Rape accused

Case BriefsHigh Courts

Allahabad High Court: Dinesh Kumar Singh, J., allowed an application of anticipatory bail in connection with the FIR registered for the offences punishable under Sections 328, 342, 323, 504, 506 and 376D of the Penal Code, 1860.

The factual matrix as per the FIR is that the victim was first abducted and later administered some drugs which knocked her unconscious. Then she was taken to a house where she was kept for a few days. At the house, she was raped by the applicant along with the co-accused, Mukesh. The applicant’s wife physically assaulted the victim and threatened her with dire consequences in terms of social backlash and the blot on her career resultant of the act. One day post this incident, the victim somehow managed to inform her mother about her whereabouts after figuring out the name of the village she was being kept in. Later, the victim was forcibly carried to the matrimonial home of Daichi, the co-accused’s wife where she was shut inside a room subsequent to her being told to marry the co-accused’s brother, Babban. Thereafter, she was raped by Babban. At that very moment, a call from the sister of the co-accused was received stating that police had turned up at her place. On 23-09-2019 the applicant and the co-accused drugged her and then took her to Farrukhabad, when somebody called up her brother who took her home. Afterward, the victim’s family placed a call to the police but no action was taken.

The Applicant’s counsel, Ravi Kumar Singh has heavily denied this version contending that the applicant has been falsely implicated in a bogus case as the aforementioned FIR is the result of an ongoing monetary dispute between the victim and the co-accused. The counsel added that FIR has been lodged after a delay of about five months as the date of occurrence is 06-09-2019 while the FIR has been filed on 03-02-2020. He has vouched for his client stating that the applicant would not misuse the liberty and co-operate with the investigation if released on bail.

The counsel for the respondent, G.P. Singh, has vehemently opposed the applicant’s prayer submitting that the victim’s statement has supported the prosecution’s version of facts to which the applicant’s counsel retorted submitting that there is variation in the place of occurrence of the incident as per the victim’s statement and the FIR. As per the FIR, the rape was committed in village Alam whereas in the statement the place of occurrence has been mentioned as village Purthi.

After careful perusal of the facts, circumstance and the arguments advanced, the Court observed that there is an inordinate delay in filing of the FIR without any justifiable cause and that the conduct of the victim’s family does not “inspire confidence” with respect to the FIR. The Court also noted the complete lack of criminal history on part of the applicant.

In view of the above, the application had been allowed granting the relief of anticipatory bail to the applicant. Also, the Investigation Officer has been directed to conclude the investigation expeditiously preferably within three months. [Pratap v. State of U.P., 2020 SCC OnLine All 935, decided on 18-08-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.S. Shinde and V.G. Bisht, JJ. refused to quash the FIR and criminal proceedings against the petitioner, a rape accused, despite settlement between the petitioner and the victim.

The matter related to alleged sexual assault and exploitation of the victim by the petitioner. The victim was a TV actress working in Delhi who was lured by the petitioner, a restaurant owner from Mumbai. It was alleged that the petitioner made promises of marriage to the victim and called her from Delhi to Mumbai. He also said he will get work for her. The petitioner arranged for the victim’s accommodation in Mumbai and it is alleged that on the pretext of marriage, the petitioner made physical relation with the victim against her will. It was also alleged that the victim got pregnant but had to undergo abortion despite resistance as the petitioner allegedly put a gun to her head and forced her to abort the pregnancy. Subsequently, the victim came to know that the petitioner is already married. After this, she filed an FIR against the petitioner and a criminal case was registered.

The petitioner also filed a cross complaint against the victim addressed to the Police Commissioner, Mumbai, in which the victim filed an affidavit in reply that as per advice of their elders, the petitioner and the victim have decided to amicably settle the dispute between them and move on in their careers.

Vishal Kanade and Satyaprakash Sharma instructed by  Shakuntala Sharma counsel for the petitioner, and Abhinav Chandrachud instructed by Prem Kumar R. Pandey, counsel for the victim jointly submitted that the FIR as also the chargesheet against the petitioner may be quashed. Per contra, S.D. Shinde, the Additional Public Prosecutor vehemently opposed the quashing of FIR on the ground that the alleged offences are serious and heinous offences.      

Relying on the Supreme Court decision in Gian Singh v. State of Punjab, (2012) 10 SCC 303 and State of M.P. v. Laxmi Narayan, (2019) 5 SCC 688, the High Court was of the opinion that the FIR and the chargesheet could not be quashed on the basis of alleged settlement and consent terms arrived at between the parties for the following reasons:

(i) The alleged offences are serious in nature and in particular, offence punishable under Section 376 of the IPC is heinous.

(ii) The petitioner told the victim that he was unmarried and wished to marry the victim, when in fact he was already married.

(iii) The petitioner sexually abused the victim by promising her that he will give her a job in the film industry.

(iv) There is serious allegation that the victim conceived from the petitioner, and he compelled the victim for abortion at the gunpoint.

The petitioner than advanced arguments on merits. He submitted that there was inordinate delay in lodging the FIR. Further, the victim was a consenting party and therefore the ingredients of Section 375 IPC were not attracted. On this point also, the Court declined to quash the FIR against the petitioner as it thought fit that the merits could not be dealt with in a summary manner and need to go to trial.

The Court observed that: “It prima facie appears that the consent given by the 2nd respondent [victim] for quashing the FIR and charge-sheet is not free from coercion, inasmuch as, it is stated in the said affidavit filed by the 2nd respondent that the petitioner’s wife also filed complaint against the 2nd respondent for the offence punishable under Section 452 IPC.”

It was further observed: “The alleged offences are not individual in nature and quashing of the impugned FIR, chargesheet and pending proceedings on the basis of alleged settlement or on merits is not possible since the alleged offences are not individual in nature and outcome of present proceedings will have impact on Society.”

As far as the issue of inordinate delay in lodging the FIR was concerned, the Court said that adjudication of issue of delay is a mixed question of fact and law and therefore that will have to be considered at the trial.

The petition to quash the FIR and the chargesheet was accordingly dismissed. [Chirag Sundarlal Gupta v. State of Maharashtra, 2020 SCC OnLine Bom 627, decided on 13-3-2020] 

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Sanjib Banarjee and Kausik Chanda, JJ., granted bail to a rape accused taking note of the submission that the accused and the victim intend to get married in immediate future.

The accused claimed that though the alleged victim was a minor when the accused may have had sexual relationship with her, the victim has now attained majority. It was submitted that the accused and the victim intend to get marry in the immediate future.

Considering this submission, the High Court granted bail to the accused, subject to the Investigating Officer satisfying himself upon conversing with the victim as to her understanding of the situation.

It was further directed that in the event the marriage does not take place within the next 3 months or there is any further complaint from the victim against the accused within 6 months of the marriage, the bail may be annulled.

Subject to the above, the accused was directed to be released on bail upon furnishing a security bond of Rs 10,000 and producing a personal release bond of equivalent value. [Sopikul, In Re, 2020 SCC OnLine Cal 838 , decided on 16-4-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., allowed a petition filed under Article 226 of the Constitution of India challenging the impugned First Information Report dated 28-12-2019, seeking a writ of certiorari to quash the impugned FIR; and a writ of mandamus, commanding and directing the Respondents 1 & 2 not to arrest the petitioner in connection with the FIR.

The FIR stated that Respondent 3 had some conflict with her husband and the petitioner gave emotional support to her, later, they ended up in a hotel having physical relations in Dehradun, further, it stated that they again met in a hotel in Mumbai after few months. Respondent 3 stated that she wanted him to marry her or secure the future of her children.

The counsel for the petitioner Ranveer Singh Kundu and Raj Kumar Singh submitted that in the first instance given by the respondent the petitioner was detained at RVC Centre and College, Meerut Cantt. on duty, and regarding the second instance the petitioner did not go to Mumbai in the month mentioned by the respondent.

The Court while allowing the petition directed that no coercive action shall be taken against the petitioner as the respondent was an adult and had her willful consent in the physical relations. [Rajendra Kumar Swain v. State of Uttarakhand, 2020 SCC OnLine Utt 42, decided on 28-01-2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Manmohan and Sangita Dhingra Sehgal, JJ. dismissed of an appeal filed against the judgment of the trial court whereby the respondent, accused of raping the appellant-prosecutrix, was acquitted.

The case of the prosecutrix was that the accused established physical relations with her under the false pretext of marriage and that they were living together for about five years before the complaint was lodged by the prosecutrix under Section 376(2)(n) and 313 read with 506 Penal Code, 1860.

The High Court, at the outset, reiterated the settled legal position that the onus is on the prosecution to prove its case beyond a reasonable doubt. Relying on Pramod Suryabhan Pawar v. State of Maharashtra, 2019 SCC OnLine SC 1073, it was noted that the false promise should have had a direct nexus to the prosecutrix decision to engage in the sexual act. It was noted that the prosecutrix was already married to someone else and had six children from the wedlock. The Court was of the view that it was imperative for the prosecution to prove that prosecutrix was divorced from her first husband and was eligible for re-marriage. It was asserted by the prosecutrix she was given triple talaq orally in the presence of her parents and in-laws. However, the factum of the divorce was not substantiated by any proof, not even the evidence of prosecutrix parents and in-laws for proving the divorce was adduced. The Court was of the opinion that the prosecutrix failed to prove that she was eligible for re-marriage.

Further, the prosecutrix’s allegation that the accused neither married her nor allowed anybody else to marry her, did not inspire confidence since neither the 2015 marriage proposal had been proved nor the alleged obscene photos and videos shown by the accused to the prospective groom had been placed on record.

The High Court is in agreement with the finding of the trial court that the prosecutrix’ conduct of voluntary meeting the accused in Rohini Jail three times after filing of the present complaint lend credence to the accused’ defence that the real intent behind the present proceeding was to force him to marry the prosecutrix.

It was held that the testimony of the prosecutrix, read in its entirety, was neither credible nor believable or trustworthy. Therefore the appeal was found without merit and was dismissed. [“X” v. State, 2019 SCC OnLine Del 10822, decided on 22-10-2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Manmohan and Sangita Dhingra Sehgal, JJ. dismissed a criminal leave petition filed by the State challenging the order of the Additional Sessions Judge whereby the respondent-accused was acquitted of offences punishable under Sections 376, 366 and 363 IPC along with Section 6 of the Protection of Children from Sexual Offences Act, 2012.

The father of the victim had lodged a complaint that his minor daughter (aged about 17 years) had not returned home from school. During the course of the investigation, the victim was recovered from the possession of the accused. After completion of investigation, charge sheet wassailed against the accused of the offences as aforementioned. The accused was, however, acquitted by the trial court.

Aashaa Tiwari, APP appearing for the State, submitted that as the victim was a minor at the relevant time, her consent to accompany the accused and to have physical relations with him was of no consequence.

Perusing the statements of the victim, the High Court noted that she has misrepresented her age to be 18 years to the accused. She had also categorically stated that had she not done so, the accused would not have allowed her to accompany him.

It was observed: “The element of mens rea, which is an essential ingredient of Sections 363, 376 IPC is missing. In the present case, it is only because of a misrepresentation by the prosecutrix with regard to her age, which the respondent-accused bonafidely believed to be true that he allowed her to accompany him.”

The Court noted further: “In fact, statement of the prosecutrix clearly negates any charge including Section 6 of POCSO. Consequently, as the respondent-accused had not knowingly committed any offence, none of the charges can be said to have been proven.”

Considering the well-settled law that an acquittal order cannot be lightly interfered with by the Appellate Court, the High Court declined to interfere with the order of the acquittal passed by the trial court. The leave petition was thus dismissed.[State (NCT of Delhi) v. Kaishar Ali, 2019 SCC OnLine Del 9875, decided on 30-08-2019]

Case BriefsHigh Courts

Bombay High Court: The Bench of V.M. Deshpande, J. upheld the judgment of Additional Sessions Judge convicting the appellants for the offences punishable under Section 376(g), 506 and 34 of IPC.

Prosecution Case

On 8-12-2004, appellants came to the house of the victim where she resided with her husband and 2 children. They consumed liquor with her husband. When they were going to bring more liquor, the victim did not allow them. The appellants went away but after some time came back and started knocking the house door while threatening to kill victim’s husband. By this time, her husband felt asleep under influence of liquor. Afraid, the victim ran out of the house from the back door. The appellants caught her and took her to a secluded place where they committed forcible sexual intercourse on her against her will.

Trial Court’s decision and appellant’s challenge

The appellants were charge-sheeted for the above-mentioned offences and after appreciating the evidence, the trial court convicted them under the charges framed. S.S. Rao with C.R. Thakur, Advocates representing the appellants before the High Court challenged trial court’s judgment on various grounds. Much capital was made by the counsels to distrust the victim in absence of any injury on her private part.

Judgment of the High Court

After perusing the entire material available on record, the Court found no infirmity in the trial court’s judgment. All contentions raised on behalf of the appellants were rejected. Referring specifically to the ground of absence of injury, the court expressly observed, ” The marriage of the victim took place prior to 15 years and she is having two grown-up children aged 13 and 10 years. In light of this fact, one cannot expect injuries on vagina even if there is forcible sexual intercourse.”

On re-appreciation of the entire case, the Court dismissed the appeal. The conviction of appellants was upheld and sentence of 10 years imprisonment was confirmed. [Viru v. State of Maharashtra, 2019 SCC OnLine Bom 68, dated 07-01-2019]

Case BriefsSupreme Court

“Courts shoulder a great responsibility while trying an accused on charge of rape. They must deal with such cases with utmost sensitivity.”

Supreme Court: The Bench comprising of N.V. Ramana and Mohan M. Shantanagoudar, JJ., while addressing an appeal against the judgment and order passed by the High Court of Punjab and Haryana, allowed the said appeal on the basis that the Courts below had convicted the accused merely on “conjectures and surmises.”

The present appeal was filed by two convicts accused Jai Singh and Sham Singh, but the former had already undergone his term of sentence and had been released which left Sham Singh as the appellant. It was submitted by the victim that both the accused had forcibly taken the victim in their house and tied her hands with rope and committed “rape”. On filing of charge sheet against the accused the Lower Courts convicted both of them under Section 376(2)(g), 342 and 506 IPC.

The appellant in his submissions had placed that the material witnesses were not examined and the Courts below had ignored the material facts as well which are fatal to the case of prosecution. The appreciation of evidence by the Trial Court and the High Court has not been proper and correct.

The Supreme Court on giving due consideration to the appeal realized that it was amply clear that the case of the prosecution as made out, appears to be artificial and concocted. If the incident would have actually taken place then the medical report would have gone against the accused. The court stated that “We find that this is a case wherein incriminating materials are lacking against the accused”. Further, the Court also stated that the circumstances in this case themselves suffer from serious infirmities and lack of legal credibility to merit acceptance in the hands of the court of law. The appeal is thus allowed. [Sham Singh v. State of Haryana,2018 SCC OnLine SC 1042, decided on 21-08-2018]

Case BriefsHigh Courts

Chhattisgarh High Court: The order of trial court acquitting the accused of rape charges was upheld in an appeal by the State before a Division Bench comprising of Prashant Kumar Mishra and Ram Prasanna Sharma, JJ.

The accused was charged under Sections 376, 450 and 506 (B) of IPC. It was alleged that he committed forceful sexual intercourse with the prosecutrix after threatening her. The accused denied the allegations. The matter went to trial and after appreciating the evidence, the trial court acquitted the accused. The State filed the instant appeal against the said order.

The High Court perused the evidence available on record and found that the prosecutrix was a married women aged about 22 years. From her statement, it was clear that she did not resist during the alleged intercourse and also did not cry for help even when many other family members were present in the house at the time of alleged incident. Further, the medical evidence produced by the prosecution did not support the prosecutrix. The Court also found that there was a political rivalry between the uncle of the accused and father-in-law of the prosecutrix.

Considering all the circumstances, the High Court was of the view that the trial court has appreciated all the evidence in proper perspective and reached an opinion that it may be a case of consensual sex. The Court held that since the findings of the trial court were based on relevant facts, it would not be proper for it to disturb such findings. Accordingly, the order of acquittal passed by the trial court was affirmed and the appeal filed by the State was dismissed.  [State of Chhattisgarh V. Panchu Sahu, 2018 SCC OnLine Chh 288, decided on 20-3-2008]