Case BriefsHigh Courts

Kerala High Court: P.B. Suresh Kumar, J., addressed a matter in which a 59 year old man was accused of raping a minor girl and the issue that has been dealt primarily in the matter is with regard to consent in the context of rape.

Conviction and Sentence of the appellant were challenged in the present appeal.

What is the accusation?

Accused had committed rape on a minor girl aged 14 years belonging to Scheduled Caste and impregnated her on various days.

Offences alleged were punishable under Section 376 of Penal Code, 1860 and Sections 3(1)(xii) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Decision of the lower Court

Court below on perusal of the record found that the accused had sexual intercourse with the victim girl and impregnated her.

Although the Court found that the prosecution did not prove the age of the victim girl and failed to establish that the case is one that falls under the sixth description in the definition of ‘rape’ in terms of Section 375 of the IPC as it stood then, it held that in the absence of any case for the accused that the sexual intercourse he had with the victim girl was consensual, the accused is guilty of the offence punishable under Section 376 of the IPC.

Point formulated for decision

Whether the prosecution established that the sexual intercourse between the victim girl and accused was without her consent?

Court noted that the present case was decided prior to the introduction of Section 114A of the Evidence Act.

Victim Girl’s deposition

While she was watching television, the accused sent his granddaughter away to a shop, closed the door of the house, pulled her to the adjacent room, made her lie down in a cot, removed her clothes and inserted his genital organ into her vagina after removing his clothes.

Understanding the concept of consent in the context of rape

Mere act of helpless resignation in the face of inevitable compulsion, quiescence, non- resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be ‘consent’ as understood in law and the consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.

Sexual assaults including rape are crimes of gender inequality.

Court added to its conclusion that, in a country like ours committed to gender equality, only sexual intercourse which are welcomed could be construed as not violative of the rights of the victim, and accepted as consensual.

Accused was a fatherly figure to the victim girl, leaving apart the age factor there is was doubt with the class in which she was studying during the relevant period. She used to go the accused’s place for watching television and taking advantage of the situation accused had made sexual advances to her.

Accused’s case was only that the admitted conduct of the victim girl in going to the house of the accused as when desired by him subsequently would indicate that the latter instances of sexual intercourse were consensual.

Thus, Court in view of the above concluded that in a situation as was in the present matter, conduct on the part of the victim girl in surrendering before the accused as and when desired by him cannot be said to be unusual or abnormal and such surrender can never be construed as consensual acts of sexual intercourse. [Thankappan P.K. v. State of Kerala, 2020 SCC OnLine Ker 2587 , decided on 29-06-2020]

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

Sikkim High Court: A Division Bench comprising of Meenakshi Madan Rai and Bhaskar Raj Pradhan, JJ., while allowing an appeal, found error in trial court’s decision of convicting the appellant under Section 375 of Penal Code, 1860, as none of the ingredients required for an offence to be established under Section 375 was satisfied.

Background of the case

In the present case, the mother of the victim filed an FIR against the appellant. Charge-Sheet against the appellant was under Section 376 of the Penal Code, 1860 read with Section 4 of the Protection of Children from Sexual Offences Act, 2012.

Trial Court had framed charges against the appellant under Sections 5(l) and 5(k) punishable under Section 6 of POCSO Act, 2012 and Sections 376(2)(n), 376(2)(i) and 376(2)(l) of the Penal Code, 1860.

Trial Court on considering the examination of the witnesses, convicted the appellant of offences under Section 376(2)(l) and 376(2)(n) punishable under Section 376(2) of the Penal Code, 1860 but acquitted him of the offences under Sections 5(l) and 5(k) of the POCSO Act, 2012 and 376(2)(i) of IPC.

Thus, on being dissatisfied with the finding the appellant approached the High Court.

Submissions of the appellant

Appellant assailed the impugned judgment on the grounds that although the victim alleged that he had sexually assaulted her on several occasions she did not complain of it either to her parents or anyone else.

The victim complained that the appellant used to frequently come to her home and sexually assault her when she was alone and she had narrated the incident to PW5 who however failed to endorse this evidence of PW9. Contrarily PW1 deposed that appellant told him that the victim had lured him to have sexual intercourse with her.

Even the minority of the victim stood unestablished and the trial court in the absence of any evidence opined that the victim was not a minor. Hence, the appellant be acquitted of the charges.

Submissions by Additional Public Prosecutor

He argued that although the prosecution had furnished the birth certificate of the victim before the trial court in the absence of supporting documents it was not considered. The said document was never contested by the appellant which therefore was an acceptance of the fact that the victim was a minor.

Relying only on the statement of the victim, it was contended that she has specifically stated that the Appellant had requested her to have sex with him holding out the promise that her deformities would be cured if she consented and acted on the consent.

Mother of the victim corroborated the evidence of PW9 as she had stated that on a relevant day, the victim came running to her and told that the appellant had entered the and forcibly laid her on the bed, taken off her lower garment and rubbed his penis on the vagina.

Hence it was stated that no error emanates in trial court’s ruling.

Decision of the High Court

High Court noted that the birth certificate was not contested by the appellant; the trial court chose to ignore it in the absence of supporting documents. Thus, it follows that the age of the victim has not been established.

Court also took note of the evidence of PW6 from which it was clear that the witness has not explained as to whether the laxity of the hymen was a result of the occurrence of the alleged incidents or whether the hymen was lax prior to the incidents or for that matter whether medical science can at all point to the age of the laxity enabling the Court to draw a correct conclusion.

In absence of any categorical and cogent statement of PW6 in this context and in the absence of fresh injuries on the genital or person of the victim, medical report is of no assistance to the prosecution case and neither can the offence of the appellant be foisted.

What does Section 375 of Penal Code, 1860 say?

Appellant was convicted under Section 376(2)(n) and Section 376(2)(I) IPC.

Offence of rape is described in Section 375 of the Penal Code which, inter alia, requires penetration of the perpetrator’s penis to any extent, into the vagina, mouth, urethra or anus of the victim or he makes her do so with him or any other person or that he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person.

Rape would also occur if the accused manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person or the accused applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person.

These acts must necessarily be against the will of the victim, sans her consent and if her consent is obtained by putting her in fear of death or hurt or any of the seven descriptions enumerated in Section 375 IPC.

Observation of the Court

Victim had claimed that there was sexual assault and therefore Court cannot arrive at a hasty conclusion. It was imperative for the prosecution to have extracted from the victim during her deposition the actual act that was committed on her considering that the prosecution is under the mandate of proving its case beyond all reasonable doubt which means that it cannot leave its case to ambiguities thereby leading to erroneous conclusions.

All of the above-stated explains that the appellant does not satisfy the ingredients of Section 375 IPC.

Thus, the Court was of the considered opinion that trial court erred in arriving at the finding and in High Court’s opinion the offence is one under Section 354A (1)(i) IPC.

The appeal is allowed to the extent above. [Tshering Tempa Sherpa v. State of Sikkim, 2019 SCC OnLine Sikk 188, decided on 12-11-2019]

Case BriefsSupreme Court

Supreme Court: The bench of Madan B Lokur and Deepak Gupta, JJ reserved the judgment in the issue relating to criminalising of forced sexual acts by the husband with his minor wife.

The Court was hearing the petition filed by NGO Independent Thought and Advocate Gaurav Agarwal, appearing for the NGO had contended before the Court that by the Criminal Law (Amendment) Act, 2013, the age of consent for sexual intercourse by a girl, which was earlier 16 years has now been increased to 18 years, however, exception 2 to section 375 of the IPC still retains the age of consent as 15 years, due to which there is a huge gap of three years in the age of consent for a married girl child and an unmarried girl. He added that if the object behind increasing the age of consent to 18 years in 2013, was that a girl below that age is incapable of realising the consequences of her consent, then marriage of girl between the age of 15-17 years does not make the girl mature enough, mentally or physically, for the purpose of consent.

Taking note of the argument, the Court had, on 01.09.2017, sought to know whether it can create an offence by striking down the exception 2 of section 375 of IPC which the Parliament has refused to do. It also showed concern over the fate of the children born from such marriages if the provision was struck down. [Independent Thought v. Union of India, Writ Petition(s)(Civil) No(s). 382/2013, order dated 06.09.2017]

Hot Off The PressNews

Supreme Court: The bench of Madan B. Lokur and Deepak gupta, JJ has sought response from the Centre as to whether Parliament has debated the aspect of protecting married girls between the age group of 15-18 years from the forced sexual acts by their spouses and whether the court could intervene to protect the rights of such married girls who may be sexually exploited by their spouses.

The Court was hearing the plea that had challenged the constitutionality of the exception under Section 375 IPC which says the intercourse or sexual act by a man with his wife, not below 15 years, is not a rape. NGO Independent Thought contended that the distinction made in between 18 and 15 is illegal and unconstitutional as a girl in the age group of 15-18 is not that physically developed and she is not capable of taking an informed decision or consent. It was argued that the Parliament cannot impinge upon Article 21 by allowing the girl to marry under 18 years of age and allowing her to get pregnant or have intercourse. Centre, however, responded by saying that all the aspects have been considered pragmatically by the Parliament and keeping the child marriage prevalent in some societies,  the age of 15 has been kept as a threshold.

The bench noticed that declaring the law unconstitutional may have some serious repercussions as there are cases when college-going teens, below 18 years of age, engage in sexual activities consensually and get booked under the law and the boy suffers even when he is not at fault. Similarly, when a girl, under 18 years of age, elopes and engages in consensual sexual activity, the male gets booked for rape. The Court, hence, asked the Centre to apprise it about the number of prosecutions under the Child Marriage Act for past three years in three weeks and listed the matter for hearing after 4 weeks.

Source: PTI