ILLUSTRATIVE CASES OF RELATING TO SECTION 375
Rape Case to extort money :-
Delhi High Court
Chandan Sawhney vs State on 13 February, 2020
Facts: Present petition is preferred under section 397 read with section 401 Cr.P.C. against order on charge dated 14.02.2017 and order framing charge dated 22.02.2017 passed by learned ASJ.
It is stated in present petition that above FIR came to be registered on a complaint dated 08.04.2014 for an incident which purportedly took place on 12.08.2013. Entire substance of accusation is based on the allegation that having entered into a settlement dated 13.02.2012 and promising to pay a sum of Rs.9 Crore towards permanent alimony, petitioner induced complainant to execute settlement deed dated 31.08.2012 and obtained divorce by making a payment of Rs.5 Crores (Rs.2.5 Crore in favour of their daughter and Rs.2.5 crore in favour of the complainant). It has been alleged that after obtaining divorce on 04.09.2012, the petitioner did not pay any money to complainant in terms of agreement dated 13.02.2012 thereby cheated the complainant. It has further been alleged that despite verbally demanding for an amount payable under agreement dated 13.02.2012, the petitioner refused to make any payment. In order to avoid payment to complainant, petitioner induced her with a false promise of marriage (re- marriage) stating that upon marriage, the question of payment of such amounts would not arise. By making false promise of marriage, petitioner indulged in a physical relation with complainant on 12.08.2013.
Undisputed facts are that on 26.07.2013, complainant preferred a complaint against one Sumit Walia and same was culminated into FIR 280/2013 at PS Vasant Vihar u/s 376/406/506 IPC. In said FIR, complainant had alleged that Sumit Walia had engaged in sexual intercourse with her after giving false promise of marriage. In the present case also, complainant states that on 12.08.2013, i.e. after about 3 weeks of preferring a complaint against Sumit Walia, she was assured by petitioner that he would remarry her, on the basis of which, she agreed to have sexual relation with him. Thus, conduct of complainant is unnatural in as much as she being an educated lady and having known to petitioner for about 20 years. It is unbelievable that such an educated person who having been a victim of crime, gets falsely induced by none other than her ex-husband of 20 years, that too on false assurance of re-marriage. The admitted facts are that due to elicit relation of the complainant with Sumit Walia, petitioner and complainant got divorced by mutual consent. Regarding relation, it is evident that on 08.09.2012, petitioner preferred a complaint against Sumit Walia which was registered as FIR No.294/12 with PS Vasant Vihar, New Delhi, for the offences punishable u/s 384/506/509 IPC and 66(1)/67 of Information Technology Act, 2000. In the said FIR, allegations were that Sumit Walia demanded Rs.40 lacs from complainant and threatened to circulate nude pictures and video of complainant to malign her image. Said case is presently under investigation and is pending before Cyber Cell of EOW, Delhi Police. In addition to above, on 26.07.2013, complainant preferred a complaint against said Sumit Walia alleging rape and criminal misappropriation of Rs.4 Crores. Consequently, FIR no.280/13 was registered u/s 376/406/506 IPC with PS Vasant Vihar, New Delhi. On 27.07.2013, complainant stated in her statement recorded under section 164 Cr.P.C. that Sumit Walia was the sole reason for divorce with petitioner. Thus, present FIR is nothing but arm twisting for extorting money from petitioner, which can not be allowed such misuse of judicial system as happened in the present case.
Law : -It is settled law that due weightage to the age, educational qualifications, family and societal background of the victim to ascertain whether her consent could have been obtained by fraud in such like cases ,a promise to marry without anything more will not give rise to „misconception of fact‟ within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause Secondly.
Order :- Consequently, FIR no.280/13 was registered u/s 376/406/506 IPC with PS Vasant Vihar, New Delhi. On 27.07.2013, complainant stated in her statement recorded under section 164 Cr.P.C. that Sumit Walia was the sole reason for divorce with petitioner. Thus, present FIR is nothing but arm twisting for extorting money from petitioner, which can not be allowed such misuse of judicial system as happened in the present case.
BAIL APPLICATION IN SUCH CASES :-
Kerala High Court
Tijo Varghese vs State Of Kerala on 2 July, 2020
Facts - The informant is aged about 37 years and the mother of a girl child. In her complaint, she alleges that she got married to one Sreenath in the year 2007. After marriage, the spouses fell apart and they started residing separately. While so, she met the petitioner herein in the month of May 2017. During this period, she was residing in a rented house at Pala. The petitioner used to call her often and he also used to bring food and other items for her. She alleges that on a day in the month of November 2017, the petitioner came to her residence, while her daughter was not at home and caught her. When she cried, the petitioner is alleged to have threatened her. She alleges that the petitioner committed rape on her. She, however, did not disclose the incident to any person. She later realized that she had become pregnant. When this fact was mentioned to the petitioner he is alleged to have assured her that he would marry the lady as and when she gets a divorce from her husband. On 29.07.2018, she gave birth to a boy and in the hospital records, her husband Sreenath was mentioned as the father of the child. Later when the petitioner stopped contacting the lady, she approached the Police and set the law in motion.
Held - " At the time of consideration of bail applications, Courts are not expected to go into the minute details of the allegations nor discuss the merits and demerits of the materials collected against the accused lest it causes prejudice either of the parties. For the limited purpose of ascertaining as to whether the petitioner has made out a prima facie case for pre-arrest bail, I have meticulously scanned the materials. The records suggest that the de facto complainant is a married lady. Her marriage with her husband still subsists though litigation is pending before the Family Court. The Apex Court has held that there is a clear distinction between rape and consensual sex. The question to be considered in such cases is whether the accused had actually wanted to marry the victim or had mala fide motives and had made a false promise to that effect only to satisfy his lust. The former is not rape but the latter will fall within the ambit of cheating and deception. If the materials, prima facie, suggest that the prosecutrix agreed to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do, such cases will not fall within the ambit of rape and will have to be considered differently. It is difficult to accept at this stage that a false promise was given to engage her in a sexual relationship and that it was under such misconception of fact that she had acceded to the wishes of the petitioner. Having considered the facts and circumstances in all its perspectives, I am of the considered opinion that the custodial interrogation of the petitioner is not necessitous for an effective investigation."
GENERAL LAW AS TO DISCHARGE ON SUCH ALLEGATIONS :-
Supreme court in Sajjan Kumar vs. Central Bureau of Investigation (2010) 9 SCC 368 as follows:-
"21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.
(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal."
(emphasis supplied)
Recently, on 08.03.2019, this Court, in the case of Gurpreet Singh Rakhi vs. State (NCT of Delhi) & Anr.: 2019 SCC OnLine Del 7830, refused to discharge the Petitioner therein.
Delhi High Court
Gurpreet Singh Rakhi @ Michal vs State (Nct Of Delhi) & Anr. on 8 March, 2019
The petitioner is facing trial as accused in sessions case (SC no. 58925/2016) in the court of Additional Sessions Judge on the charge for offences punishable under Sections 376/313/506 of Indian Penal Code, 1860.
The prosecutrix (second respondent) of the case is married woman with children. While lodging the FIR on 25.07.2015 she had, iter alia, alleged that she had come to be acquainted with the petitioner (the accused) for about two years, he having been introduced to her by a friend and at the instance of such friend she having arranged engagement of her younger sister with him, the said engagement having been later cancelled. She alleged that after the engagement of her sister had been broken, the petitioner started pursuing and stalking her. He would often visit her house during the absence of her husband, who would ordinarily be away in connection with his work. She alleged that the petitioner had extended threats to her and suggested that she should give up on her husband by threatening to kill her family and eventually persuaded her to abide by his wishes. It is alleged by her that, over the period, the petitioner engaged her in sexual intimacy as a result of which she had even conceived. She claimed that she had been subjected by the petitioner to physical assaults on several occasions and having arranged for the pregnancy to be aborted at a nursing home on 24.07.2015. According to her version in the FIR, her husband had come to see her in the company of the petitioner at the time of her visit to the nursing home for abortion and it is then that she revealed the background facts to him. . In her statement under Section 164 Cr.P.C. recorded by Metropolitan Magistrate on 27.07.2015, the prosecutrix reiterated the background facts elaborating further on some aspects, stating on oath, inter alia, that she had been raped by the petitioner multiple times, he having used fire arm or knife to intimidate her also making an attempt to throw acid at her sister. She further stated that the petitioner had arranged some medicinal tablets to induce abortion but since the same did not bear the result, he had arranged abortion to be carried out at the nursing home by making a call pretending to be her husband. While the medical doctor who runs the nursing home, on being examined during investigation, has confirmed that there was a request made for aborting the pregnancy, a call having been received by her on phone from a person who had introduced himself as the husband, she has denied having met any person by such description as that of the petitioner.
It does appear that the petitioner seeks to place reliance on certain material including social media chat in support of his claim of consent for sexual relationship. But then, that is a matter of defence, the material or documents requiring to be authenticated or proved in accordance with law. The statement of the prosecutrix alleging criminal intimidation of various kinds at different points of time cannot be disbelieved at this stage. When the case is for consideration of charge, it is not proper to ask for a scrutiny of the evidence in the manner it would require to be done at the stage of final analysis.It does appear that in the first head of charge on the allegations concerning the offence under Section 376 IPC, no specific dates have been indicated. But it has to be remembered that the version of the prosecutrix is that she had been raped multiple times over the period which, given the plea of the petitioner himself, might run into more than two years, may be for almost five years. If the prosecutrix has not remembered the specific dates on which she was raped, the charge cannot mention the specific dates. It will be for the petitioner to bring out necessary facts, if possible, during the cross-examination. There is, thus, no error or defect or deficiency in the charge which has been framed for the said offence on 23.05.2016.For the foregoing reasons, this court finds no ground to order discharge. The prayer for quashing of the criminal case is, thus, declined.
Ataullah Fakruddin Ansari Vs. The State of Maharashtra Bail Application No.390 of 2020
According to the alleged victim in the case who filed a complaint in January this year, she came to be in touch with the applicant via Facebook and she uploaded her mobile number on the Facebook Account. The applicant contacted her and there used to be frequent telephonic conversations between the two. In 2019, she went to Uttar Pradesh which happened to be her native place and the applicant also visited there.
The complainant said that she has divulged to the applicant that she had married to one person and he has divorced her. The complainant further alleged that a proximity developed between her and the applicant which resulted into establishing a physical relationship. Then, a discord arose between the two and the FIR contains details of the same.
"The complaint lodged by the prosecutrix is an immediate response to the said discord. The complainant herself alleged that the Applicant severed contact with the prosecutrix and she reported the matter to her father which resulted into filing of the FIR at Kandivali Police Station.
The case of the Applicant is to the effect that the prosecutrix maintained a physical relationship with the Applicant as they shared a close bond of friendship and she never objected to the said act of physical proximity. The prosecutrix at the time of incident was 24 years of age and, according to the Applicant, it was a decision taken by a major person in her full consciousness."
"The Applicant and the prosecutrix are major and as per the version of the complaint, she encouraged the friendship initially which slowly resulted into a physical one. She had accompanied the Applicant at several places where the Applicant established physical contact with her. She never objected to the same and from January, 2019 till filing of the complaint in March, 2020, allowed the relationship to flourish.
Then, one fine day, when the relationship turned sour, she filed the complaint. Prima facie reading of the complaint does not make out a case of sexual indulgence without her consent or against her will but points out a consensual act. The Applicant has been arrested since March 2019. In the backdrop of the allegations in the complaint, when prima facie no case of forcible sexual act is made out, he is entitled to be set on bail."
Supreme Court of India
Pramod Suryabhan Pawar vs The State Of Maharashtra on 21 August, 2019
The allegations in the FIR are summarised thus:
(i) According to the complainant, she and the appellant have known each other since 1998. She would speak to the appellant on the phone and met him regularly as early as 2004. In 2008 the appellant proposed marriage and assured her that their belonging to different castes would not be a hindrance. The appellant allegedly promised to marry the complainant after the marriage of his elder sister. On 23 January 2009 the appellant allegedly re-iterated his promise to marry her at the Patnadevi Temple in Chalisgaon;
(ii) The complainant completed her B.Sc. in Agriculture in 2002 and worked as a Junior Research Assistant. In 2007 she was selected as a Naib Tahsildar at Chalisgaon. In March 2009 she was appointed to the post of Assistant Sales Tax Commissioner at Mazgaon. The appellant would, it is alleged, come to meet her and lived with her in November 2009. During his visit, the complainant alleges that she refused to engage in sexual intercourse with the appellant, but “on the promise of marriage he forcibly established corporeal relationships”;
APEX COURT HELD - " The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellant’s failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant’s promise of marriage. Therefore, even if the facts set out in the complainant’s statements are accepted in totality, no offence under Section 375 of the IPC has occurred."
Under No Circumstances a Rape Case can be Compromised :-
RAMPHAL V. STATE OF HARYANA CRIMINAL APPEAL NO. 438 OF 2011
The Supreme Court has emphasized that compromise between rape accused and victim is of no relevance in deciding criminal cases.
Before the bench, it was submitted that during the pendency of the appeals, both the accused have paid Rs. 1.5 lakhs each in favour of the prosecutrix and she has accepted the same willingly for getting the matter compromised. It said:
"However, it is imperative to emphasise that we do not accept such compromise in matters relating to the offence of rape and similar cases of sexual assault. Hence the aforesaid compromise is of no relevance in deciding this matter. "
Upholding the conviction recorded by the Trial Court, the bench observed that, in this case, evidence of the prosecutrix is coupled with the medical evidence and thus clearly proves that the offence of rape has been committed.
In this context, it is profitable to reproduce a passage from Shimbhu and Another v. State of Haryana wherein, a three-Judge Bench has ruled thus:-
“Further, a compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. Since the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurised by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurise her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at [pic]between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) IPC.”
Supreme Court of India
State Of M.P vs Madanlal on 1 July, 2015
In a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of. These are crimes against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the “purest treasure”, is lost. Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error. We are compelled to say so as such an attitude reflects lack of sensibility towards the dignity, the elan vital, of a woman. Any kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility.
It has to be kept in mind, as has been held in Shyam Narain v. State (NCT of Delhi)that:- “Respect for reputation of women in the society shows the basic civility of a civilised society. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. It would not be an exaggeration to say that the thought of sullying the physical frame of a woman is the demolition of the accepted civilised norm i.e. “physical morality”. In such a sphere, impetuosity has no room. The youthful excitement has no place. It should be paramount in everyone’s mind that, on the one hand, society as a whole cannot preach from the pulpit about social, economic and political equality of the sexes and, on the other, some perverted members of the same society dehumanise the woman by attacking her body and ruining her [pic]chastity. It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men.”
Delhi High Court
State (Govt Of Nct Of Delhi) vs Jitender Kumar & Anr. on 6 July, 2017
The woman had alleged that the two doctors gang-raped her at Lajpat Nagar in January 2014. She used to work in their clinic as administrative assistant (field) but her service was terminated in 2013. She alleged that both the doctors called her on the pretext of giving her job back and raped her.
FINDINGS - It is highly improbable that the rape was committed inside a running office which comprises of 6 cabins having transparent walls. To commit forcible sexual intercourse with a person in a running office when other persons are present, especially when the cabins have transparent walls is a work of fiction. Additionally, the behavior of the prosecutrix is highly doubtful. After the incident, she went to the office of her sister in Ballabhgarh. She claims to have not disclosed the incident to anyone including her husband and sisters until 13.02.2014, when she returned home and narrated the incident to her brother in-law Ram Pravesh (PW-6), who also had a grievance against the center. The only reason forthcoming is that her sister was ill and that she did not disclose it to her husband out of fear, even though she was close to her sister and had good relations with her husband. Nothing has come to prove the medical condition of her sister, as she was never examined. The prosecutrix stated that the reason for telling PW-6 is that he used to take care of her whenever she was in any trouble. After overcoming her fear, there is no probable reason for her to not disclose the incident to her sister or to her husband, but chose to confide in PW-6, who also had a tussle with the organization is hard to believe. Not only this, she travelled to Ballabhgarh to the office of her sister and then travelled back to her home and called PW-6 to narrate the incident to him after a gap of 22 days. To summarize, the disgruntled ex-employee of the center found none other than her brother in-law, whose services were also terminated, to confide in; even when she was close to her sister and had good relations with her husband. This is extremely hard to believe unless any special circumstance was shown as to why the prosecutrix would confide in her brother-in-law. Not even a whisper has come to the effect that the prosecutrix had any strange relations with her husband or her sister.In such a case, unless the testimony of the prosecutrix (PW-3) is supported by any evidence, direct or circumstantial, an order of conviction cannot be sustained. Here, there is none.In the present case, PW-12, DW-2, DW-3, DW-4 and DW-5 have categorically deposed that till the time they were in office, the prosecutrix did not come there. The defence evidence also shows that the prosecutrix during her stint under the Center was rude and abusive which led to the termination of her services and the taxi services of her brother in-law (PW-6) were discontinued and he used to threaten the employees of the office and a complaint and a complaint on which DD 84B was registered on 28.04.2015 at the Lajpat Nagar Police Station. There is ample of evidence to show that the prosecutrix never came to the office on 22.01.2014. The medical evidence also shows no trauma, bite marks and abrasions on her person. It has also been shown that the prosecutrix was a disgruntled employee of the office and the rental services of her brother in law had been terminated and hence, both had a motive to level false allegations. It seems the whole criminal machinery was put in force just to extract revenge from the respondents.
HELD - A false accusation of rape may be as damning to an accused as to a victim of rape. The accused may be shunned in the society and by his own family, spouse and children for no fault of his own only because one woman has levelled false allegations of rape in pursuance of her evil design. Present case seems to be no different when the sole purpose of the prosecutrix and PW-6 seems to extract revenge against the respondents.We are prima facie satisfied that there was a conscious and deliberate effort to misuse the process of law to initiate false proceedings against the respondents. t has been held in Mishrilal v. State of M.P., (2005) 10 SCC 701 (paragraph 6) that "[w]henever the witness speaks falsehood in the court, and it is proved satisfactorily, the court should take a serious action against such witnesses." ACQUITTAL BY TRIAL COURT UPHELD.The Trial Court is to proceed against the prosecutrix (PW-3) and Ram Pravesh (PW-6) for giving false evidence in court under Section 340 Cr.P.C. (PROSECUTION FOR PERJURY)
Supreme Court of India
Mahila Vinod Kumari vs State Of M.P on 11 July, 2008
Appellant had in January 1993 lodged a rape case, claiming the two men sexually assaulted her. On the basis of her complaint, the accused were arrested and faced the trial.
The complainant, however, retracted during her cross-examination and denied making the charges against the two. She also denied having registered the FIR against them.
The trial court acquitted the men but initiated perjury proceedings and convicted her to three months imprisonment.. The Supreme Court found her guilty of perjury (misleading the court with false evidence) and refused to accept her defence that she was illiterate.the Bench empathised with the two men, saying they had to “face the ignominy of a trial for a serious offence like rape”. “Their acquittal may, to a certain extent, have washed away the stigma, but that is not enough,”
courts should strive harder to tackle the evil of perjury. It has assumed alarming proportions in cases depending on oral evidence and in order to deal with the menace effectively, it is desirable for the courts to use the provision more effectively and frequently.”
Jammu & Kashmir High Court
Sunil Kumar vs State And Another on 14 December, 2018
The petitioner alleged in the complaint that she was subjected to sexual assault and was in love affair withthe petitioner since 2010 having friendly relation and love affair constantly for seven years and have the physical relationship and subsequently agreed tosolemnize the marriage. All the ceremonies were completed. However, subsequently the petitioner allegedly refused to marry with the respondent. It is submitted that respondent No.2 who is elder than the petitioner and is a mature lady developed the relationship with the petitioner and also alleged in the complaint that she used to stay with the petitioner and visited at various places of Himachal Pradesh, Katra and Patnitop. In such circumstances, no offence under Section 376 RPC is made out. Even if it is assumed without admitting this fact that there was friendly relationship between petitioner and respondent No.2 even then from the allegations leveled in the complaint be taken as it, no offence under Section 376 RPC is made out. The Hon'ble Supreme Court in case titled Tilak Raj Vs. State of Himachal Pradesh reported in 2016 (4) SCC 140 has held that the evidence as a whole including the FIR and testimony of the prosecutrix clearly indicates that the story of prosecutrix regarding sexual intercourse on false pretext of marrying her concocted and not believable. It is the admitted case that she was in relationship with the petitioner for the last seven years and the petitioner used to stay overnight at her residence, under these circumstances the offence cannot be said to have been made out because of the reason that from the bare perusal of the complaint it transpires that she was the consenting party, elder than the petitioner. Therefore, the FIR is liable to be quashed.
HELD - " the allegations made in the first information report on the basis of complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. The allegations made in the FIR are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. This FIR is manifestly attended with mala fide intention and has been maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. This petition is allowed and impugned FIR No.50/2017 registered with the Police Station, Ghagwal for commission of offences under Sections 376/506 RPC, is quashed."
Delhi High Court
Anita Suresh vs Union Of India & Ors on 9 July, 2019
The petitioner reported following two incidents dated 07 th July, 2011 in the complaint:-
(i) "Yesterday when I was seated with my colleagues on the 1st floor of the building, Sh. Verma came and commented indicating sexual advances. I cannot for the reasons of modesty bring on papers the filthy language he uses for me."
(ii) "Yesterday in the presence of my staff and other members he asked me to come alone to check the shortcomings of the male toilet when nobody is there and I will follow you soon."
On careful consideration of the record of the inquiry proceedings, this Court is of the view that the complaint dated 08th July, 2011 of the petitioner appears to be false. The complaint dated 08th July, 2011 contains two incidents out of which the first incident was in the presence of the petitioner's colleagues whereas the second incident was in the presence of the staff and other members. During the inquiry proceedings, the petitioner could not give the name of any person present at the time of the incidents. The petitioner was shown the record of the staff persons present on duty on the date of the incident but still she could not recollect the names of any colleague/staff member. It is not believable that the petitioner would not remember the names of any colleague/staff member. The Committee examined all the persons who were on duty on that day but no persons supported the allegations of the petitioner. The petitioner has not mentioned the alleged comments of respondent No.3 in the complaint on the ground of modesty. The petitioner did not even disclose the alleged comments before the Committee. No reason or justification was been given by the petitioner for not disclosing the same before the Committee. The entire complaint of the petitioner appears to be false and has been filed with some ulterior motive.
Held - "There is no merit in this writ petition which is dismissed with cost of Rs.50,000/- to be deposited by the petitioner with the Delhi High Court Advocates Welfare Trust within four weeks.
Respondent No.2 is at liberty to initiate appropriate action against the petitioner for filing false compliant against the respondent no.3 in accordance with law."
Delhi High Court
Mahmood Farooqui vs State (Govt Of Nct Of Delhi) on 25 September, 2017
The fact situation with which this Court is faced is like this: The prosecutrix has come to the house of the appellant on his invitation. Both the prosecutrix and the appellant have consumed liquor in varying measures. The appellant has been displaying drunken-cum- lachrymose behavior from before the arrival of the prosecutrix. The prosecutrix, out of concern for the appellant, mixes a light drink of vodka for the appellant. In the immediate past, two of the associates of the appellant had left the house of the appellant for a brief period, only to return later. Another person namely Darain Shahidi (DW.3) was expected to arrive but he disclosed his unwillingness/incapability of coming to the house of the appellant, which was heard by the prosecutrix as well. The prosecutrix continues to chat with the appellant and at times has been asking personal questions regarding the cause of trouble of the appellant to which the appellant responded that it was his wife and mother. There are some exchanges between the parties regarding their being good persons in their individuals rights. The prosecutrix starts feeling motherly towards the appellant. Then the appellant communicates his desire to suck her. The prosecutrix says „No‟ and gives a push but ultimately goes along. In her mind, the prosecutrix remembers a clip from the case of Nirbhaya, a hapless girl who was brutally raped and killed, when the maelfactor had declared that if she (Nirbhaya) did not resist, she might have lived.
There is no communication regarding this fear in the mind of the prosecutrix to the appellant. The prosecutrix makes a mental move of feigning orgasm so as to end the ordeal. What the appellant has been communicated is, even though wrongly and mistakenly, that the prosecutrix is okay with it and has participated in the act. The appellant had no opportunity to know that there was an element of fear in the mind of the prosecutrix forcing her to go along. After completing the act, the appellant asks the prosecutrix that he wishes to do it again. In the mean time, the privacy is disturbed with the ringing of the door bell and the arrival of the two associates of the appellant. In such a scenario, when there are two competing claims juxtaposed each other, the call is difficult.
The questions which arise are whether or not there was consent; whether the appellant mistakenly accepted the moves of the prosecutrix as consent; whether the feelings of the prosecutrix could be effectively communicated to the appellant and whether mistaking all this for consent by the appellant is genuine or only a ruse for his defence. At what point of time and for which particular move, the appellant did not have the consent of the prosecutrix is not known. What is the truth of the matter is known to only two persons namely the appellant and the prosecutrix who have advanced their own theories/versions.
In order to answer the aforesaid questions, it would be necessary to see what the word "consent", especially in relation to sexual activity, connotes. In normal parlance, consent would mean voluntary agreement of a complainant to engage in sexual activity without being abused or exploited by coercion or threats. An obvious ingredients of consent is that, as consent could be given, it could be revoked at any time; rather any moment. Thus, sexual consent would be the key factor in defining sexual assault as any sexual activity without consent would be rape. There is a recent trend of suggesting various models of sexual consent. The traditional and the most accepted model would be an "affirmative model" meaning thereby that "yes" is "yes" and "no" is "no". There would be some difficulty in an universal acceptance of the aforesaid model of consent, as in certain cases, there can be an affirmative consent, or a positive denial, but it may remain underlying/dormant which could lead to confusion in the mind of the other.
In an act of passion, actuated by libido, there could be myriad circumstances which can surround a consent and it may not necessarily always mean yes in case of yes or no in case of no. Everyone is aware that individuals vary in relation to expositing their feelings. But what has to be understood is that the basis of any sexual relationship is equality and consent. The normal rule is that the consent has to be given and it cannot be assumed. However, recent studies reveal that in reality, most of the sexual interactions are based on non-verbal communication to initiate and reciprocate consent. Consent cannot also be analyzed without taking into account the gender binary. There are differences between how men and women initiate and reciprocate sexual consent. The normal construct is that man is the initiator of sexual interaction. He performs the active part whereas a woman is, by and large, non-verbal. Thus gender relations also influence sexual consent because man and woman are socialized into gender roles which influence their perception of sexual relationship and expectation of their specific gender roles with respect to the relationship. However, in today‟s modern world with equality being the buzzword, such may not be the situation.
Today, it is expected that consent be viewed as a clear and unambiguous agreement, expressed outwardly through mutually understandable words or actions. Inheres in it is the capacity to withdraw the consent by either party at any point of time. Normally, body language or a non-verbal communication or any previous activity or passivity and in some cases incapacitation because of alcohol consumption, may not be taken as consent. However, in the present case, as has been stated, the appellant has not been communicated or at least it is not known whether he has been communicated that there was no consent of the prosecutrix.
Another important aspect which is required to be gone into, especially for the purposes of this case, is whether it would be necessary for a just decision in this case, to look into the evidence/circumstances of the display of Rape Trauma Syndrome (hereinafter called RTS) by the prosecutrix.
The RTS is the psychological trauma experienced by a rape victim which includes disruption of normal, physical, emotional, cognitive and interpersonal behavior. The theory of RTS was first propounded by a psychiatrist Ann Wolbert Burgess and sociologist Lynda Lytle Holmstrom in 1974. It was described as a cluster of psychological and physical science, symptoms and reactions which are common to most rape victims immediately following and for months or years after the incident of rape. Three stages have been identified in RTS: (a) the acute stage, (b) the outer adjustment stage and (c) the renormalization stage. The acute stage occurs immediately after the occurrence and it may include disorganized behavioral pattern like diminished alertness, hysteria, confusion, bewilderment and may be, extreme sensitivity to the reaction of other people. The second stage comes when the victim has assumed his/her normal lifestyle but is still suffering from profound internal turmoil. This stage could last for several months and could extend to several years also after rape. This stage is identified with refusal to discuss rape or analyzing why it happened, a general sense of helplessness, panic attacks and disassociation meaning, a kind of feeling that one is not attached to one‟s body. The rape victims in this stage can see the world as a more threatening place to live in. In the renormalization stage, adjustment begins and the incident no longer remains the central focus in the life of the victim. The negative feelings of guilt and shame are resolved and the survivor does not blame herself for the attack.
The reaction of the individual to similar fact situations can vary and, therefore, it cannot be said that a particular conduct of a person, which is not in conformity with the general conduct of another who, would be faced with similar circumstance, that such conduct belies the allegations. It would thus be unfair to the complainant/victim to judge the veracity of her accusation on the basis of RTS displayed by her. If a rape victim resorts to an individual/specific coping mechanism, that ought not to delegitimize her reaction to rape.
For the aforesaid reason, this Court does not propose to analyze the post rape conduct of the prosecutrix as suggested on behalf of the appellant. Having said so, it can safely be held that the circumstances which have been suggested by the defence namely: (i) the prosecutrix not running away from the place of occurrence; (ii) her remaining present in the house of the appellant for about good 45 minutes post rape; (iii) not divulging about the act to either PW.12 or brother of the appellant who came along with PW.12 or to the wife of the appellant;(iv) no communication with the appellant till 30.03.2015; (v) first communication to the appellant being in the nature of a minor abjuration; (vi) the prosecutrix booking a MERU cab and cancelling the same; (vii) going to the restaurant at Hauz Khas; (viii) calling PW.12 after reaching Hauz Khas hotel; (ix) taking inordinately long time to register the FIR etc, could be and perhaps are manifestations of post-rape trauma and disorientation of the prosecutrix.But, it remains in doubt as to whether such an incident, as has been narrated by the prosecutrix, took place and if at all it had taken place, it was without the consent/will of the prosecutrix and if it was without the consent of the prosecutrix, whether the appellant could discern/understand the same.
Under such circumstances, benefit of doubt is necessarily to be given to the appellant.
CASES QUASHED :-
Supreme Court in the decision reported as (2013) 3 SCC 330 Rajiv Thapar & Ors. Vs. Madan Lal Kapoor wherein while laying down the guidelines for quashing of a FIR and the proceedings pursuant thereto in exercise of its power under Section 482 Cr.P.C. by the High Court, the Supreme Court delineated the steps to be taken to determine the veracity of prayer as under:
"29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far- reaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. 30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC: 30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? 30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? 30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant? 30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? 30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."
Supreme Court in the decision reported as (2013) 9 SCC 293 Prashant Bharti Vs. State (NCT of Delhi) dealing with a situation noting the facts of the complaint therein, material collected in investigation and placed by the accused therein, quashed the FIR, held as under:
"23. The details in respect of each aspect of the matter, arising out of the complaints made by Priya on 16-2-2007 and 21-2- 2007 have been examined in extensive detail in the foregoing paragraphs. We shall now determine whether the steps noticed by this Court in the judgment extracted hereinabove can be stated to have been satisfied. Insofar as the instant aspect of the matter is concerned, the factual details referred to in the foregoing paragraphs are being summarized hereafter: 23.1. Firstly, the appellant-accused was in Sector 37, Noida in the State of Uttar Pradesh on 15-2-2007.
He was at Noida before 7.55 p.m. He, thereafter, remained at different places within Noida and then at Shakarpur, Ghaziabad, Patparganj, Jorbagh, etc. From 9.15 p.m. to 11.30 p.m. on 15-2- 2007, he remained present at a marriage anniversary function celebrated at Rangoli Lawns at Ghaziabad, Uttar Pradesh. An affidavit to the aforesaid effect filed by the appellant-accused was found to be correct by the investigating officer on the basis of his mobile phone call details. The accused was therefore not at the place of occurrence, as alleged in the complaint dated 16-2-2007. 23.2. Secondly, verification of the mobile phone call details of the complainant/prosecutrix Priya revealed, that on 15-2-2007, no calls were made by the appellant-accused to the complainant/prosecutrix, and that, it was the complainant/prosecutrix who had made calls to him. 23.3. Thirdly, the complainant/prosecutrix, on and around the time referred to in the complaint dated 16-2-2007, was at different places of New Delhi i.e. in Defence Colony, Greater Kailash, Andrews Ganj and finally at Tughlaqabad Extension, as per the verification of the investigating officer on the basis of her mobile phone call details. The complainant was also not at the place of occurrence, as she herself alleged in the complaint dated 16-2-2007. 23.4. Fourthly, at the time when the complainant/prosecutrix alleged that the appellant-accused had misbehaved with her and had outraged her modesty on 15-2-2007 (as per her complaint dated 16-2-2007), she was actually in conversation with her friends (as per the verification made by the investigating officer on the basis of her mobile phone call details). 23.5. Fifthly, even though the complainant/prosecutrix had merely alleged in her complaint dated 16-2-2007 that the accused had outraged her modesty by touching her breasts, she had subsequently through a supplementary statement (made on 21-2-2007), levelled allegations against the accused for the offence of rape. 23.6. Sixthly, even though the complainant/prosecutrix was married to one Manoj Kumar Soni, s/o Seeta Ram Soni (as indicated in an affidavit appended to the Delhi Police format for information of tenants and duly verified by the investigating officer, wherein she had described herself as married), in the complaint made to the police (on 16-2-2007 and 21-2-2007), she had suggested that she was unmarried. 23.7. Seventhly, as per the judgment and decree of the Civil Judge (Senior Division), Kanpur (Rural) dated 23-9-2008, the complainant was married to Lalji Porwal on 14-6-2003. The aforesaid marriage subsisted till 23-9-2008. The allegations made by the complainant dated 16-2-2007 and 21-2-2007 pertain to occurrences of 23-12-2006, 25-12-2006, 1-1-2007 and 15-2-2007 i.e. positively during the subsistence of her marriage with Lalji Porwal. Thereafter, the complainant Priya married another man Manoj on 30-9-2008. This is evidenced by a "certificate of marriage" dated 30-9-2008. In view of the 561-A Cr.P.C. No.41 of 2015 Page 8 of 15 aforesaid, it is apparent that the complainant could not have been induced into a physical relationship based on an assurance of marriage. 23.8. Eighthly, the physical relationship between the complainant and the accused was admittedly consensual. In her complaints Priya had however asserted, that her consent was based on a false assurance of marriage by the accused. Since the aspect of assurance stands falsified, the acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC. Especially because the complainant was a major on the date of occurrences, which fact emerges from the "certificate of marriage" dated 30-9- 2008, indicating her date of birth as 17- 7-1986. 23.9. Ninthly, as per the medical report recorded by AIIMS dated 16-2-2007, the examination of the complainant did not evidence her having been poisoned. The instant allegation made by the complainant cannot now be established because even in the medical report dated 16-2- 2007 it was observed that blood samples could not be sent for examination because of the intervening delay. For the same reason even the allegations levelled by the accused of having been administered some intoxicant in a cold drink (Pepsi) cannot now be established by cogent evidence. 23.10. Tenthly, the factual position indicated in the charge sheet dated 28-6-2007, that despite best efforts made by the investigating officer, the police could not recover the container of the cold drink (Pepsi) or the glass from which the complainant had consumed the same. The allegations made by the complainant could not be verified even by the police from any direct or scientific evidence, is apparent from a perusal of the charge-sheet dated 28-6-2007. 23.11. Eleventhly, as per the medical report recorded by AIIMS dated 21-2-2007 the assertions made by the complainant that the accused had physical relations with her on 23-12-2006, 25-12-2006 and 1-1-2007, cannot likewise be verified as opined in the medical report, on account of delay between the dates of occurrences and her eventual medical 561-A Cr.P.C. No.41 of 2015 Page 9 of 15 examination on 21-2-2007. It was for this reason, that neither the vaginal smear was taken, nor her clothes were sent for forensic examination. 24. Most importantly, as against the aforesaid allegations, no pleadings whatsoever have been filed by the complainant. Even during the course of hearing, the material relied upon by the accused was not refuted. As a matter of fact, the complainant/prosecutrix had herself approached the High Court, with the prayer that the first information lodged by her, be quashed. It would therefore be legitimate to conclude, in the facts and circumstances of this case, that the material relied upon by the accused has not been refuted by the complainant/prosecutrix. Even in the charge-sheet dated 28- 6- 2007, (extracted above) the investigating officer has acknowledged, that he could not find any proof to substantiate the charges. The charge-sheet had been filed only on the basis of the statement of the complainant/prosecutrix under Section 164 CrPC.
25. Based on the holistic consideration of the facts and circumstances summarized in the foregoing two paragraphs; we are satisfied, that all the steps delineated by this Court in Rajiv Thapar case [Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330 : (2013) 3 SCC (Cri) 158] stand satisfied. All the steps can only be answered in the affirmative. We therefore have no hesitation whatsoever in concluding, that judicial conscience of the High Court ought to have persuaded it, on the basis of the material available before it, while passing the impugned order, to quash the criminal proceedings initiated against the appellant-accused, in exercise of the inherent powers vested with it under Section 482 CrPC. Accordingly, based on the conclusions drawn hereinabove, we are satisfied that the first information report registered under Sections 328, 354 and 376 of the Penal Code against the appellant- accused, and the consequential charge-sheet dated 28-6-2007, as also the framing of charges by the Additional Sessions Judge, New Delhi on 1-12-2008, deserves to be quashed. The same are accordingly quashed."
Can A Woman Be Charged For Gang Rape as an Abettor?
Supreme Court of India
State Of Rajasthan vs Hemraj & Anr on 27 April, 2009
A bare reading of Section 375 makes the position clear that rape can be committed only by a man. The section itself provides as to when a man can be said to have committed rape. Section 376(2) makes certain categories of serious cases of rape as enumerated therein attract more severe punishment. One of them relates to "gang rape". The language of sub-section(2)(g) provides that "whoever commits `gang rape" shall be punished etc. The Explanation only clarifies that when a woman is raped by one or more in a group of persons acting in furtherance of their common intention each such person shall be deemed to have committed gang rape within this sub- section (2). That cannot make a woman guilty of committing rape. This is conceptually inconceivable. The Explanation only indicates that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group shall be deemed to have committed gang rape. By operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common intention has committed rape. "Common intention" is dealt with in Section 34 IPC and provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. "Common intention" denotes action in concert and necessarily postulates a pre- arranged plan, a prior meeting of minds and an element of participation in action. The acts may be different and vary in character, but must be actuated by the same common intention, which is different from same intention or similar intention. The sine qua non for bringing in application of Section 34 IPC that the act must be done in furtherance of the common intention to do a criminal act. The expression "in furtherance of their common intention" as appearing in the Explanation to Section 376(2) relates to intention to commit rape. A woman cannot be said to have an intention to commit rape. Therefore, the counsel for the appellant is right in her submission that the appellant cannot be prosecuted for alleged commission of the offence punishable under Section 376(2)(g). relied on supreme Court judgment in Priya Patel vs State Of M.P. & Anr on 12 July, 2006)
SUPREME COURT ON MEMORY : -
The Supreme Court in Pragan Singh vs. State of Punjab & Ors.: (2014) 14 SCC 619 had the occasion to examine as to how memory works and whether there should be complete reliance on such human memory even after a lapse of time. In the aforesaid case, a plea was raised by the accused persons that the manner in which the narration was made gave an impression that guess work or conjectures were being resorted to. It was suggested that the witnesses could not have remembered the faces of the accused after 7½ years of the occurrence as memory fades by that time. Though, in that case, the Supreme Court was of the view that the memory of an eye witness who had seen the accused persons killing the deceased would not be easily erased or forgotten more so when the deceased was a friend and the witness himself had narrowly escaped from being killed. Under such circumstances, the Supreme Court was of the view that the memory regarding the face of the accused would be etched in the mind of the witness for a long time. However, while deciding the aforesaid case, the Supreme Court dealt with the manner in which the memory of a person works. In Pragan Singh (Supra), the Supreme Court has held as hereunder:-
"18. Before entering upon the discussion on this aspect specific to this case, we would like to make some general observations on the theory of "memory". Scientific understanding of how memory works is described by Geoffrey R. Loftus while commenting upon the judgment dated 16-1-2002 rendered in Javier Suarez Medina v.Janie Cockrell [ Case No. 01-10763, decided on 16-1-2002 (5th Cir 2002)] by the United States Court of Appeals. He has explained that a generally accepted theory of this process was first explicated in detail by Neisser (1967) and has been continually refined over the intervening quarter-century. The basic tenets of the theory are as follows:
18.1. First, memory does not work like a video recorder. Instead, when a person witnesses some complex event, such as a crime, or an accident, or a wedding, or a basketball game, he or she acquires fragments of information from the environment. These fragments are then integrated with other information from other sources. Examples of such sources are: information previously stored in memory that leads to prior expectations about what will happen, and information-- both information from external sources, and information generated internally in the form of inferences--that is acquired after the event has occurred. The result of this amalgamation of information is the person's memory for the event. Sometimes this memory is accurate, and other times it is inaccurate. An initial memory of some event, once formed, is not "cast in concrete". Rather, a memory is a highly fluid entity that changes, sometimes dramatically, with the passage of time. Every time a witness thinks about some event--revisits his or her memory of it--the memory changes in some fashion. Such changes take many forms. For instance, a witness can make inferences about how things probably happened, and these inferences become part of the memory. New information that is consistent with the witness's beliefs about what must have happened can be integrated into the memory. Details that do not seem to fit a coherent story of what happened can be stripped away. In short, the memory possessed by the witness at some later point (e.g. when the witness testifies in court) can be quite different from the memory that the witness originally formed at the time of the event.
18.2. Memory researchers study how memory works using a variety of techniques. A common technique is to try to identify circumstances under which memory is inaccurate versus circumstances under which memory is accurate. These efforts have revealed four major sets of circumstances under which memory tends to be inaccurate. The first two sets of circumstances involve what is happening at the time the to-be-remembered event is originally experienced, while the second two sets of circumstances involve things that happen after the event has ended.
18.3. The first set of circumstances involves the state of the environment at the time the event is experienced. Examples of poor environmental conditions include poor lighting, obscured or interrupted vision, and long viewing distance. To the degree that environmental conditions are poor, there is relatively poor information on which to base an initial perception and the memory that it engenders to begin with. This will ultimately result in a memory that is at best incomplete and, as will be described in more detail below, is at worst systematically distorted.
18.4. The second set of circumstances involves the state of the observer at the time the event is experienced. Examples of sub-optimal observer states include high stress, perceived or directly inflicted violence, viewing members of different races, and diverted attention. As with poor environmental factors, this will ultimately result in a memory that is at best incomplete and, as will be described in more detail below, is at worst systematically distorted.
18.5. The third set of circumstances involves what occurs during the retention interval that intervenes between the to-be-remembered event and the time the person tries to remember aspects of the event. Examples of memory- distorting problems include a lengthy retention interval, which leads to forgetting, and inaccurate information learned by the person during the retention interval that can get incorporated into the person's memory for the original event.
18.6. The fourth set of circumstances involves errors introduced at the time of retrieval i.e. at the time the person is trying to remember what he or she experienced. Such problems include biased tests and leading questions. They can lead to a biased report of the person's memory and can also potentially change and bias the memory itself."
In AIR 2017SC 1884 in case titled Vineet Kumar v State of UP, Hon'ble Apex Court relying upon the judgment in Prashant Bharti's case (supra ) and Rajiv Thaper ( supra) has quashed a charge sheet under section 376 IPC holding as under: -
Apart from bald assertions by the complainant that all accused have raped, there was nothing which could have led the Courts to form an opinion that present case is fit a case of prosecution which ought to be launched. We are conscious that statement given by the prosecutrix/complainant under Section 164 Cr.P.C. is not to be lightly brushed away but the statement was required to be considered along with antecedents, facts and circumstances as noted above. Reference to the judgment of this Court in Prashant Bharti vs. State(NCT of Delhi), 2013 (9) SCC 293, is relevant for the present case. In the above case the complainant lady aged 21 years lodged an FIR under Section 328 and 354 IPC with regard to the incident dated 15.02.2007. She sent telephonic information on 16.02.2007 and on her statement FIR under Sections 328 and 354 IPC was registered against the appellant. After a lapse of five days on 21.02.2007 she gave a supplementary statement alleging rape by the appellant on 23.12.2006, 25.12.2006 and 01.01.2007. Statement under Section 164 Cr.P.C. of the prosecutrix was recorded. Police filed charge-sheet under Section 328, 324 and 376 IPC. Charge- sheet although mentioned that no proof in support of crime under Section 328/354 could be found. However, on the ground of statement made under Section 164 Cr.P.C. chargesheet was submitted. 37. The appeal was filed against the aforesaid judgment of the High Court by the accused contending that there was sufficient material collected in the investigation which proved that allegations were unfounded and the prosecution of the appellant was an abuse of process of the Court. In paragraph 23 this Court noted several circumstances on the basis of which this Court held that judicial conscience of the High Court ought to have persuaded it to quash the criminal proceedings. This Court further noticed that Investigating Officer has acknowledged that he could not find any proof to substantiate the charges. The charge-sheet had been filed only on the basis of the statement of the complainant/prosecutrix under Section 164 Cr.P.C. In paragraphs 24 and 25 of the judgment following was stated: "
24. Most importantly, as against the aforesaid allegations, no pleadings whatsoever have been filed by the complainant. Even during the course of hearing, the material relied upon by the accused was not refuted. As a matter of fact, the complainant/prosecutrix had herself approached the High Court, with the prayer that the first information lodged by her, be quashed. It would therefore be legitimate to conclude, in the facts and circumstances of this case, that the material relied upon by the accused has not been refuted by the complainant/prosecutrix. Even in the charge sheet dated 28.6.2007, (extracted above) the investigating officer has acknowledged, that he could not find any proof to substantiate the charges. The chargesheet had been filed only on the basis of the statement of the complainant/prosecutrix under Section 164 of the Cr.P.C. 25. Based on the holistic consideration of the facts and circumstances summarized in the foregoing two paragraphs; we are satisfied, that all the steps delineated by this Court in Rajiv Thapar's case (supra) stand - satisfied. All the steps can only be answered in the affirmative. We therefore have no hesitation whatsoever in concluding, that judicial conscience of the High Court ought to have persuaded it, on the basis of the material available before it, while passing the impugned order, to quash the criminal proceedings initiated against the accused-appellant, in exercise of the inherent powers vested with it under Section 482 of the Cr.P.C. Accordingly, based on the conclusions drawn hereinabove, we are satisfied, that the first information report registered under Sections 328, 354 and 376 of the Indian Penal Code against the appellant-accused, and the consequential chargesheet dated 28.6.2007, as also the framing of charges by the Additional Sessions Judge, New Delhi on 1.12.2008, deserves to be quashed. The same are accordingly quashed." 38. Thus, above was the case where despite statement under Section 164 Cr.P.C. by prosecutrix the Court referring to material collected during investigation had held that the case was fit where the High Court ought to have quashed the criminal proceedings."
TESTIMONY OF CHILD WITNESS :-
There is a class of cases which considers that though corroboration should ordinarily be required in the case of a grown-up woman it is unnecessary in the case of a child of tender years. Bishram. v. Emperor, A.I.R. 1944 Nag. 363 is typical of that point of view. On the other hand, the Privy Council has said in Mohamed Sugal Esa v. The King A.I.R. 1946 P.C. 3 at 5 that as a matter of prudence a conviction should not ordinarily be based on the uncorroborated evidence of a child witness. In my opinion, the true rule is that in every case of this type the rule about the advisability of corroboration should be present to the mind of the judge. In a jury case he must tell the jury of it and in a non-jury case he must show that it is present to his mind by indicating that in his judgment. But he should also point out that corroboration can be dispensed with if, in the particular circumstances of the case before him, either the jury, or, when there is no jury, he himself, is satisfied that it is safe to do so. The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, and in jury cases, must find place in the charge, before a conviction without corroboration can be sustained. The tender years of the child, coupled with other circumstances appearing in the case, such, for example, as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand‖.
. In Ratansinh Dalsukhbhai Nayak v. State of Gujarat, (2004) 1 SCC 64, the child was an eye witness to the murder of the two deceased persons. Relying on the testimony of the child witness, the Trial Court convicted the accused under Section 302 IPC and, accordingly, sentenced them. Before the Supreme Court, the appellant placed reliance on Arbind Singh v. State of Bihar, 1995 (4) SCC 416 to contend that where the Court finds traces of tutoring, corroboration is a must before the evidence of the child witness could be acted upon. The Supreme Court referred to Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341, wherein it had been held:
―A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.
In State of Madhya Pradesh v. Ramesh & Anr., 2011 (3) Scale 619, the daughter of the deceased, aged about eight years, was a witness to the crime. On the basis of the statement of the child witness, the two accused were convicted under Section 302 IPC. Accused no.2 was convicted with the aid of Section 120B IPC. The High Court, however, reversed the said judgment and acquitted the accused on the premise that the eye witness PW-1 was a child witness and was, therefore, disbelieved. The Supreme Court reversed the decision of the High Court and restored the conviction of the accused. On the aspect of admissibility of the evidence of a child witness, the Supreme Court referred to several earlier decisions. The relevant passage from this decision of the Supreme Court being instructed, is reproduced herein below:
In Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54, this Court examined the provisions of Section 5 of Indian Oaths Act, 1873 and Section 118 of Evidence Act, 1872 and held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the Court considers otherwise.
The Court further held as under:
―.....It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate....‖
In Mangoo & Anr. v. State of Madhya Pradesh, AIR 1995 SC 959, this Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.
In Panchhi & Ors. v. State of U.P., AIR 1998 SC 2726, this Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that "the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.
In Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, AIR 2008 SC 1460, this Court dealing with the child witness has observed as under: ―The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.‖
The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the crossexamination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to him. (Vide: Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra, AIR 2009 SC 2292).
In State of U.P. v. Krishna Master & Ors., AIR 2010 SC 3071, this Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.
Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness. (Vide: Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516)‖. (emphasis supplied)
The Supreme Court, in view of the aforesaid legal position, summarized the law in the following words:
In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition‖. (emphasis supplied)
Thus, the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the Court may rely upon his evidence. Evaluation of the evidence of a child witness requires more care and greater circumspection, because he is susceptible to tutoring. Only in case there is evidence on record to show that the child has been tutored, the Court may reject his statement partly or fully. An inference as to whether the child has been tutored or not, can be drawn from the content of his deposition.
Delhi High Court
Prem Bahadur @ Bhoj Bahadur vs State on 22 July, 2019
The following guiding principles, governing the admissibility and reliability of the evidence of child witnesses, are readily discernible from the above cited judicial pronouncements:
(i) There is no absolute principle, to the effect that the evidence of child witnesses cannot inspire confidence, or be relied upon.
(ii) Section 118 of the Indian Evidence Act, 1872 discounts the competence, of persons of tender age, to testify, only where they are prevented from understanding the questions put to them, or from giving rational answers to those questions, on account of their age.
(iii) If, therefore, the child witness is found competent to depose to the facts, and is reliable, his evidence can be relied upon and can constitute the basis of conviction.
(iv) The Court has to ascertain, for this purpose, whether (a) the witness is able to understand the questions put to him and give rational answers thereto, (b) the demeanour of the witness is similar to that of any other competent witness, (c) the witness possesses sufficient intelligence and comprehension, to depose, (d) the witness was not tutored, (e) the witness is in a position to discern between the right and wrong, truth and untruth, and (f) the witness fully understands the implications of what he says, as well as the sanctity that would attach to the evidence being given by him.
(v) The presumption is that every witness is competent to depose, unless the court considers that he is prevented from doing so, for one of the reasons set out under Section 118 of the Indian Evidence Act, 1987. It is, therefore, desirable that judges and Magistrates should always record their positive opinion that the child understands the duty of speaking the truth, as, otherwise, the credibility of the witness would be seriously affected, and may become liable to rejection altogether.
(vi) Inasmuch as the Trial Court would have the child before it, and would be in a position to accurately assess the competence of the child to depose, the subjective decision of the Trial Court, in this regard, deserves to be accorded due respect. The appellate court would interfere, therewith, only where the record indicates, unambiguously, that the child was not competent to depose as a witness, or that his deposition was tutored. Twin, and to an extent mutually conflicting, considerations, have to be borne in mind, while ascertaining the competency of a child witness to justify. On the one hand, the evidence of the child witness has to be assessed with caution and circumspection, given the fact that children, especially of tender years, are open to influence and could possibly be tutored. On the other hand, the evidence of a competent child witness commands credibility, as children, classically, are assumed to bear no ill-will and malice against anyone, and it is, therefore, much more likely that their evidence would be unbiased and uninfluenced by any extraneous considerations.
(vi) It is always prudent to search for corroborative evidence, where conviction is sought to be based, to a greater or lesser extent, on the evidence of a child witness. The availability of any such corroborative evidence would lend additional credibility to the testimony of the witness.‖
Delhi High Court
Chand Bibi vs State & Anr. on 8 January, 2019
The failure of the prosecution in not examining the children with whom the prosecutrix was playing may, at the highest, be treated as a lapse on the part of the prosecution. It is a well known and well recognized fact that people in society stay away, and do not like to get embroiled in cases as witnesses - to avoid harassment or face the wrath of the perpetrator of the crime. Since the other two - with whom the prosecutrix was playing were also children, their parents may not have been willing to let them be examined and be subjected and exposed to harassment, trauma and threats. However, the failure of the prosecution to cite them as witnesses, by itself, is not sufficient to disbelieve the case of the prosecution. It was not even the case of the prosecution that the other two children - who were consistently named by the prosecutrix as her friends, and with whom she was playing before the incident of rape occurred, were eye witness to the incident of rape. Thus, their non-examination is not fatal to the case of the prosecution and is not a circumstance which raises a doubt on the truth of the same.
WHAT IS TO BE PROVED IN GANG RAPE CASES :-
Supreme Court of India
Ashok Kumar vs State Of Haryana on 17 December, 2002
the prosecution must adduce evidence to indicate that more than one accused had acted in concert and in such an event, if rape had been committed by even one, all the accused will be guilty irrespective of the fact that she had been raped by one or more of them and it is not necessary for the prosecution to adduce evidence of a completed act of rape by each one of the accused. In other words, this provision embodies a principle of joint liability and the essence of that liability is the existence of common intention; that common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action and it could arise and be formed suddenly; but, there must be meeting of minds. It is not enough to have the same intention independently of each of the offender. In such cases, there must be criminal sharing marking out a certain measure of jointness in the commission of offence. HOWEVER accused's mere presence in his house cannot give rise to a presumption that , he was aware of the illicit affair going on between Anil Kumar and the victim, or that he was acting in concert with Anil Kumar.
SECTION 377 :-
In this context, it would be instructive to refer to the decision of a Constitution Bench of this Court in A.K. Roy v. Union of India 1982) 1 SCC 271 wherein it was held that:
“ 62. The requirement that crimes must be defined with appropriate definiteness is regarded as a fundamental concept in criminal law and must now be regarded as a pervading theme of our Constitution since the decision in Maneka Gandhi. The underlying principle is that every person is entitled to be informed as to what the State commands or forbids and that the life and liberty of a person cannot be put in peril on an ambiguity. However, even in the domain of criminal law, the processes of which can result in the taking away of life itself, no more than a reasonable degree of certainty has to be accepted as a fact. Neither the criminal law nor the Constitution requires the application of impossible standards and therefore, what is expected is that the language of the law must contain an adequate warning of the conduct which may fall within the proscribed area, when measured by common understanding….” (emphasis supplied) The Judgment does not advert to the distinction between consenting adults engaging in sexual intercourse, and sexual acts which are without the will, or consent of the other party. A distinction has to be made between consensual relationships of adults in private, whether they are heterosexual or homosexual in nature.
Supreme Court of India
Navtej Singh Johar vs Union Of India Ministry Of Law And ... on 6 September, 2018
Furthermore, consensual relationships between adults cannot be classified along with offences of bestiality, sodomy and non-consensual relationships.
Sexual orientation is immutable, since it is an innate feature of one’s identity, and cannot be changed at will. The choice of LGBT persons to enter into intimate sexual relations with persons of the same sex is an exercise of their personal choice, and an expression of their autonomy and self-determination. Section 377 insofar as it criminalises voluntary sexual relations between LGBT persons of the same sex in private,discriminates against them on the basis of their “sexual orientation” which is violative of their fundamental rights guaranteed by Articles 14, 19, and 21 of the Constitution.
ii. The mere fact that the LGBT persons constitute a “miniscule fraction” of the country’s population cannot be a ground to deprive them of their Fundamental Rights guaranteed by Part III of the Constitution. Even though the LGBT constitute a sexual minority, members of the LGBT community are citizens of this country who are equally entitled to the enforcement of their Fundamental Rights guaranteed by Articles 14, 15, 19, and 21.
Fundamental Rights are guaranteed to all citizens alike, irrespective of whether they are a numerical minority. Modern democracies are based on the twin principles of majority rule, and protection of fundamental rights guaranteed under Part III of the Constitution. Under the Constitutional scheme, while the majority is entitled to govern; the minorities like all other citizens are protected by the solemn guarantees of rights and freedoms under Part III.
The J.S. Verma Committee, in this regard, in paragraph 77 of its Report states that: “77. We need to remember that the founding fathers of our Constitution never thought that the Constitution is ‘mirror of perverse social discrimination’. On the contrary, it promised the mirror in which equality will be reflected brightly. Thus, all the sexual identities, including sexual minorities, including transgender communities are entitled to be totally protected. The Constitution enables change of beliefs, greater understanding and is also an equally guaranteed instrument to secure the rights of sexually despised minorities. ” (emphasis supplied) iii. Even though Section 377 is facially neutral, it has been misused by subjecting members of the LGBT community to hostile discrimination, making them vulnerable and living in fear of the ever-present threat of prosecution on account of their sexual orientation.
The criminalisation of “carnal intercourse against the order of nature” has the effect of criminalising the entire class of LGBT persons since any kind of sexual intercourse in the case of such persons would be considered to be against the “order of nature”, as per the existing interpretation.
iv. The conclusion in case of Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. to await legislative amendments to this provision may not be necessary. Once it is brought to the notice of the Court of any violation of the Fundamental Rights of a citizen, or a group of citizens the Court will not remain a mute spectator, and wait for a majoritarian government to bring about such a change.
Given the role of this Court as the sentinel on the qui vive, it is the Constitutional duty of this Court to review the provisions of the impugned Section, and read it down to the extent of its inconsistency with the Constitution. In the present case, reading down Section 377 is necessary to exclude consensual sexual relationships between adults, whether of the same sex or otherwise, in private, so as to remove the vagueness of the provision to the extent it is inconsistent with Part III of the Constitution.
History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. The mis-application of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article
The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’.
CONCLUSION i. In view of the aforesaid findings, it is declared that insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution.
It is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion. ii. The declaration of the aforesaid reading down of Section 377 shall not, however, lead to the re- opening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages.
iii. The provisions of Section 377 will continue govern non-consensual sexual acts against adults, all acts of carnal intercouse against minors, and acts of beastiality.
iv. The judgment in Suresh Kumar Koushal & Anr.
v. Naz Foundation & Ors is hereby overruled .
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