Case BriefsHigh Courts

Gujarat High Court: Samir Dave, J., granted bail to the accused while prohibiting him from accessing the society in which the claimed victim lived. In doing so, the Bench granted a criminal revision application filed under Section 102 of the Juvenile Justice Act to overturn the Sessions Court and Juvenile Justice Board’s refusal to grant bail.

Section 12 states that if a kid is seized for allegedly committing an offence, he or she must be released on bail with or without surety or put under the supervision of a probation officer or in the care of any person.

The Applicant, who was 16 years and 8 months old, was accused of forcibly committing sodomy on a terrace with the complainant’s underage son, who was 13 years old. He also allegedly threatened the victim with death if the incident was revealed to anybody. As a result, FIR was filed under Sections 377, 323, 506(1) of the Penal Code, as well as Sections 3(A), 4 and 18 of the Protection of Children from Sexual Offenses Act, 2012, and the Applicant was arrested in April 2022 and transferred to a Child Observation Home.

The Applicant claimed that he was a juvenile who had been wrongly charged with the current offence. Furthermore, he was living with his widowed mother and planned to begin academics the next academic year. He had no criminal history and hence advocated that the application be allowed.

The APP strenuously opposed to the Applicant’s claims and requested that the application be dismissed.

Given the arguments provided by the parties and the accused’s age, the High Court granted the motion and ordered his release on normal bail with restrictions.[Mohit Shankarbhaai Vaghela v. State of Gujarat, 2022 SCC OnLine Guj 737, decided on 27-05-2022]


For the Appellant: Mr MB Rana, Advocate

For the Respondent: Mr Mitesh Amin, and Ms Moxa Thakkar, Advocates

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Siddharth Mridul and Anup Jairam Bambhani, JJ., while addressing a very unfortunate incident, involving sexual offences to the extent of rape and carnal intercourse with a child, expressed that,

“…to sexually violate an innocent child is in any case an abhorrent act; but, when that happens within the filial father-daughter relationship, of which purity of affection is a sine-qua-non, the act descends to a different depth of depravity.”

Instant two appeals arose from a judgment and a sentencing order.

The present matter concerned sexual offences against a ‘minor’, the names of the prosecutrix, of one of the convicts and some key witnesses were anonymized in keeping with the verdict of the Supreme Court in Nipun Saxena v. Union of India, (2019) 13 SCC 715, and Section 228 (A) of the Penal Code, 1860 and Section 327 (2) of the Criminal Procedure Code, 1973.

Appellants impugned judgment whereby they were convicted by the trial court for offences under Sections 376(2)(g) and 377 read with Section 34 IPC. They also challenged the sentencing order.

Background of the Matter

Prosecutrix had alleged that her father (A1) and his friend (A2) committed upon her offences as defined under Sections 376(2)(g) and 377 IPC.

Prosecution case before the trial court was that the prosecutrix used to ordinarily stay in the care and custody of her bua, who subsequently appeared as PW-9 at the trial and that on the commencement of the prosecutrix’s summer holidays in 2012, her father took her from the care and custody of her bua to the house of Manorama Begum where A1 and A2 inter alia committed gang-rape and sodomy upon the prosecutrix.

Prosecutrix revealed the said incident to her teacher who happened to be the daughter of the prosecutrix’s bua and appeared as PW-1 at the trial. The prosecutrix also informed the counsellor/coordinator working in the said NGO about the offences committed upon her.

Upon registration of the FIR under Sections 376(g) and 377 IPC, the prosecutrix was taken to the All India Institute of Medical Sciences (AIIMS) New Delhi for medical examination. Subsequently, A1 and A2 were arrested.

During the course of the trial, the prosecution cited 17 witnesses, while the appellants led no defence evidence.

Analysis, Law and Decision

Statement of Prosecutrix | Section 164 CrPC

High Court firstly noted that, the prosecutrix’s version in her statement under Section 164 CrPC, as also in her examination-in-chief and cross-examination in court, remained consistent and unwavering.

In Court’s opinion, the examination-in-chief of the Investigating Officer, PW-15 elicited nothing that materially impacted the evidence that came on record either for or against the appellants.

Bench further expressed that,

Where the evidence of the prosecutrix inspires confidence, it must be relied upon, without seeking corroboration of her statement in material particulars.

Medical Evidence

From the MLC it was gathered that the hymen of the prosecutrix who was only about 10 years of age, was found torn, there was redness around her vaginal introitus (opening of the vagina) and there was redness in the vaginal area.

For the sake of completeness, the two appellants were put through a medical examination at AIIMS, and it was opined that there was nothing to suggest that either of them was incapable of performing sexual intercourse under normal circumstances, nor was any other abnormality noticed that would in any manner preclude the commission of the offence by either of the appellants.

In view of the above Court reached the following conclusion:

  • The prosecutrix’s statement recorded under Section 164 CrPC and her deposition in court, in which she says that appellant A2 committed upon her the carnal acts as described in her own wording, are cogent, credible and trustworthy. Furthermore, the prosecutrix’s statement, as recorded under Section 164 CrPC as also in her deposition in court, in relation to what her father appellant A1 did to her is also cogent, credible and trustworthy.
  • Bench stated that they are not depending solely on the prosecutrix’s statement under Section 164 CrPC or on her deposition in Court but are also supported in its inferences by the medical evidence that came on record, by way of the MLC of the prosecutrix. This made the allegations against the appellant all the more plausible, absent any other explanation and in fact, no explanation or evidence had been brought forth by the defence in the said behalf.

Hence, Bench found nothing erroneous or amiss in the conclusions arrived at by the trial court, that both appellants were guilty of the acts alleged against them.

Question to be addressed:

On the basis of evidence on record, what offences are made out and stand proved against the appellants?

High Court stated that the appellants were charged with offences punishable under Sections 376(2)(g) and 377 read with Section 34 IPC. It is important to note here that the offences are alleged to have been committed on various dates on or before 22.07.2012, by reason of which they would be covered by the IPC as it existed prior to its amendment by the Criminal Law (Amendment) Act, 2013 (Act 13 of 2013) with retrospective effect from 03.02.2013. Accordingly, Section 376(2)(g) as it existed prior to amendment by Act 13 of 2013 needs to be considered in light of the definition of “rape” as contained in the unamended Section 375 of the IPC.

Court observed that the expanded definition of rape as contained in amended Section 375 with retrospective effect from 3-3-2013, did not exist on the statute book at the time of the commission of the offence by the appellants i.e., on or before 22-7-2012 and there was neither any allegation nor had anything come forth in evidence to show that the appellants committed any penetrative sexual intercourse with the prosecutrix.

Therefore, in Court’s view, the finding of the trial court that the appellants were guilty of the offence under Section 376(2)(g) was untenable and accordingly set aside.

Moving further, the Court stated that while amending Sections 375 and 376 (2) (g) by the amending Act 13 of 2013, the Legislature had not made any amendment to Section 377 IPC which continues to read as under:

“377. Unnatural offences. —Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 

Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

(emphasis supplied)

What does the phrase ‘carnal intercourse against the order of nature’ appearing in Section 377 IPC mean?

Bench elaborated stating that Section 377 IPC referred not to sexual intercourse but to carnal intercourse, whereby the intention of the legislature was to engraft a different offence in Section 377 IPC vis-à-vis Section 375 IPC, which is why a different phrase was employed.

High Court opined that ‘carnal intercourse against the order of nature’ appearing in Section 377 must have the following ingredients:

  1. it must have to do with flesh and sensuality, namely it must be carnal;
  2. there must be intercourse between individuals, without restricting it only to human-to-human intercourse;
  3. it must involve penetration other than penile-vaginal penetration, since by the very nature, intent and purpose of Section 377, it must refer to an unnatural act, such as ‘penile-anal penetration’, ‘digital penetration’ or ‘object penetration’.

“…we however completely agree that attempting to define the phrase ‘carnal intercourse against the order of nature’ with exactitude is neither possible, and perhaps not even desirable.”

 Bench held that,

“…any physical act answering to all the above-stated ingredients committed upon a minor is per-se ‘carnal intercourse against the order of nature.”

 What did the prosecutrix state in her testimony?

The Bench noted that the prosecutrix’s testimony was clear, cogent and unwavering insofar as it concerns the allegation against appellant A2, that he committed digital penetration of the prosecutrix’s anus.

In her statement under Section 164 CrPC and in her deposition in court, the prosecutrix stated that appellant A2 would gag her mouth with cloth, bind her limbs and then do ‘batamizi’ with her.

On further elaboration, she said that appellant A2 would remove her clothes and then lie on top of her and touch her chest, vagina and anus. He would then put his penis against her vagina and anus and also insert his finger into her anus. She had deposed that the whole ordeal would last about half an hour.

The prosecutrix alleged that after appellant A2 was finished, her father appellant A1, would commit all the aforesaid acts upon her other than the act of digital penetration.

Therefore, in view of the above, no further analysis was required that offences under Section 377 read with Section 34 IPC were made out against the appellant A2.

In Court’s opinion, the actions of the father were covered under Section 34 IPC, namely the acts done by him in furtherance of a common intention to commit the offence and would make him liable for all acts committed by appellant A2 in the same manner as if the acts were done by appellant A1 himself.

Hence the trial court’s conclusion was correct except the conclusion with regard to the offence under Section 376(2)(g) IPC was flawed.

In the present matter, the offending acts went beyond the physical element of sexual assault but would have severely damaged the mind and psyche of the victim which trauma may linger for very long.

Without at all appearing to be Biblical, crime in society is one thing; but crime within the closest confines of the family, adds to it the element of sin.

 In view of the above discussion and modification to the judgment and conviction and sentencing order, the appeal were dismissed. [A v. State, 2021 SCC OnLine Del 5396, decided on 20-12-2021]

Advocates before the Court:

For the Appellant: Mr. Chinmoy Pradeep Sharma, Senior Advocate with Ms. Rakhi Dubey and Mr. Himanshu Gera, Advocates.

For the Respondent: Mr. Ashish Dutta, APP for the State.

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: H.S. Madaan, J., rejected the bail application of the applicant accused of committing an act of sodomy to an 8 years old child. The Bench stated that,

“He (accused) has spoiled the life of a young child by his hateful acts. The petitioner comes out to be a sex maniac, himself a teenager, indulging in perverse sexual acts. His conduct cannot be taken lightly, since if released on bail, he may victimize several other innocent children and is a grave threat to the society.”

The applicant had been charged with offences under Sections 377, 511 IPC and Section 4 of Protection of Children from Sexual Offences Act, 2012. The allegations against the applicant were that at about 3.00 PM, the applicant took the child victim, aged about 08 years, a student of 2nd class from his school on a bicycle by giving him allurement of money and then took him in a room constructed in his field, removed his trouser (lower), took off pants of the child victim and started committing sodomy with him. The child victim started crying on account of pain at which the applicant made him sit on his bicycle and left him near the school premises.

Later on, the child informed his father about the incident; pursuant to which the child was removed to Civil Hospital where he was medico-legally examined; the matter was reported to the police on the basis of which formal FIR was recorded.

Noticeably, the applicant had filed an application for regular bail before Special Judge, Mansa, which was dismissed.

In the backdrop of above, the Bench expressed,

“The allegations against the petitioner are very grave and serious of attempting to commit unnatural sex with a child of young age of 08 years, making him undergo nightmarish and traumatic experience, which may haunt him for the rest of his life.”

Noticing that the applicant, a teenager, who was a sex maniac and was indulged in perverse sexual acts, the Bench stated that he (applicant) had spoiled the life of a young child by his hateful acts and such conduct could not be taken lightly, since if released on bail, he may victimize several other innocent children and was a grave threat to the society.

Hence, opining that there was very likelihood of the applicant giving threats, intimidation or inducement to the prosecution witnesses in an attempt to make them resile from their statements during the trial to enable him to earn acquittal, the Bench held that the case could not be brushed aside lightly. Consequently, the bail application was rejected.[Manpreet Singh v. State of Punjab, CRM-M-9128 of 2021, decided on 09-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Applicant: RVS Chugh, Advocate

For the State: J.S. Ghuman, DAG, Punjab

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: A Division Judge Bench comprising of Sharad Kumar Sharma and Sudhanshu Dhulia, JJ. declared that denial of cruelty by the lower court was erred on illogical interpretations.

The appellant has appealed against the orders of the family court on the denial for the grant of divorce and permanent alimony under Section 25 of the of Hindu Marriage Act. She has claimed that respondent under the influence of alcohol misbehaved with her by inflicting mental cruelty along with his absence both as a husband and father with the appellant and her child. She also pleaded an attempt to force sodomy upon her by the respondent.

The Court stated that inferences were drawn from facts which in itself cannot be taken as a proof against the statements of the appellant and thus was not an analogical and judicial inference rendered by the lower court. Also in the written statement the respondent had not specifically denied his act of misbehaving in an intoxicated condition. The most important point for consideration was that sodomy was something a wife would never plead against the husband to allege cruelty and therefore shall be weighed substantially. Accordingly, the act of cruelty stood established plus the appellant was also granted the permanent alimony.[Suman Lata Panwar v. Ajay Singh, F.A. No. 77 of 2013, order dated 15-11-2018]