Hrishikesh Sahoo vs. State of Karnataka

 

CASE COMMENT

Hrishikesh Sahoo vs. State of Karnataka on 23^rd March, 2022

Equivalent citations: Writ Petition No. 48367 of 2018 cited in 2022 LiveLaw (Kar) 89 

Bench: JusticeM.Nagaprasanna

PETITIONER: ……….. HRISHIKESH SAHOO

CITATION:

Writ Petition No. 48367 of 2018 cited in 2022 LiveLaw (Kar) 89 

INTRODUCTION

The Karnataka High Court held explicitly that husband raping his wife is amenable to the offence of rape under Section 376 IPC. The Court has rejected a petition filed by a husband seeking to drop charges of rape under Section 376 of the Indian Penal Code, levelled against him by his wife. The Court did not accept the husband’s argument that the charge cannot be framed against him due to Indian Penal Code. The Court observed that the exemption cannot be absolute.

PROVISIONS OF THE LAW INVOLVED

Exception 2 to Section 375 of Indian Penal Code

Sections 376, 498A, 354, 506, 377, 323 of Indian Penal Code

Sections 29 and 30 of POCSO Act

Constitution of India, 1950: Article 14

ISSUES

(i)                  Whether cognizance being taken against the petitioner-husband for offence punishable under Section 376 of IPC is tenable in law?

(ii)                Whether the allegation against the petitioner for other offences is tenable in law?

(iii)               Whether the prosecution notwithstanding the presumption under Sections 29 and 30 of the Act has to prove the foundational facts beyond all reasonable doubt?

(iv)               Whether the designated Court to try the offences under the Act has jurisdiction to try both the offences under the IPC and the Act in the facts of this case?

(v)                Whether chargesheet against the petitioner should be altered to include addition of the offence punishable under Section 377 of IPC?

(vi)               Whether proceedings under the POCSO Act against the petitioner needs to be interfered with?

FACTS:

The petitioner- accused gets married to the complainant - Mrs.Bratati @ Pinky on 20.06.2006, at Bhuvaneshwar. The couple stayed at various parts of the nation and at the relevant point in time, he was working at Bangalore and have also a child born out of their wedlock. After few years of living together, relationship of the couple gets horribly strained. Many instances of physical and mental torture to the wife and the child led to the complainant-wife registering a complaint against the husband on 21.03.2017. The complaint becomes an FIR in Crime No.13/2017 for offences punishable under Sections 506, 498A, 323, 377 of the Indian Penal Code (‘IPC’ for short) and Section 10 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short).

CONTENTIONS:

Arguments given by the petitioner:

1)      The presumption under Sections 29 and 30 of the POCSO Act is unconstitutional.

2)      Even if it is presumed that the burden casts upon the prosecution to prove the foundational facts beyond all reasonable doubt the FIR did not contain the offence alleged against the petitioner for the offence punishable under Section 376 of the IPC.

3)      FIR that was registered was for offence punishable under Section 377 of the IPC while the police filed their final report/charge sheet invoking Section 376 and the learned Sessions Judge takes cognizance of the offence.

4)      There is no instance narrated in the complaint that would touch upon the offence punishable under Section 498A of IPC.

5)      There was no basis to frame the charge under Section 5(1)(m)(L) r/w Section 6 of the POSCO Act as there was no medical evidence as to the commission of any of those offences under those sections.

6)      What is urged against the petitioner insofar as it concerns the wife is offences under Sections 498A, 376, 377 and other allied offences. What is alleged against the petitioner insofar it concerns the daughter is under the POSCO Act. Both the offences being definite and Courts jurisdiction to try these offences being distinct both cannot be tried in the same Court which is now being tried

Submissions by the Union of India:

Placed reliance upon several judgments to contend that the plea of challenge to the presumption has been considered and negatived by the Apex Court and this Court in several judgments. Therefore, such a plea would not be available to the petitioner. If that is not available, there is nothing other than that the Union Government needs to answer in the litigation.

Arguments given by the Respondent:

1)      For the foundational facts that are already placed before the Court, to prove them beyond the reasonable doubt the trial has not yet commenced.

2)      The petitioner is a beast in the form of a man and should not be shown any indulgence at the hands of this Court and the trial should be permitted to commence.

3)      The facts clearly reveal that the petitioner had sex every time with the complainant torturing and abusing her against her consent and forcibly had his lust fulfilled.

4)      In the peculiar facts of this case though exception to Section 375 protects the husband such protection should not be given in the case at hand and that the writ petition should be dismissed.

5)      The Sessions Court has erred in not acceding for addition of a charge to include offences punishable under Section 377 of IPC against the petitioner.

INFERENCE:

·       Charge framed against the husband for alleged offence punishable under Section 376 of the IPC for alleged rape of his wife, in the peculiar facts of this case, does not warrant any interference. It is a matter of trial.

·        Other offences alleged against the petitioner, the ones punishable under Sections 498A, 354, 506 of the IPC are clearly brought out in the complaint and in the charge sheet. This is again a matter of trial.

·       The prosecution, notwithstanding presumption against the accused under Sections 29 and 30 of the POCSO Act, has to prove foundational facts beyond all reasonable doubt.

·       The charge framed by the Sessions Court is to be altered by inclusion of offence punishable under Section 377 of the IPC owing to peculiar facts of this case.

·       The designated Court hearing cases relating to offences under the POCSO Act can try the offences under the IPC as well, in the facts of the case.

·       Allegations against the petitioner-husband for offences punishable under the POCSO Act for alleged sexual acts on the daughter cannot be interfered with. It is yet again a matter of trial.

CONCLUSION:

Our law makers must wake up now and act accordingly. Centre is already working on reforming our penal laws. It must amend the law in this direction as desired by the Karnataka High Court in this learned case so elegantly, eloquently and effectively. Centre and our law makers must read this entire judgment and act accordingly as they feel best to protect woman from being raped by none other than her own husband who is meant to protect her and nothing on earth can be more reprehensible than this! It must definitely insert necessary safeguards also so that it does not become a very potent and dangerous weapon to torment innocent men.

 

Submitted by:

ShreekarDattatrey Kulkarni

3^rd Year, KSLU’s Law School, Navanagar, Hubballi

Intern At EDGE LAW PARTNERS, Delhi