Case BriefsSupreme Court

Supreme Court: Agreeing to hear the appeal against the capital punishment imposed on the convicts in the infamous ‘Nirbhaya’ case, the 3-judge bench of Dipak Misra, R. Banumathi and Ashok Bhushan, JJ allowed the accused persons to file affidavits along with documents stating about the mitigating circumstances.

It was argued that neither the trial Judge nor the Delhi Court had considered the aggravating and mitigating circumstances, as are required to be considered in view of the Constitution Bench decision in Bachan Singh v. State of Punjab, (1980) 2 SCC 684. It was further argued that Section 235(2) Cr.P.C. is not a mere formality and in a case when there are more than one accused, it is obligatory on the part of the learned trial Judge to hear the accused individually on the question of sentence and deal with him.

Accepting the contention, the Court noticed that there are two modes of dealing the matter at hand, one is to remand the matter and the other is to direct the accused persons to produce necessary data and advance the contention on the question of sentence. However, considering the nature of the case, the bench decided to go with the second mode.

The Court also allowed the prosecution to file necessary affidavits with regard to the circumstances or reasons for sustenance of the sentence. Additionally, the prosecution can also put forth any refutation, after the copies of the affidavits by the learned counsel for the accused persons within a week.

In addition to the above order, the Court also directed the Superintendent of Jail to submit a report with regard to the conduct of the accused persons while they are in custody. [Mukesh v. State for NCT of Delhi, 2017 SCC OnLine SC 90, order dated 03.02.2017]

Case BriefsSupreme Court

Supreme Court: In the review petition filed in the Soumya Rape and Murder case where the Court had set aside the death sentence awarded to the accused by the Kerala High Court, the 3-Judge Bench of Ranjan Gogoi, P.C. Pant and U.U. Lalit, JJ issued notice to Justice Markandey Katju, former Supreme Court Judge and requested him to appear in Court in person and participate in the proceedings on 11.11.2016 as to whether the judgment and order dated 15.09.2016 suffers from any fundamental flaw so as to require exercise of the review jurisdiction.

Justice Katju had, in a blog published on Facebook, expressed his views that the Supreme Court has grievously erred in law by not holding Govindaswamy guilty of murder. He had said that the Court had overlooked is that Section 300 IPC, which defines murder, has 4 parts, and only the first part requires intention to kill. If any of the other 3 parts are established, it will be murder even if there was no intention to kill. It is regrettable that the Court has not read Section 300 carefully. The judgment needs to be reviewed in an open court hearing. Taking note of the said post, the Bench said that such a view coming from a retired Judge of this Court needs to be treated with greatest of respect and consideration.

Justice Katju by a post on his Facebook page said that he would be delighted to appear and discuss the matter in open court, but would only like the Judges to consider whether, being a former Supreme Court Judge he is debarred from appearing by Article 124(7) of the Constitution. If the Judges hold that it does not debar him, he would be happy to appear and place his views.

On 15.09.2016, the Court had held that no case of murder was made out against Govindaswamy. It was held that regarding keeping of the deceased in a supine position for commission of sexual assault, the Court held that to hold that the accused is liable under Section 302 IPC what is required is an intention to cause death or knowledge that the act of the accused is likely to cause death. The intention of the accused in keeping the deceased in a supine position was for the purposes of the sexual assault. Further, the fact that the deceased survived for a couple of days after the incident and eventually died in Hospital would also clearly militate against any intention of the accused to cause death by the act of keeping the deceased in a supine position. [Sumathi v. Govindaswamy, 2016 SCC OnLine SC 1145, decided on 17.10.2016]

Case BriefsHigh Courts

Rajasthan High Court: Applying the principle of rarest of rare case, the Court upheld the decision of trial Court and confirmed death sentence awarded to the accused for committing rape and murder of 8-year-old girl.

The present case was filed by the State of Rajasthan for confirmation of the capital punishment awarded by the learned District & Sessions Judge, Pratapgarh vide judgment dated 18.9.2015 in Sessions Case No.149/2013 to the accused for committing offence under Section 302 Penal Code and under Section 3 read with Section 4 of the Protection of Children from Sexual Offences Act, 2012.

The Court stated that the accused has crushed all the parameters of trust by committing rape and murder of a 8 year old yound girl who treated accused as maternal uncle. It is also evident that the deceased tried to resist but helpless girl was killed by the accused appellant, therefore, it is not only a case of murder and harassing sexually of young girl of 8 years but it is a case in which all the parameters of trust are crushed by the accused. The accused murdered helpless minor girl only to satisfy his physical desire.

The Court upon consideration of the entire evidences and the fact that accused has crushed all limits of trust and committed offence under Section 302 IPC and under the provisions of POCSO Act, confirmed death sentence awarded by the learned trial court. [State vs Prahlad, 2016 SCC OnLine Raj 5842, decided on September 1, 2016]

Case BriefsSupreme Court

Supreme Court: Acting upon the report of the Medical Board at KEM Hospital and Medical College, Mumbai, constituted to medically examine the petitioner, a rape survivor, the Court said that that the risk to the petitioner of continuation of her pregnancy, can gravely endanger her physical and mental health. The Court, hence, made an exception and held that it is permissible to allow the petitioner to abort the 24 week-old foetus in terms of Section 5 of the Medical Termination of Pregnancy Act, 1971. As per Section 5 of the Act, the termination of pregnancy, which is necessary to save the life of the pregnant woman, is permissible.

On 22.07.2016, the bench comprising of JS Khehar and Arun Mishra, JJ. had directed the Maharashtra Government to set up a medical board to examine the rape survivor who sought permission to terminate her 24 week old foetus and the medical examination was directed to be conducted on 23.07.2016. The Medical Board had advised against the continuation of pregnancy and had noticed that in view of severe multiple congenital anomalies, the fetus is not compatible with extra-uterine life and that the pregnancy might endanger the health of the petitioner. [Ms. X. v. Union of India, 2016 SCC OnLine SC 745, decided on 25.07.2016]

Case BriefsHigh Courts

Delhi High Court:  The Single Judge Bench of S.P. Garg, J cautioned the lower court Judges that the identity of the victim or prosecutrix in a sexual assualt case should not be disclosed in the judgment passed by them, in order to protect her reputation. The Court categorically observed, “Before parting with the case, it is noted that in the impugned judgment dated 21.10.2013, name of the prosecutrix/victim has been disclosed/mentioned. The trial court was not expected to indicate the victim’s name in the judgment. The mistake has been carried out by the learned District  and Sessions Judge too while disposing Crl. A. 73/2013. Learned Presiding Officers must avoid disclosing identity of the victim/prosecutrix in such cases in the judgment to protect her reputation.”

Deciding a revision petition challenging the legality and correctness of the Sessions Court’s order by which the petitioner’s conviction under Section 354 of the Penal Code, 1860 and sentence of rigorous imprisonment for one year was upheld, the Court observed that the petitioner did not furnish any plausible explanation to the incriminating circumstances proved against him. The concurrent findings of the courts below based upon fair and proper appreciation of the evidence deserved no intervention. The Court held that considering the gravity of the offence whereby an innocent child aged about seven years was sexually assaulted by the petitioner, aged about 65 years, further leniency was uncalled for. Dismissing the petition, the Court observed that the petitioner was well aware of the consequences of his act, as the prosecutrix was like his granddaughter. [Gopal Yadav v. State (GNCT) Delhi, 2016 SCC OnLine Del 3275, decided on May 25, 2016]

Case BriefsHigh Courts

Calcutta High Court: While dealing with a death reference the Court cancelled the death sentence awarded by Trial Court to a person convicted for rape and murder of an Eight year old girl, by modifying the conviction from Section 302 IPC to Section 304 (II) IPC and sentenced him to ten years imprisonment. The court allowed the appeal in part and but did not approve the death sentence reference. The Trial Court had sentenced the appellant to death for the offence under Section 302 of Indian Penal Code and has also sentenced the appellant for the offence under Sections 363, 376(2)(f) and 201 IPC.

The division bench comprising of Nadira Patherya and Debi Prosad Dey JJ. said that “It is apparent from the facts and circumstances of this case that the convict had no intention to commit murder of the victim but the victim could not bear the violent onslaught of the convict at the time of commission of such offence under Section 376 (2)(f) of the Indian Penal Code. The convict had also definite knowledge that by such action the victim could have died.  Relying on the aforesaid decision of the Apex Court we do hold that such offence of the convict would squarely fall within the purview of Section 304 (II) of the Indian Penal Code and accordingly we reduce the sentence awarded by the learned Trial Judge under Section 302 of Indian Penal Code to one under Section 304 (II) of Indian Penal Code and sentence him to suffer Rigorous Imprisonment for 10(ten) years and to pay a fine of Rs.10,000/-(Ten thousand) i.d. Rigorous Imprisonment for 2(two) years.”

The Court further also set aside conviction under Section 201 IPC by stating: “Admittedly, the convict/appellant after commission of such offence concealed the dead body under water hyacinth of a pond in order to cause dis-appearance of the evidence of offence but ultimately the dead body was recovered pursuant to the information given by the convict/appellant. The convict/appellant also did not conceal the whereabouts of the dead body though initially he had concealed the dead body.  Therefore we do not find any applicability of Section 201 of the Indian Penal Code and accordingly the conviction of the appellant under Section 201 of the Indian Penal Code is set aside.” However the Court upheld the order of conviction and sentence passed for the offence under Section 376(2)(f)  & 363 of the Indian Penal Code. The bench further said that, ‘we answer the death reference in the negative and modify the sentence awarded by learned trial Judge, as stated herein above and set aside the order of conviction and sentence against the convict in respect of the offence under Section 302 (by reducing the same under Section 304 (II) of the Indian Penal Code) and Section 201 of Indian Penal Code.’ [Binay Majhi v. State of West Bengal, Criminal Appeal No.857 of 2013, Decided on 19.05.2016]

Case BriefsHigh Courts

Delhi High Court: In the matter relating to the release of the Juvenile involved in the ghastly Nirbhaya gang rape case which sent shock waves across the globe, the Delhi High Court held that the release of the juvenile after the completion of the 3 years retention period as provided in Section 15(1)(g) of the Juvenile Justice (Care and Protection of Children) Act, 2000 cannot be interfered with as the Court could not extend stay beyond this period as an interim measure.

Extension of the retention period was sought on the ground that juvenile could not be released without ascertaining factum of reformation that was necessary for his social integration. The bench of G. Rohini, CJ and Jayant Nath, J held that the plea for extention of retention period cannot be extended as the Juvenile has to be released on completion of 3 years.

Regarding the legal issue raised in the main writ petition, i.e., the need for ascertaining the factum of reformation of the juveniles in conflict with law before they are released from the Special Home on expiry of the period of stay ordered by the Juvenile Justice Board, the Court was of the view that this issue is a larger issue of public importance which requires deeper consideration. Listing the matter for 28.03.2016, the Court said that Department of Women and Child Development should also be impleaded as respondent in order to have wider view on this issue. [Dr. Subramanian Swamy v. Raju through Juvenile Justice Board, decided on 18.12.2015]

High Courts

Himachal Pradesh High Court Granting bail to the petitioner in a FIR filed under Sections 376 and 313 of Indian Penal Code, a bench of T.S Chauhan J., after perusal of the records stated that it cannot be accepted that petitioner would in any manner interfere with the trial of the case. The Court also referred to Siddharam Satlingappa Mhetre v State of Maharashtra (2011) 1 SCC 694 and Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 wherein the Supreme Court laid parameters for grant of bail.

In the instant case, the complainant is a divorcee who got divorce in 2014. She came in contact with the petitioner, who too is married and is alleged to have deceived the complainant by stating that he too is divorced. They have been in physical relationship since the year 2011 and now the complainant has accused the petitioner for subjecting her to sexual intercourse on the pretext of marriage.

The Court after perusal of the records observed that the case seems to be a classical example where the relationship between the parties has gone sour. Making further observations, the Court stated that “it is ultimately the woman herself who is the protector of her own body and therefore, her prime responsibility to ensure that in the relationship, protects her own dignity and modesty. Once the prosecutrix knew that the petitioner is a married man, it was for her to restrain herself and not indulge in intimate activities. No doubt, it is the responsibility, moral and ethical both, on the part of man not to exploit any woman by compelling or inducing her for sexual relationship”. Dushyant Kumar v. State of H.P.2015 SCC OnLine HP 1896, decided on 07.08.2015

 

High Courts

Bombay High Court: In an interesting judgment, a bench comprising of Ranjit More and Anuja Prabhudessai, JJ quashed a rape charge after the victim stated that the accused had agreed to marry her and that they had settled the dispute amicably. In the present case, the victim admitted in court that she had a consensual physical relationship with the accused and had filed the rape charges only because he had refused to marry her. She further confirmed in Court that she has no objection for quashing the criminal proceedings initiated by her against the accused.

The Court  relying on the Supreme Court judgment  of Narinder Singh vs State of Punjab, (2014) 6 SCC 466,  wherein a serious offence was quashed, noted that if  this case was continued, it would hamper the healthy relationship between the petitioner and the respondent,  and they would be put to unnecessary hardship of attending to the police and courts. The Court also observed that no purpose would be served by keeping the FIR and criminal proceeding against the petitioner except burdening the criminal courts which are already overburdened. Jaya D. Ovhal vs. State of Maharashtra, 2015 SCC OnLine Bom 3482decided on 11-06-2015

High Courts

Delhi High Court: Dealing with a case where a man was convicted for committing rape upon a widow lady “X” on pretext of marrying her, a bench of S.P. Garg J acquitted the accused, holding that “if a fully grown up lady consents to the act of sexual intercourse on a promise to marry and continues to indulge in such an activity for long, it is an act of ‘promiscuity’ on her part and not an act induced by misconception of fact”.

In the instant case, “X” alleged that after the demise of her husband, the appellant put ‘sindoor’ on her ‘maang’ in front of her elder sisters and 3 children and expressed desire to marry her, and thereafter forcibly established physical relations with her several times without her consent on the assurance to talk to his parents about their relation.

The Court observed that “X” continued to have sexual relations with the appellant on several occasions without demur, and raised alarm/ hue and cry only when the appellant started avoiding her and stopped attending her telephone calls. The Court noted that filling of ‘maang’ with ‘sindoor’ ipso facto does not create any relationship akin to promise to marry, and that “X” was mature enough to understand the nature and implications of the act which she consented to. The Court stated that the conduct of the appellant was unfair/ unreasonable, as he knowingly that “X” was a widow having 3 grown-up children, indulged in consensual sex with her, however, conviction cannot be based upon the sole testimony of the prosecutrix, as she failed to establish that physical relations with her were on the false promise of marriage. Accordingly, the Court set aside the conviction and sentence of the appellant and ordered to release him if he is not required to be detained in any other criminal case. Gaurav Maggo v. The State of NCT, Delhi, 2015 SCC OnLine Del 9866, decided on 29.05.2015

High Courts

Bombay High Court: In a yet another case where complaint has been lodged against a man for rape and cheating after gaining confidence of the complainant by giving false promise of marriage, a division bench of Ranjit More and Anuja Prabhudessai JJ., exercised the powers under Section 482 of CrPC and quashed the complaint, as continuation of the same would amount to abuse of the process of court.

Mr. Kumbhakoni, the Counsel for the applicant, contended that the FIR against the applicant should be quashed by the Court by exercising its extraordinary jurisdiction under Section 482 CrPC, as the complaint nowhere disclosed that the physical relationship was made with the respondent against her will and without her consent. Mr. Rajeev Patil, the Counsel for the respondent, contended that the conduct of the applicant by representing himself by some other name on the matrimonial site and contacting various other women even after finalization of marriage with the respondent is sufficient to infer that the applicant intended to deceive the respondent since inception.

The Court relied on Deelip Singh v. State of Bihar (2005) 1 SCC 88, where it was held that consent given by a woman believing the man’s promise to marry her would fall within the expression “without her consent” only if it is established that from the very inception the man never really intended to marry her and the promise was a mere hoax. The Court observed that the facts of the present case clearly shows that the applicant was serious in getting married to the respondent, and that at various family occasions he introduced the respondent as his fiancée to his relatives. The Court noted that the promise given by applicant to marry respondent cannot be termed as false promise or a case of breach of promise, infact it was a case of cancellation of marriage, as the decision to cancel the marriage was originated from the side of the respondent and was communicated to the applicant by the father of the respondent.

The Court stated that even if the case of the respondent as disclosed in the entire charge-sheet is taken to be true, in that case also, no offence under Section 376 of IPC is disclosed, and charge of cheating cannot sustain when it is clear that the applicant was not having fraudulent or dishonest intention at the time of making promise, as at the very first meeting with the respondent, the applicant disclosed his original name, gave information about his first marriage, his family background, and his 13 year old son with the first wife. The Court further relied on Zandu Pharmaceuticals Works Ltd v. Mohd. Sharaful Haque (2005) 1 SCC 122, and quashed the prosecution of the applicant exercising power under Section 482 CrPC considering it to be an abuse of the process of court. Nandan Sadanand Bendarkar v. State of Maharashtra, 2015 SCC OnLine Bom 2044, decided on 06.05.2015

High Courts

Punjab and Haryana High Court: Allowing the plea of the petitioner (minor appearing through her guardian) wanting to medically terminate her pregnancy that resulted due to rape being committed upon her, the Court directed the District Medical Officer, Hisar to constitute a committee of 2 doctors to examine her and get her pregnancy terminated if she is in the right state of health. The Court referring an earlier case on this point reiterated the directions stating that in case where a rape victim irrespective of the fact that whether she is major or minor, if found pregnant and does not want to retain the foetus, then such pregnancy must be treated as involving grave mental injury and medical assistance shall be provided and the feasibility of terminating such pregnancy shall be considered.

In the instant case the victim’s request to medically terminate her pregnancy was rejected by the Court of JMIC, Hisar on the grounds that there is no legal provision to entertain such application. The petitioner was represented by P.K. Chugh.

Commenting upon the refusal by JMIC, the Court stated that in cases similar to the present case the victim should not be harassed by asking her to take permission from the courts as the Medical Termination of Pregnancy Act does not lay down such a procedure. The Court further observed that if a plea of termination of pregnancy by a rape victim is made then it should be dealt with utmost sensitivity. Vijender v. State of Haryana, CWP No.20783 of 2014, decided on 07.10.2014

To read the full judgment, refer SCCOnLine

Supreme Court

Supreme Court: Deciding the case dealing with the self-styled godman Nithyananda Swamy along with others accused of rape, the bench of Ranjana P. Desai and N.V. Ramana came down heavily upon the accused persons and prosecution for not cooperating with the investigating agencies and directed for medical examination of the accused.

The said petition was filed by the accused seeking quashment of proceedings in the High Court of Karnataka, where, as per pertioner’s counsel Mohan Parasaran, fair opportunity of hearing was not given to the accused. The said submission was, opposed by the State’s counsel M.N. Rao who contended the accused had used dilatory tactics in the said proceedings. It was also pointed out that the accused had also challenged the appointment of prosecutor and thereby, obtained stay order which was operative for considerable time. The accused also argued that as per Section 53-A CrPC, the medical examination of the person accused of rape should be done immediately after the arrest and hence, a medical examination at this stage is not warranted. The Court, however, noted that the said contention was raised in order to avoid the medical examination and that Section 53-A CrPC does not put fetters on the investigating agency to get the accused examined at a later stage.

Expressing it’s extreme displeasure about the lackadaisical manner in which the proceedings were carried out in the present case where the complaint was filed and the charge-sheet was submitted in 2010 but no further investigation was conducted by the prosecution, the Court held that the prosecution should gear up in order to facilitate the commencement of trial and the accused should also cooperate with the Court in or else adverse inference will be drawn against them. Siva Vallabhaneni v. State of Karnataka, Special Leave Petition (Crl.) No.5844 of 2014, decided on 03.09.2014

To read the judgment, click here