Morals, Past Partners Irrelevant: Bombay HC Upholds Gang Rape Conviction

In a significant ruling, the Bombay High Court at Nagpur Bench clarified that sexual intercourse without consent, with a woman of 18 years of age or above, is an offence and has no relevance with assertions related to past partners or morals – A woman’s agreement to engage in sexual activity with a man on one occasion does not automatically imply her consent for future sexual encounters, Court said.

A Division Bench of Justice Nitin B Suryawanshi and Justice MW Chandwani, while partly allowing the appeal, observed,

“it is an offence if sexual intercourse is done without the consent of a major woman of the age of 18 years and above. 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…. 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.”

Court also reiterated, citing earlier precedents that in cases of rape, mere absence of medical evidence to prove sexual intercourse cannot reject strong, truthful evidence given by the prosecutrix.

Reliance was placed on the Top Court decision in HP v. Raghubir Singh, (1993) 2 SCC 622, where it was held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction – Evidence has to be weighed and not counted

Punishment was modified for convicts Wasim and Kadir from imprisonment for life to rigorous imprisonment (RI) for 20 years, for Dinesh RI for 10 years and Jobi, considering that he was working under Wasim, period of 3 years was reduced to imprisonment already served.

The bench noted that, “One of the principles of punishment is that punishment should be proportionate with the crime and shall be awarded according to the offence. For deciding the appropriate sentence, a balance has to be maintained between the aggravating and mitigating circumstances in which the crime has been committed. Imposition of punishment in a rape case depends upon the degree of atrocity of crime, conduct of the criminal and the defenseless and unprotected state of the victim.”

Brief Background

Four separate appeals were filed by the convicts challenging order by the ASJ, Chandrapur in Sessions Case No. 22 of 2015, which was filed against the appellants under different provisions of the Penal Code, 1860 and the Information Technology Act, 2000.

APP for the State contended that the prosecutrix cannot be disbelieved even if the Doctor found no sign of injury or restraint – being habitual to sexual intercourse, absence of injury on private parts cannot rule out rape, more particularly when the prosecutrix was under the influence of liquor which was forcefully administered to her, the counsel pressed.

Counsel for the appellants submitted that the material available on record does not suggest any injury except injury on elbow and below right eye – if the alleged incidents occurred on the ground, in jungle and, if a person is raped on an earthy surface, injuries on other parts of the body must also reflect, more particularly, on the back of the victim, it was submitted.

It was further added that the Court must also take into account that the prosecutrix had a former intimate relationship with Wasim, and that the version of the prosecutrix failed to corroborate with the DNA report.

Case Title: Maksud Sheikh & Ors. v. State of Maharashtra