Section 376 IPC

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Attau Rahman Masoodi and Rajeev Singh, JJ., addressed the matter wherein the Government Counsel who has been alleged for raping a young practicing Lawyer, has challenged the FIR lodged against him and sought direction to police to not arrest him.

Present matter is pertaining to a complaint filed by a Lawyer against a Government Counsel who raped the lawyer in her chamber.

Counsel for the informant prayed for a week’s time to file counter affidavit, to which Court granted the said time.

A.G.A. pointed out that the contents of the FIR reflect that some relevant material was left at the place of occurrence i.e. chamber of the petitioner(accused). In the fitness of things, he prayed that such material may also be taken into custody by the investigating agency as the chamber of the petitioner(accused) is sealed.

Hence, in view of the above, Court in view of being satisfied that a case for intervention is made held that the petitioner (accused) may not be arrested under Sections 328, 354(A), 376 IPC till next date of listing.

Court also directed that petitioner shall co-operate with the investigation by making available as and when called for. He may also not indulge into any activity subjecting the complainant to any intimidation or causing any threat to her life or property. [Shailendra Singh Chauhan v. State of U.P., Misc. Bench No. 12149 of 2020, decided on 31-07-2020]

Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J., while addressing a bail application made the following observation:

There cannot be a straight jacket formula as to how a woman will react to an act of outrage by a male, since all women are borne into different circumstances in life, go through different things and faces, experience and react differently and necessarily each woman would turn out to be different from the other.

Applicant sought release on bail for being charged with offences under Sections 376, 354-A and 354-B of Penal Code, 1860.

Advocates who appeared in the present matter:

Dr Abhinav Chandrachud with Ms Khushboo Pathak and Mr Wasi Sayyed i/b Mr Prem Pandey for the Applicant.

Mr Ajay Patil, A.P.P. for the State.

Mr Satyam Nimbalkar for the intervener.

Forceful Sexual Intercourse

Complainant was acquainted with the present applicant aged 24 years since past 8 years. Complainant along with her friends went for an overnight Diwali party and somewhere past midnight she went to a bedroom to take rest and went off to sleep. Around 4,30 she was awakened with a feeling and found that someone was forcing himself upon her.

Complainant found that it Applicant who was forcing himself upon her and trying to have sexual intercourse with her by penetrating his penis into her vagina. At this juncture, the Complainant used all possible force to push him away and she was successful in thwarting the sexual overtures by the applicant.

Later, complainant went to find her friends which she couldn’t hence she returned back to the same room where, on not finding the applicant she went off to sleep, but yet again the applicant tried to repeat the same act to which complainant scolded him and left the room.

Distressed Mental Condition

Due to above stated incident, complainant went through mental trauma and was frightened. She narrated the whole episode to her mother and went to a psychiatrist, further she discussed the whole matter with her family and approached the Kondwa Police Station.

Offences were registered under Sections 376, 354 and 354-A of the Penal code, 1860.

Decision

In complainant’s statement, she stated that on applicant trying to establish physical contact with her she raised an alarm to which none of her friends responded, Court was astonished to the said statement.

Another point which seemed incomprehensible was the fact that she did not report the incident to anyone on the same day though she was amidst of the friends and went for an outing. The photographs placed on record would lead to an impression of her being cheerful in the company of the accused and one other friend.

Considering the material placed on record, Court was of the prima facie view that it does not constitute a reasonable ground for believing that the applicant is guilty of the offence charged.

The statements of two witnesses to the effect that the Applicant and the victim were found sleeping in the same room on the same bed will have to be put to test in a trial and this evidence will have to be appreciated cumulatively.

Further the Bench added that,

“…concept of consent of the victim or as to at what stage the consent was revoked and the act of physical indulgence was attempted to be restrained is a matter of trial.”

Court also quoted Warren Buffet,

“If a lady says No, she means may be” or in the expression of Rich Santos for Marie Claire – “Most of us guys have been there; the night ends, we invite the girls come home with us. When a girl says no, we launch into our second and third attempts. Sadly, these attempts are filled with incentives such as promise of guitar playing, of ‘fabulas chicken tenders at the dinner by my place’ or even promises: ‘I will definitely call on the next day’ etc; I have taken girls home after long discussions, changing Nos to Yeses”

above are the old hat tricks and the issue as to whether the girl really consented freely for a physical indulgence with her is to be searched by applying the new standards of modern life and the present social scenario.

On granting bail to the applicant, Court stated that,

Balancing deprivation of his liberty against the possibility of the trial being commencing and concluding in the immediate times is far beyond reality, particularly in the light of the huge galloping pendency which the judicial system would be staring at, at the end of the Covid pandemic. Incarceration of a young boy for an indefinite period would be antithesis to the concept of liberty.

Hence, applicant was granted bail with stringent conditions. [Jitin Mothukiri v. State of Maharashtra, 2020 SCC OnLine Bom 821 , decided on 21-07-2020]

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., granted bail to a person accused for alleged offence of committing rape repeatedly, which turned out to be consensual on perusal of statement by the victim to the medical officer.

Petition was filed with regard to enlargement on bail for the alleged offences punishable under Section 376(2)(n) of Penal Code, 1860 read with Section 6 of the Protection of Children from Sexual Offences Act.

Victim in the present case was 17 yeas and 8 months old at the time of the incident.

Bench on perusal of the final report found that victim had informed the medical officer that she has sexual contact for multiple times with the applicant voluntarily.

Further it appeared that till her pregnancy she did not disclose the incident of alleged sexual assault.

Victim alleged that applicant had promised to marry her and therefore she had succumbed to his desires. Court had made efforts to settle the marriage of victim with the applicant, but on interviewing her she flatly denied to marry the applicant.

Thus in the above stated circumstances, Court concluded that it would be unreasonable to hold that victim did not possess mental capacity to actively understand the nature and consequences of the act as to which she had consented.

“Her statement to Medical Officer also reinforces the fact that she was in love with the applicant and voluntarily submitted to the physical desires of the applicant.”

Hence, applicant is directed to be released on bail with certain conditions.[Manish R. Mishra v. State of Maharashtra, 2020 SCC OnLine Bom 778 , decided on 13-07-2020]

Case BriefsHigh Courts

Kerala High Court: P.B. Suresh Kumar, J.,  overturned the conviction of a rape accused by giving him benefit of doubt.

Case of the Prosecution

In the year 2012, accused committed rape on minor girl aged 15 years and thereby committed the offence punishable under Section 376 of Penal Code, 1860 and Section 5(1) read with Section 6 of Protection of Children from Sexual Offences Act, 2012.

On an examination of the materials on record, the Court below found that the prosecution has not made out a case against the accused under Section 5(l) read with Section 6 of the POCSO Act.

The Court however found that the accused is guilty of the offence punishable under Section 376(2)(f) of the IPC and sentenced the accused.

Accused filed the present petition as he was aggrieved by the sentence and conviction.

Decision

Whether prosecution has established the guilt of the accused under Section 376(2)(f) of IPC?

overt acts attributed against the accused being overt acts allegedly took place prior to Act 13 of 2013, the point to be considered is as to whether the prosecution has established the guilt of the accused under Section 376(2)(f) of the IPC as it stood prior to Act 13 of 2013.

Prosecution failed to establish the age of the victim girl.

Further the Court observed that the medical examination of the victim girl was done after about 5 years.

The mother of the victim girl who was examined as PW3 turned hostile. In a case of this nature, the fact that the mother of the victim girl herself has not given evidence against the accused in support of the prosecution case throws serious doubts as regards the genuineness of the case.

Bench also noted that the version of the victim girl as regards the overt acts attributed against the accused while she was taken to the doctor for medical examination was that the said incidents took place while she was studying in the 6th standard, whereas, as revealed from the extracted portion of the evidence, what was stated by her before the Court was that the said overt acts have been committed by the accused while she was studying in the 5th standard.

Hence, in view of the inconsistent versions with regard to the overt acts alleged against the accused along with absence of any specific evidence, Court did not found it safe to convict the accused.

“…it was found that the prosecution has not proved the age of the victim girl, even if it is admitted that the accused had sexual intercourse with the victim girl, there is absolutely nothing on record to infer that the alleged sexual acts attributed have been committed against the will of the victim girl or without her consent.”

Court also noted that, the overt acts alleged against the accused took place during 2010, whereas the charge in the case is that the accused committed rape on the victim girl during 2012.

Therefore, accused is entitled to the benefit of doubt and criminal appeal is allowed. [Shaik Shiyavulla v. State of Kerala, 2020 SCC OnLine Ker 2631 , decided on 09-07-2020]

Case BriefsHigh Courts

Kerala High Court: Raja Vijayaraghavan V, J., allowed pre-arrest bail to the applicant accused of raping a women whom he allegedly met on facebook.

Accused preferred a pre-arrest bail application for offence punishable under Section 376(1) of the Penal Code, 1860.

Petitioner and informant were in a relationship for 1.5 years and petitioner had promised to marry the informant.

When informant had reached Kozikhode for purchasing some clothes for their marriage, she was taken to a lodge, where both petitioner and informant stayed together and informant was subjected to penetrative sexual abuse.

Petitioner also took some pictures of the informant and threatened with the same to obtain a sum of Rs 40,000 and gold chain.

Decision

Bench noted that according to the de facto complainant, she was in a relationship with the petitioner.

Court relied on the Supreme Court case of Dr Dhruvaram Muralidhar Sonar v. State of Maharashtra [2019 (1) KHC 403] wherein it was held that there is a distinction between rape and consensual sex.

Bench stated in the present matter that the question to be considered is:

Whether the accused had actually wanted to marry the victim or had mala fide motives and had made a false promise to that effect only to satisfy his lust?

“…former is not rape but the latter will fall within the ambit of cheating and deception.”

Distinction between mere breach of a promise and not fulfilling a false promise

Further Court also observed that,

if the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, then such consent cannot be said to be given under a misconception of fact.

Thus, in view of the above, Court’s opinion was that the custodial interrogation of the petitioner was not necessitous for an effective investigation.

Hence, the present application was allowed with certain conditions. [Shanil v. State of Kerala, 2020 SCC OnLine Ker 2625 , decided on 06-07-2020]

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

Karnataka High Court: Krishna S. Dixit, J., granted anticipatory bail to the petitioner accused of committing sexual offence.

Petitioner was accused for the offences under Sections 376, 420 and 506 of Penal Code, 1860 and Section 66-B of Information Technology Act, 2000 and by the present petition seeks bail.

State while opposing the petition submitted that the offences alleged against the petitioner are serious in nature and it would be unsafe for the society if offenders like petitioner is granted bail.

Thus in view of the above Judge of the lower Court had rejected his claim.

Bench on perusal of the petition papers and on consideration of the contentions submitted by the counsels granted anticipatory bail for the following reasons:

  • seriousness alone is not the criteria to deny liberty to the citizen when there is no prima facie case from the side of the State Police;
  • version of the complainant that she was subjected to rape on the false promise of marriage in the given circumstances of the case, is bit difficult to believe at this stage; there is a letter allegedly written by the complainant to the effect that she was ready to withdraw the complaint if a compromise is brought about, especially when the complainant had employed the services of the petitioner since last two years or so; nothing is stated by the complainant as to why she did not approach the Court at the earliest point of time when the petitioner was allegedly forcing her for sexual favours;
  • nothing is mentioned by the complainant as to why she went to her office at night ie., 11.00 p.m.; she has also not objected to consuming drinks with the petitioner and allowing him to stay with her till morning; the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman; that is not the way our women react when they are ravished;
  • version of the complainant that she had been to Indraprastha Hotel for dinner and that the petitioner having consumed drinks came and sat in the car, even if is assumed to be true, there is no explanation offered for not alerting the police or the public about the conduct of the petitioner

Thus in view of the above, petitioner was granted bail. [Sri Rakesh v. State of Karnataka, Criminal Petition No. 2427 of 2020, decided on 22-06-2020]

Case BriefsHigh Courts

Sikkim High Court: A Division Bench of Meenakshi Madan Rai and Bhaskar Raj Pradhan, JJ. partly allowed the present appeal wherein a teacher sexually assaulted his minor students.

Appellant was tried, convicted and sentenced to imprisonment for offences of rape, aggravated penetrative sexual assault and for assault on the minor victim a schoolgirl with intent to outrage her modesty.

Judgment of conviction and sentence order have been challenged in the present appeal.

During the investigation, minor victim was examined and it was found that her breast nipples were swollen and her hymen was not intact and it admitted one finger coupled with tenderness and foul smell. Thus, Dr Rozeela Bhutia opined in her medical report that there was clinical evidence of sexual assault.

Minor victim identified the appellant as Kendrap Sir who used to teach them Mathematics and Hindi when she was in the 4th and 5th standards. She deposed that on two occasions, the appellant put his finger in her pisab garne (vagina). She deposed that on five occasions he put his hands on her chest/breasts in the classroom of the school. She also deposed about the appellant sexually abusing other schoolgirls.

Bench observed that,

It may be possible to get confused at such a tender age about which act was committed on which schoolgirl but near impossible for a schoolgirl to forget how she was sexually abused that too by her own teacher.

Section 375(b) IPC provides that insertion of a finger (a part of the body) into the vagina amounts to rape.

Court stated that it is inclined to uphold appellant’s conviction under Section 376(2)(f)(i) and (n) of the Penal Code, 1860.

Thus in view of the above terms, sentences under Sections 9(f), 9(l) and 9(m) of the POCSO Act are upheld.

In terms of Section 42 of the POCSO Act, the appellant is not liable to be punished for the offences under Sections 5(f), 5(l) and 5(m) of the POCSO Act. Accordingly, the appellant’s sentences under Section 5 of the POCSO Act are set aside.

Keeping in mind all the relevant considerations including the age of the appellant, Court held that sentence of 10 years and fine of Rs 50,000 for the above offences would be sufficient for the ends of justice. Appellant has been sentenced to 7 years of simple imprisonment and a fine of Rs 40,000 each for the offences under Sections 9(f), 9(l) and 9(m) of the POCSO Act.

Thus the appeal is partly allowed. [Kendrap Lepcha v. State of Sikkim, 2020 SCC OnLine Sikk 40 , decided on 01-06-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma , J., allowed the bail petition stating that object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial.

The present petition has been filed under Section 439 Criminal Procedure Code, 1973 for grant of regular bail. The facts of the case are that victim prosecutrix, aged 26 years old, were working in a company since 2017, and in 2018 met the bail petitioner and became good friends. In year 2019, she attended bail petitioners marriage where he expressed that he is not happy with the marriage and wants to marry her, attempts of which she rejected. The bail petitioner allegedly sexually assaulted her twice and impregnated after which when she asked him to get married he refused and advised her to terminate the pregnancy. Hence she filed an FIR against him wherein investigation is complete and the trial is pending.

Arvind Sharma, Additional Advocate General with Kunal Thakur, Deputy Advocate General argued that the crime is a grave one  and the bail petitioner does not deserve any leniency. They further argued that the medical report submitted clearly proves that the bail petitioner is the biological father of the foetus in the womb and hence is charged with Section 376 of Penal Code, 1860

Advocate Rakesh Kumar Doga is representing the petitioner side.

The Court relied on the judgment titled Dataram Singh v. State of U.P., (2018) 3 SCC 22 and Prasanta Kumar Sarkar v. Ashis Chaterjee, (2010) 14 SCC 496 and held that, a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty and that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home is an exception.

In view of the above mentioned arguments and observations the bail was granted. [Ritesh v. State of Himachal Pradesh, 2020 SCC OnLine HP 585 , decided on 27-05-2020]

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

Uttaranchal High Court: Alok Kumar Verma, J., allowed a bail application filed for grant of regular bail in connection for the offences punishable under Section 376(2)(i)(n) of the Penal Code and Section 5(1)/6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The FIR was lodged by the father of the victim on 26-09-2018 with the allegations that his daughter told him about the mental and physical harassment given by the applicant/accused since 2014. The victim had mentioned about applicant had taken few photographs for which he was blackmailing and harassing her along with abusing her on the phone and forcing him to make physical relations with him. The counsel for the applicant, Vinod Sharma submitted that applicant was an innocent person; no date or month of the physical relations had been mentioned in the FIR; according to the medical report dated 27-09-2018, no sexual intercourse had been committed with the victim in last few days; no said photographs were produced by the prosecution; no rape or sexual intercourse had ever been committed by the applicant on the prosecutrix; in medical report dated 27.-09-2018, no sign of rape had been found and there was no swelling, no injury, no bleeding; the applicant has no criminal history; he was in custody since 27-09-2018; prosecution had not filed so far any reliable certificate of date of birth of the victim.

The Court while allowing the bail relied on the judgment of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 where the Supreme Court had observed that the personal liberty was a very precious fundamental right and it should be curtailed only when it becomes imperative according to the facts and circumstances of the case and in the present case the attendance of the accused could be secured without having him to be put in custody. [Amit v. State of Uttarakhand, 2020 SCC OnLine Utt 121, decided on 03-03-2020]

Case BriefsHigh Courts

Jharkhand High Court: Rajesh Shankar J., held that the petitioner was in judicial custody for more than a year; hence he is inclined to enlarge the petitioner on bail.

The petitioner was accused under Section 376 of the Penal Code, 1860.

The counsel for the petitioner, Om Prakash Singh submitted that the bail application of the petitioner was earlier rejected by this Court vide order dated 25-07-2019 and the petitioner has renewed his prayer for regular bail primarily due to the reason that he is in judicial custody since 18-01-2019 and only 03 charge-sheet witnesses out of 11 have been examined in the trial. The victim of the case has already been examined in the trial as PW-1. Hence they prayed for regular bail on ground of length of judicial custody

The counsel for State, Ranjit Kumar opposed the prayer.

The Court held that the victim of the case has already been examined in the trial and that the petitioner was in judicial custody for more than a year, hence he is inclined to enlarge the petitioner on bail on furnishing bail bond of Rs 20,000 with two sureties of the like amount each to the satisfaction of the learned Additional Sessions Judge-III, Chatra subject to the condition that the petitioner shall co-operate in the trial and shall appear before the trial court on each and every date fixed in the trial till conclusion of the same.

In view of the above, the bail was granted. [Jaglal Bhuiyan v. State of Jharkhand, 2020 SCC OnLine Jhar 216, decided on 28-02-2020]

Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J., while dismissing the present appeal upheld the decision of the trial court for offences charged under Section 4 of POCSO Act and Sections 342/363/376 of Penal Code, 1860.

In the present appeal filed by the appellant was convicted by the trial court for the under the above-stated Sections. Appellant contended that the impugned judgment ought to be set aside, since it does not extend the benefit of doubt to the appellant in view of inconsistencies in the testimonies of various witnesses.

Further, he contends that MLC of the victim stated that her hymen was normal and the doctor, who was examined for the prosecution had confirmed that the hymen could be ruptured for other reasons as well. Adding to his contentions, he also states that the victim was actually raped by PW-7 and not by the appellant.

Though, the FSL report supported the case of the prosecution that the victim had suffered sexual assault by the accused.

While recording his statement under Section 313 of CrPC, accused also stated that 3-4 days prior to the incident, a quarrel had broken out between him and the mother of the victim due to which, he had been falsely implicated in the case.

Petitioner’s counsel also submitted that since the physical evidence did not corroborate the charges levelled against the appellant, he ought to be acquitted.

Court’s Decision

High Court stated that no contention was advanced on behalf of the appellant was found to be persuasive. Evidence obtained in this case clearly establishes that the appellant is guilty of the offences for which he was charged.

Court stated that, there is overwhelming evidence to establish that the prosecutrix was recovered from the factory premises of the appellant and the same was closed from outside. Mother of the prosecutrix testified to the aforesaid effect. All the other witnesses in the case corroborated the said fact.

Insofar as the MLC was concerned, Dr Anuradha Tyagi was examined, wherein she stated that it was correct that the hymen of the victim appeared to be normal (externally) and as per P/R examination, no tear or bleeding was found. However, she reiterated that the hymen of the prosecutrix was not found to be intact.

Thus, the Court held that testimonies of witnesses were all consistent and there is little room for entertaining any doubt whether the appellant had committed the offences for which he was charged. Forensic evidence fully establishes the case of the prosecution beyond any pale of doubt.

Hence the present appeal is unmerited and dismissed. [Chhedi Paswan v. State, 2020 SCC OnLine Del 464, decided on 17-02-2020]

Case BriefsHigh Courts

Two Finger test Held — Unconstitutional

Gujarat High Court: A Division Bench of J.B. Pardiwala and Bhargav D. Karia, JJ., while deciding  the two clubbed appeals, held that,

“Two-finger test is unconstitutional. It violates the right of the victim to privacy, physical and mental integrity and dignity.”

Court while analysing the present set of appeals stated that, it is a very unique acquittal appeal.

In the present case, two appeals have been combined.

The accused has been convicted for the offences punishable under Sections 366 and 363 of the Penal Code, 1860. Trial Court acquitted the accused for the charge of rape under Section 376 of IPC.

Prosecutions’ Case

While the victim was on her way to answer nature’s call early in the morning, she was hit by the accused with a weapon and forcefully taken away by him. While the victim was in custody and confinement of the accused, she was ravished forcefully.

It has been stated that the victim went missing on 26-03-1994, but the FIR lodged by the mother was on 10-04-1994. Further, the investigation revealed that the victim was confined at the house of the brother of the accused. Once the accused was arrested by the police at the stated place, the victim and the accused were thereafter sent for medical examination.

Through the birth certificates and other relevant documents, it was found that the victim was a minor at the date of the alleged offence, i.e. she was less than 16 years of age.

On noting the oral and documentary evidence, the trial court held the accused guilty of offences punishable under Sections 363 and 366 of Penal Code, 1860. But the trial court acquitted the accused of the charge of rape under Section 376 IPC on an erroneous assumption that the victim was major on the said date of offence.

Analysis of the Court

As stated earlier, the Court found the present set of appeals as a very “unique acquittal appeal”.

It was noted that, at the time when the trial court heard the prosecution and the defence on the point of the sentence that the trial court realised that it had committed a mistake in calculating the age of the victim. Trial Court acknowledged its mistake, but declined to do anything in the matter, as the order of acquittal was already pronounced.

Point about the “Two-Finger Test”

Court noted very disturbing contents in the medical certificate of the victim, wherein it appeared that in the course of the medical examination, the two-finger test was conducted.

“The two-finger test also known as the PV (Per Vaginal) refers to an intrusive physical examination of a woman’s vagina to figure out the laxity of vaginal muscles and whether the hymen is distensible or not. In this, the doctor puts two fingers inside the woman’s vagina and the ease with which the fingers penetrate her are assumed to be in direct proportion to her sexual experience. Thus, if the fingers slide in easily the woman is presumed to be sexually active and if the fingers fail to penetrate or find difficulty in penetrating, then it is presumed that she has her hymen intact, which is a proof of her being a virgin.”

Adding to the above, Court also stated that the two-finger test is one of the most unscientific methods of examination that is used in the context of sexual assault and has no forensic value. Section 155 of the Indian Evidence Act, does not allow a rape victim’s credibility to be compromised.

To add to the analysis, Court while placing their concern with regard to the “two-finger test” also stated that,

“Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender-based violence.”

Referring to the Supreme Court case in, Lillu v. State of Haryana, (2013) 14 SCC 643, wherein it was held that,

“…A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity.”

 “…two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity.”

 Learned APP, submitted he is not sure whether the State of Gujarat has issued any directions to do away with the Per-Vaginum examination – Two-Finger Test.

 Endeavour is to remind the trial courts as well as the medical fraternity that the “two-finger test” is unconstitutional, as it violates the right of the victim of sexual assault to privacy, physical and mental integrity and dignity.

Further, the Court found the only question for consideration,

“Whether the trial court committed any error in holding the accused guilty of the offence of kidnapping punishable under Section 366 IPC and acquitting the accused of the offence of rape punishable under Section 376 IPC?

 For the above, High Court stated that, in case if the victim was a consenting party and had some relations with the accused, there is no escape from the fact that the victim was minor.

Once the victim is found to be a minor at the time of commission of offence, more particularly, when it comes to the offence of rape, the accused cannot plead in his defence that the victim was a consenting party.

Conclusion

High Court on perusal of the above stated that unfortunately, the trial court realised its mistake at a very late stage and in such circumstances, the trial court found itself in a helpless situation as it could not have reviewed its order of erroneous acquittal or illegal acquittal so far as the offence of rape was concerned.

Thus, the High Court held the accused to be guilty of the offence of rape punishable under Section 376 of IPC. Conviction appeal preferred by the accused should fail and the acquittal appeal preferred by the State of Gujarat should succeed.  [State of Gujarat v. Rameshchandra Rambhai Panchal, 2020 SCC OnLine Guj 114, decided on 17-01-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara, J., allowed a bail petition of an accused who was under arrest due to an FIR registered under Sections 452 and 376 of the Penal Code, 1860 and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the POCSO Act’).

The FIR stated that the mother of the victim mentioned that she stayed in her matrimonial home with two of her children, a son aged 13 years and a daughter aged 14 years and her daughter was deaf from childhood and couldn’t even walk on her own. On 8-10-2019 at 7:30 p.m., she was going to attend the wedding in the village when she noticed the accused petitioner standing near the door of her house, on which she asked him the purpose to which he left the place. Later, she locked the house after placing her daughter inside and left to attend the wedding. When she returned at around 10.30 p.m. she found the locks to be broken and the blanket on her daughter removed along with bloodstains on her salwar. She suspected the accused petitioner and requested a medical examination after which he was arrested on filing the FIR. The doctor who had conducted the medical examination had said that there was no sign of any physical violence over the body and also mentioned that she was not menstruating and there was no external injury however the possibility of sexual intercourse could not be ruled out. The report from Forensic Science Laboratory did not deduct semen on clothes of the victim, vaginal swab and quilt cover.

On the other hand, the petitioner had specifically mentioned that the mother of the victim had been purchasing daily needs and ration items from him, on credit but despite requests, she did not pay and that he was not involved with the alleged offence. The petitioner had filed a petition under Section 439 Criminal Procedure Code, before Special Judge but it was dismissed thus the instant petition arose.

High Court while allowing the petition explained that the doctor did not find even a single trace of sexual assault nor the Laboratory deducted any semen from the vaginal swab and the mother’s allegation is also based on mere suspicion thus the petitioner is entitled to receive bail. [Bhup Singh v. State of H.P., 2020 SCC OnLine HP 147, decided on 24-01-2020]

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 against the order of the trial court whereby the respondent, who was accused of raping the prosecutrix-victim, was acquitted.

The respondent was charged under Sections 363, 366 and 376 IPC along with Section 4 of the Protection of Children from Sexual Offences Act, 2012, for the aforementioned offence. The father of the prosecutrix had filed a report with the police that her daughter was missing. Subsequently, the prosecutrix made a phone call to her friend after which she was recovered. She disclosed that the accused had committed wrong acts with her and abandoned her. The accused stood trial under charges as mentioned above. The trial court was of the view that the prosecutrix was not a credible witness and, accordingly, acquitted the accused. Aggrieved thereby, the State filed the present petition.

Aashaa Tiwari, APP appearing for the State, contended that the prosecutrix had “by and large” supported the case of the prosecution and had specifically named the respondent-accused in her statements.

The High Court noted that the prosecutrix was the most material witness in the case; however, her testimony did not inspire confidence as it was in direct conflict with the case put forth by the prosecution. The Court found that, firstly, the place of incident, i.e.,“Hotel Shalimar” as told by the prosecutrix was not found to be in existence. Secondly, the prosecutrix had categorically denied staying at the “Sharda Hotel” contrary to the prosecution’s case and evidence on record. Thirdly, the manner in which prosecutrix stated to have been recovered was contrary to the prosecution’s case. Also, no independent witness was examined by the prosecution to corroborate the story of the prosecutrix. Consequently, the Court held that in the absence of any evidence corroborating the testimony of the prosecutrix, the same could not be relied upon to convict the respondent-accused as it was full of contradictions.

In such view of the matter the Court held that despite the medical evidence confirming that the hymen of the prosecutrix had been freshly torn, there was no evidence to link the respondent-accused with the incident. Accordingly, the High Court upheld the order of the trial court acquitting the respondent. [State v. Rehan, 2020 SCC OnLine Del 172, decided on 21-01-2020]

Case BriefsHigh Courts

Madhya Pradesh High Court: Rajeev Kumaar Dubey, J., addressed a petition filed under Section 482 of the Code of Criminal Procedure for quashing proceedings of criminal case lodged for the offence punishable under Sections 376(2)(n) & 376(2)(f), 109, 506 & 34 of the Penal Code, 1860.

Prosecutrix, wife of co-accused, lodged a report wherein she stated that her brother-in-law in the absence of her husband committed rape with her. Further adding to the allegation she stated that she had informed about the same incident to her husband and mother-in-law, though both of them asked her to not tell anyone and let him do whatever he wants to otherwise she would be killed like her sister-in-law. Prosecutrix stated that out of fear she did not report of the incident earlier.

Once the prosecutrix returned to her parental home she reported the incident and the crime was registered for the offence punishable under Sections 376(2)(n), 376(2)(f), 506 of Penal Code, 1860 against the applicant (brother-in-law).

Counsel for the applicant contended that there was a delay in lodging of FIR for no plausible explanation and which clearly shows that the same was a false report against the applicant. It has also been pointed that the brother of the applicant had filed a petition earlier under Section 9 of Hindu Marriage Act for restitution of conjugal rights along with this several complaints were lodged by the applicants wherein it was stated that relatives of the prosecutrix had threatened the applicants of implicating them in a false case.

High Court while deciding the present petition stated that, whether or not the reason for the delay of lodging in FIR stated is correct or not, at this stage it cannot be ascertained without any evidence. Even otherwise delay in lodging FIR is one of the factors to ascertain the veracity of the statement of the prosecutrix, not a sole reason.

From the FIR and the charge-sheet the prima facie offence under Section 376 IPC is clearly made out against the applicant for the offence punishable under Sections 376 (2)(n) & 376 (2)(f), 109, 506 & 34 of the IPC cannot be quashed. [Govind Purviya v. State of M.P., 2019 SCC OnLine MP 3950, decided on 16-12-2019]

Case BriefsHigh Courts

Delhi High Court: Vibhu Bhakru, J. while disposing of the petition upheld the decision of the trial court on finding no infirmity in its decision.

The present petitioner sought leave to appeal against the Judgment passed by Additional Sessions Judge.

Background

FIR was lodged pursuant to a complaint filed by Ms ‘P’ and the proceedings for the same commenced under Section 376, Penal Code, 1860. Ms ‘P’ stated that she had developed a friendship with the accused in the year 2013 and over a span of two years the same transformed into a love affair. She had been meeting the accused regularly and he had promised to marry her.

On one occasion, the accused had invited Ms ‘P’ to his house to meet his mother and later, the respondent bolted the door and raped her despite her resistance. However, he had also promised to marry her and had asked her not to disclose the said incident. Further, the allegations placed by Ms ‘P’ were that the respondent had taken her to a hotel and had thereafter, raped her. Although he had promised to marry her, he had resiled from his promise.

After the above incidents, Ms ‘P’ approached the police statement and got her statement recorded, though she declined to get an internal medical examination.

Court’s Observation and Analysis

Fact that the respondent established a physical relationship cannot be disputed. Ms ‘P’ checked into the hotel with the respondent and checked out from the same next morning, clearly shows that they both had booked the hotel for physical intimacy.

Trial Court rightly observed that the only question to be considered was whether Ms P had consented for the physical relationship under a false promise of marriage.

High Court noted that accused had evinced his intention to marry Ms ‘P’ more than two years before the alleged incident of the accused establishing a physical relationship with her. Further, the Court stated that, Ms P’s testimony that she had objected to the accused touching her obscenely but had yielded on him promising marriage, is difficult to accept.

The only reservation of the High Court to the conclusion of trial court was that the implicit assumption that the accused was not on trial for not marrying Ms P. The accused was not trial for not marrying Ms P, but on an allegation of committing the offence of rape.

Another significant noting of the High Court was that,

“It is important to bear in mind that two consenting adults establishing a physical relationship, is not crime. Jilting a lover, however abhorrent that it may seem to some, is also not an offence punishable under the Penal Code, 1860.”

Prosecutrix in the present case claims that her consent was not voluntary but was obtained by inducing her on the pretext of a promise to marry. Plainly, this is not established in this case. Prosceutrix had three months after the first alleged incident of rape, voluntarily checked into a hotel with the accused. Clearly, this was a voluntary act; there is no merit in the contention that this act was induced by a promise of marriage.

Additionally, in view of the above, the Court also added that,

Inducement to have a physical relationship by promising marriage must have a clear nexus with the moment promise of marriage cannot be held out as an inducement for engaging in sex over a protracted and indefinite period of time.

In the present case, prosecutrix appears to have used the allegation of inducement of a physical relationship on the promise of marriage, to not only justify her physical relationship with the accused in the past, but also her conduct after the FIR was filed. In her testimony, she had explained that she had done so because the accused had contacted her and again reiterated his promise to get married to her.

Thus the petition in the above terms is accordingly dismissed. [State v. Sandeep, 2019 SCC OnLine Del 10332, decided on 25-09-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Pradeep Nandrajog, CJ and Bharati Dangre, J. disposed of clubbed appeals arising out of the same criminal matter, and convicted the accused of the offence of rape punishable under Section 376 IPC.

The accused was alleged to have taken away and raped the prosecutrix, who was a minor at the time of the commission of offence. He was convicted by the trial court for offences under Sections 363, 366-A and 376 IPC. On appeal to Sessions Court, his conviction under Section 376 was reversed, however, remaining part of the trial court order was confirmed. The State and the accused, both, filed appeals before the High Court.

On facts of the case, the High Court held that the offence under Sections 363 and 366-A IPC were not proved against the accused. However, since the prosecutrix was 14 years of age at the time of commission of offence, her consent to the sexual act does not matter. His acquittal by Sessions Court for the offence punishable under Section 376 IPC was thus reversed.

Next, the Court considered that at the time of commission of offence, the accused was about 16 years of age — a juvenile. On the aspect of sentencing, it was observed:

”At the time when the accused and the prosecutrix were in love and did the act which, to the misfortune of the accused, attracted the penal laws, his age was 16 years and 2 months. The Juvenile Justice (Care and Protection of Children) Act, 2010 followed by the Act of 2015 had not come into force. Under the two Acts, the age of juvenility was enhanced from 16 years to 18 years. In the decision reported as Hari Ram v. State of Rajasthan, (2009) 13 SCC 211, even in pending matters before the trial court or in the appeal the benefit of said acts has to be accorded to the accused and thus deciding the three appeals today, it would be our duty to extend the benefit of Juvenile Justice Act, 2010 and 2015 to the accused. As per clause (g) of sub-Section (1) of Section 18 of the Juvenile Justice Act, the accused can, at best, be directed to be sent to Special Home for such period not exceeding three years so that the Accused can be reformed. It would be futile, therefore, to pass an order as contemplated by law for the reasons for the year 2019, the age of the accused is 38 years.”

Accordingly, the accused was convicted as aforesaid but no sentence was imposed on him since as of today, the accused was no longer a Juvenile. The appeals were disposed of accordingly.[State of Maharashtra v. Hemant Ashokkumar Mittal, 2019 SCC OnLine Bom 1670, decided on 22-08-2019]

Case BriefsHigh Courts

Orissa High Court: S.K. Sahoo, J. dismissed a criminal appeal for the acquittal of the appellant under Section 376 of the Penal Code, 1860.

The victim in the present case was forcibly raped by the appellant on the pretext that he will marry her. The appellant visited the victim on many occasions and raped her and would give her the assurance of marriage. Even after the victim became pregnant, the appellant continued raping her. The news of the pregnancy of the victim spread in the village and the appellant confessed his guilt before the uncles of the victim. He also admitted to having impregnated the victim in presence of the entire village post which, on 11-04-2011, she lodged an FIR. The trial Court acquitted the appellant on 28-06-2012 under Section 417 of the Penal Code but found him guilty under section 376 and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of rupees five thousand.

The appellant challenged this judgment and order of conviction on the grounds that there was a delay in filing the FIR by the victim and the prosecution has not satisfactorily explained this delay. It was further contended that there is no hard evidence to prove the age of the victim, and if the age of the victim is held to be more than sixteen years then it can be said that she was a consenting party.

Priyabrata Tripathy, Additional Standing Counsel for the victim, submitted that delay in lodging the FIR in a rape case cannot be a ground to hold the entire prosecution case suspicious. He argued that the victim remained silent an account of assurance of marriage given by the appellant and when the victim disclosed about her pregnancy, an FIR was lodged. Further, there is no infirmity in the evidence of the victim.

The Court held that, “the law is well settled that delay in lodging the FIR in an offence of rape is a normal phenomenon as the FIR is lodged after deliberation. It takes some time to overcome the trauma suffered, the agony and anguish that create the turbulence in the mind of the victim, to muster the courage to expose one in a conservative social media, to acquire the psychological inner strength to undertake a legal battle against the culprit.”

Secondly, the victim stated her age to be fifteen years at the time of her deposition, which was recorded on 13-08-2011. She stated that the occurrence last took place in 2010. No evidence was brought out in the cross-examination to challenge her age. The doctor who conducted ossification test of the victim stated that on the basis of the physical findings, dental examination and development of secondary sexual characteristics and menstrual history and ossification test, that the age of the victim to be more than fourteen years and less than sixteen years. Therefore, the question of the victim being a consenting party was not taken into account.

The appellant also submitted that he has been in judicial custody since 14-04-2011 and he was never released on bail either during pendency of the trial or during pendency of this appeal and therefore, he has already undergone the substantive sentence of eight years and three months and therefore, the substantive sentence should be reduced to the period already undergone.

The Court upheld the order of conviction of the appellant under Section 376 of the Penal Code, 1860 but reduced the substantive sentence from rigorous imprisonment for ten years to the period already undergone. In view of the enactment of the Odisha Victim Compensation Scheme, 2012, keeping in view the age of the victim at the time of occurrence and the nature and gravity of the offence committed and the family background, the Court recommend the case to District Legal Services Authority, to examine the case of the victim for grant of compensation under the Scheme.

The Criminal Appeal was dismissed and the appellant was released from jail custody.[Budha v. State of Odisha, 2019 SCC OnLine Ori 262, decided on 01-08-2019]