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]

Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J. hearing a criminal appeal filed by a person convicted of rape and sexual assault under Penal Code, 1860 (hereinafter ‘IPC’) and Protection of Children from Sexual Offences Act, 2012 (hereinafter ‘POCSO’), partly allowed the appeal and set aside conviction under POCSO Act on the ground that punishment imposed under IPC was greater and more rigorous than that imposed under POCSO Act.

Appellant, a taxi driver, was hired by the victim and her two friends to go sightseeing in and around Gangtok. It was alleged that he took the girls for sightseeing and during this period became violent with the victim’s friend. When they wished to return, he began making demands for money and forced the victim’s friend to get off from the car and drove off with the victim while she was unconscious. The victim filed a criminal case against the appellant for commission of rape, penetrative sexual assault on a minor as well as for voluntary causing hurt. Special Judge, POCSO Act convicted the accused-appellant under Sections 323, 354, 354B, 376(1) of IPC and Sections 3(a) and 4 of the POCSO Act. Aggrieved thereby, this appeal was filed.

K. T. Tamang, legal aid counsel for the appellant, argued that since there was a gap between the alleged incident and the seizure of the victim’s article along with the appellants clothing it could not be ascertained if the bodily fluids found on the clothes belonged to the appellant. He relied on the case Ramdas v. State of Maharashtra, (2007) 2 SCC 170 to ask for corroboration of the victim’s testimony as she had hidden that she had consumed alcohol. He argued that based on the admission made by the Investigating Officer (IO), the appellant and the victim’s friend had purchased the alcohol. Hence, the victim had not been sedated but had consumed alcohol. He also submitted that the medical evidence ruled out all the possibilities of ocular evidence being true and thus ocular evidence should be disbelieved, as per the case of Abdul Sayeed v. State of MP, (2010) 10 SCC 259.

SK Chetri (Additional Public Prosecutor) appeared for the State and established the minority of the victim at the time of the incident. He also proved that it was the appellant who had driven the victim and her two friends on the day of the incident. He further proved that victim’s friend was hit by the appellant while they were in the car before they were made to get off from the vehicle. He had also successfully proved that there were bruise marks on the victim’s neck and contusions on the appellant’s chest both of which dated back to the time of the offence. The victim’s deposition was further corroborated by both oral as well as material evidence, although there were a few minor discrepancies between the witness statements.

The Court observed that besides the deposition of the victim about penetration there was no direct medical proof of rape. However, the victim was 17.5 years of age at the time of the commission of the offence and therefore capable of understanding what rape meant. In addition to this, the injuries on the victim as well as the appellant reflected signs of resistance. It was noted that the evidence of the victim was not totally inconsistent with the medical evidence, and it was settled that ocular testimony of a witness has greater evidentiary value vis-a`-vis medical evidence. Even the medical evidence did not completely rule out the possibilities of the commission of rape by the appellant. Further, there was no direct contradiction between ocular and medical evidence.

The Court was of the view that the Special Judge could have punished the appellant only under Section 376 IPC and not under Section 4 of the POCSO Act. Consequently, the sentence under Section 4 of the POCSO Act was set aside as punishment under Section 376(1) IPC mandated the compulsory imposition of rigorous imprisonment with hard labor which was greater in degree than the one provided under Section 4 of the POCSO Act.  Hence, the appeal was partly allowed.[Prem Rai v. State of Sikkim, 2019 SCC OnLine Sikk 81, decided  on 07-06-2019]

Case BriefsHigh Courts

Bombay High Court: S.S. Shinde, J. denied to quash the charges under Sections 376 and 420 IPC as prayed by the petitioner and further the Court ordered for a trial to take place on the basis of evidence recorded.

The present petition was filed to quash the charges against the petitioner in a case pending before the Sessions Court for Borivali Division at Dindoshi-Goregaon, Mumbai. The charges were framed under Sections 376 and 420 of the Penal Code, 1860.

Contentions by the Counsels:

Counsel for the petitioner, Samarth S. Karmarkar submitted that in the FIR that was lodged by Respondent 1 alleging offence under Section 420 IPC, there was no whisper about an allegation in respect to sexual assault. Further, it was stated that, the supplementary statement of Respondent 1 was the only thing in which allegations against the petitioner are made out that under the pretext and promise, he would marry Respondent 1, extracted huge amount from Respondent 1 and sexually exploited her.

Per contra, N.B. Patil, APP, submitted that overwhelming evidence had been collected by the Investigating Officer during the investigation and evidence of prosecutrix assumes importance which has to be treated on a high pedestal, therefore the petition may be rejected.

The High Court on perusal of grounds and submission of the parties opined that only way to resolve the controversy arising is by way of appreciating the material collected during the course of investigation by way of trial.

Therefore, the Court held that, material collected during the investigation has to be tested during the trial and also the allegations made in the FIR along with the ones in the supplementary statement. Relying on the Supreme Court Judgment in Anurag Soni v. State of Chhattisgarh, 2019 SCC OnLine SC 509, it was observed that no case is made out to invoke extraordinary writ jurisdiction and the prayer of the petitioner has to accede. Trial Court shall not get influenced by observations made during the course of the trial. [Vishal Ramnayan Singh v. XYZ, 2019 SCC OnLine Bom 1141, decided on 26-06-2019]

Case BriefsHigh Courts

Tripura High Court: Sanjay Karol, CJ, dismissed a criminal appeal filed against the decision of the Additional Sessions Judge whereby the appellant was convicted under Section 376 IPC committing rape on the prosecutrix.

The prosecution alleged that the appellant made sexual relations with the prosecutrix, who was of unstable mind, on the false pretext of marrying her. As a result, the prosecutrix became pregnant and she delivered a still-born child. It was alleged that the appellant was now refusing to marry her. The prosecutrix deposed before the Court: “he promised marriage to me and have sex. I became pregnant. He did not marry me.” The appellant was tried and convicted by the trial court as stated above. Aggrieved, the appellant, represented by Ratan Dutta and Simita Chakraborty, Advocates, filed the present appeal. Per contra, Babul Chaudhary, Public Prosecutor, opposed the same.

The High court was of the view that the present case attracts Section 375 (rape) read with Section 90 (consent known to be given under fear or misconception) IPC. The corollary deduced upon a conjoint reading of the sections was stated thus: “an offence of rape would be deemed to have been committed if a man has sexual intercourse with a woman without her consent. A consent obtained under the misconception of fact, would not amount to be a consent within the purview of Section 90 IPC.”

The Court relied on Kaini Rajan v. State of Kerala, (2013) 9 SCC 113Deepak Gulati v. State of Haryana, (2013) 7 SCC 675; and Anurag Soni v. State of Chhattisgarh, 2019 SCC OnLine SC 509, and held that “It stands established and proven that from the very inception, the appellant, by promising marriage, obtained consent to enter into a sexual relationship, though he never had any intention to marry and the prosecutrix who gave her consent for sexual intercourse with the assurance by the accused of marrying her. Such consent can very well be said to be a consent obtained on a misconception of fact as per Section 90 IPC and, in a case of such like nature, consent would not excuse the offender.”

The Court held the appellant guilty as charged and therefore dismissed his appeal while upholding the conviction and sentence passed by the trial court.[Marendra Debbarama v. State of Tripura, 2019 SCC OnLine Tri 257, decided on 27-06-2019]

Case BriefsHigh Courts

Delhi High Court: A Bench of Manmohan and Sangita Dhingra Sehgal, JJ. dismissed an appeal filed by the prosecutrix under Section 372 CrPC challenging the trial court’s judgment whereby the accused was acquitted of the charge of rape.

Simran Sadyora and Sanjeev Bhatia, Advocates, representing the prosecutrix, submitted that the trial court failed to appreciate that there is a presumption under Section 114-A of the Evidence Act as to absence of consent in a case for prosecution of the offence under Section 376 IPC and consequently the onus to prove that he had not committed the offence under Section 376(2)(n) had shifted to the accused.

At the outset, the High Court observed: “the presumption under Section 114-A of the Evidence Act would only be attracted if the factum of sexual intercourse is proved.” It was noted that the prosecutrix had refused an internal medical examination. the Court was also of the opinion that her testimony was highly unreliable, untrustworthy and inspired no confidence. It was noted further that the delay in registering FIR was not successfully explained. Also, she made 529 calls to the accused between the dates of the alleged rape and filing of the complaint. Her acts were inconsistent with her allegations. Moreover, the factum of sexual intercourse remained not proved. Keeping on view such and other findings, the Court held that the accused was entitled to be given benefit of doubt. Hence, the appeal was dismissed. [Rachna Singh v. State (NCT of Delhi), 2019 SCC OnLine Del 8519, decided on 13-05-2019]

Case BriefsHigh Courts

Meghalaya High Court: A Bench of Mohammad Yaqoob Mir, CJ, and H.S. Thangkhiew, J. dismissed an appeal filed against the trial court decision whereby the appellant was convicted for the offence punishable under Section 376 (punishment for rape) IPC.

The appellant was accused of committing rape upon the child-victim. Pertinent to note that he was acquitted by the trial court of the charge of rape levelled against him, in the first instance. Thereafter, the State appealed against his acquittal which was allowed by the High Court and the matter was remanded back for re-trial. After the conclusion of the re-trial, the appellant was convicted under Section 376 and sentenced accordingly. He challenged the decision of the trial court by filing the present appeal.

Senior Advocate S.P. Mahanta assisted by A. Thungwa, Advocate appeared for the appellant. Per contra, S. Sen Gupta, Additional Public Prosecutor represented the State. One of the many contentions raised by the appellant was that his case was prejudiced at the re-trial.

The High Court in reference to the aforesaid contention noted that it has no force as the High Court Judgment which ordered the re-trial was not challenged. It was also found that the appellant and his counsel actively participated in the proceedings at the re-trial and at no stage it was agitated that any rights of the appellant were infringed. The Court said: “It was nowhere mentioned that any of the witnesses during examination or cross-examination has made any improvement or has made any substantial deviation giving rise to any prejudice. Now, after the accused is convicted and sentenced, to contend that by re-trial gaps and lacunas have been filled up is an otiose theory only to be rejected.” On such and other incidental reasoning, the Court dismissed the appeal while upholding the trial court’s decision. [Small Phawa v. State of Meghalaya, Crl. A. No. 5 of 2016, dated 02-04-2019]

Case BriefsHigh Courts

Bombay High Court: Sadhana S. Jadhav, J. allowed an appeal filed against the decision of the trial court whereby the appellant was convicted for offences punishable under Section 376 IPC (punishment for rape) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (punishment for penetrative sexual assault).

The appellant was accused of committing rape upon the prosecutrix on pretext of marriage. He was tried and convicted by the trial court as aforesaid.

Arjun Rajput, counsel for the appellant assailed the judgment of the trial court. Per contra, S.S. Pednekar, Assistant Public Prosecutor appearing for the State supported the impugned judgment.

The High Court noted that evidence of the prosecutrix, on which appellant’s conviction was primarily based, did not inspire confidence. Also, several witnesses turned hostile. The Court stated, “witness may lie, but the circumstances will not lie.” As per the FIR, the appellant and prosecutrix had already made a plan to go out on the day of the alleged incident. It was observed, “The papers of investigation would indicate that the appellant was in love with the prosecutrix and that has led to initiation of criminal prosecution. The parents of the prosecutrix and that has led to initiation of criminal prosecution. The fact that the prosecutrix had voluntarily missed the classes and decided to accompany him would be sufficient to indicate that she was not forced to accompany the appellant.”

The Court noted further, “The appellant seemed to be so frustrated with the criminal prosecution that he made no efforts even to defend himself. In his statement under Section 313 CrPC he has only stated that he does not wish to speak about the incident. The papers of investigation would further indicate that the appellant felt betrayed by the prosecutrix. That it was a love affair between two youngsters, which had landed in criminal prosecution of a young boy.”

In such circumstances, the Court allowed the appeal and set aside the conviction and sentence awarded to the appellant by the trial court. [Gorakshya Arjun Mahakal v. State of Maharashtra, 2019 SCC OnLine Bom 520, dated 13-03-2019]

Case BriefsHigh Courts

Delhi High Court: Observing the approach of the trial court to be wholly misdirected and erroneous, a Single Judge Bench comprising of R.K. Gauba, J. allowed a criminal appeal setting aside the judgment of the trial court whereby the appellant was convicted under Section 376 IPC for raping his daughter.

During the pendency of the appeal, which was finally adjudicated after 17 years it was presented, the appellant died and the appeal was prosecuted by his wife. The appellant was alleged to have committed rape on prosecutrix- her daughter on several occasion. Resultantly, she became pregnant after which the appellant asked her to write a suicide note implicating one Bhushan and commit suicide. Thereafter, the prosecutrix went missing and subsequently, she lodged FIR against the appellant. Notably, at relevant time, the prosecutrix was a minor and the appellant had also filed an FIR under Section 363 IPC alleging that Bhushan had kidnapped her. However, the FIR lodged by the appellant was lodged without any probe and he was tried and convicted under Section 376 by the trial court. Aggrieved thereby, the appellant filed the instant appeal.

The High Court perused the record and was of the opinion that this was a case of one-sided probe and unfair trial. The version of the prosecutrix was highly questionable and even witness testimony was suspicious. The basis for giving a clean chit to Bhushan was left to the imagination. Collection of evidence was also unsatisfactory. Also, the appellant cried foul from day one and demanded DNA test to be done. The police did not listen and even the trial court did not pass any direction. The Court deplored the inaction on part of all concerned. It was held that the conviction of the appellant could not be allowed to stand. Resultantly, the appeal was allowed and the appellant was acquitted of the charge. [Kapil Kumar Beri v. State (NCT of Delhi), 2018 SCC OnLine Del 13023, dated 19-12-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Hima Kohli and Manoj Kumar Ohri, JJ. dismissed an appeal filed against the judgment of the trial court whereby the accused was acquitted of the offences under Sections 376 and 506 IPC.

The prosecutrix had alleged that the accused made false promises of marrying her and established a physical relationship with her forcefully. However, the trial court acquitted the accused of all the charges holding that the deposition of the prosecutrix was insufficient to prove the guilt of the accused. Aggrieved thereby, the prosecutrix filed the present criminal leave petition.

On perusal of the record, the High Court was of the view that the impugned judgment did not suffer from any infirmity. It considered the printout of WhatsApp chats and transcription of the telephonic conversation between the parties which were duly admitted by the prosecutrix in cross-examination. The chat and conversation amply demonstrated that the prosecutrix consented for a physical relationship out of her own free will and without any inducement. Thereafter, she had second thoughts about marrying the accused and in fact, she was threatening to falsely implicate and defame him. Given such facts and circumstances, the Court declined to interfere and the petition was dismissed. [Ritu v. State,2018 SCC OnLine Del 12914, Order dated 11-12-2018]

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench comprising of CJ Ranjan Gogoi and Sanjay Kishan Kaul and K.M. Joseph, JJ., dismissed an appeal filed by the accused-appellant for his conviction under Section 376 IPC for a sentence of 7 years.

The facts of the case as presented in the appeal are that the accused was convicted for raping a 16-year-old girl. The victim’s family was neighbors and friends with the accused’s family. The incident of rape happened in January 1996 but was discovered by the mother of prosecutrix only in May-June when the victim missed her cycle that she was 5 months pregnant.

The FIR in this regard was filed in the month of July 1996 stating that prosecutrix and her family did not want to spoil the reputation or bring disharmony in the family of the accused and later the complaint was filed only on the basis that the accused had denied providing funds for the victims’ abortion.

The Supreme Court Bench in the present case focused on the cardinal issue that has to be decided whether the initial act was consensual or a forcible act. Further, the Court stated that the close relations between the families and that being the reason for the delay in lodging an FIR cannot be brushed aside. Court also took notice of the facts that there was a solitary incident and was not followed by repeated acts which lead us to this act being non-consensual.

Therefore, the prosecution was successful in proving that it was a forcible act and not consensual which failed the present appeal by upholding the conviction and sentence of the accused-appellant. [P.J. Mathew v. State of Kerala,2018 SCC OnLine SC 2044, Order dated 04-10-2018]

Case BriefsHigh Courts

Tripura High Court: A Single Judge Bench comprising of Arindam lodh, J. disposed of an appeal wherein the offence under Section 376 IPC was converted to Section 354 IPC.

The Appeal was filed by the appellant against the order of District Court whereby he was alleged for the offence of rape of a minor.

From the evidence presented by the respondent, it was clear that the appellant did not touch her vagina or any parts surrounding the vagina.

It was argued by the appellant that in order to attract the provision of Section 376 IPC, even the slightest penetration of the penis into the vagina, mouth, urethra or anus of a woman was enough to constitute the offence under Section 376 of IPC. Taking the deposition of the mother of the respondent into consideration it was clear that, the time gap between the cry for help of the respondent and her mother reaching the place on hearing the same was insufficient to commit the alleged offence. Also during examination-in-chief under Section 161 CrPC, the wearing apparels of the respondent were not ceased neither she was forwarded to record her judicial confession under Section 164(5) CrPC which further weakens her case along with the inference that her clothes were not torn out.

In light of the facts and the evidences stated, the Court established that this incident could be best described as “fondling” and the offence best categorized under Section 354 of IPC as already observed, the slightest penetration, whichever degree it was, an essential requirement vis-à-vis sine qua non to attract the provision of Section 376 of IPC. Hence due to absence of any degree of penetration, the appeal was disposed of. [Nemai Dey v. State of Tripura, CRL A (J) NO. 23 of 2015, dated 06-09-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of R.K. Deshpande and Arun D. Upadhye, JJ., addressed a petition filed challenging the order of a Divisional Commissioner, Amravati on refusal to grant parole on the basis of Rule 4(b)(13) read with Rule (2)(B)(i) of Maharashtra Prisons (Bombay Furlough an Parole) Rules, 1959. The Court placed this matter before Chief Justice to be referred to a larger bench.

The present petition pertained to the facts that the petitioner was a convict for the offence under Section 376 IPC for the offence of rape. The sentence imposed upon him was of 10 years imprisonment under Section 376(2)(a) and 1-year imprisonment under Section 342 IPC. Petitioner was refused a parole. Though he was recommended for the same by the authorities due to the bar under  Rule 4(b)(13) read with Rule (2)(B)(i) of Maharashtra Prisons (Bombay Furlough an Parole) Rules, 1959, he was refused parole.

The Learned APP on behalf of the respondents relied on Sharad Devaram Shelake v. State of Maharashtra, 2016 SCC OnLine Bom 2448, wherein the above-stated rule was upheld. The division bench in the above-stated case had relied upon the decision of Supreme Court in State of Haryana v. Jai Singh,(2003) 9 SCC 114, wherein it was held, “Classification created for imposing bar to grant parole or furlough, based on the nature of offences, is a valid classification for the purpose of deciding whether the persons who have committed such offences should be granted remission or not.”

On due consideration of the facts and circumstances of the case along with the contentions placed, the Court was of the view that the matter should be referred to larger bench instead of making out a distinction between the decision of State of Haryana v. Jai Singh,(2003) 9 SCC 114 and Sharad Devaram Shelake v. State of Maharashtra, 2016 SCC OnLine Bom 2448.

Therefore, the Court referred the case to a larger bench for the consideration of the issue: “Whether Rule 4(13) Maharashtra prisons (Bombay Furlough and Parole) Rules, 1959 creating an absolute bar to claim release on furlough leave and consequently Rule 19(2)(B)(i) of the Rules of 1959 to claim release on parole leave to the convict for the offence of rape is violative of Articles 14 and 21 of the Constitution of India, particularly when the offenders in other serious offences are entitled to such leave?” [Vijay Pralhad Varankar v. Division Commr., Amravati;2018 SCC OnLine Bom 2261; dated 23-08-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Ranjan Gogoi, Navin Sinha, and K.M. Joseph, JJ., allowed an appeal and acquitted the accused-appellant for the offences under Sections 363, 366 and 376 IPC, on the basis of  “benefit of doubt”.

The accused-appellant was charged under Sections 363, 366 and 376 of the Penal Code by the trial court and further the High Court had recorded the order of conviction under the Sections mentioned above.

The matter favoured the accused-appellant as the evidence placed stated that the stand of the prosecutrix in regard to abduction and rape was different from her statement which was recorded earlier under Section 161 CrPC, 1973. It was also recorded by one of the prosecution witnesses that the prosecutrix stayed with the accused for about 2 days in Kullu and further until she was recovered she was in the company of the accused for 12 days and yet she did not complain of any criminal act against the accused-appellant.

On the analysis of the evidence the main question arose was that of the age of the prosecutrix, whether she was a major at the time of occurrence of the incident? For that, the prosecutrix failed to prove that she was a minor.

Therefore, the Supreme Court by stating that the “benefit of doubt” should naturally go to the accused in the present case on the basis of the above-recorded pieces of evidence and facts, held that the possibility of the prosecutrix to be a consenting party cannot be ruled out altogether. Hence, setting aside the High Court’s order, the accused-appellant was acquitted from all the charges. [Rajak Mohammad v. State of Himachal Pradesh,2018 SCC OnLine SC 1222, Order dated 23-08-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Mukta Gupta, J. allowed a criminal appeal filed against the order of the trial court wherein the appellant was convicted for the offences punishable under Sections 363, 366, 342 and 376 IPC.

The appellant-accused was alleged to have kidnapped the prosecutrix and raped her due to which she became pregnant. It was alleged by the prosecutrix that she was below the age of 16 years in 2012 when she was kidnapped by the appellant. It was the case of the prosecution that the appellant was known to the family of the prosecutrix; he kidnapped her and committed rape on her. The appellant denied the charges. He was, however, convicted by the trial court as aforementioned. Aggrieved thus, the appellant filed the present appeal.

The High Court perused the record and found that according to the medical report, she had sexual intercourse even earlier to the alleged kidnapping. Furthermore, as per the defence witness Onkar Singh, Head Master of the school where the prosecutrix was first admitted, prosecutrix’ date of birth was 1-9-1995. This meant that she was more than 16 years of age at the time of the alleged incident. Therefore, as per the law in force at the time of alleged incident, the prosecutrix was capable of consenting to sexual intercourse. The prosecutrix stated that she came to know of her pregnancy in March 2012; whereas, the medical report proved that the foetus was conceived only in April. In such facts and circumstances, the Court was of the view that the defence taken by the appellant that he was falsely implicated in the case by the father of the prosecutrix on coming to know of her pregnancy was a plausible defence. The case put forth by the complainant-father was held to be a cooked up story. Resultantly, the appeal was allowed; the order impugned was set aside, and the appellant was acquitted of the charges as framed. [Jitender Singh v. State (NCT of Delhi),2018 SCC OnLine Del 10632, dated 17-08-2018]

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Bombay High Court: A Single Judge Bench comprising of Manish Pitale, J., reversed the judgment of the trial court where the appellant was convicted for an offence punishable under Section 376 IPC and sentenced to 5 years of rigorous imprisonment.

The appellant was accused of committing forcible sexual intercourse on the prosecutrix on two occasions by which she became pregnant. It was alleged that the appellant sexually abused the prosecutrix on a certain day, and after that again when the prosecutrix went to his home to watch television while he was alone. The said incidents were disclosed by the prosecutrix to her mother after she became pregnant, and an FIR was registered against the appellant. The appellant denied the allegations, but the trial court convicted him under Section 376. The appellant contended that the prosecutrix was pregnant with the child of her cousin with whom she stayed for 5-6 months. It was submitted that the appellant was falsely implicated in the case.

The High Court perused the record and found the conviction of the appellant to be unsustainable. It was noted that the conviction was based solely on the evidence of the prosecutrix. There were discrepancies in her statement. She told her mother that the appellant committed the act forcibly, while the doctor was told that it was committed on false pretext of marriage. Further, it was admitted by her that she had a cousin of same age as alleged by the appellant. In such circumstances, and on categorical stand of the appellant that he was falsely implicated, the Court held that the Investigating Officer ought to have conducted DNA test of the girl child born to the prosecutrix, for ascertaining her paternity. In absence of clear proof against the appellant, the High Court set aside the impugned judgment. The appeal was, thus, allowed. [Ganesh Pralhad Sontakke v. State of Maharashtra, 2018 SCC OnLine Bom 1795, dated 25-07-2018]

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Bombay High Court: Considering the reply filed by the second respondent in the present case, the Division Bench comprising of V. M Kanade and Nutan Sardessai, JJ., ordered the  quashment of  the criminal complaint filed against the applicant under Sections 376, 323, 504 and 506 of the IPC. In the present case, the second respondent alleged that the applicant had physical relations with her by obtaining her consent on a false promise; however later on, the second respondent filed an affidavit mentioning her condition of depression stating that in consequence of the insecurity she felt, she filed a complaint against the applicant.

The Court relying on the ratio laid down in Narinder Singh v. State of Punjab, (2014) 6 SCC 466, held that, though the complaint filed under Section 376 of the IPC is a punishable offence, but in view of the reply filed by the second respondent, it would not constitute an offence, thereby quashing the criminal complaint. [Manteshwar Hanumantrao Kattimani v. State of Maharashtra, 2016 SCC OnLine Bom 10581 , decided on 2-12-2016 ]