Bombay HC upholds gangrape conviction, throws out past sexual relationship defense
The Nagpur Bench of the Bombay High Court has condemned the attempts to shame a gangrape survivor and reaffirmed that a woman's past intimate relationships with a man does not amount to a perpetual consent for sexual relationships. 'Forced intercourse with someone she had a past relationship with is still rape,' the court said.
A Division Bench of Justices Nitin B. Suryawanshi and M.W. Chandwani upheld the conviction of three men in a 2014 gang-rape and assault case by Wasim Khan, Kadir Sheikh and a juvenile in conflict with law, for gang-raping a woman. The convicts in their appeal said the woman once had intimacy with one of the accused in the past but later got into a live-in relationship with another man.
On November 5, 2014, the three barged into her house, assaulted her and her live-in partner, and abducted her to a nearby deserted area where they raped her and filmed the act on their mobile phone.
'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,' the Bench observed.
Wasim and Kadir were convicted under Sections 376D (gang rape), 307 (attempt to murder), 366 (abduction), 394 (robbery), and other provisions of the IPC, along with relevant sections of the Information Technology Act. They were sentenced to life imprisonment by the trial court.
The court refused to quash the conviction of the accused, 'Rape is the most morally and physically reprehensible crime in society, as it is an assault on the body, mind and privacy of the victim. Rape objectifies a woman and thereby shakes the very core of her life. Sexual intercourse on one hand gives pleasure to the participants including a woman but if it is done without the consent of the woman, it is an assault on her body, mind and privacy.'
In a detailed judgement made available on May 8, the court rejected the defence's contention that the prosecutrix had a prior relationship with one of the accused, and that her conduct suggested voluntary participation.
'No doubt, the prosecutrix was an estranged wife and without getting divorced from her husband, she was residing with Dinesh. Even from her evidence, this material was brought in her cross-examination to suggest that she had an intimate relationship with Wasim before she started residing with Dinesh in a live-in-relationship inspite of the fact that her previous marriage was subsisting. Even then, a person cannot force a woman to have intercourse with him without her consent,' the court said in the order.
The Bench however, reduced the sentence of the convicts from life imprisonment to 20 years rigorous imprisonment and the sentence under attempt to murder was reduced from life imprisonment to 10 years in rigorous imprisonment.
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