Punjab and Haryana High Court: While deciding the present appeal preferred by the accused of the Jindal gang rape case, Tejinder Singh Dhindsa and Pankaj Jain, JJ., upheld the conviction of 20 years rigorous imprisonment to 2 former students of Jindal Global Law School and acquitted the third giving him benefit of doubt.
The 3 accused preferred the instant appeals against the judgment of the trial court, arising out of FIR No. 144 dated 11-04-2015 registered under Sections 376-D, 376(2)(n), 376, 292, 120-B, 506 of the Penal Code, 1860 (‘IPC’) and Section 67 of the Information Technology Act, 2000.
Facts:
The victim met the prime accused in the year 2013 and became friends. After a while, the accused started forcing himself on the victim and using abusive language to address her. Later, he performed some abusive acts and threatened the victim that he would viral her nude pictures which were obtained by him. The accused used these pictures as constant blackmail and made the victim do questionable things which are below the dignity of a female.
Arguments:
The counsel for the appellants submitted that the judgment convicting the appellants is based upon mere testimony of the victim.
The counsel for the appellant contended that there is no evidence to prove the meeting of the minds of Accused 2 and Accused 3.
He further argues that on bare reading of Section 90 with Section 375 IPC, it is clear that Section 375 IPC being a specific provision dealing with rape would have an overriding effect on the provision of Section 90 IPC. Thus, the victim has to show that her consent has been obtained by putting her or any person in whom she is interested in fear of ‘death’ or of ‘hurt’ to hold the appellant guilty for offense punishable under Section 376 IPC. He submits that the allegations leveled by the prosecutrix do not satisfy the ingredients of Section 375 IPC. As per the provision contained in Section 375 IPC, in a consensual encounter the victim has to show that her consent has been obtained by putting her under fear of death or of hurt to make out a case of rape. He contends that mere blackmailing on the strength of objectionable/obscene material would not fall within the definition of ‘death’ or ‘hurt’.
The counsel for the victim submitted that it is a settled law that the sole testimony of a victim is enough to prove the guilt of the accused.
He further submitted that it is not a case where the prosecutrix ‘consented’ but it is a case where she was left with no other choice but to ‘submit’.
He further relied upon Deelip Singh v. State of Bihar, (2005) 1 SCC 88 to submit that while unveiling the dimensions of ‘consent’ in the context of Section 375 IPC, the Courts have not merely gone by language of Section 90 but have travelled a wider field guided by etymology of the word ‘consent’.
Issue:
Whether the act alleged in the present case can be said to be with consent of the prosecutrix or was without consent?
Observation and Analysis:
The Court said that the Criminal Law (Amendment) Act, 2013 sought to amend the Indian Evidence Act, 1872 to protect the dignity of women.
The Court said that the argument raised by the counsel for the prime accused with reference to there being a conflict between Section 90 and Section 375 and his insistence upon reading upon the third circumstance as described under Section 375 over and above Section 90 is misconceived and misplaced. The Court said that there is no conflict between the two. Further, it said that Section 90 IPC does not define ‘consent’ but decrees that the ‘consent’ given under fear or misconception is in fact ‘no consent’.
The Court said that where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.
The Court further observed that the question of consent will arise only where the prosecutrix has an option to say ‘no’. In a situation where she has no option but to submit, mere submission on her part will not constitute ‘consent’ and the case will fall within Section 375.
The Court, after a composite reading of the whole WhatsApp chat, reveals that the victim was at the command of Accused 2 as he used to blackmail her.
The Court noticed the fact that she was video-graphed while performing objectionable acts at Chandigarh also stands corroborated. Time and again she was being threatened with publishing her intimate/obscene pictures.
The Court said “Reading of the whole chat demonstrates the bawdiness with which the prosecutrix was treated by Accused 2. She was not only abused and bruised but was denied even basic dignity to which a living creature is entitled to, leave aside the courtesy and compassion that a human being offers to a fellow. It is evident from the chat that the prosecutrix was in a quagmire. She was noosed and the dilemma that she was facing was not only to keep the noose loose but also to conceal it. Whole of the time she was carrying the burden of the diabolical designs of the accused. Even her mother was not spared and the victim had to hear abuses qua her mother as well. Any resistance on part of the prosecutrix was chewed-out by the accused 2 even more severely. In such a situation, it can’t be said that she was a consenting party.”
Thus, the Court found the statement of the victim trustworthy and the same stood fully corroborated by the evidence on record in the form of WhatsApp Chats.
The Court held that no fault can be found with the Trial Court in believing that the statement of the victim is trustworthy as the Prosecution has successfully proved that the victim was being blackmailed and forced into an abusive relationship.
Further, the Court said that Accused 2 and Accused 3 acting in furtherance of common intention committed rape upon the prosecutrix thereby committing offence punishable under Section 376-D IPC. Owing to the repeated rape committed by Accused 2, the Trial Court has rightly found him to be guilty of offence punishable under Section 376(2)(n) IPC. Likewise, no fault can be found with conviction and sentence awarded to Accused 1. Similarly, the allegation with respect tocirculation of the obscene/intimate pictures of the prosecutrix by accused also finds corroboration by the statements made by other witnesses. Thus, no fault can be found with the conviction of Accused 2 and Accused 1 for offences punishable under Section 67 of the Information Technology Act, 2000 and Section 292 r/w Section 34 of the IPC.”
The Court held that the appeals preferred by the appellants namely Accused 1 and Accused 2, are dismissed. Whereby, the appeal made by Accused 3 stands allowed as Accused 2 and Accused 3 had no meeting of minds. Hence, Accused 3 was acquitted of all the charges giving him benefit of doubt.
[Karan v. State of Haryana, 2022 SCC OnLine P&H 2540, decided on 30-09-2022]
Advocates who appeared in this case:
For the Appellants: Mr. A.P.S. Deol, Senior Advocate
Mr. Vishal Rattan Lamba, Advocate
Mr. Abhimanyu Tewari, Advocate
Ms. Sanya Kaushal, Advocate
Mr. Aditya Singla, Advocate
Mr. S.S. Narula, Advocate
Mr. R.S. Cheema, Senior Advocate
Mr. Arshdeep S. Cheema, Advocate
Mr. Satish Sharma, Advocate
For the Complainant: Mr. Preetinder S. Ahluwalia, Advocate
Mr. Randhir Singh, Addl. Advocate General
