The Nagpur Bench of the Bombay High Court, comprising Justices Nitin B. Suryawanshi and M. W. Chandwani, upheld the conviction of Wasim Khan and Sheikh Kadir for the gang-rape of a woman, while reiterating the evidentiary principle that past relationships do not imply continuing consent. The Court made it clear that sexual acts committed under duress or through criminal trespass constitute serious offences irrespective of prior acquaintance.
The judgment came in Criminal Appeal Nos. 336, 325, 346, and 352 of 2016, arising out of Sessions Case No. 22/2015, decided by the Additional Sessions Judge, Chandrapur.
Background and Allegations
The prosecutrix, estranged from her husband, had been living in a rented room with Dinesh (PW2). On 5 and 6 November 2014, a series of criminal acts were committed by Maksud Sheikh, Wasim Khan, Sheikh Kadir, and others. The genesis of the incident involved an altercation over use of water for washing a vehicle, during which Maksud allegedly used abusive language against the prosecutrix and was slapped by her. He later returned with other accused persons.
The Court recorded that:
“Maksud brought an Axe and tried to hit Dinesh but Dinesh pushed him and Maksud fell down. Maksud then made a call to Wasim from his mobile phone and asked him to come. Wasim and Kadir alongwith the other accused persons came there and barged into the house of the prosecutrix.”
Kadir allegedly assaulted Dinesh with a baton, and Wasim slapped the prosecutrix. Rakesh (PW3), a friend of the couple, was also beaten and forced, along with the prosecutrix, to pose in compromising positions. Wasim took videos and photos on his mobile phone. They were later taken in a vehicle and Dinesh was left injured on a railway track. The prosecutrix was raped at different locations by Wasim, Kadir, and a juvenile.
Convictions and Sentences
The Trial Court had convicted Wasim Khan and Sheikh Kadir under Section 376D of the IPC (gang rape) and sentenced them to life imprisonment for the remainder of their natural life. They were also convicted under Sections 366, 354A, 354B, 452, 307, and 394 of the IPC and Section 66E of the Information Technology Act.
The High Court upheld these convictions, holding:
“There is consistency in the version of the prosecutrix, Dinesh and Rakesh… Wasim made the prosecutrix and Rakesh strip themselves and get into compromising positions… Wasim and Kadir beat Rakesh whereas, Wasim slapped the prosecutrix.”
The Court found that:
“The depositions of the prosecutrix, Dinesh and Rakesh inspire confidence of the Court and the Trial Court has rightly appreciated and relied on the versions…”
On Consent and Relationship
Although the Court did not specifically elaborate in abstract legal terms on consent, it carefully evaluated the sequence of events and acts of violence committed under coercion and concluded that the allegations of rape and assault were fully substantiated by the evidence, including electronic records and medical reports.
Electronic evidence was considered admissible despite the absence of a Section 65B certificate, with the Court observing:
“In wake of the two reasons stated above, it was not possible for the prosecution to obtain the certificate provided under Section 65B… Therefore, non-production of the certificate… will not be fatal to the case…”
The Court accepted the hash value verification as sufficient to establish the authenticity of the CD containing photos and videos recovered from Wasim’s mobile phone.
Modifications to Trial Court’s Findings
The Court acquitted Siraj Khan due to lack of evidence that he entered the prosecutrix’s room:
“The scrutiny of evidence of the prosecutrix, Dinesh and Rakesh goes to show that none of these witnesses have deposed that Siraj also entered the room of the prosecutrix… the benefit of doubt goes in favour of Siraj.”
Similarly, the conviction of Maksud under Section 506-II IPC (criminal intimidation) was set aside:
“Utterance of the word ‘Bhadkhau’ by Maksud by no stretch of imagination is threatening so as to bring him under the gamut of criminal intimidation…”
Further, the convictions under Section 326 IPC (grievous hurt) were modified to Section 324 IPC (voluntarily causing hurt by dangerous weapons), as the injuries did not meet the legal threshold under Section 320 IPC:
“The conviction recorded by the Trial Court against Maksud, Wasim and Kadir under Section 326 of the IPC does not stand… we hold them guilty for the offence punishable under Section 324 of the IPC.”
