SEXUAL OFFENCES

Facts: Four petitions has been filed in this case out of which two are purely in the nature of Public Interest Petitions while the third petition has been filed by Ms Khushboo Saifi wherein she has made assertions that she has been subjected to sexual abuse including rape by her husband. The fourth petition has also been instituted by an individual i.e., Mr Farhan.

Held: The Delhi high court, gave a split verdict in a case related to the criminalisation of marital rape.
The verdict was delivered by a division bench of Honorable Justices Rajiv Shakdher and C. Hari Shankar. The case will now be dealt with by the Honorable Supreme Court.
JUSTICE SHAKDHER’S OBSERVATIONS:
Justice Shakdher ruled in favour of striking down the exception – that is, Exception 2 to Section 375 of the Indian Penal Code (IPC) which says that sexual intercourse by a man with his own wife is not rape.
The major observations made by him are:
1. To understand whether a classification based on the relationship between the offender and victim is constitutionally viable, one would have to examine whether the classification has an intelligible differentia (IA) with the object which is sought to be achieved.
2. It cannot be doubted that there is a differentia between married, separated and unmarried couples. However, what needs to be established once the differentia is accepted is: whether the differentia between married and unmarried couples has a rational nexus with the object, which the main provision seeks to achieve; that is, protecting a woman from being subjected to a sexual act against her will or her consent.
3. Marital Rape Exception (MRE) does not meet the nexus test as it grants impunity to an offender based on his relationship with the victim.
4. The classification, in his opinion, is unreasonable and manifestly arbitrary as it seems to convey that forced sex outside marriage is “real rape” and that the same act within marriage is anything else but rape.
5. For a woman who is violated by her husband by being subjected to the vilest form of sexual abuse (i.e., rape), it is no answer to say that the law provides her with other remedies. When marriage is a tyranny, the state cannot have a plausible legitimate interest in saving it.
“In every sense, MRE, in my view, violates the equality clause contained in Article 14 of the constitution.” Justice Shakhder said.
6. The classification between married and unmarried couples in the context of forced sex is not just unequal in its operation, but is also manifestly unjust. As such, he called marital rape exception oppressive.
7. While sex workers have been invested with the power to say ‘no’, by law, a married woman has not.
8. The immediate deleterious impact of the provisions of MRE is that while an unmarried woman who is the victim of the offence of rape stands protected and/or can take succour by taking recourse to various provisions of the IPC and the [Criminal Procedure] Code, the same regime does not kick-in if the complainant is a married woman.
Article 21
9. The offence of rape and injury caused remains the same, irrespective of who the offender is and therefore, the MRE is violative of Article 21 of the constitution.
10. Women’s right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty, which encompasses her right to protect her physical and mental being.
Articles 15 and 19(1)(a) of the constitution
11 Continuance of the MRE on the statute violates Articles 15 of the Constitution since it triggers discrimination against women based on their marital status. As a result, it impairs and nullifies their sexual agency with regard to coitus and their right to procreate or abstain from procreation. More fundamentally, according to Justice Shakdher, women’s power to negotiate contraception, to protect themselves against sexually transmissible disease and to seek an environment of safety, away from the clutches of her abuses, is completely eroded.
12. Likewise, the MRE, is also violative of Article 19(1)(a) as it violates the guarantee given by the constitution concerning freedom of expression, amongst others, to married women who are citizens of this country. The guarantee of freedom of expression includes a woman’s right to assert her sexual agency and autonomy.
Conjugal expectations
13. With regard to conjugal expectations, he observed that these expectations, even though legitimate during the subsistence of a joyful marriage, cannot be put at par with unbridled access and/or marital privilege claimed by the husband vis-a-vis his wife, disregarding circumstances and her physical and mental condition.
‘Non-consensual sexual intercourse is not labelled as ‘rape’ to save the institution of marriage’
14. The marital bond between individuals is the edifice of the familial structure. However, the edifice can remain intact only if it is rooted in mutuality, partnership, agency and the ability to respect each other’s yearning for physical and mental autonomy.
Sexual assault by the husband on his wife, which falls within the fold of Section 375 of the IPC, needs to be called out as rape as that is one of the ways in which the society expresses its disapproval concerning the conduct of the offender.
JUSTICE SHANKAR’S OBSERVATIONS
Justice Shankar, meanwhile, ruled against striking down the MRE.
The following were the nine observations made by him:
1. The impugned exception chooses to treat sex, and sexual acts, within a surviving and subsisting marriage differently from sex and sexual acts between a man and woman who are unmarried. It extends this distinction holding that, within marital sexual relations, no “rape”, as statutorily envisioned by Section 375, can be said to occur.
2. In treating sexual acts between a husband and wife, whether consensual or non-consensual, differently from non-consensual sexual acts between a man and woman not bound to each other by marriage, the legislature cannot be said to have acted unconstitutionally.
3. The distinction is based on IA having a rational nexus to the object sought to be achieved by the impugned exception, which fulfils not only a legal but also a laudatory object, and does not compromise any fundamental rights guaranteed in Part III of the constitution.
4. It is not open to courts to examine whether the object of the legislation is sufficient to justify the differentia. A writ court, venturing into that territory, would clearly be exceeding the boundaries of its authority under Article 226.
5. Section nowhere disallows a wife from saying no to sexual intercourse, the language of the section plainly states that sexual acts and sexual intercourse, by a man with his wife, are not rape.
Article 14
6. Arbitrariness, as an abstract concept, cannot constitute the basis for striking down a legislative provision as unconstitutional, or as violative of Article 14. It has to be remembered that Article 14, after all, pertains to the fundamental right to equality.
Challenge related to section 376B (which deals with sexual intercourse between husband and wife in separation)
7. Sexual intercourse between a separated couple cannot be equated with sex between strangers or to a couple in marriages cohabiting together. Therefore, a middle path has been carved out by the legislature and there is no reason to interfere with this dispensation.

Facts: On 6.11.1995, Nasima Begum (PW. 1), aged about 16 years filed a complaint alleging that on that day while she was going to attend her tuition alongwith her friend Nilufa Khatun, she met the Appellant on the way who suddenly came and forcibly caught hold of her hair and planted a kiss, resultantly, she suffered a cut over her lower lip and started bleeding. Appellant was held guilty in trial for the offence punishable under Section 354 of Indian Penal Code, 1860. Appellant contended that since the incident occurred more than 18 years ago and at that time the Appellant as well as the complainant were about 16 years of age, the court should not send the Appellant to jail at such a belated stage. Considering the fact that the Appellant was juvenile in view of the provisions of Juvenile Justice Act, 2000, he ought to have been tried before the Juvenile Justice Board and not by the criminal court, as was done. Even otherwise, considering the time gap of 18 years and the fact that the Appellant as well as the complainant have settled in life and both of them are married and have children, their lives should not be disturbed. In all circumstances, the court should give the benefit to the Appellant under the provisions of Probation of Offenders Act, 1958. State of West Bengal has opposed the appeal contending that considering the nature of offence wherein the modesty of a young girl was outraged, the question of showing any leniency or granting the benefit of the Act 1958 is not warranted. Even if the case of the Appellant is considered under the JJ Act 2000, the maximum punishment that can be awarded is of 3 years, while in the instant case, the Appellant had been sentenced only for a period of six months. Therefore, it will be a futile exercise to consider the case of the Appellant on that anvil. Nasima Begum who had no enmity against the Appellant has been very consistent about the factual matrix not only in her statement under Section 161 of Code of Criminal Procedure, 1973 but also before the court and had supported the prosecution case fully. Her version was corroborated by several other witnesses and the courts below have recorded a finding that the Appellant was guilty beyond reasonable doubt.

Held: In the instant case, as the Appellant has committed a heinous crime and with the social condition prevailing in the society, the modesty of a woman has to be strongly guarded and as the Appellant behaved like a road side Romeo, we do not think it is a fit case where the benefit of the Act 1958 should be given to the Appellant. In view of the above, we are of considered opinion that as the Appellant had been awarded only six months imprisonment, considering the matter under the JJ Act, 2000 would not serve any purpose at such a belated stage. The High Court had been of the opinion that Appellant had been dealt with very leniently and it was a fit case where the High Court wanted to enhance the sentence but considering the fact that the incident occurred long back, the High Court refrained to do so. Thus, the appeal fails and is accordingly dismissed. The Appellant is directed to surrender within a period of four weeks to serve out the sentence.

Facts: On 6.11.1995, Nasima Begum (PW. 1), aged about 16 years filed a complaint alleging that on that day while she was going to attend her tuition alongwith her friend Nilufa Khatun, she met the Appellant on the way who suddenly came and forcibly caught hold of her hair and planted a kiss, resultantly, she suffered a cut over her lower lip and started bleeding. Appellant was held guilty in trial for the offence punishable under Section 354 of Indian Penal Code, 1860. Appellant contended that since the incident occurred more than 18 years ago and at that time the Appellant as well as the complainant were about 16 years of age, the court should not send the Appellant to jail at such a belated stage. Considering the fact that the Appellant was juvenile in view of the provisions of Juvenile Justice Act, 2000, he ought to have been tried before the Juvenile Justice Board and not by the criminal court, as was done. Even otherwise, considering the time gap of 18 years and the fact that the Appellant as well as the complainant have settled in life and both of them are married and have children, their lives should not be disturbed. In all circumstances, the court should give the benefit to the Appellant under the provisions of Probation of Offenders Act, 1958. State of West Bengal has opposed the appeal contending that considering the nature of offence wherein the modesty of a young girl was outraged, the question of showing any leniency or granting the benefit of the Act 1958 is not warranted. Even if the case of the Appellant is considered under the JJ Act 2000, the maximum punishment that can be awarded is of 3 years, while in the instant case, the Appellant had been sentenced only for a period of six months. Therefore, it will be a futile exercise to consider the case of the Appellant on that anvil. Nasima Begum who had no enmity against the Appellant has been very consistent about the factual matrix not only in her statement under Section 161 of Code of Criminal Procedure, 1973 but also before the court and had supported the prosecution case fully. Her version was corroborated by several other witnesses and the courts below have recorded a finding that the Appellant was guilty beyond reasonable doubt.

Held: In the instant case, as the Appellant has committed a heinous crime and with the social condition prevailing in the society, the modesty of a woman has to be strongly guarded and as the Appellant behaved like a road side Romeo, we do not think it is a fit case where the benefit of the Act 1958 should be given to the Appellant. In view of the above, we are of considered opinion that as the Appellant had been awarded only six months imprisonment, considering the matter under the JJ Act, 2000 would not serve any purpose at such a belated stage. The High Court had been of the opinion that Appellant had been dealt with very leniently and it was a fit case where the High Court wanted to enhance the sentence but considering the fact that the incident occurred long back, the High Court refrained to do so. Thus, the appeal fails and is accordingly dismissed. The Appellant is directed to surrender within a period of four weeks to serve out the sentence.

Facts: On 6.11.1995, Nasima Begum (PW. 1), aged about 16 years filed a complaint alleging that on that day while she was going to attend her tuition alongwith her friend Nilufa Khatun, she met the Appellant on the way who suddenly came and forcibly caught hold of her hair and planted a kiss, resultantly, she suffered a cut over her lower lip and started bleeding. Appellant was held guilty in trial for the offence punishable under Section 354 of Indian Penal Code, 1860. Appellant contended that since the incident occurred more than 18 years ago and at that time the Appellant as well as the complainant were about 16 years of age, the court should not send the Appellant to jail at such a belated stage. Considering the fact that the Appellant was juvenile in view of the provisions of Juvenile Justice Act, 2000, he ought to have been tried before the Juvenile Justice Board and not by the criminal court, as was done. Even otherwise, considering the time gap of 18 years and the fact that the Appellant as well as the complainant have settled in life and both of them are married and have children, their lives should not be disturbed. In all circumstances, the court should give the benefit to the Appellant under the provisions of Probation of Offenders Act, 1958. State of West Bengal has opposed the appeal contending that considering the nature of offence wherein the modesty of a young girl was outraged, the question of showing any leniency or granting the benefit of the Act 1958 is not warranted. Even if the case of the Appellant is considered under the JJ Act 2000, the maximum punishment that can be awarded is of 3 years, while in the instant case, the Appellant had been sentenced only for a period of six months. Therefore, it will be a futile exercise to consider the case of the Appellant on that anvil. Nasima Begum who had no enmity against the Appellant has been very consistent about the factual matrix not only in her statement under Section 161 of Code of Criminal Procedure, 1973 but also before the court and had supported the prosecution case fully. Her version was corroborated by several other witnesses and the courts below have recorded a finding that the Appellant was guilty beyond reasonable doubt.

Held: In the instant case, as the Appellant has committed a heinous crime and with the social condition prevailing in the society, the modesty of a woman has to be strongly guarded and as the Appellant behaved like a road side Romeo, we do not think it is a fit case where the benefit of the Act 1958 should be given to the Appellant. In view of the above, we are of considered opinion that as the Appellant had been awarded only six months imprisonment, considering the matter under the JJ Act, 2000 would not serve any purpose at such a belated stage. The High Court had been of the opinion that Appellant had been dealt with very leniently and it was a fit case where the High Court wanted to enhance the sentence but considering the fact that the incident occurred long back, the High Court refrained to do so. Thus, the appeal fails and is accordingly dismissed. The Appellant is directed to surrender within a period of four weeks to serve out the sentence.

Facts: On 6.11.1995, Nasima Begum (PW. 1), aged about 16 years filed a complaint alleging that on that day while she was going to attend her tuition alongwith her friend Nilufa Khatun, she met the Appellant on the way who suddenly came and forcibly caught hold of her hair and planted a kiss, resultantly, she suffered a cut over her lower lip and started bleeding. Appellant was held guilty in trial for the offence punishable under Section 354 of Indian Penal Code, 1860. Appellant contended that since the incident occurred more than 18 years ago and at that time the Appellant as well as the complainant were about 16 years of age, the court should not send the Appellant to jail at such a belated stage. Considering the fact that the Appellant was juvenile in view of the provisions of Juvenile Justice Act, 2000, he ought to have been tried before the Juvenile Justice Board and not by the criminal court, as was done. Even otherwise, considering the time gap of 18 years and the fact that the Appellant as well as the complainant have settled in life and both of them are married and have children, their lives should not be disturbed. In all circumstances, the court should give the benefit to the Appellant under the provisions of Probation of Offenders Act, 1958. State of West Bengal has opposed the appeal contending that considering the nature of offence wherein the modesty of a young girl was outraged, the question of showing any leniency or granting the benefit of the Act 1958 is not warranted. Even if the case of the Appellant is considered under the JJ Act 2000, the maximum punishment that can be awarded is of 3 years, while in the instant case, the Appellant had been sentenced only for a period of six months. Therefore, it will be a futile exercise to consider the case of the Appellant on that anvil. Nasima Begum who had no enmity against the Appellant has been very consistent about the factual matrix not only in her statement under Section 161 of Code of Criminal Procedure, 1973 but also before the court and had supported the prosecution case fully. Her version was corroborated by several other witnesses and the courts below have recorded a finding that the Appellant was guilty beyond reasonable doubt.

Held: In the instant case, as the Appellant has committed a heinous crime and with the social condition prevailing in the society, the modesty of a woman has to be strongly guarded and as the Appellant behaved like a road side Romeo, we do not think it is a fit case where the benefit of the Act 1958 should be given to the Appellant. In view of the above, we are of considered opinion that as the Appellant had been awarded only six months imprisonment, considering the matter under the JJ Act, 2000 would not serve any purpose at such a belated stage. The High Court had been of the opinion that Appellant had been dealt with very leniently and it was a fit case where the High Court wanted to enhance the sentence but considering the fact that the incident occurred long back, the High Court refrained to do so. Thus, the appeal fails and is accordingly dismissed. The Appellant is directed to surrender within a period of four weeks to serve out the sentence.

Facts: On 6.11.1995, Nasima Begum (PW. 1), aged about 16 years filed a complaint alleging that on that day while she was going to attend her tuition alongwith her friend Nilufa Khatun, she met the Appellant on the way who suddenly came and forcibly caught hold of her hair and planted a kiss, resultantly, she suffered a cut over her lower lip and started bleeding. Appellant was held guilty in trial for the offence punishable under Section 354 of Indian Penal Code, 1860. Appellant contended that since the incident occurred more than 18 years ago and at that time the Appellant as well as the complainant were about 16 years of age, the court should not send the Appellant to jail at such a belated stage. Considering the fact that the Appellant was juvenile in view of the provisions of Juvenile Justice Act, 2000, he ought to have been tried before the Juvenile Justice Board and not by the criminal court, as was done. Even otherwise, considering the time gap of 18 years and the fact that the Appellant as well as the complainant have settled in life and both of them are married and have children, their lives should not be disturbed. In all circumstances, the court should give the benefit to the Appellant under the provisions of Probation of Offenders Act, 1958. State of West Bengal has opposed the appeal contending that considering the nature of offence wherein the modesty of a young girl was outraged, the question of showing any leniency or granting the benefit of the Act 1958 is not warranted. Even if the case of the Appellant is considered under the JJ Act 2000, the maximum punishment that can be awarded is of 3 years, while in the instant case, the Appellant had been sentenced only for a period of six months. Therefore, it will be a futile exercise to consider the case of the Appellant on that anvil. Nasima Begum who had no enmity against the Appellant has been very consistent about the factual matrix not only in her statement under Section 161 of Code of Criminal Procedure, 1973 but also before the court and had supported the prosecution case fully. Her version was corroborated by several other witnesses and the courts below have recorded a finding that the Appellant was guilty beyond reasonable doubt.

Held: In the instant case, as the Appellant has committed a heinous crime and with the social condition prevailing in the society, the modesty of a woman has to be strongly guarded and as the Appellant behaved like a road side Romeo, we do not think it is a fit case where the benefit of the Act 1958 should be given to the Appellant. In view of the above, we are of considered opinion that as the Appellant had been awarded only six months imprisonment, considering the matter under the JJ Act, 2000 would not serve any purpose at such a belated stage. The High Court had been of the opinion that Appellant had been dealt with very leniently and it was a fit case where the High Court wanted to enhance the sentence but considering the fact that the incident occurred long back, the High Court refrained to do so. Thus, the appeal fails and is accordingly dismissed. The Appellant is directed to surrender within a period of four weeks to serve out the sentence.

Facts: In the evening of 16.12.2012, the prosecutrix had gone for a movie with her friend, PW-1. Both the prosecutrix and PW-1 left the movie theatre and reached Munirka bus stand and they boarded the bus. This bus was being driven by Accused Ram Singh and the Petitioner-Akshay Kumar Singh @ Thakur was the helper thereof. The Accused misbehaved with the prosecutrix and have committed gang rape of the prosecutrix in the moving bus. They also committed unnatural offence and inserted iron rod in the private parts of the prosecutrix. The Accused persons had beaten up PW-1 with iron rods and his clothes were torn off. The Accused also took away all the belongings of the prosecutrix and PW-1 and thereafter, threw the prosecutrix and PW-1 in a naked condition from the moving bus. The prosecutrix was treated at Safdarjung Hospital, Delhi where her three dying declarations were recorded. Since the condition of the prosecutrix became critical, she was shifted for further treatment to Mt. Elizabeth Hospital, Singapore where, she died on 29.12.2012. The trial court convicted the accused which was confirmed by the High court. Hence, the present appeal.

Held: The victim and her friend had reposed complete confidence in occupants of contract bus while boarding same to reach their destination. Convicts misused confidence and faith of victim and her friend, made them to board bus so as to overpower them on way and satisfy their lust. Crime was pre-planned and executed by resorting to diabolical method, exhibiting inhuman conduct in ghastly manner. Convicts behaved in barbaric and inhuman manner by inserting rods and hand in victim's private parts and taking out her internal organs, committing the offence of rape. Convicts also pulled victim with hair, dragged her from rear portion of bus to front gate and threw her out of bus alongwith her friend in nude condition on road side. Not only to deter others from committing such atrocious crimes, but also to give emphatic expression to society's abhorrence of such crimes, death penalty needed to be confirmed. Appeal dismissed.

Facts: In the evening of 16.12.2012, the prosecutrix had gone for a movie with her friend, PW-1. Both the prosecutrix and PW-1 left the movie theatre and reached Munirka bus stand and they boarded the bus. This bus was being driven by Accused Ram Singh and the Petitioner-Akshay Kumar Singh @ Thakur was the helper thereof. The Accused misbehaved with the prosecutrix and have committed gang rape of the prosecutrix in the moving bus. They also committed unnatural offence and inserted iron rod in the private parts of the prosecutrix. The Accused persons had beaten up PW-1 with iron rods and his clothes were torn off. The Accused also took away all the belongings of the prosecutrix and PW-1 and thereafter, threw the prosecutrix and PW-1 in a naked condition from the moving bus. The prosecutrix was treated at Safdarjung Hospital, Delhi where her three dying declarations were recorded. Since the condition of the prosecutrix became critical, she was shifted for further treatment to Mt. Elizabeth Hospital, Singapore where, she died on 29.12.2012. The trial court convicted the accused which was confirmed by the High court. Hence, the present appeal.

Held: The victim and her friend had reposed complete confidence in occupants of contract bus while boarding same to reach their destination. Convicts misused confidence and faith of victim and her friend, made them to board bus so as to overpower them on way and satisfy their lust. Crime was pre-planned and executed by resorting to diabolical method, exhibiting inhuman conduct in ghastly manner. Convicts behaved in barbaric and inhuman manner by inserting rods and hand in victim's private parts and taking out her internal organs, committing the offence of rape. Convicts also pulled victim with hair, dragged her from rear portion of bus to front gate and threw her out of bus alongwith her friend in nude condition on road side. Not only to deter others from committing such atrocious crimes, but also to give emphatic expression to society's abhorrence of such crimes, death penalty needed to be confirmed. Appeal dismissed.

Facts: On 14.12.2016, the informant (mother of the prosecutrix) lodged a report at police station Gittikhadan, Nagpur, stating therein that the appellant took her daughter (prosecutrix) aged about 12 years, on the pretext of giving her guava, in his house and pressed her breast and attempted to remove her salwar. At that point of time, the informant reached the spot and rescued her daughter. Immediately, she lodged First Information Report. On the basis of the said FIR, crime came to be registered against the appellant/accused.

Held: The act of pressing of breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of 'sexual assault'. The act of pressing breast can be a criminal force to a woman/ girl with the intention to outrage her modesty. It is not possible to accept this submission for the aforesaid reasons. Admittedly, it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration. In view of the above discussion, this Court holds that the appellant is acquitted under Section 8 of the POCSO Act and convicted under minor offence u/s. 354 of IPC and sentenced him to undergo R.I. for one year and to pay fine of Rs. 500/-, in default of fine to suffer R.I. for one month. The sentence for the offence punishable under Section 342 of the Indian Penal Code i.e. six months and fine of Rs. 500/-, in default to suffer R.I. for one month, is maintained.