Even assuming that the prosecutrix was of easy virtue, she has a right of refuse to submit herself to sexual intercourse to anyone. The 29 judgment of the High Court reversing the verdict of conviction under Section 376(2)(g) recorded by the trial court cannot be sustained and is liable to be set aside. For the conviction under Section 376(2)(g) IPC, the accused shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may be extended to imprisonment for life. After the amendment by Act 13 of 2013 (with retrospective effect from 03.02.2013), the minimum sentence of ten years was increased to twenty years as per Section 376-D and in the case of conviction, the court has no discretion but to impose the sentence of minimum twenty years. However, prior to amendment, proviso to Section 376(2) IPC provided a discretion to the court that “the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than ten years.” Though the court is vested with the discretion, in the facts and circumstances of the case, we are not inclined to exercise our discretion in reducing the sentence of imprisonment of ten years imposed upon the respondents-accused. In the result, the impugned judgment of the High Court is set aside and the appeal preferred by the State is allowed. The verdict of conviction of accused-respondent Nos.1 to 4 (CA No.2299/2009) 30 under Section 376(2)(g) IPC and also the sentence of imprisonment of ten years imposed upon them is affirmed. The respondentsaccused Nos.1 to 4 shall surrender themselves within a period of four weeks from today to serve the remaining sentence, failing which they shall be taken into custody.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.2299 OF 2009 STATE (GOVT. OF NCT OF DELHI) ….Appellant VERSUS PANKAJ CHAUDHARY AND ORS. ….Respondents With CRIMINAL APPEAL NO.2298 OF 2009 J U D G M E N T R. BANUMATHI, J. These appeals arise out of the judgment dated 05.05.2009 passed… Read More Even assuming that the prosecutrix was of easy virtue, she has a right of refuse to submit herself to sexual intercourse to anyone. The 29 judgment of the High Court reversing the verdict of conviction under Section 376(2)(g) recorded by the trial court cannot be sustained and is liable to be set aside. For the conviction under Section 376(2)(g) IPC, the accused shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may be extended to imprisonment for life. After the amendment by Act 13 of 2013 (with retrospective effect from 03.02.2013), the minimum sentence of ten years was increased to twenty years as per Section 376-D and in the case of conviction, the court has no discretion but to impose the sentence of minimum twenty years. However, prior to amendment, proviso to Section 376(2) IPC provided a discretion to the court that “the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than ten years.” Though the court is vested with the discretion, in the facts and circumstances of the case, we are not inclined to exercise our discretion in reducing the sentence of imprisonment of ten years imposed upon the respondents-accused. In the result, the impugned judgment of the High Court is set aside and the appeal preferred by the State is allowed. The verdict of conviction of accused-respondent Nos.1 to 4 (CA No.2299/2009) 30 under Section 376(2)(g) IPC and also the sentence of imprisonment of ten years imposed upon them is affirmed. The respondentsaccused Nos.1 to 4 shall surrender themselves within a period of four weeks from today to serve the remaining sentence, failing which they shall be taken into custody.

Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 Cr.P.C., in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 Cr.P.C. and to either accept or reject the same for reasons specified in writing. Unfortunately neither Trial Court nor the High Court considered it necessary to take notice of, much less discuss or observe with regard to the aforesaid defence by the appellant under Section 313 Cr.P.C. to either accept or reject it. The defence taken cannot be said to be irrelevant, illogical or fanciful in the entirety of the facts and the nature of other evidence available as discussed hereinbefore. The complete nonconsideration thereof has clearly caused prejudice to the 13 appellant. Unlike the prosecution, the accused is not required to establish the defence beyond all reasonable doubt. The entirety of the discussion, in the facts and circumstances of the case, the nature of evidence available coupled with the manner of its consideration, leaves us satisfied that the links in the chain of circumstances in a case of circumstantial evidence, cannot be said to have been established leading to the inescapable conclusion that the appellant was the assailant of the deceased, incompatible with any possibility of innocence of the appellant. The possibility that the occurrence may have taken place in some other manner cannot be completely ruled out. The appellant is therefore held entitled to acquittal on the benefit of doubt. We accordingly order the acquittal and release of the appellant from custody forthwith, unless wanted in any other case.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1330 OF 2018 (arising out of SLP(Crl.) No.2440 of 2018) REENA HAZARIKA ….APPELLANT(S) VERSUS STATE OF ASSAM …RESPONDENT(S) JUDGMENT NAVIN SINHA, J. Leave granted. 2. The appellant is the wife of the deceased convicted under Section 302 I.P.C. and sentenced to life imprisonment… Read More Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 Cr.P.C., in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 Cr.P.C. and to either accept or reject the same for reasons specified in writing. Unfortunately neither Trial Court nor the High Court considered it necessary to take notice of, much less discuss or observe with regard to the aforesaid defence by the appellant under Section 313 Cr.P.C. to either accept or reject it. The defence taken cannot be said to be irrelevant, illogical or fanciful in the entirety of the facts and the nature of other evidence available as discussed hereinbefore. The complete nonconsideration thereof has clearly caused prejudice to the 13 appellant. Unlike the prosecution, the accused is not required to establish the defence beyond all reasonable doubt. The entirety of the discussion, in the facts and circumstances of the case, the nature of evidence available coupled with the manner of its consideration, leaves us satisfied that the links in the chain of circumstances in a case of circumstantial evidence, cannot be said to have been established leading to the inescapable conclusion that the appellant was the assailant of the deceased, incompatible with any possibility of innocence of the appellant. The possibility that the occurrence may have taken place in some other manner cannot be completely ruled out. The appellant is therefore held entitled to acquittal on the benefit of doubt. We accordingly order the acquittal and release of the appellant from custody forthwith, unless wanted in any other case.

whether non-framing of charge has caused prejudice in the present case. In order to judge whether a failure of justice has been occasioned, it is relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether they were explained to him and whether he got a fair chance to defend. The crux of the issue is whether in this case, omission to frame charge under Section 302 IPC has vitiated conviction of the appellant/accused. = the appellant has not raised the objection as to nonframing of charges at the earliest point of time namely the trial court and the first appellate court – High Court. – It is also to be pointed out that in the High Court, the appellant has not raised any grievance as to non-framing of charge under Section 302 read with Section 34 IPC and that it has caused prejudice to him. On the other hand, the learned counsel appearing for the appellant only contended that the appellant Kamil ought not to have been convicted by invoking the principle of vicarious liability enshrined by Section 34 IPC. All these aspects clearly show that the appellant clearly understood that charge under Section 302 read with Section 34 IPC has been framed against him and throughout he has been defending himself only for the charge under Section 302 IPC. In such facts and circumstances, it cannot be said that the failure of justice has occasioned to him and the absence of a charge under Section 302 read with Section 34 IPC cannot be said to have caused any prejudice to him.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1568 OF 2015 KAMIL …..Appellant VERSUS STATE OF UTTAR PRADESH …..Respondent J U D G M E N T R. BANUMATHI, J. This appeal arises out of the judgment dated 28.07.2014 passed by the High Court of Allahabad in Criminal Appeal No.1047 of… Read More whether non-framing of charge has caused prejudice in the present case. In order to judge whether a failure of justice has been occasioned, it is relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether they were explained to him and whether he got a fair chance to defend. The crux of the issue is whether in this case, omission to frame charge under Section 302 IPC has vitiated conviction of the appellant/accused. = the appellant has not raised the objection as to nonframing of charges at the earliest point of time namely the trial court and the first appellate court – High Court. – It is also to be pointed out that in the High Court, the appellant has not raised any grievance as to non-framing of charge under Section 302 read with Section 34 IPC and that it has caused prejudice to him. On the other hand, the learned counsel appearing for the appellant only contended that the appellant Kamil ought not to have been convicted by invoking the principle of vicarious liability enshrined by Section 34 IPC. All these aspects clearly show that the appellant clearly understood that charge under Section 302 read with Section 34 IPC has been framed against him and throughout he has been defending himself only for the charge under Section 302 IPC. In such facts and circumstances, it cannot be said that the failure of justice has occasioned to him and the absence of a charge under Section 302 read with Section 34 IPC cannot be said to have caused any prejudice to him.

applications were required to be disposed of on the basis of the Rules in force at the time of the disposal of the applications. = the claim of plaintiff for allotment of additional land of 20.61 acres which can be at best said to be pending on the date of enforcement of Rules, 1983 would have been only dealt with in accordance with Rule 5 of Rules, 1983 and disregard of said Rules the trial court would not have decreed the suit directing the Trust to execute lease in favour of the plaintiff of 20.61 acres of land. The decree of the trial court was clearly in the teeth of the statutory Rules and the High Court committed error in taking the view that Rules, 1983 were not applicable in the present case.

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 10853 of 2018 (arising out of SLP (C) No.18959 /2017) NAGPUR IMPROVEMENT TRUST …APPELLANT(S) VERSUS SHEELA RAMCHANDRA TIKHE ..RESPONDENT(S) J U D G M E N T ASHOK BHUSHAN,J. Leave granted. 2. This appeal has been filed by Nagpur Improvement Trust,… Read More applications were required to be disposed of on the basis of the Rules in force at the time of the disposal of the applications. = the claim of plaintiff for allotment of additional land of 20.61 acres which can be at best said to be pending on the date of enforcement of Rules, 1983 would have been only dealt with in accordance with Rule 5 of Rules, 1983 and disregard of said Rules the trial court would not have decreed the suit directing the Trust to execute lease in favour of the plaintiff of 20.61 acres of land. The decree of the trial court was clearly in the teeth of the statutory Rules and the High Court committed error in taking the view that Rules, 1983 were not applicable in the present case.

Service matter -whether the reliefs as prayed for can be granted to the respondents, who not only failed to challenge the termination w.e.f. 1st April, 2001 pursuant to the policy decision of the State Government at the relevant time but also failed to challenge the latest policy decision of the State Government noted in communication dated 20th May, 2005, regarding adjustment of the terminated employees on terms and conditions stipulated thereunder and including the terms and conditions specified in the appointment letter dated 16th 25 March, 2007. Neither the single Judge nor the Division Bench of the High Court has dilated on this aspect at all. = order of termination was the subject matter of the challenge and, having set aside the impugned termination, the court granted consequential relief of reinstatement with back­wages to the concerned petitioner(s). The respondents herein, however, for reasons best known to them, did not challenge the order of termination which event had occurred w.e.f. 1st April, 2001 consequent to abolition of the scheme in which they were employed. Taking an overall view of the matter, therefore, the respondents are not entitled to the reliefs as claimed, having acted upon the terms and conditions upon which they came to be engaged vide appointment letter dated 16th March, 2007.

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.10806 OF 2018 (Arising out of SLP (C) No. 7358 of 2018) THE STATE OF BIHAR AND ORS. …. APPELLANTS :Versus: BALIRAM SINGH & ORS. …. RESPONDENTS J U D G M E N T A.M. Khanwilkar, J. 1. Leave granted. 2.… Read More Service matter -whether the reliefs as prayed for can be granted to the respondents, who not only failed to challenge the termination w.e.f. 1st April, 2001 pursuant to the policy decision of the State Government at the relevant time but also failed to challenge the latest policy decision of the State Government noted in communication dated 20th May, 2005, regarding adjustment of the terminated employees on terms and conditions stipulated thereunder and including the terms and conditions specified in the appointment letter dated 16th 25 March, 2007. Neither the single Judge nor the Division Bench of the High Court has dilated on this aspect at all. = order of termination was the subject matter of the challenge and, having set aside the impugned termination, the court granted consequential relief of reinstatement with back­wages to the concerned petitioner(s). The respondents herein, however, for reasons best known to them, did not challenge the order of termination which event had occurred w.e.f. 1st April, 2001 consequent to abolition of the scheme in which they were employed. Taking an overall view of the matter, therefore, the respondents are not entitled to the reliefs as claimed, having acted upon the terms and conditions upon which they came to be engaged vide appointment letter dated 16th March, 2007.

Second marriage after divorce can not deprive the husband from having custody of his children through first wife 19. A perusal of the impugned order shows that it is not as if the appellant was not looking after the children. The children showed affection for their father. It was due to the exigencies of the appellant’s service condition that the children had to be put in a boarding school for some time, which exigency also does not remain at present. It was known to the parties that they were in a transferable job. A conscious decision was taken by the parties to give the sole custody to the 12 appellant, in the interest of the children. The second wife of the appellant is an educated lady. Merely because the appellant has decided to go ahead in life, and has had a second marriage, it provides no ground whatsoever to deprive him of the custody of the children as agreed upon between the appellant and respondent No.1, especially when he has been looking after the children and has not gone back on any of his commitments. Respondent No.1, in order to avoid the financial liability started these proceedings, resulting in the impugned order, as also a separate suit proceeding. One fails to appreciate what is it that respondent No.1 wants by filing the suit now, by claiming that the decree of divorce is null and void, when there is admission of a mutual consent for divorce and the appellant has already re-married. We are not going into the details of the allegations against respondent No.1’s liaison with another man in the same service, as the inquiry is still pending and, it may not be appropriate also, to do so in the present proceedings. We, however, see no reason why the appellant has been compelled to go through this unnecessary litigation when the parties, at the threshold, after deep deliberation, and for the interest of the children, have given the custody to the appellant.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 10771 of 2018 [Arising out of SLP(C) No.21786/2018] DR. AMIT KUMAR ….APPELLANT versus DR. SONILA & ORS. ….RESPONDENTS J U D G M E N T SANJAY KISHAN KAUL, J. 1. Leave granted. 2. The appellant and respondent No.1 were married according… Read More Second marriage after divorce can not deprive the husband from having custody of his children through first wife 19. A perusal of the impugned order shows that it is not as if the appellant was not looking after the children. The children showed affection for their father. It was due to the exigencies of the appellant’s service condition that the children had to be put in a boarding school for some time, which exigency also does not remain at present. It was known to the parties that they were in a transferable job. A conscious decision was taken by the parties to give the sole custody to the 12 appellant, in the interest of the children. The second wife of the appellant is an educated lady. Merely because the appellant has decided to go ahead in life, and has had a second marriage, it provides no ground whatsoever to deprive him of the custody of the children as agreed upon between the appellant and respondent No.1, especially when he has been looking after the children and has not gone back on any of his commitments. Respondent No.1, in order to avoid the financial liability started these proceedings, resulting in the impugned order, as also a separate suit proceeding. One fails to appreciate what is it that respondent No.1 wants by filing the suit now, by claiming that the decree of divorce is null and void, when there is admission of a mutual consent for divorce and the appellant has already re-married. We are not going into the details of the allegations against respondent No.1’s liaison with another man in the same service, as the inquiry is still pending and, it may not be appropriate also, to do so in the present proceedings. We, however, see no reason why the appellant has been compelled to go through this unnecessary litigation when the parties, at the threshold, after deep deliberation, and for the interest of the children, have given the custody to the appellant.

OLD WOMEN CAN CANCEL THE GIFT IF NEPHEW NOT LOOKED AFTER THE WELFARE OF HER 4. The appellant is a childless widow aged 74 years whose husband expired on 06.06.2015. The respondent is the nephew of the appellant (brother’s son). In the expectation that the respondent will look after the appellant and her husband and also for some consideration, the appellant executed a purported gift deed in favour of the respondent. The gift deed clearly stated that the gift would take effect after the death of the appellant and her husband. 5. According to the appellant on or about 02.06.1999, the appellant executed the deed of cancellation No. 1844/1999 cancelling the gift deed. After about eight months, on or about 01.02.2000, the respondent filed Original Suit No. 32/2000 in the Court of the learned Munsif Sasthamcotta for declaration that the cancellation deed executed by the appellant is null and void and also for declaration of his right over the suit property being the subject matter of the purported deed of gift. 15. A conditional gift with no recital of acceptance and no evidence in proof of acceptance, where possession remains with the donor as long as he is alive, does not become complete during lifetime of the donor. When a gift is incomplete and title remains with the donor the deed of gift might be cancelled. 19. In the instant case, admittedly, the deed of transfer was executed for consideration and was in any case conditional subject to the condition that the donee would look after the petitioner and her husband and subject to the condition that the gift would take effect after the death of the donor. We are thus constrained to hold that there was no completed gift of the property in question by the appellant to the respondent and the appellant was within her right in cancelling the deed. The judgment and order of the High Court cannot, therefore, be sustained

1 REPORTABLE THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVILAPPEAL NO. 10785 OF 2018 (Arising out of SLP (C) No. 35515 of 2017) S. SAROJINI AMMA …Appellant VERSUS VELAYUDHAN PILLAI SREEKUMAR …Respondent J U D G M E N T Indira Banerjee, J. Leave granted. 2. This appeal has been filed against the judgment… Read More OLD WOMEN CAN CANCEL THE GIFT IF NEPHEW NOT LOOKED AFTER THE WELFARE OF HER 4. The appellant is a childless widow aged 74 years whose husband expired on 06.06.2015. The respondent is the nephew of the appellant (brother’s son). In the expectation that the respondent will look after the appellant and her husband and also for some consideration, the appellant executed a purported gift deed in favour of the respondent. The gift deed clearly stated that the gift would take effect after the death of the appellant and her husband. 5. According to the appellant on or about 02.06.1999, the appellant executed the deed of cancellation No. 1844/1999 cancelling the gift deed. After about eight months, on or about 01.02.2000, the respondent filed Original Suit No. 32/2000 in the Court of the learned Munsif Sasthamcotta for declaration that the cancellation deed executed by the appellant is null and void and also for declaration of his right over the suit property being the subject matter of the purported deed of gift. 15. A conditional gift with no recital of acceptance and no evidence in proof of acceptance, where possession remains with the donor as long as he is alive, does not become complete during lifetime of the donor. When a gift is incomplete and title remains with the donor the deed of gift might be cancelled. 19. In the instant case, admittedly, the deed of transfer was executed for consideration and was in any case conditional subject to the condition that the donee would look after the petitioner and her husband and subject to the condition that the gift would take effect after the death of the donor. We are thus constrained to hold that there was no completed gift of the property in question by the appellant to the respondent and the appellant was within her right in cancelling the deed. The judgment and order of the High Court cannot, therefore, be sustained