Case BriefsHigh Courts

Madras High Court: B. Pugalendhi, J., while partly allowing the appeal modified the offence to fall under Section 354 of the Penal Code 1860 from Section 377 IPC.

The instant appeal was filed against the conviction and sentence imposed on the appellant.

Trial Court found the appellant not guilty for the offence under Section 376 of Penal Code, 1860 but found him to be guilty for the offence under Section 377 IPC.

Appellant filed the instant appeal against the trial court’s decision.

Prosecutions’ Case

Victim who has been stated to be partially deaf and completely dumb was aged 37 years at the time of occurrence and also unmarried.

While the victim was taking bath in the pump set, the accused went behind and hugged her with an intention to commit rape.

Analysis

Though the accused attempted to rape the victim girl, she escaped from such an attempt.

Considering the evidence of the Doctor [PW8] that there was no external injury, other than the injury noted in the shoulder of the victim and also considering the evidence of the Doctor [PW8] and the certificate issued by the Doctor, this Court opined that the said act of the appellant would fall under Section 354 IPC and not under Section 377 IPC.

Bench noted that no material on record was placed to show that the accused had committed an unnatural offence.

PW4 an innocent victim thwarted on the accused, the moment he hugged her from back and therefore, she did not suffer any injury on her private parts.

“Section 375 IPC: Rape

A man is said to commit ‘rape’ who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—

First — Against her will.

Secondly — Without her consent.

Thirdly — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly — With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly — With or without her consent, when she is under sixteen years of age.”

Section 377 IPC deals with the unnatural offence.

In accordance with the medical evidence, the victim girl suffered an abrasion on her shoulder in the scuffle to protect her from the accused, but no injury on her private parts was caused.

In view of the above, the question for consideration was whether the said act of the accused would amount to the commission of offence under Section 377 or 375 IPC or will it fall under Section 354 IPC?

Court held that the overt act attributed as against the accused does not fall under the ingredients for the offence under Sections 375 or 377 IPC. Whereas, the appellant attempted to outrage the modesty of the victim, who is partially deaf and dumb.

Section 354 IPC: Assault or criminal force to woman with intent to outrage her modesty

“Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.

In view of the above position, Supreme Court’s decision in Aman Kumar v. State of Haryana, (2004) 4 SCC 379 was referred.

Supreme Court’s decision in Tarkeshwar Sahu v. State of Bihar (Now Jharkhand), (2006) SCC 8 560 was referred in regard to the issue that in the absence of charge under any other section, whether the accused should be acquitted or convicted for outraging the modesty of a woman. In this decision of the Supreme Court, Section 222 of the CrPC was invoked, which provides that in a case where the accused is charged with a major offence and the said charge is not proved, the accused may be convicted of the minor offence, though he was not charged with it.

In the present case, Court states that though the appellant was prosecuted for the offence under Section 376 IPC, he was convicted and sentenced for the offence under Section 377 IPC.

In view of the occurrence of the incident, the Court held that the said act of the appellant as discussed above would fall under Section 354 IPC.

Hence the appeal was partly allowed. [Vairamuthu v. State, Crl. A (MD) No. 357 of 2015, decided on 01-10-2020]

Case BriefsHigh Courts

Bombay High Court: Vinay Joshi, J., altered the conviction for rape and penetrative sexual assault to an act of aggravated form of sexual assault punishable under Section 10 of the POCSO Act in light of touching the breast of the child.

Appellant aged 67 years was convicted under Sections 376 and 450 of the Penal Code, 1860 and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

Accused was acquitted from the charge of committing offence punishable under Section 377 IPC.  Accused challenged the conviction in the instant appeal.

Informant was residing along with his family members, including his daughter/victim girl aged 8 years. Two sons of the informant had been to their school and the minor victim was alone at the house as she was ill. In the afternoon the informant returned to his house for lunch and found that the house was locked from within, therefore, he peeped from the window and saw that appellant by lifting frock of the victim was moving his hand on her neck, cheek and chest.

Later, the informant shouted to open the door and hurriedly left the place. Victim disclosed that the accused moved his hand on her body, kissed her as well as put his finger in his anal part.

In regard to the above reference, informant lodged a report against the said incident.

Special Judge framed charge under relevant provisions of IPC and POCSO Act further on the appreciation of evidence held that the prosecution succeeded in proving the offence punishable under Sections 376 and 450 IPC, Sections 4 and 6 of the POCSO Act.

The prosecution case, in short, is about rape and aggravated penetrative sexual assault by the accused on a minor victim aged 8 years.

Analysis and Decision

Bench stated that the act of accused of touching the breast of the victim with sexual intent amounts to an aggravated form of sexual assault, which is punishable under Section 10 of the POCSO Act.

Since the medical evidence nowhere supported that there was insertion or penetration of finger into the anal region, it is doubtful whether the accused penetrated his finger into the anal region of the victim.

If two view emerges from the situation, the view favourable to the accused would take precedence. On mere assumption or possibility, the accused cannot be convicted.

 All the sexual assaults on children below 12 years amount to an aggravated form of sexual assault.

With regard to the age of the accused, which is near about 70 years, the imprisonment of 5 years would meet the ends of justice. From the set of circumstances laid down, it is clear that the house-trespass was merely in order to commit an offence punishable with imprisonment, which is punishable under Section 451 of the Penal Code, 1860.

In view of the above, criminal appeal as partly allowed.

Conviction under Section 376 of IPC and Sections 4 and 6 of the POCSO Act, is hereby quashed and set aside, instead the accused was convicted for the offence punishable under Section 10 of the POCSO Act and.

Further, instead of conviction under Section 450 IPC, the appellant is convicted for the offence punishable under Section 451 of the IPC.

Hence appellant will be entitled to set off under Section 428 of the CrPC. [Tukaram Ashruji Khandare v. State of Maharashtra, 2020 SCC OnLine Bom 2802, decided on 22-10-2020]


Advocate for the appellant, R.V. Gahilot and H.R. Dhumale, A.P.P. for the respondent.

Case BriefsSupreme Court

Supreme Court: In a chilling case where a 21-year-old man was sentenced to death under Sections 302 and to life imprisonment under 376A of IPC for raping and killing his 2.5 years-old niece, the 3-judge bench of Justice UU Lalit*, Indu Malhotra and Krishna Murari, JJ has commuted the punishment to life imprisonment for the offence punishable under Section 302 IPC and to that of rigorous imprisonment for 25 years for the offence punishable under Section 376A IPC. The Court also affirmed the conviction and sentence recorded by the Courts below for the offences punishable under Section 376(1), (2)(f), (i) and (m) of IPC, and under Section 6 of the POCSO Act.


Sentencing under Section 302 IPC


The Court found the Appellant guilty of having committed the offence of culpable homicide amounting to murder under Section 300 IPC Fourthly. In such cases, according to the Court, it is very rare that the death sentence is awarded.

Considering the age of the victim i.e 2.5 years, the Court said that the accused must have known the consequence that his sexual assault on the child would cause death or such bodily injury as was likely to cause her death.

“The evidence on record also depicts an exceptional case where two and half years old girl was subjected to sexual assault. The assault was accompanied by bites on the body of the victim. The rape was of such intensity that there was merging of vaginal and anal orifices of the victim. The age of the victim, the fact that the Appellant was a maternal uncle of the victim and the intensity of the assault make the present case an exceptional one.”

However, it could not be held that the appellant consciously caused any injury with the intent to extinguish the life of the victim. Though all the injuries are attributable to him, his conviction under Section 302 IPC is not under any of the first three clauses of Section 300 IPC.


Sentencing under Section 376A IPC


The case at hand was a peculiar one as the offence was committed just a week after the amended Section 376A was brought into force in the year 2013. Hence, the question before the Court was whether awarding life imprisonment in the present case would mean “the remainder of that person’s natural life or with death” or not.

Two important conclusions were made by the Court:

  • The ex-post facto effect given to Section 376A inserted by the Amendment Act would not in any way be inconsistent with sub-Article (1) of Article 20 of the Constitution.
  • In view of the fact that Section 376A IPC was brought on the statute book just few days before the commission of the offence, the Appellant does not deserve death penalty or life imprisonment for the remainder of his life for said offence, however, considering the nature and enormity of the offence, the appropriate punishment for the offence under Section 376A IPC must be rigorous imprisonment for a term of 25 years.

To understand what led to this conclusion, let’s first take a look at the legislative developments that took place around the time when the crime was committed:

  • On 03.02.2013, the Criminal Law (Amendment) Ordinance, 2013 was promulgated by the President of India which substituted Sections 375, 376 and 376A of IPC;
  • The Criminal Law (Amendment) Act, 2013 received the assent of the President and was published on 02.04.2013 but was given retrospective effect from 03.02.2013.
  • The offence was committed on 11.02.2013 when the provisions of the Ordinance were in force

Here’s what the coming into force of the Ordinance and subsequently the Amendment Act meant:

  • Before 03.02.2013, the offence under Section 375 could be committed against a woman. The Ordinance sought to make the provision gender neutral and this gender-neutral provision remained in force from 03.02.2013 till 02.04.2020. However, the earlier position was restored through the Amendment Act.
  • Before 03.02.2013, the sentence for an offence under Section 376(1) could not be less than seven years but the maximum sentence could be life imprisonment; and for an offence under Section 376(2) the minimum sentence could not be less than ten years while the maximum sentence could be imprisonment for life. Section 376A dealt with cases where a man committed non-consensual sexual intercourse with his wife in certain situations.
  • As a result of the Ordinance, the sentences for offences under Sections 376(1) and (2) were retained in the same fashion. However, a new provision in the form of Section 376A was incorporated under which, if while committing an offence punishable under sub- section (1) or sub-section (2) of Section 376, a person “inflicts an injury which causes the death” of the victim, the accused could be punished with rigorous imprisonment for a term “which shall not be less than 20 years but which may extend to imprisonment for life, which shall mean the remainder of that person’s natural life or with death”. Thus, for the first time, Death Sentence could be imposed if a fatal injury was caused during the commission of offence under subsection (1) or (2) of Section 376.
  • Though the provisions of the Amendment Act restored the original non gender-neutral position vis-à-vis the victim, it made certain changes in sub-section (2) of Section 376. Now, the punishment for the offence could be rigorous imprisonment for not less than ten years which could extend to imprisonment for life, “which shall mean imprisonment for the remainder of that person’s natural life”. It was, thus, statutorily made clear that the imprisonment for life would mean till the last breath of that person’s natural life.
  • Similarly, by virtue of the Amendment Act, for the offence under Section 376A, the punishment could not be less than 20 years which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.

In the present case, when the crime was committed, the victim was about two and half years of age and the Ordinance which was holding the field. However, the sentence prescribed by Section 376(2) as amended by the Amendment Act, provided that the imprisonment for life “shall mean imprisonment for the remainder of that person’s natural life”. In such a case, the Court was posed with the question that whether such ex-post facto prescription would be consistent with the provisions of sub-Article (1) of Article 20 of the Constitution.”

The Court explained,

“An imposition of life sentence simpliciter does not put any restraints on the power of the executive to grant remission and commutation in exercise of its statutory power, subject of course to Section 433A of the Code. But, a statutory prescription that it “shall mean the remainder of that person’s life” will certainly restrain the executive from exercising any such statutory power and to that extent the concerned provision definitely prescribes a higher punishment ex-post facto. In the process, the protection afforded by Article 20(1) of the Constitution would stand negated.”

It was further held that since Section 376A as amended by the Ordinance being gender neutral so far as victim was concerned, naturally covered cases where a victim was a woman, hence, the ex-post facto effect given to Section 376A by the Amendment Act from the day the Ordinance was promulgated, would not in way be inconsistent with the provisions of sub-Article (1) of Article 20 of the Constitution.

It was, hence, declared that the punishment under Section 376(2) of the IPC in the present case cannot come with stipulation that the life imprisonment “shall mean the remainder of that person’s life”.

[Shatrughna Baban Meshram v. State of Maharashtra, 2020 SCC OnLine SC 901, decided on 02.11.2020]


*Justice UU Lalit has penned this judgment

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has, “in order to allay all apprehensions and only as a confidence building measure”, directed that the security to the victim’s family and the witnesses in the Hathras Gang Rape case shall be provided by the CRPF within a week.


BACKGROUND OF THE CASE


The case pertains to the brutal gang-rape and assault of a 19-year¬old girl, resident of Hathras village in Uttar Pradesh. Though she was shifted to Safdarjung Hospital in Delhi, she breathed her last and she was cremated in the middle of the night without the presence of her family members. Considering the manner in which the entire incident had taken place, the petitioners contended that a fair investigation would be possible only if the matter is entrusted to an independent agency.

It was prayed that

  1. if need arises, the case be transferred to the Central Bureau of Investigation or SIT be formed to investigate the matter.
  2. a sitting or retired Supreme Court Judge or High Court Judge be appointed to look into the matter.
  3. the case be transferred from Hathras, Uttar Pradesh to Delhi.

Concerns were also raised by Senior Advocate Indira Jaising with regard to the adequate protection being provided to the victim’s family members and the witnesses. An affidavit filed by the Home Department, Uttar Pradesh on October 14, 2020 regarding the same which stated:

  • The parents, two brothers, one sister¬in-law and grandmother of the victim who are residing at village Chandpa, District Hathras, Uttar Pradesh have been provided protection under a three-fold protection mechanism through

(a) Armed Constabulary Component,

(b) Civil Police Component and

(c) Installation of CCTV cameras/lights.

  • The investigation by the CBI would be conducted under the supervision of the Court in a time bound manner.

The Director General of Police, State of Uttar Pradesh also filed an affidavit indicating   that   the   State   Government   itself   has   sought investigation by the CBI to be conducted under the supervision of the Court and on 10.10.2020 the CBI accepted the request of the State and has started investigation in respect of the crime, on 11.10.2020.


WHAT THE SUPREME COURT SAID


On the apprehension that the Uttar Pradesh Police will not conduct a proper and fair investigation

Considering the abovementioned facts, the Court noticed that the undisputed fact is that the investigation has in fact been entrusted  by the State Government itself to the CBI on 10.10.2020 and the CBI has started investigation in respect of the crime on 11.10.2020. Therefore, the apprehensions expressed by the petitioners/applicants that there would be no proper investigation if the Uttar Pradesh Police conducted the same would not remain open for consideration at this stage.

On Supreme Court Monitored Investigation

The Court further noticed that the Allahabad High Court has adequately delved into the aspects relating to the case to secure fair investigation and has also secured the presence of the father, mother, brother and sister-in-law of the victim and appropriate orders are being passed, including securing reports from various quarters. Hence, the Court did not find it necessary “to divest the High Court of the proceedings and take upon this Court to monitor the proceedings/investigation.”

Further, the incident having occurred within the jurisdiction of that High Court and all particulars being  available, it would be appropriate for the High Court to proceed to monitor the investigation in the manner in which it would desire.

“In that view, it would be open for the writ petitioners/applicants herein to seek to intervene in the matter before the High Court subject to consideration of such request by the High Court and if it finds the need to take into consideration the contentions to be urged by the petitioners/applicants   in that regard.”

It hence, directed that the CBI shall report to the High Court in the  manner as would be directed by the High Court through its orders from time to time.

On security to the victim’s family and witnesses

The Court noticed that though steps have been taken by the State Government to make adequate arrangement for security to the victim’s family and witnesses, however, in a matter of the present nature it is necessary to address the normal perception and pessimism which cannot be said as being without justification. Hence,

“without casting any aspersions on the security personnel of the State Police; in order to allay all apprehensions and only as a confidence building measure, we find it appropriate to direct that the security to the victim’s family and the witnesses shall be provided by the CRPF within a week from today.”

On transfer of case to Delhi

As indicated by advocate Seema Kushwaha, appearing for the victim’s family indicated that the need   for transfer would arise after the investigation is complete, the Court said that

“… it would be appropriate for investigating agency to complete the investigation and in any event since the local police have been divested of the investigation and the CBI is carrying out the investigation there would be no room for apprehensions at this stage. However, the issue as to whether the trial of the case is to be transferred is a matter which is kept open to be considered if need arises in future.”

On the name and relationship of the family members with the victim being depicted in the High Court’s order

Since it is a requirement of law to avoid such disclosure, the Supreme Court requested the High Court to delete the same and also morph the same in the digital records and avoid indication of such contents in future.

[Satyama Dubey v. Union of India, 2020 SCC OnLine SC 874, decided on 27.10.2020]

Hot Off The PressNews

The National Human Rights Commission issued notice to the Chief Secretary, Director General of Police and the Director-General of Prisons, Madhya Pradesh after taking suo motu cognizance about the allegations made by women on five cops for gang rape in lockup.

It is mentioned in the news report that a 20-year-old woman has levelled allegations that she was kept in lock-up for 10 days in the month of May this year and was subjected to rape by 5 police personnel including the Police Station Incharge and SDPO of Mangawan area of Rewa district of Madhya Pradesh. The woman, as mentioned in the news report, was an accused in a case of murder and presently she is lodged in judicial custody. The incident occurred in the month of May and it came to the knowledge of the District Judge after a period of five months. Even the prison warden did not have the courage to report the matter to the higher authorities.

It is further added that as alleged by the victim woman, she was subjected to rape between 09-05-2020 to 21-05-2020 while the police contradict, to be arrested on 21-05-2020. The female constable had protested at that time but she was rebuked by her seniors.

The Commission considered the vulnerable position of the victim. She was in police custody when she was allegedly subjected to utmost cruelty and sexual assault by the 5 police personnel. Even a protest made by a female police official went in vain. Very serious allegations have been levelled by the victim woman. Public servants from the law enforcement agencies, who are supposed to safeguard the citizens especially the women and the people from the vulnerable classes of the society have allegedly committed the heinous crime against a woman in their custody.

The Commission directs that the matter may be investigated by a senior police officer, not below the rank of the Deputy Inspector General of Police.


National Human Rights Commission

[Press Release dt. 19-10-2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of UU Lalit, Vineet Saran and S. Ravindra Bhat, JJ has held that no person is entitled to a copy of statement recorded under Section 164 of the Criminal Procedure Code, 1973 till the appropriate orders are passed by the court after the charge-sheet is filed.

“The right to receive a copy of such statement will arise only after cognizance is taken and at the stage contemplated by Sections 207 and 208 of the Code and not before.”


BACKGROUND OF THE CASE


The Court was hearing the case where

  • the father of the Appellant lodged a Complaint that he had seen a video of the Appellant on her Facebook account alleging that Swami Chinmayanand and some others had sexually exploited the Appellant and many other girls; that the Appellant was not contactable; that he was apprehending danger to the Appellant; and that prompt action be taken in the matter.
  • The said Facebook video having gone viral, letters were written to the Supreme Court by some advocates whereafter Suo Motu Writ Petition was registered. On 30.08.2019 it was reported that the Appellant was found in District Dausa of State of Rajasthan whereafter the Supreme Court recorded the statement of the Appellant that she did not intend to go back to Uttar Pradesh but would meet her parents in Delhi. Certain directions were therefore passed.
  • In its Order dated 02.09.2019, this Court directed the Chief Secretary, State of Uttar Pradesh, to constitute a Special Team to enquire into the grievances expressed by Miss “A” and insofar as the apprehension expressed by the parents of Miss “A”. It also directed the Chief Secretary, State of Uttar Pradesh, to direct the Superintendent of Police of the concerned district, namely, Shahjahanpur, to afford protection to the parents and family members of the girl on assessing the threat perception.
  • On 20.09.2019, Swamy Chinmayanand was arrested and his application for bail was rejected by the Chief Judicial Magistrate, Shahjahanpur on 23.09.2019.
  • In November 2019, the High Court directed that trial court to provide a certified copy of the statement of victim recorded under Section 164 Cr.P.C. to the applicant subject to payment of usual charges.
  • Before the Appellant could challenge the decision of the High Court, by filing the instant Special Leave Petition on 13.11.2019, a copy of her statement recorded under Section 164 of the Code was made over to the accused.

WHAT THE COURT SAID


The Supreme Court noticed that the High Court completely erred in appreciating the directions issued by this Court, especially in a matter where the offences alleged against accused are of sexual exploitation.

“In such matters utmost confidentiality is required to be maintained. In our view, the High Court completely failed in that behalf.”

Explaining the Scheme of the relevant provisions of CrPC, the Court said that after the conclusion of the investigation, an appropriate report under Section 173 of the Code is to be filed by the police giving information as required by Section 173.

In terms of Section 190 of the Code, the concerned Magistrate may take cognizance of any offence inter alia upon a police report. At the stage of exercise of power under Section 190 of the Code, the Magistrate may deem fit that the matter requires further investigation on certain aspects/issues and may pass appropriate direction. It is only after taking of the cognizance and issuance of process that the accused is entitled, in terms of Sections 207 and 208 of the Code, to copies of the documents referred to in said provisions.

The filing of the charge-sheet by itself, does not entitle an accused to copies of any of the relevant documents including statement under Section 164 of the Code, unless the stages indicated above are undertaken. Thus, merely because the charge-sheet was filed by the time the High Court had passed the order in the present matter, did not entitle the accused to a copy of the statement under Section 164 of the Code.

Though, a copy of the statement recorded under Section 164 of the Code was made over to the accused, the Court set aside the order passed by the High Court and held that

“… under no circumstances copies of statements recorded under Section 164 of the Code can be furnished till appropriate orders are passed by the Court after taking cognizance in the matter.”

[Miss ‘A’ v. State of Uttar Pradesh,  2020 SCC OnLine SC 817, decided on 08.10.2020]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Rajan Roy and Jaspreet Singh, JJ., while taking suo motu cognizance of an extremely sensitive and important matter reminded itself of Mahatma Gandhi’s words and stated that,

This is a time to strengthen our resolve to live up to the ideas which “Bapu” stood for, but, unfortunately, ground realities are very different from the high values propagated and practiced by the Father of our Nation.

Bench stated that the matter touches upon the basic human/fundamental rights of the citizens of the country and residents based on certain newspaper items and programs shown in the media, according to which a young 19-year-old girl in Hathras was subjected to gang rape.

The perpetrators had broken her bones and mutilated her tongue.

The victim fought for her life for almost 2 weeks but ultimately she succumbed to death on 29-09-2020.

Court stated that the incidents which happened after the victim’s death leading up to her cremation have shocked their conscience.

In view of the above, the bench has taken suo mou cognizance of the matter.

Cremation performed forcibly and without consent of family members

As per the media reports, the dead body of the victim was taken to her native village but the Court was pained and shocked to note that the same was not handed over to the family members and the body of the victim was cremated with the help of some other persons.

The family members kept demanding for the body and informed that as per their traditions, the cremation cannot be taken place after sunset, yet the District Authorities got the cremation performed contrary to the traditions.

Allegation of High Handedness by State Authorities

Court added that the matter is of grave importance as it involves an allegation of high handedness by the State Authorities resulting in violation of the basic human and fundamental rights of both the deceased and her family.

Court in view of the present matter, referred to the decision of Supreme Court in Parmanand Katara v. Union of India, (1995) 3 SCC 248, wherein the court considered various facets of Right to Life enshrined under Article 21 of the Constitution of India.

“…right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death

Bench also quoted Oscar Wilde who said,

“Death must be so beautiful. To lie in the soft brown earth, with the grasses wearing above one’s head, and listen to silence. To have no yesterday, and no tomorrow. To forget time, to forget life, to be at peace.”

Bombay High Court’s decision in Pradeep Gandhy v. State of Maharashtra; 2020 SCC Online Bombay 662 was also referred to wherein,

“Right to a decent burial commensurate with the dignity of the individual was reiterated as a recognized facet of the Right to life guaranteed under Article 21 of the Constitution.”

Issues to be examined:

  • Whether there has been a gross violation of the fundamental rights of the deceased victim and the family members of the victim?
  • Whether the State Authorities have acted oppressively high handedly and illegally to violate such rights as if it is found to be so, then, this would be a case where accountability will not only have to be fixed but for future guidance also stern action would be required.
  • Whether the economic and social status of the deceased’s family has been taken advantage of by the State Authorities to oppress and deprive them of their Constitutional rights?

Rights available under the Constitution are to be protected

Rights of the individual citizens in the Country and State especially that of the poor and the downtrodden such as the family members of the deceased victim and the deceased herself are paramount.

Court also takes cognizance of the matter that the seat of governance being at Lucknow and the High Police Officials posted in the office of Director General of Police, U.P. at Lucknow justified the cremation at night.

In view of the above, Court directed the Senior Registrar of this Court at Lucknow to register a suo moto Public Interest Litigation with the title In Re: Right to decent and dignified last rites/cremation” and place it before the appropriate Bench having jurisdiction to hear Public Interest Litigations.

Court-appointed Senior Advocate, Jaideep Narain Mathur and Abhinav Bhattacharya Advocate as Amicus Curiae.

State Authorities are directed to ensure that no coercion, influence or pressure is exerted upon the family members of the deceased in any manner, by anyone.

Family members of the deceased victim i.e. the father, the mother, brothers and sisters shall be present before this Court so that this Court ascertains the facts and their version of the incidents which took place at the time of the cremation.

Matter has been listed on 12-10-2020. [Decided on 01-10-2020]

Allahabad High Court_Hathras-Rape-Case

Case BriefsHigh Courts

Uttaranchal High Court: Narayan Singh Dhanik, J., allowed a Criminal Jail Appeal which was filed from the jail against the judgment whereby the appellant had been convicted for the offences under Section 376/511 Penal Code, 1860 and Section 6 of the POCSO Act and was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs 25,000 for the offence under Section 6 of the POCSO Act.

The complainant had filed an FIR against the appellant alleging that he had attempted to commit rape on the two and half year’s old daughter of the complainant and had committed sexual assault on her. He further alleged that when he went looking for his daughter along with a companion he found the appellant while he was indulged in committing the alleged offence and took him to the police station. On conclusion of the trial, appellant was convicted and sentenced. Thus, the instant appeal was filed by the Amicus Curiae, Raman Kumar Sah on behalf of the appellant submitting that the prosecution had failed to prove the case against the appellant. He further contended that the victim had not identified the appellant nor the victim in her testimony had named the appellant and that the facts elicited during the cross-examination of the complainant and the companion along with him were totally contrary to the prosecution story. It was further contended that the mother of the victim did not support the prosecution story and was declared hostile. Per contra, the AGA for the State, Manisha Rana Singh submitted that prosecution had produced sufficient and credible evidence and the trial court had rightly convicted and sentenced the appellant.

The Court while allowing the appeal set aside the judgment and order of the Trial Court. The Court assessed the medical examination report of the victim which disclosed that the urethral meatus & vestibule, labia major and labia minor of the victim were found normal and no tear or swelling in the private parts was found and Hymen perineum of the victim was also found intact but the doctor had further stated that a little redness was present in the outer surface of the hymen of the victim and the presence of dried blood stains was also detected on her private parts and these conditions led to opine her that the attempt of sexual intercourse with the victim was made. It accepted all the contentions given by the Amicus Curiae and opined that the opinion of the doctor alone was not enough to connect the accused-appellant with the alleged crime in view of the material on record and in the absence of any credible evidence. The Court while quashing the conviction and sentence stated that,

            “In criminal cases, conviction cannot be based upon morality and there must be admissible and credible evidence to base conviction and moreover it is well-settled canon of criminal jurisprudence that ‘fouler the crime higher the proof’ and mandate of law is that the prosecution has to prove the charges beyond all reasonable doubt. A few bits here and a few bits thereon which prosecution relies cannot be held to be adequate or connecting the accused with the crime in question.”[Akash Kumar v. State of Uttarakhand, 2020 SCC OnLine Utt 562, decided on 28-09-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RF Nariman, Navin Sinha and Indira Banerjee, JJ has acquitted  a man in a rape case dating back to 1999 after it as proved that the prosecutrix had consensually established physical relations with him out of love.

“… the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deep­seated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love.”

BACKGROUND

The appellant had challenged his conviction under sections 376, 323 and 341 IPC sentencing him to seven years, one year and one month respectively with fine and a default stipulation. The prosecutrix had filed and FIR in 1999 against the appellant alleging that four years ago the appellant had outraged her modesty at the point of a knife and had since been promising to marry her and on that pretext continued to establish physical relations with her as husband and wife. She had also stayed at his house for fifteen days during which also he established physical relations with her. Five days prior to the lodging of the F.I.R, the appellant had established physical relations with her. She further claimed that the appellant had cheated her as now he was going to solemnise his marriage with another girl in a few days.

CONSIDERATIONS BY THE COURT

Age of the prosecutrix

The prosecutrix in her deposition dithered with regard to her age by first stating she was sixteen years on the date of occurrence and then corrected herself to state she was thirteen. She had alleged that the appellant outraged her modesty at the point of a knife while she was on way to school but no name of the school has been disclosed either by the prosecutrix or her parents.

“If she was studying in a school then why proof of age was not furnished on basis of documentary evidence such as school register etc.?”

Also, prosecutrix’s cousin aged about 30 years deposed that she was six years younger to him. Hence, a wide variation in the evidence with regard to the age of the prosecutrix could be seen. The Court, hence, noticed,

“In absence of positive evidence being led by the prosecution with regard to the age of the prosecutrix on the date of occurrence, the possibility of her being above the age of eighteen years on the date cannot be ruled out. The benefit of doubt therefore has to be given to the appellant.”

Examination under Section 313 CrPC

It stands well settled that circumstances not put to an accused under Section 313 Cr.P.C. cannot be used against him, and must be excluded from consideration. In a criminal trial, the importance of the questions put to an accused are basic to the principles of natural justice as it provides him the opportunity not only to furnish his defence, but also to explain the incriminating circumstances against him. A probable defence raised by an accused is sufficient to rebut the accusation without the requirement of proof beyond reasonable doubt.

However, a bare perusal of the examination of the accused under Section 313 Cr.P.C. in the present case revealed it to be extremely casual and perfunctory in nature.

Factum of love affair between the accused and the prosecutrix

  • The appellant belonged to the Scheduled Tribe while the prosecutrix belonged to the Christian community. They professed different religious beliefs in a traditional society. They both resided in the same village Basjadi and were known to each other.
  • The nature and manner of allegations, coupled with the letters exchanged between them, make it apparent that their love for each other grew and matured over a sufficient period of time.
  • The physical relations that followed was not isolated or sporadic in nature, but regular over the years.
  • The prosecutrix had gone and resided in the house of the appellant.
  • The parents of the prosecutrix acknowledged awareness of the relationship between appellant and the prosecutrix and that they were informed after the first occurrence itself but offer no explanation why they did not report the matter to the police immediately.
  • The prosecutrix acknowledged that an engagement ceremony had also been performed but the marriage between them could not be solemnised because they belonged to different religions. She was therefore conscious of this obstacle all along, even while she continued to establish physical relations with the appellant.
  • Prosecutrix denied having written any letters to the appellant, contrary to the evidence placed on record by the defence. She in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her.

“The amorous language used by both in the letters exchanged reflect that the appellant was serious about the relationship desiring to culminate the same into marriage. But unfortunately for societal reasons, the marriage could not materialise as they belonged to different communities.”

The Court noticed that the delay of four years in lodgement of the FIR, at an opportune time of seven days prior to the appellant solemnising his marriage with another girl, on the pretext of a promise to the prosecutrix raises serious doubts about the truth and veracity of the allegations levelled by the prosecutrix.  The entire genesis of the case is in serious doubt in view of the admission of the prosecutrix in cross examination that no incident had occurred on 09.04.1999.

Consent under Section 90 IPC

Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eyes of law.  But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years.

“It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest.”

CONCLUSION

The Court held that the appellant did not make any false promise or intentional misrepresentation of marriage leading to establishment of physical relationship between the parties. The prosecutrix was herself aware of the obstacles in their relationship because of different religious beliefs. An engagement ceremony was also held in the solemn belief that the societal obstacles would be overcome, but unfortunately differences also arose whether the marriage was to solemnised in the Church or in a Temple and ultimately failed. The Court said that “If the appellant had married her, she would not have lodged the case.”

The Court, hence, found the conviction of the appellant to be unsustainable and acquitted him.

[Maheshwar Tigga v. State of Jharkhand, 2020 SCC OnLine SC 779, decided on 28.09.2020]

Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J., while addressing a petition with regard to the rape of a minor girl, made an observation that:

“Rape” is just not a forcible intercourse, it means to inhabit and destroy everything.

A minor victim girl registered a complaint based on which offences for Sections 376, 354-D, 506 of Penal Code, 1860 were invoked against the applicant.

Since the complaint was registered by a minor, provisions of Sections 3, 4, 11 and 12 of the Protection of Children from the Sexual Offences Act, 2012 were also invoked.

Victim who was acquainted with the applicant who was a business partner of the victim’s father.

She alleged that from the month of October, 2019, the applicant started texting her on her Whatsapp and expressed his liking towards her and also sought sexual favours from her, which was turned down by the victim girl.

Applicant sent a message to the victim stating that he wanted to discuss an important family matter with her and asked her to meet the next day. Next day, when she was waiting for a bus to arrive the applicant approached her on a two-wheeler and she was asked to accompany him.

She was then taken to a nearby farmhouse and by making an emotional appeal and threatening that she if did not agree, he will commit suicide, she was forced to commit sexual intercourse with him. She was also threatened that she should not disclose the incident to her parents and if she does so, it would adversely affect the partnership business.

Again after the above incident, the applicant forced the victim in a similar manner and indulged with her physically.

After a few days of the second incident, the victim disclosed it to her parents and after due deliberation, the report was lodged.

Bench on perusal of the above stated that it is not very unlikely that a young girl aged 17 years became disquieted after the act of ravage and did not gather the courage to speak to her parents about the said incident.

The victim girl was also conscious of the fact that the applicant was a business partner of her father.

The whole episode of the applicant indulging with a minor girl, a daughter of his business partner itself speak of his intention.

FIDUCIARY RELATIONSHIP

Court further observed that the applicant took advantage of the fiduciary relationship, which he shared with the victim girl and put her in a vulnerable situation.

CONSENT

Assuming but not accepting that the victim girl consented for maintaining the physical relationship, her consent is not free consent.

Further, adding to the above, penal code does not recognise the consent by a minor girl to be consent in the eyes of law and in the present case, in the backdrop of narration by the victim, her consent can naturally be said to be induced by a fiduciary relationship which she shared and on that count also, it is not free consent.

“Offence of rape as defined in Section 375 of the IPC, made punishable under Section 376, is attracted when a man commits an act of rape without the consent of the girl or when such consent is obtained by putting her in fear of death or of hurt. The hurt may be physical or mental.”

The consent of the victim girl under 18 years of age is also of no legal consequences when it comes to an offence of rape punishable under Section 376 IPC.

In view of the above observations, High Court did not release the applicant on bail and rejected the bail application. [Amit Raosao Patil v. State of Maharashtra, 2020 SCC OnLine Bom 917, decided on 09-09-2020]

Case BriefsHigh Courts

Allahabad High Court: Suresh Kumar Gupta, J., while addressing the present jail appeal held that,

“…in cases involving sexual assault/rape, it is generally difficult to find any corroborative witnesses, except the victim herself and therefore, the evidence of the victim is sufficient for conviction unless there exist compelling reasons for seeking corroboration.”

Appellant has been convicted and sentenced under Section 376 of Penal Code, 1860 for 10 years rigorous imprisonment alongwith a fine of Rs 20,000 and in default of payment of fine, two years additional imprisonment, under Section 342 IPC for six months imprisonment alongwith fine of Rs 500 and in default of payment of fine fifteen days additional imprisonment and under Section 506 IPC for 2 years rigorous imprisonment alongwith fine of Rs 1000 and in default of payment of fine, one-month additional imprisonment. All the sentences shall run concurrently.

Trial Court held the accused guilty and convicted him for the charged offences as aforesaid.

Counsel for the appellant Deepak Rana and AGA for the State is Sri Jai Prakash Tripathi.

Bench observed that it is a settled principle of law that in cases involving sexual assault/rape, it is generally difficult to find any corroborative witnesses, except the victim herself and therefore, the evidence of the victim is sufficient for conviction unless there exist compelling reasons for seeking corroboration. Thus, a conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence.

In Gagan Bihari Samal v. State of Orissa, (1991) 3 SCC 562 Supreme Court of India whilst observing that corroboration is not the sine qua non for conviction in a rape case, held as follows :

In cases of rape, generally, it is difficult to find any corroborative witnesses except the victim of the rape. It has been observed by this Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat,(1983) 3 SCC 217.

Further, it is also a well-settled principle of law that the testimony of child witness can be relied upon along with other circumstances and corroborative evidence to convict the accused. Undoubtedly, the settled proposition of law that the evidence of child witness is required to be scrutinised and appreciated with great caution.

Court in view of the well-settled law examined whether the evidence adduced by the prosecution, particularly the testimony of the victim is trustworthy, credible and can be relied upon.

Victim clearly stated that she was misled by the accused/appellant Jonny and he took away her to his house and committed rape upon her by extending threat. The statement of PW-2 has also been corroborated by the mother of the victim PW-1.

Further, there are catena of Judgments of the Supreme Court of India that it is necessary for the Court to have a sensitive approach when dealing with the cases of rape.

In the Supreme Court decision of State of Punjab v. Ramdev Singh, (2004) 1 SCC 421  it was held that,

Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity.

It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor. It leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society.

Bench stated that it has been established that in the absence of a family member of victim, the accused/appellant fraudulently called the victim to his house. On being called the victim reached the house where appellant forcefully committed rape. In these facts and circumstances in an ordinary procedure it cannot be said to be a case of false implication.

Prosecution by cogent and credible evidence is able to prove the charge under Section 376 IPC against the appellant.

In the present matter, victim is a minor and an adult committed rape on a girl of tender age, deterrent punishment is called for, taking a lenient view is out of the question.

Presently the appellant is incarcerated for more than 7 years. Conviction of the appellant is confirmed under Sections 376, 342 & 506 IPC. So on the point of conviction, the appeal is dismissed.

On the quantum of the sentence, this Court thinks that the end of justice would be met if the appellant is sentenced to imprisonment which he has already undergone.

In view of the above, the appeal is finally disposed of. [Jonny v. State of U.P., Jail Appeal No. 343 of 2018, decided on 03-09-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

The National Human Rights Commission, India has taken suo motu cognizance of media reports that an 18-year old Dalit girl was found raped and murdered in Lakhimpur Kheri, Uttar Pradesh after she stepped out to fill a scholarship form online as she did not have internet access at home. She was a first-generation learner in her family and had aspirations of landing a government job to lift her family out of poverty.

The Commission has issued notices to the Chief Secretary and the Director-General of Police, Uttar Pradesh calling for a detailed report in the matter within 4 weeks. The report must mention the status of the statutory relief and any other assistance provided by the state government to the family of the victim.

Criminal intent

The Commission has observed that apparently, the people with criminal intent have no fear and respect for law and the innocent women, particularly from the vulnerable classes of the society are easily targeted by them. This is the duty of the state to make a fearless environment for its citizens so that they can live with respect and dignity.

Murder

According to the media reports, carried today on 27th August, 2020, the girl was murdered by a man whose marriage proposal she had rejected. The man was arrested on Wednesday. The dead body was found on 25.08.2020 in a dried pond in an area that falls under Neemgaon police station jurisdiction.

Heinous Crime

Reportedly, the girl, second of four children of the family, was the one, the parents had pinned their hopes on. She had just passed class 9th and was about to start her class 10th, the first one from her family to study up to that level. The only source of income for the family is a 2 Bigha plot. The girl aiming to get a Scheduled Caste scholarship would have helped ease some of the financial burden on the family but before it could happen, she became the victim of a heinous crime.


National Human Rights Commission

Press Release dt. 27-08-2020

Case BriefsHigh Courts

Madhya Pradesh High Court: Vijay Kumar Shukla, J., allowed the bail application filed by the applicant-accused in connection with the FIR registered for offence punishable under Sections 376(2)(j), 376(2)(i), 376(2)(n) of the Penal Code, 1860 and Sections 5/6 of POCSO Act.

The alleged facts of the case are such that the applicant has been charged with rape when he sexually exploited the victim aged between 13-15 and who happens to be mentally challenged. The applicant has been in custody for the past nine months.

Counsel for the respondent, Jagat Singh reiterated the victim’s mother’s statement and mentions that the present case is made out of the same.

It was contended by Vikas Mishra, counsel for the applicant that the offence could not be attributed to the applicant because of the sole reason that the applicant is physically incapable of performing the act of sexual intercourse. As per the MLC diagnosis of the applicant, it is not humanly possible for him to commit the crime he’s been charged with as he is physically incapable of performing sexual intercourse.

The Court while pronouncing the judgment, took his medical condition into consideration.

Hence, the Court upon perusal of the facts, circumstances and arguments observed that it has been established that the applicant is not medically fit and competent to perform the act of sexual intercourse. Further, considering that the applicant has been in jail since 11-11-2019, the present application has been allowed.

In view of the above, the applicant has been granted bail. [Vanshdhari Kol v. State of Madhya Pradesh, 2020 SCC OnLine MP 1844, decided on 28-08-2020]

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: A Division Bench of K.K. Wickremasinghe and Devika Abeyratne, JJ., allowed a Revision Application which was filed in order to set aside the order of the High Court Judge of Kandy and impose an appropriate sentence.

The prosecutrix was aged 12 years at the time of the commission of the alleged offence committed by her biological father and he was booked under two charges first one being Section 364 (3) of the Penal Code amended by Act no. 22 of 1995 and secondly under Section 365 B (2) b of the Penal Code amended by Act No. 22 of 1995. When the charges were being read out the accused-respondent had pleaded not guilty and later before the conclusion of evidence he had pleaded guilty to both charges. Accordingly, the High court had imposed 1-year rigorous imprisonment suspended for 20 years and a fine of Rs 10,000 for both the charges each. He was also ordered to give Rs 2,00,000 to the prosecutrix as compensation.

The Counsel for the petitioner, Chathuri Wijesuriya had submitted various grounds as exceptional circumstances which warranted exercising revisionary jurisdiction the Court which included Lawful sentence to be imposed as per the amended Penal Code, Applicability of SC Appeal No. 17 of 2013 and factors to be considered while determining a sentence.

The Court relied on a number of landmark Judgments as of The Attorney General v. H.N. de Silva, 57 NLR 121; Attorney General v. Jinak Sri Uluwaduge, [1995] 1 Sri LR 157; The Attorney General v. Mendis, [1995] 1 Sri LR 138 and concluded that the accused-respondent should have been given deterrent punishment. The Court while allowing the Revision Application stated that the Respondent had committed the grave crime with proper pre-planning to his own daughter thus the sentence imposed by the High Court was grossly inadequate. The Court further modified the sentence making the imprisonment of 15 years in the first charge and 7 years in the second charge respectively. [Attorney General v. Hewaduragedara Nilantha Dilruksha Kumara, CA (PHC) APN: 01 of 2017, decided on 26-08-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Kerala High Court: P.V. Kunhikrishnan, J., allowed the anticipatory bail application of the applicant-accused in connection with the FIR registered for offence punishable under Section 376 read with Section 34 of the Penal Code, 1860.

The factual matrix of the case is such that it has been alleged that the applicant has committed rape on the victim in room No. 8 of Kripa Annex, Ernakulam North with the help of the co-accused.

Counsel for the applicant, Latheesh Sebastian has vehemently denied these allegations levelled against the applicant by submitting that the accused and the victim are in love and that the case has resulted out of a misunderstanding with the father in law of the victim. The father-in-law of the victim who happens to be the de-facto complainant has filed an affidavit in this Court stating that the marriage of the applicant and victim has been fixed. The victim has also forwarded an affidavit stating that she has no objections if the present proceedings are quashed. The counsel stated that he is in the process of getting the proceedings quashed. With the quash proceedings at the brink, it would be an act of grave injustice if the applicant is arrested.

Counsel for the state while opposing the bail called for the imposition of stringent conditions in a situation where the bail is granted. It’s been stated that the case is made out of the statement given by the victim.

The Court drew an inference from the principle enunciated in the case of P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 66 that “bail is the rule and jail is the exception”.

The Court upon perusal of the facts, circumstances and arguments advanced observed that there is a love affair between the victim and the applicant based on the affidavits by the de-facto complainant and the victim. Even though marriage will not wipe off the offence but the fact has to be considered that the victim and accused are on their way of solemnizing a wedding in the near future.

In view of the above, the present application has been allowed, granting anticipatory bail to the applicant.[Amal Sha v. State of Kerala, 2020 SCC OnLine Ker 3495, decided on 24-08-2020]

Case BriefsHigh Courts

Meghalaya High Court: W. Diengdoh, J., rejected an anticipatory bail application which was filed when an FIR under Section 3(a)/4 of POCSO Act was lodged by the Complainant as the mother of the victim alleging that the petitioner had sexually assaulted and raped her minor daughter, after which she was sent for medical examination. During the time of the formal investigation, the petitioner had approached the Court of the Special Judge (POCSO), who had initially granted interim bail to the petitioner and had called for the case dairy and after finally hearing the parties and had rejected the application of the petitioner ordering him to be arrested in the said case. Thus, the instant application was filed with this Court asking for a grant of pre-arrest bail on the ground that he apprehended arrest.

The counsel for the respondent, K. Khan and A.H. Kharwanlang, opposed the grant of the bail contending that statement of the victim clearly stated that she was raped by the petitioner and statement of the petitioner states his admission to the fact that there was sexual intercourse between him and the victim, who was a minor and therefore commission of offence under Section 3 of the POCSO Act had been made out.

The Court stated that though the petitioner had not strenuously denied that he had committed the alleged offence, he had however tried to cast some doubt on the same by stating that it was very unlikely to have committed the offence as the place of occurrence was the servants’ quarter where there were about nine other employees staying there further after perusal of the medical reports it was seen that the age of the victim was between 16 and 18 years, which basically meant that she was still a minor at the time of occurrence and by law, any act, sexual in nature with a minor is a crime.

Thus, considering the gravity of the offence the application of the anticipatory bail was rejected. [Heiratami Biam v. State of Meghalaya, 2020 SCC OnLine Megh 102, decided on 18-08-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia J. granted bail to the bail accused of facts and averments presented before him.

The facts of the case are that the prosecutrix made a written complaint wherein she alleged that one day while she was in the jungle grazing the cattle, one Dharmendra Kumar, i. e. accused committed rape and threatened her with life. After she made the complaint the accused was arrested under Section 376, 504, 506 and 354-D(2), Penal Code, 1860 and is behind bars since then. Hence the instant bail petition was filed.

Counsel for the petitioners, Ravi Tanta and Azad Kaith submitted that the accused is 26 years old and is a permanent resident of a nearby village hence he is not in a position to tamper with the evidence or flee from justice hence to keep him in custody for an unlimited period will not be justified.

Counsel for the respondents, S.C. Sharma, P.K. Bhatti and Kamal Kishore submitted that the accused is charged under a serious offence and hence is not liable to be released on bail.

After hearing both sides, the Court found it unfair to keep the accused behind the bars when he will be available for investigation and being a permanent residence of the place is not in a position to tamper with the evidence or flee from justice.

In view of the above, the bail is granted and petition disposed of.[Dharmendra Kumar v. State of H.P, 2020 SCC OnLine HP 1227, decided on 19-08-2020]


*Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Bombay High Court: M.G. Sewikar, J., denied bail to the applicant accused of deceiving the prosecutrix by giving false promise of marriage who submitted herself for sexual intercourse based on the misconception of facts.

The present application was filed for grant of anticipatory bail for offences registered under Sections 376, 417, 323, 504, 506 of the Penal Code, 1860.

Informant aged 20 years used to go for labour work at a poultry farm, where she got acquainted with the applicant and promised to marry her.

Applicant had sexual intercourse with the informant twice under the promise of marriage.

About 2 months before the filing of the FIR, the applicant called her and demanded sexual favour from the informant, but she denied on the pretext getting married. Applicant got enraged and beat her.

Later, the informant learnt that the applicant was already married.

Counsel for the applicant, R.S. Shinde and V.S. Badakh, APP for the State.

From the FIR filed, it is apparent that the prosecutrix gave consent for the sexual intercourse as the applicant promised to marry her. 

Question to be determined:

Whether the consent of the prosecutrix was a voluntary consent or it was a consent-based on the misconception of facts?

In case of rape under Section 376 of the Penal Code, more particularly, in cases where consent is obtained by giving false promise of marriage, it has to be ascertained whether the accused did not have the intention to marry the prosecutirx right from the inception.

For the above-stated aspect on the matter, the law was settled.

Section 90 of the Penal Code, 1860 talks about “Consent known to be given under fear or misconception” and the essential requirement for that is, the same must have been obtained under the misconception of fact and the accused must be aware that the consent was given in consequence of such fear or misconception.

Court observes that, investigation papers do not reveal that the prosecutrix had the knowledge that the accused was a married man before submitting herself for sexual intercourse. If she had submitted herself for sexual intercourse with full knowledge that the applicant was a married man, the consent would not be vitiated.

In view of Section 5(i) of the Hindu Marriage Act, a person cannot contract second marriage if his or her spouse is living.

In view of the above-stated provision, the applicant could not have legally married the prosecutrix during the subsistence of his marriage.

Further, the Court stated that the accused had knowledge that he would not be able to marry the prosecutrix as long as his marriage is subsisting. This fact clearly shows that the applicant had the intention to deceive the prosecutrix by giving false promise of marriage. Therefore, the consent given by the prosecutrix is vitiated because of the concealment of material fact by the accused from her.

Hence, in view of the above-stated facts, the applicant is not entitled to be released.[Siddharth Ramkrishna Chitte v. State of Maharashtra, 2020 SCC OnLine Bom 864, decided on 26-06-2020]

Case BriefsHigh Courts

Bombay High Court: Vinay Joshi, J., granted bail to the applicants who were accused of committing offence of unnatural sex without consent and outraging the modesty of a woman.

An FIR was lodged by a grown-up lady aged 41 years old against her husband and brother-in-law.

Allegations placed by the woman were that her husband i.e. Ravi time and again had unnatural sex with her against her consent. She also alleged that her brother-in-law i.e. applicant used to outrage her modesty and was demanding sexual favour.

Another crime was filed by the daughter of the applicant. The girl alleged against her uncle Ravi that while she was studying in 10th standard, he tried touching her inappropriately and outraged her modesty.

Applicants Counsel, S.P. Bhandarkar submitted that both the complaints are nothing but an outcome of matrimonial flued.

Unnatural Sex

Court noted that the marriage of strained couple sailed smoothly for 21 long years and has two children. After such a long time, the wife alleged unnatural sexual acts at the hands of her husband.

Though it is alleged that since inception, the husband was prone to seek unnatural sex, however, after a long gap of 21 years the matter has been reported to the police.

Bench cited the Supreme Court decision in the case of Navtej Singh Johar v. UOI, (2018) 10 SCC 1, wherein it was held that,

“Unnatural consensual sexual acts of adults in private are de-criminalized.”

Non-Consensual

In light of the above-stated decision, the offence would only be attracted if it was done without the consent of the adult.

In the present matter, it has been unfolded that the allegation was running for a period of 20 years, but, the complaint had been lodged thereafter. No medical evidence to support the allegations was placed in the complaint.

Court noted that both the FIRs were simultaneously filed, which speaks for itself.

In view of the above, both the applicants made out a case for grant of pre-arrest bail and Court disposed of the criminal applications. [Rajendra Ramkrushna Malve v. State of Maharashtra, 2020 SCC OnLine Bom 863, decided on 11-08-2020]