No right to rape a woman even if she is habituated to Sexual Intercourse, Supreme Court
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No right to rape a woman even if she is habituated to Sexual Intercourse, Supreme Court

Murali Krishnan

The Supreme Court has observed that nobody has the right to rape a woman even if she is habituated to sexual intercourse.

Even assuming that the prosecutrix was of easy virtue, she has a right to refuse to submit herself to sexual intercourse to anyone, the Court held.

The observation was made by a Bench of Justices R Banumathi and Indira Banerjee while setting aside the verdict of Delhi High Court which had acquitted gang rape accused and had also initiated inquiry against police officials who had investigated the case.

Background

The case of the prosecution was that the accused/respondents, who were living in the neighbourhood of the prosecutrix (PW-1) at Shaheed Bhagat Singh Jhuggi Camp, Katwaria Sarai, entered her jhuggi at about 9 PM and committed rape on her.

Charges were framed against the accused/respondents under Section 376(2)(g) IPC to which they pleaded not guilty. To bring home the guilt of the accused, the prosecution examined seven witnesses and exhibited a number of documents. The accused/respondents in their statement under Section 313 CrPC stated that PW-1-Prosecutrix was of bad character and she was indulging in prostitution and they had lodged a complaint against her and therefore, they were falsely implicated in the rape case.

The trial court convicted accused/respondents under Section 376(2)(g) IPC and sentenced each of them to undergo rigorous imprisonment for ten years.

Aggrieved by the same, the accused/respondents filed an appeal before the High Court. In the High Court, the accused/respondents also filed a petition under Section 391 CrPC for taking additional evidence which was allowed. The High Court allowed the appeal and set aside the conviction of the accused/respondents.

It noted that on the day of the alleged rape, there was a quarrel at the Jhuggi between the sex workers including the prosecutrix. An FIR was registered in connection with the same and the prosecutrix and other ladies were arrested and that they were in police custody till at least 9.30 PM. The High Court, therefore, doubted the prosecution case of rape at 9 pm and held that when the prosecutrix and other ladies were in custody with the police between 08.50 PM till 10.00 PM, it was quite impossible that the occurrence of rape would have taken place at 09.00 PM as alleged by the prosecutrix.

Based upon the Report of Joint Commissioner and the Report of DCP, the High court also directed the Registrar General of the High Court to make a complaint against SI Jai Bhagwan (PW-7), SI Prem Chand (DW-3) and Head Constable Sagar Chand (DW-5) before the concerned court for prosecution for the offences under Sections 193 and 195 IPC.

This judgment was challenged by the State and by the above police officials against whom the High Court had directed action.

Judgment

The Supreme Court proceeded to address some of the contentions of the accused/ respondents.

Absence of External Injuries

One of the contentions of the respondents was that when the prosecutrix was forcibly held by the accused and gang-raped, in all probability, the prosecutrix must have sustained external injuries and absence of external injuries raised serious doubts about the prosecution version. The Court noted that the submission was belied by the presence of bruises on thighs. Further, the absence of external injuries does not tantamount to consent, the Court held.

“The blouse was torn along the back of left sleeve and such injuries were possible by use of force. Further, the version of the prosecutrix is corroborated by MLC(Ex.-PW6/A) and that the injuries found could be possible by use of force. In any event, the absence of external injuries does not tantamount to consent nor does it discredit the version of prosecutrix.”

The Court also relied upon the presence of human semen on the petticoat of the prosecutrix which held corroborated the evidence of the prosecutrix.

Victim not present at the time of alleged crime?

It then came to the main reason based on which the High Court had reversed the conviction – that the prosecutrix had been picked up by the police regarding a quarrel at Shaheed Bhagat Singh Jhuggi and was allegedly in police custody till about 10 pm. Hence she could not have been at the Jhuggi at 9 pm during the time of the alleged rape.

The Court held that the reasoning of the High Court to arrive at such a conclusion proceeds on presumptive footing and surmises.

The Court proceeded to place reliance on the statements made by two Defence Witnesses. One of them, Defence Witness 1, had said that ladies came back to the area at 08.30 PM and started abusing the neighbours”.

Defence Witness 2 had stated that “the police released the said ladies including Phoola and after coming back to her jhuggi, she started abusing the neighbours.”

The Court noted that the evidence of DWs 1 and 2 clearly showed that the prosecutrix was let out by the police at or about 8.20 PM. Mere fact that FIR under Section 160 IPC was registered at 9.20 PM was not indicative of the fact that the prosecutrix and other quarreling ladies were in the police custody till 9.30 PM.

Character assassination

The Court then proceeded to address the contention of the respondents regarding the alleged “bad character” of the prosecutrix and the argument that they were falsely implicated in the rape case for having filed a complaint against the prosecutrix for indulging in prosecution.

The Court proceeded to place reliance on the trial court judgment which had pointed out that nothing was brought on record by the accused to show that they had lodged a complaint against the prosecutrix.

The version that they lodged a complaint against the prosecutrix and therefore, they have been falsely implicated in the case, is not substantiated by any record, the Court held.

The Court also did not view the attempt at character assassination favourably.

Even if the allegations of the accused that the prosecutrix is of immoral character are taken to be correct, the same does not give any right to the accused persons to commit rape on her against her consent, the Court made it clear.

“Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference like the victim being a woman of ‘loose moral character” is permissible to be drawn from that circumstance alone……

Even assuming that the prosecutrix was of easy virtue, she has a right to refuse to submit herself to sexual intercourse to anyone.”

Direction against police officials

The Supreme Court also disapproved of the direction by the High Court to initiate action against police officials who had probed the case. Stating that it was not the correct approach and that the procedure under CrPC has to be followed for the same, it held,

“Before directing the prosecution to be initiated under Section 195 Cr.P.C., the court has to follow the procedure under Section 340 Cr.P.C. and record a finding that ‘it is expedient in the interest of justice……..’. Though wide discretion is given to court under Section 340 Cr.P.C., the same has to be exercised with care and caution. To initiate prosecution under Section 195 Cr.P.C too readily that too against the police officials who were conducting the investigation may not be a correct approach.”

For the above reasons, the court set aside the judgment of the High Court.

Read the judgment below.

Judgment-on-gang-rape.pdf
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