Case BriefsHigh Courts

Bombay High Court: Sadhana S. Jadhav, J. allowed an appeal filed against the decision of the trial court whereby the appellant was convicted for offences punishable under Section 376 IPC (punishment for rape) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (punishment for penetrative sexual assault).

The appellant was accused of committing rape upon the prosecutrix on pretext of marriage. He was tried and convicted by the trial court as aforesaid.

Arjun Rajput, counsel for the appellant assailed the judgment of the trial court. Per contra, S.S. Pednekar, Assistant Public Prosecutor appearing for the State supported the impugned judgment.

The High Court noted that evidence of the prosecutrix, on which appellant’s conviction was primarily based, did not inspire confidence. Also, several witnesses turned hostile. The Court stated, “witness may lie, but the circumstances will not lie.” As per the FIR, the appellant and prosecutrix had already made a plan to go out on the day of the alleged incident. It was observed, “The papers of investigation would indicate that the appellant was in love with the prosecutrix and that has led to initiation of criminal prosecution. The parents of the prosecutrix and that has led to initiation of criminal prosecution. The fact that the prosecutrix had voluntarily missed the classes and decided to accompany him would be sufficient to indicate that she was not forced to accompany the appellant.”

The Court noted further, “The appellant seemed to be so frustrated with the criminal prosecution that he made no efforts even to defend himself. In his statement under Section 313 CrPC he has only stated that he does not wish to speak about the incident. The papers of investigation would further indicate that the appellant felt betrayed by the prosecutrix. That it was a love affair between two youngsters, which had landed in criminal prosecution of a young boy.”

In such circumstances, the Court allowed the appeal and set aside the conviction and sentence awarded to the appellant by the trial court. [Gorakshya Arjun Mahakal v. State of Maharashtra, 2019 SCC OnLine Bom 520, dated 13-03-2019]

Case BriefsHigh Courts

Gujarat High Court: The Bench of A.Y. Kogje, J. allowed a bail application under Section 439 of the Code of Criminal Procedure, 1973 in connection with FIR registered for the offence punishable under Sections 363, 366 and 376(2)(I)(N) IPC and under Sections 3(A), 4, 5(L), 6, 7, 8, 11(6) and 12 of the POCSO Act, 2012.

Additional Public Prosecutor appearing for the respondent-State opposed grant of regular bail looking to the nature and gravity of the offence.

The cardinal fact that was taken into account was that the applicant was aged 24 years, unmarried and was a student whereas the prosecutrix was aged 16 years. The Court while allowing the application stated that by history narrated before the Medical Officer, the element of love affair could not have been ruled out and therefore the present was found to be a fit case to enlarge the accused on bail. [Harsul v. State of  Gujarat, 2019 SCC OnLine Guj 68, Order dated 16-01-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of S.B. Shukre and S.M. Modak, JJ. allowed a set of criminal appeals filed against the judgment of Sessions Judge whereby the appellants were convicted under Section 376 (2)(n) IPC and under various sections of Protection of Children from Sexual Offences Act, 2012 and Prohibition of Child Marriage Act, 2006.

The appellants were the husband, parents, neighbours, etc. of the victim. The prosecution alleged that the victim was married to her husband when she was 15 years of age. She was pressurised by her parents. Soon after the wedding, the husband consummated the marriage with the victim. She was not able to resist the advances and acts of the husband who was 29 years of age. One day, on the pretext of celebrating he birthday with her parents, the victim ran away and lodged an FIR against the husband, her parents and other accused. The matter went to trial and the court convicted the accused as aforesaid. Aggrieved thereby, the convicts preferred the present appeals.

Mahesh Rai and A.A. Dhawas, Advocates for the appellants vehemently argued against the conviction and seriously disputed age of the victim at the time of the incident. They relied on evidence of one Vasanti, an employee of Municipal Council, Chandrapur. Notably, Vasanti was a prosecution witness but her evidence wherein she brought birth register proved that the victim was born in 1994 and not in 1999 as claimed by the prosecution. Thus, at the relevant time, the victim was more than 18 years of age. Therefore she could not be treated as a ‘child’ for the purpose of either POCSO or the Child Marriage Act.

The High Court, noting the above evidence stated that the same was reliable. It observed, “After having examined its own witness and after having not declared the witness with the permission of the Court as hostile to the prosecution, it is not permissible under the law for the prosecution to disown its own witness”. On the aspect of other evidence especially the ossification test, the Court relied on Mahadeo v. State of Maharashtra, (2013) 14 SCC 637 and State of M.P. v. Anoop Singh, (2015) 7 SCC 773. The Court stated, “The ossification test would come into picture only when the documentary and other evidence brought on record by the prosecution does not convincingly or beyond reasonable doubt establish the age of the victim, wherever it is relevant”. Thus, the victim not being a ‘child’ at the relevant time, the appellants were acquitted of offences under POCSO and Child Marriage Act. Further, regarding Section 376(2)(n) IPC, it was noted that the victim admitted that after the marriage she did not object to the acts of the husband and therefore even that offence was not established. Hence, the appellants were acquitted of all the charges. [Vimalbai Manohar Doballiwar v. State of Maharashtra, 2018 SCC OnLine Bom 6956, dated 19-12-2018]

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 BriefsHigh Courts

Bombay High Court: A Single judge Bench comprising of K.L. Wadane, J. partly allowed a criminal appeal filed against the judgment of the trial court whereby the appellant was convicted under Sections 450 and 354-A IPC along with Section 8 of the Protection of Children from Sexual Offences Act, 2000.

The appellant was accused of committing sexual assault on a minor victim on the pretext of giving her chocolate. the accusation and charges against the appellant stood proved in the trial court. Consequently, he was convicted as aforesaid and sentenced accordingly. Aggrieved thereby, the appellant preferred the instant appeal.

The High Court, after perusal of the record, partly affirmed the judgment of the trial court to the extent it convicted the appellant under Section 354-A IPC and Section 8 POCSO Act. However, regarding Section 450 IPC, it was observed that an accused can be convicted for the offence punishable under the said Section only if another offence for which he has been convicted is punishable with imprisonment for life; otherwise, the conviction under Section 450 IPC is bad in the eyes of law. Since in the instant case, the other offences for which the appellant was convicted were not punishable with imprisonment for life, the Court acquitted him from the offence punishable under Section 450 IPC. The appeal was disposed of in the terms above. [Hanumant v. State of Maharashtra,2018 SCC OnLine Del 12142, dated 29-09-2018]

Hot Off The PressNews

Supreme Court: The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar & Dr. DY Chandrachud, JJ directed all High Courts to ensure that the cases of sexual assault of children are fast-tracked and decided expeditiously by special courts. The bench also asked the the high courts to instruct the trial courts not to grant unnecessary adjournments during trial of cases under the Protection of Children from Sexual Offences (POCSO) Act.  The Court also directed that the High Courts may constitute a committee of three judges to regulate and monitor the trials of sexual assault cases of children.

The Court was hearing the petition filed by advocate Alakh Alok Srivastava after the horrific incident of rape of an 8-month girl child allegedly by her 28-year-old cousin on January 28 in a locality near Netaji Subhash Place in north-west Delhi had come to light.  He had also sought the provision of death penalty in such cases and framing of guidelines that investigation and trial of cases involving rape of children below 12 years of age under POSCO Act, should be completed in six months from the date of registration of the FIR.

The Union Cabinet had on April 21 approved the ordinance to provide stringent punishment, including death penalty, for those convicted of rape of girls below 12 years. The move of the Centre came after a public outcry for award of death penalty to such sexual offenders, including the assaulters of an 8-year-old girl who was gang raped and killed at Kathua district of Jammu and Kashmir recently.

Source: PTI

Case BriefsSupreme Court

Supreme Court: While hearing the plea seeking compensation of Rs 10 lakh for the parents of an eight-month old baby who was allegedly raped by her 28-year-old cousin in Delhi in the month of January 2018. The 3-judge bench Dipak Misra, AM Khanwilkar and Dr. DY Chandrachud, JJ directed the Registrar Generals of all the High Courts to send intimation to the Supreme Court Registry about the pendency of the cases instituted under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and the status of those cases. The Court said that the Registrar Generals may constitute a team, if necessary, to prepare district-wise data.

Earlier, on 01.02.2018, the petitioner had submitted before the Court that there should be speedy disposal of the cases registered under the POCSO Act. Hence, the Court had asked him to file a chart containing data with regard to the cases pending at various places, along with the reasons for delayed disposal, so that the Court can take a holistic view of the matter.

The Court will now take up the matter on 20.04.2018. [Alakh Alok Srivastava v. Union of India, 2018 SCC OnLine SC 212, order dated 12.03.2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench of the Delhi High Court comprising of S.P. Garg, J., disposed of a criminal appeal which challenged a judgment by which, the appellant was held guilty for committing the offences punishable under Sections 354/354A/451 IPC and Section 10 POCSO Act. The appellant, under the conviction, was awarded various prison terms with fine.

The prosecution case was that the appellant had made non-consensual physical contact with the prosecutrix and had outraged her modesty at her house. The prosecutrix was aged around 9 years. The prosecutrix gave a vivid description of the incident in the complaint, implicating the appellant as the perpetrator. In the trial, eight witnesses were examined to establish the prosecution’s case. On the other hand, defence produced no evidence.

The extensive cross-examination, the prosecutrix was subjected to, uncovered no inconsistencies in her testimony. She was consistent throughout at different stages of investigation and trial. She proved the version given before the police as well as before the learned presiding officer without any material variation. No ulterior motive could be assigned to the prosecutrix in implicating the appellant. Under Section 313 CrPC, the appellant came with the plea for the first time that he had borrowed Rs 5,000 from the victim’s father and upon defaulting, the victim’s father had demanded Rs. 10,000 and upon failing to pay this money, he was falsely implicated.

The Court noted that evidence was put forward as to when and for what purpose the appellant had borrowed the money. Further, it was held to be highly unbelievable that for a sum of Rs. 5000, the victim’s father would demand Rs. 10,000 from the appellant, much less have his daughter subjected to negativity associated with such a serious issue. The appellant, further, did not deny his presence at the spot, nor did he deny his visits to the victim’s house. The Court found no reason to set aside the conviction.

However, regarding the sentence order, the Court noted that the appellant had been sentenced under POCSO Act as well as IPC for various offences, the ingredients of which were almost identical. Maximum sentence under Section 10 of the POCSO Act had been awarded. Hence, sentences under Sections 354.354A and 451 IPC were set aside. Appeal disposed of. [Vinay v. State (NCT of Delhi), 2018 SCC OnLine Del 7257, decided on 16.2.2018]

Case BriefsHigh Courts

Bombay High Court: In the order passed by the Bench of A.M. Badar, J., rejecting the application filed for grant of bail where the father being the accused was charged with offences under Sections 6, 10 and 12 of the Protection of Children from Sexual Offences Act, 2012 and under Sections 354-A, 376(2)(f) and (i), 506, 509 of the Penal Code, 1860.

The application was rejected, on the basis of statements of other inmates of the house and also relying on the FIR lodged by the victim on 18-4-2017, stating the accused to be indulged in sexual assaults against her since the past several years. The learned counsel for the prosecutrix drew attention to the testimony of the teacher in front of whom she accepted that she was being molested from past 4-5 years and due to the fear of her father as well as mother she had never disclosed about the incident. It was also stated by the victim that the applicant has committed rape on her when she was in seventh standard alone at her house.

Relying on the circumstantial evidence and testimony of other witnesses and doing away with the evidence from the victim , the Court was convinced that no case of bail was made out. The request for holding a mini trial was also rejected. Not giving much consideration to the subsequential change of stance by the daughter considering it prima facie for protection of the accused and also considering the circumstances and evidences, the court decided against the appellant. [Devendra Bansraj Singh v. State of Maharashtra,  2017 SCC OnLine Bom 9120, decided on 9-11-2017]

Case BriefsHigh Courts

Karnataka High Court: While deciding a criminal petition filed under Section 439 of CrPC, a Single Judge Bench of Budihal R.B., J. held that the consent of a girl aged 14 years, for sexual intercourse, is immaterial and the POCSO Act classifies it as a rape.

The petitioner-accused was charged for offences punishable under Sections 363, 366 (A), 376(2) of IPC and also under Section 6 of POCSO Act. Learned counsel for the petitioner submitted that the statement of the victim girl recorded under Section 164 of CrPC itself says that she was in love with the petitioner, her family members were not supporting her so she herself left the house and went with the petitioner, and she had sexual intercourse with the petitioner out of her own free will and volition. In view of her statement, the counsel submitted that, there was no prima facie material against the petitioner and hence he may be enlarged on bail.

The Court perused the submissions made on behalf of the parties and the statement of the victim recorded under Section 164 CrPC, and found that the victim girl was 14 years old. She went along and stayed with the petitioner for one week and had sexual intercourse with him. The High Court was of the opinion that even if the girl aged 14 years consented to sexual intercourse, the consent was immaterial. It was a rape. There was a prima facie case against the petitioner. Accordingly, the Court declined to exercise discretion in favor of the petitioner and the petition was rejected. [Premkumar H.M @ Swamy v. State of Karnataka, 2017 SCC OnLine Kar 2447, dated October 9, 2017]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of A.M. Badar, J., heard an appeal filed against the order and judgment of a Special Judge passed in a Special Child Sessions case, wherein the appellant-accused had been convicted under Sections 376 of the Penal Code of 1860 (rape) as well as under Section 4 of the Protection of Children from Sexual Offences Act (POCSO Act) (Punishment for penetrative assault). He had been sentenced to ten years of rigorous imprisonment under each count of offence punishable under the POCSO Act and IPC concurrently.

Brief facts of the case are that in order to ensure good educational facilities for one of her four daughters, the mother of the victim agreed to let her daughter, the victim, stay at her paternal aunt’s house. The victim disclosed to her mother on one of her visits at home that the accused, the husband of the aunt, hence the victim’s uncle, used to take her on the terrace, touched her inappropriately and even attempted to rape her. Relying on the medical evidence that indicated penetrative assault, the Special Judge found the accused guilty and sentenced him as aforementioned.

Appealing against the said judgment, the appellant stated that due to delay in filing the FIR, the appellant should be given the benefit of the doubt. However, relying on the categorization of reasons for non-reporting sexual offences in Indian settings in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat(1983) 3 SCC 217, the Court held that the victim’s “conduct appears to be normal conduct of a helpless girl of tender age enmeshed in cobweb of adverse circumstances and as such, this fact does not cast shadow of doubt on version of the prosecutrix”.

The Court partly allowed the appeal. Maintaining the conviction of the accused, the Court set aside the sentence under the Penal Code due to Section 42 of the POCSO Act which states that if found guilty under POCSO Act as well as under any other law, then the offence shall be liable for punishment under that Act which is greater in degree. [Siddharth Dagadu Sondu v. State of Maharshtra,  2017 SCC OnLine Bom 7985, dated 28.08.2017]