Section 376 IPC Archives

63-year-old woman aided her 65-year old husband to commit rape on a minor girl: Can she be granted bail? J&K&L HC answers

Jammu and Kashmir and Ladakh High Court, Srinagar: Sanjay Dhar, J., expressed that, in the cases involving offences of serious nature falling under IPC or POCSO Act, where the victim happens to be a minor child, the Court has to be alive to the need for protecting the victims and the witnesses and it is the duty of the Court to ensure that victim and witnesses, in such serious matters, are made to feel secure while deposing before the Court.

The petitioner invoked the jurisdiction of this Court under Section 439 CrPC seeking bail arising out of an FIR for offences under Sections 376, 109 IPC and 4 POCSO Act.

As per the prosecution case, the victim along with her father lodged a complaint alleging that the victim, who was aged about 14 years, was sent by her father to the house of the accused who happened to be the husband of the petitioner, for learning embroidery work. It was alleged that after 8 days, the victim came back to her home and two days thereafter, accused called her whereafter the victim started crying.

Further, the father of the victim enquired about the reason for crying and the victim narrated that she had been raped by the accused after making her unconscious.

In view of the above, FIR was registered, and an investigation began.

After investigation of the case, petitioner’s role as an abettor came to the fore and as such, offence under Section 109 IPC was added to offences under Section 376 IPC and 4 POCSO Act.

Later the charge sheet was laid before the trial court against the petitioner and her husband, and they started facing trial for offences under Section 376, 109 IPC read with Sections 4 and 17 of the POCSO Act.

Analysis, Law and Decision

When it comes to offences punishable under a special enactment, such as POCSO Act, something more is required to be kept in mind in view of the special provisions contained in the said enactment.

“The provisions of CrPC including the provisions as to grant of bail are applicable to the proceedings in respect of offences under the POSCO Act.”

The Bench stated that the present application was required to be dealt with by this Court in accordance with the provisions contained in Section 439 CrPC.

Coming to the facts of the present case, the petitioner was alleged to have aided and abetted her husband, the main accused, in the commission of rape upon the prosecutrix, who, as per the prosecution case, was aged about 14 years at the relevant time.

The prosecutrix had clearly implicated the petitioner and her husband in her statement recorded under Section 164 CrPC.

Bench stated that there may be certain contradictions in the statement of prosecutrix recorded during trial of the case when the same was compared with her statements recorded during the investigation of the case, but it is not open to the Court to minutely examine and weigh the evidence at the time of considering the bail plea of the petitioner.

“…the prosecutrix in her statement recorded during her trial, has supported the prosecution case and she has reiterated that she was raped twice by the husband of the petitioner with the aid and assistance of the petitioner.”

From the perusal of the record, it was clear that the petitioner was involved in the commission of offence under Section 376/109 IPC read with Sections 4 and 17 of the POCSO Act.

“Abetment of an offence carries the same punishment as is provided for that offence. Section 376(3) IPC provides punishment in a case where rape has been committed upon a woman under 16 years of age.”

High Court expressed that,

It is not an ordinary offence where the perpetrator of the crime is a young boy, but it is a case where the perpetrators of the crime happen to be persons aged more than four times that of the age of the victim.

Further, the gap in the age of the accused and the victim made their alleged act more heinous and it showed an element of perversion in the offence alleged.

Hence, merely because the petitioner happened to be a woman it did not entitle her to the concession of bail.

High Court rejected the bail application. [Zubeeda v. Union Territory of J&K, Bail App No. 8 of 2022, decided on 21-5-2022]

Advocates before the Court:

For the Petitioner(s): Mr. B. A. Bashir, Sr. Advocate. with Ms. Falak Bashir, Advocate

For the Respondent(s): Mr Sajad Ashraf, GA

Case Briefs High Courts

Can promise to marry a married woman be legally enforceable wherein she voluntarily formed sexual relations with a man? Ker HC explains

Kerala High Court: Dr Kauser Edappagath, J., addressed a matter wherein a married woman voluntarily had sex with her former lover.

In the present matter, the petitioner who was the sole accused faced trial for the offences punishable under Sections 376(1) and 376(2)(n) of the Penal Code, 1860.

The prosecution’s case was that the petitioner after giving a false promise of marriage sexually assaulted the victim/2^nd respondent on several occasions.

In Court’s opinion, there was nothing to attract the basic ingredients of Sections 376(1) or 376(2)(n) of the IPC.

As per the FIS and statement under Section 164 CrPC, the petitioner and the victim studied together and they were in love. In fact, they had decided to marry, but due to some reasons beyond their control, they could not marry.

Later, the victim married another person and the alleged sexual acts with the petitioner were taken place during the subsistence of the marriage of the victim with the said person.

Respondent 2’s submitted that it was not her case that the sex they had was forcible. But according to her, she consented to sex persuaded by the promise of marriage given by the petitioner.

“If a man retracts his promise to marry a woman, consensual sex they had would not constitute an offence of rape under Section 376 IPC unless it is established that the consent for such sexual act was obtained by him by giving false promise of marriage with no intention of being adhered to and that promise made was false to his knowledge. (Ranjith v. State of Kerala, [2022 (1) KLT 19]

In the instant matter, the married woman who had sex with her former lover, knew pretty well that she cannot enter into a lawful marriage with the petitioner.

Supreme Court in Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 and in Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191, while drawing distinction between rape and consensual sex observed that the Court must very carefully examine whether the accused had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust.

In drawing a distinction between mere breach of a promise and not fulfilling a false promise, it was further observed that, if the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape and that if the accused had any mala fide intention or had clandestine motives, it is a clear case of rape.

High Court opined that the sex that the petitioner and the victim had was purely consensual in nature.

“Nothing on record to show that the petitioner had made a false promise only to satisfy his lust.”

Further, the Bench stated that no question of promise to marry arises inasmuch as 2^nd respondent was a married woman and she knew that a legal marriage with the petitioner was not possible under the law, hence offence of rape cannot be constituted as it was apparent that the consent was not given by her on the basis of any misconception.

Therefore, all the further proceedings stood quashed. [X v. State of Kerala, Crl. MC No. 4933 of 2021, decided on 29-3-2022]

Advocates before the Court:

For the Petitioner:

By Advs.

Nirmal V Nair, M. Aneesh and Ajai Babu

Other Present:

Sri Sangeetha Raj – Public Prosecutor

Case Briefs High Courts

On pretext of removing evil spirit from body of a woman who was bipolar in nature, a man lured woman and committed sexual intercourse, but ADJ granted bail: Will HC cancel his bail? Del HC analyses

Delhi High Court: Mukta Gupta, J., cancelled the bail of an accused who lured a female on the pretext of removing an evil spirit from her body and further committing sexual intercourse with her.

The present petition sought to set aside the order and consequential cancellation of bail granted to respondent 2.

The present petition was filed by the father/legal guardian of the victim who was a female aged 37 years, was suffering from bipolar mental disorder episodic mania and psychotic features since 2002 and was diagnosed to be suffering from the mental disorder in 2015 with mania shortly after her marriage.

Due to the above, victim’s husband had also initiated divorce proceedings.

Contentions

Petitioner’s counsel assailed the impugned order, stating that even though the Additional Sessions Judge called for the report of IHBAS, however without waiting for the final report passed the impugned order granted bail to respondent 2 who was arrested.

While granting bail, Trial Court took notice of the initial statement of the victim recorded before the police, however, failed to notice her detailed statement under Section 164 CrPC before the Metropolitan Magistrate. The mobile phone of the accused showed the mobile number saved with the title ‘376’ and the accused transferred photos of the victim to the said number.

Further, the statement of the prosecutrix recorded under Section 164 CrPC and the call detail record had shown that the prosecutrix came in touch with respondent 2 three days prior to the dates when he lured the prosecutrix on the pretext that there was an evil spirit of a dog in her body which needs to be removed.

After taking the prosecutrix to Nainital instead of Vaishno Devi by putting vermilion in her head, the prosecutrix was made to believe that they were married and committed sexual intercourse with her. Statement of the prosecutrix recorded by the Metropolitan Magistrate clearly had shown that she was threatened.

Respondent 2 took undue advantage of her medical condition and lured her and committed the offence of rape on her punishable under Section 376(2)(1) IPC wherein the sentence awarded was not less than 10 years imprisonment.

Hence, while granting bail to respondent 2, the trial court failed to consider the legal principles applicable for grant of bail. Respondent 2 had no clean antecedents.

Victim’s Statement

She submitted that her divorce proceedings were going on and she was residing with her parents and suffering from depression. Shiva used to reside in a temple in her neighbourhood and he started speaking to her and told her that they would go to Nainital and without telling her family members she went with him.

At Nainital, they established a physical relationship and the police reached and brought them to the police station.

The decision of Additional Sessions Judge

After noting the contentions of the parties, ADJ held that the video of the accused and the prosecutrix played in the Court prima facie showed that the prosecutrix was conscious, oriented and aware of the nature of the act.

The prosecutrix was seen voluntarily accompanying the accused and her consent did not appear to be vitiated by any kind of mental disorder. The Additional Sessions Judge further held that admittedly the bipolar mental disorder does not permanently affect the mental status of the person concerned.

The condition of victim was not a permanent mental disorder and temporarily impacted the medical condition only if there was an episodic attack and the time period for which it lasted was variable. Hence, it only involved mood fluctuations that may or may not lead to legal insanity.

Trite Law

Cancellation of bail granted can be directed either because the order granting bail is perverse, illegal contrary to law or unjustified or if the accused violates the conditions of grant of bail such as tampering with the evidence, interfering with the investigation, influencing the witnesses or fleeing away from justice.

In the present matter, the petitioner sought cancellation of bail on the ground that the order granting bail was perverse, illegal and contrary to the settled principles of grant of bail.

High Court held that, Additional Sessions Judge failed to notice that the respondent 2 was living in the neighbourhood of the prosecutrix, thus was aware of the mental faculties of the victim and taking advantage thereof, as her marriage was broken and she was eager to get married, he lured her stating that he would get the evil spirit out of her soul, get her married to a boy.

The Bench expressed that, trial Court failed to notice that consciousness and orientation are different from being able to exercise sound mental judgment and to realise that the victim is being enticed to fall prey to the accused.

What factors are to be considered while granting bail?

(i) whether there is any prima facie or reasonable ground to believe that ` the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.

Noting the gross illegality of the ASJ decision which also ignored the statement of the prosecutrix recorded under Section 164 CrPC, the seriousness of offence, that the statement of the prosecutrix was still to be recorded before the Trial Court, and that respondent 2 was living in the vicinity of the prosecutrix and was thus likely to influence the prosecutrix by luring her again and/or intimidating her, this High Court set aside the impugned order.

Hence bail was cancelled. [X v. State (NCT of Delhi), 2022 SCC OnLine Del 656, decided on 4-3-2022]

Advocates before the Court:

For the Petitioner:

Mr Shreeyash U.Lalit and Mr Tarun Narang, Advocates.

For the Respondents:

Ravi Nayak, APP for State with SI

Manju Yadav, PS Vikaspuri.

Mr. Abhay Kumar, Advocate for R-2.

Case Briefs High Courts

False promise of marriage to satisfy lust, leading to offence of cheating and rape?: Bom HC refuses to quash FIR for offences under Ss. 376, 417 IPC

Bombay High Court: The Division Bench of A.S. Chandurkar and G.A. Sanap, JJ., refused to exercise jurisdiction under Section 482 CrPC for quashing an FIR in offences of cheating and rape in the matter wherein the applicant/accused committed sexual intercourse with the girl against her will in the pretext of the false promise of marriage.

Instant application was made under Section 482 of the Code of Criminal Procedure to quash and set aside the FIR for the offences punishable under Sections 376 and 417 of the Penal Code, 1860.

Factual Matrix

The crime had been registered on the basis of the report lodged by the non-applicant 2 against the applicant/accused. It was stated that the applicant and the non-applicant 2 got engaged. Due to the second wave of COVID-19 and the lockdown declared by the government, the marriage of fixed between the non-applicant 2 and accused was postponed. Marriage was again fixed for 3-5-2021, however, the non-applicant 2 was detected COVID positive and therefore, the marriage could not be performed.

Later in June, applicant arranged a party wherein non-applicant 2 and her family also enjoyed the party and later went to their respective rooms. Non-applicant 2 went to the room of the applicant with the luggage and saw that applicant was in drunken condition and complained of headache. In view of the said, non-applicant 2 gave a head massage to the applicant.

It was stated that the applicant had sexual intercourse with non-applicant 2 against her consent and under the pretext that non-applicant 2 would be her wife after a few days. Again, the next morning, applicant had sexual intercourse with non-applicant 2 and thereafter, everyone went to their respective destination.

Applicant after the above incident started avoiding non-applicant 2 and after a few days came to her house and stated that non-applicant 2 was addicted to liquor and her mental condition was such that she could not be shown pity.

In view of the above, the applicant refused to perform the marriage with non-applicant 2.

Further, it was stated that, the applicant/accused under the false promise to marry established sexual relations with non-applicant 2 and cheated her.

On the basis of the above, crime was registered.

Investigating Officer stated that the facts presented by non-applicant 2 have been reiterated and even the medical officer submitted that the sexual intercourse cannot be ruled out. Hence prima facie there was material to establish the involvement of the applicant in crime.

Analysis, Law and Decision

Settled Position

Powers under Section 482 of the CrPC can be exercised where the allegations made in the First Information Report even if they are taken on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

If the uncontroverted allegations made in the First Information Report or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, then the accused cannot be made to undergo the rigmarole of the criminal trial.

In the Supreme Court decision of Vineet Kumar v. State of U.P., (2017) 13 SCC 369, it was held that the Court cannot permit prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in the case of State of Haryana v. Bhajanlal, 1992 Supp (1) SCC 335.

It is a settled legal position that where there is material to indicate that the criminal proceeding is manifestly actuated with malafide and the proceedings are maliciously instituted with an ulterior motive, the High Court will not hesitate in the exercise of its jurisdiction and discretion under Section 482 of the CrPC to quash the proceedings in the process of exercise of powers under Section 482 of the CrPC. Prima facie evaluation of the facts stated in the FIR and other material is only permissible.

In Court’s opinion, on a prima facie analysis it was found that the conduct of the applicant/accused coupled with the facts stated in the FIR indicated that the applicant under the guise of the false promise to marry in future with the non-applicant 2 established sexual intercourse with the non-applicant 2.

Further, the Bench added that the intention and the motive of the applicant appeared to be sinister. Applicant/accused established the sexual relations against the will of the non-applicant 2 by obtaining her consent under the promise to marry.

Hence, the above-said consent cannot be said to be free consent.

The accused under the pretext of hosting the party on the eve of her birthday took the non-applicant 2 to the Resort and committed sexual intercourse with the non-applicant 2.

It was also the Court’s prima facie opinion that the instant matter not just involved the offence of cheating, infact it will be coupled with the offence of rape.

“…applicant/accused had hidden intention not to marry with the applicant once his sexual lust is satisfied.”

Concluding the matter, the Court denied exercising jurisdiction under Section 482 of the Code of Criminal Procedure. [Navneet v. State of Maharashtra, Criminal Application (APL) No. 853 of 2021, decided on 22-12-2021]

Advocates before the Court:

Shri J. B. Gandhi, Advocate for the applicant.

Mrs S. S. Jachak, Additional Public Prosecutor for non-applicant No.1.

Shri S. V. Deshmukh, Advocate for non-applicant No.2.

Case Briefs High Courts

‘To sexually violate innocent child within filial relationship descends on different path of depravity’: Del HC convicts father, friend under S. 377 IPC; emphasises on ingredients of ‘carnal intercourse against the order of nature’

Delhi High Court: The Division Bench of Siddharth Mridul and Anup Jairam Bambhani, JJ., while addressing a very unfortunate incident, involving sexual offences to the extent of rape and carnal intercourse with a child, expressed that,

“…to sexually violate an innocent child is in any case an abhorrent act; but, when that happens within the filial father-daughter relationship, of which purity of affection is a sine-qua-non, the act descends to a different depth of depravity.”

Instant two appeals arose from a judgment and a sentencing order.

The present matter concerned sexual offences against a ‘minor’, the names of the prosecutrix, of one of the convicts and some key witnesses were anonymized in keeping with the verdict of the Supreme Court in Nipun Saxena v. Union of India, (2019) 13 SCC 715, and Section 228 (A) of the Penal Code, 1860 and Section 327 (2) of the Criminal Procedure Code, 1973.

Appellants impugned judgment whereby they were convicted by the trial court for offences under Sections 376(2)(g) and 377 read with Section 34 IPC. They also challenged the sentencing order.

Background of the Matter

Prosecutrix had alleged that her father (A1) and his friend (A2) committed upon her offences as defined under Sections 376(2)(g) and 377 IPC.

Prosecution case before the trial court was that the prosecutrix used to ordinarily stay in the care and custody of her bua, who subsequently appeared as PW-9 at the trial and that on the commencement of the prosecutrix’s summer holidays in 2012, her father took her from the care and custody of her bua to the house of Manorama Begum where A1 and A2 inter alia committed gang-rape and sodomy upon the prosecutrix.

Prosecutrix revealed the said incident to her teacher who happened to be the daughter of the prosecutrix’s bua and appeared as PW-1 at the trial. The prosecutrix also informed the counsellor/coordinator working in the said NGO about the offences committed upon her.

Upon registration of the FIR under Sections 376(g) and 377 IPC, the prosecutrix was taken to the All India Institute of Medical Sciences (AIIMS) New Delhi for medical examination. Subsequently, A1 and A2 were arrested.

During the course of the trial, the prosecution cited 17 witnesses, while the appellants led no defence evidence.

Analysis, Law and Decision

Statement of Prosecutrix | Section 164 CrPC

High Court firstly noted that, the prosecutrix’s version in her statement under Section 164 CrPC, as also in her examination-in-chief and cross-examination in court, remained consistent and unwavering.

In Court’s opinion, the examination-in-chief of the Investigating Officer, PW-15 elicited nothing that materially impacted the evidence that came on record either for or against the appellants.

Bench further expressed that,

Where the evidence of the prosecutrix inspires confidence, it must be relied upon, without seeking corroboration of her statement in material particulars.

Medical Evidence

From the MLC it was gathered that the hymen of the prosecutrix who was only about 10 years of age, was found torn, there was redness around her vaginal introitus (opening of the vagina) and there was redness in the vaginal area.

For the sake of completeness, the two appellants were put through a medical examination at AIIMS, and it was opined that there was nothing to suggest that either of them was incapable of performing sexual intercourse under normal circumstances, nor was any other abnormality noticed that would in any manner preclude the commission of the offence by either of the appellants.

In view of the above Court reached the following conclusion:

The prosecutrix’s statement recorded under Section 164 CrPC and her deposition in court, in which she says that appellant A2 committed upon her the carnal acts as described in her own wording, are cogent, credible and trustworthy. Furthermore, the prosecutrix’s statement, as recorded under Section 164 CrPC as also in her deposition in court, in relation to what her father appellant A1 did to her is also cogent, credible and trustworthy.
Bench stated that they are not depending solely on the prosecutrix’s statement under Section 164 CrPC or on her deposition in Court but are also supported in its inferences by the medical evidence that came on record, by way of the MLC of the prosecutrix. This made the allegations against the appellant all the more plausible, absent any other explanation and in fact, no explanation or evidence had been brought forth by the defence in the said behalf.

Hence, Bench found nothing erroneous or amiss in the conclusions arrived at by the trial court, that both appellants were guilty of the acts alleged against them.

Question to be addressed:

On the basis of evidence on record, what offences are made out and stand proved against the appellants?

High Court stated that the appellants were charged with offences punishable under Sections 376(2)(g) and 377 read with Section 34 IPC. It is important to note here that the offences are alleged to have been committed on various dates on or before 22.07.2012, by reason of which they would be covered by the IPC as it existed prior to its amendment by the Criminal Law (Amendment) Act, 2013 (Act 13 of 2013) with retrospective effect from 03.02.2013. Accordingly, Section 376(2)(g) as it existed prior to amendment by Act 13 of 2013 needs to be considered in light of the definition of “rape” as contained in the unamended Section 375 of the IPC.

Court observed that the expanded definition of rape as contained in amended Section 375 with retrospective effect from 3-3-2013, did not exist on the statute book at the time of the commission of the offence by the appellants i.e., on or before 22-7-2012 and there was neither any allegation nor had anything come forth in evidence to show that the appellants committed any penetrative sexual intercourse with the prosecutrix.

Therefore, in Court’s view, the finding of the trial court that the appellants were guilty of the offence under Section 376(2)(g) was untenable and accordingly set aside.

Moving further, the Court stated that while amending Sections 375 and 376 (2) (g) by the amending Act 13 of 2013, the Legislature had not made any amendment to Section 377 IPC which continues to read as under:

“377. Unnatural offences. —Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

(emphasis supplied)

What does the phrase ‘carnal intercourse against the order of nature’ appearing in Section 377 IPC mean?

Bench elaborated stating that Section 377 IPC referred not to sexual intercourse but to carnal intercourse, whereby the intention of the legislature was to engraft a different offence in Section 377 IPC vis-à-vis Section 375 IPC, which is why a different phrase was employed.

High Court opined that ‘carnal intercourse against the order of nature’ appearing in Section 377 must have the following ingredients:

it must have to do with flesh and sensuality, namely it must be carnal;
there must be intercourse between individuals, without restricting it only to human-to-human intercourse;
it must involve penetration other than penile-vaginal penetration, since by the very nature, intent and purpose of Section 377, it must refer to an unnatural act, such as ‘penile-anal penetration’, ‘digital penetration’ or ‘object penetration’.

“…we however completely agree that attempting to define the phrase ‘carnal intercourse against the order of nature’ with exactitude is neither possible, and perhaps not even desirable.”

Bench held that,

“…any physical act answering to all the above-stated ingredients committed upon a minor is per-se ‘carnal intercourse against the order of nature.”

What did the prosecutrix state in her testimony?

The Bench noted that the prosecutrix’s testimony was clear, cogent and unwavering insofar as it concerns the allegation against appellant A2, that he committed digital penetration of the prosecutrix’s anus.

In her statement under Section 164 CrPC and in her deposition in court, the prosecutrix stated that appellant A2 would gag her mouth with cloth, bind her limbs and then do ‘batamizi’ with her.

On further elaboration, she said that appellant A2 would remove her clothes and then lie on top of her and touch her chest, vagina and anus. He would then put his penis against her vagina and anus and also insert his finger into her anus. She had deposed that the whole ordeal would last about half an hour.

The prosecutrix alleged that after appellant A2 was finished, her father appellant A1, would commit all the aforesaid acts upon her other than the act of digital penetration.

Therefore, in view of the above, no further analysis was required that offences under Section 377 read with Section 34 IPC were made out against the appellant A2.

In Court’s opinion, the actions of the father were covered under Section 34 IPC, namely the acts done by him in furtherance of a common intention to commit the offence and would make him liable for all acts committed by appellant A2 in the same manner as if the acts were done by appellant A1 himself.

Hence the trial court’s conclusion was correct except the conclusion with regard to the offence under Section 376(2)(g) IPC was flawed.

In the present matter, the offending acts went beyond the physical element of sexual assault but would have severely damaged the mind and psyche of the victim which trauma may linger for very long.

Without at all appearing to be Biblical, crime in society is one thing; but crime within the closest confines of the family, adds to it the element of sin.

In view of the above discussion and modification to the judgment and conviction and sentencing order, the appeal were dismissed. [A v. State, 2021 SCC OnLine Del 5396, decided on 20-12-2021]

Advocates before the Court:

For the Appellant: Mr. Chinmoy Pradeep Sharma, Senior Advocate with Ms. Rakhi Dubey and Mr. Himanshu Gera, Advocates.

For the Respondent: Mr. Ashish Dutta, APP for the State.

Case Briefs High Courts

Rape by person claiming to have supernatural powers: Bom HC upholds conviction under S. 376 IPC, observes blind faith is real driver in such cases

Bombay High Court: C.V. Bhadang, J., while addressing the matter with regard to rape committed by a person claiming to have supernatural powers, expressed that,

“It is significant to note that the blind faith of the parties/victim on the accused is the real driver in such cases.”

Appellant-accused challenged the decision of the lower Judge. Sessions Judge had convicted the appellant for the offence punishable under Section 376 and 354 of the Penal Code, 1860 and Section 3(2) of the Maharashtra Prevention and Eradication Human Sacrifice and Other Inhuman, Evil and Aghori Practices and Black Magic Act, 2013.

Background of the Case

PW-7 and PW-8 were married to each other but were issueless even after two years of marriage. An acquaintance of her husband introduced them to the appellant stating that the appellant was a devotee of Macchidranath and several devotees were benefited from his grace. Appellant was alleged to have promised PW-7 and PW-8 that they would be blessed with a child. The duo was regularly visiting the appellant on each Thursday when the appellant used to give vibhuti and chant certain mantras.

Further, in May, 2015, the appellant advised PW-7 and PW-8 to have ‘Reiki Procedure’, in which both of them were required to have physical relations in the presence of the appellant.

In the year 2016, the appellant came to the house of PW-7 and PW-8, and they again had the same episode. After this, according to PW-7 her husband PW-8 was asked to go out of the room as the appellant insisted that he would have some procedure conducted on PW-7. After PW-8 went on the terrace, the appellant alleged to have sexually abused PW-7.

In view of the above background, chargesheet was filed. Appellant was found guilty and hence present appeal was filed.

Analysis, Law and Decision

High Court noted that the appellant was selling herbal products and claimed to be a devotee of Macchindranath. It also came in the prosecution evidence that some persons used to visit the house of the Appellant at Goregaon on every Thursday where the Appellant used to give vibhuti and used to chant mantras, professing to transfer the supernatural powers into his devotees.

Further, the Bench noted that in the evidence that relations between PW-7 and PW-8 and the appellant were cordial and they used to have prasad at the house of the appellant and go for picnic together. There was no reason why PW-7 and PW-8 would suddenly turn hostile to the appellant and lodge a complaint of the present nature.

Court added that, although there was a delay of 3 days, the circumstances looking to the nature of the allegations and the episode, there was nothing unusual if PW-7 and PW-8 had reflected on the issue of lodging of the complaint, before finally deciding to act.

High Court did not find the delay to be material so as to discard their evidence.

Elaborating further, Bench held that the act of the appellant would come within the ambit of Section 375(b) of IPC.

The incident in the present case being dated 24.07.2016 would be governed by Section 376(1) as it stood prior to the amendment by Act No. 22 of 2018. Sub-Section 1 of Section 376 as it stood then prescribed a minimum sentence of 7 years. In Court’s view, the sentence of 10 years awarded to the Appellant deserves to be modified to 7 years under Section 376 of IPC. [Yogesh Pandurang Kupekar v. State of Maharashtra, 2021 SCC OnLine Bom 5014, decided on 4-12-2021]

Advocates before the Court:

Mr. Kuldeep Patil a/w Ms. Saili Dhuru i/b Mr. Prashant M. Patil for the Appellant.

Mr. R.M. Pethe, APP for the Respondent/State.

Case Briefs High Courts

False promise of marriage | Can mere failure to keep a promise without anything more lead to irresistible conclusion that promise had been dishonestly made from inception? Cal HC decides

Calcutta High Court: While addressing a matter under Section 376 of Penal Code, 1860 Division Bench of Joymalya Bagchi and Bivas Pattanayak, JJ., observed that, it cannot be said that appellant had no intention to marry from the inception of the relationship, infact the relationship did not fructify due to obstruction from the elders of the family.

The instant appeal was directed against the decision passed by the lower court arising out of Sessions Case under Section 376 of the Penal Code, 1860.

Background

Prosecution alleged that the appellant cohabited with the victim girl who was a minor, on the false promise of marriage, due to which the girl became pregnant.

When the girl asked the appellant to marry, he evaded the issue. The said matter came to the knowledge of the family members, after which a salish was held, wherein the appellant refused to marry the victim girl due to the strong objection of his family members.

In view of the above, first information report was filed and charges were filed against the appellant under Sections 376/493 of IPC.

Analysis, Law and Decision

Bench noted that the evidence on record clearly established that the appellant had cohabited with her on the promise of marriage.

However, Court found it was difficult to accept that the initial cohabitation was forceful as such allegation was significantly absent in the FIR by PW1. It was argued that the appellant had agreed to marry her, but the marriage could not fructify due to the resistance of his parents. Hence, it could not be said that the appellant did not intend to marry her at the time when they cohabited.

Court found substance in the above contention.

Mere failure to keep a promise without anything more cannot lead to the irresistible conclusion that the promise had been dishonestly made from the inception.

Bench observed the evidence that the appellant and the victim girl wanted to marry each other and cohabited and as a result, she became pregnant but due to the resistance of the parents of the appellant marriage was not held.

It appeared that the date of birth of the victim was 18-3-1993 and she was above 16 years at the time of occurrence. Thus, victim had crossed the age of consent.

Therefore, Court opined that it cannot be said that the appellant did not have the intention to marry the victim, in fact the marriage could not fructify due to obstruction from elders in the family.

The materials on record also indicated that the cohabitation was consensual.

Concluding the matter, the conviction and sentence of the appellant was set aside and the appellant was acquitted. [Saddam Hussain v. State of West Bengal, 2021 SCC OnLine Cal 3012, decided on 7-12-2021]

Advocates before the Court:

For the appellant: Debarshi Brahma, Adv.
Ms. Ankita Das Chakraborty, Adv. Mr. Sagnik Mukherjee, Adv.

For the State: Mr. S. G. Mukherjee, P.P. Ms. Amita Gour, Adv.
Mr. N. P. Agarwal, Adv.

Case Briefs High Courts

Rape, Murder of Ragpicker: Merely because crime is heinous and brutal, it won’t be just to get carried away sans any legal proof to substantiate charges [Detailed decision of Bom HC]

Bombay High Court: The Division Bench of Sadhana S. Jadhav and Prithviraj K. Chavan, JJ., while addressing an alleged rape and murder case of two rag pickers, held that,

“…prosecution has utterly failed in connecting the dots and bringing home the guilt of the accused.”

Prosecution Case

The instant case was a sordid story of two poor, helpless and hapless victims who had not only been raped but one of them had been brutally murdered.

Victims were friends and rag pickers which was their only source of livelihood.

It was stated that Survivor-Y did not know the accused previously, however, deceased-X knew accused 1. On the fateful day, survivor-Y and deceased-X were both standing near a garden infront of railway station and at that time both the accused came over and said that they would arrange for some job, both survivor-Y and deceased-X decided to go along with the accused.

Accused offered liquor and took both survivor-Y and deceased-X below the tunnel of a bridge and raped them, on resistance, both the accused assaulted them with hacksaw blade and a knife.

Deceased-X and survivor-Y sustained multiple injuries on the vital parts of their body. However, survivor-Y escaped from the clutches of the accused and ran away from the spot. While running away, she fell down below the bridge and sustained a head injury. She became unconscious, however, deceased-X died on the spot due to the multiple injuries.

On the basis of information given by survivor-Y, an FIR came to be recorded, crime came to be registered under Sections 302, 376(2) read with Section 34 of the Penal Code, 1860.

Reference under Section 366 (1) of the CrPC had already been made by the Additional Sessions Judge for confirmation of the death sentence.

Analysis, Law and Decision

Whether the testimony of survivor-Y who herself is an injured witness can be fully accepted as a truthful version of the entire episode sans corroboration, which is significant in light of the fact that it has been held by catena of decisions that corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law but a guidance of prudence under given circumstances.

High Court stated that normally, evidence of an injured eye witness cannot be discarded in toto, particularly when the evidence is tested in the light of broad probabilities, it can be concluded that he or she was a natural eye witness and had no reason to concoct a case against the accused.

Court added that,

Merely because, she is an injured eye witness, her evidence cannot be mechanically accepted though her testimony holds more credence.

Bench while elaborating further, stated that,

Looking to the report of the Psychiatrist coupled with the fact that survivor-Y was under the influence of liquor at the time of the incident, it would not be safe to accept her testimony as a truthful version of the incident in respect of the alleged assault by the accused.

It was expressed that, in a criminal trial, the burden of proving the guilt of the accused beyond all reasonable doubts always rests upon the prosecution and on its failure, it cannot fall back upon the evidence.

Well Settled Principle of Law:

Corroboration is not a sine qua non for a conviction in a rape case.

Refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury.

Additional Sessions Judge appeared to have fallen into grave error in not recording the evidence of prosecution witnesses in Marathi which is the language of the District Courts in the State of Maharashtra.

In Court’s opinion, due to such a lapse on the part of the Additional Sessions Judge, a failure of justice has been occasioned and the proceedings stand vitiated.

High Court while taking into consideration the totality of circumstances in the case at hand as well as failure on the part of the trial Court in not promptly furnishing translated copies of English deposition to juvenile-in-conflict-with-law may vitiate the trial and it cannot be said to be a fair and impartial trial, especially when capital punishment is sought to be inflicted upon the accused.

Merely because the crime is heinous and brutal, it would not be just to get carried away sans any legal proof required to substantiate the charge of murder and rape.

Present matter at the most be a case of strong suspicious and no more.

It was apparent that the murder was neither pre-planned nor premeditated and evidence was neither clear, cogent nor credible.

Hence, there was absolutely no question of awarding death sentence to the accused, rather, it was a case wherein the accused must be given a benefit of doubt, nay, it would be a travesty of justice.

“…trial was conducted in a casual manner without ascertaining whether the legal aid provided to the accused was competent and whether the trial was just and fair in a capital punishment case. The quality and credibility of the evidence adduced is not even upto the mark.”

Since the prosecution miserably failed to bring home the guilt of the accused, there was no question of considering whether the case falls under the rarest of rare category wherein the question of award of capital punishment or otherwise would arise.

High Court opined that the decision of the Additional Sessions Judge was full of surmises and conjectures. The entire approach of the trial Court in dealing with the evidence was patently illegal and the conclusions arrived at by it were wholly untenable.

Therefore, Bench acquitted the accused of the offences punishable under Section 376 (2) (g), 302 and 326 of the Penal Code, 1860 in view of Section 368 (c) of the Criminal Procedure Code. [State of Maharashtra v. Rahimuddin Mohfuz Shaikh, Confirmation Case No. 1 of 2017, decided on 25-11-2021]

Advocates before the Court:

Ms. M.M. Deshmukh A.P.P for Appellant-State.

Ms. Rebecca Gonsalvez i/b Dr. Yug Chaudhry, appointed Advocate for Respondents.

Case Briefs High Courts

Law on Grant of Bail | Father-in-Law accused of raping own Daughter-in-Law: Read whether Del HC grants bail or not

Delhi High Court: In a case wherein a father-in-law was accused of raping his own daughter-in-law, Subramonium Prasad, J., expressed that,

Rape is not merely a physical assault; it is often destructive of the whole personality of the survivor.

Factual Background

Prosecutrix submitted that she got married according to Muslim Rites and Customs. After some time of her marriage, her in-laws started to harass her but she remained silent. Further, it was stated that her husband used to beat her and subjected her to unnatural sex several times.

Later, the prosecutrix came to know that her husband was having an affair with some other woman and therefore, she tried to make him understand, but he did not listen to her.

Petitioner raped prosecutrix on 2-3 occasions. On one day the prosecutrix told her brother-in-law about the incidents of rape by the petitioner. Though it is stated that after that day, brother-in-law tried to touch the prosecutrix inappropriately after which the prosecutrix told her parents everything and asked them to take her along.

An FIR was lodged for the offences under Sections 323, 376 of the Penal Code, 1860.

In view of the above, petitioner was arrested.

Yogesh Gaur, Counsel for the complainant opposed the bail by contending that the prosecutrix was harassed by her husband, her father-in-law and brother-in-law. Petitioner raped the prosecutrix, hence the bail ought not to be granted to him.

Analysis, Law and Decision

High Court noted on a number of Supreme Court cases with respect to parameters of granting bail, which were as follows:

Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598
Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496

Bench expressed that rape is an extremely heinous offence that stipulated minimum punishment of 7 years and can go up to life.

Petitioner was accused of a very heinous offence of raping his own daughter-in-law.

The act of rape has the ability to scar the mental psyche of the survivor and this trauma can persist for years.

In view of the above, bail was rejected.[Ahshan Ali v. State, 2021 SCC OnLine Del 4776, decided on 21-10-2021]

Advocates before the Court:

For the petitioner:

Gaurav Kochar, Advocate

For the respondent:

Kusum Dhalla, APP for the State with SI Shubham Singh, PS Jyoti Nagar.

Yogesh Gaur, Advocate for the complainant.

Case Briefs High Courts

Lower Court Judge failed in its duty to protect dignity of rape victim: Bom HC’s decision on committing of rape by cab driver joined by his accomplice

Bombay High Court: Pained to note the permitting of questions by the Lower Court which crossed all lines of dignity of a woman, Division Bench of Sadhana S. Jadhav and Sarang V. Kotwal, JJ., while denying reducing the sentence of the 3 accused who raped a woman, expressed regarding sentencing policy that,

“…object of sentencing policy should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it.”

“Sentencing Policy adopted by the Courts, in such cases, ought to have a stricter yardstick so as to act as a deterrent”

Prosecutrix was taken to various places and then to a secluded place where all 3 accused appellants committed rape on her one after the other and later she was left near her residence. In the meantime, police was informed by the relatives of prosecutrix’s who were searching for her.

FIR was lodged under various sections including Section 376(2)(g) of the Penal Code, 1860. All the accused were arrested and the Indica Car in which the prosecutrix was taken to various places was also seized.

What transpired the above-stated facts?

Prosecutrix while waiting for a bus to reach a destination was approached by a maroon coloured Indica car and the driver offered the prosecutrix to drop her. PW-1 was aware that some vehicles operating for the Call Centers were used to take other passengers and under the said impression in light of getting late she decided to go in that car.

On the way accused 1 told the prosecutrix that there would be 8-10 more people who would commit rape on her. The accused even bought beer and some food and consumed the same.

Further, accused 1 asked PW-1 to make a call to her mother and inform her that she would be late so that nobody starts searching for her. After that, she was taken to a secluded place where she was raped by one after the other and dropped around 12.45 near her residence. On reaching her place she immediately called her mother and after that, her aunt and two friends came to her flat and then the police also arrived.

She was taken to a hospital for medical examination, and she even identified all the accused in the Court.

Bench noted that defence tried to develop a theory of consensual sex and kept giving certain suggestions which this Court disapproved of.

Court stated that it was pained because of the passive approach adopted by the Judged in allowing such questions. The said questions crossed all lines of basic dignity.

“Under the garb of giving suggestions. Graphic details of the act were put to the witness.”

Under Section 152 of the Indian Evidence Act, the Court was duty-bound to forbid any question which appeared to be intended to insult or annoy or which though proper in itself appeared to the Court needlessly offensive in form. Section 151 of the Indian Evidence Act also empowers the Court to forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed.

Noting the above, lower Court Judge failed in his duty in not protecting the dignity of PW-1 and not exercising his powers under Sections 151 and 152 of the Indian Evidence Act.

High Court added that it is necessary to remind trial Courts that under Section 148 of the Indian Evidence Act, it is their duty to decide when the witness shall be compelled to answer.

PW-1 had denied the theory of consensual sex and, therefore, all further suggestions in respect of the actual act of intercourse were totally unnecessary.

Special Public Prosecutors

“Not happy with the silence kept by the Special Public Prosecutor by not objecting to the suggestions.”

Court expressed that it is necessary to remind the prosecutors that under the scheme of CrPC, they are in-charge of the conduct of the prosecution. They are supposed to perform their duties responsibly and they are supposed to render sincere assistance to the Court. It is their responsibility to protect the interest of the victims and the witnesses before the Court.

“Prosecutors cannot only concentrate on securing conviction, but the conduct of the proper trial is also their duty.”

Bench held that the circumstances of the case sufficiently prove the guilt of the accused.

Medical evidence had also shown that PW-1 was subjected to forceful sexual intercourse.

Prosecution had established its case against all the accused beyond all reasonable doubt.

While concluding, Court stated that in the present matter, PW-1 innocently took the lift from accused 1. Accused 1 & 2 and accused 3 who joined them subsequently, took advantage of her helpless condition. They committed rape on her. She was threatened. PW-1 has suffered extreme trauma.

Court upheld the decision of the trial court. [Ranjeet Shahaji Gade v. State of Maharashtra, 2021 SCC OnLine Bom 3061, decided on 28-9-2021]

Advocates before the Court:

Ms Anjali Patil, Advocate a/w. Mr Nauman Shaikh, for the Appellant in Criminal Appeal No. 310/2012.

Mr P.G. Sarda, Advocate for the Appellants in Criminal Appeal No.184/2012.

Ms S.V. Sonawane, APP for the Respondent–State.

Case Briefs High Courts

‘Tragic to note practicing advocates trivialising offence of rape’: Del HC reiterates SC’s stand on whether power under S. 482 CrPC be exercised for quashing offence of rape when parties compromise

Delhi High Court: Subramonium Prasad, J., observed that,

Rape is not merely a physical assault; it is often destructive of the whole personality of the victim. The act of rape has the ability to scar the mental psyche of the victim and the trauma can persist for years.

Instant petition was filed under Section 482 of the Criminal Procedure Code for quashing the FIR registered for offences under Section 376 of Penal Code, 1860 on the ground that petitioners and respondent 2 have entered into a compromise.

Petitioner’s counsel submitted that the instant FIR was a counterblast against the husband of respondent 2.

High Court on perusal of the facts and circumstances of the case stated that the parties registered cross-cases against each other for offences under Section 376 IPC.

It is tragic to note that practising advocates belonging to the legal fraternity are trivialising the offence of rape.

In the Supreme Court decision of Shyam Narain v. State (NCT of Delhi), (2013) 7 SCC 77, it was observed that,

“27. Respect for reputation of women in the society shows the basic civility of a civilised society. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. It would not be an exaggeration to say that the thought of sullying the physical frame of a woman is the demolition of the accepted civilised norm i.e. ‘physical morality’. In such a sphere, impetuosity has no room. The youthful excitement has no place. It should be paramount in everyone’s mind that, on the one hand, society as a whole cannot preach from the pulpit about social, economic and political equality of the sexes and, on the other, some perverted members of the same society dehumanise the woman by attacking her body and ruining her chastity. It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men.”

Hence, the Courts shoulder a great responsibility while trying an accused on charges of rape. The matter is of grave concern that people are treating the said allegation in a very casual manner.

Whether the High Courts, while exercising its jurisdiction under Section 482 CrPC, should quash an offence under Section 376 IPC?

Bench stated that rape is an offence against society. The Supreme Court has time and again directed the High Court to not exercise its jurisdiction under Section 482 CrPC to quash an offence of rape in light of parties entering into a compromise.

Court referred plethora of cases and held that quashing FIR for offences like rape on the basis of compromise will encourage accused to put pressure on the victims to agree to a compromise and that would open doors for the accused to get away with a heinous crime which could not be permitted.

Allegations regarding offences such as one under Section 376 IPC cannot be made at the drop of a hat – in order to settle personal scores.

People who make such false allegations of rape cannot be permitted to go scot-free.

High Court expressed that it is pained to note that there is an alarming increase of false cases of rape and offences under Section 354, 354A, 354B, 354C & 354D only to arm-twist the accused and make them succumb to the demands of the complainant.

False claims and allegations pertaining to cases of molestation and rape need to be dealt with an iron hand due to the serious nature of the offences.

Such litigations are instituted by the unscrupulous litigants in the hope that other party will capitulate to their demands out of fear or shame.

Lastly, the Court held that Courts have to ensure that there is no incentive or motive for frivolous litigations which unnecessarily consumes the Court’s otherwise scarce time.

In view of the mandate of the Supreme Court that High Courts must not exercise its powers under Section 482 CrPC for quashing an offence of rape only on the ground that the parties have entered into a compromise, this Court was not inclined to entertain this petition.[Vimlesh Agnihotri v. State, 2021 SCC OnLine Del 4024, decided on 16-08-2021]

Advocates before the Court:

For the Petitioners: Sonu Kumar, Advocate

For the Respondents: Kusum Dhalla, APP for the State

Case Briefs High Courts

MP HC | Rape accused of live-in partner granted anticipatory bail; Court directs “shall not move in the vicinity of prosecutrix”

Madhya Pradesh High Court: Anand Pathak, J., granted anticipatory bail to the applicant who had filed the application apprehending arrest in respect of registration of crime punishable under Section 376(2) (n) of Penal Code, 1860

The counsel for the applicant, Mr Ravi Dwivedi and Mr Atul Gupta submitted that as per the contents of FIR itself, applicant and prosecutrix were in live-in relationship for almost a year and when relationship turn soured and applicant proceeded to marry with some other girl, then this case has been filed as a counterblast to exert pressure. The counsel further contended that offence of rape prima facie cannot be made out on the basis of promise of marriage and here the parties lived as couple in live-in relationship. He added that confinement amounts to pretrial detention. The counsel assured that the applicant undertakes to cooperate in the investigation/trial and would not be a source of embarrassment and harassment to the complainant party in any manner and shall not move in her vicinity.

The Court considering the fact situation of the case and in view of COVID-19 pandemic as well as looking to the mandate of Supreme Court in the case of Aparna Bhat v. State of M.P, 2021 SCC OnLine SC 230 allowed the application. The Court further directed that the applicant will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to the Police Officer. He was further directed not to move in the vicinity of prosecutrix and shall not be a source of embarrassment and harassment to her in any manner.[Mayank Tiwari v. State of M.P., M.Cr.C. No.31444 of 2021, decided on 28-06-2021]

Case Briefs High Courts

Read why Bombay HC granted anticipatory bail to ‘Constable’ accused of rape and other offences | Succinct Report

Bombay High Court: Sandeep K. Shinde, J., granted anticipatory bail to a constable accused of rape and other offences as detailed below.

Instant anticipatory bail application was filed in crime registered under Sections 376(2)(n), 354(5), 417, 419, 427, 504, 506(2), 502 of the Penal Code, 1860 read with Section 66(C) of the Information Technology Act, 2000.

Applicant was attached to constabulary cadre of the Maharashtra Police and was serving at the traffic Department, Malabar Hill, Mumbai.

Complainant developed a close friendship with the applicant after being deployed and the same took the form of a love affair. Later, the complainant alleged that the applicant had suppressed his marital status.

Though the complainant alleged, the applicant had informed her, his wife was psychologically unwell and hence he desired to divorce his wife. Further, in the year 2018, the applicant borrowed money from the complainant from time to time and when she demanded her own money from him, he abused her.

Applicant on the false promise of marriage persuaded the complainant to succumb to physical desires at various places and hotels.

It was also alleged that the applicant had recorded her obscene videos and was threatening to upload the same on social media and disseminate the same to her relatives if she refused to maintain the relationship with him.

Applicant damaged the complainant’s cell phone to cause disappearance of the evidence.

After such incidents, complainant disclosed everything to applicant’s wife. She also added that her proposed marriage broke down, since the applicant sent some objectionable messages to the sister of her fiancé.

Decision

Bench stated that on taking into consideration the facts of the case, prima facie opined that since he has been suspended from service and is available for investigation, a case for granting interim-pre-arrest protection was made.

High Court directed the investigating officer to place the reports for further consideration on 19-07-2021.

Lastly, the Court added that the applicant shall join the investigation as and when called and shall not contact the complainant or influence prosecution witnesses. [Madhav Krishna Vasave v. State of Maharashtra, 2021 SCC OnLine Bom 833, decided on 4-06-2021]

Advocates before the Court:

Mr. S.R. Nargolkar i/by Shri Arjun Kadam for the Applicant.

Ms. P.P.Shinde, APP for the Respondent-State.

Mr. Shrikant S. Rathi for the Complainant/Intervenor.

Case Briefs High Courts

Pat HC | Bias and prejudices, conjectures and surmises and personal views contrary to material on record have no place in court of law: HC says Trial Judge needs special training at Judicial Academy. Read why

Patna High Court: Birendra Kumar, J., while addressing the matter stated that the present judgment as well as the Trial Court’s Judgment against which the appeal was filed required to be forwarded to the Director, Bihar Judicial Academy to ensure proper academic training to the judicial officers to make them conversant with the correct legal proposition.

Adding to the above, Bench expressed that Chief Justice may deem it proper that the trial judge who passed the impugned judgment needs special training at the Judicial Academy.

Appellant was charged under Section 376 of Penal Code, 1860 and Section 6 of the POCSO Act.

Trial Judge convicted the appellant for offence under Section 18 of the POCSO Act for the reason that no case of aggravated penetrative sexual assault was made out rather a case of attempt to commit penetrative sexual assault was proved against the appellant.

In the present appeal, Trial Court’s decision was challenged.

As per the facts of the case, appellant forcefully established a sexual relationship with a 13-year-old girl. The further allegation is that the appellant lifted her and was carrying her to commit her murder, but the family members came, and the appellant was apprehended and was handed over to the police.

Bench noted that none of the doctors who had occasion to examine the victim were produced as witness during the trial.

Prosecution’s report was not a substantive piece of evidence unless the expert appeared before the Court and supported the medical performance done by them. Therefore, no evidence was present in the case. Hence the impugned judgment of conviction was fit to be set aside.

High Court noted that the Trial Court Judge referred to Sanskrit shloka and Ghazals of Late Jagjit Singh while awarding the sentence against the appellant.

Bench expressed that Trial Judge especially a Judge having power to award death sentence must have correct knowledge of legal principles and zeal to its proper application while exercising the most onerous responsibility of taking decision on the life and liberty of the person before him.

Further adding to the above, Court stated that lack of knowledge of legal principles leads to miscarriage of justice and unnecessary harassment to the parties to the litigation. Bias and prejudices, conjectures and surmises and personal views contrary to the material on the record have no place in the court of law.

Court held that the trial Judge accepted the conflicting prosecution case as disclosed in the statement of the prosecutrix under Sections 154 and 164 CrPC for recording conviction without appreciating the fact that the aforesaid were not a substantive piece of pieces of evidence and the evidence brought during the trial did not disclose the commission of any offence or identity of the perpetrator of the offence.

Hence the impugned judgment and sentence was set aside. [Deepak Mahto v. State of Bihar, 2021 SCC OnLine Pat 770, decided on 12-04-2021]

Advocates before the Court:

For the Appellant/s: Mr N. K. Agrawal, Sr. Advocate. Mr Vijay Anand, Advocate.

For the Respondent/s: Mr Zeyaul Hoda, APP

Case Briefs High Courts

Bom HC | ‘Consent’ of minor for sexual act who conceived and delivered a baby will be immaterial

Bombay High Court: The Division Bench of S.S. Shinde and Manish Pitale, JJ., held that whether a minor gave her consent for sex is immaterial.

Allegation in the present matter was with respect to the alleged sexual assault.

Being aggrieved by the Additional Sessions Judge Order rejecting the prayer of the appellant to release him on bail, the present appeal was filed.

Bench noted the facts and circumstances of the case and further stated that in light of the evidence collected by the Investigating Officer, the involvement of the appellant was disclosed in the alleged commission of offence.

Further, the Court dismissed the contention of the counsel appearing for the appellant that there was consensual sex as the same deserved no consideration since respondent 2 was admittedly minor on the date of alleged incident.

“…the victim was minor at the time of alleged incident and during that period she conceived and delivered a baby. Her consent for the sexual act was immaterial.”

Victim’s statement was recorded under Section 164(5) of the Code of Criminal Procedure and the said statement would show that she never consented to the appellant for sex and apart from the alleged offences under IPC and POCSO, provision of Special Act i.e. SC & ST Act are attracted.

Therefore, in view of the above discussion present appeal was dismissed. Trial Court was directed to expedite the trial. [ABC v. State of Maharashtra, 2021 SCC OnLine Bom 517, decided on 05-04-2021]

Advocates before the Court:

Mr Rahul Kadam a/w. Mr Maaz Syed for appellant.
Mr Rohan Surve appointed advocate for Respondent No. 2.
Mr. Deepak Thakre, PP a/w. Mrs M H Mhatre, APP for Respondent-State.

Case Briefs High Courts

P&H HC | It is not only an abuse to process of law but also an attempt to overawe the authorities; HC imposes cost of 1 lakh for fake rape allegation

Punjab and Haryana Case: Harnaresh Singh Gill, J., dismissed the instant petition filed for issuance of directions to Police officials to hand over the investigation of her case under Section 376 Penal Code, 1860, to the Central Bureau of Investigation or to some other independent agency. The Bench stated,

“…it is clearly established that an attempt has been made to not only abuse the process of law but also overawe the authorities.”

Background

The facts of the case were that the petitioner was working as a Nurse in a dispensary and accused Varun Joshi, who was an active member of the local wing of the ruling party, used to visit the said dispensary and started outraging the modesty of the petitioner. It was submitted that the accused approached the petitioner in her office and threatened her that he was having her nude videos and would upload the same on internet if she did not develop physical relations with him or pay Rs. 5,00,000 to him. Allegedly, Rs. 4 lakhs were paid to the accused as compromise, however, the accused again visited the office of the petitioner and told her that he had deleted only a few clips and demanded Rs. 3 lakhs further to delete them. On the petitioner showing her inability to pay Rs. 3 lakhs, the accused took her in an Innova car and had committed rape upon her.

The grievance of the petitioner was that no action was taken by the Police. The petitioner submitted that although, her statement was recorded instead of registering an FIR, the Police constituted a committee of two members to enquire into the matter. It was further averred that Deputy Superintendent of Police threatened the petitioner to settle the matter with the accused as he happened to be the man of means and belonging to the ruling party.

The respondent submitted that the DG of Police constituted a Special Investigation Team and the place of occurrence was visited by a lady member of the SIT and found the case of the petitioner to be based on false allegations. It was further submitted that a litigant who attempts to pollute the stream of justice or touches the pure fountain of justice with tainted hands, is not entitled to any relief. Therefore, exemplary costs should be imposed upon the petitioner, for such a frivolous litigation.

Observations and Conclusion

The Bench observed that the allegations raised by the petitioner were not proved as the call location of the petitioner and the accused show different places from the one where the alleged rape was committed. The investigation regarding the stay of the petitioner and the accused in Hotel Sneh Mohan was conducted and the statement of the Manager was also recorded and a conclusion was drawn that the petitioner and the accused had stayed there on different dates on friendly basis.

The SIT had also drawn a conclusion that there was a friendly relationship between the petitioner and the accused and the dispute between them arose only when the petitioner made a written complaint to the Gram Panchayat against her husband, daughter and her in-laws’ family and showed her desire to stay away from them. The Bench opined,

“It is clear that the petitioner has levelled false and frivolous allegations against the accused and has gone to the extent of lodging the FIR in question and recording the statement before the Magistrate. The petitioner has not approached this Court with clean hands.”

Relieance was placed on Phool Chandra v. State of U.P., (2014) 13 SCC 112, wherein, the Supreme Court expressed its concern over the need to curb frivolous petitions in following words, “It is high time that the Courts should come down heavily upon such frivolous litigation and unless we ensure that the wrongdoers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigation.”

Lastly, the Bench stated, from the facts and circumstances delineated above, it is clearly established that an attempt had been made to not only abuse the process of law but also overawe the authorities. In view of the above, the petition was dismissed with costs of Rs. 1 lakhs to be paid and deposited by the petitioner with the Institute for the Blind. [Pritpal Kaur v. State of Punjab, CRM-M No. 14954 of 2020, decided on 16-03-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Petitioner: Adv. Rajesh Bhatheja

For the Respondents: AGG. Randhir Singh Thind, AAG, Adv. Shubhra Singh, Adv. Puru Gupta and Adv. A.S.Brar

Case Briefs High Courts

Bom HC | Father rapes minor daughter, but conviction under S. 376(2) (i) IPC set aside. Why? Read Court’s opinion in light of S. 164 CrPC || Detailed Report

Bombay High Court: The Division Bench of Prasanna B. Varale and S.M. Modak, JJ., while addressing the present matter expressed that:

“…relationship in between brother and sister, relationship in between mother and son, relationship in between father and daughter and so on were considered as sacrosanct. However, due to passage of time, these relationships have no more remained sacrosanct and there are various instances of overstepping the sacrosanct relationship by the near relationship.”

In the instant matter, appellant sexually abused his own daughter/victim. There are two views that is:

Whether the victim was a real daughter or a step-daughter. But the fact remains that she is victim.

Trial Court had convicted the appellant for the offence of Section 376 (2)(i), 506 IPC and under Section 4 of POCSO. A further separate sentence was imposed for the offence under Section of the said Act. Appellant had also obtained nude photographs of the victim on his mobile handset, trial court convicted him for the offence punishable under Section 67-B of the Information Technology Act 2000. Adding to this, the trial court acquitted the appellant for the offence punishable under Section 323 IPC.

In the present appeal, trial court’s judgment is challenged by the appellant.

Analysis, Law and Decision

Bench noted that the present matter was based on direct and corroborative evidence.

High Court considered the following:

Even though morally and legally Bench cannot think of a situation wherein the father has raped his minor daughter, but it is correct that Court is bound by rules of law. Even though such instances involving such a relationship are on rise, can Court take into account the evidence which is not admissible (as per existing provisions of law and on its interpretation) and convict the wrongdoer just for the purpose of sending a message in the society?

Bench stated that unfortunately, it cannot take such a view by bypassing the provisions of law.

Corroboration

Evidence given by way of corroboration cannot be said to be substantive evidence.

While elaborating on the concept of corroboration, High Court in light of the present context stated that when the trial court opined that the Section 164 statement can be utilized by way of corroboration, this Court fails to understand what the trial Court mean to say corroboration of which fact?

Trial Court failed to consider the difference and infact considered the Section 164 statement as substantive evidence itself. High Court stated that it is not permissible and hence the said observation was set aside.

Bench noted that there were image files of victim girls and video clips were pornographic. But there is a need to understand what is its evidentiary value, whether it is substantive evidence or whether it is a corroborative piece of evidence?

High Court for the above answered that the person who had seen the incident recorded or who is victim of events recorded can be the proper person and his evidence is substantive evidence. What is recorded and stored in the memory card when it is produced becomes corroborative piece of evidence.

Bench relied upon the following cases for the purpose of electronic evidence:

Bhupesh v. State of Maharashtra, 2018 SCC Online Bom 1163
Vanita Vasant Patil v. State of Maharashtra, 2018 SCC Online Bom 4105

Bench laid down the finding that electronic evidence also needs to be proved just like any other evidence.

Further, the Court stated that it is not inclined to accept the FSL report at least for the purpose of inferring that it is the accused only who has taken those images or done recording. At the most, it can only be said that in the articles referred to in FSL report some pornographic images were found.

Bench stated that it was cautious of the relationship between the victim and accused. It was difficult to opine what compelled the victim not to state those facts which she stated before the police.

Present set of facts and circumstances warrants that there are certain materials suggesting sexual intercourse but the hands of the Court are tied due to the provisions of law.

Statement of the victim recorded under section 164 of CrPC has not been given the status of examination-in-chief in all circumstances (except in case of disability as provided in clause (b) to sub-section 5A to Section 164 of Cr.P.C.).

Supreme Court’s decision in Shivanna expressed the desire to consider the statement under Section 164 CrPC as examination in chief, amendment to that effect is not brought to Court’s notice.

Hence, with all pains, High Court had no alternative than setting aside the conviction of the appellant for the offence punishable under Section 376(2)(i) of IPC and under Section 506 of IPC, though conviction under Section 67-B of the Information and Technology Act was maintained.

Lastly, while parting with the decision, High Court opined that the authorities concerned of the State or Central Government will take some initiative in incorporating certain amendment under relevant laws as to give status to Section 164 statement as that of the examination-in-chief in all eventualities.

We hope that legislatures will also consider the practical realities of the life which the victim has to face. The trauma which victim has to undergo, after the incident does not stop there and when it comes to facing real-life issues, there may be occasion for the victim to forego all the trauma which she had undergone and to take U turn.

[Imran Shabbir Gauri v. State of Maharashtra, 2021 SCC OnLine Bom 511, decided on 31-03-2021]

Advocates before the Court:

Mr Aniket Vagal for the Appellant (Legal Aid). Mrs M. M. Deshmukh, APP for the State.

Case Briefs High Courts

[S. 376 IPC] Ori HC | Bail rejected subject to the plight of the victim and the probability of the accused tarnishing the dignity of the victim and her family

Orissa High Court: S. K. Panigrahi, J. dismissed the bail application as there was a clear possibility of further danger to the complainant by the accused.

The facts of the case are such that the petitioner lured the complainant into having physical relationship with her promising her to marry wherein she became pregnant twice, which was aborted and consent to marriage was denied by the family members of the petitioner. Hence, the complainant’s family fixed her marriage elsewhere consequent to which the petitioner posted personal photographs of the complainant along with him using fake Facebook IDs created in her name and mentioned that the complainant had a relationship with him but was marrying someone else. As a result of this, the complainant’s marriage was broken and she was defamed in society. The complainant lodged an FIR under Sections 376(1), 313, 294 and 506 of the Penal Code, 1860 i.e. IPC and Sections 66(E) and 67(A) of the Information Technology (Amendment) Act, 2008 and was thereby arrested. The instant petition has been filed under Section 439 Criminal Procedure Code seeking bail.

Counsel for the petitioners Mr N Mishra submitted that the present case has been foisted in a fabricated manner to harass the present petitioner. Hence, the petitioner should be granted bail.

The Court relied on judgment Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1 and observed that if an accused from the very beginning has given a promise of marriage without any intention to fulfil that promise and in lieu of such promise that the accused will marry her, she gave her consent for sexual intercourse with the accused, then such consent would not amount to valid consent. It shall come within the ambit of the misconception of fact under Section 90 of IPC. Thus, such consent shall not excuse the accused from the charges for the offence of rape under Section 375 of IPC.

The Court however observed that the law is well settled that consent obtained on a false promise to marry is not a valid consent. Since the framers of the law have specifically provided the circumstances when ‘consent’ amounts to ‘no consent’ in terms of Section 375 of IPC, consent for the sexual act on the pretext of marriage is not one of the circumstances mentioned under Section 375 of IPC. Hence, the automatic extension of provisions of Section 90 of IPC to determine the effect of consent under Section 375 of IPC deserves a serious relook. The law holding that false promise to marriage amounts to rape appears to be erroneous, however, the plight of the victim and the probability of the accused tarnishing the dignity of the victim and her family need to be looked at while deliberating on the question of bail.

The Court thus held “The possibility of coercion of victim’s family, repetition of similar type of offence and flee from justice cannot be ruled out in the present case. Therefore, the petitioner does not deserve to be granted bail.”

In view of the above, application was dismissed.[Rinku Pradhan v, State of Odisha, BLAPL No.6629 of 2020, decided on 05-03-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Case Briefs High Courts

Tri HC | Strong prima facie case leaves no ground for custodial immunity; Court rejects bail application in matter of Ss. 377 and 506 of IPC and S. 6 of POCSO

Tripura High Court: S.G. Chattopadhyay J., rejected a bail application which was filed in the matter of an FIR registered under Sections 377 and 506 of the Penal Code, 1860 and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO hereunder) for committing sexual assault on the son of the informant.

The mother of the victim lodged the written ejahar alleging that the accused who was a private tutor of her son, a boy aged 9 years, used to give private tuition to her son regularly in the house of the accused of the last 3 months. When the informant found her son reluctant to go to his said private tutor and she also noticed that her son was not feeling well she asked him as to what happened to him. In reply, he told his mother that he was feeling pain in his rectum because his private tutor inserted his genital organ into his rectum at the time of his taking tuition from him. Knowing this, mother of the victim had immediately taken her son to the hospital where injuries were found in his rectum.

Apprehending arrest, the accused had approached this court for pre-arrest bail.

The Court after perusing all the records observed that the victim became very upset after the occurrence and after the medical tests when they came to know about the occurrence the accused private tutor also left his home. The Court further observed that same statement had been given by her husband and one of the neighbours who came to know about the occurrence from the parents of the victim. The 9 years old victim had also unfolded the entire incidence before the Judicial Magistrate who recorded his statement under Section 164(5) CrPC. About the medical evidence it was found that the IO had already approached the medical officer to record his findings in the medical report and such report was awaited.

The Court while rejecting the bail application found that materials available on record had made out a strong prima facie case against the accused petitioner and in view of the above, this court was of the view that this was not a fit case in which the accused may be given the benefit of custodial immunity by granting pre-arrest bail.[Indrajit Ghosh v. State of Tripura, 2021 SCC OnLine Tri 112, decided on 26-02-2021]

Suchita Shukla, Editorial Assistant ahs put this story together.

Case Briefs High Courts

Bom HC | Whether absence of ‘dishonest concealment of fact’ exempt a person from being punished under S. 417 IPC? Read on

Bombay High Court: Sandeep K. Shinde, J., addressed a matter wherein the appellant challenged the conviction and sentence passed by Additional Sessions Judge for his conviction under Section 417 of Penal Code, 1860.

In the present matter, it has been stated that the appellant was convicted under Section 417 of the Penal Code, 1860.

Prosecutrix while working on the construction site be-friended with the accused and in a short span, they engaged in sexual relations, more than one time.

Further, she alleged that the appellant did not disclose his marital status but presuming, he would marry her, she submitted to his sexual desires on more than one occasion, by the time she learnt that the appellant was married, she was pregnant.

In 1990, prosecutrix lodged a complaint about the offence punishable under Section 376 IPC, pending investigation, prosecutrix delivered a baby girl.

Trial Court upon appreciating the evidence of the prosecutrix, recorded the finding, that it was a consensual act and, thus, acquitted the accused of the offence punishable under Section 376 of the IPC. Trial Judge, however, convicted the accused of the offence punishable under Section 417 of the IPC and sentenced to suffer rigorous imprisonment for six months.

Analysis and Decision

Bench while analysing the facts and circumstances of the case noted that prosecutrix submitted in her testimony that she was living on construction site and be-friended with the accused, whereafter they fell in love with each other.

Further, Court observed that the evidence of the prosecutrix did not suggest that the appellant made a false promise to marry her. Hence, it cannot be said that the appellant lured the prosecutrix to engage in sexual relations with him on the false promise of marrying her.

Question for consideration:

Whether conviction of the accused under Section 417 of the IPC is sustainable?

“…here was no ‘promise to marry’ nor intentional deception by misrepresentation or deceitfulness practised before establishing physical relationship with prosecutrix.”

In fact prosecutrix’s evidence suggested that she presumed that the appellant was not married and further assumed that he would marry her.

Therefore, the absence of ‘dishonest concealment of fact’, which is an essential ingredient of offence, within the meaning of explanation, appended to Section 415 of IPC, a conviction under Section 417 of IPC is not sustainable.

Lastly, Court concluded by stating that the impugned conviction and sentence by the Additional Sessions Judge be quashed and set aside. [Jagdish Raghunath Mankar v. State of Maharashtra, 2021 SCC OnLine Bom 269, decided on 24-02-2021]

Advocates who appeared before the Court:

Advait M. Sethna appointed advocate with Pravan A. Gohil with Eshaan Saroop for the appellant.

Sharmila Kaushik, APP for the Respondent- State.

[Section 417 IPC] Punishment for cheating.—Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

[Section 415 IPC] Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.

Analysis, Law and Decision

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Contentions

Victim’s Statement

The decision of Additional Sessions Judge

Trite Law

What factors are to be considered while granting bail?

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Factual Matrix

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Background of the Matter

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Medical Evidence

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Prosecution Case

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Decision

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