Supreme court : The court should not accept defence taken by accused in his statement U/S 313 of CRPC if he has not cross examined prosecutrix in that respect

We have carefully perused the cross-examination of the prosecutrix. In the cross-examination, the case put to her was that she had voluntarily accompanied the Accused Vijay. There was no suggestion given by the Accused that the sexual intercourse with the prosecutrix was with her consent. The evidence of the prosecutrix in her examination-in-chief that the Accused committed sexual intercourse with her has not been shaken. The case of Accused Vijay made out in his statement Under Section 313 of Code of Criminal Procedure was that he was in a relationship with the victim for one year and was paying money to the victim for maintaining a sexual relationship. This case has not been put to the prosecutrix. Even the case made out by Accused Sunil and Ravi that they were keeping a physical relationship with the prosecutrix by paying money has not been put to the prosecutrix.

{Para 10}

11. If the relationship between Accused Vijay and the prosecutrix was really continuing for one year, there was no reason for him to take the prosecutrix to a remote place near a Nullah and have sexual intercourse near a boulder. The same is the case with the other two Accused. The manner in which the prosecutrix was taken initially near the Nullah and after that to another place establishes the case of the prosecutrix of forcible sexual intercourse. Few insignificant contradictions have been brought on record in the cross-examination of the prosecutrix. However, the version of the prosecutrix about the acts of forcible sexual intercourse by the Accused has been hardly tested in the cross-examination.

12. In this view of the matter, the High Court's conclusion was the only possible conclusion based on the evidence on record. Therefore, we find no merit in the appeal preferred by the Accused Vijay.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2567 of 2024 and 2568 of 2024

Decided On: 15.05.2024

State of Himachal Pradesh Vs. Raghubir Singh and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Ujjal Bhuyan, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation:  MANU/SC/0430/2024.

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Whether husband can be prosecuted under S 304B and S 498A of IPC even if he is not legally married with prosecutrix?

Can a person who enters into a marital arrangement be allowed to take shelter behind a smokescreen to contend that since there was no valid marriage, the question of dowry does not arise? Such legalistic niceties would destroy the purpose of the provisions. Such hairsplitting legalistic approach would encourage harassment to a woman over demand of money. The nomenclature "dowry" does not have any magic charm written over it. It is just a label given to demand of money in relation to marital relationship. The legislative intent is clear from the fact that it is not only the husband but also his relations who are covered by Section 498A. The legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that the legislature which was conscious of the social stigma attached to children of void and voidable marriages closed its eyes to the plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship? If such restricted meaning is given, it would not further the legislative intent. On the contrary, it would be against the concern shown by the legislature for avoiding harassment to a woman over demand of money in relation to marriages. The first exception to Section 494 has also some relevance. According to it, the offence of bigamy will not apply to "any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction". It would be appropriate to construe the expression "husband" to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerces her in any manner or for any of the purposes enumerated in the relevant provisions - Sections 304B/498A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498A and 304B Indian Penal Code. Such an interpretation, known and recognized as purposive construction has to come into play in a case of this nature. The absence of a definition of "husband" to specifically include such persons who contract marriages ostensibly and cohabit with such woman, in the purported exercise of their role and status as "husband" is no ground to exclude them from the purview of Section 304B or 498A Indian Penal Code, viewed in the context of the very object and aim of the legislations introducing those provisions.

IN THE SUPREME COURT OF INDIA

Crl. A. No. 25 of 2004

Decided On: 08.01.2004

Reema Aggarwal  Vs.  Anupam and Ors.

Hon'ble Judges/Coram:

Doraiswamy Raju and Dr. Arijit Pasayat, JJ.

Citation: MANU/SC/0022/2004,(2004)3 SCC 199

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Whether presumption of absence of consent in Rape case can be drawn if prosecution has failed to prove sexual intercourse?

 Having perused the paper book, this Court is of the view that the presumption under Section 114A of the Indian Evidence Act, 1872 would only be attracted if the factum of sexual intercourse is proved.

5. In the present case, it is noteworthy that the appellant-prosecutrix had refused internal medical examination.

 Keeping in view the aforesaid cumulative findings, this Court is of the view that the testimony of the appellant-prosecutrix is unreliable and inspires no confidence and there are compelling reasons for rejecting of her testimony. Further, Section 114A of the Indian Evidence Act, 1872, is not attracted as the factum of sexual intercourse is not proved. There are also various lacunae in the case of the prosecution and the benefit of doubt will have to enure to the benefit of the accused-respondent no. 2

Delhi High Court

Smt. Rachna Singh vs State And Anr. on 13 May, 201

CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
                          

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Whether Rape accused can be acquitted on basis of Whatsapp chat between him and prosecutrix?

On carefully perusing the impugned judgment and after hearing the counsel for the petitioner, we are of the opinion that the trial court has not committed any error in acquitting the respondent No. 2. The printout of the chats and the transcription of the telephonic conversation between the petitioner and the respondent No. 2 placed on record by the defence and duly admitted by the petitioner during her cross examination amply demonstrate that she had of her own free will and without any inducement from the respondent No. 2, consented for a physical relationship with him. Thereafter, she had second thoughts about marrying him and had in fact told him that she can get married to him only after her elder sister gets married. Later on, the petitioner had threatened the respondent No. 2 that she will defame him and falsely implicate him.

In the High Court of Delhi at New Delhi

(Before Hima Kohli and Manoj Kumar Ohri, JJ.)

Smt. Ritu @ Shikha Kashyap  v. State & Anr

Crl. L.P 817/2018

Decided on December 11, 2018

Citation: 2018 SCC OnLine Del 12914

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Whether Parent Would Risk Daughter’s Honor By Filing False Rape Cases To Settle Minor Scores?

It is pertinent to note that it has come in the evidence that appellant was
residing in the house of prosecutrix and was having cordial relations with
the family of prosecutrix and the above-said evidence remains
unchallenged and so, in the instant case, no prudent person can conclude
that appellant has been falsely implicated because he objected to children
of prosecutrix’s mother defecating in front of house or because of quarrel 
on this count. Neither parent would stake the honour of their minor
daughter and the family, to level such a serious accusation of rape against
appellant, to settle the scores on account of such a trivial quarrel,
particularly when the relations were cordial.
 IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: June 16, 2017
CRL.A. 533/2016
PRAVEEN @ BABLU 
v
STATE 
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR

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What will be effect of false accusation of Rape on man?

The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case."
No doubt, rape on the prosecutrix leaves a scare on her soul but a false accusation of rape on a man also may leave a scar on his whole personality.
 ALLAHABAD HIGH COURT
Case :- CRIMINAL APPEAL No. - 2717 of 2011 
Appellant :- Khalid & Another 
Respondent :- State Of U.P. 

Hon'ble Mrs. Ranjana Pandya,J. 
Date :- 11.05.2016 

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Whether accused can be convicted in case of attempt to Rape even if prosecutrix is not examined?

 In the present case, the victim was not examined by
the prosecution. The case of prosecution cannot be thrown in
dust-bin on that count because the age of the prosecutrix is only
five years. The medical officer, who examined the victim, has
opined that no rape was committed on the prosecutrix. Therefore,
the question that this Court has to decide is, whether the
appellant could be convicted for making an attempt to commit
sexual intercourse on a minor girl?
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL No. 306 OF 2013
Ravi s/o Shankarrao Kale,

VERSUS
The State of Maharashtra,

CORAM : V .M. DESHPANDE, J.

PRONOUNCED ON : 12.10.2015.
Citation;2016 CRLJ(NOC)105 Bom

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Whether court can ask prosecutrix to give specimen signatures or handwriting U/S 311­A of CRPC?

Perusal   of   the   above   Section   makes   it 
clear,   specially   the   Proviso,   that   it   relates   to 
the  power  of the  Magistrate  to direct  any  person 
including   an   accused   person   to   give   specimen 
signatures   or   handwriting,   if   it   is   considered 

expedient   for   the   purpose   of   investigation   or 
proceeding, provided, the person concerned had at 
some   time   been   arrested   in   connection   with   the 
investigation   or   proceedings   concerned.   It   is 
pertinent   to   note   that   Respondent   No.2­ 
prosecutrix is not an accused nor a person who was 
arrested   in   connection   with   investigation   or 

proceeding concerned. Section 311­A of the Code of 
Criminal Procedure does not apply to the facts of 
the present matter. 

BENCH AT AURANGABAD
                                       
     IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
CRIMINAL  REVISION  APPLICATION  NO.48  OF 2014
Dr. Suyog s/o Dinkarrao Vyas,

       VERSUS             
1) The State of Maharashtra,
2) Prosecutrix
   (for name see original Petition)  
                                ...
              CORAM:    A.I.S. CHEEMA, J.

   DATED : 29TH APRIL, 2014 
Citation;2014 CRLJ(NOC)444 Bom,2016 ALLMR(CRI)1042

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Whether anticipatory bail can be granted to accused considering conduct and character of prosecutrix ?

 So far the arguments of the applicant's counsel regarding conduct of the prosecutrix is concerned, in view of the settled proposition the conduct or the character of the prosecutrix could not be the criteria to grant the bail or anticipatory bail to the accused. Even otherwise for the shake of argument if it is deemed that the conduct and character of the prosecutrix was not good or suspicious or she is having the bad conduct even then any person like the applicant has no authority or right to commit the sexual act on her without her consent. The arrest of the prosecutrix in other case registered at the instance of said Garima, could not be a ground to extend the benefit of anticipatory bail to the applicant. The matrimonial dispute of the prosecutrix with her husband also could not be taken into consideration for extending the benefit of the anticipatory bail to the applicant.

Madhya Pradesh High Court

Kirti Martin vs The State Of Madhya Pradesh ... on 22 April, 2014

                                          

HIGH COURT OF MADHYA PRADESH JUDICATOR AT JABALPUR
              MISC. CRIMINAL CASE NO.2394/14.

                    Citation;2014 CRLJ3681 MP                

(Passed on 22.04.2014) Per U. C. Maheshwari J.

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How to appreciate evidence if obscene mobile clip of Girl is circulated in locality?

Prosecutrix in her statement on oath has given statement that
one day in the month of October 2008 the accused called her in the
office room in the interval and committed rape upon her. Her
further statement is that after 20-25 days of the above incident the
accused called her in that very room and took her naked photo on
mobile and also took photo when he was committing rape on her.
This witness also admitted that she did not tell the incident to any
one due to the threats extended to her by the accused.
P.W.1, Dalip Singh in his cross-examination has stated that
prosecutrix had left the Gairad School after passing her class 8th in
the year 2007 to 2009 and in the year 2010 she was studying in class
10th in Inter College Tuped. Suggestion has been given to P.W.1,
Dalip Singh that the accused has been implicated in false case due to
the reason that prosecutrix was weak in her studies and she was
failed in her class and he was annoyed with the accused. This
witness also stated in
cross examination that the parents of
prosecutrix are alive. She has one brother and grand mother and the
prosecutrix never narrated the incident to them. It also creates a
doubt to this fact that the accused committed rape on the prosecutrix
once in the month of October, 2008 and then again in the month of
November 2008 and also prepared video clipping but surprisingly
enough no one had seen the incident particularly when it has come in
the statement of prosecutrix that the accused had used force and she
had raised alarm. This fact cannot be ignored that there were many
students and teachers, clerks and chukidar in the school but no one
had noticed the incident. Further when the prosecutrix left the school
then also she did not narrate the incident to her family members.
Again when the M.M.S. had come to light two years earlier as has
been stated by the I.O. in his statement, then also no action was
taken in the matter and there is no explanation from the side of
complainant as to why the action was not taken at that time. P.W.7,
11
Darshan Singh is alleged to have noticed the video clipping from the
mobile of a Nepali who had come to his shop to down load Nepali
songs and Darshan Singh saved the video clipping on his computer
and deleted the same from the mobile of that Nepali, but this witness
did not try to report the matter to the police and allowed him to go
away. P.W.7, Darshan Singh also stated before the court that the
Nepali person had told him that the video clipping was loaded to his
mobile from the mobile of his friend. Darshan Singh also admitted
that he has no registration under I.T. Act to do the work of preparing
C.D. from mobile and to do the work of downloading the songs on
mobile. All the above circumstances of video clipping don’t make a
complete chain of events so that it may be inferred that the video
clipping was prepared by the accused.
It is to be mentioned here that according to prosecutrix the
accused asked her to lift the border of her shirt and to pull down her
Salwar and she did that due to fear of the accused. The prosecutrix
was in school dress at that time and the accused took naked photos of
her body and when she refused to take her naked photos the accused
told her that he would delete the same. She further stated that the
accused committed rape on her on that day also and also prepared
video himself when he was committing rape on her. This part of
statement of prosecutrix is unbelievable. How a person can prepare a
video while he was doing sexual intercourse by using force with the
prosecutrix. In the situation like this some other person could have
prepared the video, but it is not a case of prosecution and as per
statement of prosecutrix
the accused himself prepared video of
naked part of her body when he was committing rape on her. This
possibility cannot be ruled out that some other person might have
done sexual intercourse with prosecutrix and she has falsely named
the accused- her teacher. Apart from this P.W.7, Darshan Singh,
owner of Kumaun Photo Studio, did not produce the hard disc of the
computer as a primary evidence to prove the factum of recovery of
M.M.S. from mobile of Nepali person and he has prepared the
C.D. without forensic examination of mobile of the accused, it can
not be said that the accused prepared the video of naked parts of the
body of the prosecutrix, particularly when in the disputed video the

person
shown committing rape is not identifiable and thus the
charges levelled against the accused-appellant are not proved.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 286 of 2011
Raju Thapa S/o Late Sri Bahadur Singh Thapa V State of Uttarakhand
Citation;2014 CRLJ 324 uttarkhand
Hon’ble B.S. Verma, J.

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