Court Log: April – June 2017
The question came on a petition by a 60 year old Delhi-based whose daughter of 38 years with cerebral palsy was raped by a man in the year 2010. Due to the impact of this incident, the mental capacity of the victim reduced from that of an 8-year old girl to a 3-year old toddler. This made the recording of her statement before a Magistrate extremely difficult.
In a first of its kind case, the SC will examine whether a man who rapes or sexually abuses a mentally challenged adult victim can be tried under the stringent provisions of POCSO Act 2012 if such a victim has an under-developed brain like that of a child.
SC Makes WhatsApp A Party-Respondent In the Videos Of Sexual Violence Case
Date: 11 April, 2017
The Supreme Court bench consisting of Justices Madan B. Lokur and Deepak Gupta made WhatsApp as a party-respondent after an oral request made by Aparna Bhat, counsel for the petitioner in the ongoing case involving uploading of obscene videos such as those of sexual violence on websites.
Central Government had set up a committee consisting of various stakeholders to assist and advice the Supreme Court on the feasibility of ensuring that videos depicting gang rape, child pornography and rape should not be made available to the general public, apart from anything else, to protect the identity and reputation of the victims and also because a circulation of such videos cannot be in public interest at all.
A cook working at a residential ashram school in Satara district – Shahaji Patole, committed penetrative sexual assault on a minor girl. After the victim informed aunt about the incident, Yashwantrao Mane – director of a trust that runs the ashram school was also informed about the incident. However, Mane insisted on “settling the matter over a cup of tea to prevent defamation of the ashram school” instead of going to the police.
The Bombay High Court rejected a revision application filed by Mane and the bench observed that “Material collected by the investigator during the course of the investigation indicates that the revision petitioner was certainly having specific knowledge about commission of the offence of aggravated penetrative assault on the victim female child by the employee of the Ashram School run by the trust.”
In a recent order, the Orissa High Court held that if the Trial Court is of the opinion that, “the police officer while recording the statement of the child victim has deliberately flouted the provisions prescribed under POCSO Act, in appropriate cases the Court can recommend for initiation of departmental proceeding against such erring police officer.”
The order was passed by Justice S.K. Sahoo while dismissing the bail application of an accused charged with sections 366-A, 372 and 373 of the IPC read with sections 4, 5 and 6 of the Immoral Traffic (Prevention) Act, 1956 and section 6 of POCSO.
Former French Diplomat Pascal Mazurier Acquitted Of Raping Minor Daughter
Date: 22 April, 2017
Additional City Civil and Sessions Judge, Bangalore, B.S. Rekha acquitted former French diplomat Pascal Mazurier of the charge of raping his minor daughter, on the grounds that he was “falsely implicated” and was innocent. In June, 2012, Ms. Suja Jones – the wife of Mr. Mazurier accused him of committing unnatural offences on his three and a half year old daughter. He was arrested three days after the FIR was lodged. Later, he was granted bail.
The court oddly observed that, “Further it is undisputed that the accused and the complainant were having regular sexual intercourse. Then what was the necessity for the accused to have sexually abuse on his own child is also throws doubt on the case of the complainant.” It also noted that that the husband and mother were not on good terms, and that she had been alleged to be a bad mother by the husband.
Considering an appeal filed by accused against his conviction for abetment to suicide of a girl because of his continuous and eve teasing, the Supreme Court of India observed that a woman has her own space as a man has in our society.
The three judge bench of Justices Dipak Misra, A.M. Khanwilkar and Mohan M. Shantanagoudkar observed that eve-teasing has become a disgusting practice and added that, “One is compelled to think and constrained to deliberate why the women in this country cannot be allowed to live in peace and lead a life that is empowered with a dignity and freedom. It has to be kept in mind that she has a right to life and entitled to love according to her choice. She has an individual choice which has been legally recognized. It has to be socially respected. No one can compel a woman to love. She has the absolute right to reject.”
The Allahabad HC suspended special judge of POCSO Court Om Prakash Mishra who granted bail to Samajwadi Party leader and former Uttar Pradesh minister Gayatri Prajapati and has stayed the bail. He is accused of raping a woman and attempting to rape her minor daughter.
Chief Justice Dilip B Bhosale in his order staying the bail order said, “It is pertinent to note that on this application, the learned Judge did not make any endorsement and he proceeded to hear the case on merits and enlarged the accused on bail. I would not like to make any comments at this stage on merits of the order passed by learned Judge. I may however observe that the manner in which the learned Judge has shown the haste in releasing the accused on bail ignoring the nature of offence allegedly committed by the respondent accused and the fact that the crime came to be registered against these accused by virtue of the order of the Supreme Court dated 17.2.2017, I have my reservations about the bonafides/intention of the Learned Judge who is about to retire on 30.4.2017.”
SC Refuses To ‘Review’ Death Penalty On Man Who Raped 4-Yr-Old Child
Date: 03 May, 2017
Vasanta Sampat Dupare was awarded death sentence by additional sessions judge, Nagpur for raping and causing death of a 4-year old girl. He had filed a review petition to convert the death sentence to life imprisonment. However, the Supreme Court bench comprising Justice Dipak Misra, Justice RF Nariman and Justice UU Lalit dismissed his appeal and confirmed the death penalty awarded by the high court.
The court observed that the aggravating circumstances, namely extreme depravity and the barbaric manner in which the crime was committed and the fact that the victim was a helpless girl of four years, clearly outweigh the mitigating circumstances now brought on record.
Sexual Harassment Victims Should Ideally Get Case Info Within 48 Hours: CIC
Date: 06 May, 2017
According to a recent ruling by the Central Information Commission, sexual harassment victims should get the information about the case within 48 hours under the Right to Information (RTI) Act, as it pertains to their “life and liberty” under Section 7(1) of the Act.
The appeal was filed by a woman working at the Council of Certificate and Industrial Research who had claimed that she was sexually harassed by another scientist in the same organization. After filing an RTI to know that status of her application, she was denied on the grounds that it was under investigation. She also pointed out towards the bias displayed by the authorities.
The commission observed that, “Everyone who has obstructed furnishing of information to the complainant-victim should be liable for action for violating both of these Acts, which formed foundation of the complaint. The Commission considers that the complaint is established and finds there is a strong need to initiate penal proceedings under section 20 of RTI Act.”
Justice Mukta Gupta, in the case of State v Sunil, set aside an order of probation given to an accused convicted under POCSO Act on the grounds that the minimum period of imprisonment was provided under the statute. The Delhi High Court noted that reliefs under the Probation of Offenders Act cannot be granted in cases where the minimum period of incarceration is prescribed by the Statute.
Sunil was sentenced to 3 years of imprisonment under Section 8 of POCSO, however, within 2 weeks of his conviction, he was released on probation for one year on account of good behavior. Aggrieved, the State preferred an appeal against the order of probation. The appeal was allowed.
While hearing the case of State of Chattisgarh v Dilip Verma, the Chattisgarh High Court noted that the Additional Sessions Judge trying cases under the POCSO would have the same power as a Special Judge (POCSO) to award compensation to the victim.
In addition to awarding Dilip Verma rigorous imprisonment for three years and a fine of Rs. 1000, he was also directed to pay Rs. 100000 as compensation to the victim.
The Court placed reliance on Section 33(8) of the POCSO which confers power on the Special Judge (POCSO) to direct payment of compensation to the victim for rehabilitation or the mental trauma caused. Reliance was also placed on sub-rules 1 to 6 of Rule 7 of the Rules of 2012 which states providing compensation to the victim. A conjoint reading of these provisions shows that the Special Judge (POCSO) is empowered to award compensation.
While quashing criminal proceedings against Principal of a Kendriya Vidyalaya School, Justice Sanjay K. Agarwal observed that prosecuting agency should be circumspect in initiating prosecution under Section 21(2) of the POCSO Act against the In-charge/Head of the Institution and should allow them sufficient/reasonable time to enquire and report the sexual harassment complaints in the institution.
The court observed, “The Principal is the key post in the running of a school. Head of the Institution is entitled to and should be allowed sufficient/reasonable time to find out the correct facts by making an enquiry at the institutional level before reporting the matter to make the reporting of an offence responsible by the Head of Institution based on material collected, which legislature has intended while enacting the provision under Section 21(2) of the POCSO Act and therefore the prosecuting agency should be circumspect in initiating prosecution under Section 21(2) of the POCSO Act against the In-charge of the institution.”
The High Court of Delhi quashed an FIR registered against a man under Sections 354D (stalking), 341(punishment for wrongful restraint), 506 (punishment for criminal intimidation) and 509 (word, gesture or act intended to insult the modesty of a woman) on the basis of a settlement deed between the parties. The complaint had been filed after the accused had stalked the complainant, who had earlier been in a relationship with the accused, and had threatened to make public some of her private photographs.
Justice P.S. Teji observed that, “It is a well settled law that where the High Court is convinced that the offences are entirely personal in nature and therefore do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, pursuing prosecution would be waste of time and energy.”
The High Court of Delhi upheld the conviction and sentence of Deepak, who was convicted for raping his 8-year old step-daughter. As there was a delay in reporting the matter to the police as well as contradictions in the statement of the minor girl to seek acquittal, the accused had relied on these points.
However, the court observed that, “these minor aberrations will not discredit her otherwise reliable version.” Justice Mukta Gupta also observed that, “It is well settled that even on the uncorroborated testimony of the prosecutrix if the same is reliable, conviction for an offence of rape can be based…In the present case the version of the prosecutrix is duly corroborated by her grand-mother, sister and her MLC. Further even as proved by the prosecution, the prosecutrix was in the company of the appellant since the evening of 5th February, 2010 till the morning of 6th February, 2010 and thus in terms of Section 106 of the Evidence Act onus shifts upon the appellant to explain as to how she was ravished at the time when she was in his custody, which he has miserably failed to do.”
A 23-year old man named Hunny was sentenced to 5-year rigorous imprisonment and fined Rs. 5,000 for kidnapping and sexually assaulting a 5-year old girl. The victim and her 10-year old sibling were going to school when the accused kidnapped her, sexually assaulted her and also slapped her. However, the accused filed an appeal before the Delhi High Court and the case came up for hearing before Justice SP Garg. Embarrassed by the nature of questions asked during her cross-examination, the victim took the help of a baby doll that was given to her “in order to keep her occupied”, to answer questions.
The court dismissed the appeal by stating, “Obviously, the child was reluctant to answer embarrassing questions which were derogatory in nature. The court can understand shyness of tender aged girl to answer dirty or vulgar questions. She has given answers to other questions. Nevertheless, she had categorically pointed out as to what the appellant had done with her by referring it to the doll in her hand. She had conveyed as to what was done by the appellant with her. Nothing more can be expected from a child aged around five years considering her limited understanding.”
Praveen aka Bablu had contested that he was falsely implicated by the parents of a minor girl in a rape case to settle scores with him. However, the High Court of Delhi refused to set aside the conviction and the sentence awarded to him.
Justice Sunil Gaur observed, “It is pertinent to note that it has come in the evidence that appellant was residing in the house of prosecutrix and was having cordial relations with the family of prosecutrix and the above-said evidence remains unchallenged and so, in the instant case, no prudent person can conclude that appellant has been falsely implicated because he objected to children of prosecutrix’s mother defecating in front of house or because of quarrel on this count. Neither parent would stake the honour of their minor daughter and the family, to level such a serious accusation of rape against appellant, to settle the scores on account of such a trivial quarrel, particularly when the relations were cordial.”
Hearing the case in which the accused husband forced the wife to commit suicide after allegations of mental and physical torture were leveled against him, the Chhattisgarh High Court refused to quash the case. Justice Goutam Bhaduri observed that if the accused had created circumstances that led to a situation which made a person feel totally frustrated and, thereafter, commit suicide; it may amount to abetment punishable under Section 306 of the Indian Penal Code.
The court observed, “In a given set of circumstances, an inference has to be drawn from the circumstances and it is to be determined whether circumstances had been such which, in fact, had created the situation that a person felt totally frustrated and committed suicide.”