Rape

Case BriefsHigh Courts

Madhya Pradesh High Court: Subodh Abhyankar, J., dismissed a Criminal Revision filed by the petitioner under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

The allegation against the petitioner was that he is aged around 15 years old and on 16-01-2021 at around 10.30 AM he had committed rape of a minor girl aged around 10-11 years old whereby she was left bleeding for a prolonged period of time. In her statement to the Police, she has also stated that around three days earlier also, the petitioner had committed rape on her.

Counsel for the petitioner submitted that the Courts have erred in not considering the fact that none of ingredients of the proviso to Section 12 of the Act of 2015 are satisfied in the present case, as there is no evidence or material on record that if the petitioner is released on bail, he is likely to come in contact with known criminal or in the event of hisrelease, he would expose himself to moral, psychological or physical danger; and his release on bail, would defeat the ends of justice.

Court found that so far as the age of the petitioner was concerned, it was 15 years whereas the prosecutrix in the present case was 10 years 4 months and 2 days. Her MLC revealed that she was initially treated at District Hospital, Jhabua on 16-01-2021, wherein it was noted that she was bleeding from her vagina since afternoon and had changed 5-6 pads since then. Later, she was transferred to MY Hospital, Indore for further treatment, from where she was discharged on 21-01-2021 wherein her exploration and repair of posterior vaginal wall operation was also performed.

The Court after perusing the records opined that it was not a fit case to exercise its discretion to release the petitioner on bail. The conduct of the petitioner clearly reveals that he committed the aforesaid offence with full consciousness and it cannot be said that it was committed in ignorance. The Court stated that, “An offence of rape, being carnal in nature, cannot be committed unless a person has the specific knowledge of the same. Thus, his release, in the considered opinion of this court, would defeat the ends of justice.”

The Court while dismissing the petition observed that,

“The Legislature has still not learnt any lesson from the case of Nirbhaya which is reported as Mukesh v. State NCT of Delhi, (2017) 6 SCC 1 as the age of a child is still kept below 16 years in heinous offences under s.15 of the Act of 2015 giving a free hand to the delinquents under the age of 16 years to commit heinous offences. Thus, apparently, despite committing a heinous offence, the petitioner would be tried as a juvenile only, because he is less than 16 years old as provided under Section 15 Act of 2015. Apparently, the present law to deal with such cases is totally inadequate and ill equipped and this Court really wonders as to how many more Nirbhayas’ sacrifice would be required to shake the conscious of the lawmakers of this Country.”

[Sunil (Juvenile) v. State of M.P., Criminal Revision No.853/2021, decided on 25-06-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Appearance:

Counsel for the petitioner: Mr Vikas Rathi

Panel Lawyer for the respondent / State of M.P.: Ms Poorva Mahajan

Case BriefsHigh Courts

Chhattisgarh High Court: Goutam Bhaduri, J., allowed the petition and directed termination of pregnancy.

The instant petition was filed seeking termination of pregnancy under the provisions of the Medical Termination of Pregnancy Act, 1971 (for short Act of 1971).

Counsel for the petitioner Ms. Aditi Singhvi submitted that the petitioner was subjected to rape and the case was registered under sections 376, 376 (2) by result of such rape she conceived and is forced to continue the pregnancy which would eventually constitute a grave injury to the mental health of the pregnant woman.

The Court observed that the amended Section 3 of the Act of 1971 show that the length of pregnancy can be terminated in opinion of registered medical practitioner formed in good faith that pregnancy would cause grave injury to physical and mental health of woman and where the length of pregnancy does not exceed twenty weeks. Explanation 2 the same is prescribed wherein it is stated that the pregnancy which is caused by rape would presume to cause grave injury to mental health of the pregnant woman. The fact of rape is also supported by the State that the victim was subjected to rape. The report of the District Medical Board shows that the opinion was formed that MPT can be safely done as the pregnancy is within a period of 20 weeks and the victim is mentally and physically fit for the medical termination of the pregnancy.

The Court relied on judgment Suchita Srivastava v. Chandigarh Admn, (2009) 9 SCC 1 wherein it was held

“a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution”.

“22. There is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children.”

The Court directed “the petitioner shall be entitled to Medical termination of pregnancy. In order to carry out the pregnancy State shall form a panel of expert doctors at the District Hospital Durg as early as possible.”[ABC v. State of Chhattisgarh,  2021 SCC OnLine Chh 1728, decided on 25-06-2021]

Arunima Bose, Editorial Assistant has reported this brief.


Appearance

For Respondent/ State :  Shri Alok Bakshi

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., granted anticipatory bail to a constable accused of rape and other offences as detailed below.

Instant anticipatory bail application was filed in crime registered under Sections 376(2)(n), 354(5), 417, 419, 427, 504, 506(2), 502 of the Penal Code, 1860 read with Section 66(C) of the Information Technology Act, 2000.

Applicant was attached to constabulary cadre of the Maharashtra Police and was serving at the traffic Department, Malabar Hill, Mumbai.

Complainant developed a close friendship with the applicant after being deployed and the same took the form of a love affair. Later, the complainant alleged that the applicant had suppressed his marital status.

Though the complainant alleged, the applicant had informed her, his wife was psychologically unwell and hence he desired to divorce his wife. Further, in the year 2018, the applicant borrowed money from the complainant from time to time and when she demanded her own money from him, he abused her.

Applicant on the false promise of marriage persuaded the complainant to succumb to physical desires at various places and hotels.

It was also alleged that the applicant had recorded her obscene videos and was threatening to upload the same on social media and disseminate the same to her relatives if she refused to maintain the relationship with him.

Applicant damaged the complainant’s cell phone to cause disappearance of the evidence.

After such incidents, complainant disclosed everything to applicant’s wife. She also added that her proposed marriage broke down, since the applicant sent some objectionable messages to the sister of her fiancé.

Decision

Bench stated that on taking into consideration the facts of the case, prima facie opined that since he has been suspended from service and is available for investigation, a case for granting interim-pre-arrest protection was made.

High Court directed the investigating officer to place the reports for further consideration on 19-07-2021.

Lastly, the Court added that the applicant shall join the investigation as and when called and shall not contact the complainant or influence prosecution witnesses. [Madhav Krishna Vasave v. State of Maharashtra, 2021 SCC OnLine Bom 833, decided on 4-06-2021]

Advocates before the Court:

Mr. S.R. Nargolkar i/by Shri Arjun Kadam for the Applicant.

Ms. P.P.Shinde, APP for the Respondent-State.

Mr. Shrikant S. Rathi for the Complainant/Intervenor.

Case BriefsSupreme Court

Supreme Court: In a case where the Gujarat High Court had stayed the arrest a person accused for offences under sections 376(2)(F), 376(2)(N), 377, 354(A), 354(D), 503, 506(1) and 509 of IPC and sections 66(E) and 67(A) of the Information Technology Act, 2000, the bench of BR Gavai and Krishna Murari, JJ has remitted the matter to the High Court and has asked to record the reasons in support of its order.

The High Court had, while issuing notice on the application for anticipatory bail, directed that the applicant shall not be arrested in the meanwhile.

Stressing upon the need for a reasoned order, the Court said,

“In such serious matter, when the High Court exercised its power of granting ad interim protection from arrest to the respondent no.2 herein, the least that is expected by the High Court is to record some reasons as to why it chooses to exercise its extra-ordinary jurisdiction. From the perusal of the impugned order, it could clearly be seen, that no reason even for namesake has been recorded in the impugned order.”

[Sorathia Bindi v. State of Gujarat, 2021 SCC OnLine SC 419, order dated 01.06.2021]

Case BriefsHigh Courts

Punjab and Haryana High Court: The Bench of Arun Monga, J., expressed disbelief on how an all men SIT could be deployed to investigate into sensitive offences like rape contrary to legal provisions. The Bench constituted another SIT to be headed by a female officer. The expressed,

“The allegations and factual averments contained in the petition are so grisly and frightful, one can only hope, that the same are fictitious.”

On the argument of the defendant that a honey trap was laid by the petitioner, which later boomeranged on her, the Bench said, if that be not so, then it was a case which reflected the sordid state of affairs in Punjab Police. The Bench remarked,

“The very protectors/enforcers of law and order have turned into predators, making a young 38 years old widow mother victim of their lust.”

To maintain and respect the privacy of the petitioner the Court refrained to give the narrative of the incident. The facts of the petitioner was that when she declined to succumb to the sexual favor sought from her by the police officials her 19-20 year old son was picked up by CIA police officials in broad day light while he was suffering/convalescing from Covid-19 infection at his residence. The petitioner contended that an FIR, allegedly a fake one, was registered against her son under NDPS Act by planting contraband on him so as to arm twist the petitioner. Eventually, under duress to get her son released, she yielded to the sexual demands of the CIA staff. To substantiate her allegations, petitioner had also appended a pen drive which contains the recorded conversations between her and respondent 5 as well as certain live video clippings in support of her rape allegations, a heinous crime otherwise, but was being termed as honey trap by the defense.

Opining that truth will only unfold in time once it is properly investigated; the Bench replaced an all men SIT with another SIT with female members and head. The Bench said,

“It is rather intriguing, given the nature of sensitive investigation, that no lady police official has been involved, which is even otherwise the requirement of law in cases of this kind. To say the least, it is highly deplorable to see the insensitiveness with which the district police officials have acted, in constituting the SIT having all male members.”

Hence, constituting an all women SIT the Bench directed that the investigation shall also be carried out by the lady IO/police officer in both the cases registered under Section 376 IPC and registered under Section 18(b) of the NDPS Act, 1985. Additionally, the Bench asked the State what steps had been taken under the “Witness Protection Scheme, 2018” as per judgment rendered by the Supreme Court in Mahender Chawla v. Union of India, (2019) 14 SCC 615, as the petitioner was fearful that the police officials who were involved in the case, may try to bodily harm her and tamper with the evidence and/or destroy the same. Lastly, the Bench sought reply from the State as to the steps taken so far to proceed against the accused, in criminal proceedings arising out of both the FIRs, as well as departmental action taken, if any.

[Veerpal Kaur v. State of Punjab, 2021 SCC OnLine P&H 1033, decided on 25-05-2021]

Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For the Petitioner: Adv. Gurpreet Singh Bhasin
For the State of Punjab: DAG Sandeep Singh Deol

Case BriefsDistrict Court

District and Sessions Court at Panaji: After a trial which went on for 7 years 2 months and 25 days, Kshama M. Joshi, Additional Sessions Judge, Mapusa, acquitted Tarun Tejpal, former Editor-in-Chief of Tehelka, who was accused of committing rape on a journalist working with Tehelka. The court gave benefit of doubt to accused, noting major lapses in investigation and major contradictions/improvements in testimony of the prosecutirx. The incident is of 2013 which allegedly happened during the annual THiNK Fest of Tehelka organised in Goa.

Allegations against the accused

The prosecution’s case was that between 7th and 11th November, 2013 the THiNK Fest was organised by Tehelka Magazine in Goa. It is alleged that during that fest, Tarun Tejpal, the then Editor-in-Chief of Tehelka, had sexually assaulted a female journalist associated with the magazine. It is alleged that he committed the offence of wrongful restraint/confinement, sexual harassment and rape.

The prosecutrix had alleged that on 7-11-2013 (one of the nights of the event) on the pretext of “waking up the American actor Robert De Niro” (the Chief Guest at the festival, for whom the prosecutrix was chaperoning), the accused took her to one of the guest lifts of Hotel Grand Hyatt where he wrongfully confined the prosecutrix using force against her wish and committed rape on her. Further, on the next night of 8-11-2013, the accused took her to another guest lift and again sexually assaulted her.

On completion of police inquiry, the trial court framed charges against the accused of offences punishable under Sections 354, 354-A, 354-B, 376(2)(f), 376(2)(k), 341 and 342 IPC.

Defence of the accused

Case of the accused was of total denial. He submitted that no such incident as alleged took place and that there was a drunken banter between him and the prosecutrix.

Trial Court’s decision

The Additional Sessions Judge of the District and Sessions Court at Panaji determined as many as six questions to return a finding of Not Guilty in favour of the accused. The court answered five out the six questions in favour of the accused:

(a) Whether accused committed rape as defined in Section 375(b) and (d) IPC?

Answered in negative, in favour of the accused.

(b) Whether accused used criminal force to outrage modesty of the prosecutrix?

Answered in negative, in favour of the accused.

(c) Whether accused had physical contact and made advances involving sexual overtures causing sexual harassment to the prosecutrix?

Answered in negative, in favour of the accused.

(d) Whether accused used criminal force with intention of disrobing the prosecutrix?

Answered in negative, in favour of the accused.

(e) Whether accused was in a position of trust or authority and in a position of control or dominance over the prosecutrix?

Answered in positive, against the accused.

(f) Whether the prosecutrix was wrongfully confined in the lift by the accused?

Answered in negative, in favour of the accused.

Law and Analysis (reasons given by the court)

1. Burden of proof

At the very outset, the court recorded that the burden is on the prosecution to prove beyond reasonable doubt that the accused committed the offences as charged, and that burden does not shift.

2. Victim’s testimony in a rape trial and its probative value

The court noted the settled position of law that the conviction of the accused in cases of rape or sexual harassment can be based on the sole testimony of the victim if the court finds that her deposition is of sterling quality which inspires confidence and is absolutely trustworthy, and that immoral character or previous sexual experiences of the victim is not relevant for deciding such cases.

After this, the court noted that the victim is well educated, a journalist well conversant with amendments to IPC after Nirbhaya’s case and who has dealt with issues relating to offences against women including rape and sexual assaults. Based on deposition of prosecution witnesses, it was noted that the prosecutrix is extremely capable, intelligent and independent person.

2.1. Possibility of doctoring of events with help of experts

According to the court, there are many facts on record which create doubt on truthfulness of the prosecutrix. There was a delay in lodging FIR and the prosecutrix refused to go for medical examination. She was in touch with lawyers even prior to drafting the complaint and sending to the Managing Editor of Tehelka. It has been recorded by the court that “Advocate Rebecca John“, among others, was guiding the prosecutrix about the course of action. It is also recorded that the prosecutrix was in contact with “Advocate Indira Jaisingh” (who is a friend of stepmother of the prosecutrix and whose number is saved by the name of Brahmastra).

The court, after discussing as above, concluded that:

“With the help of experts, there may be a possibility of doctoring of events or adding of incidents. Advocate for the accused has this rightly submitted that the deposition of the prosecutrix has to be scrutinised in that angle.”  

2.2. CCTV footage

After recording the horrific details provided by the prosecutrix about all that took place inside the lift of Hotel Grand Hyatt on the night of 7-11-2013, the court recorded that:

“The CCTV footage does not support the statement that she was in shock or trauma and blinking in tears.“

2.3. False/inconsistent statements

Based on her statement regarding her complaint on a previous occasion sometime in 2012 when she along with her friends was allegedly molested by a police officer, the court further recorded that:

“[Prosecutrix] states that she did not approach the police immediately after the first incident [at the THiNK Fest 2013] as she was too afraid of the police which show that the victim is making a false statement that she is afraid of the police which is clear from the incident narrated by her which took place in Delhi against the police officer.”

The court also concluded that the prosecutrix had made inconsistent statements. Scrutiny of evidence of the prosecutrix, according to the court, revealed several discrepancies/changes in her version, each constituting either material omissions and contradictions or improvements in her original narrative which was given and continually shifting details of the account she had proffered.   The court was also of the view that the CCTV footage did not support her statements.

2.4. Preparing a strong case

Noting that the prosecutrix pressured the Managing Editor of Tehelka to submit an apology on her terms on a claim that it would bring closure to the incident, the court formed an opinion that:

“However, the WhatsApp records show the [the prosecutrix] had already enlisted a battery of friends and networks to release such material on social media the moment the apology reached her. It is evident that the prosecutrix obtained apologies of accused from [the Managing Editor] in support of her accusation before the prosecutrix went public.”

3. Flirtatious and sexual conversations

Referring to WhatsApp messages between the accused and the prosecutrix, the court concluded that she did not contradict that both of them were drunk and it was nothing but a drunken banter, as suggested by the accused. This non-denial by the prosecutrix of the accused’s assertion gave adverse inference against her.

The accused in his defence stated that in fact it was the prosecutrix who was talking about her intimate escapades with Bob Geldof, Irish singer and a former speaker at THiNK 2012,  and also that how she was attracted towards the accused.

The court noted that:

“… thousands of her WhatsApp chats … provide a glaring proof of the prosecutrix’s conversations with a wide range of people. … The messaging record shows that it was entirely in the norm for the prosecutrix to have such flirtatious and sexual conversations with friends and acquaintances.”

Therefore, concluded that court, that her chats and her propensity to indulge in sexual conversations with friends and acquaintances, as well as her admission that the accused was talking about sex or desire, proves that the accused and the prosecutrix had a flirtatious conversation on the night of 7-11-2013.

4. Lying about intimate relationships

The court referred to the prosecutrix’s statement which, according to the court, was a brazen attempt at concealing her highly intimate and candid relationship with one N, a defence witness. Her chats with N, as also N‘s own statement, revealed that they were close friends and have had an intimate relationship.

The court here clarified that such evidence/chats were referred not for the purpose of proving her character but only to show that she was lying and that she twists and manipulates truth as she did by significantly understating the intimacy of her relationship with N. According to the court, it was difficult to believe that the prosecutrix is a truthful and reliable witness,

5. Evidence of N

The court extensively referred to the evidence given by N, prosecutrix’s friend and a defence witness, which contradicted the evidence of prosecutrix in material particulars. N was the first person who the prosecutrix met after the incident, but the investigation officer failed to record his statement nor investigate him. Hence, in court’s opinion, the evidence of N was relevant and admissible under Section 6 (facts forming part of same transaction) of the Evidence Act.

6. Glaring contradictions not expected from educated journalist

The court compared the email (complaint) of the prosecutrix sent to Tehelka’s Managing Editor with her statement under Section 161 CrPC, and noted “material contradiction”. In her email, the prosecutrix stated that “she picked up her underwear” and began walking out of the elevator. Saying that she picked up her underwear means that it was taken off the body and was not just pulled down. Taking it off was not possible as that would require lifting up of her legs. While in her statements under Section 161 and 164 CrPC, she stated that “she pulled her underwear” and began walking out.

Such “glaring contradictions“, said the court, “cannot be expected from educated journalist like [the prosecutrix] and forces the court not to believe the incident of rape“.

7. No revelation to prosecution witnessess

The court noted the evidence of a few prosecution witnessess who said that the prosecutrix only told them that accused forced his tongue in her throat, grabbed/attempted to pull her underwear and asked the colour of it. There was no accusation of removing her underwear, and penetrating her vagina with tongue/fingers.

The court said that if the rape on the prosecutrix at all happened, why she did not reveal or atleast hint about the same to the abovementioned prosecution witnesses. Also, the version disclosed by the prosecutrix to these witnessess was not at all consistent with the case she has now put up. In fact, this is inconsistent with the version of prosecutrix herself.

8. Not showing emails to court

The prosecutrix was asked whether she could show her email account to the court to which she denied. She stated that it was invasion of her right to privacy. In court’s opinion, the statement of the prosecutrix that she would not show the email to the court shows that she wants to hide something and thus she cannot be called reliable and trustworthy and evidence cannot be held to be of sterling quality.

9. Absence of injury

The court noted that the prosecutrix claimed to have physically resisted the accused with all her force and that she was constantly struggling. However, she admitted that she did not receive any injury out of the incident. According to the court, “it is not believable that the prosecutix would throw up such resistance and would not suffer any injury on her body“.

10. Narrative of extreme implausibility

Noting the position (where and how) the prosecutrix and the accused were standing in the lift, the court wondered that if she was not in a conversation with the accused and her mouth was not open, and she was not facing the accused, would it be possible for the accused to pry her mouth?  It was observed by the court that:

“If the prosecutrix had held her jaw firmly closed, how it would be possible for the accused to put his tongue in her mouth. The prosecutrix stated that she pushed the accused as hard as she could and she did so instinctively and reflexively whenever she pushed him. If the prosecutrix pushed the accused instinctively and reflexively, why wouldn’t she push the accused before he kissed when she was pushed against the wall or atleast put her hands in between to prevent the accused from coming close.”

This, in court’s opinion, was a narrative of extreme implausibility and it was not possible to believe that the prosecutrix, a woman who is aware of laws, intelligent, alert and physically fit (a Yoga trainer) would not push or ward off the accused.

11. No warning to the accused and no fight back

The court noted that in her evidence, the prosecutrix clearly stated that she regularly pushed away the accused. Then it was also noted that the prosecutrix had stated that she did not warn or intimidate the accused when he went down on his knees as she claims that he was more powerful than her. She also admitted that she did not fight back against the accused when he began to disrobe her during the incident.

According to the court, the voluntary statement of the prosecutrix that she was too scared of the accused and still in shock could not be believed. It was concluded by the court that:

“Hence, the allegation of rape and sexual assault cannot be said to have been proved by the prosecution beyond reasonable doubt.”

 12. No confession by accused

The prosecution submitted that in his apology given to the prosecutrix, the accused did not deny sexual molestation and, thus, has admitted the allegations made against him.

On this, the court discussed as to what is confession. It said that ordinarily, confession by a person is an act of admitting that he has done something wrong or illegal. In court’s opinion, the apology email sent by the accused reveal that there was absolutely no admission/confession of any incriminating fact even remotely suggesting sexual assault by the accused on the prosecutrix. That email is not a reply to any previous email sent to the accused by the prosecutrix containing any allegations of sexual assault, to claim that since the allegations were not denied, it amounted to a confession. In fact, it was not an apology but an attempt to assuage any discomfort the prosecutrix might have post facto felt. The court then went on to observe:

“Further, her statement that the accused offered to apologise to her mother and partner for the same certainly do not make out a case of sexual molestation, and it is clear that the prosecutrix is manipulating an interpretation to suit her case.”

13. Calculated actions of prosecutrix

The court noted that the prosecutrix had recorded her calls with Tehelka’s Managing Editor and these conversations were copied on DVDs which were submitted. According to the court:

“It is important to note that since she failed to inform [the Managing Editor] that she was recording the conversation – which means she could control anything she herself said in the conversation, but the other party to the call was left at the mercy of her manipulation. This is also a clear indicator of the calculated nature of her actions.”

In any event, said the court, such conversation was not relevant against the accused as he was not a party to the conversation.

14. Prohibition of Sections 53-A and 146 of the Evidence Act

Following the prohibition prescribed in Sections 53-A and 146 of the Evidence Act, the court decided to gloss over some WhatsApp chats and questions asked to the prosecutrix as well as several wintessess. Sections 53-A and 146 prohibit the evidence of general moral character and previous sexual experiences of the victim in certain cases (including cases of rape) where consent of the victim is in question.

15. The lift and the CCTV footage

The court noted certain facts regarding the lift where the incident allegedly took place. Firstly, the prosecutrix had stated that the accused kept pressing buttons on the lift panel to keep it in circuit without doors of the lift opening. To this, after perusing the evidence, the court concluded that much prior to the cross-examination of the prosecutrix, there was unequivocal evidence that the lift simply could not be kept in circuit by pressing buttons on the lift panel preventing the doors from opening at any floor, as claimed by the prosecutrix. Further, the prosecutrix did not recollect how many times the lift went up and down during the two minutes when she was being assaulted, thereby implicitly not denying the fact that the lift was in motion, and creating even more ambiguity about the lift being in motion or stationary.

However, it was noted by the court that the CCTV footage of the ground floor clearly showed that the guest lift was in motion during the two minutes and the doors of the lift opened at least twice on the ground floor.

16. Investigation lapse    

The court made several observations regarding lapses in investigation, including improper inspection of functioning of the lift where the crime allegedly took place. The court went to the extent of observing that the Investigating Officer deliberately concealed empirical evidence of the true functioning of the emergency red button of the lift from the court though available, as it contradicted the version of the prosecutrix and the prosecution case.

Prosecution’s case was that the accused pressed the red button for preventing the doors from opening. It was attempted to show that the red button of the lift was disabled after the incident, hence its exact functioning could not be inspected. To this, the court said that if documentation was created regarding disabling of the emergency red button by Hotel Grand Hyatt and Mitsubishi, it was quite strange that all documents relating to same would go missing both from Hotel Grand Hyatt and Mitsubishi.

All in all, the court concluded that prosecution’s case that the accused prevented the lift door from opening and that he wrongfully confined the prosecutrix, was not proved.

17. Destruction of most crucial CCTV footage

The accused took the defence that he and the prosecutrix were not in the lift during the relevant two minutes, but had exited the lift on the first floor. To prove this, CCTV footage of the first floor of guest lifts of 7-11-2013 (the night of the alleged incident) was most vital to the accused. On the day of registration of FIR, i.e. 22-11-2013, itself, the accused had demanded that police should procure such CCTV footage from the hotel, which would establish his innocence.

Also, there was ample evidence to prove that there was in fact a CCTV outside the guest lifts of the first floor. Not only this, but the IO (as well as several other witnesses) also admitted to have seen the CCTV footage of all floors including that of the first floor. But on being asked as to what she saw in the footage of the first floor, the IO stated that she could not recollect.

The further course of action adopted by the her made it clear to the court as to how the IO went about selectively retaining only the ground and the second floor footage, and completely destroying the first floor CCTV footage of the guest lifts in which the alleged crime took place.

It was recorded that if the CCTV footage of first floor was viewed on 29-11-2013, then where did it disappear and there is absolutely no explanation to this from the prosecution. There was no reliable proof that the DVR was sealed on 29-11-2013 which creates even further possibility for tampering with the DVR. The court concluded that:

“It can be said that because the footage of the first floor would have wholly destroyed the prosecution’s case, [the Investigating Officer] sought to keep out the relevant footage for the first floor and render it unavailable. …

[The] only conclusion that can be drawn is that the Investigation Officer tampered with and destroyed the CCTV footage of the first floor guest lifts … since it would conclusively corroborate the defence of the accused.”

18. Not using possible escapes

The court found it surprising to believe that when the accused had assaulted the prosecutrix on the night of 7-11-2013, then why did she again follow him to the lift the very next night of 8-11-2013. According to her, the accused seemed to know how to stall the elevator at his will and she was afraid that he would take her into a room this time. The court said:

“Despite this so-called fear, [the prosecutrix] chose to follow him back to the elevator and does not use any possible escapes that are available to her.”

19. Conduct of  prosecutrix not natural of a sexual assault victim

The court was not amused by the conduct of the prosecutrix after the alleged incident which was repeated on the night of 8-11-2013. Firstly, she did not report about the incident to Tehelka’s Managing Editor even when she had a chance of meeting her alone in the VIP lounge. Also, in photographs taken shortly after the alleged assault, the prosecutrix looks in a happy and cheerful mood, and did not look distressed or traumatised in any manner whatsoever.

According to the court, this unnatural conduct of the prosecutrix is relevant under Section 8 of the Evidence Act. The prosecutrix admitted to have been updating the accused about her location via WhatsApp messages even after the alleged assault. The court said:

“[If] the prosecutrix had recently again been sexually assaulted by the accused and was terrified of him and not in a proper state of mind, why would she report to the accused and disclose to him her location when she could have reported to N, S and P, all of whom she was reporting and updating on a regular basis.”

It was recorded that the prosecutrix sending messages to the accused proactively, without any attempt by him to ask her where she was, and her sending the same message thrice in a span of very few minutes clearly establishes that she was not traumatised nor terrified of being located or found out by the accused, and belies the prosecution case that immediately before the said messages, the accused had sexually assaulted the prosecutrix again.

The court concluded:

“It is extremely revealing that the prosecutrix’s account neither demonstrates any kind of normative behaviour on her own part – that an prosecutrix of sexual assault on consecutive two nights might plausibly show, nor does it demonstrate any such behaviour on the part of the accused.”

20. Omission to record evidence of K

K was an integral member of THiNK 2013 production team. The prosecutrix stayed the night of 9-11-2013 at Hotel Grand Hyatt in the production room allotted to K. Firstly, in court’s view, this exposed the fact that the prosecutrix had no problem freely moving about the hotel where the accused was also staying. Then, K has written a letter to the IO to share information related to the case. He said that he had known the prosecutrix for some time, and that he had information regarding the details and mental state of the prosecutrix during the festival, particularly on the night of 9-11-2017.

However, the IO despite receiving the said letter, did not record the statement of K. The court said that the IO dealt with the material in a casual manner and failed to even record the statement, let alone probe, verify and investigate all material potentially available in order to arrive at the truth.

21. Using allegation as a necessary escape for her peace of mind

The prosecutrix had stated that after the conclusion of THiNK 2013, she had to stay back in Goa before going home as she was traumatised and also because her mother along with her colleagues would be staying at her flat in Mumbai for a couple of days. But, the court looked at certain evidence which included her WhatsApp chats and found that the prosecutrix had a prior plan to stay in Goa with D, her Russian boyfriend, before and after the event.

The court concluded:

“[The] prosecutrix had always planned to stay in Goa with D post THiNK and is only using allegation of sexual assault to make it appear like a necessary escape for the sake of her peace of mind when it was always a pre-planned, pre-meditated trip.”

Also, the fact that after the event, the prosecutrix stayed with two of her friends at a hotel in Goa, as asserted by her, was found not proved.

22. Faulty investigation

The court had a long discussion about the material lapses and omissions on the part of Investigating Officer, some of which are mentioned above. It was also noted that the IO was also the complainant in the case (the police had initiated suo motu inquiry based on reports in media), even when there were other lady officers who could have conducted the investigation.

The court was of the opinion that:

“The settled proposition that the acquittal of accused cannot result due to defects in the investigation cannot be disputed, However, a duty is also cast on the investigating officer to conduct fair investigation in the matter to bring out the truth.”

Conclusion

The court held that deposition of the prosecutrix shows improvements and material contradictions, omissions and change of versions which does not inspire confidence. And that the accused ought to be given benefit of doubt as there is no corroborative evidence supporting allegations made by the prosecutrix. The prosecution failed to discharge the burden to prove guilt of the accused beyond reasonable doubt.

The accused was, therefore, acquitted of the offences punishable under Sections 376(2)(f), 376(2)(k), 354, 354-A, 354-B, 341 and 342 IPC. [State v. Tarunjit Tejpal, Sessions Case No. 10 of 2014, decided on 21-5-2021]

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara J. rejected instant bail application in light of the observations made by the Court.

The instant appeal was filed by the petitioner seeking regular bail, incarcerating upon his arrest for alluring and raping a minor girl.

Counsel for the petitioner Mr.Rajesh Mandhotra submitted that the petitioner has no criminal past relating to the offences prescribing sentence of seven years and more, or when on conviction, the sentence imposed was more than three years. It was further submitted that incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

Counsel for the respondent State Mr. Nand Lal Thakur submitted that that the crime is heinous, the accused is a risk to law-abiding people, and bail might send a wrong message to society.

The Court observed that the conduct of the accused is so deplorable that it would make the life of young friends belonging to the opposite gender as miserable. They took advantage of her being with the male friend and the main accused forced himself upon her and they not only did that, they also made a video and made it viral. The accused appears to be pervert and, as such, there is no question to grant the bail to the accused.

The Court thus held “in the facts and circumstances peculiar to this case, at this stage, the petitioner fails to make out a case for bail.”

[Rohit Kumar v. State of HP, 2021 SCC OnLine HP 4454, decided on 06-05-2021]

Arunima Bose, Editorial Assistant has put this report together

Case BriefsSupreme Court

Supreme Court: After the plight of a blind Scheduled Caste woman who was raped reached before the bench of Dr. DY Chandrachud and MR Shah, JJ, the Court did an in depth analysis of intersectional oppression, the punishment to be awarded in such cases and what all factors need to be considered by the Courts while dealing with such cases. The Court said,

“When the identity of a woman intersects with, inter alia, her caste, class, religion, disability and sexual orientation, she may face violence and discrimination due to two or more grounds. Transwomen may face violence on account of their heterodox gender identity. In such a situation, it becomes imperative to use an intersectional lens to evaluate how multiple sources of oppression operate cumulatively to produce a specific experience of subordination for a blind Scheduled Caste woman.”

In the present case, a blind girl belonging to a Scheduled Caste community was raped inside her own home by her brothers’ acquaintance. The accused was convicted under under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 19891 and Section 376(1) of the Indian Penal Code.

Uitlising the facts of this case, the Court explored a disturbing trend of sexual violence against women and girls with disabilities and to set in motion a thought process for how the structural realities resulting in this state of affairs can be effectively addressed.

“… women with disabilities, who inhabit a world designed for the able-bodied, are often perceived as “soft targets” and “easy victims” for the commission of sexual violence. It is for this reason that our legal response to such violence, in the instant case as well as at a systemic level, must exhibit attentiveness to this salient fact.”

Intersectionality and it’s analysis

Intersectionality can be defined as a form of “oppression [that] arises out of the combination of various oppressions which, together, produce something unique and distinct from any one form of discrimination standing alone…”.[1]

An intersectional lens is useful for addressing the specific set of lived experiences of those individuals who have faced violence and discrimination on multiple grounds. A single axis approach to violence and discrimination renders invisible such minority experiences within a broader group since it formulates identity as “totemic” and “homogenous”.

“A legal analysis focused on delineating specific dimensions of oppression running along a single axis whether it be caste, disability or gender fails to take into account the overarching matrix of domination that operates to marginalise an individual.”

An intersectional analysis requires to consider the distinct experience of a sub-set of women who exist at an intersection of varied identities. This is not to say that these women do not share any commonalities with other women who may be more privileged, but to equate the two experiences would be to play down the effects of specific socio-economic vulnerabilities certain women suffer. At its worse it would be to appropriate their pain to claim a universal subjectivity.

“… an analysis of intersectionality does not mean that we see caste, religion, class, disability and sexual orientation as merely “add ons” to the oppression that women may face. This is based on the assumption that gender oppression is oppressive in the same way for all women, only more so for women suffering marginalization on other grounds.”

Intersectionality requires Courts to analyse law in its social and economic context allowing us to formulate questions of equality as that of “power and powerlessness” instead of difference and sameness. The latter being a conceptual limitation of single axis analysis, it may allow certain intersectional claims to fall through the cracks since such claims are not unidirectional in nature.

Hence, there is a need for the Court to address and unpack the qualitative impact of the various identities an individual might have on the violence, discrimination or disadvantage being faced by them in the society.

Disabled Witnesses and their testimonies

A survey and analysis of High Court judgments by Saptarshi Mandal indicates that the testimony of the disabled witnesses is devalued by not recording the testimony of the prosecutrix at all; or recording it without adherence to correct legal procedure, thereby rendering it ineffectual; dismissal of the testimony for its lack of intelligibility or for not being supported by the condition of her body[2].

“This kind of a judicial attitude stems from and perpetuates the underlying bias and stereotypes against persons with disabilities. We are of the view that the testimony of a prosecutrix with a disability, or of a disabled witness for that matter, cannot be considered weak or inferior, only because such an individual interacts with the world in a different manner, vis-a-vis their able-bodied counterparts.”

As long as the testimony of such a witness otherwise meets the criteria for inspiring judicial confidence, it is entitled to full legal weight. It goes without saying that the court appreciating such testimony needs to be attentive to the fact that the witness’ disability can have the consequence of the testimony being rendered in a different form, relative to that of an able-bodied witness.

Protection of Members of Scheduled Castes and Scheduled Tribes

Section 3(2)(v) of SC & ST Act

Under Section 3(2)(v), an enhanced punishment of imprisonment for life with fine is provided where

(i) The offence is committed by a person who is not a member of a Scheduled Caste or Scheduled Tribe;

(ii) The offence arises under the Penal Code and is against a person or property and is punishable with imprisonment for a term of ten years or more; and

(iii) The offence is committed “on the ground that such person is a member of a Scheduled Caste or Scheduled Tribe” or such property belongs to such a person.

The key words in this Provision are “on the ground that such person is a member of a SC or ST”. The expression “on the ground” means “for the reason” or “on the basis of” and recognizes only a single axis model of oppression.

“…such single axis models require a person to prove a discrete experience of oppression suffered on account of a given social characteristic. However, when oppression operates in an intersectional fashion, it becomes difficult to identify, in a disjunctive fashion, which ground was the basis of oppression because often multiple grounds operate in tandem.”

However, the provision cannot be read as “only on the ground that the victim was a member of the Scheduled Caste.” The statutory provision does not utilize the expression “only on the ground”. Reading the expression “only” would be to add a restriction which is not found in the statute. The statute undoubtedly uses the words “on the ground’ but the juxtaposition of “the” before “ground” does not invariably mean that the offence ought to have been committed only on that ground.

“To read the provision in that manner will dilute a statutory provision which is meant to safeguard the Scheduled Castes and Scheduled Tribes against acts of violence which pose a threat to their dignity.”

A true reading of Section 3(2)(v) would entail that conviction under this provision can be sustained as long as caste identity is one of the grounds for the occurrence of the offence.

Section 3(2)(v) was amended by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, which came into effect on 26 January 2016. The words “on the ground of” under Section 3(2) (v) have been substituted with “knowing that such person is a member of a Scheduled Caste or Scheduled Tribe”, thereby, decreasing the threshold of proving that a crime was committed on the basis of the caste identity to a threshold where mere knowledge is sufficient to sustain a conviction.

“Section 8 which deals with presumptions as to offences was also amended to include clause (c) to provide that if the accused was acquainted with the victim or his family, the court shall presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise.”

The current regime under the SC & ST Act, post the amendment, has facilitated the conduct of an intersectional analysis under the Act by replacing the causation requirement under Section 3(2)(v) of the Act with a knowledge requirement making the regime sensitive to the kind of evidence that is likely to be generated in cases such as these.

However, since the offence in the present case took place before the amendment, on 31 March 2011, the Court held that the evidence in the present case does not establish that the offence in the present case was committed on the ground that such person is a member of a SC or ST. The conviction under Section 3(2)(v) was consequently set aside.

Why the accused in the present case deserved punishment no less than a life imprisonment?

  • Prosecuterix was blind since birth.
  • Accused was known o her brothers and used to visit their house often. T
  • Bereft of eye-sight, prosecuterix was able to identify the appellant by his voice with which she was familiar.
  • Shortly before entering prosecuterix’s home, he enquired of her mother where her sons were, when he was told that they were not at home. The appellant entered the house and subjected the prosecuterix to a sexual assault.
  • When the mother entered the house she found the prosecuterix in a nude condition on the ground bleeding from the injuries sustained on her genitals.

Hence, the nature and circumstances in which the offence has been committed would leave no manner of doubt that the appellant had taken advantage of the position of the woman who was blind since birth.

“A heinous offence has been committed on a woman belonging to Scheduled Caste. The imposition of a sentence of imprisonment for life cannot be faulted.”

[Patan Jamal Vali v. State of Andhra Pradesh, 2021 SCC OnLine SC 343, decided on 27.04.2021]

*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

For appellant: Advocate Harinder Mohan Singh

[1] 4 Mary Eaton, Homosexual Unmodified: Speculations on Law‟s Discourse, Race, and Construction of Sexual Identity, in LEGAL INVERSIONS: LESBIANS, GAY MEN AND THE POLITICS OF THE LAW, Didi Herman and Carl Stychin eds. (Philadelphia: Temple University Press 1995), p. 46.

[2] 1 Mandal, Disabled Women Testimony in Rape Trials, supra n. 23, p. 6.

Case BriefsHigh Courts

Patna High Court: Birendra Kumar, J., while addressing the matter stated that the present judgment as well as the Trial Court’s Judgment against which the appeal was filed required to be forwarded to the Director, Bihar Judicial Academy to ensure proper academic training to the judicial officers to make them conversant with the correct legal proposition.

Adding to the above, Bench expressed that Chief Justice may deem it proper that the trial judge who passed the impugned judgment needs special training at the Judicial Academy.

Appellant was charged under Section 376 of Penal Code, 1860 and Section 6 of the POCSO Act.

Trial Judge convicted the appellant for offence under Section 18 of the POCSO Act for the reason that no case of aggravated penetrative sexual assault was made out rather a case of attempt to commit penetrative sexual assault was proved against the appellant.

In the present appeal, Trial Court’s decision was challenged.

As per the facts of the case, appellant forcefully established a sexual relationship with a 13-year-old girl. The further allegation is that the appellant lifted her and was carrying her to commit her murder, but the family members came, and the appellant was apprehended and was handed over to the police.

Bench noted that none of the doctors who had occasion to examine the victim were produced as witness during the trial.

Prosecution’s report was not a substantive piece of evidence unless the expert appeared before the Court and supported the medical performance done by them. Therefore, no evidence was present in the case. Hence the impugned judgment of conviction was fit to be set aside.

High Court noted that the Trial Court Judge referred to Sanskrit shloka and Ghazals of Late Jagjit Singh while awarding the sentence against the appellant.

Bench expressed that Trial Judge especially a Judge having power to award death sentence must have correct knowledge of legal principles and zeal to its proper application while exercising the most onerous responsibility of taking decision on the life and liberty of the person before him.

Further adding to the above, Court stated that lack of knowledge of legal principles leads to miscarriage of justice and unnecessary harassment to the parties to the litigation. Bias and prejudices, conjectures and surmises and personal views contrary to the material on the record have no place in the court of law.

Court held that the trial Judge accepted the conflicting prosecution case as disclosed in the statement of the prosecutrix under Sections 154 and 164 CrPC for recording conviction without appreciating the fact that the aforesaid were not a substantive piece of pieces of evidence and the evidence brought during the trial did not disclose the commission of any offence or identity of the perpetrator of the offence.

Hence the impugned judgment and sentence was set aside. [Deepak Mahto v. State of Bihar, 2021 SCC OnLine Pat 770, decided on 12-04-2021]

Advocates before the Court:

For the Appellant/s: Mr N. K. Agrawal, Sr. Advocate. Mr Vijay Anand, Advocate.

For the Respondent/s: Mr Zeyaul Hoda, APP

Case BriefsForeign Courts

Supreme Court of Pakistan: In a significant decision, the 3 Judge Bench of the Court comprising of Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah, JJ., while deliberating upon issues revolving around the scientific veracity of virginity tests to ascertain rape and questioning a woman’s sexual history in order to discredit her witness; held that a woman irrespective of her sexual character or reputation, is entitled to equal protection of law. The courts should discontinue the use of painfully intrusive and inappropriate expressions, like “habituated to sex”, “woman of easy virtue”, “woman of loose moral character”, and “non-virgin”, for the alleged rape victims even if they find that the charge of rape is not proved against the accused. Such expressions are unconstitutional and illegal.

Issues: In the instant appeal filed by the rape accused, the Court upon perusing the facts and arguments presented by the parties, formulated the following issues-

  • Whether recording sexual history of the victim by carrying out “two-finger test” (TFT) or the “virginity test” has any scientific validation or evidentiary relevance to determine the commission of the sexual assault of rape.
  • Whether “sexual history”, “sexual character” or the very “sexuality” of a rape survivor can be used to paint her as sexually active and unchaste and use this to discredit her credibility.
  • Whether her promiscuous background can be made basis to assume that she must have consented to the act.

Perusing the aforementioned issues, the Court delved into the approaches of modern forensics vis-à-vis TFT and studies conducted by Pakistan’s National Commission on the Status of Women (NCSW) on the point. The Bench also took note of the approach taken by the World Health Organisation, the United Nations and United Nations Entity for Gender Equality and the Empowerment of Women on the matter. It was observed that Modern forensic science thus shows that the two finger test must not be conducted for establishing rape-sexual violence, and the size of the vaginal introitus has no bearing on a case of sexual violence. The status of hymen is also irrelevant because hymen can be torn due to several reasons such as rigorous exercising. An intact hymen does not rule out sexual violence and a torn hymen does not prove previous sexual intercourse. Hymen must therefore be treated like any other part of the genitals while documenting examination findings in cases of sexual violence. Only those findings that are relevant to the episode of sexual assault, i.e., findings such as fresh tears, bleeding, oedema, etc., are to be documented.

Considering the constitutional aspects, the Court stated that dragging sexual history of the rape survivor into the case by making observations about her body, is an insult to the reputation and honour of the rape survivor and violates Article 4(2)(a) of the Constitution of Islamic Republic of Pakistan. reporting sexual history of a rape survivor amounts to discrediting her independence, identity, autonomy and free choice thereby degrading her human worth and offending her right to dignity guaranteed under Article 14 of the Constitution, which is an absolute right and not subject to law. “Right to dignity is the crown of fundamental rights under our Constitution and stands at the top, drawing its strength from all the fundamental rights under our Constitution and yet standing alone and tall, making human worth and humanness of a person a far more fundamental a right than the others, a right that is absolutely non-negotiable”.

The Court also pointed out the deep gender biases and inexperience which riddle the medico-legal certificates, like- casually reporting the two finger test, to show that the vagina can admit phallus-like fingers to conclude that the survivor was sexually active at the time of the assault or a ‘virgin”; calling into question the character of the rape survivor etc. The Court stated that such callous approaches are used to support the assumption that a sexually active woman would easily consent for sexual activity with anyone. “Examination of a rape victim by the medical practitioners and use of the medical evidence collected in such examination by the courts should be made only to determine the question whether or not the alleged victim was subjected to rape, and not to determine her virginity or chastity”.

The Court also pointed out that the omission of Article 151(4) Qanun-e-Shahadat Order, 1984 (which allowed the opinion of medical experts as to the virginity tests while deciding rape cases), clearly implies a prohibition on putting questions to a rape victim in cross-examination, and leading any other evidence, about her alleged “general immoral character” for the purpose of impeaching her credibility. The said omission also indicates the legislative intent that in a rape case the accused cannot be allowed to question the complainant about her alleged “general immoral character”.

As a final point, the Bench observed that, “While allowing or disallowing such questions the court must be conscious of the possibility that the accused may have been falsely involved in the case, and should balance the right of the accused to make a full defence and the potential prejudice to the complainant’s rights to dignity and privacy, to keep the scales of justice even”.

[Atif Zareef v. The State, Criminal Appeal No.251/2020, decided on 04-01-2021]

Sucheta Sarkar, Editorial Assistant has reported this brief.

Note: The bench of Justice Ayesha A. Malik of Lahore High Court had also made similar observations in Sadaf Aziz v. Federation of Pakistan, wherein she held that virginity tests are invasive and blatantly violate the dignity of a woman.    

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Prasanna B. Varale and S.M. Modak, JJ., while addressing the present matter expressed that:

 “…relationship in between brother and sister, relationship in between mother and son, relationship in between father and daughter and so on were considered as sacrosanct. However, due to passage of time, these relationships have no more remained sacrosanct and there are various instances of overstepping the sacrosanct relationship by the near relationship.”

In the instant matter, appellant sexually abused his own daughter/victim. There are two views that is:

Whether the victim was a real daughter or a step-daughter. But the fact remains that she is victim.

Trial Court had convicted the appellant for the offence of Section 376 (2)(i), 506 IPC and under Section 4 of POCSO. A further separate sentence was imposed for the offence under Section of the said Act. Appellant had also obtained nude photographs of the victim on his mobile handset, trial court convicted him for the offence punishable under Section 67-B of the Information Technology Act 2000. Adding to this, the trial court acquitted the appellant for the offence punishable under Section 323 IPC.

In the present appeal, trial court’s judgment is challenged by the appellant.

Analysis, Law and Decision

Bench noted that the present matter was based on direct and corroborative evidence.

High Court considered the following:

Even though morally and legally Bench cannot think of a situation wherein the father has raped his minor daughter, but it is correct that Court is bound by rules of law. Even though such instances involving such a relationship are on rise, can Court take into account the evidence which is not admissible (as per existing provisions of law and on its interpretation) and convict the wrongdoer just for the purpose of sending a message in the society?

Bench stated that unfortunately, it cannot take such a view by bypassing the provisions of law.

Corroboration

Evidence given by way of corroboration cannot be said to be substantive evidence.

While elaborating on the concept of corroboration, High Court in light of the present context stated that when the trial court opined that the Section 164 statement can be utilized by way of corroboration, this Court fails to understand what the trial Court mean to say corroboration of which fact?

Trial Court failed to consider the difference and infact considered the Section 164 statement as substantive evidence itself. High Court stated that it is not permissible and hence the said observation was set aside.

Bench noted that there were image files of victim girls and video clips were pornographic. But there is a need to understand what is its evidentiary value, whether it is substantive evidence or whether it is a corroborative piece of evidence?

High Court for the above answered that the person who had seen the incident recorded or who is victim of events recorded can be the proper person and his evidence is substantive evidence. What is recorded and stored in the memory card when it is produced becomes corroborative piece of evidence.

Bench relied upon the following cases for the purpose of electronic evidence:

Bench laid down the finding that electronic evidence also needs to be proved just like any other evidence.

Further, the Court stated that it is not inclined to accept the FSL report at least for the purpose of inferring that it is the accused only who has taken those images or done recording. At the most, it can only be said that in the articles referred to in FSL report some pornographic images were found.

Bench stated that it was cautious of the relationship between the victim and accused. It was difficult to opine what compelled the victim not to state those facts which she stated before the police.

Present set of facts and circumstances warrants that there are certain materials suggesting sexual intercourse but the hands of the Court are tied due to the provisions of law.

Statement of the victim recorded under section 164 of CrPC has not been given the status of examination-in-chief in all circumstances (except in case of disability as provided in clause (b) to sub-section 5A to Section 164 of Cr.P.C.).

Supreme Court’s decision in Shivanna expressed the desire to consider the statement under Section 164 CrPC as examination in chief, amendment to that effect is not brought to Court’s notice.

Hence, with all pains, High Court had no alternative than setting aside the conviction of the appellant for the offence punishable under Section 376(2)(i) of IPC and under Section 506 of IPC, though conviction under Section 67-B of the Information and Technology Act was maintained.

Lastly, while parting with the decision, High Court opined that the authorities concerned of the State or Central Government will take some initiative in incorporating certain amendment under relevant laws as to give status to Section 164 statement as that of the examination-in-chief in all eventualities.

We hope that legislatures will also consider the practical realities of the life which the victim has to face. The trauma which victim has to undergo, after the incident does not stop there and when it comes to facing real-life issues, there may be occasion for the victim to forego all the trauma which she had undergone and to take U turn.

[Imran Shabbir Gauri v. State of Maharashtra, 2021 SCC OnLine Bom 511, decided on 31-03-2021]

Advocates before the Court:

Mr Aniket Vagal for the Appellant (Legal Aid). Mrs M. M. Deshmukh, APP for the State.

Case BriefsForeign Courts

Supreme Court of Minnesota: While deciding instant matter wherein the Court had to determine whether the appellant committed a third-degree criminal sexual conduct; i.e. sexual penetration with another person when the actor knows or has reason to know that the complainant is ‘mentally incapacitated’; Justice Paul Thissen held that the legislative definition of ‘mentally incapacitated’ as stated in Minn. Stat. Section 609.341, sub-division 7 (2020), does not include a person who is voluntarily intoxicated by alcohol.

Background

 J.S. was intoxicated after drinking alcohol and taking prescription narcotics. She went to a bar with a friend but was denied entry due to her intoxication. The appellant Francios Momolu Khalil approached J.S. outside of the bar and invited her to accompany him to a supposed party at a house. After arriving at the house, J.S. passed out and woke up to find Khalil penetrating her vagina with his penis. J.S. contacted the Minneapolis police department to report the incident. Upon conducting an investigation Khalil was charged with one count of third-degree criminal sexual conduct involving a mentally incapacitated or physically helpless complainant.

The District Court jury sought to clarify whether it was sufficient that J.S. voluntarily consumed the alcohol or whether Khalil or another person had to have administered the alcohol to J.S. without her agreement for her to qualify as mentally incapacitated. Upon perusal and interpretation of the relevant law, the jury found Khalil to be guilty of third degree criminal sexual conduct.

Minn. Stat. Section 609.341, sub-division 7 (2020) provides that ‘mentally incapacitated’ means that a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person, without the person’s agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.

The issue before the Court was regarding the proper interpretation of ‘mentally incapacitated’ and whether “administered to that person without the person’s agreement” includes that a person can be mentally incapacitated under the statute when such person voluntarily ingests alcohol, or whether the alcohol must be administered to the person without his or her agreement.

Contentions

The State contended that ‘mentally incapacitated’ means that a person under the influence of alcohol, however, consumed, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.

The State also asserted that Khalil’s reading of the statute is incorrect because people normally do not speak of “administering” alcohol in everyday speech. It is not uncommon, however, for the word “administer” to be paired with the word “alcohol” in the context of criminal sexual conduct statutes.

The State further argued that the word “any” in the phrase “any other substance” breaks the link between the qualifier “administered to that person without the person’s agreement” and the nouns alcohol, narcotic, and anesthetic. 

Per contra, the appellant argued that ‘mentally incapacitated’ means that a person under the influence of alcohol, administered to that person without the person’s agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.

Observations

The Court’s analysis centered on the principles vis-à-vis interpretation of statutes. The Court observed that the issue regarding interpretation of Minn. Stat. Section 609.341, sub-division  7 (2020) has arisen only because of the District Court’s instruction to the jury to interpret ‘mentally incapacitated’. The Court stated that, “Although district courts enjoy “considerable latitude in selecting jury instructions,” the instructions “must fairly and adequately explain the law of the case and not materially misstate the law”.

It was observed that the purposes of statutory interpretation is to “ascertain and effectuate the intention of the legislature” and to reflect a structural understanding that legislators are the elected representatives of the people and legislative bodies are institutionally better positioned than courts to sort out conflicting interests and information surrounding complex public policy issues.

The Court noted that the text, structure, and punctuation of the Legislature’s one-sentence definition of ‘mentally incapacitated’ supports the appellant’s interpretation, namely that-  a person is mentally incapacitated only if under the influence of alcohol administered to the person without the person’s agreement. “The sentence is structured as an easily digestible series of similar nouns that describe intoxicating substances (alcohol, narcotic, anesthetic, or any other substance) followed by a qualifier (“administered to that person without the person’s agreement”) that sensibly applies to each noun”.

The Court noted that it takes modest mental energy “to process the individual nouns in the list present in the definition of mentally incapacitated, making it easy to apply the qualifier across them all”.

The Court pointed out that it was non convinced with the State’s interpretation that the phrase “administered to that person without the person’s agreement” should not be read to apply to alcohol – “Significant flaw in this argument is that the State plucks the single word “administered” out of the context of the entire phrase ‘administered to that person without the person’s agreement’”. The State erred in isolating the word ‘administered’ from the rest of the qualifier which is also demonstrated when one considers the other nouns in the series to which the qualifier applies. “Thus, the State’s narrow focus on the purported linguistic ill fit between the words alcohol and administered does not logically support the ultimate conclusion that the State asks us to reach”.

The Court stated that the appellant offered “the more reasonable explanation for the inclusion of the word “any” in “any other substance” by arguing that the Legislature intended to capture all substances, the consumption of which could deprive a person of judgment to give a reasoned consent”.

 The Court pointed out that The State simply assumes that a person may become mentally incapacitated (as defined by the Legislature in Section 609.341, sub-division 7) by voluntarily consuming alcohol. “The State’s argument that the Legislature must have intended felony classification for sexual penetration with a complainant who lacks the judgment to give a reasoned consent due to voluntary intoxication does not withstand scrutiny in light of the statutes’ structural complexity (five degrees of crime) and the differentiated punishments imposed for various types of nonconsensual sexual penetration and sexual contact”.

Conclusions

Upon detailed perusal, the Court concluded that the legislative definition of ‘mentally incapacitated’ is unambiguous and clearly means that substances (including alcohol) which cause a person to lack judgment to give a reasoned consent must be administered to the person without the person’s agreement. Therefore, Section 609.341, sub-division 7 means that, a person under the influence of alcohol is not mentally incapacitated unless the alcohol was administered to the person under its influence without that person’s agreement.

With this conclusion, the Minnesota SC also reversed the decision of the District Court which found Khalil guilty. The case was remanded to the District Court for a new trial.  [State of Minnesota v. Francios Momolu Khalil, A19-1281, decided on 24-03-2021]

Sucheta Sarkar, Editorial Assistant has reported this brief.

Image Credits: Slate.com

Case BriefsSupreme Court

Supreme Court: In a plea concerning imposition of certain conditions in a case involving a sexual offence against a woman, at any stage of judicial proceedings, that trivialize the trauma undergone by survivors and adversely affect their dignity, the bench of AM Khanwilkar and S. Ravindra Bhat*, JJ has held that the use of reasoning/language which diminishes the offence and tends to trivialize the survivor, is especially to be avoided under all circumstances.

Reminding the courts of their duty, the Court said,

“The role of all courts is to make sure that the survivor can rely on their impartiality and neutrality, at every stage in a criminal proceeding, where she is the survivor and an aggrieved party. Even an indirect undermining of this responsibility cast upon the court, by permitting discursive formations on behalf of the accused, that seek to diminish his agency, or underplay his role as an active participant (or perpetrator) of the crime, could in many cases, shake the confidence of the rape survivor (or accuser of the crime) in the impartiality of the court.”

On Judicial Stereotyping

  • Judges can play a significant role in ridding the justice system of harmful stereotypes. They have an important responsibility to base their decisions on law and facts in evidence, and not engage in gender stereotyping. This requires judges to identify gender stereotyping, and identify how the application, enforcement or perpetuation of these stereotypes discriminates against women or denies them equal access to justice. Stereotyping might compromise the impartiality of a judge’s decision and affect his or her views about witness credibility or the culpability of the accused person.
  • The challenges Indian women face are formidable: they include a misogynistic society with entrenched cultural values and beliefs, bias (often sub-conscious) about the stereotypical role of women, social and political structures that are heavily malecentric, most often legal enforcement structures that either cannot cope with, or are unwilling to take strict and timely measures. Therefore, reinforcement of this stereotype, in court utterances or orders, through considerations which are extraneous to the case, would impact fairness.
  • ‘Judicial stereotyping’ refers to the practice of judges ascribing to an individual specific attributes, characteristics or roles by reason only of her or his membership in a particular social group (e.g. women). It is used, also, to refer to the practice of judges perpetuating harmful stereotypes through their failure to challenge them, for example by lower courts or parties to legal proceedings.31 Stereotyping excludes any individualized consideration of, or investigation into, a person’s actual circumstances and their needs or abilities.
  • The stereotype of the ideal sexual assault victim disqualifies several accounts of lived experiences of sexual assault. Rape myths undermine the credibility of those women who are seen to deviate too far from stereotyped notions of chastity, resistance to rape, having visible physical injuries, behaving a certain way, reporting the offence immediately, etc.

On Stereotype opinions that should be avoided

Courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order. Some of the instances are:

  • that the survivor had in the past consented to such or similar acts or
  • that she behaved promiscuously, or by her acts or clothing, provoked the alleged action of the accused,
  • that she behaved in a manner unbecoming of chaste or “Indian” women, or that she had called upon the situation by her behavior, etc.
  • women are physically weak and need protection;
  • women are incapable of or cannot take decisions on their own;
  • men are the “head” of the household and should take all the decisions relating to family;
  • women should be submissive and obedient according to our culture;
  • “good” women are sexually chaste;
  • motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother;
  • women should be the ones in charge of their children, their upbringing and care;
  • being alone at night or wearing certain clothes make women responsible for being attacked;
  • a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or “has asked for it”;
  • women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony;
  • testimonial evidence provided by women who are sexually active may be suspected when assessing “consent” in sexual offence cases; and
  • lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.

The Court, however, clarified that these instances are only illustrations of an attitude which should never enter judicial verdicts or orders or be considered relevant while making a judicial decision; they cannot be reasons for granting bail or other such relief.

On the conditions that shouldn’t be imposed

Similarly, imposing conditions that implicitly tend to condone or diminish the harm caused by the accused and have the effect of potentially exposing the survivor to secondary trauma are forbidden, such as

  • mandating mediation processes in non-compoundable offences,
  • mandating as part of bail conditions, community service (in a manner of speaking with the so-called reformative approach towards the perpetrator of sexual offence) or
  • requiring tendering of apology once or repeatedly, or in any manner getting or being in touch with the survivor.

“The law does not permit or countenance such conduct, where the survivor can potentially be traumatized many times over or be led into some kind of non-voluntary acceptance, or be compelled by the circumstances to accept and condone behavior what is a serious offence.”

However, the Court made clear that the instances spelt out in the judgment are only illustrations; the idea is that the greatest extent of sensitivity is to be displayed in the judicial approach, language and reasoning adopted by the judge.

“Even a solitary instance of such order or utterance in court, reflects adversely on the entire judicial system of the country, undermining the guarantee to fair justice to all, and especially to victims of sexual violence (of any kind from the most aggravated to the so-called minor offences).”

Directions to be considered while granting bail in sexual offences

(a) Bail conditions should not mandate, require or permit contact between the accused and the victim. Such conditions should seek to protect the complainant from any further harassment by the accused;

(b) Where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim;

(c) In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and copy of the bail order made over to him/her within two days;

(d) Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the Cr. PC. In other words, discussion about the dress, behavior, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail;

(e) The courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction;

(f) Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments, and

(g) Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court.

Directions on training and sensitization of judges and lawyers

  1. A module on gender sensitization be included, as part of the foundational training of every judge. This module must,
    • aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny.
    • should emphasize the prominent role that judges are expected to play in society, as role models and thought leaders, in promoting equality and ensuring fairness, safety and security to all women who allege the perpetration of sexual offences against them.
    • the use of language and appropriate words and phrases should be emphasized as part of this training.
  1. The National Judicial Academy should devise, speedily, the necessary inputs which have to be made part of the training of young judges, as well as form part of judges’ continuing education with respect to gender sensitization, with adequate awareness programs regarding stereotyping and unconscious biases that can creep into judicial reasoning. The syllabi and content of such courses shall be framed after necessary consultation with sociologists and teachers in psychology, gender studies or other relevant fields, preferably within three months. The course should emphasize upon the relevant factors to be considered, and importantly, what should be avoided during court hearings and never enter judicial reasoning. Public Prosecutors and Standing Counsel too should undergo mandatory training in this regard. The training program, its content and duration shall be developed by the National Judicial Academy, in consultation with State academies. The course should contain topics such as appropriate court-examination and conduct and what is to be avoided.
  2. Bar Council of India (BCI) should consult subject experts and circulate a paper for discussion with law faculties and colleges/universities in regard to courses that should be taught at the undergraduate level, in the LL.B program. The BCI shall also require topics on sexual offences and gender sensitization to be mandatorily included in the syllabus for the All India Bar Examination.
  3. Each High Court should, with the help of relevant experts, formulate a module on judicial sensitivity to sexual offences, to be tested in the Judicial Services Examination.

[Aparna Bhat v. State of Madhya Pradesh, 2021 SCC OnLine SC 230, decided on 18.03.2021]

*Judgment by: Justice S. Ravindra Bhat

Know Thy Judge| Justice S. Ravindra Bhat

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., addressed a matter wherein the appellant challenged the conviction and sentence passed by Additional Sessions Judge for his conviction under Section 417 of Penal Code, 1860.

In the present matter, it has been stated that the appellant was convicted under Section 417 of the Penal Code, 1860.

Prosecutrix while working on the construction site be-friended with the accused and in a short span, they engaged in sexual relations, more than one time.

Further, she alleged that the appellant did not disclose his marital status but presuming, he would marry her, she submitted to his sexual desires on more than one occasion, by the time she learnt that the appellant was married, she was pregnant.

In 1990, prosecutrix lodged a complaint about the offence punishable under Section 376 IPC, pending investigation, prosecutrix delivered a baby girl.

Trial Court upon appreciating the evidence of the prosecutrix, recorded the finding, that it was a consensual act and, thus, acquitted the accused of the offence punishable under Section 376 of the IPC. Trial Judge, however, convicted the accused of the offence punishable under Section 417 of the IPC and sentenced to suffer rigorous imprisonment for six months.

Analysis and Decision

Bench while analysing the facts and circumstances of the case noted that prosecutrix submitted in her testimony that she was living on construction site and be-friended with the accused, whereafter they fell in love with each other.

Further, Court observed that the evidence of the prosecutrix did not suggest that the appellant made a false promise to marry her. Hence, it cannot be said that the appellant lured the prosecutrix to engage in sexual relations with him on the false promise of marrying her.

Question for consideration:

Whether conviction of the accused under Section 417 of the IPC is sustainable?

“…here was no ‘promise to marry’ nor intentional deception by misrepresentation or deceitfulness practised before establishing physical relationship with prosecutrix.”

In fact prosecutrix’s evidence suggested that she presumed that the appellant was not married and further assumed that he would marry her.

Therefore, the absence of ‘dishonest concealment of fact’, which is an essential ingredient of offence, within the meaning of explanation, appended to Section 415 of IPC, a conviction under Section 417 of IPC is not sustainable.

Lastly, Court concluded by stating that the impugned conviction and sentence by the Additional Sessions Judge be quashed and set aside. [Jagdish Raghunath Mankar v. State of Maharashtra, 2021 SCC OnLine Bom 269, decided on 24-02-2021]

Advocates who appeared before the Court:

Advait M. Sethna appointed advocate with Pravan A. Gohil with Eshaan Saroop for the appellant.

Sharmila Kaushik, APP for the Respondent- State.

Read more:

[Section 417 IPC] Punishment for cheating.—Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

[Section 415 IPC] Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., expressed:

“It is well settled that while exercising its jurisdiction under Section 397/401 IPC the revisional Court should not act like an appellate court.”

The present revision petition was filed under Section 397/401 of Criminal Procedure Code, 1973, directed against the Order of Additional Sessions Judge, wherein the accused was discharged from the charges under Sections 376, 328, 354A, 323, 506 and 509 of Penal Code, 1860.

In FIR, the prosecutrix stated that she had been working in two companies belonging to accused/respondent 1 since 6 months prior to the lodging of the complaint. Respondent told the prosecutrix that he had divorced his wife and was staying separately and that he needed a capable woman to handle his work.

Accused made the prosecutrix CEO and later partner in one of the said companies. Further, the prosecutrix added that all the work-related meetings and talks used to happen at the home of accused/respondent 1.

It was alleged that one day, the accused called the prosecutrix to his home and mixed some intoxicant in her cold drink because of which she went semi-conscious state and accused raped her four times. Accused/Respondent 1 told her that he liked her and hence wanted to marry her.

Adding to this, it was stated that respondent 1 started harassing the prosecutrix for salary and stopped paying her salary and remove her from her job. He even refused to pay her dues.

Later respondent 1 called the prosecutrix to his office and gave her one month’s salary and that too in two parts – half was paid in cash and the other half was by way of cheque which was issued in the wrong name. Accused asked her to come to Safdarjung Club where he would make another cheque with the correct name, but at the Club, he came with another accused/respondent 2 who used to work with respondent 1.

Accused threatened prosecutrix that he would viral the video of the prosecutrix if she persisted with her demand for money. Respondent 2 abused the prosecutrix in the parking, respondent 1 caught hold of her and tried to touch her inappropriately.

Additional Session Judge found that there is discrepancy even in the narration of facts by the prosecutrix regarding her visit to Safdarjung Club.

Further, it was held that despite this contradiction the factum of quarrel and prosecutrix leaving the parking of Safdarjung Club in haste to dodge off accused persons was disproved by the CCTV footage obtained by IO. Hence, the Judge found no case to be made out and the accused were discharged.

Analysis and Decision

In view of the above facts and circumstances, Bench firstly discussed the scope and ambit of Section 227 CrPC in a number of Judgments, such as:

Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4

State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568

Vijayan v. State of Kerala, (2010) 2 SCC 398

State of M.P. v. S.B. Johari, (2000) 2 SCC 57

Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135

The above-referred Judgments would show that while framing a charge the Court has power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made and after the analysis of material on record, it two view are possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified in discharging the accused in exercising its jurisdiction under Section 227 CrPC.

Court cannot hold a mini trial for discharging the accused.

Allegation was that the incident took place two-three days after the birthday of the accused/respondent 1, but it was noted that on those dates, the locations of the accused and the prosecutrix were always different. The tower locations of the respondent were that of Himachal Pradesh, Haryana and Punjab and after entering Delhi on 28-09-2015, his tower location throughout the night until next morning was in the area of Safdar Jung enclave, Delhi, whereas the locations of the prosecutrix were in the area of Qutab Minar Metro Station. Hence, both the accused and prosecutrix were never together at any time.

Therefore, in the present case, call detail records destroyed the prosecution case.

No material was found except for the prosecutrix statement to sufficiently bring out a case of rape.

High Court while exercising its jurisdiction under Section 397/401 did not find infirmity in the impugned order.

Even if a different conclusion is possible it is well settled that a revisional court does not substitute its conclusion to the one arrived at by the lower court unless it is perverse or contrary to law.

Hence, the petition was dismissed. [State (NCT of Delhi) v. Jiwan Kant Jain, 2021 SCC OnLine Del 1192, decided on 26-02-2021]

Advocates who appeared before the Court:

Petitioner: Avi Singh, Advocate

Respondent: Aditya Jain, Advocate

Case BriefsHigh Courts

Meghalaya High Court: W. Diengdoh, J.,  has held that the ingredients that are to be seen existing in an allegation of attempt to rape is that there must be firstly an intention to commit, then preparation to commit it and thirdly, to commit it.

In the present case, the victim/complainant deposed that while she was walking home, the accused, who came in a car, offered to drop her home and he went along with her on foot. While they were walking, the appellant started nudging her and on her protest that they belong to the same family clan, he replied in the negative and grabbed her on her shoulder and put her to the ground. “The victim/complainant struggled and pushed him away to which he acknowledged and released her. Thereafter, he offered to drop her again and told her that he was just testing her because a lot of girls from the village think that he was a rapist. Thereafter, he told her not to inform to anybody about what happened and the victim proceeded home.”

The appellant was charged with an offence under Sections 376 and 511 of the Penal Code, 1860 and was sentenced with rigorous imprisonment for three years and six months and a fine of Rs 10,000 on default of payment of fine with rigorous imprisonment of another six months by the Trial Court.

The said decision was challenged on the ground that there was no material to indicate that the accused/appellant had any intention or attempted to commit any offence.

“The accused/appellant did not even touch inappropriately nor made any attempt on any part of the body of the alleged victim to either molest or rape the alleged victim. There was also no resistance on the part of the alleged victim nor did she raised any alarm on her part.”

Before proceeding to analyse the case at hand, the High Court reminded that,

“… while deciding an appeal, the High Court has the same concurrent power to appreciate the evidence on record and by extension, to come to a conclusion whether to agree with the finding of the Trial Court or to come to another view point which may be contrary to the original verdict.”

The Court relied on the Supreme Court’s judgment in Koppula Venkat Rao v. State of AP, (2004) 3 SCC 602, wherein it was held that,

“In order to find an accused guilty of an attempt with intent to commit a rape, court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.”

On appreciation of the evidence and materials on record, the High Court, hence, observed that as far as the applicability of Section 376 read with Section 511 IPC, the ingredients that are to be seen existing in an allegation of attempt to rape is that there must be firstly an intention to commit, then preparation to commit it and thirdly, to commit it.

Applying the said principle to the case at hand, the Court noticed that

“… the appellant met the victim by chance and offered to drop her to her village. Even if it is assumed that he has intention to commit the crime, there is no material to prove that he has made preparation for the same and as to the third ingredient that is, attempt to commit it, the evidence on record shows that he pushed the victim to the ground from her shoulder and after the victim struggled and pushed him away, he released her.”

Further, the appellant herein did not attempt to disrobe the victim and there is no indication that he tried to rape her and in the attempt, failed to do so after she raised a hue and cry.

The High Court was, of the opinion that the Trial Court has solely relied on the evidence of the victim without any corroboration with the supporting evidence, including the medical report, and failed to notice that no case under Section 376 read with Section 511 IPC could be made out against the appellant-accused as the same was not proved beyond reasonable doubt.

The Court relied on the judgment in the case of Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560 wherein the Supreme Court had elaborately discussed the essential ingredients of rape, and came to the conclusion that the crime committed by the accused was at the initial stage of preparation and hence, the offence committed does not come within the purview of offence punishable under Sections 376/511 IPC but the offence under Section 354 IPC was made out against the accused.

The Court, hence,  acquitted the accused of the charges under Section 376 read with Section 511 IPC and took recourse to Section 222 CrPC to charge the accused under Section 354 IPC sentencing him with rigorous imprisonment of one year with fine of Rs 5000 and on default of payment of fine with rigorous imprisonment of another six months. The Court ordered that the accused/appellant will serve out the sentence which will be set off with the period of conviction already undergone.[Denis Mukhim v. State of Meghalaya, 2020 SCC OnLine Megh 38, decided on 04-03-2020]

Appearance made before the Court by:

For the Petitioner/Appellant(s) : Advocates C.H. Mawlong, S.R. Lyngdoh and K.S. Kharshiing

For the Respondent(s) : S. Sengupta, Addl. Sr. PP and R. Colney, GA.

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Dr Kaushal Jayendra Thaker and Gautam Chowdhary, JJ., has requested the Registrar (Listing) through the Registrar General to place the matter before the Chief Justice that periodical listing of matters be taken up in the High Court so that those who are in jail for more than 10 or 14 years, where the appeals are pending, may at least get their appeal heard which are mainly jail appeals. The Court was deciding an appeal filed by the appellant who was in jail for 20 years. The Court reversed the conviction recorded against the appellant.

“Since 20 years, the accused is in jail.”

It was expressed by the Court that the most unfortunate aspect of the instant litigation was the same being preferred through jail.

The appellant challenged the decision passed by the Court of Sessions Judge, Lalitpur, whereby he was convicted under Section 376 IPC. Further, the appellant was convicted under Section 3(2)(v) read with Section 3(1)(xii) of the Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act, 1989 and Section 506 IPC.

Prosecution case was that the prosecutrix was raped by the accused-appellant. On disclosing the incident to the family, they did not report the same to the police station due to being threatened. Later, however, the victim along with her father-in-law and husband went to the police station to report the same.

Analysis, Law and Decision

The Court noted that the Trial Judge brushed aside the fact that the report was lodged three days later, but did not give any credence to this fact and decided to go through the merits of the case.

Further, the Court noted that although there were concrete positive signs from the oral testimony of the prosecutrix as regards the commission of forcible sexual intercourse; however, the medical officer opined both in ocular as well as her written report that the prosecutrix was having five months pregnant and no definite opinion about rape could be given.

In view of the above, the Court added that there were no injuries on the private part of the lady, who was a fully grown-up person and was pregnant.

Adding, the Court stated that even if it went as per the version of the prosecutrix that the accused had gagged her mouth for ten minutes and had thrashed her on ground, there would have been some injuries to the fully grown lady on the basis of the body. However, according to the doctor’s opinion, there were no signs of forcible sexual intercourse.

In such view of the discussion, the Court was of the opinion that the chain of the incident goes to show that the prosecutrix was not raped as would be clear from the provision of Section 375 read with Section 376 IPC.

The Court held that the Trial Judge did not make any finding as to the fact of how the commission of offence under Section 376 IPC was made out. The Trial Judge had materially erred as he did not discuss what was the evidence that the act was committed because of the caste of the prosecutrix. The reasoning of the lower Court Judge were against the record and perverse as the Judge without any evidence on record on his own has felt that the heinous crime was committed because the appellant had captured the will of the prosecutrix and because the police officer had investigated the matter as an atrocities case which would not be undertaken within the purview of Section 3(2)(v) of Atrocities Act and had recorded conviction under Section 3(2)(v) of Act, which cannot be sustained.

Hence, in view of the above discussion, the Court held that the appellant was wrongly convicted resulting in reversing the impugned decision.

While concluding, the Court noted that the State of U.P. even after 14 years of incarceration does not even send the matter to the Magistrate for re-evaluation of the cases for remission as per mandate of Sections 432 and 433 CrPC.

“Sections 433 and 434 CrPC enjoins a duty upon the State Government as well as Central Government to commute the sentences as mentioned in the said section. We are pained to mention that even after 14 years of incarceration, the State did not think of exercising its power for commutation of sentence of life imprisonment of the present accused and it appears that power of Governor provided under Article 161 of the Constitution of India are also not exercised though there are restriction to such power to commute sentence. The object of Sections 432 read with Section 433 of the CrPC is to remit the sentence awarded to the accused if it appears that the offence committed by him is not so grave.”

In the Court’s opinion, in the instant case, the appellant should have been entitled to remission. The factual scenario in the present case would show that had the Government thought of taking up the case of the appellant as per jail manual, it would have been found that the case of the appellant was not so grave that it could not have been considered for remission/commutation.

Seeing the sorry state of affairs, the Court requested the Registrar (Listing) through the Registrar General to place the matter before the Chief Justice that periodical listing of matters be taken up in the High Court so that those who are in jail for more than 10 or 14 years, where the appeal have been pending, may at least get their appeal heard which are mainly jail appeals.[Vishnu v. State of U.P., 2021 SCC OnLine All 133, decided on 28-01-2021]

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., with regard to the settlement of disputes stated that:

“In crimes which seriously endangers the well being of the society, it is not safe to leave the crime doer only because he and the victim have settled the dispute amicably. “

The instant petition was filed under Section 482 CrPC for offence under Sections 419, 467, 471, 474, 376, 354, 506 read with Section 34 of the Penal Code, 1860.

Petitioner/Accused had met respondent 2 and revealed that his name to be Shiva and promised the complainant to marry her. Complainant and the Petitioner became intimate and had a physical relationship she had been promised marriage by the petitioner.

Later the respondent 2/complainant came to know that the petitioner had concealed his identity and his real name as ‘Akhtar’.

Respondent 2/Complainant stated in the FIR that the petitioner took her to Arya Samaj Mandir wherein they got married and in the marriage certificate he gave his name as Akhtar. After the marriage, the petitioner started demanding money and when respondent 2 visited his parents, she was driven away with them.

The instant petition was filed as the parties amicably settled their dispute.

A Status Report was also filed wherein it was stated that Akhtar/Shiva hid his identity and was sexually exploiting the respondent 2 for five years. It was also stated that the petitioner forged Aadhaar Cards and has got two Aadhaar Cards, one in the name of Akhtar and the second in the name of Shiva. On further investigation, it was also found that the marriage certificate was also fake.

Analysis and Decision

Bench stated that the power of the High Court under Section 482 CrPC to quash proceedings is those offences which are non-compoundable is recognized.

Court noted that the Supreme Court time and again held that the High Court has to keep in mind the subtle distinction between the power of compounding offences given to the Court under Section 320 CrPC and the quashing of criminal proceedings and the jurisdiction conferred upon it under Section 482 CrPC.

For the above purpose, Court cited the Supreme Court’s decision in Shiji v. Radhika, (2011) 10 SCC 705.

Further, the Bench added that:

“While exercising its power under Section 482 CrPC, High Court is guided by the material on record as to whether the ends of justice would justify such exercise of power.”

 Court referred to the Supreme Court decision in Gian Singh v. State of Punjab, (2012) 10 SCC 303, wherein it has been elaborated under what circumstances, criminal proceedings in a non-compoundable case could be quashed when there is a settlement between the parties.

In the case of Narinder Singh v. State of Punjab, (2014) 6 SCC 466, the Supreme Court laid down principles by which the High Courts should be guided in giving adequate treatment to the settlement between the parties.

Court expressed that:

An offence of rape is an offence against the society at large and apart from offence under Section 376, the petitioner is also accused of committing offences under Sections 419,467,468,471,474,506 and 34 IPC.

In view of the facts and circumstances of the case, Bench opined that it is not in a position to quash the FIR on the basis of compromise entered into between the parties and wherein it was stated that the petitioner/accused and the respondent 2 decide to stay as husband and wife and lead their peaceful marital life.

Supreme Court has repeatedly stated that when parties reach a settlement and on that basis a petition is filed for quashing criminal proceedings, the guiding factor for the High Court before quashing the complaint in such cases would be to secure; a) ends of justice, b) to prevent abuse of process of any court.

In view of the FIR and Status Report, Bench held that it’s evident that the petitioner has been accused of serious offences like rape and forgery having a bearing on vital societal interest and these offences cannot be construed to be merely private or civil disputes but rather will have an effect on the society at large.[Akhtar v. GNCTD,  2021 SCC OnLine Del 260 , decided on 01-02-2021]

Advocates for the parties:

Petitioner: Haraprasad Sahu, Advocate

Respondents: Kusum Dhalla, APP for State

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Ved Prakash Vaish and Vikas Kunvar Srivastav, JJ., expressed that:

“Justice demands that courts should impose punishment fitting to the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.”

Appellant was convicted for the offence under Section 376 of the Penal Code, 1860, though he was acquitted for the offence under Section 506(2) of the Penal Code, 1860.

Father of the Prosecutrix had lodged a complaint that his daughter had gone for easement by the roadside and did not return to the house for a long time and on inquiry, his son Kalim Ahmad aged 13 years informed that Prem Chamar forcibly took the prosecutrix on his bicycle.

On reaching outside the village, he saw his daughter (prosecutrix) weeping who disclosed the entire incident and found the bloodstains on her undergarments and concluded that Prem Chamar had committed rape on his daughter.

In light of the above sequence of events, offence under Section 376 IPC was registered.

Trial Court found the appellant to be guilty of having committed the offence under Section 376 IPC and sentenced the appellant.

On being aggrieved with the above, appellant preferred the present appeal.

Analysis and Decision

“It is settled law that refusal to act on the testimony of the victim of sexual assault in absence of corroboration as a rule, is adding to insult to injury.”

 Bench further in light of the above expressed that, a girl or a woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred.

“A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case.”

 Court referred to the decisions of Supreme Court in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 and Takhatji Hiraji v. Thakore Kubersing Chamansingh, (2001) 6 SCC 145, Vijendra Singh v. State of U.P., (2017) 11 SCC 129, State of H.P. v. Gian Chand, (2001) 6 SCC 71, Aslam v. State of U.P., (2014) 13 SCC 350, State of Haryana v. Basti Ram, (2013) 4 SCC 200, Raju v. State of M.P., (2008) 15 SCC 133.

High Court stated that Supreme Court had observed in Raju v. State of M.P., (2008) 15 SCC 133, that it cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication. There is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.

“Courts while trying an accused on the charge of rape, must deal with the case with the utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of the witnesses which are not of a substantial character.”

 Bench noted that considering the statement of the prosecutrix (PW2), a girl of nine years, corroboration from an independent source of the evidence of prosecutrix is not required. The evidence of the prosecutrix establishes that the appellant committed rape on her.

Court opined that the trial court did not commit any mistake in convicting the appellant for the offence under Section 376 IPC. Accordingly, appellant’s conviction was upheld.

Sentence

With regard to the question of sentence, Court stated that it may be mentioned that the protection of society by stamping out criminal activity is an essential function of State.

The facts and given circumstances of each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of convict and all other attending circumstances are relevant facts for imposing appropriate sentence.

Hence, the object of sentencing is that the offenders do not go unpunished and the justice be done to the victim of crime and society. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.

Therefore, in the instant case, Court held that the interest of justice would be met if the sentence imposed by trial court would be modified to that of rigorous imprisonment for 10 years and to pay a fine of Rs 2,000.

Concluding the decision, Court in view of the above discussion dismissed the appeal. [Prem Chamar v. State of U.P., Criminal Appeal No. 1078 of 2012, decided on 22-01-2021]

Hot Off The PressNews

NHRC has taken suo motu cognizance on alleged rape of a 13-year-old girl in Umaria city of Madhya Pradesh and has directed issuance of notice to the Chief Secretary and the Director-General of Police, Madhya Pradesh calling for a detailed report in the matter.

As mentioned in the news report, the 13-year-old girl was abducted on 04.01.2021 from a market in Umaria city of Madhya Pradesh by a person known to her and later on she was taken to a secluded place and was subjected to rape by nine persons for two days. The girl was again abducted by one of the accused on 11.01.2021 and was taken to a desolate place where five people, including three accused in the previous incident and two unidentified truck drivers allegedly subjected her to rape for two days. The report also revealed that the victim was threatened with dire consequences due to which, she did not report the matter to the police. The mother of the girl has lodged a police complaint on January 14, following which seven of the accused have been arrested and the search of the remaining two is under way.

The gruesome incident puts a question mark towards law and order situation in the region. The perpetrators in this case, have committed the heinous crime twice, without having any fear of law violating human rights of the victim.

The Commission has opined that this is a case of violation of human rights of the victim and it is apparent that the law enforcing agencies who are expected to provide a safe environment to the citizen, have failed in exercising their lawful duty.

The Commission has called for a detailed report in the matter within 4 weeks. The report must include details regarding arrest of the remaining accused persons, counseling given to the victim as well as relief and rehabilitation provided or proposed to be provided to the victim by the State authorities.

Nationa Human Rights Commission

[Press Release dt. 18-01-2021]