MOOT PROPOSITION. 1 Pa g e

Transcription

1 MOOT PROPOSITION 1. The Respondent Ganesh Gaitonde who just then graduated from the Medical College was staying with the family consisting of his parents, his brothers, his sister-in-law Smt. Samaskhi and niece Richa at Borreveli, Mumbai. His elder brother at the relevant time was working as Superintendent of Police in Nasik District.Within the same locality 3 or 4 houses away from the house of the Respondent, the Appellant Prakash Javedkar was living with his wife name, Elesabeth Javedkar, his sister Tulsi and his minor daughter Isha Javedkar, a girl aged about 11 years. The family members of the Respondent and Prakash Javedkar were on cordial relationship making frequent visits to the houses of each other. 2. Isha javedkar the victim was studying in the third standard in Helix International School along with her class-mate Richa. Isha used to come frequently to the house of the Respondent to play with Richa and her other girl friends. The Respondent developed friendship with the girls who come to his house to play with his niece Richa by narrating interesting stories from comic books. 3. On at about 4 or 5 p.m. Richa called Isha stating that her mother wanted her come to her house. Accordingly, Isha accompanied by her younger brother went to the house of Richa, but found none except the Respondent. When the two girls, namely, Isha and Richa started playing in the drawing room, the Respondent whispered something in the ears of Richa, who then told Isha that she had been asked by her uncle to take his brother outside and narrate him some stories. As soon as Richa went outside taking brother, the uncle bolted the door from inside, completely stripped off himself; removed the clothes of Isha and made her naked and asked Isha to do fellatio. Thereafter the uncle cuddled and pined Isha close to him, and slightly inserted his penis into her vulva and started sucking her lips. After few seconds he freed the girl from his clutches and thereafter put on his pyjamas and asked Isha to wear her jeans. Again the uncle longing for his lascivious passion, laid down Isha on a sofa in his drawing room and remained lying on her and closed her mouth so that the girl could not scream. A little later after wetting his sexual appetite he got up; opened the door allowed the girl to go out. While the girl was leaving the drawing hall, the uncle threatened her not to disclose this affair to anyone, otherwise his elder brother who is a high ranking police officer would mercilessly beat her parents. Isha came out of the room and told Richa as to what all happened inside the room. 1 Pa g e

2 4. In the evening of that day she told her mother Elesabeth Javedkar that the Respondent was a dirty fellow and he had asked her to suck his private part, to which her mother instructed not to go to the house of Respondent thereafter. However, Isha did not narrate the entire episode to her mother on the day of the incident. When Isha again narrated this incident to Richa, the latter told her that her Chacha, referring to Respondent, was like a dog and that he used to do the same thing with her also by stripping of her whenever she came from the school. Lata Joshi, a tenant in the house of Prakash Javedkar seeing Isha and Richa whispering each other asked them what was the matter. Isha narrated the incident to her and other girl friends. On the third day, Isha told her mother the entire incident which took place in the drawing hall of the house of the Respondent on On hearing this horrid episode, Elesabeth Javedkar was very much annoyed and conveyed this painful and jarring piece of information to Tulsi. Then Elesabeth Javedkar, reeling under terrible shock, telephoned to her neighbours Shalesh Singh and Shalendra Kaur and informed them about the sexual abuse perpetrated by the Respondent on her daughter. At about 9.00 p.m. the Appellant, Prakash Javedkar came to his house and learnt about the occurrence. Faced with the traumatic situation, the helpless panic stricken parents rushed to the house of the Respondent accompanied by Tulsi, Shalesh Singh and Shalendra Kaur and searched for the Respondent, but could not find him there. All those including the rightful indignanted parents of victim Isha, kept waiting till mid night. The Respondent after returning realising that the entire atmosphere was thick with the charge of sexual molestation against him and finding him in culdesac voluntarily confessed his crime stating that he had raped Isha and also had committed the same kind of sexual assault on earlier occassions with Richa, Kukko and other girls of that locality, but being a Doctor he had been careful enough not to repture their hymen. Prakash Javedkar acerbated and mentally perturbed by hearing the confessional statement rushed towards the Respondent to attack him. 6. When the parents of Respondent arrived next morning, Prakash Javedkar informed Sooryavansham that his son (Respondent) had raped his minor daughter Isha, Sooryavansham was not prepared to believe their accusation. Thereafter at the request of Prakash Javedkar, he called his son and questioned him. Though the Respondent first abjured his complicity, however, admitted his abominable crime of sexual assault on Isha the confession made by the Respondent was thus: "I have raped the girl, but I have not ruptured her hymen. You should not be perplexed, I know what are my limits, I am a doctor. You need not to go to any doctor. 2 Pa g e

3 7. Thereupon Sooryavansham gave his stick to Prakash javedkar and said that it was for him either to show mercy or to give corporeal punishment as he deemed fit and also made an earnest appeal to Prakash Javedkar not to precipitate any action against his son. Presumably, Prakash Javedkar and his family members thinking that the police might not take any action against the Respondent since his brother was a Superintendent of Police and his family was wielding a high influence in that area and also fearing that any publicity of this incident would bring only a disrepute to their family and that the future life of their daughter would be completely shattered, suffered in silence for 2 or 3 days, without approaching any authority. 8. However, on , Prakash Javedkar mustered his strength and lodged a criminal complaint against the Respondent. A case was registered by the SHO of Borreveli Police Station and the investigation was entrusted to ASI. During the course of the investigation the victim Isha was examined by Dr. Issa on on being sent by the Police. According to Dr. Issa there was an abrasion on the medial side of Labia Majora about 1-1/2" in length, redness present around the labia minora with a white discharge, and hymen was intact and admitted tip of little finger. Dr. Issa has further stated that she prepared a slide for confirmation of the white discharge found around labia minora. In the cross-examination she has deposed that the white discharge was not flowing out, but it was at the same place where she noticed the redness and the discharge could have been as a result of infection which itself could have caused the redness found around labia minora. Further she has stated that she did not find any crest on labia majora. The Chemical Examiner after examination of the slide, which did not reveal any seminal stains in the virginal smear. A Medical Officer examined the Respondent on and found him as a virile person with well built body capable of performing sexual inter- course, but found no injuries. The Investigating Officer after examining all the witnesses and completing the investigation filed the charge sheet against the Respondent for the offence of rape punishable under Section 376 IPC. 9. The Respondent took his trial on the indictment that he committed rape on Isha between 4 and 5 p.m. on in the drawing hall of the house of Respondent. Of the witnesses examined Isha alone speaks about the actual commission of rape on her. Though Isha reported this unpleasant incident to Richa immediately after coming out of the drawing hall, Richa has not been examined by the prosecution. 3 Pa g e

4 10. The Trial Court in its judgment arrived at a conclusion that the prosecution launched against the Respondent on account of some enmity between the two families and that the prosecution has not adduced any acceptable evidence for holding the Respondent guilty of the offence under Section 376 IPC and consequently acquitted the Respondent. The reasons, assigned by the Trial Court for such a conclusion are based on its following findings: (1) The evidence of Prakash Javedkar, Elisabeth Javedkar, Tulsi, Shalesh singh and Shalendra Kaur is highly tainted and as such no safe reliance can be placed on their testimony. (2) The extra-judicial confession which the Respondent had retracted cannot be said to be free from threat, coercion or promise. (3) The extra-judicial confession as such seems to be unnatural and it is wholly the product of an illegal advice and false fabrication. (4) The evidence of the victim is not corroborated by other independent evidence. (5) The First Information Report has been belatedly lodged and there is no reasonable explanation for such a delay. 11. On being aggrieved by the judgment of the Trial Court acquitting the Respondent, the State preferred an appeal before the High Court challenging the order of acquittal. It is seen from the judgment of the High Court that the complainant who is the Appellant also filed a revision in Criminal Revision No. 130/20 questioning the legality of the order of acquittal. On the basis of this petition, another revision in criminal Revision No.132/22 was registered. The High Court disposed of the State appeal and the two criminal revisions by a common judgment, whereby it allowed the State appeal for the reasons assigned therein accepting the oral testimony of the prosecution witnesses particularly of Elisabeth, lata, and Isha and the extra- judicial confession made by the Respondent. On 14th January, 2019 separate orders were passed in the criminal revisions and the High Court found the Respondent guilty of the offence only under Section 354 IPC and sentenced him to pay a fine of Rs. 3,000, in default to suffer simple imprisonment for 6 months and also directed a sum of Rs. 2,000 out of the fine amount if collected to be paid over as compensation to Prakash Javedkar. Following are some of the findings of the High Court. 1. The High Court after observing, "there is no reason as to why a small innocent girl would have laid such a serious charge against the Respondent, if it was not true", held that the evidence of Isha has been materially corroborated by Lata Joshi. 4 Pa g e

5 2. Referring to the confession of the Respondent, it has been held by the High Court, "Though there can be penetration without rupture, the absence of any sign of injuries, negatives a case of rape with a small girl". 3. Then referring the corroboration required to the extra judicial confession made by the Respondent, the High Court has recorded the following observation: "After realising that his misdeeds have been exposed and he can no longer hide himself, he had no option but to confess. This was only option left when he was cornered by his own neighbours and relations. There was no question of any coercion or inducement in presence of his family members in his own house. The confession was nothing but by way of repentance for the wrongs done to the young girls. It appears that the Respondent was a perverted person and was satisfying his sexual urge by outraging modesty of young girls who fell easy prey to his designs." 12. However, the father of the victim, feeling aggrieved by the judgment of the High Court has filed an appeal before the Hon Supreme Court mainly on following grounds, namely, (1) The High Court has erred in finding the Respondent guilty of a minor offence under Section 354 IPC when all the necessary ingredients to constitute an offence punishable under Section 376 IPC have been satisfactorily established (2) That the sentence of fine alone imposed by the High Court under Section 354 IPC for this serious offence is grossly inadequate and does not commensurate with the gravity of the offence committed by the Respondent. (3). Concerned about the increasing offence of rape against the minor girls, Appellant has asked for the death penalty for committing rape on minor girls below the age of 12 year. 14. The Hon ble Supreme Court has fixed the first hearing of the above petition on 9 February Note - The participants are required to make two additional issues pertaining to the above petition. 5 Pa g e

6 6 Pa g e

7 7 Pa g e

8 8 Pa g e