Section 376 IPC

Case BriefsHigh Courts

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 BriefsHigh Courts

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.

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[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.

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara J., allowed the petition and reduced the sentence to the period of imprisonment already undergone.

Background

The facts of the case are such that an unmarried boy aged 24 years, who is in custody for around three months, because a minor girl aged 16 years, came to his home as they love each other, stayed there, had coitus, which on the intervention of her parents led to the registration of FIR. The petitioner filed a bail petition under Section 439 Criminal Procedure Code i.e. CrPC before this High Court, wherein the bail petition was dismissed as withdrawn vide order dated 17-12-2020. Assailing the said order instant petition was filed seeking regular bail on the ground of the conduct of the victim.

Analysis

The Court observed that neither Section 376 of the Indian Penal Code, 1860, (IPC), nor Section 6 of the Protection of Children from Sexual Offences Act, 2012, (POCSO) create any restriction on grant of bail. It was further observed that after perusing the facts and circumstances, it seems that the petitioner and the victim knew each other and were romantically involved and there is no case of forcible sexual relationship; instead, the victim surrendered to the petitioner’s physical desires out of her love and affection towards him. The victim’s boldness to declare her passion towards the petitioner in the presence of her father and Police speaks volumes. Further, she also told them explicitly that she left her home out of her own free will and refused to go back with her father. These facts point out that the victim, being 16 years of age, though a minor, voluntarily left her home. Therefore, the rigors to reject bail and reasons to continue incarceration are reduced by the mitigating factors in the present case.

Observations

The Court further observed that adverting to the facts of the present case, the appellant has unintentionally admitted his culpability and the appellant has failed to propound how the elements of kidnapping have not been made out. His core contention appears to be that in view of consensual affair between them, the prosecutrix joined his company voluntarily. Such a plea, in our opinion, cannot be acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 years of age.

The court relied on judgment Satish Kumar Jayanti Lal Dabgar v. State of Gujarat, (2015) 7 SCC 359 and stated that consent of the minor is immaterial for purposes of Section 361 of IPC and provisions in the IPC and other laws like the Indian Contract Act, 1872, minors are deemed incapable of giving lawful consent. Section 361 IPC goes beyond this simple presumption and bestows the ability to make crucial decisions regarding a minor’s physical safety upon his/her guardians. Therefore, a minor girl’s infatuation with her alleged kidnapper cannot by itself be allowed as a defence, for the same would amount to surreptitiously undermining the protective essence of the offence of kidnapping. Similarly, Section 366 of IPC postulates that once the prosecution leads evidence to show that the kidnapping was with the intention/knowledge to compel marriage of the girl or to force/induce her to have illicit intercourse, the enhanced punishment of 10 years as provided thereunder would stand attracted.

The Court further relied on State of Madhya Pradesh v. Surendra Singh, (2015) 1 SCC 222

“13. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.

The Court thus observed that there cannot be any mechanical reduction of sentence unless all relevant factors have been weighed and whereupon the Court finds it to be a case of gross injustice, hardship, or palpably capricious award of an unreasonable sentence. The Court further held that “the quantum of sentence awarded to the appellant deserves to be revisited”.

Grounds for revision

  1. No force, no pre-planning, use of any weapon or any vulgar motive had been present in the act of kidnapping.
  2. The young age of the accused at the time of the incident cannot be overlooked.
  3. trial delay at different levels i.e. more than twenty-two years have passed since the incident.
  4. The present crime was one of passion. No other charges, antecedents, or crimes either before 1998 or since then, have been brought to our notice.
  5. There is no grotesque misuse of power, wealth, status or age which needs to be guarded against.

The Court thus held that “the prosecution has established the appellant’s guilt beyond reasonable doubt and that no case of acquittal under Sections 363 and 366 of the IPC is made out. However, the quantum of sentence is reduced to the period of imprisonment already undergone.”

In view of the above, petition was allowed.[Virender Singh v. State of HP, 2021 SCC OnLine HP 280, decided on 04-02-2021]

Arunima Bose, Editorial Assistant has put this story together.

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Dr Kaushal Jayendra Thaker and Gautam Chowdhary, JJ., has requested the Registrar (Listing) through the Registrar General to place the matter before the Chief Justice that periodical listing of matters be taken up in the High Court so that those who are in jail for more than 10 or 14 years, where the appeals are pending, may at least get their appeal heard which are mainly jail appeals. The Court was deciding an appeal filed by the appellant who was in jail for 20 years. The Court reversed the conviction recorded against the appellant.

“Since 20 years, the accused is in jail.”

It was expressed by the Court that the most unfortunate aspect of the instant litigation was the same being preferred through jail.

The appellant challenged the decision passed by the Court of Sessions Judge, Lalitpur, whereby he was convicted under Section 376 IPC. Further, the appellant was convicted under Section 3(2)(v) read with Section 3(1)(xii) of the Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act, 1989 and Section 506 IPC.

Prosecution case was that the prosecutrix was raped by the accused-appellant. On disclosing the incident to the family, they did not report the same to the police station due to being threatened. Later, however, the victim along with her father-in-law and husband went to the police station to report the same.

Analysis, Law and Decision

The Court noted that the Trial Judge brushed aside the fact that the report was lodged three days later, but did not give any credence to this fact and decided to go through the merits of the case.

Further, the Court noted that although there were concrete positive signs from the oral testimony of the prosecutrix as regards the commission of forcible sexual intercourse; however, the medical officer opined both in ocular as well as her written report that the prosecutrix was having five months pregnant and no definite opinion about rape could be given.

In view of the above, the Court added that there were no injuries on the private part of the lady, who was a fully grown-up person and was pregnant.

Adding, the Court stated that even if it went as per the version of the prosecutrix that the accused had gagged her mouth for ten minutes and had thrashed her on ground, there would have been some injuries to the fully grown lady on the basis of the body. However, according to the doctor’s opinion, there were no signs of forcible sexual intercourse.

In such view of the discussion, the Court was of the opinion that the chain of the incident goes to show that the prosecutrix was not raped as would be clear from the provision of Section 375 read with Section 376 IPC.

The Court held that the Trial Judge did not make any finding as to the fact of how the commission of offence under Section 376 IPC was made out. The Trial Judge had materially erred as he did not discuss what was the evidence that the act was committed because of the caste of the prosecutrix. The reasoning of the lower Court Judge were against the record and perverse as the Judge without any evidence on record on his own has felt that the heinous crime was committed because the appellant had captured the will of the prosecutrix and because the police officer had investigated the matter as an atrocities case which would not be undertaken within the purview of Section 3(2)(v) of Atrocities Act and had recorded conviction under Section 3(2)(v) of Act, which cannot be sustained.

Hence, in view of the above discussion, the Court held that the appellant was wrongly convicted resulting in reversing the impugned decision.

While concluding, the Court noted that the State of U.P. even after 14 years of incarceration does not even send the matter to the Magistrate for re-evaluation of the cases for remission as per mandate of Sections 432 and 433 CrPC.

“Sections 433 and 434 CrPC enjoins a duty upon the State Government as well as Central Government to commute the sentences as mentioned in the said section. We are pained to mention that even after 14 years of incarceration, the State did not think of exercising its power for commutation of sentence of life imprisonment of the present accused and it appears that power of Governor provided under Article 161 of the Constitution of India are also not exercised though there are restriction to such power to commute sentence. The object of Sections 432 read with Section 433 of the CrPC is to remit the sentence awarded to the accused if it appears that the offence committed by him is not so grave.”

In the Court’s opinion, in the instant case, the appellant should have been entitled to remission. The factual scenario in the present case would show that had the Government thought of taking up the case of the appellant as per jail manual, it would have been found that the case of the appellant was not so grave that it could not have been considered for remission/commutation.

Seeing the sorry state of affairs, the Court requested the Registrar (Listing) through the Registrar General to place the matter before the Chief Justice that periodical listing of matters be taken up in the High Court so that those who are in jail for more than 10 or 14 years, where the appeal have been pending, may at least get their appeal heard which are mainly jail appeals.[Vishnu v. State of U.P., 2021 SCC OnLine All 133, decided on 28-01-2021]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjay Dhar J., while allowing the present bail application, observed that given to the relationship shared between the prosecutrix and the petitioner, it cannot be determined at once whether physical relationship built therein was forced or consensual.

Through the present application, petitioner-accused has sought bail in the case arising out of an offence under Section 376 Penal Code, 1860 registered with Police Station, Katra. It is the case of prosecutrix that the petitioner cohabited and thereby developed physical relation with her on a false pretext of marriage. Upon coming to know that the petitioner is to enter into a wedlock with some other woman, the prosecutrix narrated the entire incident to her mother upon which a complaint under Section 376 IPC was registered against the petitioner. According to the petitioner, the allegations made in the FIR are vexatious and baseless and that no offence under Section 376 IPC is made out against him as even if it is assumed that there was any physical relationship between the petitioner and the prosecutrix, the same was consensual. Further, the petitioner has denied having made any false promise of marriage to the prosecutrix.

Court summarized the principles governing the grant or refusal of bail in the following points;

  1. The gravity of the offence and the nature of the accusation including severity of punishment in the case of conviction.
  2. The position and status of the accused vis-à-vis the victims or witnesses.
  3. The likelihood of the accused fleeing from justice.
  4. The possibility of the accused tampering with the evidence and/or witnesses and obstructing the course of justice.
  5. The possibility of repetition of the offence.
  6. The prima facie satisfaction of the Court in support of the charge including frivolity of the charge.
  7. Stage of the investigation.
  8. Larger interest of the public or the State.

Further, the Court placed reliance on the case of, Mahipal v. Rajesh Kumar and another, (2020) 2 SCC 118, wherein it was said, “…No straight jacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused sub-serves the purpose of the criminal justice system.”

 Another case bearing similar facts was cited by the Court, Uday v. State of Karnataka, (2003) 4 SCC 46, wherein the Supreme Court observed,

“It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances, the promise loses all significance, particularly when they are over come with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances, it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent”

It was conclusively observed by the Court,

“The mystery that has to be unravelled by the investigating agency in such circumstances would be whether the consent of the prosecutrix to have sexual intercourse with petitioner was a consensual and deliberate choice on her part or it was obtained on account of misconception of fact on the basis of a false promise of marriage. This Court would not like to comment on this aspect of the matter at this stage, but then the material on record does suggest that there was deep-seated love between the petitioner and the prosecutrix.”

While allowing the present bail application Court said,

“Having regard to the long standing love affair between the prosecutrix and the petitioner coupled with the manner in which they have lived with each other for months together, a prima facie case for grant of bail is made out.”  [Rahul Raina v. Union Territory J&K, 2021 SCC OnLine J&K 13, decided on 27-01-2021]

Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Ved Prakash Vaish and Vikas Kunvar Srivastav, JJ., expressed that:

“Justice demands that courts should impose punishment fitting to the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.”

Appellant was convicted for the offence under Section 376 of the Penal Code, 1860, though he was acquitted for the offence under Section 506(2) of the Penal Code, 1860.

Father of the Prosecutrix had lodged a complaint that his daughter had gone for easement by the roadside and did not return to the house for a long time and on inquiry, his son Kalim Ahmad aged 13 years informed that Prem Chamar forcibly took the prosecutrix on his bicycle.

On reaching outside the village, he saw his daughter (prosecutrix) weeping who disclosed the entire incident and found the bloodstains on her undergarments and concluded that Prem Chamar had committed rape on his daughter.

In light of the above sequence of events, offence under Section 376 IPC was registered.

Trial Court found the appellant to be guilty of having committed the offence under Section 376 IPC and sentenced the appellant.

On being aggrieved with the above, appellant preferred the present appeal.

Analysis and Decision

“It is settled law that refusal to act on the testimony of the victim of sexual assault in absence of corroboration as a rule, is adding to insult to injury.”

 Bench further in light of the above expressed that, a girl or a woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred.

“A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case.”

 Court referred to the decisions of Supreme Court in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 and Takhatji Hiraji v. Thakore Kubersing Chamansingh, (2001) 6 SCC 145, Vijendra Singh v. State of U.P., (2017) 11 SCC 129, State of H.P. v. Gian Chand, (2001) 6 SCC 71, Aslam v. State of U.P., (2014) 13 SCC 350, State of Haryana v. Basti Ram, (2013) 4 SCC 200, Raju v. State of M.P., (2008) 15 SCC 133.

High Court stated that Supreme Court had observed in Raju v. State of M.P., (2008) 15 SCC 133, that it cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication. There is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.

“Courts while trying an accused on the charge of rape, must deal with the case with the utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of the witnesses which are not of a substantial character.”

 Bench noted that considering the statement of the prosecutrix (PW2), a girl of nine years, corroboration from an independent source of the evidence of prosecutrix is not required. The evidence of the prosecutrix establishes that the appellant committed rape on her.

Court opined that the trial court did not commit any mistake in convicting the appellant for the offence under Section 376 IPC. Accordingly, appellant’s conviction was upheld.

Sentence

With regard to the question of sentence, Court stated that it may be mentioned that the protection of society by stamping out criminal activity is an essential function of State.

The facts and given circumstances of each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of convict and all other attending circumstances are relevant facts for imposing appropriate sentence.

Hence, the object of sentencing is that the offenders do not go unpunished and the justice be done to the victim of crime and society. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.

Therefore, in the instant case, Court held that the interest of justice would be met if the sentence imposed by trial court would be modified to that of rigorous imprisonment for 10 years and to pay a fine of Rs 2,000.

Concluding the decision, Court in view of the above discussion dismissed the appeal. [Prem Chamar v. State of U.P., Criminal Appeal No. 1078 of 2012, decided on 22-01-2021]

Case BriefsHigh Courts

Madras High Court: R. Pongiappan, J., observed that:

“…saptpadi for Hindus is the necessary requirement, which if completed make a marriage valid in the eyes of law provided the parties are of sound mind and don’t fall within the prohibited degrees of relationship with each other.”

Instant appeal was filed to set aside the judgment and conviction passed by Sessions Judge.

Accused was charged for the offences under Sections 366 and 376(1) of Penal Code, 1860.

Analysis and Decision

Bench noted that in respect to alleged marriage, PW 10 who is the victim girl had stated before the trial Court that on the date of occurrence, both herself and the accused ran away from the village and accused tied thali to her. In light of the said evidence, it appeared that the victim girl had also consented for the marriage.

Additional Public Prosecutor appearing for the State contended that since the alleged marriage had happened to the victim was at the age of 15 years and 10 months, the said marriage is not legally valid and also the same has not been solemnised as per Hindu rites and customs.

This Court also found that the girl had not completed the age of 16 years at the time of above-stated alleged marriage for which she consented

Further, the Bench observed that during the time of occurrence, the accused had induced the victim girl to go to Palani and afterwards, he tied a thali, Section 361 of IPC was referred which talks about the “kidnapping from lawful guardianship”.

Applying the abovesaid provision along with Section 366 IPC, Court stated that the victim girl was kidnapped for the purpose of marrying her.

Void Marriage

“… a marriage in which either the girl is below 18 years of age, or the boy is below 21 years of age is child marriage.”

Court expressed that in our country, the essential condition for the validity of any marriage is solemnization of the religious ceremonies prescribed by the religion to which the parties belong.

In respect to the instant matter, it was found that the accused and victim girl had not performed the necessary religious ceremonies prescribed by the religion and since the victim girl was of 16 years of age, the alleged marriage with the accused was void.

Sexual Intercourse

With regard to alleged forcible sexual intercourse, it was found that victim girl stayed the accused for a considerable period but during that time, she did not seek for help or even try running away from the place, the said attitude of the victim girl proves that the alleged sexual intercourse had happened only with her consent.

Section 375 IPC

As per the definition of Section 375 IPC, since the victim girl had not completed the age of 18 years at the time of occurrence, according to 6th description of the said Section, Court found that the accused had committed an offence of rape.

Therefore trial Court’s finding of charging the accused under Sections 366 and 376(1) IPC was within four corners of law and no infirmity was found in the said findings.

Since both the victim girl and accused got married themselves and separated along with respective spouses, Court modified the sentence as 5 years instead of 7 years under Section 366 IPC and for the offence under Section 376(1) IPC, Court modified the sentence as 7 years instead of 10 years.

Hence, the Criminal Appeal was partly allowed.[Prakash v. State, 2020 SCC OnLine Mad 6025, decided on 30-11-2020]

Advocates who appeared before the Court:

For Appellant: B. Thirumalai for S.Nagarajan

For Respondent: S. Karthikeyan Additional Public Prosecutor

Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J., observed that it is difficult to accept that continuing with an intimate relationship, which also involves engaging in sexual activity over a significant period of time, can be construed as involuntary and secured not by affection but only on the lure of marriage.

The instant appeal was filed impugning the judgment wherein the accused was acquitted of the offences punishable under Section 417/376 of the Penal Code, 1860.

Prosecutions case rested almost entirely on the statements of the testimony of the complainant. From the testimony, it was apparent that no dispute existed between the appellant and accused and the relationship was consensual.

Bench found no infirmity with the trial court’s decision, as a bare reading of the complaint made by the appellant as well as her testimony clearly indicated that even according to her, her relationship with the accused was consensual.

Her allegation that her consent has been vitiated on account of having been obtained by misrepresentation, is clearly, unsustainable.

In Supreme Court’s decision of Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608, it was held that:

“Court has repeatedly held that consent with respect to Section 375 of the IPC involves an active understanding of the circumstances, actions and consequences of the proposed act.

Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman’s “consent”. On the other hand, a breach of a promise cannot be said to be a false promise.”

Trial Court had noted that according to the complaint, the appellant stated that she had a physical relationship with the accused in the year 2008 and after 3-4 months, thereafter he had promised to marry her.

In view of the said statement, her allegation that her consent to engage in sexual activity is vitiated, as the same was secured on a promise to get married is —UNSUSTAINABLE.

Inducement to have a physical relationship by promising marriage and the victim falling prey to such inducement may be understandable in the context of the moment.

A promise of marriage cannot be held out as an inducement for engaging in sex over a protracted and indefinite period of time.

Bench also observed that the present appeal was filed after an inordinate delay of 640 days and no credible explanation was placed in that regard.

Hence, the appeal was unmerited and it was accordingly dismissed. [X v. State (Govt of NCT of Delhi), 2020 SCC OnLine Del 1631, decided on 15-12-2020]

Advocates who appeared in the matter:

Appellant: Saurabh Kansal, Advocate

Respondents: Ravi Nayak, APP for State with SI Preeti, PS Malviya Nagar.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sadhana S. Jadhav and N.J. Jamadar, JJ., observed a matter wherein an adolescent girl who was employed as a maid to earn a livelihood was sexually harassed by the son of her owner.

Appellant was convicted for the offence punishable under Section 376 of the Penal Code, 1860 by the Lower Court.

Factual Matrix

X, a helpless adolescent girl was working as a maid servant to earn her livelihood. She had approached the police station to lodge an FIR.

She alleged that her father had got her employed as a maid with Jahangir owner of Hotel Sai-Village at Shirdi. Mr Jahangir’s wife and two children i.e. present accused 1 and his sister Farhad were original residents of Geeta Bhavan, Bombay. Jahangir’s wife, i.e. accused 2 had brought X to Bombay to work at their residence. After a few days, the sister of the victim was also employed with the mother of accused 2.

Victim alleged that she was molested and ravished by accused 1. Due to fear and apprehension she couldn’t disclose the whole truth to accused 2 and hence ended up stating that she was being teased by accused 1.

She also had conceived pregnancy from accused 1. All efforts to abort the foetus were taken by accused 2. Later she was admitted to Asha Sadan after which she was admitted to hospital and gave birth to a child. Accused 2 asked the victim to leave the child at Asha Sadan but the victim refused to do so.

Hence she was allowed to take the child along.

Victim’s child was snatched by the sister of accused 2 with the assurance that it would be returned in a few months.

Accused 2 kept harassing the victim and did not allow her to return to her native place. Thereafter, the victim somehow eloped from the place and returned to her native place and lodged the FIR.

Analysis and Decision

Bench while considering the facts and circumstances of the matter, stated that it is a settled law that the evidence of rape victim stands at par with the injured witness.

Court held that evidence of the victim of sexual offence deserves to be considered with great weightage. The facts and circumstances corroborate the evidence of the victim and leave no room for suspicion that the victim was ravished by none other than the accused 1.

A rape victim is left with a feeling of degradation, humiliation and guilt for the whole life.

Offence of rape is a heinous offence which cannot be viewed with any leniency. Once the Court finds the evidence of victim to be trustworthy, conviction would follow and said conviction should be followed by a sentence proportionate to the gravity of the offence. Social position of the accused is totally irrelevant.

Supreme Court has time and again said that the society cannot look upon a woman with derision, depravity, contempt and as an object of desire.

Demise of the Child

Court observed in the instant case that, the injury sustained by a rape victim is not just a physical injury, but an injury to her womanhood. She is forced to live with indignation throughout her life and in the present case, she had given birth to a child who lived with her for hardly 6 days and thereafter, the child was brutally snatched, abandoned and had died.

A scar on the Victim

Victim was not even informed of the demise of her child, but the said injury would definitely leave a scar on her further development as a person.

It is not just a physical injury, but injury to the soul of a victim. In the present case, Ms X had attained motherhood at a young age of 15 years.

Hence, in view of the above, appeal deserves to be dismissed.

Further, Criminal Appeal No. 919 of 2006 was filed by the State with regard to meager sentence imposed upon accused 1 despite his conviction for an offence punishable under Section 376 IPC.

The Court is duty-bound to assign special and adequate reason for imposing a sentence lesser than the minimum.

Heinous Offence

Bench stated that High Courts cannot be oblivious of the impact of such a heinous offence.

The object of deterrence in the commission of such heinous offence cannot be lost sight of while sentencing. Once the accused is convicted, the victim also deserves justice.

Dishonour of a woman needs to be eliminated and judicial pronouncement, which imposes a disproportionately lenient sentence, needs to be set aside.

Sessions Court had acquitted the accused 1 despite there being material evidence. Therefore, it was incumbent upon the State to file an appeal against acquittal, in view of the fact that the victim was subjected to harassment, she was brutally assaulted, she was forced to abandon her child, which in fact is an offence punishable under Section 317 IPC.

While parting with the decision, Court stated that the quantum of sentence of the accused convicted under Section 376 IPC cannot be viewed with leniency. Hence, the sentence imposed upon the respondent/accused 1 deserves to be enhanced and appeal for enhancement deserves to be allowed. [Faiyaz v. State of Maharashtra, 2020 SCC OnLine Bom 3561, decided on 08-12-2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah*, JJ refused to interfere with the conviction of a man for sexually assaulting a mentally deficient woman.

“A person suffering from mental disorder or mental sickness deserves special care, love and affection. They are not to be exploited. In the present case, the accused has exploited the victim by taking disadvantage of her mental sickness/illness. Therefore, no interference of this Court against the impugned judgment and order passed by the High Court convicting the accused is called for.”

Brief Background

In 2008, the 19-year-old prosecutrix, was sexually assaulted by the accused in the jugle where they both used to go to graze cattle. The accused threatened the prosecutrix not to disclose the incident to anyone and due to fear and due to forgetting the same and further due to mental weakness, she did not disclose about the incident to anyone including her mother. When she was medically examined, it was found that she was 31 weeks pregnant. After she gave birth to a female child, blood samples of the prosecutrix, the baby and the accused were taken for DNA test.  As per report, accused was the biological father of the female child.

The trial Court acquitted the accused mainly on the ground of delay in lodging the FIR and also on the ground that the prosecutrix was not mentally unsound to understand the consequences and what was happening.

However, the Himachal Pradesh High Court sentenced the accused to undergo seven years R.I. with fine of Rs. 10,000/- and in default of payment of fine, further six months R.I. under Section 376 IPC and four years R.I. with fine   of Rs.5,000/- and in default of payment of fine, further three months R.I. under Section 506 IPC.

Analysis

On re-appreciation of evidence by the High Court

The Court held that in the facts and circumstances of the case the High Court is justified and, as such, has not committed any error in reversing the order of acquittal passed by the learned trial Court and convicting the accused for the offences under Sections 376 and 506 IPC. Being the first appellate Court, the High Court was justified in re-appreciating the entire evidence on record and the reasoning given by the learned trial Court.

On the mental condition of the prosecutrix

“Merely because the victim was in a position to do some household works cannot discard the medical evidence that the victim had mild mental retardation and she was not in a position to understand the good and bad aspect of sexual assault.”

Is language material for conducting IQ tests?

In   the   crossexamination, the Medical Expert specifically stated that the language is not material in the tests because these are independent of language. IQ of a person can be known on the basis of the questions, activities and the history of a patient. Therefore, even if there might be some contradictions with respect to language known by the victim, in that case also, it cannot be said to be the major contradictions to disbelieve the entire medical evidence on the mental status of the victim.

On the culpability of the accused

On evidence, it was established and proved that the victim was mentally retarded and her IQ was 62. Holding that the accused had taken disadvantage of the mental illness and low IQ of the victim, the Court noticed

“It is required to be appreciated coupled with the fact that the accused is found to be the biological father of the baby child delivered by the victim. Despite the above, in his 313 statement the case of the accused was of a total denial. It was never the case of the accused that it was a case of consent.”

Therefore, considering the evidence on record, the Court upheld the decision of the High Court wherein it was observed that case would fall under Section 375 IPC. Further, even as per clause fifthly of Section 375 IPC, “a man is said to commit rape”, if with her consent when, at the time of giving such consent, by reason of unsoundness of mind, is unable to understand the nature and consequences of that to which she gives consent.

On reduction of sentence

It was contended on behalf of the accused that he has already undergone four years RI out of seven years RI awarded to him and is married and has two children and therefore a lenient view may be taken. The Court rejected this contention and said

“…as such the High Court has also taken a very lenient view by imposing the minimum sentence of seven years RI.  It is required to be noted that it is a case of sexual assault on a victim whose IQ was 62 and was mentally retarded and that accused has taken undue advantage of the mental sickness/illness of the victim.”

[Chaman Lal v. State of Himachal Pradesh, 2020 SCC OnLine SC 988, decided on 03.12.2020]

*Justice MR Shah has penned this judgment

For Appellant: Advocate Radhika Gautam, learned Advocate has appeared for

For State: Advocate Sarthak Ghonkrokta

Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J., observed that If an HIV positive person is aware of their condition and has unprotected sex, the person can be punished under Section 270 of Penal Code, 1860.

Appellant was convicted by the trial court under Sections 376/313/307 of Penal Code, 1860.

Appellant was found guilty of raping his stepdaughter and since the appellant was found to be infected with Human Immunodeficiency Virus (HIV Positive) and was convicted for an offence punishable under Section 307 of IPC — attempt to murder.

Trial Court also observed that since the appellant was aware that his acts could result in transmitting the potentially lethal disease, he had knowingly committed an act, which if resulted in transmitting of HIV and consequently, the death of the victim from that disease, it would amount to murder.

Analysis, Law and Decision

Conviction for Rape — offence punishable under Section 376 of IPC

Whether there is any doubt that the appellant is guilty of committing an offence punishable under Section 376 IPC?

Considering that the prosecutrix gave varied statements at various points of time and had changed her stand on oath. The testimony of the prosecutrix could not be considered as wholly reliable and the trial court erred in proceeding on the said basis. However, Court also denied accepting that she was a wholly unreliable witness.

Further, in view of the above Court stated that it would be unsafe to rely on the testimony of the prosecutrix without any corroborative evidence and hence solely on her testimony, the appellant cannot be convicted.

Bench made another observation that,

in the instant case, there is unimpeachable corroborative evidence that the petitioner had raped the prosecutrix. The DNA Fingerprints of the Products of Conception and the DNA Fingerprints generated from the blood sample of the petitioner conclusively established that the appellant was the biological father of the abortus.

Repeatedly Raped

It is also material to note that the prosecutrix had in the first instance, when she was brought to the Community Care Centre, reported to the nurse that her stepfather had been repeatedly establishing physical relations with her and had been sexually abusing her in front of her siblings.

Even the medical report recorded:

“Repeated Rape by HIV positive stepfather after the death of mother suffering from HIV/AIDS in Jan 2011. Patient was overdue by one week in April 2011 when she was given an injection to get back her periods back. She bled with clots and pieces. UPT done showing pregnancy positive result.”

High Court concurred with the decision of the trial court that the evidence obtained in the present case clearly established beyond any reasonable doubt that the appellant had engaged in sexual intercourse with prosecutrix without her consent and had committed an offence punishable under Section 376 IPC.

Conviction for causing miscarriage – offence punishable under Section 313 IPC

Whether it is established that the appellant is guilty of committing an offence punishable under Section 313 of the IPC?

Trial Court had held that the appellant was guilty of causing miscarriage to the prosecutrix by administering her pills. It is relevant to note that though the prosecutrix was in Sneh Sadan when she was allegedly administered pills by the appellant and the same was allegedly informed to doctors immediately, no action was taken by any of the doctors in this regard.

Bench stated that there is no material to indicate as to what pills were administered to the prosecutrix. Although three medical doctors were examined, none of them mentioned that in their opinion the prosecutrix‘s miscarriage was induced by the said pills.

Hence, the Court stated that there was no description of the pills allegedly administered to the prosecutrix. There is nothing on record to remotely indicate as to what was the substance that was allegedly administered to the prosecutrix.

Court was of the view that there was insufficient evidence to conclude that the appellant had committed the offence of causing the prosecutrix‘s miscarriage. Therefore, the appellant‘s conviction for committing an offence under Section 313 of the IPC could not be sustained.

Conviction for an attempt to murder – offence punishable under Section 307 IPC

Bench did not concur with the view that the appellant was guilty of an offence punishable under Section 307 IPC for several reasons.

Firstly, that the import of holding so would also mean that any sexual activity by a person infected by HIV is punishable under Section 307 of the IPC, notwithstanding that his or her partner has consented to such sexual activity. This is because the culpable act under Section 307 of the IPC does not cease to be one if the victim of such an act has also consented to the same.

Secondly, the trial court had drawn support for its conclusion by mentioning that several countries prosecute cases of transmission of HIV and non-disclosure of HIV status. However, the court had not examined the specific provisions or the rationale used in various jurisdictions for prosecuting non-disclosure of HIV positive status as general offences.

In cases of actual transmission where an HIV Negative person acquires the said disease as a result of engaging in any sexual activity with an HIV Positive partner, the offender is prosecuted for causing bodily harm.

In certain cases where an HIV Positive person fails to disclose his status and engages in any sexual activity, he/she may be prosecuted for sexual assault as in such cases, the consent of the other person to engage in sexual intercourse is vitiated and the sexual act can be construed as one without consent.

In cases of sexual assault or rape, it is widely accepted that the HIV Positive status of the offender is an aggravating factor to be considered while sentencing the offender.

Thirdly, on a plain reading of Section 307 of IPC, an offence under Section 307 IPC is not made out.

Section 307 of the IPC punishes any act which is done by a person with such intention or knowledge and under the circumstances that by that act cause death, the persons committing such act would be guilty of murder.

Bench observed that clearly, in the facts of the present case, the appellant had not raped the prosecutrix with an intention of causing her death.

According to the prosecution, the appellant was lonely after the death of his wife and he had sexually preyed on his stepdaughter (as allegedly disclosed by him in his disclosure statement).

It is relevant to note that one of the key ingredients of the second, third and fourth limb of Section 300 of the IPC is that the culpable act is so inherently dangerous as is likely to cause death; or is sufficient in the normal course of nature to cause death; or in all probability, it would cause death.

The assumption that penetrative sexual assault would in all probability lead to transmission of the disease, which in all probability would result in the death of a healthy partner is not established. In the facts of the present case, no evidence whatsoever was led to establish the probability of the prosecutrix being transmitted the said disease.

In the given circumstances, the decision of the Trial Court is largely based on surmises and impressions, without analysis of any scientific data to assume that sexual intercourse by an HIV positive patient would in all probability lead to the demise of his partner.

Fourthly, the appellant was medically examined and there is no evidence to indicate that he was a carrier of Herpes Simplex Virus. Thus, there is no evidence that the appellant would have transmitted the said disease to the prosecutrix.

Lastly, this Court is of the view that the Trial Court had erred in proceeding on the basis that provisions of Section 270 of the IPC would not be applicable.

In Supreme Court’s decision of Mr ‘X’ v. Hospital ‘Z’: (1998) 8 SCC 296, a case was considered where the respondent hospital had disclosed that the appellant was HIV positive to his fiancé. As a result of such disclosure, the appellant‘s marriage to his fiancé was called off. Appellant instituted an action to recover damages on the ground that the information regarding his HIV positive status was required to be kept secret under medical ethics and was disclosed illegally. The appellant pleaded that since the hospital had breached its duty to maintain confidentiality, they were liable to pay damages to the appellant.

“…the reasoning that unprotected sexual engagement by an HIV positive person, who is aware of the nature of his disease, can be termed as a negligent act, which he knows is likely to spread the infection of a disease that endangers life and is thus, liable to be punished under Section 270 of the IPC is persuasive and cannot be faulted.”

Court opined that even if the Trial Court was of the view that it would not be apposite to frame charges under Section 270 of the IPC, the same did not necessarily warrant that charges be framed under Section 307 of IPC.

In view of the above, the impugned judgment to the extent that it convicts the appellant for committing an offence punishable under Section 376 of the IPC was upheld.

Punishment for offences under Sections 313 and 307 of IPC was set aside. [Sabhajeet Maurya v. State (NCT of Delhi), 2020 SCC OnLine Del 1525, decided on 26-11-2020]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sadhana S. Jadhav and N.J. Jamadar, JJ., pens down the decision in the instant matter with the thought that “protector turns predator”.

The order of the Special Judge, Greater Bombay has been challenged, hereunder the appellant has been convicted for the offences punishable under Sections 6 and 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). Further, in view of Section 42 of the POCSO Act, no separate sentence was imposed upon the appellant for the offence punishable under Section 376 of Penal Code, 1860 despite being found guilty.

The victim was 11 years old at the time of the alleged occurrence. Victim had come to reside with the brother of the accused whose wife was a distant relative of the victim.

Victim apprised the Court about the circumstances in which she came to reside in the house of the brother of the accused and found herself with the accused since 23-10-2014. Victim further informed that during those 4 days, while the victim and the accused were at home, the accused undressed and asked her to undress as well.

Victim was exploited on 3-4 occasions and stated the details of the same. Further, she was also threatened that in case she discloses the said incidents, then the accused will bring 3-4 more people to exploit her and thereafter kill her.

A victim stands on higher pedestal than an injured witness.

Bench stated that it is well settled that the victim of a sexual assault is not an accomplice. Nor is it an immutable rule of law that the testimony of a survivor cannot be acted without corroboration in material particulars.

Reference to the Supreme Court decision in Mohd. Imran Khan v. State Government (NCT of Delhi), (2011) 10 SCC 192, wherein it was observed that:

“It is trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury.”

“…If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.”

Further, the Court recorded that indeed there were no signs suggestive of the use of force and vaginal/anal intercourse, nor any external injuries were noticed on the person of the victim.

In view of the above background, Special Judge was persuaded to hold that there was no material to show that the victim was subjected to penovaginal intercourse by the accused. However, there was evidence to indicate that the accused committed penetrative sexual assault by way of digital penetration and sexual assault by touching and pressing breasts of the victim.

In the High Court’s opinion, the Special Judge’s approach was justifiable.

The evidence can not be appreciated bereft of the circumstances and context.

The hapless and unsuspecting victim found herself at the mercy of the accused, with nobody else in the house. Hence the victim’s claim that the accused threatened her with dire consequences and subjected her to sexual exploitation cannot be discarded.

Further adding to the observations, Bench stated that there was no material to indicate, nor an endevour was made to elicit in the cross-examination of the victim ‘M’, that the latter offered resistance. In the absence of forcible resistance, the absence of injury on the person of the victim is not sufficient to discredit the victim’s evidence.

Therefore Court found no infirmity in the impugned judgment and order of conviction for the offences punishable under Sections 6 and 10 of the POCSO Act and Section 376 of IPC.

A.P.P., P.P. Shinde submitted that no leniency should be given to the accused as he preyed a child of 11 years and left a permanent scar on the mind of the victim.

There can be no duality of opinion that the sexual assault cases are required to be dealt with sternly and the offenders deserve no leniency.

The evidence laid in the instant case undoubtedly justifies the finding of penetrative sexual assault within the meaning of clause (b) of Section 3 of the Pocso Act, 2012. The act also falls within the dragnet of clause (b) of Section 375 of the Penal Code which defines the offence of rape, as substituted by the Criminal Law (Amendment) Act, 2013.

Therefore, a sentence of rigorous imprisonment of 10 years, which is the minimum prescribed by Section 6 of the POCSO Act, would meet the ends of justice.

Impugned Judgment of Conviction for the offences punishable under Sections 6 and 10 of POCSO Act, 2012 and Section 376 (2) of IPC stands confirmed.[Fazal Mehmud Jilani Dafedar v. State of Maharashtra, 2020 SCC OnLine Bom 3380, decided on 26-11-2020]

Advocates who appeared in the instant matter:

For Appellant: Sayed Shabana M. Ali

A.P.P. for the State: P.P. Shinde

Case BriefsHigh Courts

Bombay High Court: Vinay Joshi, J., altered the conviction for rape and penetrative sexual assault to an act of aggravated form of sexual assault punishable under Section 10 of the POCSO Act in light of touching the breast of the child.

Appellant aged 67 years was convicted under Sections 376 and 450 of the Penal Code, 1860 and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

Accused was acquitted from the charge of committing offence punishable under Section 377 IPC.  Accused challenged the conviction in the instant appeal.

Informant was residing along with his family members, including his daughter/victim girl aged 8 years. Two sons of the informant had been to their school and the minor victim was alone at the house as she was ill. In the afternoon the informant returned to his house for lunch and found that the house was locked from within, therefore, he peeped from the window and saw that appellant by lifting frock of the victim was moving his hand on her neck, cheek and chest.

Later, the informant shouted to open the door and hurriedly left the place. Victim disclosed that the accused moved his hand on her body, kissed her as well as put his finger in his anal part.

In regard to the above reference, informant lodged a report against the said incident.

Special Judge framed charge under relevant provisions of IPC and POCSO Act further on the appreciation of evidence held that the prosecution succeeded in proving the offence punishable under Sections 376 and 450 IPC, Sections 4 and 6 of the POCSO Act.

The prosecution case, in short, is about rape and aggravated penetrative sexual assault by the accused on a minor victim aged 8 years.

Analysis and Decision

Bench stated that the act of accused of touching the breast of the victim with sexual intent amounts to an aggravated form of sexual assault, which is punishable under Section 10 of the POCSO Act.

Since the medical evidence nowhere supported that there was insertion or penetration of finger into the anal region, it is doubtful whether the accused penetrated his finger into the anal region of the victim.

If two view emerges from the situation, the view favourable to the accused would take precedence. On mere assumption or possibility, the accused cannot be convicted.

 All the sexual assaults on children below 12 years amount to an aggravated form of sexual assault.

With regard to the age of the accused, which is near about 70 years, the imprisonment of 5 years would meet the ends of justice. From the set of circumstances laid down, it is clear that the house-trespass was merely in order to commit an offence punishable with imprisonment, which is punishable under Section 451 of the Penal Code, 1860.

In view of the above, criminal appeal as partly allowed.

Conviction under Section 376 of IPC and Sections 4 and 6 of the POCSO Act, is hereby quashed and set aside, instead the accused was convicted for the offence punishable under Section 10 of the POCSO Act and.

Further, instead of conviction under Section 450 IPC, the appellant is convicted for the offence punishable under Section 451 of the IPC.

Hence appellant will be entitled to set off under Section 428 of the CrPC. [Tukaram Ashruji Khandare v. State of Maharashtra, 2020 SCC OnLine Bom 2802, decided on 22-10-2020]

Advocate for the appellant, R.V. Gahilot and H.R. Dhumale, A.P.P. for the respondent.

Case BriefsHigh Courts

Patna High Court: In an application challenging the order of rejection of bail passed by Additional Sessions Judge, Ashwani Kumar Singh, J., set it aside enlarging the appellant-accused on bail.

The instant application has been filed by the appellant under Section 101(5) of the Juvenile Justice (Care & Protection of Children) Act, 2015 (JJ Act) challenging the order dated 24-09-2019 passed in Child Case No. 6 of 219 by the Additional Sessions Judge, Buxar in connection with P.S. Case No. 21 of 2019 registered under Section 376 of the Penal Code, 1860 and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

The factual background in the present matter is that serious allegations have been placed on the appellant for committing the act of rape on the victim aged 13. The FIR was registered on the basis of the written report submitted by the mother of the victim subsequent to which, the appellant was arrested and produced before the Special Judge (POCSO), Buxar. Further, the statement of the victim was recorded under Section 164 of the Criminal Procedure Code, 1973.

Contradictory to the FIR, the victim made no mention of rape in her statement and spoke of a meeting between the appellant and herself.

Later, a petition was filed by the appellant before the Special Judge, Buxar claiming the on the day of occurrence he was a juvenile. During this period of time, a bail application was filed which was adjourned to different dates. With the bail application still pending, the Special Judge (POCSO), Buxar sent the case to Juvenile Justice Board, Buxar for the examination of his claim of juvenility. The Board determined the appellant’s age and declared him a juvenile vide order dated 02-08-2018. Subsequently, the Board made an assessment of the physical and mental ability of the appellant under Section 15 of the JJ Act and found it fit to transfer the appellant’s case to Children’s Court and accordingly, transferred the entire case record to the court of Special Judge (POCSO), Buxar for the trial of the appellant as an adult.

Later on, the Special Judge (POCSO), Buxar vide order dated 24-09-2019 rejected the bail application of the appellant. Upon careful perusal of the impugned order dated 24-09-2019, this Court observed that the bail application has been rejected primarily due to the serious nature of the offence and the charge-sheet that has been filed against the appellant. The trial court has erred by overlooking the victim’s statement under Section 164 CrPC. Also, undue importance has been given to the inconclusive medical report which only raises the possibility of a sexual act with the victim. The manner in which the alleged crime was committed hasn’t been indicated anywhere. The report of the probation officer seems completely hypothetical and beyond any reasoning. The Court also relied on the judgment in the case of Lalu Kumar v. State of Bihar, 2019 SCC OnLine Pat 1697.

In view of the above, the Court found the impugned order unsustainable and set it aside. In addition to this, the appellant has been released on bail. The appeal has been allowed.

[X9 v. State of Bihar,  2020 SCC OnLine Pat 1665, decided on 15-10-2020]

*The name of the appellant-accused has been withheld as per the statutory provisions prescribed under Section 74 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Yashvardhan Shrivastav, Editorial Assistant has put this story together

Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J., while addressing a petition with regard to the rape of a minor girl, made an observation that:

“Rape” is just not a forcible intercourse, it means to inhabit and destroy everything.

A minor victim girl registered a complaint based on which offences for Sections 376, 354-D, 506 of Penal Code, 1860 were invoked against the applicant.

Since the complaint was registered by a minor, provisions of Sections 3, 4, 11 and 12 of the Protection of Children from the Sexual Offences Act, 2012 were also invoked.

Victim who was acquainted with the applicant who was a business partner of the victim’s father.

She alleged that from the month of October, 2019, the applicant started texting her on her Whatsapp and expressed his liking towards her and also sought sexual favours from her, which was turned down by the victim girl.

Applicant sent a message to the victim stating that he wanted to discuss an important family matter with her and asked her to meet the next day. Next day, when she was waiting for a bus to arrive the applicant approached her on a two-wheeler and she was asked to accompany him.

She was then taken to a nearby farmhouse and by making an emotional appeal and threatening that she if did not agree, he will commit suicide, she was forced to commit sexual intercourse with him. She was also threatened that she should not disclose the incident to her parents and if she does so, it would adversely affect the partnership business.

Again after the above incident, the applicant forced the victim in a similar manner and indulged with her physically.

After a few days of the second incident, the victim disclosed it to her parents and after due deliberation, the report was lodged.

Bench on perusal of the above stated that it is not very unlikely that a young girl aged 17 years became disquieted after the act of ravage and did not gather the courage to speak to her parents about the said incident.

The victim girl was also conscious of the fact that the applicant was a business partner of her father.

The whole episode of the applicant indulging with a minor girl, a daughter of his business partner itself speak of his intention.

FIDUCIARY RELATIONSHIP

Court further observed that the applicant took advantage of the fiduciary relationship, which he shared with the victim girl and put her in a vulnerable situation.

CONSENT

Assuming but not accepting that the victim girl consented for maintaining the physical relationship, her consent is not free consent.

Further, adding to the above, penal code does not recognise the consent by a minor girl to be consent in the eyes of law and in the present case, in the backdrop of narration by the victim, her consent can naturally be said to be induced by a fiduciary relationship which she shared and on that count also, it is not free consent.

“Offence of rape as defined in Section 375 of the IPC, made punishable under Section 376, is attracted when a man commits an act of rape without the consent of the girl or when such consent is obtained by putting her in fear of death or of hurt. The hurt may be physical or mental.”

The consent of the victim girl under 18 years of age is also of no legal consequences when it comes to an offence of rape punishable under Section 376 IPC.

In view of the above observations, High Court did not release the applicant on bail and rejected the bail application. [Amit Raosao Patil v. State of Maharashtra, 2020 SCC OnLine Bom 917, decided on 09-09-2020]

Case BriefsHigh Courts

Allahabad High Court: Suresh Kumar Gupta, J., while addressing the present jail appeal held that,

“…in cases involving sexual assault/rape, it is generally difficult to find any corroborative witnesses, except the victim herself and therefore, the evidence of the victim is sufficient for conviction unless there exist compelling reasons for seeking corroboration.”

Appellant has been convicted and sentenced under Section 376 of Penal Code, 1860 for 10 years rigorous imprisonment alongwith a fine of Rs 20,000 and in default of payment of fine, two years additional imprisonment, under Section 342 IPC for six months imprisonment alongwith fine of Rs 500 and in default of payment of fine fifteen days additional imprisonment and under Section 506 IPC for 2 years rigorous imprisonment alongwith fine of Rs 1000 and in default of payment of fine, one-month additional imprisonment. All the sentences shall run concurrently.

Trial Court held the accused guilty and convicted him for the charged offences as aforesaid.

Counsel for the appellant Deepak Rana and AGA for the State is Sri Jai Prakash Tripathi.

Bench observed that it is a settled principle of law that in cases involving sexual assault/rape, it is generally difficult to find any corroborative witnesses, except the victim herself and therefore, the evidence of the victim is sufficient for conviction unless there exist compelling reasons for seeking corroboration. Thus, a conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence.

In Gagan Bihari Samal v. State of Orissa, (1991) 3 SCC 562 Supreme Court of India whilst observing that corroboration is not the sine qua non for conviction in a rape case, held as follows :

In cases of rape, generally, it is difficult to find any corroborative witnesses except the victim of the rape. It has been observed by this Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat,(1983) 3 SCC 217.

Further, it is also a well-settled principle of law that the testimony of child witness can be relied upon along with other circumstances and corroborative evidence to convict the accused. Undoubtedly, the settled proposition of law that the evidence of child witness is required to be scrutinised and appreciated with great caution.

Court in view of the well-settled law examined whether the evidence adduced by the prosecution, particularly the testimony of the victim is trustworthy, credible and can be relied upon.

Victim clearly stated that she was misled by the accused/appellant Jonny and he took away her to his house and committed rape upon her by extending threat. The statement of PW-2 has also been corroborated by the mother of the victim PW-1.

Further, there are catena of Judgments of the Supreme Court of India that it is necessary for the Court to have a sensitive approach when dealing with the cases of rape.

In the Supreme Court decision of State of Punjab v. Ramdev Singh, (2004) 1 SCC 421  it was held that,

Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity.

It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor. It leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society.

Bench stated that it has been established that in the absence of a family member of victim, the accused/appellant fraudulently called the victim to his house. On being called the victim reached the house where appellant forcefully committed rape. In these facts and circumstances in an ordinary procedure it cannot be said to be a case of false implication.

Prosecution by cogent and credible evidence is able to prove the charge under Section 376 IPC against the appellant.

In the present matter, victim is a minor and an adult committed rape on a girl of tender age, deterrent punishment is called for, taking a lenient view is out of the question.

Presently the appellant is incarcerated for more than 7 years. Conviction of the appellant is confirmed under Sections 376, 342 & 506 IPC. So on the point of conviction, the appeal is dismissed.

On the quantum of the sentence, this Court thinks that the end of justice would be met if the appellant is sentenced to imprisonment which he has already undergone.

In view of the above, the appeal is finally disposed of. [Jonny v. State of U.P., Jail Appeal No. 343 of 2018, decided on 03-09-2020]

Case BriefsHigh Courts

Kerala High Court: P.V. Kunhikrishnan, J., allowed the anticipatory bail application of the applicant-accused in connection with the FIR registered for offence punishable under Section 376 read with Section 34 of the Penal Code, 1860.

The factual matrix of the case is such that it has been alleged that the applicant has committed rape on the victim in room No. 8 of Kripa Annex, Ernakulam North with the help of the co-accused.

Counsel for the applicant, Latheesh Sebastian has vehemently denied these allegations levelled against the applicant by submitting that the accused and the victim are in love and that the case has resulted out of a misunderstanding with the father in law of the victim. The father-in-law of the victim who happens to be the de-facto complainant has filed an affidavit in this Court stating that the marriage of the applicant and victim has been fixed. The victim has also forwarded an affidavit stating that she has no objections if the present proceedings are quashed. The counsel stated that he is in the process of getting the proceedings quashed. With the quash proceedings at the brink, it would be an act of grave injustice if the applicant is arrested.

Counsel for the state while opposing the bail called for the imposition of stringent conditions in a situation where the bail is granted. It’s been stated that the case is made out of the statement given by the victim.

The Court drew an inference from the principle enunciated in the case of P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 66 that “bail is the rule and jail is the exception”.

The Court upon perusal of the facts, circumstances and arguments advanced observed that there is a love affair between the victim and the applicant based on the affidavits by the de-facto complainant and the victim. Even though marriage will not wipe off the offence but the fact has to be considered that the victim and accused are on their way of solemnizing a wedding in the near future.

In view of the above, the present application has been allowed, granting anticipatory bail to the applicant.[Amal Sha v. State of Kerala, 2020 SCC OnLine Ker 3495, decided on 24-08-2020]

Case BriefsHigh Courts

Bombay High Court: M.G. Sewikar, J., denied bail to the applicant accused of deceiving the prosecutrix by giving false promise of marriage who submitted herself for sexual intercourse based on the misconception of facts.

The present application was filed for grant of anticipatory bail for offences registered under Sections 376, 417, 323, 504, 506 of the Penal Code, 1860.

Informant aged 20 years used to go for labour work at a poultry farm, where she got acquainted with the applicant and promised to marry her.

Applicant had sexual intercourse with the informant twice under the promise of marriage.

About 2 months before the filing of the FIR, the applicant called her and demanded sexual favour from the informant, but she denied on the pretext getting married. Applicant got enraged and beat her.

Later, the informant learnt that the applicant was already married.

Counsel for the applicant, R.S. Shinde and V.S. Badakh, APP for the State.

From the FIR filed, it is apparent that the prosecutrix gave consent for the sexual intercourse as the applicant promised to marry her. 

Question to be determined:

Whether the consent of the prosecutrix was a voluntary consent or it was a consent-based on the misconception of facts?

In case of rape under Section 376 of the Penal Code, more particularly, in cases where consent is obtained by giving false promise of marriage, it has to be ascertained whether the accused did not have the intention to marry the prosecutirx right from the inception.

For the above-stated aspect on the matter, the law was settled.

Section 90 of the Penal Code, 1860 talks about “Consent known to be given under fear or misconception” and the essential requirement for that is, the same must have been obtained under the misconception of fact and the accused must be aware that the consent was given in consequence of such fear or misconception.

Court observes that, investigation papers do not reveal that the prosecutrix had the knowledge that the accused was a married man before submitting herself for sexual intercourse. If she had submitted herself for sexual intercourse with full knowledge that the applicant was a married man, the consent would not be vitiated.

In view of Section 5(i) of the Hindu Marriage Act, a person cannot contract second marriage if his or her spouse is living.

In view of the above-stated provision, the applicant could not have legally married the prosecutrix during the subsistence of his marriage.

Further, the Court stated that the accused had knowledge that he would not be able to marry the prosecutrix as long as his marriage is subsisting. This fact clearly shows that the applicant had the intention to deceive the prosecutrix by giving false promise of marriage. Therefore, the consent given by the prosecutrix is vitiated because of the concealment of material fact by the accused from her.

Hence, in view of the above-stated facts, the applicant is not entitled to be released.[Siddharth Ramkrishna Chitte v. State of Maharashtra, 2020 SCC OnLine Bom 864, decided on 26-06-2020]

Case BriefsHigh Courts

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

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

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

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

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

Court also directed that petitioner shall co-operate with the investigation by making available as and when called for. He may also not indulge in any activity subjecting the complainant to any intimidation or causing any threat to her life or property. [Shailendra Singh Chauhan v. State of U.P., 2020 SCC OnLine All 890, decided on 31-07-2020]