Rape

Case BriefsHigh Courts

Madhya Pradesh High Court: Deepak Kumar Agarwal, J., allowed a bail application which was filed by the applicant for grant of regular bail.

Applicant had been arrested in connection with Crime No.117/2021 for the offence punishable under Sections 376 (2)(cha), 376(3), 506 of IPC and Section 5 (n) / 6(a) and 11/12 of POCSO Act. As per prosecution case, on 28-2-2021, prosecutrix aged about 12 years 13 days along with her family members lodged a report alleging that applicant/accused showed nude video film through his mobile to the prosecutrix and after shutting her mouth took out her slacks and panty, thereafter he took out his own pant and underwear and lied down on her. On seeing her father coming to the spot applicant ran away. The prosecutrix was sent for medical examination. The applicant/accused was arrested on 1-3-2021.

Counsel for the applicant, Mr Arun Barua submitted that neither the prosecutrix nor her parents supported the prosecution case. They were declared hostile. During cross examination nothing came out which supports the prosecution story.

The Court looking at the circumstances was inclined to grant regular bail to the applicant.

The Court further noticed that the Court below had disclosed the name of the prosecutrix, who was a rape victim, in the deposition which was inconsistent with the provision of Section 228A of Indian Penal Code and was in violation of the direction of Supreme Court in the case of Nipun Saxena v. Union of India, (2019) 2 SCC 703. The Court in this regard issued a show cause notice to the effect that why appropriate disciplinary action should not taken against the Presiding Officer.[Mahesh Kushwaha v. State of MP, MCRC-48144 of 2021, decided on 05-10-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Gujarat High Court: Paresh Upadhyay, J., allowed an appeal which was filed against the judgment and order passed by the Special Judge (POCSO) and 3rd Additional Sessions Judge wherein appellant was convicted under Section 376 of the Penal Code, 1860 and Sections 4, 6, 8 and 12 of the Protection of the Children from Sexual Offences Act, 2012 and ordered to undergo sentence of rigorous imprisonment for ten years and fine of Rs 5,000/- was also imposed and in default thereof, to undergo further simple imprisonment.

Advocate for the appellant had submitted that, the appellant and the so-called victim were husband and wife and they had two children from this relationship. It was submitted that, the conviction was unsustainable and the same be quashed and set aside.

The Court found that it was an admitted position that the appellant and victim were in a relationship and that the victim, on her own, had walked out of home with the appellant, they stayed together since then at the house of the appellant, as husband and wife and she had given birth to two children.

The appellant is arrested by the police and was tried before the Special Judge (POCSO) and the Trial Court and was hence convicted.

The Court noted that the “victim” who stated that, she on her own, because of her wish had walked out of home and she started living with the present appellant and with that relation she has given birth to two children and neither the mother nor the father of these two children disown their birth nor paternity and still the father is convicted inter alia under Section 376 of the Indian Penal Code and is ordered to undergo RI for 10 years. The Court allowed the appeal and found that the conviction recorded by the Sessions Court needed to be set aside.

Standing at the place of law enforcement agencies, in the peculiar facts of the case, this can be termed as an offence under the Prohibition of Child Marriage Act, which is observed more in breach than in compliance, more particularly in the lower strata of society. Non-interference by this Court would reduce the lady and two children without shelter of husband / father, which in no way would be in furtherance of justice.

[Ashwinbhai v. State of Gujarat, R/Criminal Appeal No. 1089 of 2021, decided on 01-10-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

For the Appellant: Mr MS Padaliya

For the Respondent: Mr Hardik Soni

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Bureau of Investigation (CBI): Shivank Singh, Special Judicial Magistrate (CBI), while accepting the closure report questioned the delayed investigation by the premier investigation agency of the country. While accepting closure report, the Court stated,

“It may be noted that the collective and cogent evidence/ material gathered by CBI is enough to settle the fact that the allegations of complainant against her father and 26 other accused could not be substantiated”.

The pertinent matter was filed under Sections 368, 342, 354, 376 (2) and 120B IPC, and was transferred to CBI vide the order of the Supreme Court. The petitioner in the writ had alleged that the ordeal began in 2010, when the father and her family coerced her to join the flesh trade/ prostitution, which she reiterated in her statement under Section 164 CrPC. Later, that the accused persons forcibly dragged her out of the Court and took her to various places within Meerut, then to Ludhiana, Punjab, where the entire period the petitioner was assaulted and raped by her father and his relatives (accomplices).  And, even alleged that, during the period of abduction, Sub-Inspector of Police, Deputy-Inspector-General of Police, and Circle Officer of Police molested her.

The CBI had filed its closure report under Section 173 CrPC as the allegations could not be substantiated. A protest petition against such closure was filed, which was even accepted, but after further investigation, again a closure report was filed.

The Court after considering the closure report by CBI and the facts corroborated by the various substantial statements and ‘Psychological Profiling Reports’ and  Behavorial Analysis Interview of the accused persons, victim and the other names involved, opined that,

“witnesses out of total 95 witnesses examined during first investigation has corroborated the allegations” and “During further examination, CBI has examined 8 witnesses and none of the witnesses have supported the allegations of complainant”.

Strikingly, the Court while accepting the closure report of CBI raised doubts and criticised further the manner in which the delayed investigation was conducted. The Court sternly stated,

“However, before parting, it may be noted that the Ld. Predecessor of this court had ordered for further investigation in this case 20/02/2018. IO has submitted the report of further investigation after more than 3 years in 2021. IO has examined 8 witnesses and has submitted 4 documents along with the report of further investigation. It took more than 3 years to the IO to gather such evidence. Also, out of total 8 witnesses Page No. 3 Misc. Case No. 05/21 Rashmi Behl vs. CBI examined by IO in such further investigation, IO has copy-pasted the statements of witnesses Hina Behl and Hitesh Behl. Many paragraphs of their statements are exactly similar. It is a matter of concern. Also, such delayed investigation is not expected from the premier investigation agency of this country, CBI. A copy of this order be sent to worthy HOB, SC-I, New Delhi to look out in this matter from his own end”.

[Rashmi Behl v. CBI, RC 2 (S)/2015/CBI/SC-I, decided on 05-10-2021]

Agatha Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court:  A Division Bench of G I Narendar and M I Arun JJ. allowed the appeal and set aside the order of acquittal.

The facts of the case are such that complainant filed a complaint that his daughter/victim and the accused Santhosh who were both working in a coffee estate fell in love with each other. The accused made his daughter believe that he would marry her and when no one was there in the house, he came and had forcible sexual intercourse with his daughter and that from past 20 days he has gone away to his native without telling anybody. Presently, his daughter Preethi is seven months pregnant and accordingly, he has sought for initiating criminal proceedings against the accused Santhosh. The instant criminal appeal was filed under Section 378(1) and (3) Criminal Procedure Code i.e. Cr. PC praying to grant leave to filed an appeal against the judgment and order of acquittal dated 01-02-2020 passed by Additional Sessions and Special Judge Chikkamagaluru acquitting the respondent accused for the offence punishable under Section 376 (2) (n) Penal Code, 1860 i.e. IPC and Section 5 (j) (ii) and of Prevention of Children from Sexual Offences Act, 2012 i.e. POCSO Act.

The investigation was conducted and statement of the victim was taken on record. The Trial Court acquitted the accused as he found that all the material witnesses turned hostile and thus did not permit further examination of the witnesses.

The main issue to be dealt in the instant matter is whether the trial Court has erred in not directing conduct of DNA test of the child and the accused, whether it erred in not permitting the prosecution to examine other witnesses.

Counsel appearing for the accused submitted that presently, the accused and the victim are married and are leading a happy married life. Counsel for the victim submitted that pursuant to the said acquittal, the accused has abandoned her and the child and is untraceable.

The Court after perusing all the documents placed on record and production of witnesses observed that the guilt of the accused can be established only after examination of all the witnesses as desired by the prosecution. It is a specific case of the prosecution that it has necessary evidence to prove the guilt of the accused and it is desirous of making necessary application to have DNA test conducted and that the material witnesses have turned hostile only on the false promise of the accused.

The Court thus held “trial Court clearly erred in not permitting the prosecution to lead necessary evidence to prove the guilt of the accused.”

[State of Karnataka v. Santhosh, Criminal Appeal No. 414 of 2021, decided on 03-09-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Appearances:

For Appellants: Mr. Vijaya Kumar Magaje and Ms. Rashmi Jadhav

For Respondents: Mr. N R Ravikumar

Case BriefsHigh Courts

Bombay High Court: Pained to note the permitting of questions by the Lower Court which crossed all lines of dignity of a woman, Division Bench of Sadhana S. Jadhav and Sarang V. Kotwal, JJ., while denying reducing the sentence of the 3 accused who raped a woman, expressed regarding sentencing policy that,

“…object of sentencing policy should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it.”

“Sentencing Policy adopted by the Courts, in such cases, ought to have a stricter yardstick so as to act as a deterrent”

Prosecutrix was taken to various places and then to a secluded place where all 3 accused appellants committed rape on her one after the other and later she was left near her residence. In the meantime, police was informed by the relatives of prosecutrix’s who were searching for her.

FIR was lodged under various sections including Section 376(2)(g) of the Penal Code, 1860. All the accused were arrested and the Indica Car in which the prosecutrix was taken to various places was also seized.

What transpired the above-stated facts?

Prosecutrix while waiting for a bus to reach a destination was approached by a maroon coloured Indica car and the driver offered the prosecutrix to drop her. PW-1 was aware that some vehicles operating for the Call Centers were used to take other passengers and under the said impression in light of getting late she decided to go in that car.

On the way accused 1 told the prosecutrix that there would be 8-10 more people who would commit rape on her. The accused even bought beer and some food and consumed the same.

Further, accused 1 asked PW-1 to make a call to her mother and inform her that she would be late so that nobody starts searching for her. After that, she was taken to a secluded place where she was raped by one after the other and dropped around 12.45 near her residence. On reaching her place she immediately called her mother and after that, her aunt and two friends came to her flat and then the police also arrived.

She was taken to a hospital for medical examination, and she even identified all the accused in the Court.

Bench noted that defence tried to develop a theory of consensual sex and kept giving certain suggestions which this Court disapproved of.

Court stated that it was pained because of the passive approach adopted by the Judged in allowing such questions. The said questions crossed all lines of basic dignity.

“Under the garb of giving suggestions. Graphic details of the act were put to the witness.”

Under Section 152 of the Indian Evidence Act, the Court was duty-bound to forbid any question which appeared to be intended to insult or annoy or which though proper in itself appeared to the Court needlessly offensive in form. Section 151 of the Indian Evidence Act also empowers the Court to forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed.

Noting the above, lower Court Judge failed in his duty in not protecting the dignity of PW-1 and not exercising his powers under Sections 151 and 152 of the Indian Evidence Act.

High Court added that it is necessary to remind trial Courts that under Section 148 of the Indian Evidence Act, it is their duty to decide when the witness shall be compelled to answer.

PW-1 had denied the theory of consensual sex and, therefore, all further suggestions in respect of the actual act of intercourse were totally unnecessary.

Special Public Prosecutors

“Not happy with the silence kept by the Special Public Prosecutor by not objecting to the suggestions.”

Court expressed that it is necessary to remind the prosecutors that under the scheme of CrPC, they are in-charge of the conduct of the prosecution. They are supposed to perform their duties responsibly and they are supposed to render sincere assistance to the Court. It is their responsibility to protect the interest of the victims and the witnesses before the Court.

“Prosecutors cannot only concentrate on securing conviction, but the conduct of the proper trial is also their duty.”

Bench held that the circumstances of the case sufficiently prove the guilt of the accused.

Medical evidence had also shown that PW-1 was subjected to forceful sexual intercourse.

Prosecution had established its case against all the accused beyond all reasonable doubt.

While concluding, Court stated that in the present matter, PW-1 innocently took the lift from accused 1. Accused 1 & 2 and accused 3 who joined them subsequently, took advantage of her helpless condition. They committed rape on her. She was threatened. PW-1 has suffered extreme trauma.

Court upheld the decision of the trial court. [Ranjeet Shahaji Gade v. State of Maharashtra, 2021 SCC OnLine Bom 3061, decided on 28-9-2021]

Advocates before the Court:

Ms Anjali Patil, Advocate a/w. Mr Nauman Shaikh, for the Appellant in Criminal Appeal No. 310/2012.

Mr P.G. Sarda, Advocate for the Appellants in Criminal Appeal No.184/2012.

Ms S.V. Sonawane, APP for the Respondent–State.

Case BriefsHigh Courts

Kerala High Court: Shircy V., J., held that argument that now the victim of rape had attained majority and was living happily with the accused are not valid grounds or justifiable reasons for quashing the criminal proceedings. The Bench remarked,

“When it (rape) is towards a child the gravity is all the more severe and excruciating as it may even low self-esteem, self confidence and dignity of the child and that the psychic effect and impact would cause a devastating effect on the minor and result in far-reaching consequences.”

The petitioners, accused for the offences punishable under Sections 366A, 376 and 34 of Penal Code, 1860 and Section 4 read with Section 3, Section 6 read with Section 5 and Section 17 read with Section 16 of the Protection of Children from Sexual Offences Act, 2002 (POCSO), had approached the Court for seeking quashment of FIR and other related proceedings.

The case against the petitioners was that they had procured the victim, who was aged only 17 years, from her lawful custody and took her forcibly to the rental house where accused 1 committed rape on her. The petitioners contended that the entire matter had been amicably settled between the parties and the victim did not intend to proceed with the case since they were living together as husband and wife.

Whether criminal proceedings could be quashed in a rape case in view of the compromise arrived at between the parties?

The inherent power given to the High Court under Section 482 CrPC is with the purpose to prevent abuse of process of the court and with the object of advancement of justice which is an exception and not the rule which should be used sparingly with great caution and circumspection.

Reliance was placed by the Court on Gian Singh v. State of Punjab, (2012) 10 SCC 303, wherein the Supreme Court had answered the similar issues stating that, “inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz:

  • to secure the ends of justice, or
  • (ii) to prevent abuse of the process of any court…”

The Delhi High Court held that, “Heinous and serious offences of mental depravity or offences like murder, rape, dacoity etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences.”

Terming the offence of rape worse than murder as humiliating and horrifying experience are caused to the victim, the Bench stated when the crime of rape is towards a child the gravity is all the more severe and excruciating as it may even low self-esteem, self confidence and dignity of the child and that the psychic effect and impact would cause a devastating effect on the minor and result in far-reaching consequences. Accordingly, the Bench stated,

“When the magnitude of the crime is so grave and heinous as such to shock the sense of justice, settlement between the parties and a marriage subsequently between them are not matters for consideration to quash the proceedings in a criminal case.”

Hence, it was held that as the victim was a minor and the provisions of the special Act enacted to protect and save minor children from sexual offences and harassment were also involved, the argument that, now the victim had attained majority and was living happily with petitioner 1 were not valid grounds or justifiable reasons for consideration to quash the criminal proceedings.

Therefore, the compromise and settlement entered between the parties was rejected and the petitioners were directed to stand the test of judicial scrutiny and face the Trial. [Rahul P.R. v. State of Kerala, 2021 SCC OnLine Ker 3348, decided on 26-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioners: Advocate C.A.Chacko, Advocate C.M.Charisma and Advocate Alekh Thomas

For the State of Kerala: P.P. Ajith Murali

Case BriefsHigh Courts

Kerala High Court: Expressing, “When a man abandons his wife and children, roving vultures wait to prey on not only the abandoned woman, but also the helpless children” Division Bench of K. Vinod Chandran and Ziyad Rahman A.A., JJ., noted a case wherein a priest/oracle of a temple took the abandoned woman and three children under his wing and repeatedly molested the elder girl child in the presence of her siblings.

Noting the above stated horrendous act of the priest, Bench expressed,

“We wonder which God would accept the obeisance and offerings of such. Priest or make him a medium?”

Detailed Analysis

Counsel for the appellant, K.M. Frioz:

There was a misjoinder of charges. The Protection of Children from Sexual Offences Act, 2012 was brought into effect from 14-11-2012 and the incident on which the first charge was levelled was prior to the POCSO Act and required a committal proceeding under the CrPC.

Further, it was also contended that clubbing of the charges resulted in grave prejudice to the accused, since the POCSO Act by Sections 29 and 30 raised a presumption against the accused.

Court’s View:

High Court stated that the ground of absence of committal proceedings against the alleged offence could not be sustained.

Further, the Court referred to the Supreme Court decision of Moly v. State of Kerala, (2004) 4 SCC 584, wherein the enactment under which the offence was alleged, did not have a provision similar to Section 33 of the POCSO Act.

POCSO Act enables such other offences to be tried without committal proceedings if it is to be tried in the same trial. The grounds of prejudice urged fails also for the reason that it is merely imaginary. We reject it at the outset on the above reasoning and also on the appellant having merely ‘cried foul’ without the particular prejudice caused or the specific failure of justice, having been stated or substantiated.

Evidence on Merits – Dealt

ChildLine personnel was informed that a woman and four children were wandering and PW 15 along with two Woman Civil Police Officers brought them to the Vanitha Cell, on enquiry it was revealed that the woman showed signs of acute mental illness and displayed violent tendencies.

Elder Child had revealed that the accused who was living along with the woman, had sexually molested her for the last one year.

Since the woman had shown signs of mental illness, on the orders of CJM, she was taken to the Mental Health Centre along with the youngest child. Other children were admitted to the Government Juvenile Home.

Whether the age of the victim was proved?

The offence was committed long before the JJ Act, 2015 came into force.

Court emphasized that, since the POCSO Act did not contain a provision to determine the age of a victim, the proof has necessarily to be in accordance with the rigour of the requirement as insisted by the earlier JJ Act and Rules.

Bench added that

“…there was no prejudice caused to the accused for reason of clubbing an offence under Section 376(2) with an offence under the POCSO Act, going by the specific provision in Section 28(2) of the POCSO Act. In fact, the offence of rape committed on a minor aged below 12 years would attract Section 376 of the IPC and the provisions of the POCSO Act.”

“…when the offences, which arise from the very same act, are tried together and the age of the victim is not proved, it is not as if the offence under the IPC charged against the accused would fall to the ground since no committal proceedings have been carried out under the Cr.P.C” 

When taking cognizance of a charge under the POCSO Act, the designated Special Court is empowered to try any offence, charged at the same trial. Otherwise, every trial under the POCSO Act will have to wait till the committal proceeding is over and that would defeat the very purpose of the enactment which envisages speedy disposal of the cases.

 Court further observed that,

It cannot be the position that once the age is not proved, the offence under Section 376 would fail for the reason of no committal proceedings having been taken under the CrPC.

Analyzing further, the High Court expressed that the charge, though with specified dates was explicit and of continued sexual assault of the penetrative kind on the victim by the accused, who was in the status of her guardian.

Mere irregularity in charge does not prejudice the accused so long as he was aware of what was expected to be defended.

Bench also further referred to a quote from the Division Bench of the Kerala High Court, Surendran v. State, 2021 (3) KLT 205.

Contention:

No specific statement by PW 1 as to a penetrative sexual assault having been committed on her.

Court’s view:

High Court rejected the above contention since the victim had spoken of the repeated acts committed on her in graphic detail. She even spoke of herself being subjected to such acts repeatedly on a day and continuously on several days.

We do not think that at every point, when repeated penetrative sexual assault is alleged, there should be a graphic description by the victim, in Court, of the details of such assault.

 Additionally, the High Court expressed that,

In addition to the trauma of being subjected to a penetrative assault, that too by a person far older in age and having the status of a guardian, the Courts cannot but insist on the trauma being re-visited when examined in Court for the purpose of a successful prosecution. However, that cannot lead to an insistence that when continuous and repeated sexual assault forms the gravamen of the accusation; the witness should be called upon to state every detail of each of such traumatic instances of abject depravity.

Victim a credible witness

Court noted that the essentials of repeated sexual molestation and the manner in which it was carried out had been consistently stated by the victim at the initial stage to the police, who rescued her from the streets and then to the Doctor and the Magistrate; which also had been deposed before the Court, hence there was no question of adverse inference being drawn.

Mental state of the mother, a shame on society, is quite understandable from the stress of having been abandoned, with three children and no means of food or shelter; for which alone the children were subjected to physical, mental and sexual torture. No mother can remain sane in the said circumstances.

 Medical Evidence

As per the medical examination, it was revealed that the prosecutrix had been habituated to sexual act, definitely it corroborated the testimony given by her.

Conclusion

In view of the above stated facts and evidence produced on record, High Court found that the victim was subjected to repeated rape by the accused that too of the penetrative kind.

Though the age of the victim was not proved, she was a school going child, temporarily kept away from her studies. 

On the question of charge, under POCSO Act, since the age of the victim was not proved, the accused had to be acquitted of the charges under the POCSO Act. Hence there could not be a conviction under Section 376(2) IPC.

Though the offence of rape was proved and therefore the accused was liable to be convicted under Section 376(1).

While partly allowing the appeal, the accused was given maximum sentence of life imprisonment. [Madhu v. State of Kerala, 2021 SCC OnLine Ker 3561, decided on 23-09-2021]

Advocates before the Court:

For the appellant/accused:

Sri K.M. Firoz

Smt. M. Shajna

Sr iP.C. Muhammed Noushiq

For the Respondent/Complainant/State:

By Public Prosecutor Smt. Sheeba Thomas

Case BriefsHigh Courts

Sikkim High Court: The Division Bench of Jitendra Kumar Maheshwari, CJ. and Meenakshi Madan Rai, J., dismissed a criminal leave petition which was filed against the Judgment dated 30-10-2018, passed by the Fast Track Court, East and North Sikkim at Gangtok in Sessions Trial (FT) Case No. 01 of 2017 acquitting the accused from the charge under Section 376 (2) (j) and (l) of the Penal Code, 1860.

The Court noted that it was true that the prosecutrix was a deaf and dumb woman, aged about 50 years, and she had stated about commission of rape with her by the accused. But, as discussed by the Trial Court it was clear that she was unable to answer any of the questions as put forth to her. The Court decided that her sole testimony was not safe to rely and to convict the accused.

The Court recorded that her evidence cannot be taken as an evidence of an eye witness; more so, it was observed that there was no allegation in the testimony regarding the penetrative sexual assault.

The Court also saw the medical and scientific evidence that too were not supporting the case of prosecution proving the guilt and to prove the charge on the accused.

The Court dismissing the appeal held that they were satisfied by the findings of the Trial Court.[State of Sikkim v. Dipen Subba, CRL. L.P. No. 11 of 2019, decided on 25-08-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

For Petitioner : Mr Sudesh Joshi and Mr Thinlay Dorjee Bhutia

For Respondent : Mr B.K. Gupta (Legal Aid Counsel) and Mr Dipen Subba

Case BriefsHigh Courts

Chhattisgarh High Court: N K Chandravanshi, J. partly allowed the revision petition by discharging the applicant of charge under Section 376 Penal Code, 1860 and upheld the charges framed under Sections 377 and 498/34 Penal Code, 1860.

The instant criminal revision was preferred by the applicants against the order dated 22-1-2021 passed by Addl. Sessions Judge, Bemetara, Distt. Bemetara by which charges under Sections 498-A, 34, 376 and 377 of the Penal Code, 1860 have been framed against the applicant 1 and charge under Section 498-A of the IPC has been framed against applicants 2 and 3.

The main accusations are that the applicants started harassing complainant on demand of dowry and used to abuse her and commit marpeet with her (battery). The applicant 1/husband also had made unnatural physical relation with her on many occasions by inserting his fingers and radish in her vagina, despite her protest.

Counsel for the applicant submitted that the complainant and the applicant 1 are legally wedded wife and husband, and, in India, marital rape is not recognized and the same is not an offence in view of Exception II of Section 375 of the IPC, therefore, none of the ingredients to constitute the offence punishable under Sections 376 and 377 of the IPC are spelt out against applicant 1.  It was further submitted that carnal intercourse against the order of nature with any man; woman or animal voluntarily is necessary ingredient of Section 377 of the IPC which is not present in this case. Therefore, the order of framing of charges against the applicant 1/ husband under Sections 376, 377 and 498 A of the IPC is illegal and erroneous and not sustainable.

The Court observed that Exception II of Section 375 IPC makes it clear that sexual intercourse or sexual act by a man with his own wife, the wife not being under eighteen years of age, is not rape. In the present case, complainant is legally wedded wife of applicant 1, therefore, sexual intercourse or any sexual act with her by the applicant 1/husband would not constitute an offence of rape, even if it was by force or against her wish. Therefore, charge under Section 376 of the IPC framed against the applicant 1/husband is erroneous and illegal.

The Court observed that in regard to charge framed under Section 498-A of the IPC, the written report and the statements of the complainant show that she was subjected to cruelty by all the applicants by abusing and committing marpeet on demand of dowry, money and other articles from her parents. Therefore no infirmity in framing charges was found under Section 498-A/34 of the IPC against the applicants.

While dealing with charge framed under under Section 377 of the IPC the Court relied on judgment Momina Begum v. Union of India dated 4-3-2013 in Criminal Petition No. 98/2012 wherein it was held

“18. As a matter of fact penetration of any object by the offender into the sex organ with an intention to derive sexual pleasure is sufficient to constitute the sexual connection against the order of nature necessary to constitute the offence under Section 377 of the I.P.C.

…Use of sex organ by the offender is essential to commit an unnatural offence against the nature, in terms of Section 377 of the I.P.C. where dominant intention of the offender is to derive unnatural sexual satisfaction. If the offender with intention to derive sexual satisfaction repeatedly inserts any object in the sex organ of the victim and consequently derives sexual pleasure, such act would constitute as a carnal intercourse against the order of nature. Therefore, if dominant intention of the offender is to derive sexual satisfaction by unnatural way, such act of the offender would attract the ingredient of offence under Section 377 of the I.P.C.”

The Court further relied on Nimeshbhai Bharatbhai Desai v.  State of Gujarat 2018 SCC Online Guj 732 wherein it was held that “a wife can initiate proceedings against her husband for unnatural sex under Section 377 of the I.P.C. Section 377 of the I.P.C. does not criminalize a particular class of people or identity or orientation. It merely identifies certain acts, which if committed, would constitute an offence. Consent is not a determining criterion in the case of unnatural offences and rather any offence which is against the order of nature and can be described as carnal penetration would constitute an offence under Section 377 of the I.P.C.”

The Court observed that charge framed under Section 377 of the IPC cannot be said to be erroneous at the stage of framing of charge, especially, in terms of Section 377 of the IPC where dominant intention of the offender is to derive unnatural sexual satisfaction by repeatedly inserting any object in the sex organ of the victim and consequently deriving sexual pleasure, such act would constitute as carnal intercourse against the order of nature and such act would attract the ingredient of offence under Section 377 of the IPC.

The Court thus held “the instant revision is partly allowed. The applicant No. 1 is discharged from the charge framed against him under Section 376 of the I.P.C. This Court finds that trial Court has not committed any illegality in framing the charge under Section 377 of the I.P.C. against the applicant No. 1 and under Section 498-A/34 of the I.P.C. against all the applicants.”

[Dilip Pandey v. State of Chhattisgarh, CR.R. No. 177 of 2021, decided on 23-08-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Appearances

For Applicant: Mr. Y.C. Sharma and Mr. Sachin Nidhi

For respondent: Mr. Devesh Chandra Verma

Case BriefsHigh Courts

Gauhati High Court: Ajit Borthakur, J., granted bail to an IIT student accused of raping his junior. The Bench stated,

“Both the informant/victim girl and the accused were the state’s future assets being talented students pursuing technical courses at the I.I.T., Guwahati, who were young in the age group of 19 to 21 years only, the continuation of detention of the accused was not necessary.”

The instant petition was filed by the accused, namely Utsav Kadam praying for grant of bail in connection with a rape case pending before the Addl. Sessions Judge. The accused was a youngster aged about 21 years and was a student of B. Tech Pre-final year of Indian Institute of Technology (‘I.I.T.’), Guwahati in chemical engineering.

The case against the accused was that on 28-03-2021 at around 9 p.m., the accused lured the informant/victim female student of the same educational institution to Aksara School premises, in the pretext of discussing about her responsibility as the Joint Secretary of the Finance and Economic Club of the students of the I.I.T., Guwahati and after making her unconscious, by forcibly administering alcohol raped her. The victim regained her consciousness at around 5 a.m., the next morning at Guwahati Medical College and Hospital, where she underwent treatment and forensic examination etc.

The petitioner contended that he had been in judicial custody for about 120 days in connection with the case, which was entirely based on assumption of commission of the offence of rape without any credible evidence. Therefore, it was urged by the petitioner that as the investigation had already been completed and as there was no chance of him jumping the course of justice in any manner, being a student of I.I.T., Guwahati, further continuation of his detention for the purpose of trial may not be warranted and that would amount to causing further damage to his brilliant academic pursuit.

While strongly opposing the bail application, Mr D. Das, counsel for the State contended that allegations made in detail by the victim girl, who was a student of 2nd year B. Tech Chemical Engineering of I.I.T., Guwahati, prima facie established a clear case in favour of the victim girl. Therefore, if liberty of bail was granted to the accused, the trial of the case was certain to be hampered, which may occasion gross injustice to the victim.

On hearing both sides and after considering relevant documents, i.e. FIR, medical report,  statements under Sections 161 and 164 Criminal Procedure Code, 1973, the contents of the charge-sheet and the Fact-Finding Committee Report etc., the Bench opined that there was a  prima facie case as alleged against the accused petitioner. However, as the investigation in the case was completed and both the informant/victim girl and the accused were the state’s future assets being talented students pursuing technical courses at the I.I.T., Guwahati, who were young in the age group of 19 to 21 years only the Bench was of the view that continuation of detention of the accused was not necessary.

Also, the Court stated that there was no possibility of the accused tampering with their evidence or influencing them directly or indirectly, if released on bail. Hence, the accused was directed to be released on bail of Rs. 30,000 with two sureties of the like amount.[Utsav Kadam v. State of Assam, Bail Appln. No. 1623 of 2021, decided on 13-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

Advocate for the Petitioner: Mr. K N Choudhury

Advocate for the Respondent: PP, Assam

Case BriefsForeign Courts

Supreme Court of the United Kingdom (UKSC): Bench of Lord Hodge, Lord Llyod-Jones, Lady Arden and Lord Kitchin, while unanimously allowing the appeal held that,

Tours and Travel Company undertook to provide a package holiday at a four-star hotel. The Court stated the same to be an integral part of a holiday of such a standard that hotel staff provide guests with assistance with ordinary matters affecting them at the hotel as part of their holiday experience. It includes guiding guests from one part of the hotel to another. The rape and assault of the appellant amounted to a failure to provide that service with proper care.

Appellant and her husband (“Mr and Mrs X”) entered into a contract with the respondent tour operator (“Kuoni”) under which Kuoni agreed to provide a package holiday in Sri Lanka which included return flights from the United Kingdom and 15 nights all-inclusive accommodation.

Appellant while making her way through the grounds of the hotel reception, came upon a hotel employee, N, who offered to show the appellant a shortcut to reception.

N lured her into the engineering room where he raped and assaulted her.

Mrs X claimed damages by reason of rape and assault and the said claim was brought for breach of contract and/or under the Package Travel, Package Holidays and Package Tours Regulations 1992 which implement in the United Kingdom Council Directive on package travel, package holidays and package tours.

The issues before the Supreme Court:

On further appeal to the Supreme Court, there were two main issues.

Issue 1: Did the rape and assault of Mrs X constitute improper performance of the obligations of Kuoni under the package travel contract?

Issue 2: If so, is any liability of Kuoni in respect of N’s conduct excluded by clause 5.10(b) of the contract and/or regulation 15(2)(c) of the 1992 Regulations?

Issue 1

It is an integral part of the services to be provided on a holiday of such a standard that hotel staff provide guests with assistance with ordinary matters affecting them at the hotel as part of their holiday experience. In Court’s view, guidance by a member of the hotel’s staff of Mrs X from one part of the hotel to another was clearly a service within the “holiday arrangements” which Kuoni had contracted to provide.

Hence, being accompanied to reception by a member of the hotel staff was a service falling within the scope of the holiday arrangements which Kuoni contracted to provide and the rape and assault committed by N on Mrs X was improper performance of that contract.

Bench expressed that,

“…in view of the objective of ensuring a high level of consumer protection, the obligations arising from a package travel contract could not be interpreted restrictively.”

Further, elaborating more on the analysis, Court stated that Kuoni cannot invoke the exemption from liability established by the third indent of article 5(2) of the Directive or the corresponding provision in regulation 15(2)(c)(ii) of the 1992 Regulations, which implement the Directive, as a defence to a claim for improper performance of obligations under the package travel contract because that improper performance was caused by the acts of N, an employee of the hotel which was a supplier of services performing those obligations. Kuoni is liable to Mrs X under regulation 15 of the 1992 Regulations.

Kuoni is liable to Mrs X for breach of the package travel contract.

 Conclusion

Supreme Court took a broader view of the scope of obligations undertaken by an operator under a package travel contract.

The obligations not only include provision of transport, accommodation and meals but also other services ancillary thereto which are necessary for the provision of a holiday of a reasonable standard.

Court held that N’s guiding Mrs X from one part of the hotel to another clearly fell within the scope of the obligations undertaken by Kuoni under its package travel contract with Mr and Mrs X.

Hence, Kuoni was liable to Mrs X both under the 1992 Regulations and for breach of contract, as the services it undertook to provide were not provided with care and skill by an employee of the hotel which was a supplier of the services.

“…a tour operator is liable for the non-performance or improper performance of the obligations it has undertaken where those failures are the result of acts or omissions of employees of suppliers of services performing those obligations.”

In view of the above discussion, the appeal was allowed. [X v. Kuoni Travel Ltd., [2021] 1 WLR 3910, decided on 30-07-2021]

Case BriefsHigh Courts

Allahabad High Court: Sanjay Kumar Singh, J., expressed that,

“Little girls are worshiped in our country, but the cases of pedophilia are increasing.”

 In the present application, applicant who was involved in a Case under Sections 323, 376(2)(1), 452 and 506 Penal Code, 1860, and Sections 3,4 of Protection of Children from Sexual Offences Act, sought enlargement on bail during the pendency of trial.

Informant had lodged FIR against the applicant alleging that victim who was aged 13 years was residing with her and was alone in the house for doing some house-hold work and all the family members had gone to agricultural field for cutting fodder.

Taking the advantage of the situation, applicant forcibly entered into the house of the informant and threatening to kill the victim, she was dragged inside the room by grabbing her hair, and forcibly committed rape upon the victim.

Suddenly the informant, her son and one Magan came to the house and knocked on the door, but when they entered the house, they saw the victim lying unconscious in a naked condition and the applicant tried to flee away by climbing the wall but was caught. When the victim gained consciousness, she narrated the whole incident and thereafter, police was informed.

Analysis, Law and Decision

High Court found that the applicant already had a criminal history.

In the opinion of the doctor, who conducted the medical examination of the victim, sign of violence was seen and sexual violence could not be ruled out.

“The offence of committing rape upon a minor child is heinous in nature.”

 In the Supreme Court decision of Neeru Yadav v. State of U.P., (2016) 15 SCC 422, criminal antecedents of the accused cannot be ignored while dealing bail application, discretionary powers of Courts to grant bail must be exercised in a judicious manner in case of a habitual offender. The said judgment was followed in a recent Supreme Court decision in Sudha Singh v. State of U.P., (2021) 4 SCC 781.

Bench observed that in the present matter, a small innocent girl has been raped, who does not understand its meaning.

Victim in the instant case, suffers from psychological effects of embarrassment, disgust, depression, guilt and even suicidal tendencies. Many cases go unreported.

The victim/female small child experience sexual abuse once tend to be more vulnerable to abuse in adult life. Healing is slow and systematic. In such a situation, if the right decision is not taken from the Court at the right time, then the trust of a victim/common man will not be left in the judicial system. This is the time to strictly stop this kind of crime. 

In view of the above background, bail was rejected. [Jasman Singh v. State of U.P., Criminal Misc Bail Application No. 1665 of 2021, decided on 17-08-2021]

Advocates before the Court:

Counsel for the Applicant: Bhagwan Das

Counsel for Opposite Party: G.A.

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., observed that,

Rape is not merely a physical assault; it is often destructive of the whole personality of the victim. The act of rape has the ability to scar the mental psyche of the victim and the trauma can persist for years.

Instant petition was filed under Section 482 of the Criminal Procedure Code for quashing the FIR registered for offences under Section 376 of Penal Code, 1860 on the ground that petitioners and respondent 2 have entered into a compromise.

Petitioner’s counsel submitted that the instant FIR was a counterblast against the husband of respondent 2.

High Court on perusal of the facts and circumstances of the case stated that the parties registered cross-cases against each other for offences under Section 376 IPC.

It is tragic to note that practising advocates belonging to the legal fraternity are trivialising the offence of rape.

 In the Supreme Court decision of Shyam Narain v. State (NCT of Delhi), (2013) 7 SCC 77, it was observed that,

“27. Respect for reputation of women in the society shows the basic civility of a civilised society. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. It would not be an exaggeration to say that the thought of sullying the physical frame of a woman is the demolition of the accepted civilised norm i.e. ‘physical morality’. In such a sphere, impetuosity has no room. The youthful excitement has no place. It should be paramount in everyone’s mind that, on the one hand, society as a whole cannot preach from the pulpit about social, economic and political equality of the sexes and, on the other, some perverted members of the same society dehumanise the woman by attacking her body and ruining her chastity. It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men.”

Hence, the Courts shoulder a great responsibility while trying an accused on charges of rape. The matter is of grave concern that people are treating the said allegation in a very casual manner.

Whether the High Courts, while exercising its jurisdiction under Section 482 CrPC, should quash an offence under Section 376 IPC?

Bench stated that rape is an offence against society. The Supreme Court has time and again directed the High Court to not exercise its jurisdiction under Section 482 CrPC to quash an offence of rape in light of parties entering into a compromise.

Court referred plethora of cases and held that quashing FIR for offences like rape on the basis of compromise will encourage accused to put pressure on the victims to agree to a compromise and that would open doors for the accused to get away with a heinous crime which could not be permitted.

Allegations regarding offences such as one under Section 376 IPC cannot be made at the drop of a hat – in order to settle personal scores.

People who make such false allegations of rape cannot be permitted to go scot-free.

High Court expressed that it is pained to note that there is an alarming increase of false cases of rape and offences under Section 354, 354A, 354B, 354C & 354D only to arm-twist the accused and make them succumb to the demands of the complainant.

False claims and allegations pertaining to cases of molestation and rape need to be dealt with an iron hand due to the serious nature of the offences.

Such litigations are instituted by the unscrupulous litigants in the hope that other party will capitulate to their demands out of fear or shame.

Lastly, the Court held that Courts have to ensure that there is no incentive or motive for frivolous litigations which unnecessarily consumes the Court’s otherwise scarce time.

In view of the mandate of the Supreme Court that High Courts must not exercise its powers under Section 482 CrPC for quashing an offence of rape only on the ground that the parties have entered into a compromise, this Court was not inclined to entertain this petition.[Vimlesh Agnihotri v. State, 2021 SCC OnLine Del 4024, decided on 16-08-2021]

Advocates before the Court:

For the Petitioners: Sonu Kumar, Advocate

For the Respondents: Kusum Dhalla, APP for the State

Case BriefsHigh Courts

Allahabad High Court: Ajit Singh, J., rejected the bail application observing that the incident involves the rape of a minor and family is threatened to convert their religion. 

The present petition was filed seeking enlargement on bail during the trial as the petitioner was charged under sections 452/376/120-B IPC, and Sections 3/4, 17/18 POCSO Act and Section 3/5(1) U.P. Prohibition of Unlawful Conversion of Religion Act 2020 and 66 E Information Technology (Amendment) Act.

The factual matrix involves that the present accused had entered into the house of the complainant and forcibly raped the minor daughter of the complainant when she was alone at her house. It was also alleged in the F.I.R. that present accused has made a video clip of the victim and was pressurizing her for establishing physical relation again and when complainant asked the father of the present accused to get the video clip deleted, then the father of the present accused said when your entire family will convert the religion then my son will marry to your daughter else I will marry her.

The Court observed and held that “considering the seriousness of the matter and minor daughter was raped and entire family was asked to convert their religion, without expressing any opinion on the merits of this case, this court does not deems it fit to release the applicant on bail.”[Abdul Rahman v. State of U.P., Criminal Misc. Bail Application No. – 21091 of 2021, decided on 05-08-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Appearances

Counsel for Applicant: – Mr Qaisar Kamal Ansari

Counsel for Opposite Party: – Mr Kamal Kumar and Mr Om Singh Rathaur

Case BriefsHigh Courts

Kerala High Court: In a historic decision the Division Bench of K.Vinod Chandran and Ziyad Rahman A.A., JJ., held that the sexual act of penetration committed between the thighs of the victim held together is an act of manipulation of the body of the victim to obtain sexual gratification, and the same falls within the ambit of the amended definition of rape.

The instant case raised before the Court unfortunate instances of repeated sexual assault of various degrees, on a minor girl by a neighbour, who is married with children. To be precise, the Bench was to decide the question whether, the penetration to “any part of the body of such woman” as mentioned in section 375(c) of the Indian Penal Code, brings within its ambit a penile sexual act committed between the thighs held together; which do not qualify to be called an orifice?

Additionally, does the extended definition intend to cover any manipulation of the body of a woman in such a manner as to simulate an effect, providing sexual gratification, akin to penile penetration; was the question before the Bench.

Factual Fulcrum

The incident came in light when in a medical camp conducted in Thirumarady Government School the victim revealed certain incidents of sexual assault committed on her, by her neighbour during the course of examination. However, it was only after the Child Line authorities pursued upon it an FIR was filed by the victim’s family.

After evaluation of the entire materials, the Special Court found the appellant/accused guilty of the offences under S11(i) r/w 12, 9(l) (m) r/w. 10, S. 3(c) r/w 5 (m) and S.6 of the POCSO Act, S. 375(c) r/w Sections 376(2) (i), 377, 354, 354A(1)(i) of IPC and was sentenced to undergo imprisonment for various terms including life imprisonment.

The victim had revealed multiple instances of sexual assaults such as, making her to hold the genitals of the appellant till he ejaculated, showing obscene pictures, attempt to put his penis into the mouth of the victim, the incident of sexual acts between her thighs and pushing it up and down followed by ejaculation. She also stated about various incidents of touching her private parts and chest.

As per the prosecution case, the sexual act alleged against the accused was that of inserting the penis of the accused between the thighs of the victim; which would not amount to rape as defined under section 375(c).

Analysis and Opinion by the Court

On inconsistencies in Victim’s Statements

The Bench had taken the view that though there were certain inconsistencies and variations in the statement of victim, but that by itself could not be a reason to discard the evidence in its entirety as it is a well settled position of law that, in such circumstances, the attempt of the court should be to separate the grains of truth as discernible from the entire evidence. Moreover, the deviations were only in respect of the irrelevant particulars of the incidents such as, the persons who were present in the house at the relevant time, number of occasions of assaults etc. However, overall reading of the evidence reveals that, sexual assaults of varying degrees were committed on her by the appellant on several occasions. Noticing that the victim was in 6th standard at the time of the incident, the Bench expressed,

“We cannot assume that, she would be able to narrate the specific details of repeated acts merely from her imagination. Moreover, the language and expressions used by her for describing the sexual acts and the sexual organs clearly convey her unfamiliarity with the sexual acts…We cannot expect that an ordinary school going girl from a village area would have such capacity to imagine stories of that nature for falsely implicating the appellant.”

Therefore, denying the objection raised by the accused regarding veracity of the victim’s statements, the Bench stated that it would not have been possible for her to narrate incidents of this nature with such clarity, unless she was subjected to such acts. Therefore, it was held

that the deposition of the prosecutrix inspired confidence, and the discrepancies/inconsistencies pointed out by the appellant, were not of any significance and did not affect the credibility of her statement.

Evidence has to be weighed and not counted

On the objection with regard to absence of any corroborating evidence, the Bench stated that the incident in question could not have any ocular evidence because sexual offences are usually committed in utmost secrecy and when nobody is available, moreover, it had to be noted that the incidents of sexual assault were committed about eight months prior to the date of registration of crime and it was not possible to get any scientific evidence. The medical examination of the victim also could not have provided any evidence, as the specific case of the prosecution is commission of sexual assaults with the penis placed between the thighs to simulate a coitus and not penetration into any of the natural orifices of the victim.

The Bench opined that legal position regarding the conviction on sole testimony of prosecutrix even without any corroboration is now well settled through a large number of decisions. In Vijay v. State of Madhya Pradesh (2010 (8) SCC 191), it was held by the Supreme Court that, “the statement of the prosecutrix, if found to be worthy of credence and is reliable, it requires no corroboration. The court can convict the accused on the sole testimony of the prosecutrix.”

On Delay in filing FIR

The sexual assaults came to light during the medical camp conducted in the school of the victim on 14-01-2015 and it was reported that the incident took place six months prior to the said date. Noticeably, the FIS of PW3 was submitted only on 09-03-2015 and the FIR was registered on 10-03-2015.

Regarding the delay in disclosure of the alleged acts and delay in registering the FIR, the Bench was of the view that the delay in disclosure was only natural since the victim deposed that she was threatened with police action, if disclosure is made of the sexual assaults to her parents. The Bench expressed,

“We perfectly understand the effect of a threat so leveled especially to a school going girl who was sexually abused against her wishes. The abhorrent act would definitely have left a scar in the mind of the victim and it is not easy of disclosure; the ramifications of which probably eluded her.”

Hence, the Bench found the delay on the part of the victim was justifiable. Further, considering the mental state of the mother of the victim and her family, of being saddled with the disrepute of a rape and that its consequences could not be wished away, the Bench opined that on being faced with the circumstance of a neighbour having sexually violated a school going child it was only natural for the family of the victim to go on denial mode and not report the same for reason of the consequent ill-repute to the family. The Doctor obviously reported the matter and the Child Line authorities pursued it upon which the victim’s family had no option. The whole scenario belied the defence set up of the victim having spoken on the instigation of the mother because if it were so the victim’s family would have immediately registered the crime.

Is mere admission by the accused with regard to victim’s age sufficient to consider victim a minor and hold the accused guilty in POCSO Act?

“We painfully notice that there is a callous lapse on the part of the prosecuting agency and the Court too failed to alertly intervene to cure such defect victim. The only mention of her age is where the Sessions Court questioned PW1 as part of verification of her capacity/competence to depose.” 

Noticing that the sole reliance with regard to prove the age of the victim was based by the prosecution on the statement of accused under section 313 CrPC wherein he had admitted her age as 11 years, the Bench stated that, the case of the prosecution, particularly in those aspects which form the basic ingredient of any offence, cannot rest on the shoulders of the accused.

Similarly, the statements made by the witness during ‘voir dire’ is not substantive evidence and only assures the Court of the competence to testify and understand the proceedings and could not have the character of an incriminating material brought out in the evidence led on trial. Hence, the Bench held that the lack of evidence as to the age of the victim was a serious lapse on the part of the prosecution and the same made the charges under the provisions of POCSO Act unsustainable. The Bench stated, age is the most significant and basic element to attract the offences under that Act and unless it is established by adducing positive evidence, the rigour of the provisions in the POCSO Act cannot be pressed into service.

Whether sexual act between thighs of the victim amount to Rape?

Noticeably, the sexual act of highest degree alleged against the appellant was that, he had inserted his penis between the thighs of the victim; therefore, the defence side contended that such an act would not attract the offence of rape as defined under section 375.

Analysing the legislative history of definition of “rape” as it now stands and the evolution thereof through judicial precedents and statutory amendments, the Bench stated that the definition of ‘rape” had under gone a sea change as per amendment vide Criminal Law Amendment Act, 2013.

Definition of rape After Criminal Law Amendment, 2013

  1. “A man is said to commit “rape” if he –

c. …manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or”

 Since the offence was committed prior to 2018 amendment of Criminal Law regarding rape, the Court weighed on section 375 as it stood after the amendment in 2013. Unlike the old definition of rape the amended definition takes in all forms of penetrative sexual assault onto vagina, urethra, anus or any other parts of the body so manipulated to get the feeling or sensation of an orifice.

Opining that in the amended provisions, the legislative intention is very evident, the Bench stated that the words “or any part of body of such woman” as used therein, required wider interpretation so as to include any orifices naturally present or any part of the body manipulated to simulate a penetration and have the effect/sensation of an orifice.

Interpreting the said definition the Bench emphasised on the word “manipulation” which by itself includes an artificial creation. Hence, the Bench stated that the effect of manipulating the thighs to be held tightly together is to cause penetration of the crevice, when the muscles engulf the object which penetrates to create or simulate the same effect as in a normal penile-vaginal intercourse. The dictionary meaning of “manipulate: includes “control or influence cleverly or unscrupulously.” The word penetration means: “a movement into or through something or someone”.

Hence, it was held by the Bench that when the body of the victim is manipulated to hold the legs together for the purpose of simulating a sensation akin to penetration of an orifice; the offence of rape is attracted. When penetration is thus made in between the thighs so held together, it would certainly amount to “rape” as defined under Section 375.

Whether the said Act falls in category of unnatural sex under Section 377 of IPC?

Although, in State of Kerala v. Kudumkara Govindan, 1968 SCC OnLine Ker 138, the Court had dealt with commission of a sexual act of very same nature and it was held that sexual act committed between the thighs would attract the offence under Section 377 as it is against the order of nature, the Bench opined that a penetrative intercourse which earlier fell under Section 377 has been culled out from there and is placed under Section 376 by virtue of the expanded definition of rape under section 375. Section 375 as amended by Act, 2013, widened the definition of “rape’ by expanding its ambit beyond the penile penetrative assault into vagina, therefore, several penetrative sexual assaults, which would otherwise be triable under Section 377, now come within the operative field of Section 375.

Hence, the Bench held that the acts committed by the appellant/accused fall within Section 375, and Section 377 would not be attracted. Accordingly, the conviction of the appellant under Section 377 of IPC was set aside.

Verdict

In the light of the above, the Bench reached to the conclusion that the appellant had committed the offence of rape as he had penetrative sexual act between the thighs of the victim held together; an act of manipulation of the body of the victim to obtain sexual gratification, which culminated in ejaculation. However, since the prosecution had failed to provide any evidence to prove the age of the victim, the conviction under the provisions of the POCSO Act and also under section 376(2)(i) of the IPC  were set aside.[Santhosh v. State of Kerala, 2021 SCC OnLine Ker 2967, decided on 02-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Appellant: Padmalayan, Public Prosecutor

For the Respondent: S. Ambikadevi, Spl. Govt. Pleader (For Atrocities against Women And Children And Welfare Of Women And Children)

Case BriefsHigh Courts

Telangana High Court: G. Sri Devi, J., rejected a bail application on noting the fact that a minor girl was continuously sexually assaulted by her mother’s live-in partner resulting in her getting pregnant.

Instant criminal petition under Section 437 and 439 of the Code of Criminal Procedure, 1973 was filed by the petitioner/A-2 to release her on bail for the offences under Sections 376(2)(f)(n), 376(3), 342 and 50 of the Penal Code, 1860.

Analysis, Law and Decision

Bench noted that the petitioner/A-2 after the death of her husband had developed intimacy with A-1 and both the petitioner and A-1 were staying together by maintaining a live-in-relationship.

Further, it was noted that the petitioner allowed A-1 to commit sexual assault on her minor daughter, as a result of which her minor daughter, due to a continuous assault upon her by A-1 became pregnant and also gave birth to a male child. After giving birth, also the victim became pregnant twice and A-1 gave pills to her for abortion. The DNA test also revealed that A-1 is the biological father of the male child born to the victim girl.

In view of the above nature of allegations levelled against the petitioner, which were grave and heinous in nature, Court rejected the bail application of the petitioner.

High Court while dismissing the criminal petition, stated that since the charge sheet was already submitted, the trial court was directed to commence and conclude the trial as expeditiously as possible.[Shabana Begum v. State of Telangana, CRLP 4703 of 2021, decided on 3-08-2021]

Advocates before the Court:

Petitioner Advocate: Ramani Vemuganti

Respondent Advocate: Public Prosecutor TG

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]