The Punjab and Haryana High Court has upheld the 20-year jail term of two former students of O P Jindal Global University of Sonipat and acquitted the third student in connection with a gang-rape and blackmail case of a girl student of the same varsity registered in 2015.
The division bench of Justice Tejinder Singh Dhindsa and Justice Pankaj Jain dismissed the appeals filed by convicts, Hardik Sikri and Karan Chhabra, but acquitted Vikas Garg from the charges by allowing his appeal.
On May 24, 2017, a trial court had awarded a 20-year jail term to prime accused Hardik Sikri and his friend Karan Chhabra for gang-raping and blackmailing the survivor. The third, Vikas Garg, was awarded a seven-year jail term. The three had approached the high court to file an appeal against the conviction order in September 2017. The HC said the survivor was not only abused but was denied “even basic dignity of a living creature, compassion and courtesy”.
“Her silence or her caving in to the demands of the accused cannot be termed as consent. After going through the WhatsApp chat, which is the most material evidence on record related to the relationship between the parties, it is evident that the prosecutrix was facing abusive relationship with Hardik,” said the HC.
Perusing the WhatsApp chats between survivor and Hardik, the HC said, “A composite reading of the whole chat reveals that the prosecutrix was at command of Hardik. He used to blackmail her. At times, she had to seek his permission even for having dinner or even to drink water…” At the HC, counsel for Karan argued that the victim was selective in producing the WhatsApp chats and opted to withhold majority of the same.
Senior Advocate R S Cheema and Advocate Arshdeep Cheema, appearing for Vikas Garg, contended that so far as allegations levelled against Vikas are concerned, they do not constitute offence of rape as defined under Section 375 of the IPC.
They further submitted that the trial court erred in relying solely upon the statement made by the prosecutrix. They referred to the cross-examination of the prosecutrix to contend that in fact Vikas was being forced to become a witness in this case. After he refused he was implicated falsely at the instance of police. Cheema submitted that there is no allegation that the appellant (Vikas) was member of the alleged WhatsApp group and there being no chat with him, he deserves acquittal.
Counsel for the prime accused, Hardik, submitted that consensual relations will not fall within the definition of Section 375 of IPC. Relying on a judgment of the Delhi HC, the counsel submitted that if at all the prosecutrix was raped without her consent, she would have immediately confided in her dear ones.
The HC over the argument of appellant’s counsel of it being a conflict between Section 90 and Section 375, held, “In fact there is no conflict between the two. Section 90 of IPC does not define ‘consent’ but decrees that the ‘consent’ given under fear or misconception is in fact ‘no consent’…As per Section 90, where a person who is accused of doing the act knows, or has reason to believe, that the consent was given by the other person in consequence of fear of injury or misconception, it will not amount to consent.”
The HC concluded that, “The Prosecution has successfully proved that the prosecutrix was being blackmailed and forced into an abusive relationship. Hardik and Karan acting in furtherance of common intention committed rape upon the prosecutrix thereby committing offence punishable under Section 376-D IPC.”
On perusing the WhatsApp chats further, the HC held that neither the testimony of the prosecutrix shows that there was any allegation, conspiracy between Vikas and the other two accused nor does it can be inferred from the WhatsApp Chat. “…the allegation of the prosecution that Vikas was also in cahoots with other two accused could not be proved beyond reasonable doubt,” said the HC allowing his appeal and extending benefit of doubt to him.