The Nagpur bench of the Bombay High Court granted bail to a man arrested for kidnapping and raping a minor girl, while observing that the alleged sexual relationship was out of attraction between the two. This raises many legal questions and is not the only one of its kind
By Dr Swati Jindal Garg
The Nagpur bench verdict has raised multiple questions on consent and also raised many eyebrows on what goes on in the mind of judges when they pass judgments that challenge set legal tenets. Justice Urmila Joshi-Phalke passed the controversial order while deciding an application filed by the accused Nitin Damodar Dhaberao who was arrested for offences punishable under Section 363 (kidnapping), 376 (rape), among others of the IPC and relevant provisions of the Protection of Children From Sexual Offences Act (POCSO), 2012.
The case pertains to a report filed by the victim’s father on August 23, 2020, when the then 13-year-old school going girl had left her house on the pretext of bringing a book, but did not return home. The complainant’s father then, along with rest of his family members searched for the missing girl in the entire neighbourhood, but to no avail. A missing report was then filed with the police. The girl was finally traced in Bengaluru after she disclosed her whereabouts in a call with her grandmother and thereafter returned home. Her statement was recorded with the police wherein she stated that she and the accused, her neighbour, had a romantic relationship, and it was he who had asked her to come along with him on the promise of marriage. She also admitted to taking ornaments and cash from her house and joining the accused, saying they had stayed at various places.
A rape case was lodged against the accused as the girl was a minor and her consent to a relationship was irrelevant owing to her age. The crime was registered at the Police Station, Anjangaon Surji, Amravati district, and the accused was arrested and the charge sheet filed.
The Court, however, shockingly, took another view and noting that though the minor girl and the accused stayed at various places, the victim, who had left her parents’ house on her own accord to meet the accused, did not make any grievance before the police that the accused had subjected her to forceful sexual intercourse. The bench also noted that: “Thus it is apparent that, out of the love affair, she joined the company of the present applicant. The applicant was also of a tender age of 26 years and out of a love affair they came together. It seems that the alleged incident of sexual relationship is out of the attraction between the two young persons and it is not the case that applicant has subjected the victim to a sexual assault out of lust.”
What is shocking about this reasoning is that while granting bail, the Court has totally failed to take into account the tender age of the victim and the fact that she was legally not in a position to give consent. The Court has also overlooked the fact that the accused is a 26-year-old, mature person and knowing the consequence of his act subjected the minor girl to sexual intercourse.
While granting bail, Justice Joshi-Phalke even though noted: “As far as merit is concerned, admittedly, the victim is 13 years of age, and her consent is not relevant. She also joined the company of the applicant (accused) and admitted her love relationship with the applicant in her statement”, she still gave more importance to the fact that the victim was a willing participant rather than seeing that the accused is old enough to influence the tender aged girl.
This is in fact, not the first time that the Nagpur Bench of the Bombay High Court has delivered a judgment that is in the news for the wrong reasons. In January 2021 too, within a span of less than a week, the High Court delivered two judgments in separate cases of child sexual abuse, Libnus vs State of Maharashtra and Satish vs State of Maharashtra that were severely criticized as being bad in law.
In the Satish case, the single bench of Justice Pushpa V Ganediwala had acquitted a 32-year-old man of grave charges under Sections 7/8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) stating that as there was no “skin-to-skin” contact, therefore, the offence of sexual assault is not made out. Section 7 of the POCSO defines sexual assault as any non-penetrative contact with the victim with sexual intent. The minimum punishment for the same is imprisonment for three years. Justice Ganediwala, however, maintained the conviction of the appellant under Section 354 of the India Penal Code, 1860 (IPC), which talks about sexual harassment and carries a minimum prison term of one year. While Section 354 prescribed two years as maximum punishment with no statutory minimum prior to the post-Nirbhaya amendments made to the criminal laws in the country, it was later amended to include some other offences as well, including stalking and voyeurism.
The allegations against the accused-appellant in this case were that he had “pressed the breast” of the 12-year-old prosecutrix, which was also proved by the prosecution. The Court, however, reasoned that requirements of Section 7 were not met as the victim’s clothes were not removed and the accused was also not able to remove her knickers because when he tried to do so, she shouted and he left the room, bolting it from outside. The Court had also said that the act of the accused can at best be termed as an act of “outraging modesty of a woman” as defined in Section 354 of IPC. The judge also held that the punishment under Section 8 of POCSO, for the offence defined in Section 7 is “disproportionate” to the seriousness of the act and, therefore, affirmed the conviction only under Section 354, IPC. The case had garnered a lot of negative attention with many objecting to the fact that a serious offender had been allowed to go scot-free on a flimsy pretext. The said judgment is also infamously known as the skin-to-skin verdict.
In the other judgment, also known as the Libnus case, the same bench acquitted a 50-year-old man who was convicted by the Special POCSO Court for his act of holding the hand of a five-year-old girl, with his pant zip open. The victim therein, had also told her mother, that the appellant had taken his penis out of his pants and asked her to sleep with him. The accused man in this case was convicted for the aggravated sexual assault under Section 10 of POCSO as well as Section 12 of POCSO in addition to Sections 354A and 448 of IPC. Aggravated sexual assault takes into account certain “aggravating circumstances”, apart from having the ingredients of Section 7 of the POCSO Act, like—the tender age of the victim or relation of trust and confidence between the victim and the abuser. Even though both the offences share a common name, the ingredients of Section 11 of POCSO do not strictly overlap with the ingredients of Section 354A, IPC, yet, the Bombay High Court set aside the conviction of the appellant under Sections 10 and 12 of the POCSO and instead convicted him under Section 354A of the IPC which is a much more diluted provision.
In this case as well, the judge, despite noting the severe minimum mandatory punishment prescribed under Section 10 of POCSO, chose to convict under Section 354A (3) of the IPC which carries a maximum prison term of only three years with no statutory minimum sentence stipulated thereunder. While disposing of the appeal, the Court also shockingly, noted that the appellant had already served five months imprisonment which was “sufficient” in view of the nature of his act and ordered his release.
Looking at all the three judgments, it seems that the Court was reluctant to impose the more severe punishment prescribed under the POCSO and instead gave the benefit of doubt to the accused which is not only shocking, but also grave taking into consideration the tender age of the victim girls. In this day and age, where the legality of the concept of minimum mandatory sentences is being challenged, can a constitutional Court really escape from its liability to convict under appropriate provision of a penal statute?
All these judgments raise certain big questions—are the courts becoming more tolerant? Is the yardstick being changed? As per law, no Court can refuse to punish an accused for any offence that falls within the ambit of the legal provisions. It is indeed a relief that the apex court, coming to the aid of the aggrieved, interfered in both the cases, but the message that was sent out by the High Courts is not only baffling, but also damaging. It cannot be denied that the decisions of the constitutional courts shape and guide the law of the land and the same cannot be done by ignoring or diluting the statutory law as well as the case law.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi
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