Case BriefsHigh Courts

Sikkim High Court: A Division Bench comprising of Meenakshi Madan Rai and Bhaskar Raj Pradhan, JJ., while allowing an appeal, found error in trial court’s decision of convicting the appellant under Section 375 of Penal Code, 1860, as none of the ingredients required for an offence to be established under Section 375 was satisfied.

Background of the case

In the present case, the mother of the victim filed an FIR against the appellant. Charge-Sheet against the appellant was under Section 376 of the Penal Code, 1860 read with Section 4 of the Protection of Children from Sexual Offences Act, 2012.

Trial Court had framed charges against the appellant under Sections 5(l) and 5(k) punishable under Section 6 of POCSO Act, 2012 and Sections 376(2)(n), 376(2)(i) and 376(2)(l) of the Penal Code, 1860.

Trial Court on considering the examination of the witnesses, convicted the appellant of offences under Section 376(2)(l) and 376(2)(n) punishable under Section 376(2) of the Penal Code, 1860 but acquitted him of the offences under Sections 5(l) and 5(k) of the POCSO Act, 2012 and 376(2)(i) of IPC.

Thus, on being dissatisfied with the finding the appellant approached the High Court.

Submissions of the appellant

Appellant assailed the impugned judgment on the grounds that although the victim alleged that he had sexually assaulted her on several occasions she did not complain of it either to her parents or anyone else.

The victim complained that the appellant used to frequently come to her home and sexually assault her when she was alone and she had narrated the incident to PW5 who however failed to endorse this evidence of PW9. Contrarily PW1 deposed that appellant told him that the victim had lured him to have sexual intercourse with her.

Even the minority of the victim stood unestablished and the trial court in the absence of any evidence opined that the victim was not a minor. Hence, the appellant be acquitted of the charges.

Submissions by Additional Public Prosecutor

He argued that although the prosecution had furnished the birth certificate of the victim before the trial court in the absence of supporting documents it was not considered. The said document was never contested by the appellant which therefore was an acceptance of the fact that the victim was a minor.

Relying only on the statement of the victim, it was contended that she has specifically stated that the Appellant had requested her to have sex with him holding out the promise that her deformities would be cured if she consented and acted on the consent.

Mother of the victim corroborated the evidence of PW9 as she had stated that on a relevant day, the victim came running to her and told that the appellant had entered the and forcibly laid her on the bed, taken off her lower garment and rubbed his penis on the vagina.

Hence it was stated that no error emanates in trial court’s ruling.

Decision of the High Court

High Court noted that the birth certificate was not contested by the appellant; the trial court chose to ignore it in the absence of supporting documents. Thus, it follows that the age of the victim has not been established.

Court also took note of the evidence of PW6 from which it was clear that the witness has not explained as to whether the laxity of the hymen was a result of the occurrence of the alleged incidents or whether the hymen was lax prior to the incidents or for that matter whether medical science can at all point to the age of the laxity enabling the Court to draw a correct conclusion.

In absence of any categorical and cogent statement of PW6 in this context and in the absence of fresh injuries on the genital or person of the victim, medical report is of no assistance to the prosecution case and neither can the offence of the appellant be foisted.

What does Section 375 of Penal Code, 1860 say?

Appellant was convicted under Section 376(2)(n) and Section 376(2)(I) IPC.

Offence of rape is described in Section 375 of the Penal Code which, inter alia, requires penetration of the perpetrator’s penis to any extent, into the vagina, mouth, urethra or anus of the victim or he makes her do so with him or any other person or that he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person.

Rape would also occur if the accused manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person or the accused applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person.

These acts must necessarily be against the will of the victim, sans her consent and if her consent is obtained by putting her in fear of death or hurt or any of the seven descriptions enumerated in Section 375 IPC.

Observation of the Court

Victim had claimed that there was sexual assault and therefore Court cannot arrive at a hasty conclusion. It was imperative for the prosecution to have extracted from the victim during her deposition the actual act that was committed on her considering that the prosecution is under the mandate of proving its case beyond all reasonable doubt which means that it cannot leave its case to ambiguities thereby leading to erroneous conclusions.

All of the above-stated explains that the appellant does not satisfy the ingredients of Section 375 IPC.

Thus, the Court was of the considered opinion that trial court erred in arriving at the finding and in High Court’s opinion the offence is one under Section 354A (1)(i) IPC.

The appeal is allowed to the extent above. [Tshering Tempa Sherpa v. State of Sikkim, 2019 SCC OnLine Sikk 188, decided on 12-11-2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Vipin Sanghi and I.S. Mehta, JJ. modified the sentence of the appellant convicted under Sections 363, 376(2)(i) and 506 IPC along with Sections 5(m) and 6 of Protection of Children from Sexual Offences Act, 2012.

The appellant was accused of convicting rape upon a 9 years old girl. He was driver of the school transport facility availed by the girl. The trial court convicted him of the offences mentioned above and he was sentenced to life imprisonment under Section 376(2)(i) along with sentences for other offences. Aggrieved by the same, the appellant filed the instant appeal.

The High Court rejected all his submissions against the judgment of conviction by the trial court. The Court, on perusal of the facts, held that there was no merit in submission of the appellant that identity of the perpetrator of the crime was in doubt. The prosecution evidence was sufficient to bring home the guilt of the accused. Contentions were also raised regarding the sentence awarded. It was submitted that the appellant was 42 years of age and had a family of four minor children and a wife. The Court referred to its previous judgments and reiterated the parameters for assessing the quantum of punishment in cases of rape upon a child which include, inter alia:

  • Criminal and crime, both are important for purpose of sentencing;
  • Manner of commission of crime is to be considered;
  • Violence, if any accompanying the crime;
  • Whether the offender was in a position of fiduciary trust or exploited a social or family relationship;
  • Impact of the crime on victim;
  • Antecedents of the offender;
  • Passage of time since offence committed;
  • Rehabilitation of the rape victim; etc.

Taking into account all the facts and circumstances of the case and judging them on the aforementioned parameters, the Court was of the view that interest of justice would be met if the sentence of the convict-appellant awarded for the offence punishable under Section 376(2)(i) was reduced from imprisonment for rest of his life to 16 years rigorous imprisonment without remission. Sentence qua other offences was ordered to remain unaltered. The appeal was disposed of in the terms above. [Om Prakash v. State of Delhi,2018 SCC OnLine Del 10732, dated 21-08-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Sanjeev Sachdeva, J., allowed a criminal revision petition filed against the order of the Child Welfare Committee (CWC) as affirmed by the appellate court whereby the victim girl, in this case, was held to be a minor.

The petitioners were the employer of the victim and were accused in the FIR registered under Sections 325 and 376 IPC along with Section 6 of the Protection of Children from Sexual Offences Act, 2012 read with Section 75 of the Juvenile Justice Act, 2015. The matter arose out of an issue before the CWC pertaining to wages to the victim. Since there was no document available to determine the age of the victim, a bone ossification test was conducted wherein her age was estimated to be in the range of 17-19 years. By the order impugned, the CWC determined victim’s age as 17 years; which order was affirmed by the appellate court. Aggrieved thus, the petitioners filed the instant revision.

Referring to Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681 and Jyoti Prakash Rai v. State of Bihar, (2008) 15 SCC 223, the High Court observed that the ossification test is not conclusive for age determination. The margin of error in age ascertained by radiological examination is two years on either side. The question that arose for consideration before the Court was ‘whether, while determining the age of the victim, the benefit of doubt in the age estimated by bone ossification test, is to go to the accused or the victim?’ Further referring to Triveniben v. State of Gujarat, (1989) 1 SCC 678 and Maru Ram v. Union of India, (1981) 1 SCC 107, the Court observed that any benefit of doubt, other things being equal, at all stages goes in favour of the accused. In the facts of the present case where age was estimated to be in between 17-19 years, the High Court held that even without considering the margin of error, the age is to be determined at 19 years. And as such, the order of the CWC holding the victim to be a minor was unsustainable. Accordingly, the order impugned, as far as it related to the determination of victim’s age, was set aside. However, the order of payment of wages and childhood loss compensation was not interfered with. The petition was disposed of in the terms above. [Shweta Gulati v. State (NCT of Delhi),2018 SCC OnLine Del 10448, dated 08-08-2018]