Case BriefsHigh Courts

Allahabad High Court: Applicant filed an application under Section 482 of Criminal Procedure Code which was contemplated by Dinesh Kumar Singh, J. where the prayer was to quash the Charges under certain Sections of Penal Code, 1860.

The applicant was charged under Sections 366, 376, 328, 506, 406 of IPC, in which the Chief Judicial Magistrate had taken cognizance. Santosh Yadav, counsel for the applicant argued that the accused was falsely implicated by the respondent-complainant who was the mother of the victim, the main reason cited by the counsel behind such baseless complaint was alleged desire to the victim to marry applicant. The counsel submitted the statements of the complainant and highlighted that she had stated that ‘she suspected the involvement of accused in the instant case.’ Another issue highlighted was alleged kidnapping by the accused-applicant, it was submitted that the victim was never abducted as she herself went to the police station to register the complaint. The attention of the Court was also drawn towards the other statement of the victim, recorded under Section 161 of CrPC. where the allegation of rape had been made upon the accused applicant who after committing rape had given assurance to marry her and subsequently when she asked to marry he committed assault and refused to marry.  In addition to these aforementioned evidences the applicant submitted an injury report, where it was stated that no marks to injury were found on the victim. Lastly, it was submitted by the learned counsel for the applicant that many facts were ignored by the Investigating Officer and the charge-sheet had been submitted in a routine manner, which was nothing but an abuse of the process of Court and in the interest of justice, the charge sheet deserved to be quashed.

Bhaiya Ghanshyam Singh, Advocate General for the state, had vehemently opposed the prayer for quashing of the charge- sheet and had stated that the evidence which was collected by the Investigating Officer cannot be looked into in this Application under Section 482 CrPC as the same will be required during the trial. It was submitted that High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of CrPC. “because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties.”

The Court held that the Investigating Officer had recorded the statements of as many as five witnesses have submitted the charge-sheet. It further opined that “the truthfulness of the statements of the witnesses cannot be scrutinized in Application under Section 482 CrPC” The Court relied upon the Judgment in Anurag Singh v. Chhatisgarh, 2019 SCC OnLine SC 509, where the Supreme Court had held that ‘position of law, was apparent that whether accused wanted to marry the victim right from very beginning or not and whether consent given by victim for sexual intercourse was a free-consent or not, was a subject matter of evidence, which is only possible to be decided after trial.’

Hence, the prayer for quashing the FIR was refused and the application was dismissed.[Kamal Pal v. State of U.P., 2019 SCC OnLine All 3539, decided on 25-09-2019]

Case BriefsHigh Courts

Kerala High Court: Alexander Thomas, J. disposed a bail application and granted bail by providing various requisite conditions on the petitioner for the safeguard of the victim.

In the present case, the petitioner has been accused of being the sole accused wherein a case has been registered under Sections 450 and 376 of the Indian Penal Code, 1860 (‘IPC’). It has been alleged by the prosecution, being a divorced lady with an 11-year-old minor child that the accused-petitioner had promised her that he would find a tenant for her house which she was looking to let out on rent. It was reported that on the 19-05-2019, the accused-petitioner had invited the lady at a house and to her dismay; the petitioner was alone and indulged her in sexual intercourse.

Counsel representing the accused-petitioner, Sergi Joseph Thomas, submitted that the prosecution in her FI statement had mentioned that she was having an affair with the accused-petitioner and thus indulging in sexual intercourse was based on consent and not forceful. The counsel also submitted that there was a considerable amount of unexplained delay in filing the case since the date of the incident thus leading to fabrication of factual circumstances.

The Public Prosecutor representing the State, Saigi Jacob Palatty contended that if the petitioner is let out on bail, there will be a possibility of the petitioner intimidating the witnesses and the lady as well. 

The present Bench, upon perusal of the facts and circumstances of the case, stated that the petitioner had already served 34 days detention and there has been an unexplained delay in setting the complaint into motion from the victim lady’s end. The Court noted that merely because the investigation is pending the accused-petitioner cannot be denied bail. However, since there exists a possibility of the accused-petitioner influencing the witness or the lady, the court granted bail to the petitioner and imposed various conditions on the accused-petitioner. The Court directed that:

“i. The petitioner shall appear before the Investigating Officer on every 2nd and 4th Saturdays, at any time between 10 am and 1 pm, for a further period of 3 months or till final report is filed, whichever is earlier.

ii. He shall not intimidate or attempt to influence the lady victim, witnesses; nor shall he tamper with the evidence.

iii. He shall not commit any offence while on bail. 

iv. The petitioner shall not visit or go anywhere near to the residence of the lady defacto complainant. 

v. The petitioner shall not reside or enter anywhere within the territorial limits of the Police Station where the lady defacto complainant is residing until the conclusion of investigating process, except for the limited purpose of reporting before the Investigating Officer concerned in this crime, or for attending to the Court in relation to this case or any other cases or for contacting his lawyer/advocate concerned. If the petitioner has any emergent personal need to visit the said area, he may do so but only with the prior permission of the investigating officer concerned.”[Vineesh v. State of Kerala, 2019 SCC OnLine Ker 2408, decided on 29-07-2019]

Case BriefsHigh Courts

Bombay High Court: Rohit B. Deo, J. allowed a criminal appeal filed against the judgment of the Additional Sessions Judge whereby the appellant was convicted for the offence of committing rape repeatedly on the same woman punishable under Section 376(1)(n) IPC along with the offence punishable under Section 506 (criminal intimidation).

The case against the appellant was that he abducted the victim and subjected her to forcible intercourse multiple times. He was convicted as aforesaid and sentenced to suffer rigorous imprisonment for a term of 10 years. Aggrieved thereby, the appellant filed the present appeal.

F.N. Haidri, Advocate representing the appellant contended that even if it is assumed that there was sexual intercourse, it was consensual. Per contra, TA Mirza, APP appearing for the State submitted that the defence of consent must be rejected because the statutory presumption under Section 114-A of the Evidence Act is not rebutted.

On perusal, the High Court was satisfied that evidence of the victim was not of such sterling quality as would obviate the need to seek corroboration. Perusing further the facts and the medical and forensic evidence, the Court was of the opinion that there were many holes grey areas and it would be absolutely unsafe to base the conviction on victim’s testimony which was not corroborated. As far as defence of consent was concerned, the Court observed that the prosecution failed to prove the foundational facts. It was said: “The legislative intent is not that the accused must disprove the absence of consent beyond a reasonable doubt. It would not be necessary for the accused to adduce direct evidence to prove that there was consent or to disprove the absence of consent. The accused can rely on material brought on record in the cross-examination of the victim and the evidence of the other prosecution witnesses. In the present case, enough material is brought on record in the cross-examination of the victim and the evidence of the other prosecution witnesses to lend credibility to the alternate defence theory that the sex was consensual.”

The Court held that the prosecution failed to prove the offence beyond reasonable doubt and the gulf between suspicion and proof was not bridged. Consequently, the Court acquitted the appellant of all the offence and directed his release. [Mohan v. State of Maharashtra, 2019 SCC OnLine Bom 1407, decided on 30-07-2019]

Case BriefsHigh Courts

Calcutta High Court: Sahidullah Munshi, J. allowed the appeal for the subsequent dates being asked for by the husband for the potency test but dismissed the appeal made by the husband for the virginity test of the wife as it did not appear to the Court a sound proposition of law.

In the instant case, two revision applications were heard together because the question of law and facts were identical. The suit was filed by the wife seeking annulment of marriage by a decree of nullity under Section 25(i) of the Special Marriage Act, 1954 and alternatively for divorce under Section 27(1)(d) of SMA. Wife filed an application, praying for the potency test of the husband and the same was allowed and on that basis wife pleaded that the marriage was not consummated, considering it a void marriage. The husband filed an application seeking a virginity test on his wife which was rejected. The husband appeared before the Medical Board for the said test and it was unanimously held by the Board that the party should be referred to FMS Department, Calcutta Medical College. The husband did appear before the Board but, he, later on, filed an application before the Court for subsequent dates for his appearance before the board.

The trial court rejected husband’s application seeking virginity test and relied on a passage of renowned author that stated “Virginity test is not a reliable indicator of a female having actually engaged in sexual intercourse because the tearing of the hymen may have been the result of an involuntarily sexual act”. The trial court further rejected the husband’s application for extending the date of potency test before the Medical Board finding him reluctant to appear before the Board.

Learned counsel, Dipanjan Datta, Sayan Datta and Rituparna Saha, for the petitioner, contended that since the wife has made allegations that the marriage was not consummated, she should be subjected to a virginity test.

Learned counsel, Ankit Agarwala and Alotriya Mukherjee, appeared on behalf of the opposite party contended that delay in the potency test would be a great loss to the wife.

The Court opined that the trial court was not justified in rejecting the prayer of the husband for extension of time when it was apparent that the result of the test was crucial and it would decide the fate of the parties. The application was to be allowed for the benefit of both the parties stating that delay in the test is a loss for wife, was not considered valid for refusing the application. Therefore, the revision application was allowed. The Court directed the medical college to allow the petitioner on a subsequent date but that shall be fixed within two months from the date of communication of the order and the petitioner was directed to communicate the same to the Superintendent of medical college. The Court did not find any irregularity or material illegality in the order passed regarding the virginity test. [Sri v. Smt, CO No. 3309 of 2018, decided on 21-06-2019]

Case BriefsHigh Courts

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

Case BriefsHigh Courts

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

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

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

Case BriefsHigh Courts

Punjab and Haryana High Court: A Division Bench comprising of M.M.S. Bedi and Hari Pal Verma, JJ., allowed the appeal against the decision of the family court wherein appellant’s petition for a decree of divorce was dismissed.

The appellant (wife) was married to the respondent (husband). She alleged that the respondent habitually used to drink and beat the appellant; forced her to consume alcohol; demanded dowry from her; and even committed forcible sexual acts against her wishes including sodomy and unnatural oral sex. She stated that because of such circumstances, she was forced to live at her parent’s home since last 8 years. The respondent denied all the allegations and alleged that appellant’s parents are not letting her come back to their matrimonial home. He had also filed a petition under Section 9 Hindu Marriage Act, the fact which weighed with the court below to dismiss appellant’s divorce petition. The appellant was in appeal against the decision of the lower court.

The High Court was of the opinion that the appeal ought to be allowed. While considering facts of the matter, the Court observed, acts of sodomy, forcible sexual intercourse, and adoption of unnatural means which are forced upon the other spouse resulting in unbearable pain to the extent that one is forced to stay away would certainly be a ground to seek separation or a decree of divorce. The Court further observed that the burden of proving such allegations lied heavily on the appellant, and in the instant case, the allegations were corroborated with other material including testimonies of the appellant and her brother. In such circumstances, the Court held that merely because the respondent had filed a petition under Section 9 for restitution of conjugal rights, would not mean that he made a genuine effort for a reunion. The Court allowed the appeal dissolving the marriage between the appellant and the respondent by a decree of divorce. [Preeti Kumari v. Neelkanth Kumar,2018 SCC OnLine P&H 757, dated 01-06-2018]

Case BriefsSupreme Court

Supreme Court: In order to harmonise Exception 2 to Section 375 IPC of the with the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), the spirit of other pro-child legislations and the human rights of a married girl child, the bench of Madan B. Lokur and Deepak Gupta, JJ held that the Exception 2 to Section 375 of the IPC to should now be meaningfully read as: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.” Both the judges wrote concurring but separate judgments.

Lokur, J, stating that holding sexual intercourse with a minor wife was the only way by which the intent of social justice to the married girl child and the constitutional vision of the framers of the Constitution could be preserved, said:

“Viewed from any perspective, there seems to be no reason to arbitrarily discriminate against a girl child who is married between 15 and 18 years of age. On the contrary, there is every reason to give a harmonious and purposive construction to the pro-child statutes to preserve and protect the human rights of the married girl child.”

Drawing an analogy between various laws land especially with POCSO Act, Lokur, J said that while the husband of a married girl child might not have committed rape for the purposes of the IPC but he would nevertheless have committed aggravated penetrative sexual assault for the purposes of the POCSO Act. He added that there is also no real distinction between the rape of a married girl child and aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act. He said:

“marital rape of a girl child is effectively nothing but aggravated penetrative sexual assault and there is no reason why it should not be punishable under the provisions of the IPC.”

Gupta, J, on the question that whether the Court was creating a new offence, explained that the Court was merely reading down Exception 2 to Section 375 IPC to bring it in consonance with the Constitution and POCSO since the offence already exists in the main part of Section 375 IPC as well as in Section 3 and 5 of POCSO. He said:

“this Court is not creating any new offence but only removing what was unconstitutional and offensive.”

He also noticed that Exception 2 to Section 375 IPC was the only provision in various penal laws which gave immunity to the husband. He said:

“The husband is not immune from prosecution as far as other offences are concerned. Therefore, if the husband beats a girl child and has forcible sexual intercourse with her, he may be charged for offences under Sections 323, 324, 325 IPC etc. but he cannot be charged with rape.”

He further added:

“It does not stand to reason that only for the offence of rape the husband should be granted such an immunity especially where the “victim wife” is aged below 18 years i.e. below the legal age of marriage and is also not legally capable of giving consent to have sexual intercourse.”

The Court, hence, held that Exception 2 to Section 375 IPC was arbitrary, capricious, whimsical and violative of Article 14, 15 and 21 of the Constitution of India. It was, however, made clear that the verdict will apply prospectively. [Independent Thought v. Union of India, 2017 SCC OnLine SC 1222, decided on 11.10.2017]