Rape

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]

Case BriefsForeign Courts

Lahore High Court: While deliberating upon the writ petitions challenging the use and conduct of ‘virginity tests’ especially “Two-finger Test” and “Hymen Examination” in cases of rape and sexual abuse, Ayesha A. Malik, J., held that the virginity tests, carried out for the purposes of ascertaining the virginity of female rape or sexual abuse victim, is unscientific and has no medical basis, therefore it is of no forensic value in cases of sexual violence. It was further held that the virginity tests offend the personal dignity of the female victim and therefore is against the right to life and right to dignity enshrined in Articles 9 and 14 of the Constitution of Islamic Republic of Pakistan, 1973.

 Contentions: The petitions were brought before the Court by a group of diverse women, who have been working in the public sphere and one of the members of the National Assembly of Pakistan. They stated before the Court that the virginity tests are done upon a victim in order to ascertain whether they are sexually active. The petitioners put forth the following contentions –

  • There is no medical or scientific basis to continue with virginity testing; that it violates the fundamental rights of the female victims such that it denies the female victim her fundamental rights of dignity and privacy that she is guaranteed under the Constitution.
  • After the omission of Section 151 (4) of the Qanun-e-Shahadat Order, 1984 under the Criminal Law (Amendment) (Offences Relating to Rape) Act, 2016, tests are irrelevant for the charge of rape or sexual abuse. The virginity tests are neither necessary nor reliable for the purpose of investigation into the incident of rape or sexual abuse.
  • Even though the consent of the victim is obtained before conducting the test, however the victim is neither aware of the reasons for carrying out either of the tests nor is she informed properly, with sufficient sensitivity, as to what the examination entails.
  • The medico-legal examination reports rely on words such as “habituated to sex” or “not a virgin” which are irrelevant for the purposes of the incident under investigation and such derogatory language stigmatizes the victim, causing social and personal trauma. There is not enough training with reference to the female medical officers appointed, who carry out the virginity tests and fill in the medico-legal report.
  • Pakistan is a signatory to several international treaties like UDHR, ICCPR, Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 which denounce virginity testing. Moreover, Pakistan has also signed and ratified Convention Against Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW), which prohibits all forms of discrimination against women and declares the two-finger test as discriminatory such that it amounts to a denial of rights to female victims of rape on the basis of her gender.

The respondents (Federation of Pakistan and Province of Punjab) did not dispute the contentions of the Petitioners to the extent that the two-finger test should not be conducted. They stated that the matter is under consideration with the competent authority and guidelines are in the process to be framed. It was clarified that the two-finger test is not conducted unless it is deemed necessary and that in cases of minor girls, it is mandatory to inspect the hymen in detail to determine whether it is intact and if not then the nature of the injury.

Upon perusal of the petitioners’ contentions and statements provided by the respondents vis-à-vis the prevalent scenario and after detailed scrutiny of the relevant Guidelines/ SOPs; the Court observed the Guidelines for the Examination of Female Survivors/Victims of Sexual Abuse, 2020 still calls for a virginity test albeit by confusing the issue rather forbidding it (it allows a “per-vaginum examination” where required and per-vaginum examination is understood to mean the two finger test). It was noted that a bare reading of 2020 Guidelines makes it clear that the process of virginity testing through two fingers or hymen examination are standardized and form the basis of the medical officer’s opinion or the court’s opinion on the virtue and character of the victim. Regarding the use of phrases like “habituated to sex” and “not a virgin” in medico-legal reports the Court noted that, “Often enough the opinion of the medical officer is carried into the judgments of the court and language such as “habituated to sex”, “women of easy virtue”, “habitual to sexual intercourse”, “indulging in sexual activities” are used to describe the victim. The basis being that a woman habituated to sex is likely to have raised a false charge of rape or sexual abuse”.

The High Court also referred to several decisions rendered by the Indian courts, most notably the Supreme Court of India’s judgment in Lillu v. State of Haryana, (2013) 14 SCC 643, wherein it was held that- the two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity; therefore, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent. Judgments delivered by Allahabad HC in Akhtar v. State of U.P., 2014 SCC OnLine All 8922 and Gujarat HC in State of Gujarat v. Rameshchandra Ramabhai Panchal, 2020 SCC OnLine Guj 114  were also referred to.

It was also noted that Pakistan has signed and ratified several relevant International Treaties which cast an obligation upon the Government to ensure that all necessary steps are taken to prevent carrying out virginity testing, as globally it is accepted that virginity testing does not establish the offence of rape or sexual abuse nor does past sexual conduct have any relevance in the medico-legal examination which aims to collect evidence on the charge of sexual violence.

Judge noted that, “Virginity testing is highly invasive, having no scientific or medical requirement, yet carried out in the name of medical protocols in sexual violence cases. It is a humiliating practice. If the victim, is found to not be a virgin, it cannot and does not suggest that she was not raped or sexually abused. What it does is place the victim on trial in place of the accused and shifts the focus on her virginity status. In this regard, the victim’s sexual behaviour is totally irrelevant as even the most promiscuous victim does not deserve to be raped, nor should the incident of sexual violence be decided on the basis of a virginity test. It is a blatant violation of the dignity of a woman. The conclusion drawn from these tests about a woman’s sexual history and character is a direct attack on her dignity and leads to adverse effects on the social and cultural standing of a victim”.

With the aforementioned observations, the Court made the following declarations-

  • Virginity tests are discriminatory against the female victim as they are carried out on the basis of their gender, therefore offends Article 25 of the Constitution, 1973.
  • To the extent that the 2020 Guidelines, SOPs and the 2015 Instructions mandate the virginity tests are declared to be illegal and against the Constitution and the Federation and Provincial Government should take necessary steps to ensure that virginity tests are not carried out in medico-legal examination of the victims of rape and sexual abuse.
  • The Provincial Government should devise appropriate medico-legal protocols and guidelines, along with standard operating procedures, in line with international practice that recognize and manage sensitively the care of victims of sexual violence.

[Sadaf Aziz v. Federation of Pakistan, WP No. 13537 of 2020, decided on 04-01-2021]

Sucheta Sarkar, Editorial Assistant has put this story together

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Case BriefsSupreme Court

Supreme Court: In a 20-year-old case relating to rape of a 6-year-old, the 3-judge bench of RF Nariman*, Navin Sinha and KM Joseph, JJ has dismissed the special leave petition filed by the convict, thereby rejecting the contention that since the petitioner has only one hand, it would be physically impossible to have committed an act of rape. The Court said that there is no such impossibility.

Senior Advocate R. Basant had argued before the Court that the case was made out against the convict only under Section 376(1) and not under Section 376(2), however, after perusing the charges framed, the Court noticed that the charge was not only under Section 376(1) IPC, but was under Section 376, which includes Section 376(2).

Further, there was a concurrent finding of the Court below of facts that the victim, who was only 6 years old, was raped by the petitioner. Apart from the victim’s testimony, there was also the testimony of her mother, who was an eye witness to the incident. The petitioner was over 18 years old and was found to be potent. His lungi was recovered and he himself absconded, having been captured after 15 days of the incident.

While dismissing the Special Leave Petition, the Court said,

“Considering that the State has not filed an appeal and that the incident has taken place 20 years ago, we dismiss the special leave petition, without going into Section 376(2) and whether a case is made out on facts for reducing the minimum punishment of 10 years.”

[Seelan v. Inspector of Police,  2020 SCC OnLine SC 1028, decided on 16.12.2020]

*Justice RF Nariman ahs penned this judgment. Read more about him here.

Case BriefsHigh Courts

Orissa High Court: S.K. Sahoo J. allowed the appeal in part setting aside conviction under Sections 376/511, 354 and 457 of  Penal Code, 1860 and upholding conviction under Section 448 IPC.

The facts of the case are such that on 03-10-1989 at about 9.30 p.m. while the victim/informant was sleeping with her younger brother in one room of her house and her elder brother Jubaraj Nag and his elder brother’s wife Jayanti Nag were sleeping in the adjacent room, the appellant entered into the room where the victim was sleeping by opening the bamboo door of the victim’s room, disrobed her saree and attempted to commit rape on her. Hearing hullah of the victim, the elder brother and his wife came inside her room. The appellant tried to conceal himself underneath a raised platform inside the bedroom but the victim, as well as his elder brother, assaulted him by firewood. Due to tussle of the appellant with the victim, the bangles of the victim were broken and were lying underneath the cot. Then the brothers of the appellant came and took him to their house. FIR was lodged against the appellant under Sections 457 and 354 of the Penal Code, 1860 i.e. IPC. The appellant Satrughana Nag faced trial in the Court of learned Additional Sessions Judge, Titilagarh for offences punishable under Sections 376/ 511, 354 and 457 of the IPC. The learned trial Court vide impugned judgment and order dated 17-03-1990, found the appellant guilty of the offences charged and sentenced him accordingly. Aggreived by the same, instant appeal was filed.

Counsel for the appellants submitted that there are certain improbability features in the prosecution case which create doubt that the appellant attempted to commit rape on the victim rather the victim appears to be a consenting party and when she was caught in a compromising position with the appellant by her family members, she reacted and brought false accusation against the appellant just to save her own skin.

Counsel for the respondents submitted that evidence of the victim is clear, cogent and trustworthy, that in itself is sufficient to convict the appellant.

The Court based on the evidence put on record and the witnesses submissions observed that it is the settled principle of law that if the statement of the prosecutrix is found to be worthy of credence and reliable, then it requires no corroboration and the Court can act on such testimony and convict the accused. There may be compelling reasons in some cases which may necessitate looking for corroboration to the statement of the prosecutrix. The evidence of the prosecutrix is more reliable than that of an injured witness. Minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground to discard her version, if it inspires confidence. Corroboration to the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. The very nature of offence makes it difficult to get direct corroborating evidence.

The Court further observed on the issue of whether victim was a consenting party or not and stated that law is well settled that even in the absence of a specific defence of consent being taken by an accused charged with the offence of rape, if the evidence on record indicates that the victim was a consenting party, then the Court can always take the view that the sexual intercourse with the prosecutrix was not against her will but with her consent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. An inference as to consent can be drawn only basing on evidence or probabilities of the case. ‘Consent’ is stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of. If the victim fails to offer sufficient resistance, the Court may find that there was no force or threat of force or the act was not against her will. ‘Consent’ does not mean submission under the influence of fear or terror. There must be an exercise of intelligence based on knowledge of its significance and moral quality and there must be choice between resistance and assent. If the woman resists to a point whereafter further resistance would be useless or until her resistance is overcome by force or violence, submission thereafter is not consent. Verbal resistance apart, the woman can give effective obstacles by means of hands, limbs and pelvic muscles. Resistance by any or more of these will amount to resistance in the eye of law. A mere act of helpless resignation in the face inevitable compulsion, acquiescence, non-resistance or passive giving in, when volitional faculty is either clouded by fear or vitiated byduress, cannot be deemed to be a consent, as envisaged in law.

The Court thus held that the victim’s version in the Court was of rape but when it is compared with the one given during investigation, certain irreconcilable discrepancies are noticed. The evidence regarding actual commission of rape is at variance from what was recorded by police during evidence. Therefore, the victim cannot be said to be a truthful witness. It was further held that coming to the charge of attempt to commit rape, the reaction of the victim at the time of occurrence and immediately thereafter are very relevant features, but its absence is not always a decisive factor. As per examination and records it is clear that there were many opportunities earlier for the victim to raise shout and protest but she did not do that.

In view of the above, the conviction of the appellant under Sections 376/511 and 354 of IPC was held to not be sustainable in the eye of law however; there are enough materials to make out an offence of house18 trespass as defined under Section 442 of IPC which is punishable under Section 448 of IPC.

The court thus allowing the appeal in part held conviction of the appellant under Sections 376/511, 354 and 457 of  IPC is hereby set aside, instead the appellant is convicted under Section 448 of the IPC and sentenced to undergo imprisonment for the period already undergone by him.[Satrughana Nag v. State of Odisha, 2020 SCC OnLine Ori 885, decided on 11-12-2020]

Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sadhana S. Jadhav and N.J. Jamadar, JJ., observed a matter wherein an adolescent girl who was employed as a maid to earn a livelihood was sexually harassed by the son of her owner.

Appellant was convicted for the offence punishable under Section 376 of the Penal Code, 1860 by the Lower Court.

Factual Matrix

X, a helpless adolescent girl was working as a maid servant to earn her livelihood. She had approached the police station to lodge an FIR.

She alleged that her father had got her employed as a maid with Jahangir owner of Hotel Sai-Village at Shirdi. Mr Jahangir’s wife and two children i.e. present accused 1 and his sister Farhad were original residents of Geeta Bhavan, Bombay. Jahangir’s wife, i.e. accused 2 had brought X to Bombay to work at their residence. After a few days, the sister of the victim was also employed with the mother of accused 2.

Victim alleged that she was molested and ravished by accused 1. Due to fear and apprehension she couldn’t disclose the whole truth to accused 2 and hence ended up stating that she was being teased by accused 1.

She also had conceived pregnancy from accused 1. All efforts to abort the foetus were taken by accused 2. Later she was admitted to Asha Sadan after which she was admitted to hospital and gave birth to a child. Accused 2 asked the victim to leave the child at Asha Sadan but the victim refused to do so.

Hence she was allowed to take the child along.

Victim’s child was snatched by the sister of accused 2 with the assurance that it would be returned in a few months.

Accused 2 kept harassing the victim and did not allow her to return to her native place. Thereafter, the victim somehow eloped from the place and returned to her native place and lodged the FIR.

Analysis and Decision

Bench while considering the facts and circumstances of the matter, stated that it is a settled law that the evidence of rape victim stands at par with the injured witness.

Court held that evidence of the victim of sexual offence deserves to be considered with great weightage. The facts and circumstances corroborate the evidence of the victim and leave no room for suspicion that the victim was ravished by none other than the accused 1.

A rape victim is left with a feeling of degradation, humiliation and guilt for the whole life.

Offence of rape is a heinous offence which cannot be viewed with any leniency. Once the Court finds the evidence of victim to be trustworthy, conviction would follow and said conviction should be followed by a sentence proportionate to the gravity of the offence. Social position of the accused is totally irrelevant.

Supreme Court has time and again said that the society cannot look upon a woman with derision, depravity, contempt and as an object of desire.

Demise of the Child

Court observed in the instant case that, the injury sustained by a rape victim is not just a physical injury, but an injury to her womanhood. She is forced to live with indignation throughout her life and in the present case, she had given birth to a child who lived with her for hardly 6 days and thereafter, the child was brutally snatched, abandoned and had died.

A scar on the Victim

Victim was not even informed of the demise of her child, but the said injury would definitely leave a scar on her further development as a person.

It is not just a physical injury, but injury to the soul of a victim. In the present case, Ms X had attained motherhood at a young age of 15 years.

Hence, in view of the above, appeal deserves to be dismissed.

Further, Criminal Appeal No. 919 of 2006 was filed by the State with regard to meager sentence imposed upon accused 1 despite his conviction for an offence punishable under Section 376 IPC.

The Court is duty-bound to assign special and adequate reason for imposing a sentence lesser than the minimum.

Heinous Offence

Bench stated that High Courts cannot be oblivious of the impact of such a heinous offence.

The object of deterrence in the commission of such heinous offence cannot be lost sight of while sentencing. Once the accused is convicted, the victim also deserves justice.

Dishonour of a woman needs to be eliminated and judicial pronouncement, which imposes a disproportionately lenient sentence, needs to be set aside.

Sessions Court had acquitted the accused 1 despite there being material evidence. Therefore, it was incumbent upon the State to file an appeal against acquittal, in view of the fact that the victim was subjected to harassment, she was brutally assaulted, she was forced to abandon her child, which in fact is an offence punishable under Section 317 IPC.

While parting with the decision, Court stated that the quantum of sentence of the accused convicted under Section 376 IPC cannot be viewed with leniency. Hence, the sentence imposed upon the respondent/accused 1 deserves to be enhanced and appeal for enhancement deserves to be allowed. [Faiyaz v. State of Maharashtra, 2020 SCC OnLine Bom 3561, decided on 08-12-2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah*, JJ refused to interfere with the conviction of a man for sexually assaulting a mentally deficient woman.

“A person suffering from mental disorder or mental sickness deserves special care, love and affection. They are not to be exploited. In the present case, the accused has exploited the victim by taking disadvantage of her mental sickness/illness. Therefore, no interference of this Court against the impugned judgment and order passed by the High Court convicting the accused is called for.”

Brief Background

In 2008, the 19-year-old prosecutrix, was sexually assaulted by the accused in the jugle where they both used to go to graze cattle. The accused threatened the prosecutrix not to disclose the incident to anyone and due to fear and due to forgetting the same and further due to mental weakness, she did not disclose about the incident to anyone including her mother. When she was medically examined, it was found that she was 31 weeks pregnant. After she gave birth to a female child, blood samples of the prosecutrix, the baby and the accused were taken for DNA test.  As per report, accused was the biological father of the female child.

The trial Court acquitted the accused mainly on the ground of delay in lodging the FIR and also on the ground that the prosecutrix was not mentally unsound to understand the consequences and what was happening.

However, the Himachal Pradesh High Court sentenced the accused to undergo seven years R.I. with fine of Rs. 10,000/- and in default of payment of fine, further six months R.I. under Section 376 IPC and four years R.I. with fine   of Rs.5,000/- and in default of payment of fine, further three months R.I. under Section 506 IPC.

Analysis

On re-appreciation of evidence by the High Court

The Court held that in the facts and circumstances of the case the High Court is justified and, as such, has not committed any error in reversing the order of acquittal passed by the learned trial Court and convicting the accused for the offences under Sections 376 and 506 IPC. Being the first appellate Court, the High Court was justified in re-appreciating the entire evidence on record and the reasoning given by the learned trial Court.

On the mental condition of the prosecutrix

“Merely because the victim was in a position to do some household works cannot discard the medical evidence that the victim had mild mental retardation and she was not in a position to understand the good and bad aspect of sexual assault.”

Is language material for conducting IQ tests?

In   the   crossexamination, the Medical Expert specifically stated that the language is not material in the tests because these are independent of language. IQ of a person can be known on the basis of the questions, activities and the history of a patient. Therefore, even if there might be some contradictions with respect to language known by the victim, in that case also, it cannot be said to be the major contradictions to disbelieve the entire medical evidence on the mental status of the victim.

On the culpability of the accused

On evidence, it was established and proved that the victim was mentally retarded and her IQ was 62. Holding that the accused had taken disadvantage of the mental illness and low IQ of the victim, the Court noticed

“It is required to be appreciated coupled with the fact that the accused is found to be the biological father of the baby child delivered by the victim. Despite the above, in his 313 statement the case of the accused was of a total denial. It was never the case of the accused that it was a case of consent.”

Therefore, considering the evidence on record, the Court upheld the decision of the High Court wherein it was observed that case would fall under Section 375 IPC. Further, even as per clause fifthly of Section 375 IPC, “a man is said to commit rape”, if with her consent when, at the time of giving such consent, by reason of unsoundness of mind, is unable to understand the nature and consequences of that to which she gives consent.

On reduction of sentence

It was contended on behalf of the accused that he has already undergone four years RI out of seven years RI awarded to him and is married and has two children and therefore a lenient view may be taken. The Court rejected this contention and said

“…as such the High Court has also taken a very lenient view by imposing the minimum sentence of seven years RI.  It is required to be noted that it is a case of sexual assault on a victim whose IQ was 62 and was mentally retarded and that accused has taken undue advantage of the mental sickness/illness of the victim.”

[Chaman Lal v. State of Himachal Pradesh, 2020 SCC OnLine SC 988, decided on 03.12.2020]

*Justice MR Shah has penned this judgment

For Appellant: Advocate Radhika Gautam, learned Advocate has appeared for

For State: Advocate Sarthak Ghonkrokta

Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J., observed that If an HIV positive person is aware of their condition and has unprotected sex, the person can be punished under Section 270 of Penal Code, 1860.

Appellant was convicted by the trial court under Sections 376/313/307 of Penal Code, 1860.

Appellant was found guilty of raping his stepdaughter and since the appellant was found to be infected with Human Immunodeficiency Virus (HIV Positive) and was convicted for an offence punishable under Section 307 of IPC — attempt to murder.

Trial Court also observed that since the appellant was aware that his acts could result in transmitting the potentially lethal disease, he had knowingly committed an act, which if resulted in transmitting of HIV and consequently, the death of the victim from that disease, it would amount to murder.

Analysis, Law and Decision

Conviction for Rape — offence punishable under Section 376 of IPC

Whether there is any doubt that the appellant is guilty of committing an offence punishable under Section 376 IPC?

Considering that the prosecutrix gave varied statements at various points of time and had changed her stand on oath. The testimony of the prosecutrix could not be considered as wholly reliable and the trial court erred in proceeding on the said basis. However, Court also denied accepting that she was a wholly unreliable witness.

Further, in view of the above Court stated that it would be unsafe to rely on the testimony of the prosecutrix without any corroborative evidence and hence solely on her testimony, the appellant cannot be convicted.

Bench made another observation that,

in the instant case, there is unimpeachable corroborative evidence that the petitioner had raped the prosecutrix. The DNA Fingerprints of the Products of Conception and the DNA Fingerprints generated from the blood sample of the petitioner conclusively established that the appellant was the biological father of the abortus.

Repeatedly Raped

It is also material to note that the prosecutrix had in the first instance, when she was brought to the Community Care Centre, reported to the nurse that her stepfather had been repeatedly establishing physical relations with her and had been sexually abusing her in front of her siblings.

Even the medical report recorded:

“Repeated Rape by HIV positive stepfather after the death of mother suffering from HIV/AIDS in Jan 2011. Patient was overdue by one week in April 2011 when she was given an injection to get back her periods back. She bled with clots and pieces. UPT done showing pregnancy positive result.”

High Court concurred with the decision of the trial court that the evidence obtained in the present case clearly established beyond any reasonable doubt that the appellant had engaged in sexual intercourse with prosecutrix without her consent and had committed an offence punishable under Section 376 IPC.

Conviction for causing miscarriage – offence punishable under Section 313 IPC

Whether it is established that the appellant is guilty of committing an offence punishable under Section 313 of the IPC?

Trial Court had held that the appellant was guilty of causing miscarriage to the prosecutrix by administering her pills. It is relevant to note that though the prosecutrix was in Sneh Sadan when she was allegedly administered pills by the appellant and the same was allegedly informed to doctors immediately, no action was taken by any of the doctors in this regard.

Bench stated that there is no material to indicate as to what pills were administered to the prosecutrix. Although three medical doctors were examined, none of them mentioned that in their opinion the prosecutrix‘s miscarriage was induced by the said pills.

Hence, the Court stated that there was no description of the pills allegedly administered to the prosecutrix. There is nothing on record to remotely indicate as to what was the substance that was allegedly administered to the prosecutrix.

Court was of the view that there was insufficient evidence to conclude that the appellant had committed the offence of causing the prosecutrix‘s miscarriage. Therefore, the appellant‘s conviction for committing an offence under Section 313 of the IPC could not be sustained.

Conviction for an attempt to murder – offence punishable under Section 307 IPC

Bench did not concur with the view that the appellant was guilty of an offence punishable under Section 307 IPC for several reasons.

Firstly, that the import of holding so would also mean that any sexual activity by a person infected by HIV is punishable under Section 307 of the IPC, notwithstanding that his or her partner has consented to such sexual activity. This is because the culpable act under Section 307 of the IPC does not cease to be one if the victim of such an act has also consented to the same.

Secondly, the trial court had drawn support for its conclusion by mentioning that several countries prosecute cases of transmission of HIV and non-disclosure of HIV status. However, the court had not examined the specific provisions or the rationale used in various jurisdictions for prosecuting non-disclosure of HIV positive status as general offences.

In cases of actual transmission where an HIV Negative person acquires the said disease as a result of engaging in any sexual activity with an HIV Positive partner, the offender is prosecuted for causing bodily harm.

In certain cases where an HIV Positive person fails to disclose his status and engages in any sexual activity, he/she may be prosecuted for sexual assault as in such cases, the consent of the other person to engage in sexual intercourse is vitiated and the sexual act can be construed as one without consent.

In cases of sexual assault or rape, it is widely accepted that the HIV Positive status of the offender is an aggravating factor to be considered while sentencing the offender.

Thirdly, on a plain reading of Section 307 of IPC, an offence under Section 307 IPC is not made out.

Section 307 of the IPC punishes any act which is done by a person with such intention or knowledge and under the circumstances that by that act cause death, the persons committing such act would be guilty of murder.

Bench observed that clearly, in the facts of the present case, the appellant had not raped the prosecutrix with an intention of causing her death.

According to the prosecution, the appellant was lonely after the death of his wife and he had sexually preyed on his stepdaughter (as allegedly disclosed by him in his disclosure statement).

It is relevant to note that one of the key ingredients of the second, third and fourth limb of Section 300 of the IPC is that the culpable act is so inherently dangerous as is likely to cause death; or is sufficient in the normal course of nature to cause death; or in all probability, it would cause death.

The assumption that penetrative sexual assault would in all probability lead to transmission of the disease, which in all probability would result in the death of a healthy partner is not established. In the facts of the present case, no evidence whatsoever was led to establish the probability of the prosecutrix being transmitted the said disease.

In the given circumstances, the decision of the Trial Court is largely based on surmises and impressions, without analysis of any scientific data to assume that sexual intercourse by an HIV positive patient would in all probability lead to the demise of his partner.

Fourthly, the appellant was medically examined and there is no evidence to indicate that he was a carrier of Herpes Simplex Virus. Thus, there is no evidence that the appellant would have transmitted the said disease to the prosecutrix.

Lastly, this Court is of the view that the Trial Court had erred in proceeding on the basis that provisions of Section 270 of the IPC would not be applicable.

In Supreme Court’s decision of Mr ‘X’ v. Hospital ‘Z’: (1998) 8 SCC 296, a case was considered where the respondent hospital had disclosed that the appellant was HIV positive to his fiancé. As a result of such disclosure, the appellant‘s marriage to his fiancé was called off. Appellant instituted an action to recover damages on the ground that the information regarding his HIV positive status was required to be kept secret under medical ethics and was disclosed illegally. The appellant pleaded that since the hospital had breached its duty to maintain confidentiality, they were liable to pay damages to the appellant.

“…the reasoning that unprotected sexual engagement by an HIV positive person, who is aware of the nature of his disease, can be termed as a negligent act, which he knows is likely to spread the infection of a disease that endangers life and is thus, liable to be punished under Section 270 of the IPC is persuasive and cannot be faulted.”

Court opined that even if the Trial Court was of the view that it would not be apposite to frame charges under Section 270 of the IPC, the same did not necessarily warrant that charges be framed under Section 307 of IPC.

In view of the above, the impugned judgment to the extent that it convicts the appellant for committing an offence punishable under Section 376 of the IPC was upheld.

Punishment for offences under Sections 313 and 307 of IPC was set aside. [Sabhajeet Maurya v. State (NCT of Delhi), 2020 SCC OnLine Del 1525, decided on 26-11-2020]

Case BriefsHigh Courts

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

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

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

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

Prosecutions’ Case

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

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

Analysis

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

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

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

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

“Section 375 IPC: Rape

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

First — Against her will.

Secondly — Without her consent.

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

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

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

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

Section 377 IPC deals with the unnatural offence.

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

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

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

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

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

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

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

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

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

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