Top News Headlines 1st March 2022: Penetration Of The Slightest Degree Essential To Establish The Offence Of Rape: Calcutta HC Modifies Conviction

Penetration Of The Slightest Degree Essential To Establish The Offence Of Rape: Calcutta HC Modifies Conviction

• The Hon’ble Calcutta HC has, in Dipak Sihna vs. State of West Bengal recently observed that penetration of the slightest degree is necessary to establish the offence of rape and that in the case at hand, only the offence of attempt of rape could be made out. 
• In the instant case, the accused had been convicted for the rape of an 11 year old girl. The appeal had been preferred against the judgment of the lower Court dated 28 June, 2013 where the appellant had been convicted for the offence of rape under section 376(2)(f) of IPC and sentenced to an imprisonment of 10 years along with fine. 
• It was alleged by the prosecution that on May 5, 2010, at 11 pm, when the family of the victim had gone out to attend a function, the accused had come to the house of the victim and had committed assault on the sleeping victim. She had deposed that when she woke up, she found the accused lying beside her, he forcibly kissed her and placed his penis over her vagina after removing her underwear. When she shouted then the appellant/accused ran away. She had stated in her cross examination that the accused had attempted to rape her but as she protested, he could not commit the offence in its entirety. 
• It was on this deposition that the Court has relied on, where the victim states that the accused had attempted to rape her but could not do it because of her protests. The Court observed that the victim does not speak of penetration, and the same testimony was corroborated by the victim’s father when he said that his daughter told him that the accused had tried to rape her but could’nt due to her protests.
• The Court, thus, observed that penetration even of the slightest degree is essential to establish the offence of rape. Evidence on record in the instant case clearly shows that no penetration of any kind had occurred. 
• The Court has also observed that although absence of injuries or non-rupturing of the hymen does not indicate the absence of rape, but where the victim herself states that the appellant attempted to rape her, coupled with the absence of injuries on her private parts, corroborate the conclusion that the offence was one of attempt to rape.
• Thus, the appeal was allowed. The accused had already undergone 8 years of imprisonment and the Court ordered him to suffer imprisonment for the period already undergone and to pay a fine of Rs.10,000 and in default, to suffer imprisonment of six months. 

Licensing Of A "Fair Price Shop" Doesn't Fall Under Article 19(1)(g); Court Can Utilize Its Powers Under Article 226 Of The Constitution, To Not Re-Appreciate The Evidence: Allahabad HC.

• In Radhey Shyam v. State of UP Thru. Prin. Secy. Food and Civil Supplies Lucknow, the Hon'ble HC observed that the primary objective of the public distribution system is to serve the public, primarily the poor sections of society, by maintaining the supply of essential commodities at affordable prices, rather than setting up any business for the advantage of any individual. 
• Article 19 (1)(g) of the Indian Constitution talks about the fundamental right to carry on trade and commerce. Therefore, the license of the fair price shop does not fall under the category of the fundamental right as it is not operated for earning profits and, thus, doesn't constitute a trade or business. 
• In this case, an inquiry was conducted in response to a complaint wherein inconsistencies in the distribution of essential committees in the stock registry and the information recorded in the E-Pos machine for food grain distribution were uncovered. The petitioner was prosecuted under Section 3/7 of the Essential Commodities Act, following which their license of the fair pricing store was canceled. Section 3 of the Essential Commodities Act addresses compliance of orders issued by anybody who sells any essential commodity, and Section 7 of the Essential Commodities Act specifies the penalties for violating an order issued under Section 3 of the Essential Commodities Act.
• A plea was filed under Article 226 of the Indian Constitution, seeking to overturn the ruling of the Joint Commissioner (Food) Lucknow, which upheld the order of the District Supply Officer, Lakhimpur Kheri, to suspend the petitioner's license for the fair pricing store. The petitioners' counsel pleaded that the petitioner was not allowed to cross-examine the witnesses, nor was he granted an oral hearing during the inquiry.
• In another instance, Smt. Radha Devi v. State of UP and others, the Hon'ble Court ruled that it was apparent from the record that the petitioner's fair pricing store was suspended without the petitioner being given a chance to be heard. As a result, the Hon'ble Court granted the writ petition under Article 226 of the Indian Constitution. The petitioners' counsel stated that the premise for suspending the license was solely based on the FIR filed against the petitioner. The counsel wished to attain remedy via citing the decision in Bajrangi Tiwari vs. Commissioner Devi Patan Mandal, Gonda, and others, which stated that a fair price shop agreement should not be suspended just because an FIR was filed against the shop holder.
• According to the respondent's allegation, the petitioner breached the terms and conditions of the license and the requirements of the Control Order, 2016, by failing to efficiently distribute the essential commodities from the fair pricing shop. During the proceedings, it was noted by the bench that the license of the fair pricing store is subject to be revoked if the license holder fails to comply with the terms and conditions of owning the fair price shop, as has transpired in this case.
• In Puran Singh v. State of UP, 2010 (3) ADJ 659 (FB), it was held that the licensing system provides a possibility for a person to profit himself by establishing a fair pricing distribution unit. However, such a license does not fall under the definition of fundamental right under Article 19 (1)(g) of the Indian Constitution.
• In virtue of the facts of the case, the Hon'ble Court rejected the petitioner counsel's argument for a mandatory hearing before suspending the shop license. Further, it stated that two competent authorities determined that the petitioner was not operating the fair pricing shop adequately and failed to adhere to the terms and conditions of the license. Hence, the petitioner's license was revoked. 
• Therefore, the petition was rejected.

Dissolution Of Marriage On The Ground Of Irretrievable Breakdown; Court Can Use It's Powers Under Article 142 Of The Constitution, Consent Of The Parties Is Not Necessary: SC

• In N Rajendran vs. S Valli, the Hon'ble SC observed that consent of the parties is not necessary to dissolve a marriage under Article 142 of the Constitution based on irretrievable breakdown. 
• Article 142 of the constitution empowers the Hon’ble Apex Court to pass any such decree or order as it considers necessary for the purpose of doing complete justice in any case before it.
• In this case, the husband's petition for divorce based on cruelty, previously granted by the Family Court, was overturned by the Hon’ble SC, which stated, "No evidence was presented to support a decree for the dissolution of marriage on the ground of cruelty." As the husband's petition for a divorce based on cruelty in the first instance was overruled, now the question arose: Is it possible to dissolve a marriage on the grounds of an irretrievable breakdown without the consent of both the parties?
• It was observed in the case of R. Srinivas Kumar v. R. Shametha, (2019) 9 SCC 409, where the divorce was granted on the grounds of the irreversible breakdown of a marriage, the Hon'ble Court had stated that such powers are to be exercised not frequently, but only in rare cases, where it is found that marriage is totally unworkable, emotionally dead, beyond salvage, and has irreversibly broken down. In such cases, the Court has exercised its extraordinary power under Article 142 of the Constitution to end a marriage. 
• In another case, Munish Kakkar v. Nidhi Kakkar (2020) 14 SCC 657, the Court concluded, "The continuation of this marriage is not only futile, but it is also inflicting greater emotional damage and disruption to both parties. This is evident in the manner in which the parties respond in Court. It would be beneficial for all parties if this could be resolved sooner rather than later." The Court exercised its jurisdiction under Article 142 of the Constitution of India and granted a decree of divorce on the grounds of an irreversible breakdown of a marriage.
• In light of the aforementioned rulings, the Hon’ble Court stated that the parties' consent is not required to declare a marriage as irretrievably broken down. The Hon’ble Court reasoned its decision by stating that it could not see even the slightest chance of a reunion between the appellant and the respondent due to the appellant's acts solely. It further stated that the appellant and respondent's marriage is no longer alive. Thus, given the facts of this case, the Court believed that it would be in the interest of justice that a decree for the dissolution of marriage between the two parties should be passed.
• Therefore, though the Hon'ble SC confirmed the decision of the HC, but declined to award a decree of divorce based on cruelty under section 13 of Hindu Marriage Act, 1955; instead, the Hon’ble Apex court invoked its powers under Article 142 of the Constitution and dissolved an already dead marriage for the purpose of doing complete justice.