Case BriefsHigh Courts

Kerala High Court: The Division Bench of A.M. Shaffique and P. Somarajan, JJ. was hearing a death reference tagged along with a criminal appeal filed by the accused challenging order of the Sessions Judge vide which he was convicted and sentenced to be hanged by the neck till his death for offences under Sections 376, 302, 449 and 392 of the Indian Penal Code, 1860.

The accused respondent trespassed into the house of a minor girl aged 15 years, raped and murdered her; and thereafter committed theft of a gold necklace and a gold ring from her body. The Court observed that there was no eye-witness to the incident and the case rested purely on circumstantial evidence. However, scientific material showed that the DNA found in spermatozoa taken from victim’s vagina matched with the DNA profile of the accused. This clearly proved that the accused had raped the victim. Further, the missing chain and ring were recovered from a financier where the accused had pledged the same under a different name. Thus, the prosecution had proved all circumstances forming the chain beyond a reasonable doubt and the only hypothesis that could be arrived at by the Court was that the accused was involved in the crime.

It was noted that this was a case where the victim was subjected to forcible sexual intercourse, and lust and greed of the accused had resulted in rape and murder of a minor girl. However, the accused did not have any criminal antecedents; there was no pre-meditation and intention to commit crime would have developed all of a sudden. The offence might have been committed in a sudden rush of blood i.e., to commit robbery and rape. The accused, aged 29 years at the time of the incident, had married twice and had children.

In view of all the facts, it was opined that instead of the death penalty, the punishment of life imprisonment would meet the ends of justice. However, taking into account gravity of the offence, the Court relied on the dictum in Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 and held that no remission be granted to the accused for a period of 25 years. [State v. Rajesh Kumar, 2019 SCC OnLine Ker 43, Order dated 08-01-2019]

Case BriefsHigh Courts

“It took me quite a long time develop the voice and now that I have it, I am not going to be silent.”

-Madeleine Albright

Bombay High Court: A Division Bench comprising of Ranjit V. More and Bharati H. Dangre, JJ. confirmed the death sentence awarded to the accused in the gruesome case of rape and murder of a 23 year old software engineer in Mumbai.

The incident

The victim was a software engineer working in Mumbai. She took a leave in December 2013 went to meet her parents in Andhra Pradesh. She was returning on 4 January 2014. Next morning, when her train was scheduled to reach Mumbai, her father attempted to contact her but without success. On the same day, a missing complaint was lodged with police. Thus began a frantic search for the victim. After 11 days, on 16 January, her half-burnt body was traced in the bushes on express highway.

The investigation

An FIR under Section 302 and 201 was registered. CCTV footage from Lokmanya Tilak Terminus was obtained which revealed that the victim walked out of the railway station on 5 January along with a stranger who was carrying her trolley bag. The man was identified as one Chandrabhan Sanap (accused) and was arrested. On his disclosure, articles belonging to the victim as well motorcycle on which she was driven to the crime spot was seized.

Prosecution case and the trial court decision

The accused was charged for abducting the victim on 5 January 2014 at 5.30 am from LTT Station on the pretext of dropping her at the hostel and thereafter he drove her on his bike to crime spot and committed rape on her. He was charged with Sections 364, 366, 376(2)(m), 376-A, 392 read with Section 397, 302 and 201 IPC. After the conclusion of the trial, the trial court convicted the accused and sentenced him to be hanged by neck till he is dead.

Confirmation case and appeal to the High Court

As per Section 28(2) CrPC, on imposition of death sentence, the matter has to be referred for confirmation of the High Court. The confirmation case was tagged with the appeal filed by the accused against the judgment of the trial court. The case of prosecution was based on circumstantial evidence and the prosecution had relied on 39 witnesses to establish its case along with several documentary evidence. After considering the evidence in detail including witness testimony, CCTV footage, DNA reports, post-mortem report, etc., the Court was of the opinion that prosecution was able to establish a complete chain of circumstances by cogent and reliable evidence. It was held that the prosecution had established the case against the accused beyond reasonable doubt.

Death Sentence

In order to decide the question of confirmation of the death sentence, the Court relied on Bachan Singh v. State of Punjab, (1980) 2 SCC 684 and after praying due regard to both crime and criminal, drew a balance sheet of aggravating and mitigating factors. The Court observed,

” The way in which a society protects its victims of crime is a barometer of that society’s standards of human dignity and decency. When a woman in the society is raped, it is not only she who is subjected to rape, but it is the tendency that is reflected to overpower, to violate and to crash the dignity of the entire woman creed in the society.”

It was further observed that for a small pleasure, a young woman who had just stepped into womanhood was done to death with extreme vileness. The abhorrent, grotesque and perverted manner in which she was murdered by the accused was also taken note of. In Court’s specific opinion, although ‘reformative theory’ is recognised as one of the leading theory for imposition of penalty but undue stress on the same would defeat basic tenets of imposition of penalty where crime committed obnoxiously shocks the collective conscience of the society. Furthermore, merely because behaviour of accused as under-trial prisoner was good, could not be a ground to absolve him of the most gruesome act he committed. In the present case, the only fault of victim was that she fell prey to the sinister design of the accused to fulfill his lust. As such, the Court upheld the death sentence awarded to the accused holding it to be ‘rarest of rare’ case which amounts to the devastation of social trust, shocks social conscience and calls for extreme penalty of capital punishment.

Accordingly, the death sentence was confirmed and the criminal appeal filed by the accused was dismissed. [State of Maharashtra v. Chandrabhan Sudam Sanap, 2018 SCC OnLine Bom 6576, dated 20-12-2018]

Case BriefsForeign Courts

Supreme Court of Appeal of South Africa: This appeal was filed before a 5-Judge Bench comprising of Tshiqi, Swain and Dambuza, JJA., Mokgohloa and Mothle, AJJA.,  against a sentence of 5-year imprisonment for commission of offence of rape.

Respondent was indicted on three counts i.e. of housebreaking with intend to rob, rape read with Section 51(1), and robbery. He was convicted of theft and rape in terms of Section 51 (2) of the Minimum Sentences Act. Respondent submitted his personal circumstances that he was 19 years old studying in school Grade 10 and first offender of rape. It was submitted that he was under influence of liquor at the time of commission of crime. Trial Court on the basis of the above circumstances found personal circumstances of the respondent amounting to substantial and compelling circumstances and sentenced him 5 years imprisonment. Petitioner contended that respondent’s conviction of rape rendered him liable for punishment under Section 51(2) of the Minimum Sentences Act which prescribes a minimum sentence of 10 years’ imprisonment.

Therefore, appeal against sentence was upheld, sentence was set aside and replaced with a minimum sentence of 10 years’ imprisonment. [Director of Public Prosecutions Limpopo v. Koketso Motloutsi, Case No. 527 of 2018, dated 04-12-2018]

Case BriefsHigh Courts

Delhi High Court: Observing the approach of the trial court to be wholly misdirected and erroneous, a Single Judge Bench comprising of R.K. Gauba, J. allowed a criminal appeal setting aside the judgment of the trial court whereby the appellant was convicted under Section 376 IPC for raping his daughter.

During the pendency of the appeal, which was finally adjudicated after 17 years it was presented, the appellant died and the appeal was prosecuted by his wife. The appellant was alleged to have committed rape on prosecutrix- her daughter on several occasion. Resultantly, she became pregnant after which the appellant asked her to write a suicide note implicating one Bhushan and commit suicide. Thereafter, the prosecutrix went missing and subsequently, she lodged FIR against the appellant. Notably, at relevant time, the prosecutrix was a minor and the appellant had also filed an FIR under Section 363 IPC alleging that Bhushan had kidnapped her. However, the FIR lodged by the appellant was lodged without any probe and he was tried and convicted under Section 376 by the trial court. Aggrieved thereby, the appellant filed the instant appeal.

The High Court perused the record and was of the opinion that this was a case of one-sided probe and unfair trial. The version of the prosecutrix was highly questionable and even witness testimony was suspicious. The basis for giving a clean chit to Bhushan was left to the imagination. Collection of evidence was also unsatisfactory. Also, the appellant cried foul from day one and demanded DNA test to be done. The police did not listen and even the trial court did not pass any direction. The Court deplored the inaction on part of all concerned. It was held that the conviction of the appellant could not be allowed to stand. Resultantly, the appeal was allowed and the appellant was acquitted of the charge. [Kapil Kumar Beri v. State (NCT of Delhi), 2018 SCC OnLine Del 13023, dated 19-12-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Hima Kohli and Manoj Kumar Ohri, JJ. dismissed an appeal filed against the judgment of the trial court whereby the accused was acquitted of the offences under Sections 376 and 506 IPC.

The prosecutrix had alleged that the accused made false promises of marrying her and established a physical relationship with her forcefully. However, the trial court acquitted the accused of all the charges holding that the deposition of the prosecutrix was insufficient to prove the guilt of the accused. Aggrieved thereby, the prosecutrix filed the present criminal leave petition.

On perusal of the record, the High Court was of the view that the impugned judgment did not suffer from any infirmity. It considered the printout of WhatsApp chats and transcription of the telephonic conversation between the parties which were duly admitted by the prosecutrix in cross-examination. The chat and conversation amply demonstrated that the prosecutrix consented for a physical relationship out of her own free will and without any inducement. Thereafter, she had second thoughts about marrying the accused and in fact, she was threatening to falsely implicate and defame him. Given such facts and circumstances, the Court declined to interfere and the petition was dismissed. [Ritu v. State,2018 SCC OnLine Del 12914, Order dated 11-12-2018]

Case BriefsSupreme Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Case BriefsSupreme Court

Supreme Court: The Bench comprising of R. Banumathi and Indira Banerjee, JJ. while setting aside the judgment of the Delhi High Court which had reversed the conviction under Section 376(2)(g) recorded by the trial court stated that, “Even assuming that the prosecutrix was of easy virtue, she has a right to refuse to submit herself to sexual intercourse to anyone.”

The factual matrix of the case draws a picture in which it is stated that the present appeals came up on account of the Delhi High Court’s judgment which had allowed the respondents/accused conviction under Section 376(2)(g) IPC to be set aside. The prosecutrix alleged that when the respondents had demanded bidi from the prosecutrix and on her refusal for the same, she was raped by them, in which Respondent 2 was responsible for holding her hands and the other three men had committed rape on her turn by turn. On raising alarm in this situation, PW-3, i.e. mother of the prosecutrix saw those men coming out of the jhuggi while prosecutrix was lying unconscious.

Further, the charges were framed against the respondents under Section 376(2)(g) IPC to which they pleaded guilty. Respondents had submitted that prosecutrix was of bad character and was indulging in prostitution and on complaining about the same, the respondents were falsely implicated for the rape charge. The trial court had convicted the respondents under Section 376(2)(g) IPC but, further, the High Court had allowed the appeal against the trial court judgment by acquitting the respondent and directing to initiate action against the police officers concerned.

The Supreme Court on noting the observations and submissions and also the materials on record stated that, the trial court had rightly stated that “even if the allegations of the accused that the prosecutrix is of immoral character are taken to be correct, same does not give any right to the accused persons to commit rape.”

“Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference like the victim being a woman of ‘loose character’ is permissible to be drawn from that circumstance alone.”

Hence, High Court erred in placing reliance upon the complaints allegedly made against the prosecutrix to doubt her version and to hold that a false case has been foisted. Further, the High Court was also not right in issuing the direction to lodge a complaint against the police officials, which was hereby set aside and the appeal preferred was allowed. [State (NCT of Delhi) v. Pankaj Chaudhary,2018 SCC OnLine SC 2256, decided on 30-10-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Madan B. Lokur and Uday Umesh Lalit, JJ. gave a cut off date for finalizing the “Standard Operating Procedure” for cyber police portal-handling complaints involving child pornography-child sexual abuse material, rape/gang rape, and obscene contents.

It has been stated that the Union of India has prepared SOP concerning the above-stated issue. The first version of the said SOP was prepared on June 18, 2018, and a revision followed on July 12, 2018. The comments and suggestion concerning the same are being received from time to time and this is a continuous process. In view of these improvements being a continuous process, Supreme Court finalised 15 November 2018 as the cut off date for the finalization of the SOP.

Further, the bench stated that the copy of SOP should be circulated amongst the intermediaries for the purpose of any suggestions, etc. before 9 November 2018 to Ministry of Home Affairs. Union of India has been directed to file an affidavit indicating the number of complaints received an the action been taken for the same.

The matter has been further listed for 22-11-2018. [Prajwala Letter Dated 18.2.2015 Videos of Sexual Violence and Recommendations, In Re, 2018 SCC OnLine SC 2111Order dated 22-10-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Madan B. Lokur and Deepak Gupta, JJ., while delivering an order in concerning the extremely disturbing “Bihar Shelter Home Rape case” highlighted few significant pointers to be noted by the CBI in their investigation along with the removal of blanket ban on media in regard to the reporting of the case.

The Bench on considering the status report filed by CBI in the Patna High Court, placed down a few pointers which needed to be looked upon carefully, which were as follows:

  • Mr Brajesh Kumar Thakur who is the in charge of Sewa Sankalp Evam Vikas Samiti is a very influential person and that is the reason people in the neighborhood are scared to complain against him. CBI needs to look into the antecedents, connections, and influence of the person concerned.
  • Sewa Sankalp Evam Vikas Samiti has received for about 4.5 Crores from the State of Bihar over a period of ten years for their activities. It is necessary that the IT department should look into the income and assets of Mr Brajesh Thakur and indeed of the NGO.
  • The next pointer to the list was that the Status report states the transfer of some girls by the Social Welfare Department from the Shelter Home. The transfer indicates that the Social Welfare Department was aware of the unsavoury activities in the Shelter Home and that may have been the reason for the transfer of the victims. Therefore, in this regard, CBI should seize the record of the said department and further carry out the investigation. Court asked the State of Bihar to file an affidavit stating the reason for the transfer of those girls.

Further, the Court while removing the blanket ban order passed by the Patna High Court in regard to the media reporting stated that “Entire issue needs to be balanced and looked at in the broader view of the criminal justice and freedom of the press.” Therefore, the Court asked for the assistance of Press Council of India, News Broadcasting Standards Authority, Editors Guild and the Indian Broadcasting Federation.

Concluding the order, the bench stated that in the interest of all the victims of sexual abuse and violence, we restrain the electronic media from telecasting or broadcasting the images of the victims in morphed or blurred form also the victims should not be interviewed. The matter is listed for 04-10-2018. [Nivedita Jha v. State of Bihar, 2018 SCC OnLine SC 1616, order dated 20-09-2018]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Rajasekhar Mantha, J. allowed an appeal filed by the appellant against of the order of the trial court whereby he was convicted under Section 376 IPC.

The prosecution case was that the appellant had committed rape on the prosecutrix on the false pretext of marrying her. It was alleged that after the first occasion of sexual intercourse, the appellant promised to marry the prosecutrix to which she consented. Thereafter, as admitted by the prosecutrix, they remained in a love affair for 1 and half years where they cohabitated regularly. The prosecutrix had intercourse with the appellant on various occasions of her own free will. 15 days prior the complaint, they also tried to fly away but were caught by the mother of the prosecutrix. It was proved that the prosecutrix became pregnant and gave birth to appellant’s child. It was alleged that the appellant finally refused to marry her. Thus, the complaint was filed and the appellant was convicted as aforementioned.

The High Court perused the record and found that after the mother of the prosecutrix came to know about the affair on the night when the appellant and prosecutrix attempted to flee, she talked to appellant’s father. His father, however, refused to give consent to their marriage. The Court observed that the trial court ignored the fact that the prosecutrix continued to have sexual intercourse with the appellant of her own free will. It was never proved that the appellant, on the first occasion, did not intend to marry her. It was only the father of appellant who refused to accept her as the daughter-in-law. Consent of the prosecutrix for voluntary sexual intercourse, in this case, was obtained neither by fraud nor on a misconception of facts. Holding thus, the High Court set aside the order of the trial court and acquitted the appellant. The appeal was, thus, allowed. [Kalam Sk. v. State of W.B.,2018 SCC OnLine Cal 6548, decided on 20-09-2018]

Case BriefsHigh Courts

Tripura High Court: A Single Judge Bench comprising of Arindam lodh, J. disposed of an appeal wherein the offence under Section 376 IPC was converted to Section 354 IPC.

The Appeal was filed by the appellant against the order of District Court whereby he was alleged for the offence of rape of a minor.

From the evidence presented by the respondent, it was clear that the appellant did not touch her vagina or any parts surrounding the vagina.

It was argued by the appellant that in order to attract the provision of Section 376 IPC, even the slightest penetration of the penis into the vagina, mouth, urethra or anus of a woman was enough to constitute the offence under Section 376 of IPC. Taking the deposition of the mother of the respondent into consideration it was clear that, the time gap between the cry for help of the respondent and her mother reaching the place on hearing the same was insufficient to commit the alleged offence. Also during examination-in-chief under Section 161 CrPC, the wearing apparels of the respondent were not ceased neither she was forwarded to record her judicial confession under Section 164(5) CrPC which further weakens her case along with the inference that her clothes were not torn out.

In light of the facts and the evidences stated, the Court established that this incident could be best described as “fondling” and the offence best categorized under Section 354 of IPC as already observed, the slightest penetration, whichever degree it was, an essential requirement vis-à-vis sine qua non to attract the provision of Section 376 of IPC. Hence due to absence of any degree of penetration, the appeal was disposed of. [Nemai Dey v. State of Tripura, CRL A (J) NO. 23 of 2015, dated 06-09-2018]

Case BriefsHigh Courts

Gauhati High Court: A Single Judge Bench comprising Mir Alfaz Ali, J., allowed an appeal as it was unable to persuade itself to sustain the conviction and sentence of the appellant.

The petition was filed by the appellant who was charged under Section 376 of Indian Penal Code, 1860 for rape of the respondent.

The respondent’s claim that she was tied and raped in the same room where the other family members were also sleeping appeared to be absurd and unbelievable. Also, there were discrepancies in the oral testimony of the respondent’s family which further failed to secure their claim.

What was evident from the two medical documents submitted was that they were contradictory, as the first issued at the time of discharge of the victim did not disclose any injury on the private part whereas the subsequent report explained the reason of injuries to be a self-inflicted one with no marks of violence in addition to the fact that the clothing of the respondent was intact at the time of medical examination.

The Court highlighted that when the offence alleged to have been committed by the appellant was serious and grave one, providing for severe punishment, prosecution must provide greater assurance to the court by the strictest degree of proof that the case has been proved beyond all reasonable doubt.

Hence the conviction and sentence of the appellant were set aside.[Ganesh Das v. State of Assam, 2018 SCC OnLine Gau 949, order dated 16-08-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: A Division Bench comprising of J.K.Maheshwari and Akhil Kumar Srivastava, JJ., addressed the issue of rape and murder of a minor girl to see if capital punishment of death penalty could be imposed upon the accused.

Accused in this case was alleged under Sections 376A, 302, 342, 201/511of IPC. He raped a minor girl aged 12-year old after which the girl died. The court had no doubt as to the commission of rape by the accused as many people witnessed the accused running away from the hut where the girl was found dead. The post-mortem report confirmed rape but the reason for her death was stated to be asphyxia. Trial Court observed that the case was proved beyond reasonable doubt. While sentencing accused, Trial Court took aid under Section 42 of POCSO Act as the victim was a minor girl. Stating instant case as rarest of rare case capital punishment of death was awarded.

The appeal went before High Court where the question of whether it was a “rarest of the rare case” was to be decided. Court referred various judgments of Apex Court to understand “rarest of the rare case” and on perusing the aggravating and mitigating circumstances court was of the view that the instant case would not come under “rarest of the rare case”. Therefore, Court set aside the capital punishment given for the offence under Section 376A of the I.P.C. [Sunil Adiwasi v. State of M.P., Criminal Appeal No.5015 of 2018, dated 17-08-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of R.K. Deshpande and Arun D. Upadhye, JJ., addressed a petition filed challenging the order of a Divisional Commissioner, Amravati on refusal to grant parole on the basis of Rule 4(b)(13) read with Rule (2)(B)(i) of Maharashtra Prisons (Bombay Furlough an Parole) Rules, 1959. The Court placed this matter before Chief Justice to be referred to a larger bench.

The present petition pertained to the facts that the petitioner was a convict for the offence under Section 376 IPC for the offence of rape. The sentence imposed upon him was of 10 years imprisonment under Section 376(2)(a) and 1-year imprisonment under Section 342 IPC. Petitioner was refused a parole. Though he was recommended for the same by the authorities due to the bar under  Rule 4(b)(13) read with Rule (2)(B)(i) of Maharashtra Prisons (Bombay Furlough an Parole) Rules, 1959, he was refused parole.

The Learned APP on behalf of the respondents relied on Sharad Devaram Shelake v. State of Maharashtra, 2016 SCC OnLine Bom 2448, wherein the above-stated rule was upheld. The division bench in the above-stated case had relied upon the decision of Supreme Court in State of Haryana v. Jai Singh,(2003) 9 SCC 114, wherein it was held, “Classification created for imposing bar to grant parole or furlough, based on the nature of offences, is a valid classification for the purpose of deciding whether the persons who have committed such offences should be granted remission or not.”

On due consideration of the facts and circumstances of the case along with the contentions placed, the Court was of the view that the matter should be referred to larger bench instead of making out a distinction between the decision of State of Haryana v. Jai Singh,(2003) 9 SCC 114 and Sharad Devaram Shelake v. State of Maharashtra, 2016 SCC OnLine Bom 2448.

Therefore, the Court referred the case to a larger bench for the consideration of the issue: “Whether Rule 4(13) Maharashtra prisons (Bombay Furlough and Parole) Rules, 1959 creating an absolute bar to claim release on furlough leave and consequently Rule 19(2)(B)(i) of the Rules of 1959 to claim release on parole leave to the convict for the offence of rape is violative of Articles 14 and 21 of the Constitution of India, particularly when the offenders in other serious offences are entitled to such leave?” [Vijay Pralhad Varankar v. Division Commr., Amravati;2018 SCC OnLine Bom 2261; dated 23-08-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Ranjan Gogoi, Navin Sinha, and K.M. Joseph, JJ., allowed an appeal and acquitted the accused-appellant for the offences under Sections 363, 366 and 376 IPC, on the basis of  “benefit of doubt”.

The accused-appellant was charged under Sections 363, 366 and 376 of the Penal Code by the trial court and further the High Court had recorded the order of conviction under the Sections mentioned above.

The matter favoured the accused-appellant as the evidence placed stated that the stand of the prosecutrix in regard to abduction and rape was different from her statement which was recorded earlier under Section 161 CrPC, 1973. It was also recorded by one of the prosecution witnesses that the prosecutrix stayed with the accused for about 2 days in Kullu and further until she was recovered she was in the company of the accused for 12 days and yet she did not complain of any criminal act against the accused-appellant.

On the analysis of the evidence the main question arose was that of the age of the prosecutrix, whether she was a major at the time of occurrence of the incident? For that, the prosecutrix failed to prove that she was a minor.

Therefore, the Supreme Court by stating that the “benefit of doubt” should naturally go to the accused in the present case on the basis of the above-recorded pieces of evidence and facts, held that the possibility of the prosecutrix to be a consenting party cannot be ruled out altogether. Hence, setting aside the High Court’s order, the accused-appellant was acquitted from all the charges. [Rajak Mohammad v. State of Himachal Pradesh,2018 SCC OnLine SC 1222, Order dated 23-08-2018]

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 Mukta Gupta, J. allowed a criminal appeal filed against the order of the trial court wherein the appellant was convicted for the offences punishable under Sections 363, 366, 342 and 376 IPC.

The appellant-accused was alleged to have kidnapped the prosecutrix and raped her due to which she became pregnant. It was alleged by the prosecutrix that she was below the age of 16 years in 2012 when she was kidnapped by the appellant. It was the case of the prosecution that the appellant was known to the family of the prosecutrix; he kidnapped her and committed rape on her. The appellant denied the charges. He was, however, convicted by the trial court as aforementioned. Aggrieved thus, the appellant filed the present appeal.

The High Court perused the record and found that according to the medical report, she had sexual intercourse even earlier to the alleged kidnapping. Furthermore, as per the defence witness Onkar Singh, Head Master of the school where the prosecutrix was first admitted, prosecutrix’ date of birth was 1-9-1995. This meant that she was more than 16 years of age at the time of the alleged incident. Therefore, as per the law in force at the time of alleged incident, the prosecutrix was capable of consenting to sexual intercourse. The prosecutrix stated that she came to know of her pregnancy in March 2012; whereas, the medical report proved that the foetus was conceived only in April. In such facts and circumstances, the Court was of the view that the defence taken by the appellant that he was falsely implicated in the case by the father of the prosecutrix on coming to know of her pregnancy was a plausible defence. The case put forth by the complainant-father was held to be a cooked up story. Resultantly, the appeal was allowed; the order impugned was set aside, and the appellant was acquitted of the charges as framed. [Jitender Singh v. State (NCT of Delhi),2018 SCC OnLine Del 10632, dated 17-08-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Manish Pitale, J., reversed the judgment of the trial court where the appellant was convicted for an offence punishable under Section 376 IPC and sentenced to 5 years of rigorous imprisonment.

The appellant was accused of committing forcible sexual intercourse on the prosecutrix on two occasions by which she became pregnant. It was alleged that the appellant sexually abused the prosecutrix on a certain day, and after that again when the prosecutrix went to his home to watch television while he was alone. The said incidents were disclosed by the prosecutrix to her mother after she became pregnant, and an FIR was registered against the appellant. The appellant denied the allegations, but the trial court convicted him under Section 376. The appellant contended that the prosecutrix was pregnant with the child of her cousin with whom she stayed for 5-6 months. It was submitted that the appellant was falsely implicated in the case.

The High Court perused the record and found the conviction of the appellant to be unsustainable. It was noted that the conviction was based solely on the evidence of the prosecutrix. There were discrepancies in her statement. She told her mother that the appellant committed the act forcibly, while the doctor was told that it was committed on false pretext of marriage. Further, it was admitted by her that she had a cousin of same age as alleged by the appellant. In such circumstances, and on categorical stand of the appellant that he was falsely implicated, the Court held that the Investigating Officer ought to have conducted DNA test of the girl child born to the prosecutrix, for ascertaining her paternity. In absence of clear proof against the appellant, the High Court set aside the impugned judgment. The appeal was, thus, allowed. [Ganesh Pralhad Sontakke v. State of Maharashtra, 2018 SCC OnLine Bom 1795, dated 25-07-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of B.R. Gavai and Sarang V. Kotwal JJ., addressed a Criminal Appeal by setting aside the order of conviction and sentence in view of considering the matter in the purview of ‘benefit of doubt’.

In the present matter, the Appellant was convicted under Sections 376 (f) and 302 IPC for committing the rape of a 6-year-old child and murder thereafter. In accordance to the FIR lodged by the victim’s father. The appellant was found to be sleeping beside the deceased. The deceased was found with blood and injuries to her private parts.

While noting the facts of the case, the High Court found that the post-mortem report states the final cause of death as ‘death due to shock due to vaginal and anal tear with multiple injuries over body’. Also, the fact to be noted that was found on during the medical examination of the Appellant was that he had no injuries on his person with no blood or semen on any of the clothing of the appellant. There was no evidence of semen or vaginal fluid been taken off by washing from the private parts of the appellant.

Therefore, the case of prosecution lied only in the arena of ‘suspicion’ and the chain of circumstances against the appellant seemed to be incomplete, which awarded the appellant ‘benefit of doubt’ by acquitting the appellant in the present matter. [Sandip Ramesh Gaikwad v. State of Maharashtra,2018 SCC OnLine Bom 2067, dated 06-07-2018]

Case BriefsHigh Courts

Uttaranchal High Court: While delivering the judgment in a case of alleged rape of a one year and three months old baby girl, Rajiv Sharma, J., for himself and Alok Singh, J. upheld the conviction and sentence of the appellant-accused, as awarded by the trial judge.

The appellant, tenant of the informant, was a convict under Section 376(2)(i) IPC and Section 5(m) read with Section 6 of POCSO Act. It was alleged that he took away the grand daughter (victim) of the informant (PW 1) on the pretext of buying her biscuits; and when the victim returned, she was crying and blood was oozing out of her private body parts. She was taken to the hospital and FIR was lodged with the police. The appellant was tried for the charges mentioned above. The trial court relying on the FSL report and considering the statements of prosecution witnesses held the appellant guilty and convicted him for the said offences. The appellant challenged the decision of the trial court.

The main ground for the challenge was that no semen was found on the vaginal swab of the victim and hence, the case against the appellant was not proved beyond reasonable doubt. However, the High Court rejected such contention relying on the Supreme Court decisions in Wahid Khan v. State of M.P., (2010) 2 SCC 9 and Parminder v. State (NCT of Delhi), (2014) 2 SCC 592, and observed that even slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial. Further, the absence of semen in the vaginal swab and/or non-rupture of hymen does not dislodge a theory of rape. On the facts of present case, the Court held that though no semen was detected in the pathology report, yet the nature of injuries as shown by the FSL report and proved by the witness-medical expert; statement of PW 1 that found corroboration in the statement of PW 2 (mother of the victim), were sufficient to bring home the guilt of the appellant-accused. Holding thus, the High Court dismissed the appeal and upheld the order of conviction and sentence passed by the trial court. [Dal Chandra v. State of Uttarakhand,2018 SCC OnLine Utt 612, decided on 01-06-2018]