A Woman Who Says ‘NO’ Means ‘NO’; Presumption Of Consent Not Based On Her “Immoral Activities”- Bombay High Court In Gang Rape Case

The Bombay High Court in an alleged gang rape case, observed that there could be no presumption of consent based on a woman’s so called “immoral activities”.

The Nagpur Bench observed thus in a batch of four Criminal Appeals filed by the accused persons, challenging their conviction under different Sections of the Indian Penal Code, 1860 (IPC) and the Information Technology Act, 2000 (IT Act).

A Division Bench of Justice Nitin B. Suryawanshi and Justice M.W. Chandwani held, “… it is an offence if sexual intercourse is done without the consent of a major woman of the age of 18 years and above. 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 prosecutrix and Wasim in the past but if the prosecutrix was not willing to have sexual intercourse with Wasim, 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 Bench added that 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.

Advocates R.K. Tiwari, Arjun V. Bobde, R.R. Vyas, and R.M. Daga appeared for the Appellants/Accused while APP S.S. Doifode appeared for the Respondent/State.

Factual Background

As per the prosecution case, the victim who was the estranged wife of a man due to irreconcilable differences with her husband, started residing in a live-in-relationship with Dinesh in a rented room owned by Shabbir. Knowing this, accused- Wasim and Kadir had been to the house of the victim in absence of Dinesh and questioned her as to why being a Muslim girl, she was residing with Dinesh, a Hindu. They insisted her to have a relationship with them instead of Dinesh and allegedly tied both her hands. When Dinesh arrived, both left the house after threatening the victim. Thereafter, one day an altercation happened between Maksud i.e., Shabbir’s brother and the victim on account of use of water for washing their vehicle. As a result of use of filthy language by Maksud against the victim, he received two slaps from her but he continued abusing her as well as Dinesh. Shabbir pacified them and the victim along with Dinesh went inside the room. Later, Maksud banged the door and when Dinesh opened it, he allegedly tried to assault him with an axe in his hand. After some time, Maksud called Wasim and Kadir who allegedly barged into the victim’s room.

Whereas, Siraj and a juvenile in conflict with law, Wasim’s other colleague were standing outside the room. Kadir allegedly assaulted Dinesh on his head and on other parts of the body with a Baton whereas, Wasim slapped the victim. Meanwhile, Rakesh, a common friend of the victim and Dinesh arrived there, who was also beaten up. It was alleged that Wasim made the victim and Dinesh drink the liquor and smoke cigarettes and then he asked the victim and Rakesh to strip themselves. On protesting, Kadir assaulted Rakesh and ultimately they obeyed. It was further alleged that they were made to kiss each other and to get into various compromising positions in naked condition, of which Wasim took photos and recorded videos. It was also alleged that Wasim, Kadir, and Juvenile committed rape on the victim at different places. Initially, they decided to kill her but then left her at a place. Consequently, a Complaint was lodged and the accused persons were arrested. The Trial Court found the Appellants guilty and sentenced them. Being aggrieved by their conviction, they approached the High Court.

Reasoning

The High Court in view of the facts and circumstances of the case, noted, “An attempt has been made to question the morals of the prosecutrix. 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 that rape in its simplest term is “ravishment of a woman without her consent by force, fear or fraud”; sexual violence diminishes 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. 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”, it further remarked.

The Court also noted that 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.

“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. Thus, we are of the opinion that the Trial Court was right in holding that the prosecution has proved that Wasim and Kadir have committed the offence of gang rape punishable under Section 376D of the IPC”, it observed.

Furthermore, the Court held that the conviction recorded by the Trial Court against Wasim and Kadir for the offence punishable under Section 506-II of the IPC is not sustainable.

Conclusion

The Court was of the view that the Trial Court rightly held Maksud guilty for the offence punishable under Sections 450, 452, 354A and 354B read with 34 of the IPC and Section 66E of the IT Act except for the offence punishable under Sections 506-II and 326 of the IPC.

“The conviction of Wasim for the offence punishable under Sections 450, 452, 366, 354A, 354B, 354C, 376D, 307, 201, 394 r/w. 34 of the IPC as well as conviction under Section 66E of the IT Act r/w. Section 34 of the IPC is completely justified except for the offence punishable under Section 506-II and 326 of the IPC. Conviction under Section 326 of the IPC is converted into Section 324 of the IPC”, it held.

The Court upheld the conviction of Kadir or the offences punishable under Sections 450, 452, 366, 354A, 354B, 376D, 307 and 394 read with 34 of the IPC as well as Section 66E of the IT Act. It converted his conviction under Section 326 IPC to Section 324 IPC and acquitted him under Section 506-II IPC.

“Thus, Maksud, Wasim and Kadir are guilty for the offence punishable under Section 324 of the IPC. … We also concur with the findings of the Trial Court convicting appellant- Jobi for the offence punishable under Section 212 r/w Section 34 of the IPC. However, we could not endorse the conviction imposed by the Trial Court on Siraj. We give him the benefit of doubt”, it said.

The Court, therefore, reduced the imprisonment of Wasim and Kadir from imprisonment for remainder of their natural life to rigorous imprisonment for 20 years.

Accordingly, the High Court partly allowed the Appeals and upheld the conviction.

Cause Title- Maksud Sheikh Gaffur Sheikh & Anr. v. State of Maharashtra (Neutral Citation: 2025:BHC-NAG:4873-D)

Appearance:

Appellants: Advocates R.K. Tiwari, Arjun V. Bobde, R.R. Vyas, R.M. Daga, and Shubhangi Jadhao.

Respondent: APP S.S. Doifode

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