Legal Advice on Criminal Defenses against False Allegation of Rape | Criminal Law Attorney in Delhi NCR | Criminal Lawyer in Delhi NCR |

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“Rape is a criminal offense which is non-bailable and non-compoundable in nature. Obtaining a bail i.e. anticipatory bail or regular bail for the alleged accused is a very difficult task. Further, there are limited criminal defenses available to the alleged accused charged with rape. The Court takes medical evidence duly into consideration while delivering their dictums. Consensual sex in no manner is considered as rape. Consensual sex during live-in relationship is not considered as rape.”

As per the report of the Delhi Commission of Women, in 2014 study of the case filed between April 2013-July 2014 revealed that 52.3 % of the cases were false. Date Journalist of The Hindu, Rukmini Shrinivasan, conducted the study of 460 cases that went to a full trial in Delhi district Courts in 2013 and compared the initial complaint made to police with the proceedings of the Court. The outcome of the study was shocking, more than one-third of the 460 cases were false in which woman consummated their relationship and when the woman parents discovered about sexual intercourse, they used the criminal justice system to end the relationship. Another one-fourth of cases were related to relationships in which the man breach the promise of marriage. So the woman to take revenge lodge a false complaint of rape against him. Rukmini found an interesting fact that in almost all the case story was same i.e., the accused picked up the victim in a car and gave her a cold drink laced with sedatives which would make the victim unconscious. These cases happened mostly where couples belong to different caste or religions. After more study, she found a pattern that parents use the sedative story to show society that their daughter did not gave give consent to pre-marital sex because in our Indian conservative societies pre-marital sex is considered a disgrace or blemish on the reputation of the woman and family. The Hon’ble Supreme Court in the case of Raju and Ors. v. State of Madhya Pradesh [Cri. A. No. 1094-98/ 2000] had held that testimony of prosecutrix has evidentiary value and though believable on a par with that of an injured witness but her testimony cannot always be presumed to be gospel truth. The possibility of exaggeration or embellishment or false implication cannot be ruled out where several persons are accused. The plausibility of immoral past of prosecutrix, based on evidence, can be considered.

Definition of Rape
Section 375 of the Indian Penal Code (I.P.C.), 1860 defines ‘Rape’, When a man –
a. Penetrates his penis into urethra, mouth, anus or vagina of a woman. Such penetration may be to any extent. If such person causes any other person or woman, herself, to do penetration thereby, then it would be deemed that such person has done said act by himself; or
b. Insert any object or a part of the body, not being a penis, into the urethra, anus, vagina or any part of the body of such woman. If such person causes any other person or woman, herself, to do penetration thereby, then it would be deemed that such person has done said act by himself; or
c. Manipulates any body part of a woman with intent to cause penetration into the urethra, mouth, anus or any other body part of such woman. If such person causes any other person or woman, herself, to do penetration thereby, then it would be deemed that such person has done said act by himself; or
d. Applies his mouth to the anus, urethra or vagina of a woman. If such person causes any other person or woman, herself, to do penetration thereby, then it would be deemed that such person has done said act by himself:
Then, such act of such person would amount to rape if the said act is done –

1. Against her will
2. Without Consent
3. Vitiated consent rendered by the coercion or putting any person in whom she is interested, or any relative, in fear of death.
4. Consent obtained by fraudulently portraying to woman as her husband.
5. Consent obtained from the woman who was, at the time of giving such consent, unconscious due to unsoundness of mind, intoxication or any drug administered by such man personally or through another person of any stupefying or unwholesome substance.
6. Consent does not matter if she is below 18 years.
7. Unable to communicate her consent.
   Section 376(1) of the Indian Penal Code (IPC), 1860 penalise rape with rigorous imprisonment for at least 7 years, and this may extend upto life imprisonment, with fine.

Types of Rape as per the Indian Criminal Laws
Hereinbelow, rape has been classified into the following types based on offence mentioned in the Indian Penal Code (I. P. C.), 1860 –

1. Brutal Rape – When the rape led to death of the victim or put a woman in a persistent vegetative state due to the injury that occurred in the course of commission of rape or injury inflicted by the rape offenders. Section 376 A of the Indian Penal Code (IPC), 1860 penalises such act with rigorous imprisonment for at least 20 years, and this may extend upto life imprisonment, with fine or with death. Here, imprisonment for life means imprisonment for the remainder of that person’s natural life.
2. Marital Rape – When a man has sexual intercourse with his wife without her consent while they were living separately. The phrase ‘living separately’ is used thereby means separation is caused due to a decree of separation or otherwise. Section 376 B of the Indian Penal Code (IPC), 1860 penalises such act with rigorous imprisonment for at least 2 years, and this may extend upto life imprisonment, with fine.
3. Gang Rape – When rape is committed by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape. Section 376 D of the Indian Penal Code (IPC), 1860 penalises such act with rigorous imprisonment for at least 20 years, and this may extend upto life imprisonment, with fine or with death. Here, imprisonment for life means imprisonment for the remainder of that person’s natural life. Fine retrieved from the offender shall be given to the victim. Such fine imposed shall be just and reasonable that is sufficient to cover the medical and rehabilitation expense of the victim. The Section 376 DA of the Indian Penal Code (IPC), 1860 states that a rape case in which the victim is under 16 years of age shall be punished with rigorous imprisonment for at least 20 years, and this may extend upto life imprisonment, with fine. Here, imprisonment for life means imprisonment for the remainder of that person’s natural life. Fine retrieved from the offender shall be given to the victim. Such fine imposed shall be just and reasonable that is sufficient to cover the medical and rehabilitation expense of the victim. The Section 376 DA of the Indian Penal Code (IPC), 1860 states that a rape case in which the victim is under 16 years of age shall be punished with rigorous imprisonment for life and with fine. Here, imprisonment for life means imprisonment for the remainder of that person’s natural life. Fine retrieved from the offender shall be given to the victim. Such fine imposed shall be just and reasonable that is sufficient to cover the medical and rehabilitation expense of the victim. The Legislature has also enacted the Protection of Children from Sexual Offences Act (POCSO), 2012 to protect children from sexual abuse.

Does Consensual Sex amounts to Rape ?
Generally, sexual intercourse with the consent of a woman would not amount to rape. But if sexual intercourse happens with a woman under 18 years of age, whether consent is given or not it does not matter, then such sexual intercourse with the girl under 18 years of age would amount to rape. If the man promises to marry the woman but later denies to do so, then in this case two situations arise. First, if the man making such promise has the intention not to fulfil it from very inception, then such situation would amount to rape. Second, the man making such promise has the intention to fulfil from very inception but due to some unwanted events not breach his promise, then such situation would not amount to rape.

Process & Procedure of Criminal Trial of a Rape Case: Best Criminal Lawyer Advice
Two types of trials are there i.e., Summon Trial and Warrant Trial. Section 2 (w) and Section 2(x) of the Code of Criminal Procedure (Cr. P.C.), 1973 defines Summon case and warrant cases, respectively. Section 2(x) of the Code of Criminal Procedure (Cr.P.C.), 1973 states that offences that are punishable with death, imprisonment for life and imprisonment for a term exceeding 2 years are warrant cases. So, they will be tried as Warrant Trial. Section 2(w) of the Code of Criminal Procedure (Cr. P.C.), 1973 states that cases which are not warrant trial cases would be Summon trial cases. Therefore, as Rape is punishable with rigorous imprisonment for at least 7 years, and this may extend upto life imprisonment, with fine, so it is warrant trial.

1. Framing of Charge: After consideration, examination and hearing, Magistrate forms charges. Thereafter, the accused will be tried for charges which are framed by Magistrate.
2. Plea of Guilty: Accused will be asked whether they plead guilty or has a defense to make. If the accused pleads guilty, then he may be convicted. But, if the accused refuse to plead guilty, then the Court will proceed to hear prosecution.
3. Evidence of Prosecution: The Court shall give the opportunity to the Prosecution to put before it all evidence. It may also issue summon, on the application of Prosecution, to any witness with a direction to attend or to produce any document or other thing.
4. Evidence of Defense: The Court will ask Defense to put before it all evidence. It may also issue summon, on the application of Prosecution, to any witness with a direction to attend or to produce any document or other thing. Section 313 of the Code of Criminal Procedure (Cr. P. C.), 1973 also empowers the Court to examine the accused and the statement given by him is admissible which can be used as evidence to prove the charges. The burden of proof under all the above-mentioned Act lies on the defense that he is completely innocent.
5. Judgement of Acquittal or Conviction: After hearing both sides and considering all the evidence, Magistrate will acquit or convict the accused under section 248 (3) of the Code of Criminal Procedure, 1973.

Criminal Defenses available to the alleged Accused in a false Rape Case: Best Criminal Defense Lawyer Advice

1. Quash Criminal Proceeding: The Hon’ble High Court under section 482 of the Code of Criminal Procedure, 1973 is empowered to quash First Information Report (F. I. R.) or charge-sheet to give effect to any order under any section of the Code of Criminal Procedure (Cr. P. C.), 1973 or to prevent abuse of process of Court or otherwise to secure end of justice. Expression “abuse of power of law” or “to secure end of justice” do not confer unlimited jurisdiction on the High Court. In the case of Dr Dhruvaram Muralidhar Sonar v. State of Maharashtra and Ors. [Cri. Appeal No. 1443/ 2018], the Hon’ble Supreme Court held that it is the epic case where the Hon’ble High Court should have exercised its power under section 482 of the Code of Criminal Procedure (Cr. P. C.), 1973 to quash the criminal proceedings in the present case. As no ingredients of the offences under which the accused is booked are found in the complainant.
2. Medical Report: Medical examination of the victim of rape is mandatory under section 164A of the Code of Criminal Procedure (Cr. P. C.), 1973. Such medical examination is conducted by the government medical practitioner. If such report does not disclose any commission of rape or no semen of the man is found on the body of a female or her clothes, then in such cases Court may discharge the accused until the contrary is proved. The Hon’ble Supreme Court in the case of Raju and Ors. v. State of Madhya Pradesh [Cri. A. No. 1094-98/ 2000] observed that as per the victim she was subject to violence by the perpetrator but according to the medical report, no injury was found on the body of the victim and also no spermatozoa was found in the vaginal swab. Therefore, all the accused were acquitted in this case.
3. Test Identification Parade: Test Identification Parade is conducted by virtue of section 9 of the Indian Evidence Act (IEA), 1872. It is a test where actual perpetrators are intermingled with other people and the victim and the witness is made to identify real perpetrators. The purpose of the Test Identification Parade is to examine and strengthen the veracity of the substantive evidence of a witness in Court. The Hon’ble Supreme Court in the case of Rajesh Govind Jagesha v. State of Maharashtra [Cri. A. No. 737/ 1997] held that if the test identification parade regarding the accused was not conducted properly and suffered from unexplained delay, he is entitled to benefit of the doubt.
4. Discharge: Under section 239 of the Code of Criminal Procedure (Cr. P. C.), 1973 application for the discharge of the accused can be made by the accused to a trial Court. A trial Court may, after considering charge-sheet presented before it by a police officer under section 173 of the Code of Criminal Procedure (Cr. P. C.), 1973, examining the accused and hearing both the accused and the prosecution, discharge the accused and record his reason for doing so.
5. Consent: Under section 375 of the Indian Penal Code (IPC), 1860 consent of a woman for sexual intercourse should not be obtained under a misconception of fact such as a false promise of marriage. There is a difference between a false promise of marriage and a breach of promise. A false promise to marry is punishable under section 375 of the Indian Penal Code (IPC), 1860 whereas a breach of promise due to some reason is not punishable under section 375 of the Indian Penal Code (IPC), 1860. The Hon’ble Supreme Court in the case of Anurag Soni v. State of Chhattisgarh [Cri Appeal No. 629/ 2019] has held that if a prosecution proves that the consent for sexual intercourse was given by the victim only upon the promise made by the accused to marry her and also proves that the promise was made with mala fide intention, then such consent will be vitiated by the misconception of the fact and the Court will presume under section 114A of the Indian Evidence Act, 1872 that no consent is given for sexual intercourse and therefore the accused will not only be guilty of rape under section 375 of the Indian Penal Code (IPC), 1860 but also for cheating under section 417 of the Indian Penal Code (IPC), 1860

Landmark Judgements of High Court and Supreme Court of India

1. Raja and Ors. v. State of Karnataka [Cri. A. No. 1767/ 2011]: A woman was living separately from her husband for about 8 months prior to the incident of rape. She used to work as a maid to earn bread for a living. According to her complaint, on the day of the incident she was coming back from work when the autorickshaw stopped near her and two persons sitting inside the autorickshaw pulled her in the autorickshaw. After travelling for few hours, two more persons got into the rickshaw. Thereafter, they blindfolded her and took her to a garage whereafter they repeatedly raped her. The Hon’ble Supreme Court reversed the conviction by the Hon’ble High Court. The Apex Court observed large number of discrepancies in the statement of the victim such as different place of incident in the complaint and her statement before the Court. Also, the absence of any threat by the accused at the time of abduction thereby and her strange conduct like not coming back home in a distressed, humiliated and devastated state rather stayed back in and around the place of occurrence of the incident.
2. Dola Alias Dolagobinda Pradhan and Anr. v. State of Odisha [Cri. A. No. 1095/ 2018]: A woman was going back to her home from her hotel. When the assailants ambushed her and gagged her mouth with a napkin and took her to the road side date-clump. One of the accused threatened the victim with dire consequences by pointing a knife at her and being frightened, the victim could not raise any alarm. Whereafter, the victim ran to her home and narrated the whole incident to her husband. The Hon’ble Supreme Court acquitted all the accused after observing a large number of discrepancies in the story of the victim. Like, she said that she immediately told her husband about the ordeal but her husband made the statement before the Court that she did not immediately told him. The Apex Court also observed that the place where the alleged incident occured is a crowded place near the market, so it is not possible that no one witnessed it. Further, the victim did not recognise any of the accused by face but recognise them with their voice. Even though she was never acquainted with them. Therefore, the Apex Court acquitted all the accused.
3. Raju and Ors. v. State of Madhya Pradesh [Cri. A. No. 1094-98/ 2000]:The victim along with her mother was on the way to a bazaar for purchasing households items. Where 4 of the accused called her with the name ‘Prostitute’ and asked her to go with them to the hotel. But the victim refused to comply with their demand due to this they covered the face of the victim with the towel and then slapped her. Then, forcibly made her sit on the scooter and drove her to the newly constructed quarters where the other accused were already present. Thereafter, they turn by turn raped her and after satisfying their lust dropped her near the Peepal tree in the bazaar. The Hon’ble Supreme Court observed that a lot of inconsistencies such as the victim stated that she was slapped and forcibly raped but there was no injury found on the body of the victim. Moreover, Test Identification Parade conducted was also farcical. Hence, the apex Court acquitted all the accused.
4. Pramod Suryabhan Pratap v. State of Maharashtra and Anr. [Cri. A. No. 1165/ 2019]: The victim and the man were in a relationship for about 12 years. During this period, many times they stay at each other place and consummate their relationship. In 2008, the man told the victim that there might be hindrance in their marriage as they belong to a different caste. But still, the victim chooses to stay in a relationship with her. Later on, in 2016, the man refused to marry the victim because his parents were not ready to accept their marriage as the victim belongs to a different religion. The Hon’ble Supreme Court observed that there was no evidence to show that the accused has no intention to fulfil the promise to marry her or the accused was making a false promise. It was due to unwanted events he has to breach his promise and breach of promise does not amount to rape. Therefore, acquitted the man of all the charges.
5. Dr Dhruvaram Muralidhar Sonar v. State of Maharashtra and Ors. [Cri. Appeal No. 1443/ 2018]: A man, the accused, and a woman, the complainant, work in a health centre where they met the first time. The complainant starts to develop feeling of love towards the accused. The complainant was a widow and need someone for support. Thereafter, they started living together. Sometimes they live at the accused place and sometimes they live together at the complainant place. They were in a live-in relationship and they both enjoy each other company. One day the complainant discovers that the accused had married some other woman. Thereafter, the complainant under section 154(1) of the Code of Criminal Procedure (Cr. P. C.), 1973 lodged F. I. R. under sections 375, 90 and 420 of the Indian Penal Code (I. P. C.), 1860 and section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (SC/ ST Act), 1989. The Hon’ble Supreme Court quashed chargesheet and F. I. R. of the present case under section 482 of the Code of Criminal Procedure (Cr. P. C.), 1973 and held that there is no prima facie evidence found to hold the charges against the accused. The apex Court further held that there is a difference between a false promise to marry and a breach of promise. The former is punishable but later is not punishable because there might be developments of unforeseen events which may lead to a breach of promise. In the present case, the prosecution failed to prove that there was a misconception of facts.

Contesting a rape case is a very challenging task and a proper legal advice from the best criminal lawyer or legal consultation from the best criminal attorney is inevitable and need of the hour. Further, tendering evidences fling affidavits, presenting case laws and doing the arguments is a very technical issue and requires utmost proficiency.

Currents enacted laws seems insufficient to counter the false implication of rape. As the false implication of rape affects the man in two ways. Firstly, the man has to go to jail and spend a lot of money as well as go through ordeals to get justice. Secondly, which is most deleterious, the impact of false implications of rape in society. As, unlike in the case of a rape victim, where the victim gets protection under section 228A of the Indian Penal Code (IPC), 1860 from publication, directly or indirectly, of her identity in any platform but the victim of false implication of rape does not get any such protection. National Human Rights Commission (NHRC) has also recommended the Government to penalise publication of personal details of the accused before his conviction. There is no legal remedy with the victim of false implication of rape except to file a case of libel or slander.
Authored By: Adv. Anant Sharma & Satwik Sharma