Court Log: January – March 2017
Court Log is a quarterly chronological listing that tracks notable court cases and judgements pertaining to POCSO and other related laws addressing sexual assault and harassment.
Examine Conflict Between POCSO & IPC: SC To Centre
Date: 05 January, 2017
Nobel Prize winner Kailash Satyarthi through his organization Bachpan Bachao Andolan (BBA) filed a petition appealing Supreme Court to clear the conflict between the IPC – which terms children as those aged under 15 years, and POCSO – which terms children as those aged under 18 years.
Sexual assault below 18 years amount to rape according to POCSO whereas according to IPC if a man has sexual intercourse with his wife if she is more than 15 years old, under an exception to section 375, is not found guilty. The bench directed the government to examine the conflict and check if the anomaly is justified.
Bombay HC Finds POCSO Judge Biased Against Accused, Transfers The Case
Date: 19 January, 2017
The Bombay High Court has allowed the transfer of a POCSO case after it found out the bias of the judge against the accused. The court was hearing the application where the accused applicant alleged that despite orders of the High Court for adjournment of ongoing trial in July 2016, the POCSO judge imposed costs upon the accused for seeking adjournment. The victim was made to pay Rs. 3000. Furthermore, the POCSO judge proceeded to record certain things in his orders despite an order of adjournment pending disposal of the said criminal writ petition.
Rape Accused Dead; But SC Keeps Case Alive To Decide Victim’s Interests
Date: 21 January, 2017
The Supreme Court was mulling a ruling on if a man who sexually abuses a mentally challenged adult victim can be tried in a special child victim-friendly court under the provisions of POCSO. The case took a dramatic turn where the 38-year old woman (suffering from cerebral palsy, a major brain disorder) whose mental maturity was that of a girl aged three years was raped and the accused was dead. In ordinary course the case abates after the death of the accused, but the victim’s mother pled the court to look into the larger issue and lay down a ruling on the incident which took place seven years ago.
The mother’s lawyer Aishwarya Bhati said: “I urged the court not to close the case merely citing the death of the accused because here the issue involves the victim and not just the accused. There is a question of her relief and rehabilitation. We had also urged the court to decide on the law also, to lay down general principles as to if a man who sexually abuses an adult victim can be tried in a children’s court under the stringent provisions of POCSO Act if the victim has an under-developed brain like that of a child. There will be so many victims like her. Now the matter has been sent back to the same bench for consideration of issues and points raised by me.”
Bombay HC Blames Victim, Grants Bail To Adoptive Father Accused Of Raping Her
Date: 5 February, 2017
“She has admitted that she used to do all dirty things. It appears that she was inherently abnormal and had sexual instincts right from her childhood, in all probabilities, because of the environment and atmosphere where she lived and the conduct of her deceased mother.” This was the reasoning given by the Bombay High Court after it granted bail to a man accused of sexually assaulting his step-daughter.
The girl was 9 years old when she was adopted by the bail applicant after her mother died in 2006 due to HIV. When she was in sixth standard, her adoptive father i.e. the present applicant had sexually abused her and this trauma continued till 9.9.2015” and finally she decided to approach the Childline.
Rape Case Can’t Be Quashed On The Ground That Accused Married Victim: Karnataka HC
Date: 16 February, 2017
The Karnataka High Court, while hearing a joint petition filed by the accused and victim, observed that it has no power under Section 482 of CrPC for quashing of criminal proceedings of the case under Section 366A and 376 of Indian Penal Code and Section 6 of the POCSO Act. The joint petition stated that the accused was in love with the victim and he had convinced his parents and got their consent for his marriage with the victim.
After the victim eloped with the accused, the girl recorded a false statement under her father’s influence that the accused had raped her in a lodge. The petition also mentioned that the two were living as husband and wife.
Dismissing the petition, the high court held: “The allegations made against the petitioner No.1 squarely fall within clause Sixty of section 376 of Indian Penal Code. Hence, even though there is a settlement between the parties, and the parties are stated to have been married and are living together, the criminal proceedings initiated for the alleged offence cannot be quashed.”
Rape And Murder Of Minor Daughter: MP HC Commutes Death Sentence To Life Imprisonment
Date: 18 February, 2017
A man convicted of rape and murder of his minor daughter saw his verdict of death sentence commuted to life imprisonment by the Madhya Pradesh High Court. India is one of the 59 countries who have retained the death sentence. However, the court observed that the appellant fulfils all four objectives which State intends to achieve namely deterrence, retribution, prevention and reformation can be achieved by keeping the appellant alive.
The bench observed, “he is liable to be punished severely but it is not a case which falls within a category of rarest of rare cases. The balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances before option is exercised.”
Man Acquitted From Charges Of POCSO For Doubt Over Age Of Victim
Date: 28 February, 2017
After the prosecution failed to prove the prosecutrix was minor at the time of the incident – 30/09/2013, the Madhya Pradesh High Court exonerated the appellant from POCSO charges but maintained that his offences were punishable under section 354 of IPC. While there was no “reliable document”to prove the date of birth and the statement of the wife of appellant suggesting that she had no knowledge about the exact date of birth of her daughter, the Justice observed, “it cannot be determined that the prosecution has proved the fact of age of the prosecutrix beyond reasonable doubt.”
SC Awards Lifer To Man Who Killed Pregnant Daughter For Marrying Lower Caste Man
Date: 1 March, 2017
Gandi Dobbabasappa was convicted by the Supreme Court for murdering his daughter for marrying into lower caste, enhancing the 10-year imprisonment awarded by the Karnataka High Court to life imprisonment. While awarding him life imprisonment the bench observed, “The accused committed murder of his daughter who was in the advanced stage of pregnancy and for which he was liable to be punished with either imprisonment for life or death under Section 302 of IPC alone.”
Right To Be Forgotten: Kerala HC Asks Indian Kanoon To Remove Name Of Rape Victim From Judgment
Date: 1 March, 2017
The Kerala High Court asked indiankanoon.com, a legal portal to remove the name and personal information of a rape victim from a Kerala High Court judgement published on the site. The victim was aggrieved as her personal information was published without prior permission from the court or from her as mandated under Rule 5 of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011.
POCSO: Victim’s Identity Won’t Be Disclosed By Anyone, Including Police, Judges: Calcutta HC Issues Guidelines
Date: 8 March, 2017
While hearing an appeal against a judgement passed in July 2016, the High Court of Calcutta issued additional directives to conduct investigation and trial under the POCSO Act. The appellant, who was convicted for sexually assaulting an 11-year old girl, was contesting that the complainant had failed to prove her case beyond reasonable doubt. The court not just upheld the trial court judgement but went on to award a Rs. 75000 compensation to the victim.
The court also noted, “The aforesaid legislative mandate as interpreted by judicial pronouncements create a humanizing impact on the adversarial trial processes in child sex abuse cases and make it imperative that the privacy and other basic human rights of the child victim are scrupulously protected so as to achieve the goal of access to justice to the most vulnerable section of society, namely, children subjected to sexual abuse, in the truest sense.”
Delhi HC Refuses To Recall Order Quashing Sexual Harassment Case On The Ground Of Settlement
Date: 8 March, 2017
After the Delhi High Court had dismissed a criminal case against a person accused of sexually harassing a lady two years back on the ground that the parties have settled the matter, the girl again approached the high court stating that she was coerced into settling the matter. However, the court has refused to recall its order. The complainant girl earlier stated that her FIR was due to some misunderstanding and misapprehension but later maintained that she was kept under constant threat.
The court dismissed her application observing that, “Despite being granted an opportunity to file an additional affidavit, no details have been stated as to how and at what time and in what manner she was coerced into settling the matter.”
Girl Voluntarily Accompanying A Known Person Doesn’t Mean She Consents To Have Sex With Him: Himachal Pradesh HC
Date: 8 March, 2017
The Himachal Pradesh High Court while considering an appeal against a trial court judgement acquitting nine persons accused of raping a girl observed that a girl voluntarily accompanying a known person does not imply consent for sexual intercourse. The court convicted all the nine accused for the incident which occurred in 1989.
The court observed, “The accused, who being locals and considered by her to be of some help to her, have taken undue advantage of her loneliness and they also subjected her to sexual intercourse.” It further added that women of easy virtue or even a prostitute cannot be subjected to sexual intercourse against her will and without her consent.
“Today Is Women’s Day, At Least From This Day Onward, State Must Do Something Constructive For Victims”: Bombay HC
Date: 9 March, 2017
A 14-year old rape victim was granted Rs. 2-Lakh compensation by the state under the Manodhairya scheme after a petition was filed. However, when the petitioner’s advocate informed the court that the compensation in Goa is Rs. 10 lakh as compared to 2 lakh in Maharashtra, the court observed that the amount was “shameful, a mere formality, and it ought to be increased. The Chief Justice went on to observe that, “Today is Women’s Day, At least from this day onward, State must do something constructive for Victims.”
No Reason For Victim’s Mother To Falsely Implicate Accused At Cost Of Daughter’s Reputation: Bombay HC: Bombay HC
Date: 14 March, 2017
The perpetrator – a school van driver accused of sexually abusing a 6-year old girl within the school premises saw his bail application rejected by The High Court of Bombay. The accused denied the allegations and contended that he had been falsely implicated. However, the court observed that there existed, “no reason for the first informant to falsely implicate the applicant at the cost of dignity, honour and reputation of her daughter.”
After the lawyers of the accused claimed that neither the statement of the victim’s teacher was recorded by the Police nor the CCTV cameras in the area caught the incident, the Justice relied on Section 29 and 30 of POCSO and observed that the burden of proof is reserved under this legislation for certain offences.
Physical Relationship With Girl Aged Below 16 Is Rape, Even If There Was Love Relationship: Tripura HC
Date: 21 March, 2017
While dismissing an appeal filed by a man convicted for committing rape on a girl, the Tripura High Court made an observation that physical relationship with a minor girl aged below 16 years is rape, even if a love relationship existed between the raped accused and the girl. In the FIR and during the course of arguments it was mentioned that the accused and the prosecutrix had an affair. However, the girl in her statement stated that the accused proposed to make physical relationship but she refused, even after he gave her marriage assurance.
The court observed, “Even if there was any relation of love between the prosecutrix and the accused, she being a minor girl below 16 years, the physical relation with her amounts to rape since her consent was no consent, even if for argument sake it is accepted that she had made consent.”
