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RAVINDRA MAITHANI
Kirti Bhushan Mishra – Appellant
Versus
State of Uttarakhand – Respondent
JUDGMENT
Ravindra Maithani, J.—The challenge in this petition is made to the charge-sheet and summoning order dated 08.04.2019, passed by the court of FTC/Additional Sessions Judge/Special Judge (POCSO) Haridwar, in Special Sessions Trial No.48 of 2019, State Vs. Dr. Kirti Bhushan Mishra (“the case”), under Section 377 IPC and Section 11/12 of the Protection Of Children From Sexual Offences Act, 2012 (“the POCSO Act”), which is based on FIR No.97 of 2017, under Section 377 IPC and Sections 11/12 of the POCSO Act, Police Station Kotwali Roorkee, District Haridwar.
2. Heard learned counsel for the parties and perused the record.
3. The case is based on an FIR, lodged by the respondent no.2 against the petitioner. According to the prosecution case, the petitioner and the respondent no.2 were married on 08.12.2010. But, after marriage, the petitioner continued committing carnal intercourse against the order of nature with the respondent no.2, due to which, she sustained serious internal injuries with bleedings. But, the petitioner continued anal sex with her. The respondent no.2 was to be admitted in one Harihar Hospital Balangir. Even thereafter, the petitioner did not stop doing it a
If a man and a woman indulged in anal sex with their free consent in private, no offence under Section 377 IPC is made out.
In a marital relationship, consent is implied, and Section 377 IPC does not apply to consensual sexual acts between spouses.
The court held that Sections 375 and 377 IPC do not apply to marital relationships, and a dying declaration must inspire full confidence and be corroborated to support a conviction.
The court quashed criminal proceedings due to vague allegations and emphasized the need for specific claims in matrimonial disputes to prevent abuse of legal processes.
The court affirmed the conviction under the POCSO Act while ruling that the appellant cannot be punished under both the POCSO Act and IPC for the same act, modifying the sentence accordingly.
Point of Law : Sexual abuse on child - ‘carnal intercourse’ - Offence under section 377 would therefore arise when there is ‘penetrative intercourse’ which is ‘against the order of nature’.
(1) Rape – If age of wife is not below 15 years then any sexual intercourse or sexual act by husband with his wife cannot be termed as rape.(2) If provisions of latter enactment are so inconsistent o....
Cruelty, rape and hurt – Forced unnatural sex by a husband on his wife amounts to cruelty under Section 498A IPC , but cannot be prosecuted as rape under Section 376 IPC.
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