#rape Archives - Prime Legal

10 Jun

MP High Court Mandates Swift Disclosure of Termination Details in Rape Victim’s Case

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Case Title: Shri Lucky Bijolia (Representing Advocate) Vs. The State of Madhya Pradesh Principal Secretary Department of Public Health and Family Welfare & Ors.

Case No.: WRIT PETITION No. 9585 of 2024

Dated on: 30^th APRIL, 2024

Coram: HON’BLE SHRI JUSTICE SUBODH ABHYANKAR

Facts:

In this case, a writ petition was filed under Article 226 of the Constitution of India by the petitioner, who is the father of a rape victim, seeking medical termination of his daughter’s pregnancy. The victim, a minor, was abducted on January 28, 2024, and recovered on March 1, 2024. On the same day of her recovery, her Medical Legal Case (MLC) was conducted, revealing her pregnancy. However, the petition seeking termination of her pregnancy was filed on April 8, 2024, more than a month after the pregnancy was detected. The court noted that neither the treating doctor nor the police officer informed the petitioner or the victim’s relatives about the pregnancy and the possibility of termination under the law. The victim’s pregnancy was terminated on April 17, 2024, following court directions. Further, the court criticized the apathetic conduct of the investigating officer and the treating doctor for failing to inform the victim’s family about her right to terminate the pregnancy, which it deemed as a violation of her right under Article 21 of the Constitution of India.

Legal Provisions:

Medical Termination of Pregnancy Act, 1971: This Act empowers registered medical practitioners to terminate specific pregnancies and addresses related matters or incidental issues.
Article 226 of the Constitution of India: It grants the HCs the power to issue writs, orders, or directions for the enforcement of fundamental rights or for any other purpose within their respective jurisdictions.
Article 21 of the Constitution of India: It guarantees the right to life and personal liberty.

Contentions of the Appellant:

The contentions of the appellant, primarily revolved around seeking medical termination of his daughter’s pregnancy, who is the victim of rape. The appellant argued that the victim, being a minor, should have been informed about her right to terminate the pregnancy under the law. They emphasized that despite the victim being abducted and subsequently recovered, there was a significant delay in filing the petition seeking termination of pregnancy, which they attributed to a lack of awareness about legal provisions regarding termination of pregnancy resulting from rape. Moreover, the appellant sought to highlight the responsibility of the investigating officer and the treating doctor in informing the victim’s family about their rights in such cases, arguing that their failure to do so infringed upon the victim’s right to live with dignity as guaranteed by Article 21 of the Constitution of India.

Contentions of the Respondents:

The respondents, contended that they informed the court that the petitioner’s daughter’s pregnancy had already been terminated on April 17, 2024, in compliance with the court’s previous directive issued on April 12, 2024. Further, they contended that during the victim’s MLC examination, the victim’s mother was present and consented to the examination, during which the victim was informed of her pregnancy. However, they acknowledged that the affidavit of the treating doctor was not filed as the doctor had been transferred, but they did not deny that neither the victim’s parents nor the victim herself were orally informed about the pregnancy and its termination options. Moreover, they provided documentation showing that the investigating officer had informed the petitioner about the victim’s pregnancy on March 4, 2024, during an ultrasound examination, but the officer’s memorandum indicated only the pregnancy status without any advice on termination.

Court’s Analysis and Judgement:

Upon its critical analysis, the Hon’ble Court issued directions and mandated that in all cases of rape where the victim is found to be pregnant, she or her parents must be immediately advised by the police officer and treating doctor about her right to terminate the pregnancy under the Medical Termination of Pregnancy Act, 1971. Failure to comply with these directions would be treated as contempt of court. Moreover, the court ordered that the information provided to the victim and her family members must be documented in writing by the investigating officer and treating doctor. Furthermore, the court directed the dissemination of this order to all police stations in Madhya Pradesh and government hospitals. With these directives, the court disposed of the petition.

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Judgement Reviewed By- Shramana Sengupta

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16 May

Inference of Consent Cannot be Drawn from Absence of Injuries: Supreme Court Affirms Conviction in Decades-Old Gang Rape Case

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Inference of Consent Cannot be Drawn from Absence of Injuries: Supreme Court Affirms Conviction in Decades-Old Gang Rape Case

Case Name: State of Himachal Pradesh v. Raghubir Singh & Ors

Case No.: CRIMINAL APPEAL NO. 2567 OF 2024

Dated: May 15,2024

Quorum: Justice Abhay S Oka and Justice Ujjal Bhuyan

FACTS OF THE CASE:

The facts of the case revolve around the offence punishable under clause (g) of sub-section (2) of Section 376 of the Indian Penal Code, 1860 (commonly referred to as “the IPC”), the respondents in the criminal proceedings have been found guilty by the Himachal Pradesh High Court in Shimla by the contested judgement and order in March 2017. Both of them received harsh sentences of three years in prison and a Rs. fifty thousand fine. Should they fail to pay the fee, they would be subject to a severe six-month prison sentence. Paying the prosecutrix with the fine amount, if deposited, was mandated.

The Trial Court cleared the accused on the grounds that the accused’s defense—that the sexual encounters were consensual—could not be disregarded in the lack of supporting evidence of a struggle on the prosecutrix’s part or supporting harm to the accused’s person.

An appeal was filed against the acquittal verdict by the appellant, the State of Himachal Pradesh. The Sessions Court’s decision was overturned by the High Court’s order of March 28, 2008, and the matter was remitted to the Sessions Court with the instruction that the accused be tried for the crime of gang rape.

Due to the death of one of the defendants, Anil, the case was tried against only five people following the remand decision. Both the accused and the prosecution accepted their cross-examination and the evidence that had been recorded prior to remand. Through its ruling and decree dated September 24, 2008, the Sessions Court once more issued an acquittal decree.

The High Court intervened in an appeal that the State had favoured by issuing the contested judgement and order. It changed the accused’s acquittal into a conviction for the crime covered by Section 376(2)(g) of the IPC.

Criminal Appeal No. 2567 of 2024 has been filed by the State of Himachal Pradesh. The State is upset about the portion of the challenged judgement that reduced the accused’s sentence to three years in prison, which is less than the ten-year minimum stipulated by Section 376(2). This provision was in effect on the day the alleged offence was committed.

LEGAL PROVISIONS:

Section 375 of the IPC- Rape. An individual is considered to have committed “rape” if he: inserts, to any extent, any object or part of the body—that is, anything other than the penis—into a woman’s vagina, urethra, or anus, or forces her to do so with him or another person; or manipulates any part of the woman’s body in such a way as to cause penetration into the vagina, urethra, anus, or any other part of her body.
Section 376(2)(g) of the IPC- Punishment for rape. If someone is a police officer and commits rapes a woman in their care or the care of a police officer subordinate to them, or if they are a public servant and commit rapes a woman in their care or the care of a public servant subordinate to them, those areas are off limits for police officers.

CONTENTIONS OF THE APPELLANTS:

The learned counsel for the appellant/State argues that on remand, the Sessions Court’s decision was deemed erroneous by the state’s knowledgeable attorney. He argued that it would be impossible for a reasonable person to conclude that the sexual encounter was conducted with her permission after reading the prosecutrix’s testimony. According to him, the Trial Court’s method of handling a case involving gang rape of this magnitude was totally inappropriate.

He argued that there was no justification for the High Court to exercise clemency and spare the accused from punishment that fell short of the mandatory minimum period. He argued that the State’s appeal should be granted in order to impose a minimum mandated punishment.

CONTENTIONS OF THE RESPONDENTS:

The learned counsel for the respondents argued that two verdicts of acquittal in favour of the accused were made using the same evidence. He argued that the High Court did not turn the acquittal into a conviction in the appeal against the initial decision of acquittal and instead issued an order of remand. He admitted that the High Court’s decision said that the prosecutrix was older than sixteen on the date the alleged offence occurred.

It was also further argued that consensual sexual relations with a lady who was above sixteen was not illegal, according to Section 375 of the Indian Penal Code, as it was in effect on the relevant date. He urged us to look at the conclusion made in the High Court’s contested decision. According to his submission, the prosecutrix voluntarily followed accused Vijay, who was seated next to her in the video parlour where the prosecutrix was watching a movie. This was the ruling made by the High Court.

According to his submission, the prosecutrix voluntarily followed accused Vijay, who was seated next to her in the video parlour where the prosecutrix was watching a movie. This was the ruling made by the High Court.

He drew attention to the fact that the High Court had decided that the prosecutrix knew the accused Vijay and that he had expressed interest in getting married to her. He stated that even according to the prosecutrix’s case, she had moved ahead of the accused Vijay and arrived at a town bridge.

He said that following careful review of the available evidence, the Sessions Court cleared the accused on two separate times. He emphasised that subsequent to the remand, the Sessions Court determined that the prosecutrix’s testimony included discrepancies and that she had made changes.

Furthermore, the idea that they had sex without her consent is refuted by her actions on the day of the incident. He argued that the mere fact that a different conclusion could be drawn from the same evidence did not warrant the intervention of the High Court.

COURT’S ANALYSIS AND JUDGMENT:

The court reviewed of the challenged decision reveals that, after taking based on the evidence, the High Court has determined that the it has been proven that the accused is guilty. The High Court claims that this finding was the only one that could have been documented based on the documented evidence.

Prior to examining the evidence, it is important to highlight that accused Vijay claimed, in his statement made pursuant to Section 313 of the Code of Criminal Procedure, 1973 (also known as “the Cr.PC.”), that he had an intimate relationship with the prosecutrix for a year. This claim is documented in paragraph 12 of the Sessions Court’s judgement, which was made following remand. For that, she had been collecting money.

According to sub-section (1) of Section 313 of the Cr. PC, the court noted that the conviction cannot be based only on the statements provided by the accused. It is necessary to take into account the accused’s remarks in tandem with the prosecution’s proof. When an accused person bears the burden of proof under a statute, the statements might be more significant. An accused person can always prove their case by a preponderance of the evidence when the law requires them to bear the burden of proof. However, the court may undoubtedly take into account the accused’s Section 313 declaration when determining whether or not he has met his burden of proof.

The court held that Vijay was accused of being occupying the chair close to her. She said accused Vijay advised her to take a bath at a specific location. But she refused to do that. She was informed by accused Vijay that he would like to marry her. The two stepped out of the camera booth and was led to a Manali bridge.where they made her wait. A car driven by a Gipsy was brought. Accused Munna (the fugitive accused) and Ravi. The prosecution before being driven to Solang Nullah and instructed to sit in the car. The when the car came to a stop, accused Vijay brought her close to the Nullah. A massive rock was present. According to her, Vijay was there and possessed her, and engaged in forced sexual relations.

The judge inquired The High Court’s learned judges were aware that the case they were handling included an incident that occurred 28 years ago and that, in the meanwhile, the accused and their families had made progress in life. Consequently, the High Court believed that the exercise of authority under the proviso was justified by sufficient grounds. Nearly 35 years after the incident, an augmentation in sentence is not warranted under the circumstances of this case.

As a result, the court dismissed both the State’s and the accused Vijay’s appeals as without merit. With the possible exception of the accused Vijay, others might have received a three-year term.

According to the ruling dated May 7, 2018, accused Vijay was granted bail in his appeal. He has not served the three-year sentence. He cannot be given any further mercy, given the seriousness of the offence. As a result, Vijay, the accused, must serve out the remainder of his sentence.

Judgment reviewed by Riddhi S Bhora

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8 Mar

No false promise of marriage; Prosecutrix mature enough to foresee her actions: Supreme Court quashes the FIR alleging Rape

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Blog # Supreme Court, #False promise, #FIR, #Marriage, #rape, #Subsistence of marriage

Case title – XXXX vs State of Madhya Pradesh & Anr

Case no. – Criminal Appeal No. 3431 OF 2023

Decided on – March 06, 2024

Quoram – Justice C.T. Ravikumar and Justice Rajesh Bindal

Facts of the case

The respondent 2/complainant, a married women had filed an FIR under Sections 376(2)(n) and 506 IPC alleging that her tenant (appellant) maintained physical relationship with her on a promise to marry her.

The appellant in the present case filed an appeal under Section 482 Cr.P.C. for quashing the FIR against him. The High Court dismissed the petition filed by him. Subsequently, he filed an appeal before the Apex Court.

Court’s observation and analysis

Firstly, the Court noted the discrepancy in the FIR filed by the complainant and the statement recorded by her under Section 164 Cr.P.C.

In the FIR, the respondent/complainant stated that she managed her own cloth shop. As there was a dispute with her husband, she was living separately. She has a daughter aged 15 years. On 10.12.2018, she got divorce from her husband. In 2017, Sadbhav Company had taken first floor of their house on rent in which the appellant, who was working with the company, stayed. During spare time, the appellant used to meet her in the shop.

Gradually, the relations developed. The appellant proposed that in case she takes divorce, he will marry her. The complainant stated that after the divorce, on 10.01.2019, at about 11.00 PM, the appellant came to her room and had physical relations on false promise of marriage. When she insisted for marriage, he refused by saying that his family didn’t agree. Thereafter, the FIR was got recorded on 11.12.2020.

There was complete change in the stand of the complainant in her statement recorded under Section 164 Cr.P.C. The fact remains that the parties admittedly were in relations from 2017 onwards. Some alleged promise to marry came in January 2019, from where they started having physical relations. It has also come on record that it is not only the consent of the complainant which is clearly evident but also of the parents and daughter of the complainant as they were living in the same house, where allegedly the appellant and the complainant were having physical relations.

Secondly, the court observed that, in the FIR the complainant stated that she got divorce from her earlier husband on 10.12.2018. But, in the statement under Section 164 Cr.P.C., she stated that marriage between the appellant and the complainant was solemnized in a temple in January 2019. However, in actuality, the complainant obtained divorce from her husband in 2021, which reveals that the complainant re-married the appellant during subsistence of her earlier marriage.

Thirdly, on the basis of the FIR and the statement recorded, the Court inferred there was no promise to marry initially when the relationship started in the year 2017. Even on the dates when the complainant alleges that the parties had physical relations, she was already married to the appellant. The Court relied on the precedence in Naim Ahamed v. State (NCT of Delhi) and ruled that the appellant was not guilty in the instant case.

Judgement

The complainant had a child who was 15 years old and was 10 years older than the tenant. The Court pointed out that the complainant was a mature individual who could foresee her actions and take right decision.

The Court stated that she was matured and intelligent enough to understand the consequences of the moral and immoral acts for which she consented during subsistence of her earlier marriage. Therefore, the Court held that the initiation of rape proceedings against the appellant was an abuse of process of law and quashed the FIR against the appellant.

Judgement Reviewed by – Keerthi K

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3 Mar

Navigating the legal issue: Sexual Violence in Conflict Areas

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Articles #Legal issue, #rape, #Sexual Violence, #UN report

Our duty is not just to stand in solidarity with the survivors, but to actively work towards eradicating sexual violence in conflict and creating a future free from fear – Phumzile Mlambo-Ngcuka.

INTRODUCTION –

The world has seen various conflicts over numerous reasons throughout its history and further various tactics and actions have been undertaken to destroy the opposite nation with arguably, sexual violence in such areas being the worst.

Sexual Violence has been defined as “Sexual violence is any sexual act, attempt to obtain a sexual act, or other act directed against a person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any setting. It includes rape, defined as the physically forced or otherwise coerced penetration of the vulva or anus with a penis, other body part or object” by the World Health Organization.

Further, conflict related sexual violence is defined as “refers to rape, sexual slavery, forced prostitution, forced pregnancy, forced abortion, enforced sterilization, forced marriage and any other form of sexual violence of comparable gravity perpetrated against women, men, girls or boys that is directly or indirectly linked to a conflict” by the United Nations.

As reflected by the quote, the article will try to analyze the way forward in relation to sexual conflict in conflict areas herein referred to as Conflict related sexual violence.

BRIEF HISTORY AND PRESENT SCENARIO OF CONFLICT RELATED SEXUAL VIOLENCE –

It has been noted that the act of rape was criminalized by few army codes as early as 14^th century noting the affect it would have had on the civilians as well as the discipline of the army.

The Lieder Code drafted during the American Revolution in February of 1863 has been considered as the earliest known legal code which tried to establish the law dealing with armed conflict which mentions and states that sexual assault was a punishable offence.

World War 2 was another armed conflict where sexual violence was silent evil which prevailed as a silent crime. after the end of the war saw one of the most criticized judgments regarding to sexual violence, produced by the judges who were a part of the Nuremberg Trials, they had stated that the laws of the war which explicitly criminalized sexual violence in conflict areas was only applicable to the enemy nations and not the allied forces^[1]. This was further in relation to the highly debated Sexual violence allegations which was leveled against the soviet Army which was part of the Allied forces.

On the backdrop of the World War 2, the Geneva Conventions,1949 was passed which explicitly criminalized wartime Rape through Article 27. Further, this period saw many nations around the world gain their independence and further, enact their own laws criminalizing Sexual Violence altogether. But Conflict related sexual violence is still very much prevalent in the modern days with many allegations being leveled against various countries and their armies in the 21^st century. few of the recent armed conflicts where there was an alleged large scale sexual violence are Tigray War, Myanmar Civil War, Russian Invasion of Ukraine etc.

It must be noted that even with various international conventions which have been ratified by various countries across the globe, Conflict related sexual violence is still as prevalent as it was in the 20^th century with many being recorded for namesake without holding anyone responsible for the same.

THE UNITED NATIONS REPORT ON CONFLICT BASED SEXUAL VIOLENCE

The United Nations report on conflict-related sexual violence covering 2022 underscores the urgent need to address this horrific issue. It has persisted despite international efforts to eradicate it, and the report highlights the dreadful situation that continues to spread out in various conflict-ridden regions around the world. Survivors of conflict-related sexual violence constitute a diverse and multifaceted group. The report documents cases involving women, girls, men, boys, and individuals of diverse sexual orientations, gender identities, and those affected by disabilities. Their ages range from the very young to the elderly, with the majority coming from socioeconomically marginalized communities.

It is important to note that the report further uncovers the often-overlooked reality that men, boys, and gender non-conforming individuals are also strongly impacted by conflict-related sexual violence. Despite progress, it is crucial to confront the ongoing challenges faced by survivors and the children born of conflict-related rape. Stigma, insecurity, and socioeconomic isolation persist, casting long shadows over the lives of those affected.

As the civic space decreased and the rule of law weakened in 2022, both state and non-state armed groups saw the opportunity to exploit the vulnerabilities of affected populations. Groups used sexual violence, including rape, gang rape, and abductions, as real weapons, and instruments, causing immeasurable suffering to individuals and communities. Internationally recognized terrorist organizations and transnational criminal networks have employed sexual violence as a tactical weapon to destabilize already fragile regions.

This action and tactic of committing sexual violence has hindered all sorts of morality as well as any attempt made for a peaceful resolution of the issue. In several instances, sexual violence has been used as an instrument of intimidation. In some cases, the authorities responded to civilian demonstrations and protests with disproportionate force, including the use of sexual violence as a means of repression. This abuse of power creates a climate of fear that completely suppresses dissent and undermines basic human rights.

The involvement of multiple countries and their armies has made it difficult to hold perpetrators accountable. All too often, attribution for these dreadful crimes has been hindered because of the presence of multiple and varied actors, including state forces, private military and security companies, and militias operating alongside national armed forces. This lack of accountability perpetuates an extremely dangerous cycle of impunity, emboldening those who commit sexual violence to continue their actions without any fear of consequences.

In order to address all these issues, it is pertinent to make sure that every claim of sexual violence is thoroughly investigated by a third independent body whose reports and findings are bindings as well as further acting as a solid proof in order to meet the ends of justice.

CONCLUSION

Conflict related sexual violence is still a huge issue which has to be addressed with due care and regards. It has often so happened that various instances of such conflict related sexual violence have just been forgotten or addressed poorly with the victims finding absolutely no justice. Further, the crippled international laws and organisations are bound by their limitations due to which they do not address such issues and cases until and unless they are in the interests of the countries which are considered to be the first world countries.

Therefore, there is an urgent need to address the issue of sexual violence in conflict areas with humanity and justice at the core rather than beneficial interests of the countries and for this to happen, there is a need for the international organisations to take up such issues more seriously and make sure that the nation at fault is punished according to the conventions laid down because at the end of the day, everyone is a human regardless of which country they belong to.

Article Written By – Namratha Sharma

5 Feb

Maintaining a sexual relationship with consent from the inception is not an offence: Supreme Court

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Case title: Sheikh Arif vs State of Maharashtra & Ors.

Case no.: Criminal appeal no. 1368 of 2013

Decided on: 30.01.2024

Quorum: Hon’ble Justice Abhay S. Oka, Hon’ble Justice Pankaj Mithal

FACTS OF THE CASE:

The current appeal is in the case of rape based on a false promise of marriage. The second respondent filed a complaint against the appellant at the Sadar Police Station in Nagpur. According to the complaint, the appellant and the second respondent first met in 2011. They became acquainted with each other and entered into a relationship. The second respondent alleges that the appellant attempted to maintain a physical relationship with her but she prevented him from doing so. However, by making a false promise of marriage, the appellant engaged in sexual intercourse with her on multiple occasions.

During sexual intercourse, she became pregnant and had an abortion. She then engaged with the appellant. For the second time, she became pregnant. The second respondent then saw photos of the appellant’s engagement ceremony with another woman on his cell phone. The second respondent stated that she was informed the day before the complaint was filed that the appellant had married another girl. The appellant claims that there was a Nikah between him and the second respondent at Dargah. The appellant’s case is that he was unable to produce the original Nikahnama, but the police seized a copy of it.

ISSUES:

Whether or not the appellant maintained a relationship based on a false promise of marriage?

LEGAL PROVISION:

According to Section 375 of the IPC, if the victim of the alleged rape is over the age of 18, having a sexual relationship with her consent is not a crime.

APPELLANTS CONTENTION:

The appellant’s learned counsel argued that their long-standing relationship with the second respondent was always consensual. He stated that the appellant married the second respondent on January 20, 2017. He argued that the appellant’s prosecution constitutes an abuse of legal process.

RESPONDENTS CONTENTION:

The State’s counter-claim stated that the report of a handwriting expert was requested in order to determine the genuineness of the signatures on the Nikahnama. The learned counsel for the second respondent contended that, even if it is assumed that the second respondent consented to the continuation of a physical relationship, this consent was tainted by fraud and misconception. She contended that, despite the Investigating Officer’s repeated requests for the appellant to produce the original Nikahnama, he failed to do so, and thus an adverse inference must be drawn against him. She urged that, in any case, the issues raised could only be addressed during the trial.

COURT ANALYSIS AND JUDGEMENT:

The court cited the case of Anurag Soni, which held that if the victim’s consent is based on a misconception, it is irrelevant because it is not voluntary consent. If it is established that the victim’s consent was obtained as a result of a false promise to marry, there will be no consent, and the offence of rape will be proven.

The court noted that the second respondent was admittedly older than 18 when the relationship began. It also stated that at the time the complaint was filed, the second respondent was 24 years old.

Despite the fact that the second respondent claimed it was a forced relationship, she did not file any complaints until the complaint date. According to the second respondent, the appellant and the second respondent held an engagement ceremony in July 2017. As a result, on the facts of the case, it is impossible to accept that the second respondent maintained a physical relationship with her from 2013 to 2017 based on a false promise to marry.

Now, when it comes to the Nikahnama, it is true that the original could not be produced. However, the seizure panchnama indicates that a carbon copy of the Nikahnama was taken. The police officers present at Nikah recorded the statement of one Burhanuddin. He confirmed the fact that the appellant and the second respondent performed Nikah together.

The doctor who treated the appellant and second respondent claimed that the second respondent informed her that the appellant was her husband.

Finally, the court found that the appellant’s physical relationship with the second respondent was consensual. In fact, she attended the engagement ceremony without protest. However, she denies that she married the appellant. Taking the prosecution’s case as true, it is impossible to accept that the second respondent maintained a physical relationship solely because the appellant made a promise of marriage.

As a result, the impugned judgement and order, as well as the charge sheet filed on the basis of the same, are quashed and set aside, and all future proceedings in the case are quashed.

Written by – Surya Venkata Sujith

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