List of Current Affairs

Source: Karnataka High Court

Why in News?

Recently, the Karnataka High Court in the matter of Ninganna & Ors. v. State by Nanjangud Rural Police has held that the Trial Court cannot morally convict the accused in the absence of legal proof.

What was the Background of Ninganna & Ors. v. State by Nanjangud Rural Police Case?

• In this case, a married woman was suspected of having an affair with accused no. 3, the son of accused 1 and 2.
• As per prosecution, all three accused invited the woman to their house and set her on fire.
• She succumbed to the burn injuries a week later.
• The trial court found the evidence brought on record by the prosecution established its case beyond reasonable doubt and thus convicted all three accused for the offence under Section 302 of the Indian Penal Code, 1860 (IPC) read with Section 34 of IPC.
• Thereafter, an appeal was filed before the Karnataka High Court for setting aside the judgment of conviction passed by the Trial Court.
• In appeal, they argued that the trial court ignored the fact that none of the eyewitnesses supported the prosecution case, and it relied on hostile witnesses to pass a conviction order.
• Allowing the appeal, the High Court set aside the judgment of the Trial Court.

What were the Court’s Observations?

A bench of Justices Sreenivas Harish Kumar and S Rachaiah observed that the Trial Court cannot morally convict the accused in the absence of legal proof.

It was further stated that though the trial court observed that the prosecution witnesses have not supported, it has proceeded to hold that the defence ought to have proved its case which is against the principles of criminal jurisprudence.

What are the Relevant Legal Provisions Involved in it?

Section 302of IPC

• Section 302 of IPC deals with the punishment for murder.
• It states that anyone who commits murder can be punished with the death penalty or life imprisonment and shall also be liable to fine.
• Murder is dealt with in Section 300 of IPC and this offence is non-bailable, cognizable, and triable by the Court of Sessions.

Section 34 of IPC

About:

• Section 34 IPC deals with the acts done by several persons in furtherance of common intention.
• It states that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons shall be liable for that act in the same manner as if it were done by him alone.
• Under the ambit of this section, every person engaged in the commission of a crime is held responsible by virtue of his or her participation in the criminal act.

Essential Elements:

• The following are the major elements of this section:
  • A criminal act must be done by several persons.
  • There must be a common intention of all to commit that criminal act.
  • Participation of all the persons is necessary in the commission of the common intention.

Case Law:

• In the case of Hari Om v. State of Uttar Pradesh (1993), it was held that it is not necessary that there must be a prior conspiracy or pre-meditation, the common intention can be formed in the course of the occurrence as well.

Source: Kerala High Court

Why in News?

Recently, the Kerala High Court in the matter of Parthasarathi M v. State of Kerala has held that there need not be any strict proof as regards the age of the model in every case of child pornography.

What was the Background of Parthasarathi M v. State of Kerala Case?

• In this case, several petitions were filed before the Kerala High Court by several persons.
• The petitioners sought to quash the charges against them under Section 15 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) and Section 67 of the Information Technology Act, 2000 (IT Act).
• One of the main arguments raised by the petitioners was that the age of the persons in the pornographic material alleged to have been recovered from them, cannot be proven to be below 18 years.
• The High Court analyzed the facts of their cases individually and passed judgment based on its conclusions.

What were the Court’s Observations?

• Justice K Babu observed that the provisions dealing with the offence of child pornography punishable under Section 15 of the POCSO and the offence of publishing or transmitting material in electronic form depicting children engaged in sexually explicit acts or conduct punishable under the IT Act are to be constructed emphasizing the viewpoint of the audience, the society at large. There need not be any strict proof as regards the age of the model in every case of child pornography.
• It was further held that the identity of the model also need not be established by the prosecution as it is practically impossible, and that insisting on the same would defeat the objective of the POCSO.

What are the Relevant Legal Provisions Involved in it?

Section 15 of POCSO

• This Section deals with the punishment for storage of pornographic material involving child. It states that—

(1) Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography, shall be liable to fine not less than five thousand rupees and in the event of second or subsequent offence, with fine which shall not be less than ten thousand rupees.

(2) Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court, shall be punished with imprisonment of either description which may extend to three years, or with fine, or with both.

(3) Any person, who stores or possesses pornographic material in any form involving a child for commercial purpose shall be punished on the first conviction with imprisonment of either description which shall not be less than three years which may extend to five years, or with fine, or with both and in the event of second or subsequent conviction, with imprisonment of either description which shall not be less than five years which may extend to seven years and shall also be liable to fine.

Section 67 of the IT Act

• This Section deals with the punishment for publishing or transmitting obscene material in electronic form.
• It states that whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.

Source: Gauhati High Court

Why in News?

Recently a bench of Justice Kaushik Goswami held that “To bring home the charge of penetrative sexual assault, full penetration of the penis or full insertion of any object or part of body into the vagina is not required; even part penetration/insertion, which may not necessarily cause injury or bruises to the genitals, is sufficient for the purpose of the law”.

• The Gauhati High Court gave this observation in the case of State of Mizoram v. Lalramliana and Anr.

What was the Background of the State of Mizoram v. Lalramliana and Anr Case?

• The case was registered under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) based on an FIR lodged by the informant victim, a 13-year-old girl.
• She alleged that on 5th September 2016, the accused, with whom she stayed for her primary education, sexually assaulted her in a jhum hut on the way to Damcherra, where he forcibly touched her breast and private parts and inserted his finger into her vagina.
• The Court of Special Judge, POCSO, acquitted the accused/respondent No. 1, giving him the benefit of doubt.
• Hence, the victim preferred an appeal before the High Court.

What is the Court’s Observation?

• The court allowed the appeal stating that “In a case where there was superficial digital insertion, a medical examination would not necessarily detect any sign of physical injuries in the genital area of the child. Additionally, superficial digital insertion may not cause tear of the hymen”.
  • In view of the above, charge of penetrative sexual assault is made out the moment there is some degree of insertion. Therefore, non-tear of the hymen is of no consequence.

What is Penetrative Sexual Assault under POCSO?

• About:
  • POCSO Act was enacted on 19^th June 2012 and enforced on 14^th November 2012 to specifically deal with sexual crimes against children in India.
  • It defines different forms of sexual assault, prescribes stringent punishments, and outlines child-friendly procedures for reporting, investigation and trial of such offenses.
  • One of the most serious offences covered under POCSO is Penetrative Sexual Assault against children.
• Penetrative Sexual Assault:
  • Section 3 of the POCSO Act defines Penetrative Sexual Assault.
  • It includes inserting any object or body part into the vagina, urethra, anus or mouth of a child, or applying mouth to the same body parts of the child.
  • It also covers making the child perform such acts on the offender or another person. Any form of penetration, however slight, is considered Penetrative Sexual Assault.
• Aggravated Penetrative Sexual Assault:
  • Section 5 lists out certain situations that make a Penetrative Sexual Assault an "aggravated" offence attracting even higher punishments:
    • Assault by a police officer, member of armed forces, public servant, staff of a children's home/hospital
    • Assault on a child under 12 years of age
    • Assault resulting in physical/mental incapacitation, pregnancy, sexually transmitted disease
    • Repeated assaults on the same child
    • Assault committed by a member of the child's family/relative/person in a position of trust
    • Use of deadly weapons, burns, acid attack etc during the assault
• Punishments Under POCSO:
  • For Penetrative Sexual Assault, Section 4 of the POCSO Act prescribes rigorous imprisonment of not less than 10 years which may extend to life imprisonment, along with fine.
  • In case of Aggravated Penetrative Sexual Assault, Section 6 prescribes the minimum punishment is increased to rigorous imprisonment of 20 years which may extend to life imprisonment.

What are the Landmark Cases Cited in this Case?

• Ganesan v. State represented by its Inspector of Police (2020):
  • Supreme Court held that “In a case of penetrative sexual assault under POCSO Act, conviction can be made on the basis of the sole testimony of the victim”.
• Bhupen Kalita v. State of Assam (2020):
  • Gauhati HC held that “In order to bring home the charge of penetrative sexual assault, full penetration of the male organ or any part of the body into the vagina is not necessary”.