Tag: minor

-report by Zainab Khan

A bench of Bombay High court consisting of Justice A.S.Gadkari reduces the sentence of a rapist in a criminal appeal in the case of Vitthal Rajendra Jogade vs The State Of Maharashtra.

FACTS

In this case, the appellant was convicted u/s 376(2)(I) of IPC and sec 4 and 10 of POCSO Act 2012 for raping a minor girl of 11 years old. On 22nd April 2014 appellant went to the victim’s house for repairing her Cable T.V. When nobody was in the house appellant raped the girl by inserting his fingers into her vagina. On her shouting and sweating, he ran
away from the house. An FIR was lodged on the same day in Akkalkot North Police Station by the victim’s family. Further, a charge sheet was filed for the offense alleged against the appellant before Special Court. After trial and examining all witnesses, the learned Special Judge, Solapur sentenced him to rigorous imprisonment of 10 yrs and a fine of Rs. 15000 u/s 376(2)(i) of IPC and sec 4 &10 of POCSO ACT.

APPELLANT ‘S CONTENTION

Learned Adv. Shraddha D.Sawant appeared for the appellant side. She contended that the allegation put on the appellant was false. There was a land dispute between the appellant’s father and his uncle. Since the appellant’s uncle and victim’s father were close friends and therefore the allegations have been put on him. The counsel pleaded for his
innocence.

RESPONDENT CONTENTION

Learned Adv. S.S.Kaushik was appointed to represent the respondent. The witnesses were examined by the Trial Court which included the mother of the victim and her mother’s friend. Her mother’s friend had called the victim’s mother to accompany her to an agricultural field and it was after she insisted that the mother left the accused alone with the victim. The victim had also called her cousin after the incident around 2-2:30 p.m. and he had arrived, therefore he was also examined. The doctor who had conducted the medical examination was also examined and deposed that the victim had a history of sexual assault around 2 p.m. on 22nd April 2014.

JUDGEMENT

After cross-examining all the witnesses and medical reports, the charges over the appellant prove to be true. The court upheld the decision of the Special Judge, Solapur but reduces the sentence from 10 yrs to 8 yrs. The court observed-

“It is the settled position of law that, the absence of any injuries on the person of the prosecutrix who was the helpless victim of rape might not by itself discredit the statement of the prosecutrix and in such a situation the non-production of a medical report would not be of much consequence if the other evidence was believable. That, corroboration is not the sine qua non for a conviction in a rape case. That, the evidence of prosecutrix stands at higher pedestal than injured witness and needs no corroboration.”

The court relied on the judgment of Adu Ram Vs. Mukna & Ors. Reported in (2005) 10 SCC 597, which discusses the proportion between crime and punishment. The conviction of the appellant was upheld, however, the sentence for rigorous imprisonment was reduced to 8 years.

This case was for the custody of a 5-year-old boy who had lost both his parents in the COVID-19 pandemic. His grandparents had approached the High Court by filing a writ of Habeas Corpus. However, the High Court had granted the custody to the boy’s maternal aunt, who would not let the grandparents to come to the house or even meet their grandson.

Aggrieved by the decision, the grandparents had approached the Supreme Court. The Hon’ble Apex Court heard both sides and granted the custody to his grandparents.

The High Court has granted the custody to the maternal aunt on the basis that she is 46 years of age and has a stable government job. Further, she is unmarried and lives in a joint family. On the other hand, the grandfather of the child is 71 years old and a retired government employee. After comparing the situation, the High Court considered that it would be beneficial for the upbringing of the child if he lived with the maternal aunt.

However, the Supreme Court observed the above grounds are relevant but not germane. One cannot presume that the maternal aunt being young and financially stable, would take better care of the child than the grandparents. It was observed:

“One should not doubt the capacity and/or ability of the paternal grandparents to take care of their grandson. It is said that the grandparents love the interest rather than the principle. Emotionally also the grandparents will always take care better care of their grandson. Grand Parents are more attached emotionally with grandchildren………………… Being a retired person, the paternal grandparents would devote more time and take care of minor better than the maternal aunt who is serving in the government department. Income and/or the age and/or the bigger family cannot be the sole criteria to tilt the balance and not to give the custody of the grandson to the paternal grandparents.”

The Supreme Court held that if a balance is formed between the aunt and grandparents, it would certainly tilt in the favor of the grandparents. Even the minor has expressed his interest in living with his grandparents. However, while granting the custody, the Supreme Court observed that this decision does not question the ability of the maternal aunt to take proper care of the child. The decision will be subject to the final order of the proceedings under section 7 of the Guardians and wards act which is currently pending. The Hon’ble court requested the families to forget the past, act cordially and move forward for the sake of the child.

case: Swaminathan Kunchu Acharya vs State of Gujarat & Ors.