2 Oct 2022 8:43 AM GMT
Upholding the conviction and sentence of two men in the 2015 OP Jindal University rape case, the Punjab and Haryana High Court has reiterated that in a situation where the victim has no other option but to submit to the demands of the perpetrator, the mere submission on her part will not constitute 'consent' and thus the case will fall within the meaning of rape."The question of consent...
Upholding the conviction and sentence of two men in the 2015 OP Jindal University rape case, the Punjab and Haryana High Court has reiterated that in a situation where the victim has no other option but to submit to the demands of the perpetrator, the mere submission on her part will not constitute 'consent' and thus the case will fall within the meaning of rape.
"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. Mere absence of physical resistance to the act cannot be regarded as 'consent'," said the division bench of Justice Tejinder Singh Dhindsa and Justice Pankaj Jain.
The court made the observations in its judgement on the appeals filed by three convicts in the case dating back to 2015, where an 18-year-old accused her former friend Hardik Sikri of blackmailing her over some of her private pictures, and forcing her to have sex with him and his two friends, Vikas Garg and Karan Chhabra. WhatsApp chats formed a substantial part of evidence in the case which has been widely reported by the media.
In May 2017, the accused were pronounced guilty by a trial court - Sikri and Chhabra were sentenced to 20 years in prison and Garg was sentenced to seven years in prison under section 376D, 376(2)(n), 120B, 292, 506 and 34 of Indian Penal Code and section 67A of Information Technology Act.
The division bench in its decision said the victim's silence or "her caving in to the demands" of the accused persons cannot be termed as consent. The court added she was facing an "abusive relationship".
"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 fellow human being offers to a fellow. It is evident from the chat that the prosecutrix was in a quagmire," the court said.
In its ruling dated September 30, the High Court further noted:
"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 Hardik even more severely. In such a situation it can't be said that she was a consenting party."
The court also noted that the WhatsApp chats between Hardik and the victim revealed that she was at his command. He used to blackmail her, and at times, she had to seek his permission even for having dinner or even to drink water, said the court.
While the counsels representing the convicts time and again had referred to the chats of the woman with other men in an attempt to cast aspersions on her, the court said merely because she is alleged "to be a woman of easy virtue", her testimony cannot be discarded.
"She has a right to protect her dignity. From the conjoint reading of the testimony of the prosecutrix before the Trial Court and the WhatsApp chat, the version of the prosecutrix gets fully corroborated. She comes out to be a person who may be termed as an open and extrovert but definitely can't be said to be a fibster," it added.
Finding the statement of prosecutrix as trustworthy and fully corroborated by the evidence on record in the form of WhatsApp Chats and oral testimony of other witnesses, the Court upheld the sentence and conviction of Sikri and Chhabra
"Consequently, no fault can be found with the Trial Court in believing the same. The Prosecution has successfully proved that the prosecutrix was being blackmailed and forced into an abusive relationship. Hardik and Karan acting in furtherance of common intention committed rape upon the prosecutrix thereby committing offence punishable under Section 376-D IPC," the court said.
It added "Owing to the repeated rape committed by Hardik, 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 Karan Chhabra. Similarly, the allegation w.r.t. there being WhatsApp group and the circulation of the obscene/intimate pictures of the prosecutrix being circulated by accused also finds corroboration by the statements made by other witnesses."
Rejecting an argument regarding delay in registration of the case, the court said, "A lot has been said w.r.t. delay in lodging the FIR. However, the snare the prosecutrix was in, the delay does not emaciate the case of the prosecution".
While acquitting Garg and giving him a benefit of doubt, the division bench said neither the testimony of the victim shows that there was any allegation with respect to conspiracy between him and other two accused nor can it be inferred from the WhatsApp Chat.
"Qua Vikas Chat between victim and Hardik doesn't help case of prosecution. Inference is that Hardik and Vikas had no meeting of minds and that Hardik did not force Vikas upon victim. The victim was in position to say 'no' to Vikas. Not only this, she conveyed her 'no' for Vikas to Hardik. Thus, the allegation of the prosecution that Vikas was also in cahoots with other two accused could not be proved beyond reasonable doubt," it said.
On April 11, 2015, the prosecutrix and her parents had visited the office of OP Jindal Global University's Registrar wherein the victim complained of sexual harassment, intimidation, black-mailing, tricks to share her private pictures by a student Hardik Sikri. In presence of the varsity staff, Sikri's phone was searched, private pictures of the woman were found. The parents then filed a complaint with the case.
The court in the judgement also said identity of victim shall not be disclosed.
Citation: 2022 LiveLaw (PH) 261