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POCSO case: Lacking strong evidence, The Supreme Court overturned the convictions and acquitted the offenders.

CASE TITLE- Nirmal Premkumar & Anr. Vs State Rep. By Inspector of Police

CASE NUMBER- Criminal Appeal No. 1098 of 2024

DATED ON- 11.03.2024

QUORUM- Hon’ble Justice Dipankar Datta, Hon’ble Justice K.V. Viswanathan and Hon’ble Justice Sandeep Mehta

FACTS OF THE CASE

The victim is a minor girl aged 13 years, was an eighth-grade student of a Higher Secondary School. The first incident occurred, A-1(Accused considered as ‘A’), being Tamil teacher entered the classroom, approached the victim, and forcefully presented her with roses, jasmine flowers, and chocolate in the presence of fellow students. Despite the victim’s refusal to accept the offerings, A-1 resorted to twist her arms and coerced her into accepting the same. The second incident took place, when the victim was called by A-2, being Social Studies teacher, through a girl student, A-2 enquired from the victim why was she refusing to talk to A-1 and that if she continues to not talk to him, A-1 would die and she would be held responsible. The third incident took place, when another teacher informed the victim that she had been called by A-1. A-1 inquired why the victim was not talking to him. In response, she expressed fear citing potential trouble with her family if they were to discover the situation. A-1 asserted that the victim’s family members would be powerless to address the situation even if they became aware of it. The victim’s parents learnt of her distress resulting from the three incidents. A First Information Report was lodged against three teachers for offences under sections 11(i) and 12 of the POCSO Act. The Special Court convicted A-1 and A-2 and sentenced them. Upon challenge, The High held that the findings recorded by the Special Court did not warrant any interference and that the appeal was devoid of any merit, hence, it was dismissed.

ISSUES RAISED

  • Whether the evidence on record is sufficient to record conviction against A-1 and A-2?
  • Should the answer to the above be in the affirmative, what should be the appropriate punishment to be imposed on A-1 and A-2?

LEGAL PROVISIONS

  • Section 11(i) of POCSO Act, 2012
  • Section 12 of POCSO Act, 2012
  • Section 506 of Indian Penal Code, 1860

CONTENTIONS OF THE APPELLANT

Learned counsel appearing on behalf of the appellants contented that, the prosecution has not proved its case beyond reasonable doubt and the Court ought to have acquitted the appellants. Several contradictions arise on a bare reading of the oral evidence were brushed aside because the Special Court and the High Court were too obsessed with the thought that a teacher had indulged in sexual harassment of a girl child. Moreover, it was contented that the prosecution could not prove the case beyond a reasonable doubt, as none of the witnesses other than the victim testified to witnessing A-1 giving flowers and chocolate to her. The evidence of the victim was thoroughly unreliable and should not have been given any credence. Further, the contradictions in the testimony of the victim cast serious doubt as to whether the actions of A-1 and A-2, as framed by the prosecution, could be said to carry ‘sexual intent’. Learned counsel, highlighting the flaws and contradictions in the impugned decisions, urged this Court to accept the appeal and acquit A-1 and A-2.

CONTENTIONS OF THE RESPONDENT

Learned senior counsel appearing for the State submitted that the High Court took pains to reassess the evidence in arriving at its concurrence with the Special Court’s judgment and order.  It was emphasised that teachers occupy a position of immense trust and responsibility in the life of a student also guardians with whom parents entrust the care of their child. Thus, the desecration of an educational institution by such acts of sexual harassment not only grimly underlines the moral depravity of the accused, but also violates the sanctity of the pursuit of education, which has larger ramifications for society as a whole, inasmuch as such incidents can act as a deterrent in the education of young girls. No case having been set up by A-1 and A-2 for interference, the counsel urged this Court to dismiss the appeal.

COURT’S ANALYSIS AND JUDGEMENT

 

The court analyzed that when considering the evidence of a victim subjected to a sexual offence, If the Court deems such evidence credible and free from doubt, there is hardly any insistence on corroboration of that version. The court held the prosecution’s case stands with lacklustre efforts, which revealed a poorly executed endeavour that given rise to substantial doubts regarding the integrity of the case. The contradictions present in the depositions of prosecution witnesses, including the victim, undermined the credibility of the prosecution version. The foundation of the case crumbles under the weight of doubt. The victim’ statements appeared to the court muddled and prevaricated, much less coherent. The inconsistencies and contradictions compelled the court to reject the case set up by the prosecution before the Special Court with which the High Court concurred adopting a flawed approach. The court held the case unsuitable for securing a conviction under section 11 read with section 12 of the POCSO Act, for enough missing links present in the case to extend the benefit of doubt to A-1. As regards A-2, the court did not consider that the prosecution was successful in proving that the conduct of A-2 was a case of criminal intimidation punishable under section 506 of I.P.C. Therefore, his conviction too was also set aside. The appeal was allowed and the appellants were acquitted.

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Judgement Reviewed By- Shreyasi Ghatak

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Supreme Court Upholds Unconstitutionality of Electoral Bond Scheme Due to Violation of Right to Information and Equality Before Law

Case Name: State Bank of India v. Association for Democratic Reforms and Others

Case Number: Miscellaneous Application No. 486 of 2024 in Writ Petition (Civil) No. 880 of 2017

Date of Order: March 11, 2024

Quorum: The bench comprised the following justices: Chief Justice (CJI) Dr. Dhananjaya Y Chandrachud, Justice Sanjiv Khanna, Justice B.R. Gavai, Justice J.B. Pardiwala, Justice Manoj Misra

FACTS OF THE CASE

In February 2024, the Supreme Court of India declared the Electoral Bond Scheme and parts of the Finance Act 2017 unconstitutional. The Court found that non-disclosure of political funding violated citizens’ right to information under Article 19(1)(a) and that unlimited corporate funding of political parties was arbitrary, violating Article 14. The State Bank of India (SBI), responsible for handling Electoral Bonds, was ordered to submit detailed information on bonds purchased and redeemed from 12 April 2019 to 15 February 2024. This information was to be provided to the Election Commission of India (ECI) by 6 March 2024 and published by the ECI by 13 March 2024. SBI requested an extension until 30 June 2024, citing difficulties due to the information being stored in separate silos and the complexity of matching donor and redemption details. The Supreme Court rejected this request, emphasizing that the necessary information was available and that confidentiality provisions did not preclude court-ordered disclosure. The Court directed SBI to comply by 12 March 2024 and the ECI to publish the information by 15 March 2024. SBI’s Chairman and Managing Director were required to file a compliance affidavit. The Court warned of potential contempt proceedings for non-compliance but refrained from immediate action.

ISSUES

  • Whether the Electoral Bond Scheme, which allows anonymous donations to political parties, violates citizens’ right to information under Article 19(1)(a) of the Constitution.
  • Whether the amendments introduced by the Finance Act 2017 to the Companies Act 2013, permitting unlimited corporate funding of political parties, are arbitrary and violate Article 14 of the Constitution, which guarantees equality before the law.
  • Whether the State Bank of India (SBI) should disclose detailed information on the purchase and redemption of Electoral Bonds to ensure transparency in political funding, and whether SBI’s request for an extension to comply with the Supreme Court’s disclosure order was justified.

LEGAL PROVISIONS

Article 19(1)(a) of the Constitution of India:

This article guarantees the right to freedom of speech and expression, which includes the right to information. The petitioners argued that the Electoral Bond Scheme violates this right by allowing anonymous political donations, thereby depriving citizens of information about political funding.

Article 14 of the Constitution of India:

This article guarantees equality before the law and equal protection of the laws. The petitioners contended that the amendments allowing unlimited corporate funding of political parties are arbitrary and violate this principle of equality.

 Representation of the People Act, 1951:

The amendments introduced by the Finance Act 2017 to this act facilitated anonymous donations through Electoral Bonds. The constitutionality of these amendments was challenged.

Income Tax Act, 1961:

The Finance Act 2017 also amended this act to exempt political parties from disclosing donations received through Electoral Bonds in their contribution reports, thus enabling anonymity.

Companies Act, 2013:

The amendments to this act removed the cap on corporate donations to political parties and eliminated the requirement for companies to disclose the names of the political parties to which they donated. These changes were challenged as being arbitrary and in violation of Article 14.

Finance Act, 2017:

This act introduced the Electoral Bond Scheme and amended the above statutes to incorporate provisions facilitating anonymous donations to political parties. The overall constitutionality of these amendments was questioned.

CONTENTIONS OF THE APPELLANT

SBI argued that the information required by the Supreme Court regarding the purchase and redemption of Electoral Bonds was maintained in two separate silos to ensure confidentiality. The process of “decoding the Electoral Bonds and matching the donor to the donations” was complex and time-consuming. They emphasized that the Electoral Bond Scheme mandated confidentiality of donor information, and the data was stored securely in separate physical silos, necessitating a detailed and labor-intensive matching process to compile the required information. SBI highlighted several operational challenges that hindered immediate compliance with the Court’s order. They pointed out that the information on bond purchases, including KYC details, was not maintained in a digital format within the core banking system. The details were instead kept in sealed covers at designated branches and periodically sent to the Mumbai main branch. Similarly, details of bond redemptions by political parties were stored separately. The task of manually matching over 22,000 bonds with their corresponding redemption data, totaling around 44,000 data sets, was argued to be extremely resource-intensive and time-consuming. Based on the operational difficulties and the volume of data involved, SBI sought an extension until 30 June 2024 to comply with the Supreme Court’s order. They contended that while they were committed to fulfilling the Court’s directive, the complexity of the task and the need to maintain the integrity and confidentiality of the information required additional time. SBI assured the Court that the matching of information and subsequent disclosure could be completed within this extended timeframe, allowing for accurate and thorough compilation of the data. SBI’s contentions aimed to explain the practical difficulties in immediate compliance and sought the Court’s understanding and additional time to meet the disclosure requirements fully.

CONTENTIONS OF THE RESPONDENT

The respondents argued that the Electoral Bond Scheme violated the citizens’ right to information under Article 19(1)(a) of the Constitution. They contended that the anonymity provided by the scheme deprived citizens of essential information regarding political funding, which is crucial for a transparent democratic process. The lack of transparency in the sources of political donations hindered the voters’ ability to make informed choices, thereby undermining the democratic process. The respondents challenged the amendments introduced by the Finance Act 2017 to the Representation of People Act 1951, the Income Tax Act 1961, and the Companies Act 2013. They argued that these amendments were arbitrary and violated Article 14 of the Constitution, which guarantees equality before the law. By allowing unlimited corporate funding of political parties without disclosure, the amendments created an uneven playing field, favoring larger, well-funded political parties and disadvantaging smaller parties and independent candidates. The respondents contended that the information regarding the purchase and redemption of Electoral Bonds was readily available with SBI, despite being maintained in separate silos. They argued that SBI’s plea for an extension of time was unjustified and a tactic to delay compliance with the Supreme Court’s order. The respondents emphasized that the matching of donor and redemption details was feasible and necessary to uphold the Court’s directive for transparency in political funding. The respondents stressed that the Supreme Court’s order for the disclosure of Electoral Bond transactions was in the public interest. They argued that timely compliance with the Court’s directive was essential to ensure accountability and transparency in political financing. The respondents pointed out that the Supreme Court had already recognized the significance of this issue by declaring the scheme and the related amendments unconstitutional. Therefore, SBI’s request for an extension was viewed as an attempt to undermine the Court’s efforts to enhance transparency and accountability in the electoral process. Given SBI’s failure to comply with the Supreme Court’s order within the stipulated timeframe, the respondents invoked the Court’s contempt jurisdiction. They argued that SBI’s non-compliance amounted to willful disobedience of the Court’s directive, warranting contempt proceedings. The respondents urged the Court to take strict action against SBI to uphold the authority of the judiciary and ensure adherence to its orders. These contentions underscored the respondents’ insistence on transparency in political funding and their opposition to any delays in the implementation of the Supreme Court’s order.

COURT’S ANALYSIS AND JUDGEMENT

The Supreme Court critically examined SBI’s request for an extension of time to comply with its order. The Court noted SBI’s explanation regarding the complexities involved in matching donor information with bond redemption details due to the data being stored in two separate silos. However, the Court emphasized that the information required for compliance was already available, albeit in separate forms, and that the matching process, while detailed, was not an insurmountable task. The Court addressed the issue of confidentiality as stipulated in the Electoral Bond Scheme. It highlighted Clause 7(4) of the scheme, which mandates that information furnished by the buyer of an Electoral Bond should be treated as confidential and only disclosed upon a court’s directive or a law enforcement agency’s registration of an offense. The Court reiterated that, as a competent judicial authority, its directive for disclosure must be adhered to by SBI.

The Court found SBI’s arguments about operational challenges unconvincing. It pointed out that the Electoral Bond Scheme itself, as well as the FAQs published by SBI, indicated that necessary information, such as KYC documents and transaction details, was collected and maintained meticulously. The Court highlighted that both donor and redemption information were systematically stored and could be accessed and matched with reasonable effort. The Supreme Court underscored the significance of its earlier judgment declaring the Electoral Bond Scheme and related amendments unconstitutional. It reiterated that the lack of transparency in political funding violated citizens’ right to information under Article 19(1)(a) of the Constitution. Ensuring transparency in political funding was deemed essential for maintaining the integrity of the democratic process. The Court emphasized the urgency and public interest in disclosing the details of Electoral Bond transactions.

The Court dismissed SBI’s request for an extension of time until 30 June 2024. It mandated that SBI must disclose the required details by the close of business hours on 12 March 2024. The Election Commission of India (ECI) was instructed to compile and publish this information on its official website by 15 March 2024. The Court also required SBI to submit an affidavit of compliance from its Chairman and Managing Director by the stipulated deadline. While the Court refrained from exercising its contempt jurisdiction immediately, it issued a stern warning to SBI. The Court stated that if SBI failed to comply with its directives within the specified timeframe, it would consider initiating contempt proceedings for willful disobedience of its order.

The Supreme Court, thus, dismissed SBI’s Miscellaneous Application for an extension of time and directed immediate compliance with its earlier judgment. The Court reinforced the constitutional mandate for transparency in political funding and upheld the citizens’ right to information, ensuring that the details of Electoral Bond transactions were disclosed in a timely manner.

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Judgement Reviewed by- Shruti Gattani

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“Supreme Court Upholds Conviction”: Rejects Juvenility Claim in 1982 Murder Case

Case Title – Vinod Katara vs. State of U.P.

Case No. – Writ Petition (Crl.) No(s). 121 of 2022

Dated on – 5th March, 2024

Quorum – Hon’ble Mr. Justice B.R. Gavai and Hon’ble Mr. Justice Sandeep Mehta

 

Facts of the Case –

Vinod Katara, was convicted along with three co-accused for murder on September 10, 1982, and sentenced to life imprisonment by the trial court on January 6, 1986, under Section 302 read with Section 34 of the IPC, 1860. Upon appeal, the Allahabad High Court suspended the petitioner’s sentence and released him on bail, but later, on March 4, 2016, the High Court dismissed the appeal and affirmed the trial court’s conviction and sentence, leading to his custody. The petitioner’s subsequent Special Leave Petition to the Supreme Court was dismissed on August 16, 2016. Pursuant to a High Court order directing the Juvenile Justice Boards in Uttar Pradesh to determine the ages of certain convicts potentially juveniles at the time of their offenses, a Medical Board assessed the petitioner on December 10, 2021, estimating his age to be around 56 years. The petitioner claimed he was a juvenile at the time of the crime and sought verification of this claim. Upon direction, the Sessions Court, Agra, conducted an inquiry and reported that the petitioner was born on July 2, 1960, making him a major at the time of the incident. This report relied on contemporaneous school records over the disputed family register and ossification test results. The Supreme Court permitted both the parties to submit their response thereto.

 

Legal Provisions –

Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015

 

Contentions of the Petitioner –

The petitioner contended that the conclusions drawn by the Additional District and Sessions Judge regarding the petitioner’s age were unsustainable, arguing that the earlier medical report dated December 10, 2021, which estimated the petitioner’s age to be around 56 years, should be given precedence. The petitioner asserted that the school records relied upon by the Additional District and Sessions Judge were unreliable, as the concerned school principal did not verify these documents nor was examined in evidence. Additionally, the petitioner claimed that the family register, despite alleged overwriting, should be considered authentic, indicating that the petitioner was born in 1968 and thus a juvenile at the time of the incident. The petitioner invoked Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, suggesting that in the absence of reliable school records, the court should rely on other documentary evidence or the Medical Board’s opinion. Consequently, the petitioner argued that the petitioner was entitled to relief and release from prison based on the claim of juvenility at the time of the offense.

 

Contentions of the Respondent –

The respondent vehemently opposed the petitioner’s claims, asserting that the inquiry conducted by the Additional District and Sessions Judge was thorough and based on detailed evidence collection and analysis. The respondent argued that the contemporaneous school records, which indicated the petitioner’s date of birth as July 2, 1960, were credible and demonstrated that the petitioner was not a juvenile at the time of the offense. The respondent maintained that the family register presented by the petitioner was forged and unreliable, as confirmed by the testimony of the Assistant Block Development Officer and the lack of original records in the Panchayat. Additionally, the respondent pointed out that the ossification test, which the petitioner relied upon, was uncertain and unreliable for age determination after 25 years, as per the Medical Board’s opinion. The respondent concluded that the inquiry report’s findings, supported by substantial evidence, were accurate and that the petitioner was not entitled to the claimed relief, thus urging the court to dismiss the writ petition.

 

Court Analysis and Judgement –

The Court meticulously reviewed the evidence and the inquiry report submitted by the Additional District and Sessions Judge. The Court noted that the inquiry involved detailed examination of both documentary evidence and witness testimonies. The family register presented by the petitioner was deemed forged and unreliable, especially given the inconsistencies noted, such as the improbable age difference between the petitioner and his wife. Furthermore, the school records, which indicated the petitioner’s birth date as July 2, 1960, were found credible and consistent. The Court acknowledged the Medical Board’s opinion that ossification tests are unreliable for determining age beyond 25 years. Emphasizing the hierarchy established in Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, which prioritizes school records over ossification tests for age determination, the Court concluded that the petitioner was not a juvenile at the time of the offense. Consequently, the writ petition was dismissed, and the Court upheld the findings of the inquiry report and the previous judicial orders.

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Judgement Reviewed By- Anurag Das

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Cheque Dishonour Litigation: Interim compensation authorised by the Supreme Court

CASE TITLE- Rakesh Ranjan Shrivastava Vs The State of Jharkhand & Anr.

CASE NUMBER- Criminal Appeal No. 741 Of 2024

DATED ON- 15.03.2024

QUORUM- Hon’ble Justice Abhay S. Oka

FACTS OF THE CASE

The appellant and the respondent formed various companies regarding profit sharing. The appellant issued an appointment letter and an offer was given to the respondent on a post of Managing Director of the company M/s Thermotech Synergy Pvt. Ltd. and on behalf of a proprietary concern, M/s Tech Synergy. The appellant formed a partnership with Rahul Kumar Basu, in which the respondent was shown as an indirect partner. There was an agreement to pay the respondent, 50 per cent of the profit. One more partnership firm came into existence wherein the appellant, respondent, and Rahul Kumar were shown as partners. The appellant agreed to give a 50 per cent share in the profits of another company but, he did not pay the amounts due to the respondent. Therefore, a legal notice was issued to the appellant by the respondent. The appellant was liable to pay the total amount of Rs. 4,38,80,000/- to the respondent, a civil suit was filed by the respondent in the Civil Court at Bokaro for recovery of the said amount. Thereafter, after a meeting, the appellant agreed to pay a sum of Rs. 4,25,00,000/- to the respondent, and two cheques in the sum of Rs. 2,20,00,000/- and 2,05,00,000/- respectively were handed over to the appellant. The first cheque was dishonoured and a complaint was filed for commission of an offence punishable under Section 138 of the N.I. Act on which the learned Magistrate took cognizance of the offence. The respondent moved an application under Section 143A of the N.I. Act against the appellant/accused to pay 20 per cent of the cheque amount as compensation. The learned Judicial Magistrate directed the appellant to pay an interim compensation of Rs. 10,00,000/- to the respondent within 60 days. The Sessions Court affirmed the order in a revision application. The said orders were challenged before the High Court. The Jharkhand High Court dismissed the petition and these orders are the subject matter of challenge in the present criminal appeal.

ISSUE RAISED

Whether the provision of sub-section (1) of Section 143A of the Negotiable Instruments Act, 1881 (for short, ‘the N.I. Act’), which provides for the grant of interim compensation, is directory or mandatory?

LEGAL PROVISIONS

Section 138 of The Negotiable Instruments Act, 1881

Section 143A (1) of The Negotiable Instruments Act, 1881

CONTENTIONS OF THE APPELLANT

The learned counsel appearing for the appellant pointed out that sub-section (1) of Section 143A of the N.I. Act uses the word ‘may’. Therefore, the provision is discretionary. The Trial Court cannot pass an order to pay interim compensation mechanically. The Court must apply its mind to the facts of the case before passing the drastic order of deposit. The existence of a prima facie case is essential for exercising the power under Section 143A. Only after prima facie consideration of the merits of the complainant’s case and defence of the accused, the Court must conclude whether a case is made out for the grant of interim compensation. In every case, the Court cannot grant 20 per cent of the cheque amount as interim compensation.

CONTENTIONS OF THE RESPONDENT

The learned counsel appearing for the respondent submitted that considering the object of Section 138 of the N.I. Act, Section 143A (1) will have to be held as mandatory. He submitted that there is a presumption under Section 139 of the N.I. Act that unless a contrary is proved, the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or liability. The question of rebutting the said presumption would arise only after the evidence is adduced. In every case, an order of payment of interim compensation must follow. Unless it is held that Section 143A (1) is mandatory, the very object of the legislature of enacting this provision will be frustrated. It was proposed to amend the N.I. Act to address the issue of undue delay in the final resolution of the cheque dishonour cases.

COURT’S ANALYSIS AND JUDGEMENT

It was summarized by the Court that first, the Court will have to prima facie evaluate the merits of the case made out by the complainant and the merits of the defence pleaded by the accused in the reply to the application. The financial distress of the accused can also be a consideration. A direction to pay interim compensation can be issued, only if the complainant makes out a prima facie case. If the defence of the accused is found to be prima facie plausible, the Court may exercise discretion in refusing to grant interim compensation. If the Court concludes that a case is made out to grant interim compensation, it will also have to apply its mind to the quantum of interim compensation to be granted. While doing so, the Court will have considered several factors such as the nature of the transaction, the relationship, if any, between the accused and the complainant, etc., but the parameters are not exhaustive. Therefore, the appeal was partly allowed by the court.

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Gauhati High Court sets aside Death Penalty and upholds Rigorous Life Imprisonment for rape and murder case

Case title:  JASHIM UDDIN BARBHUIYA Vs THE STATE OF ASSAM AND  ANR

Case no.:  Crl.A./389/2018

Dated on: 19.04.2024

Quorum:  Hon’ble. MR JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

 

FACTS OF THE CASE

On 14.03.2018, Madhuchandra Riyang lodged an FIR before the Officer in Charge of Ramnathpur Police Station, inter-alia, alleging that on this said day, i.e., 14.03.2018, his neighbour, Brojendra Riyang and the first informant were doing house repairing work and his two nieces, namely, Vishnupriya Riyang and Debarung Riyang, returned to their house and noticed another niece “X”(real name not disclosed, to protect the identity of the victim, the victim shall hereinafter be referred to as “X” in this judgment) was found lying dead with a cut on her neck and on seeing this they raised hue and cry. The first informant along with his companion Brajendra Riyang rushed to the place of occurrence and found his niece “X” lying dead with a cut on her neck. It is stated in the FIR that the elder brother of the first informant had gone to harvest Jhum (shifting cultivation), and after calling him home, the police was informed about the matter over the telephone. It is also stated in the FIR that the first informant noticed the accused Jashim Uddin Barbhuiya, running away with a blood-stained dao in his hand and therefore he believes that the accused Jashim Uddin Barbhuiya, finding the niece of the informant namely, “X” alone in the house, committed rape on her and in order to conceal evidence, he killed her by cutting her neck.

The Criminal Appeal No. 389/2018 has been registered on filing of an appeal under Section 374 of the Code of Criminal Procedure, 1973 by the appellant, Jashim Uddin Barbhuiya, impugning the judgment dated 1.10.2018 passed by the learned Sessions Judge, Hailakandi in Sessions (T-1) Case No. 60/2018. appellant has been convicted under Sections 376/302 of the Indian Penal Code as well as under Section 4 of the POCSO Act, 2012. the appellant has been sentenced to imprisonment for life for the offence of committing rape/penetrative sexual assault and to pay a fine of Rs. 10,000/- under Section 376 of the Indian Penal Code, read with Section 4 of the POCSO Act, 2012, in default of payment of fine to undergo rigorous imprisonment for 3 months. The appellant has also been sentenced to death for committing the offence of murder under Section 302 of the Indian Penal Code, and was also sentenced to pay a fine of Rs. 10,000/ under Section 302 of the Indian Penal Code, in default of payment of fine to undergo rigorous imprisonment for 3 months.

ISSUES

  • Whether the accused person, on 14.03.2018 at about 1:00 PM, at village-Betcherra under Ramnathpur Police Station committed rape on the victim ‘X’, niece of the informant Madhu Chandra Riang and thereby committed an offence punishable under Section 376 of the I.P.C.?
  • Whether the accused person, on 14.03.2018 at about 1:00 PM, at village-Betcherra under Ramnathpur Police Station committed rape on the victim ‘X’, niece of the informant Madhu Chandra Riang and thereby committed an offence punishable under Section 376 of the I.P.C.?
  • Whether the accused person, on the aforesaid date, time and place, committed penetrative sexual assault upon the victim ‘X’, a minor girl and thereby committed an offence punishable under Section 4 of the POCSO Act, 2012?

LEGAL PROVISIONS

Section 376 of The Indian Penal Code, 1860

Section 376 of the Indian Penal Code (IPC) deals with the punishment for the crime of rape. The section prescribes imprisonment for a term not less than seven years, which may extend to life imprisonment, and also includes a fine.In cases involving aggravated rape, such as when the victim is a minor, the punishment is more severe, including rigorous imprisonment for a term not less than ten years, which may extend to life imprisonment, and also includes a fine.

Section 4 of the POCSO Act, 2012

Section 4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, deals with the punishment for penetrative sexual assault on a child. Whoever commits penetrative sexual assault shall be punished with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

In cases where the penetrative sexual assault results in the child becoming pregnant, contracting a sexually transmitted disease, or suffering from mental illness, or the assault results in the death of the child or causes the child to become mentally or physically incapacitated, the punishment can be imprisonment for the rest of the natural life of the person and shall also be liable to fine.

Section 302 of The Indian Penal Code, 1860

Section 302 of the Indian Penal Code (IPC) pertains to the punishment for murder being death sentence or life imprisonment, along with a fine.It applies to individuals who commit murder, which is defined under Section 300 of the IPC.

CONTENTIONS OF THE APPELLANT

The appellant denied the truthfulness of the incriminating evidence adduced against him by the prosecution side and pleaded his innocence. He also stated that he has been falsely implicated in this case out of grudge due to a land dispute between the informant side and the present appellant, however, the appellant declined to adduce any evidence in his defence.

Mr. A. I. Uddin, learned counsel for the appellant has submitted that the prosecution side has failed to prove its case beyond all reasonable doubt. He has submitted that the prosecution case is full of doubt and conviction cannot be sustained on the basis of insufficient evidence which is available on record. The learned counsel for the appellant has also submitted that the prosecution case is based entirely on circumstantial evidence and there are several missing links in the chain of circumstances which do not lead to the only inference that the appellant is guilty of the offence with which he is charged. He has submitted that the circumstances do not point towards the guilt of the appellant only and there are gaps in between the circumstances and the appellant is to be given benefits of such gaps or doubt which the prosecution side has not been able to fill up by adducing credible evidence. Learned counsel for the appellant has submitted that though the appellant has also been convicted under Section 4 of the POCSO Act, 2012, which deals with penetrative sexual assault, however there is no evidence of any penetration by the present appellant and other ingredients of Section 4 of the POCSO Act, 2012, as well as Section 376 of the Indian Penal Code. It is submitted by the learned counsel for the appellant that merely finding stains of semen on the panty of the deceased in the forensic examination would not implicate the present appellant unless the semen found on the panty of the deceased is cross-matched with the semen of the present appellant so as to ascertain that as to whether the semen found on the panties of the deceased were of the present appellant or not. Further, it is submitted by the learned counsel for the appellant that no evidence of recent sexual assault was found on the dead body of the deceased and no spermatozoa were found inside the vagina of the deceased on medical examination which only leads to the inference that she was not subject to penetrative sexual assault before her death.

CONTENTIONS OF THE RESPONDENTS

Ms. S. Jahan, learned Additional Public Prosecutor has submitted that in this case, the circumstances from which the conclusion of guilt of the present appellant has been drawn are fully established and from the proved circumstances, no other hypothesis except the guilt of the accused is established in this case. She has submitted that from the evidence of PW-4, who is the father of the victim, as well as PW-8, who is the sister of the victim, it becomes clear that when the alleged offence occurred, the victim was alone in her house and the appellant took advantage of that and committed the gruesome act against the helpless victim. She also submitted that the conduct of the appellant prior to the occurrence of the incident is also relevant, as from the testimony of PW-6, i.e., Shri Dilip Kumar Riyang, it appears that the appellant had come in his house before the incident with a dao in his hand and had asked about the parents of the victim. It is also submitted by the learned Additional Public Prosecutor that the Executive Magistrate who conducted the inquest on the dead body of the victim also found the lower part of vagina of the victim swollen and open with scratch marks and bruises on her back and also found the neck of the victim half cut. Learned Additional Public Prosecutor also submitted that the evidence of PW-17, i.e., the doctor who conducted the post mortem examination of the dead body of the victim girl clearly shows that the death of the victim was homicidal as he also opined that the injury on the neck could have been inflicted by the dao that was recovered.

COURT’S ANALYSIS AND JUDGEMENT

The court considered as to whether the trial court was right in convicting the appellant under Section 376 of the Indian Penal Code as well as Section 4 of the POCSO Act, 2012 and whether sufficient materials are there on record to arrive at such a conclusion. The court held that there is no eyewitness to the alleged offence who could have adduced direct evidence, hence, the prosecution’s case is based on circumstantial evidence only. However, in the instant case, there appears to be no circumstantial evidence on record to conclusively prove the existence of any of the four ingredients required to for Section 4 of POCSO and 376 of IPC. PW-18 who is the doctor who conducted the post-mortem examination of the dead body of deceased ‘X’ has deposed that during post-mortem examination the external labia majora were found to be swollen and the vagina was found to be wide open. However, he has opined that there is no evidence of recent sexual intercourse as there was absence of any spermatozoa or any injury in and around the vagina. The trial court while discussing this evidence has concluded that from the swollen labia majora it is presumed that something came into forceful contact with the private parts of the deceased and contrary to the opinion of the doctors, who conducted the post-mortem examination of the dead body of the victim “X”, the trial court had presumed that the victim was raped before she was killed, only due to the swelling of the labia majora of the deceased “X”. The most important circumstance in the chain of circumstances which have been established by the prosecution witnesses is the recovery of dao from the house of the appellant which was kept beneath a table and the said recovery was made on the basis of the information given by the appellant in his statement.

Thus, in view of the discussions made and reasons stated in foregoing paragraphs, the conviction of the appellant under Section 376 of the Indian Penal Code, as well as under Section 4 of the POCSO Act, 2012 were set aside. However, the conviction of the present appellant under Section 302 of the Indian Penal Code for committing murder of the deceased ‘X’ was upheld.

In view of the above discussion, the court did not think that any of the factors in the present case discussed above warrants the award of the death penalty. There were no special reasons to impose the death penalty and the mitigating factors in the present case, in its opinion, were sufficient to place it out of the “rarest of rare” category and for the reasons aforementioned, the court was of the opinion that this is not a case where death penalty should be imposed. The appellant, therefore, instead of being awarded death penalty, was sentenced to undergo rigorous imprisonment for life.

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Judgement Reviewed by – Fathima Sara Sulaiman

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