Woman's Character & Morals Not Related To Number Of Sexual Partners, Her 'No' Means 'No': Bombay HC Upholds Gang Rape Conviction

"A woman's character or morals are not related to the number of sexual partners she has had", said the Bombay High Court on Wednesday while emphasising that a 'No' by a woman means a 'No' and there is no 'presumption of consent' based on a woman's so called 'immoral activities.'

In a strongly-worded order, a division bench of Justices Nitin Suryawanshi and MW Chandwani upheld the conviction of three men - Wasim Khan, Kadir Sheikh and a juvenile in conflict with law, of gang-raping a woman, who had intimacy with one of the accused earlier but had later started living in a live-in relationship with another man. The accused had challenged a sessions court order which had convicted them for various offences including Section 376D IPC (gang rape). 

The bench noted that the convicts made an attempt to question the morals of the victim, who without giving divorce to her estranged husband was living in a live-in relationship with Dinesh. The bench noted that Wasim while cross-examining the victim, tried to bring on record the fact that she was romantically involved with him, however, when the relationship disturbed his family life (since he was married), she moved to live with Dinesh.

"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 bench said, while emphasising that “Ravishment of a woman without her consent by force, fear or fraud.”

Sexual violence, the bench said, diminishes the law and thus, unlawfully encroaches on the privacy of a woman. Rape cannot be treated only as a sexual crime but it should be viewed as a crime involving aggression which leads to the domination of the prosecutrix. It is a violation of her right of privacy, the judges said.

"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 consent of the woman, it is an assault on her body, mind and privacy," the bench underscored. 

The judges further observed, "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."

Therefore, even though there may have been a relationship between the victim and Wasim in the past but if she was not willing to have sexual intercourse with him and his colleague Kadir and the juvenile in conflict with law, any act without her consent would be an offence within the meaning of Section 375 of the IPC, the judges made it clear. 

"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 intimacy, if any, will not absolve Wasim, at the most, this will be relevant while considering the punishment," the judges held. 

With these observations, the bench upheld the conviction of the trio under charges of gang rape. However, on the point of punishment, the bench noted that the trial court had sentenced them to rigorous imprisonment for the remainder of their life. 

"We are mindful of the fact that rape is a heinous crime much less gang rape and it is an offence against the vulnerable section of the society i.e. woman hence, the offender of such a crime is to be dealt with heavy hands. Imposition of punishment in a rape case depends upon the degree of atrocity of crime, conduct of the criminal and the defenseless and unprotected state of the victim," the bench observed. 

The judges noted that Wasim was 'jealous' over the victim living with Dinesh and only wanted to make sure that she should be physically involved only with him and nobody else. 

"It is also a matter of record that Wasim and Kadir did not cause any grievous injury to the victim during the incident. Considering the above facts and the fact that Wasim has a daughter who needs her father around; and that no incident of misbehavior or cruelty is reported by the Jail Authority, we propose to reduce the imprisonment of Wasim and Kadir from imprisonment for remainder of their natural life to rigorous imprisonment for 20 years," the judges ordered. 

According to the prosecution case, the victim was living separately from her estranged husband in a rental room owned by one Shabbir Sheikh. On November 5, 2014, Wasim, Kadir, and a juvenile in conflict with law along with Maksud Sheikh (brother of Shabbir) barged into the rental house and forced the victim to maintain relations with them and also objected her relationship with Dinesh, who was a Hindu. When Dinesh and the victim resisted, they assaulted both of them and at that time, Rakesh, one of the common friends of the victim and Dinesh, reached the spot, he too was assaulted. 

Subsequently, all the accused made Dinesh, Rakesh and the victim drink alcohol and smoke cigarettes and then forced Rakesh and the victim to strip their clothes. They then click photos and videos of the victim and Rakesh in 'compromising' positions. Soon after this, Rakesh fled the spot. The accused then assaulted Dinesh with blunt objects like iron rod etc on his head and took both (Dinesh and victim) to a nearby railway station and tried to push Dinesh on the tracks so that he can be run over by a train. However, despite being in an inebriated condition, Dinesh managed to escape from the site. 

The accused, then took the victim, who too was under influence of alcohol to a nearby jungle (between Chhota Shegaon and Tadoba, where three of them - Wasim, Kadir and the juvenile delinquent, raped the victim one by one. By next morning, they learnt that the police was searching for them so they left the victim in the jungle and fled from the spot. 

While partly allowing the appeal, the bench noted that the prosecution proved the entire story without reasonable doubt and upheld the conviction under Section 376 D (gang rape) of Wasim and Kadir. However, it reduced their sentence from rigorous imprisonment for remainder of their natural life to rigorous imprisonment for 20 years with fine as imposed by the Trial Court.

It also reduced the rigorous imprisonment for 20 years imposed on Wasim and Kadir for an offence under section 307 (attempt to murder) of the Indian Penal Code (IPC) to 10 years in jail. 

Case Title: Maksud Sheikh vs State of Maharashtra (Criminal Appeal 336 of 2016) and batch

Counsel for Appellants: Advocates RM Daga, RK Tiwari, Arjun V. Bobde, Shubhangi Jadhao and RR Vyas

Counsel for State: Additional Public Prosecutor SS Doifode

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