A woman who says no means no: Bombay High Court upholds gang-rape conviction

The Bombay High Court at Nagpur recently reaffirmed that a woman's past intimacy with a man does not amount to perpetual consent for sexual relations, and that forced intercourse with someone she had past relations with remains rape. [Maksud Sheikh Gaffur Sheikh v. State of Maharashtra].The Division Bench of Justices Nitin B Suryawanshi and MW Chandwani stated,“A woman who says ‘'NO" means "NO’'. There exists no further ambiguity and there could be no presumption of consent based on a woman’s so called ‘immoral activities’.”It emphasised that consent must be explicit and specific to every instance. “A woman who consents to sexual activities with a man at a particular instance does not ipso facto give consent to sexual activity with the same man at all other instances. A woman’s character or morals are not related to the number of sexual partners she has had in wake of Section 53A of the Indian Evidence Act." .The Court made these observations while upholding the conviction of two men in a 2014 gang-rape and assault case. The prosecutrix, a Muslim woman living with her Hindu partner Dinesh, was first verbally confronted by two men - Wasim and Sheikh Kadir Sheikh Jakir - for being in an inter-faith relationship. Matters escalated on November 5, when Maksud Sheikh Gaffur Sheikh, brother of the landlord, entered into an altercation with the couple. That evening, Maksud returned with Wasim and Kadir. The men forcibly entered the couple’s rented room, beat Dinesh with a baton, slapped the prosecutrix, and forced both her and another friend Rakesh to strip and pose in humiliating positions, which were recorded on Wasim’s mobile phone..Later, the prosecutrix and Dinesh were abducted in a car, where Dinesh was beaten, robbed and left on a railway track. He narrowly escaped with the help of railway employees. The prosecutrix was taken to a forested area near Tadoba, where she was raped - first by a juvenile accomplice and then by Wasim and Kadir, in the dead of night. The woman later lodged a police complaint and the accused were arrested.Wasim and Kadir were convicted under Sections 376D (gang rape), 307 (attempt to murder), 366 (abduction), 394 (robbery), and other provisions of the IPC, along with relevant sections of the Information Technology Act. They were sentenced to life imprisonment by the trial court..While refusing to overturn the conviction, the Court observed,“Rape is the most morally and physically reprehensible crime in society, as it is an assault on the body, mind and privacy of the victim. Rape objectifies a woman and thereby shakes the very core of her life. Sexual intercourse on one hand gives pleasure to the participants including a woman but if it is done without consent of the woman, it is an assault on her body, mind and privacy.”The Bench noted that the prosecutrix’s testimony was consistent and credible, even if medical signs of resistance were absent. It applied the "sterling witness" test and ruled that her version could stand as the sole basis for conviction.It rejected the defence’s contention that the prosecutrix had a prior relationship with one of the accused, and that her conduct suggested voluntary participation. “No doubt, the prosecutrix was an estranged wife and without getting divorced from her husband, she was residing with Dinesh. Even from her evidence, this material was brought in her cross-examination to suggest that she had an intimate relationship with Wasim before she started residing with Dinesh in a live-in-relationship inspite of the fact that her previous marriage was subsisting. Even then, a person cannot force a woman to have intercourse with him without her consent."However, the Court reduced the sentence of the convicts to 20 years' rigorous imprisonment, considering mitigating factors such as no grievous injuries, prior intimacy and good jail conduct. The sentence under attempt to murder was reduced from life imprisonment to 10 years' rigorous imprisonment..Advocates RM Daga, RK Tiwari, Arjun V Bobde, Shubhangi Jadhao and RR Vyas appeared for the appellants.Additional Public Prosecutor SS Doifode appeared for the State..[Read Order]