This article is written by Ms. Somya Jain, from the Vivekananda Institute of Professional Studies. The article analyses the judgment of the State of Maharashtra v. Mahadu Dagdu Shinde with respect to the scope of rape cases. It specifies the ambit of evidence to be considered by the court while dealing with such cases.
From time immemorial, women have been treated as chattels of their male counterparts. Their rights have been curtailed to a large extent and the underlying social stigmas prevalent in the society have deteriorated the status of women. As per the traditional orthodox patriarchal society, women should be prohibited from indulging in any activity that pleases them while male counterparts were allowed to keep more than one wife. With the advancement in time, though the legislature ensured that greater rights should be provided to females to uplift their community yet even today women suffer from the evils of rape under the hands of males. The cases of rape have been on a constant rise and the brutality against women seem to have no end.
The judiciary has tried to bring about a positive change in society by time and again expanding the definition and interpretation regarding the concept of rape. Keeping aside the existing taboos and social stigmas in society, the judiciary has taken the initiative to act as a guard of the rights of women as far as relevant and protect them from unnecessary harassment. Similarly, in a recent case of the State of Maharashtra v. Mahadu Dagdu Shinde (2021), the Bombay High Court has taken an expanded view on the rights of women. It has attempted to break the stereotypical views of society and has tried to establish an acceptable approach towards women that needs to be normalised in the present day scenario.
Backdrop of the case
The present case is filed as an appeal before the Aurangabad bench in the High Court of Bombay. Initially, the case was delivered by the learned Additional Sessions Judge, Kopargaon, in Sessions Case No. 19 of 2010. In the said case, the accused was acquitted of the charges of having committed an offence punishable under Section 376 and Section 506 of the Indian Penal Code.
An overview of the factual matrix
The facts of the case are:
- Prior to the date of the incident 25 March 2010, the wife of the accused along with her son went to Vadner for a religious function.
- On the date of the incident, at around 10:30 am, the accused, who was the prosecutrix’s cousin father-in-law, grabbed her from behind while she was pouring water for herself from a jar.
- While questioning this act of the accused, he told her not to worry and pushed her on the floor. He then committed the act of rape. The prosecutrix was on her third day of the menstrual cycle.
- According to the prosecutrix, she was partially paralysed which prevented her from fighting the accused. As a result of which the accused took advantage of her.
- After committing the offence, the accused threatened the prosecutrix that if she narrated this incident with anyone she would be dead. The prosecutrix was frightened. Later, when the mother-in-law and the father-in-law of the prosecutrix arrived, she narrated the incident to them.
- Following this, her husband who was living with his second wife in Pune also arrived. Later a police complaint was lodged against the accused charging him for committing the offence of rape and criminal intimidation under Section 376 and 506 of the IPC.
Analysis of the evidence
It is pertinent to understand and analyse the evidence which was appreciated by the court. To interpret the ambit of considerations in rape cases, the evidence forms an essential part. Therefore, the entire judgment revolves around the facts and circumstances in addition to the evidence. Some of the interpretations of evidence given by the courts are:
- As per the claims of the prosecutrix, she suffered from injuries on her head and on her back. According to her, there was a bump on her head. Furthermore, she claimed that the bangles that she was wearing were broken due to which there was swelling on the right hand and abrasions on the wrist. But on close scrutiny, the medical officer declared that there were no such injuries either on the head or on the back as claimed by the prosecutrix. She clarified further that no such injuries or abrasions were visible on the hands of the prosecutrix which would have normally happened with the breaking of the bangles. The Court thereafter upheld that the version of the prosecutrix of having suffered from head or back injury or for that matter abrasions on her hand was false with regards to contradictory medical evidence.
- The prosecutrix also claimed that due to the forceful and offensive sexual intercourse she had suffered an injury on her private part which resulted in administering 3 to 4 stitches. As per the medical examination, no such injury was found on her private part and as such no stitches were administered. The Court observed that her claim regarding the injury on her private part was false and found no basis for the same.
- It was also claimed that the prosecutrix kicked and slapped the accused while the offensive act was being committed. However, the said claim found no basis in the medical report. The Court observed that as there was no declaration of hand imprint that would prove the claim of the prosecutrix slapping the accused. Further, had she kicked the accused with her legs, he would have suffered injuries on his body or private part, but no such abrasions could be discovered.
- Apart from the above observations, the Court also considered the statement mentioned in the medical report that no semen stains were found on the petticoat or the private part of the prosecutrix.
Judgment of the Court
The Aurangabad bench of the Bombay High Court headed by Justice Ravindra V Ghuge and Justice BU Debadwar while defining the offence of rape under Section 376 of IPC declared that if the prosecutrix has opposed sexual intercourse by any person, her disinclination or her refusal will be tantamount to the male counterpart offending her physically and such intercourse committed against the will and the desire of the prosecutrix, would constitute an offence punishable under Section 376 of the IPC.
However, the Court contemplated the other essential requirements that form the basis of appreciating a rape case with regards to the evidence produced. In the present case, the Court remarked that the prosecution failed to establish the guilt of the accused. According to the claims of the prosecutrix, no injuries or abrasions were seen on either the victim or the accused, no semen stains were discovered and further, the medical reports stand in contradiction to the claims of the prosecution. After considering the admissible evidence, the Court concluded that there were no legitimate grounds on which the accused could be punished. Further, the Court stated that apart from the strenuous submissions made by the prosecution about the abrasions and the injuries suffered even though they were proved to be false, they failed to convince the bench that despite the absence of abrasions and injury the evidence proves to be against the accused thereby, strong enough to convict him.
The Court declared that the fact of the victim being previously habituated to sexual intercourse with someone else is immaterial while considering the medical evidence or the case as a whole. At last, the Court held that due to the failure on the part of the prosecution to prove the guilt of the accused and the prevalence of law on record which denies conviction on the basis of suspicion, the decision of the Additional Session Judge is upheld and the accused is acquitted.
Interpreting the scope of evidence to be contemplated while dealing with rape cases
The present matter has highlighted the scope of considering evidence with respect to rape cases. It has covered several legal aspects which form the basis of jurisprudential principle followed by the Indian courts from time immemorial. Some of these principles are discussed as follows:
Voluntary sexual intercourse with someone else
One of the most controversial observations made by the Court was that a rape victim having voluntary sexual intercourse with someone else is immaterial in deciding a rape case. As per the medical report of the prosecutrix, there was a statement that stated though the prosecutrix was deserted by her husband years ago, she was habituated to sexual intercourse. The Court declared that the above statement will be considered immaterial in the case. It was further noted that the disinclination of a woman to indulge in sexual intercourse would be tantamount to the male counterpart who is offending her physically and that would be covered under Section 376 IPC. Voluntary sexual intercourse of a woman with someone else cannot be equated to her character or rather her willingness to indulge in sexual intercourse.
As per the Criminal Law (Amendment) Act 2013, Section 53A was added in the Indian Evidence Act. Section 53A states that the evidence of the character of the victim and of such person’s previous sexual experience with any persons shall not be relevant on the issue of such consent or the quality of consent. Initially, the courts observed that while considering the medical examination of the victim, many a time they observed the usage of the phrase “habitual to sexual intercourse” which would then be related to the consent of the victim to have sexual intercourse with the accused. The usage of this phrase was derogatory in all terms and could not be supported by the legislators. With the insertion of this Section, the presumption accommodated with previous sexual intercourse and habituation of the same has been declared irrelevant while considering any rape case.
In the case of Abdul Sattar v. State of Uttar Pradesh & Anr. (2019), the Supreme Court bench headed by CJI SA Bobde observed that the Allahabad High Court took into consideration the medical examination reports of the victim which stated that the prosecutrix sustained no internal or external injury and further that she was habituated to sexual intercourse. Refraining from accepting the same, the Court upheld that the fact of the victim being habitual to sexual intercourse is no valid ground and hence should be abstained from the purview of the case.
In another case of Jai Bhagwan v. State (Govt. of N.C.T. Delhi) (2018), the Supreme Court upheld that women have the right to refuse to submit herself to sexual intercourse even if she is habituated to sexual intercourse. Further, the Court declared that if presumptions that the prosecutrix is of easy virtue is formed, no inference of her holding a “loose character” be established. The fact that someone’s character is judged on her being habituated to sexual intercourse is against the rights of women and should be forbidden under all circumstances.
A strong suspicion is no ground for conviction
Courts have reiterated in various judicial pronouncements the essentials for proving the guilt of the accused. For guilt to be proved a complete chain of events must be cogently placed. Even a slight doubt or a strong suspicion cannot be considered for convicting an accused. The courts are required to entertain the conviction of the accused where the prosecution has left no other hypothesis of guilt other than that of the accused. There should not be any human possibility left that would point towards the innocence of the accused. Further, suspicion should not be treated as substantive evidence and thereby the courts cannot base their judgment on mere suspicion no matter how strong it may stand. Suspicion, therefore, is disregarded by the courts as it creates an apprehension or conjecture of the innocence of the accused in the minds of the judges.
In the case of Sujit Biswas v. State of Assam (2013), the Apex Court observed that suspicion, however, grave it may be, cannot take the place of proof, as there is a large difference between something that ‘may be’ proved, and something that ‘will be proved’. It divides vague conjectures from sure conclusions. Accordingly, vague interpretations without any cogent and unimpeachable evidence while convicting an accused if considered by the judiciary, will lead to miscarriage of justice. It is substantial for any court to ensure complete and comprehensive appreciation of the facts and circumstances, in addition to analysis of the evidence brought on record.
The accused is innocent until proven guilty beyond reasonable doubt
The first and the foremost principle in criminal jurisprudence is that the accused is always presumed to be innocent until he is proven guilty of the said offence. When an accused is presented before a court, a common opinion framed in the minds of the people is that the accused is guilty. Such vague interpretations of society should be discerned by the courts. Therefore, the judiciary has established the practice of treating an accused innocent until his guilt is proven and that too beyond a reasonable doubt.
The concept of ‘innocent until guilty’ has been practised for a long time in India now. Though the principle finds no place in the Indian Constitution, it can be construed from Article 20(3) of the Indian Constitution, which provides the right to the accused against self-incrimination. If an accused is forced to give a statement against himself, it would prove to be ghastly for keeping both the parties on an equal footing. Further, Section 101 and 102 of the Indian Evidence Act provides that it is not the accused who has to prove his innocence, rather, it is the prosecution who needs to establish the guilt of the accused.
In case the appellate court wished to arrive at a contradictory finding then it must satisfy itself that the trial court committed a patent error in delivering a finding of acquittal and there is not even an iota of doubt in the mind of the appellate court that the accused alone and no one else has committed the crime and this is proved beyond any reasonable doubt.
Delving into the concept of ‘proof beyond a reasonable doubt’, the Supreme Court has time and again explained what would be regarded as reasonable and its underlying scope. In the case of State of Madhya Pradesh v. Dharkole @ Govind Singh and others (2004), the Court reiterated that doubts will be regarded as reasonable when they are free from any speculation. Further, reasonable doubt should not be trivial, imaginary or merely possible doubt, rather, it must be based on reason and common sense of the prudential person. Reasonable doubt must be interpreted from the evidence produced before the court and not from vague apprehensions.
However, it has to be understood that the benefit of the doubt given to the accused should be perused in accordance with the caution not extending to a miscarriage of justice. The thread of reasonable doubt should not be stretched without any basis and thereby embracing even a hunch or hesitancy as being reasonable.
Judicial pronouncements considered by the Court
While dealing with the matter, the court considered some judicial pronouncements which were settled on the issue at hand. Supporting the present case, these judgments form a part of the critical analysis of the matter. Some of the judgements referred to by the court are:
Shivaji Sahebrao Bobade & Anr. vs. State of Maharashtra
Justice V.R Krishna Iyer, in the case of Shivaji Sahebrao Bobade and another v. State of Maharashtra (1973), held that in desperation to apply the principle of innocence of the accused, the criminal justice should not be diluted. The courts should adopt a pragmatic approach while dealing with such cases. The golden thread to be used while deciding appeal matters of acquittal of the accused must be the examination of reasons on which the acquittal was based and must establish compelling reasons for interfering in the decision of the lower court. Once the appellate court is satisfied after close scrutiny that the judgment of the trial court judge is unreasonable and requires the interference of the court, then only the court should convict a guilty person. it is a court’s duty to convict a guilty person when the guilt is established beyond a reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established. One cannot hide under the garb of doubts of him being an accused which are not reasonable in essence. This would negatively affect the faith of the people in the judiciary. Therefore, the presumption of innocence must be construed under criminal justice based on potent and realism.
Chandran @ Surendran and Anr. vs. State of Kerala
The Court in the case of Chandran @ Surendran and Anr. vs. State of Kerala (1991), while circumscribing the area of circumstantial evidence, observed that there was a lack of confidence which could be instilled in the courts by the presence of strong evidence. The Court in the present case, while inferring the guilt of the accused, kept itself limited to circumstantial evidence as no direct evidence was available. The Court declared that such circumstantial evidence should be of definite tendency pointing towards the guilt of the accused and it must unerringly lead to the conclusion that the offence was committed by the accused and none else. Further, the Court stated that while construing the evidence, a careful, meticulous and cautious approach should be adopted by the courts.
State of Odisha vs. Banabihari Mohapatra and Anr.
In the recent case of State of Odisha vs. Banabihari Mohapatra and Anr. (2021), the Supreme Court emphasised the role played by suspicion while construing any criminal appeal. According to the Court, suspicion, however strong it may be, cannot be substituted with substantial evidence. Suspicion can never take the place of proof and the court cannot base its order of conviction on the basis of suspicion. A conviction cannot be imparted merely on the grounds of suspicion. The prosecution has to prove the guilt of the accused beyond a reasonable doubt, without which he cannot be charged with any offence. Placing a strong foot on the law, the court added that there were a plethora of judicial pronouncements which settled the issue thereby stating that suspicion, however strong, cannot take the place of proof. An accused is presumed to be innocent unless proven guilty beyond a reasonable doubt.
Language of the Court
Apart from the above observations, the Court also observed that the language used by the Additional Session Judge was of “great concern”. The usage of a particular word throughout the judgment in a repeated manner has been greatly criticised by the Court. Accordingly, the word used corresponds to slang language and should be prohibited while delivering the judgment in toto. The Court further observed that such words are derogatory and utterly disrespectful to women. It was also noted by the Court that though the Marathi version of the evidence of the prosecutrix specified certain Marathi words used by her, yet the Hon’ble Trial Court repetitively used objectionable words, while recording the English version of her testimony.
The standpoint of the considerations undertaken in rape cases is somewhat similar to that of other criminal cases. In addition to proving the guilt of the accused beyond any reasonable doubt, the rights of the women should be given substantial acknowledgement. With the commencement of the Amendment Act 2013, the laws favouring the female counterpart have been strengthened further to ensure their protection and security. One such positive change was to not consider the previous sexual relations or her being habituated to sexual intercourse while analysing the case. It is the right of women to refuse to indulge in sexual relations with anyone and if her disinclination is not observed by a particular individual, he will be punished for the offence of rape under Section 376. Apart from this, the courts must ensure that the accused is guilty beyond any reasonable doubt. Suspicion no matter how strong it may be, must not be replaced with substantive evidence and should not be entertained in convicting the accused. Therefore, the slightest doubt of the accused not being guilty of the offence would unveil the applicability of the principle of innocence until proven guilty beyond any reasonable doubt.
- Rape victim voluntarily having sexual intercourse with someone else is immaterial in deciding rape case: Bombay High Court (barandbench.com)
- Having sexual intercourse with somebody else is immaterial in deciding a rape case – Lawcutor
- Bombay HC Pulls Up An Additional Sessions Judge For Using Slang/Foul Words ‘Disrespectful To Women’ In Rape Case (lawtimesjournal.in)
- Victim Is habituated To sex cannot Be A Defence To Act of Ra (pathlegal.in)
- Nobody has the right to rape a woman even if she is habituated to sexual intercourse, says Supreme Court-India News, Firstpost
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