In a significant judgment reinforcing the principles of consent and dignity, the Bombay High Court has upheld the conviction of three men, including a juvenile, in a gang rape case, stating unequivocally that a woman's character and the number of her past sexual partners do not dilute her right to refuse consent.
A woman's character or morals are not related to the number of sexual partners she has had," observed the Division Bench comprising Justice Nitin B. Suryawanshi and Justice M.W. Chandwani, while deciding the batch of criminal appeals in Maksud Sheikh vs State of Maharashtra. The bench added that "A woman who says 'NO' means 'NO'. There exists no further ambiguity.
The case arose from a brutal incident that occurred on November 5, 2014, when the prosecutrix, who was living separately from her estranged husband in a rented room in Chandrapur, Maharashtra, was gang-raped by Wasim Khan, Kadir Sheikh, and a juvenile in conflict with law. The prosecution detailed how the accused barged into her residence, objected to her relationship with Dinesh (a Hindu man), and subjected her and others present—Dinesh and a common friend Rakesh—to horrific assault and humiliation.
The trial court had convicted the accused under multiple sections including Section 376D IPC (gang rape) and Section 307 IPC (attempt to murder), sentencing them to rigorous imprisonment for the remainder of their natural lives.
The High Court, while upholding the conviction under Section 376D, partly allowed the appeals by reducing the sentence of Wasim and Kadir from life imprisonment to 20 years of rigorous imprisonment. Their sentence under Section 307 was also reduced from 20 years to 10 years, considering the absence of grievous injuries to the victim and some mitigating factors like Wasim having a minor daughter and good conduct in jail.
"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," the court said.
The defense had attempted to question the victim’s morals by pointing out that she was in a live-in relationship with Dinesh without divorcing her husband and that she had previously been in an intimate relationship with Wasim. Rejecting these arguments, the court stated:
"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… Even then, a person cannot force a woman to have intercourse with him without her consent.
The judges emphasized that prior intimacy does not translate into blanket consent. 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.
The court also referred to Section 53A of the Indian Evidence Act, which bars the use of a woman's previous sexual conduct to infer her consent or credibility. "The intimacy, if any, will not absolve Wasim, at the most, this will be relevant while considering the punishment," the court clarified.
Recounting the disturbing events, the court noted how the accused forced the victim and others to consume alcohol and smoke, assaulted Dinesh with blunt weapons, and attempted to kill him by pushing him onto railway tracks. They also stripped and filmed the victim and Rakesh in compromising positions before raping the victim in a secluded jungle area. The next morning, fearing police action, the accused abandoned her and fled.
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In its conclusion, the bench firmly stated that rape must be recognized not just as a sexual offence but as an act of aggression, a violation of a woman’s body, mind, and privacy. "Rape is the most morally and physically reprehensible crime in society… it objectifies a woman and thereby shakes the very core of her life," the judges held.
The court also underscored the need to move beyond moralistic assumptions in matters of consent. "There could be no presumption of consent based on a woman's so-called 'immoral activities'."
With this strong stance, the Bombay High Court has not only affirmed the convictions but also sent a clear message about the sanctity of consent and the need to protect the dignity and privacy of women, regardless of their past relationships or lifestyle.
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
