born when she was 17 years. The State contested the legality of marriage between the appellant and the prosecutrix and argued that the marriage might only be for the purpose of escaping punishment.

The Court considered the statement of the prosecutrix about her present status where she had categorically stated, “she has two children and they are being taken care of by the appellant and she is leading a happy married life.”

Further, taking note of the custom in Tamilnadu of marriage of a girl with the maternal uncle, the Court held that,

“In the peculiar facts and circumstances of this case, we are of the considered view that the conviction and sentence of the appellant who is maternal uncle of the prosecutrix deserves to be set aside in view of the subsequent events that have been brought to the notice of this Court.” 

With the holding that the Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix, the Court set aside the conviction and sentence of the appellant while granting liberty to the prosecutrix and State to move the Supreme Court for modification of the order if the appellant does not take proper care of the prosecutrix.

As a note of caution, the Court added that in the peculiar facts of the case, it shall not be treated as a precedent.

[K Dhandapani v. State by the Inspector of Police, Cr. A. No.796 of 2022, decided on 09-05-2022]

Appearance by:

For the Appellant: M.P. Parthiban, Advocate

For the State: Dr. Joseph Aristotle S., Advocate

Kamini Sharma, Editorial Assistant has put this report together

 

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Anuja Prabhudessai, J., observed that touching private parts and kissing on the lips of a minor would not constitute to be an offence under Section 377 of Penal Code, 1860.

An application was filed by the applicant who was facing trial for offences under Sections 377, 384 and 420 of the Penal Code, 1860 and Sections 8 and 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The complainant alleged that, they found that some money from the cupboard was missing and upon inquiry, they came to know that the victim used to play online OLA PARTY game and he had paid the money to the applicant to recharge the said gaming App. The victim also told his parents that the applicant had sexually abused him.

As per the statement of the victim as well as the FIR report prima facie indicated that the applicant had touched the private parts of the victim and had kissed his lips.

Hence, in Court’s opinion, the above would not prima facie constitute offence under Section 377 of the IPC.

The offence under Sections 8 and 12 are punishable by maximum imprisonment upto 5 years. The applicant was in custody for almost one year and the charge has not yet been framed and trial not likely to commence in the immediate future.

Therefore, in view of the above applicant was granted bail on the following terms and conditions:

  • Furnish P.R. Bonds in the sum of Rs 30,000 with one or two solvent sureties in the like amount.
  • Applicant shall report once in two months on every 1st Monday
  • Applicant shall not interfere with the complainant and the other witnesses and shall not tamper with the evidence or attempt to influence or contact the complainant, witnesses or any person concerned with the case;
  • Applicant shall keep the trial Court informed of his current address and mobile contact number and/or change of residence or mobile details, if any, from time to time.
  • Applicants shall co-operate with the conduct of the trial and attend the trial Court on all dates, unless exempted.

In view of the above terms, bail application stands disposed of. [Prem Rajendra Prasad Dubey v. State of Maharashtra, Bail Application No. 3731 of 2021, decided on 5-5-2022]

Advocates before the Court:

Ms. Aneeta Vasani for the Applicant.

Ms. Rutuja Ambekar, APP for the State.

Mr. Praveen Kamble i/b. Mr. Pramod Kumbhar for the intervenor.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Ramesh Chandra Khulbe, J. dismissed a criminal appeal which was filed from jail assailing the judgment and order whereby the Trial Court had convicted and sentenced the appellant on the counts of Sections 376, 377, 506 Penal Code and Section 6 of POCSO Act.

Victim, who was merely a child of 9 years of age, has been traumatized at the hands of appellant who raped and sodomized the victim, who was none other than his real niece. Amicus Curiae argued that there was no evidence against the appellant; there was no medical report regarding sexual offence; and the trial Court did not assess the evidence properly. Counsel for the State has argued that the prosecutrix was minor; she supported the prosecution story; there is no infirmity in the impugned finding; and accordingly, the appeal was liable to be dismissed.

From the evidence of witnesses it was borne out that the accused-appellant who was none other than the real maternal uncle of the victim, had sexually molested the victim 2-3 times earlier than the incident of 27-04-2014 when he was nabbed red handed by his own sister. The accused not only sexually assaulted the victim but also sodomized her. The entire tale of incidents had unequivocally been disclosed by the victim who appeared in the dock of the Court. Moreover, the medical evidence in this case further corroborated the prosecution story.

The Court relied on the judgment of the Supreme Court in Ganesan v. State, (2020) 10 SCC 573 and Phool Singh v. State of Madhya Pradesh, (2022) 2 SCC 74 where it was held that the testimony of a victim was found reliable and trustworthy, conviction on the basis of her sole testimony is permissible.

The Court stated that it is well settled that in cases involving sexual harassment, molestation etc., the Court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.

The Court finally dismissed the appeal holding that the testimony of the victim was absolutely trustworthy and unblemished and her evidence is of sterling quality. Therefore, without any further corroboration, the conviction of the accused relying upon the testimony of prosecutrix was sustained.[Ashok Singh Kandari v. State of Uttarakhand, 2022 SCC OnLine Utt 400, decided on 07-05-2022]

Counsel for the appellant : Mr Mukul Dangi

Counsel for the State : Mr V. S. Rathore

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madhya Pradesh High Court: Anil Verma, J. dismissed a criminal revision filed against the impugned order whereby an application preferred by the applicant/prosecutrix under Section 311 of CrPC was been dismissed.

The father of the applicant/prosecutrix had lodged an FIR that his minor daughter was missing from his house. During the investigation, it was found that the respondent / accused person abducted the minor prosecutrix and committed rape upon her. trial Court after framing the charges afforded an opportunity of hearing to the parties to adduce their evidence. Prosecutrix has been examined before the trial Court and after two years of examination, the applicant / prosecutrix had filed an application under Section 311 of Cr.P.C. stating that earlier when her statement was recorded she was minor and she deposed her statement under the pressure of her parents. Now she became major and got married, therefore, she wants to adduce her evidence afresh and wanted to examine herself as a witness before the trial Court again. Trial Court had rejected the application.

Considering all the facts and circumstances of the case it was established that on earlier occasion prosecutrix was examined before the trial Court and after two years of her examination she has filed this application for restatement, but during the period of above 02 years prosecutrix did not made any complaint before the trial Court by stating that her statement was taken under the pressure of her parents.

The Court noted that prosecutrix statement had been recorded by the trial Court with due care and according to the law and after expiry of 02 years she has filed this application for re-examination, in these circumstances it appears that prosecutrix may be win over by the accused person by any undue means. Even if she permitted to change her statement before the Court, it would be dangerous for the legal system and it may be also misuse of Section 311 of Cr.P.C.

Criminal revision filed under Section 397 read with Section 401 of the Cr.P.C. was dismissed opining that impugned order passed by the trial Court was just and proper and does not suffer from any legal infirmity.[X v. State of Madhya Pradesh, 2022 SCC OnLine MP 893, decided on 07-05-2022]

For applicant: Mr Surya Patil

For respondent: Mr Ranjeet Sen, Mr Pankaj Taknet

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Sikkim High Court: The Division Bench of Meenakshi Madan Rai and Bhaskar Rai Pradhan, JJ. partly allowed an appeal which was filed by the appellant who aged about 40 years, was accused of having committed the offence of aggravated penetrative sexual assault, as defined under Section 5(m) of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”), on the victim, aged about 10 years. Trial Court on consideration of the evidence on record convicted the Appellant of the offence under Section 5(m) punishable under Section 6 of the POCSO Act, 2012 by the impugned Judgment and Order on Sentence, both dated 11- 11-2020, and sentenced him to undergo rigorous imprisonment for a term of 40 years and to pay fine of Rs.30,000/- (Rupees thirty thousand) only, with a default clause of imprisonment of 5 years.

In appeal the counsel for the appellant contended that FIR was lodged belatedly on 12-10-2019, the incident allegedly having taken place on 05-10-2019, but the delay was unexplained. It was further pointed out that the I.O. in his evidence has admitted that the vaginal swab of the victim and the penile swab of the Appellant were sent for chemical analysis to RFSL Saramsa, however, neither the document nor the examiner were before the Court. The I.O. admitted that no bodily fluids, blood or semen could be detected on the items forwarded to the FSL, which thereby negatives the Prosecution case, Doctor who examined the victim found no traces of penetrative sexual assault.

The question for consideration was whether the Trial Court was correct in its reasonings leading to the conviction of the Appellant?

The Court believed that Trial Court while examining a witness under the provision of the POCSO Act is required to be more careful and circumspect relying on Nipun Saxena v. Union of India, (2019) 2 SCC 703 and in the case at hand, it is unlikely that the child was aware of what she had stated to the Magistrate earlier or how “showing” her the Section 164 Cr.P.C. statement would enable her to understand or verify the contents, further it was stated that it was now no more res integra that a statement under Section 164 Cr.P.C. was not substantive evidence as held in R. Shaji v. State of Kerala, (2013) 14 SCC 266. The Section 164 Cr.P.C. statement of the victim was thus disregarded by the Court as being an unproven document.

The Court further believed Trial Court in its alacrity to come to the rescue of the child has decided on its own, without specific description of the act by the victim, to interpret the word “chara” as an act of penetrative sexual assault. This Court is all for the Trial Courts exhibiting sensitivity to the plight of a child victim but they cannot go overboard and stonewall the steps that are mandatorily to be complied with when analysing and interpreting the evidence given by the witnesses. If the victim was competent to testify she was also competent to explain the act and what it involved. If the act is not described, the Court cannot arrive at a conclusion based on its own assumptions.

Court on further perusal of evidence concluded that the Appellant was naked and had undressed the child as well, limiting the offence to one under Section 18 of the POCSO Act for an attempt to commit an offence under Section 7.

For the argument of delay in lodging of the FIR the Court reiterated what the Supreme court held in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 that delay in lodging of the FIR in such cases does not vitiate the Prosecution case.

The Court in the light of evidence concluded that the Prosecution has failed to prove its case under Section 5(m) of the POCSO Act. The Court stated that they were aware of the fact that it is now settled law that there does not necessarily have to be physical indications of the offence of penetrative sexual assault but at the same time it is to be borne in mind that the victim is aged about 9 years while the Appellant is a grown man of 40 years. In such a situation, the act of penetrative sexual assault on a child will have physical repercussions and the indications of such an assault would be apparent on the genital/private parts of the victim. Thus, the Court opined that there was no penetrative sexual assault committed by the Appellant on the victim. The Prosecution case on this aspect has remained unproved. However, the offence of an attempt to commit “sexual assault” as defined under Section 18 of the POCSO Act cannot be ruled out. Finally, partly allowing the appeal and in the light of provision of Section 222(2) of the Cr.P.C., the Appellant was convicted under Section 18 of the POCSO Act read with Section 7 of the same Act. He was sentenced to undergo rigorous imprisonment for one year six months and to pay a fine Rs 10,000/- (Rupees ten thousand) only.[Ash Bahadur Subba v. State of Sikkim, 2022 SCC OnLine Sikk 42, decided on 05-05-2022]

Mr Jorgay Namka, Advocate (Legal Aid Counsel) for the Appellant.

Mr Sudesh Joshi, Public Prosecutor with Mr Yadev Sharma, Additional Public Prosecutor and Mr Sujan Sunwar, Assistant Public Prosecutor for the State-Respondent.

Suchita Shukla, Editorial Assistant has reported this brief.

Hot Off The PressNews

The National Human Rights Commission, NHRC, India has taken suo motu cognizance of a media report that a 13 years old girl was raped by the in-charge of police station in the Lalitpur district of Uttar Pradesh when she went to register an FIR about her gang rape.

The Commission has observed that the contents of the media report, if true, amount to human rights violations of the victim. Accordingly, it has issued notices to the Chief Secretary and the Director-General of Police, Government of Uttar Pradesh calling for a report within four weeks.

According to the media report, the officer concerned has been placed under suspension and an FIR has been registered against him. The relevant sections of the POCSO Act have been applied. Other police officers posted at the police station have also been removed from the duty and a DIG level officer will be investigating the case.

National Human Rights Commission

[Press Release dt. 4-5-2022]

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: While addressing a matter, wherein the accused who was a doctor charged for raping a minor stated that there was not any proof that the girl ever conceived or had undergone any abortion, M.G. Sewlikar, J., expressed that, Medical science is so advanced that now a days past pregnancy also can be determined on the basis of changes in the body of a woman on account of pregnancy.

An order of the Special Court (POCSO) had been challenged whereby the application for discharge came to be rejected by the Special Court.

Factual Matrix

Informant aged 17 years got acquainted with accused who was residing in the area of Christ Church and friendship blossomed into love. The accused promised to marry her and later called her to his house and demanded sexual favour from her.

In view of the promise of marriage, the informant consented to sexual intercourse and the said act was repeated multiple times. In fact, every time she consented to sexual intercourse only for the reason that the accused had promised to marry her. Later, she realized that she was pregnant.

When the mother of the informant realized that the applicant was pregnant, she aborted her foetus and on the said allegations, an FIR against the applicant and accused was filed.

Analysis and Decision

High Court noted that under Section 227 of the Code of Criminal procedure a duty is cast on the Judge to apply his mind to the material on record and if on examination of the record, he does not find sufficient ground for proceedings against the accused he must discharge the accused.

“For framing charge mere suspicion is not enough.”

The applicant is accused of committing offence under Sections 315 and 316 of the Penal Code, 1860.

Ingredients of Section 315 of the IPC are as under:

(i) Woman must be pregnant.

(ii) Before the birth of any child the accused does any act

with the intention of preventing that child from being born alive or causing it to die after its birth.

(iii) Such act must not be done in good faith for the purpose of saving the life of the mother.

In terms of Section 316 IPC such an act is treated as amounting to culpable homicide.

The applicant was Doctor by profession and according to him he was a Child Specialist and possessed the certificate under the Bombay Nursing Home Registration Act, 1949 authorizing him to run a nursing and maternity home.

Therefore, trial court was justified in holding that the applicant was authorized to run a nursing home and maternity home.

As per the record of medical examination, the hymen of the victim was ruptured.

The Bench also noted that the past pregnancy can be determined on account of permanent changes in the body of a woman, in fact the mother of the victim stated that she was pregnant of six months.

The Court stated that, there was a delay of more than 1 year in lodging the FIR. However, the aspect of delay could be considered during trial. In such cases, women generally do not come forward to lodge a report soon after the incident.

“…victim was less than 17 years when the intercourse happened. After her alleged termination of pregnancy, she attained majority.”

Hence, even at the prima facie stage it could be said that delay was properly explained, and Trial Court did not commit any error in dismissing the application for discharge of the applicant. [Balwantrao Haridasrao Bhise v. State of Maharashtra, 2022 SCC OnLine Bom 828, decided on 7-4-2022]

Advocates before the Court:

Shri. Sudarshan J. Salunke, Advocate for the applicant Shri. S. D. Ghayal, APP for the respondent/State

Case BriefsHigh Courts

Tripura High Court: Arindam Lodh, J. partly allowed an appeal which was filed against the judgment and order of conviction whereby and whereunder the appellant has been found guilty for committing an offence punishable under Section 8 of the POCSO Act and sentenced him to suffer Rigorous Imprisonment for 3 years for the said offence and also found guilty under Section 448 of IPC and sentenced to suffer Rigorous Imprisonment for 1 year for the said offence.

Mother of the victim had lodged the complaint stating that the accused entered into the dwelling house of the complainant and molested the minor daughter of the complainant and tried to rape on her. On hearing the hue and cry of the victim the complainant appeared there and, thereafter, the accused fled away. During the course of investigation, the investigating officer recorded the statements of the victim as well as other witnesses, thereafter charge sheet was submitted against the accused.

The accused was examined under Section 313 CrPC to which he denied all the incriminating circumstances surfaced against him in the evidence on record. Special judge after the hearing convicted and sentenced the accused as afore stated. Thus, the instant appeal.

The Court after perusal of the records found that offence under Section 8 of the POCSO Act has not been established beyond reasonable doubt. The prosecution witnesses including the victim has not specifically stated anything that there was any intention of the accused to molest her. It was stated that the accused touched her hand and in this case ingredients of Section 8 have not been fulfilled and conviction and sentence under Section 8 of the POCSO Act was quashed and set aside.

Court however noted that the accused had trespassed the house of the complainant and further opined that appropriate and proportionate sentence should be imposed upon the accused-appellant. The Court modified the sentence to the extent that the accused-appellant shall pay a fine of Rs 10,000 (Rupees ten thousand) to the victim/complainant, in default of which, the accused-appellant shall suffer simple imprisonment for a period of six months.[Sanju Tanti v. State of Tripura, 2022 SCC OnLine Tri 242, decided on 07-04-2022]

For the Appellant(s) : Mr S.S. Datta

For the Respondent(s) : Mr R. Dutta, P.P.

Suchita Shukla, Editorial Assistant has reported this brief.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J., expressed that Child marriages are hazardous to the social fabric of this Country.

The applicant was apprehending his arrest for the offence punishable under Sections 376 of the Penal Code, 1860 read with Sections 9, 10, 11 of Prohibition of Child Marriage Act and Sections 3 and 4 of the Protection of Children from the Sexual Offences Act (POCSO).

Analysis and Decision

High Court observed that the informant was 17 years old at the time of lodging the FIR.

According to the informant, at the time of settlement of marriage, her paternal uncle, mother-in-law, father-in-law and brother-in-law were present. Except for brother-in-law, all the persons referred to above are accused persons in this case.

The applicant appeared to be aged 27 years at that time whereas the informant would be aged around 16 years at the time of marriage. Though the applicant stated that at the time of the marriage, it was posed to him that the informant was 18 years of age.

The Bench stated that since the applicant was married to the informant, and she had not resisted or whatever sexual intercourse between them was with consent or voluntary.

Child marriages will have to be stopped and no person can be allowed to take advantage of any such situation.

Court added that the persons cannot be allowed to go away by putting a defence that they had taken the precaution and in fact what was represented, was different at the time of settlement of marriage.

Lastly, the Bench held that when the offences alleged against the applicant involves a social problem, this Court was not inclined to use the extraordinary discretionary relief under Section 438 of the Code of Criminal Procedure in favour of the applicant. [Trimbak v. State of Maharashtra, Anticipatory Bail Application No. 203 of 2022, decided on 12-4-2022]

Advocates before the Court:

Mr. Rahul R. Karpe, Advocate for the applicant

Mr.A.M. Phule, A.P.P. for Respondent No.1 – State. Mr.S.S. Gangakhedkar Advocate h/f. Mr. S.D. Munde Advocate for Respondent No.2

Case BriefsHigh Courts

Tripura High Court: Arindam Lodh, J. partly allowed an appeal which was filed challenging the judgment of conviction and order of sentence passed by Special POCSO judge wherein the appellant had been convicted under Section 10 of the POCSO Act, 2012 and sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs 20,000/- with default stipulation and further convicted under Section 451 IPC and sentenced him to suffer simple imprisonment for 6 months and to pay fine of Rs. 5000 with default stipulation.

The mother of the victim girl in her complaint had stated that when she and her husband were outside their home, then, at around 2.00-2:30 p.m. the appellant had entered into the room where her girl was staying, locked the door and embraced her daughter and touched her private parts. Upon completion of investigation, the investigating officer submitted charge-sheet under Sections 448/342/354 IPC and section 8 of the POCSO Act against the accused. After completion of recording of evidences and having heard the counsel appearing for the parties, the Special Judge had convicted and sentenced the accused, as stated here-in-above.

Mr Deb, counsel appearing for the appellant (accused) submitted that there were substantial contradictions in the statement of the prosecution witnesses. He further tried to persuade the Court that the attendance register aptly proves that the accused was not present at the scene of occurrence on that date and time. He further drew attention of this court to the improved and exaggerations made by the victim girl and her mother in their statements.

The Court noted that accused was working as a Contingent worker in ONGC and the attendance register showed his attendance in the office on that date but, there was no such evidence that for any point of time he had any scope to go outside his office. Except production of attendance register there was no evidence to show that the accused was all along present in the office and did not go out. The house of the victim appeared to be close to the office where the accused discharged his duties. So, the plea of alibi as taken by the accused, according to this court, was found to be deficient.

The Court was at a loss to understand as to why the victim will be disbelieved when there was no interest to implicate the accused with a false case. Prosecution witnesses had categorically stated that they had seen the accused person on that fateful date and time and they found the victim crying, and narrated the incident to them. The Court herein had to decide the degree of offence.

The Court noticed that victim had not stated in her statement recorded under Section 164(5) Cr.P.C. that the accused had touched her private parts. She only had stated that the accused had embraced her and her deposition before the court that accused had touched her breasts and other private parts were found to be improved versions.

The Court in this situation opined that offence committed by the accused should not fall under the Section 10 of the Protection of Children from Sexual Offences (for short, POCSO) Act but may come within the purview of section 12 of the POCSO Act.

Thus, the conviction as returned by Special Judge was not interfered with however the sentence was reduced to a period of 6 (six) months with a fine of Rs. 50,000/- considering the prayer of the counsel of the appellant that he was aged about 70 (seventy) years and considering the nature of offence and the age of the accused-appellant, the appropriate sentence should be punishment for 6 (six) months.[Pramode Nama v. State of Tripura, 2022 SCC OnLine Tri 165, decided on 28-03-2022]

For the Appellant(s) : Mr B. Deb

For the Respondent(s) : Mr S. Ghosh

Suchita Shukla, Editorial Assistant has reported this brief.