Full Judgment Text
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CASE NO.:
Appeal (crl.) 1134 of 2006
PETITIONER:
State of Kerala
RESPONDENT:
Kurissum Moottil Antony
DATE OF JUDGMENT: 09/11/2006
BENCH:
ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
(Arising out of SLP (Crl.) No. 5856 of 2005)
ARIJIT PASAYAT, J.
Leave granted.
The State of Kerala challenges the order passed by the
learned Single Judge of the Kerala High Court directing
acquittal of the respondent by accepting revision petition filed
by the respondent. Respondent was found guilty of offences
punishable under Sections 451 and 377 of the Indian Penal
Code, 1860 (in short ’IPC’). The Trial Court had convicted the
respondent as aforesaid and had imposed sentence of six
months and one year rigorous imprisonment respectively with
fine of Rs.2000/- in each case. The fine amount of Rs.2000/-
was to be paid to the victim in terms of Section 357 (1)(b) of
the Code of Criminal Procedure, 1973 (in short ’Cr.P.C.’).
Factual background as unfolded during trial of the
respondent was that on 10.11.1986 accused trespassed into
the house of the victim-girl who was nearly about 10 years of
age on the date of occurrence and committed unnatural
offence on her. After finding the victim alone in the house the
accused committed unnatural offence by putting his penis
having carnal intercourse against order of nature. The victim
(PW-1) told about the incident to her friend (PW-2) who
narrated the same to the parents of the victim and accordingly
on 13.11.1986 First Information Report was lodged. The
investigation was undertaken by PW-11 who sent both the
victim and the accused for medical examination. He also
seized the dress worn by the victim at the time of occurrence.
The Chemical Analyst report Ex.P7 indicated presence of
human semen and spermatozoa on the dress of the victim.
Potency of the accused was also proved by the doctor (PW-10)
as per Ex.P6.
To further the prosecution version, 11 witnesses were
examined. The accused pleaded innocence. On consideration
of the evidence on record, learned Judicial Magistrate, Ist
Class, found the accused guilty and convicted and sentenced
as aforesaid noted. An appeal before the learned Sessions
Judge, Kelpetta did not bring any relief to the accused.
Revision was filed before the High Court which by the
impugned order set aside the order of conviction and sentence.
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The primary ground on which the High Court directed
acquittal was the absence of corroboration and alleged
suppression of a report purported to have been given before
the FIR in question was lodged.
In support of the appeal, learned counsel for the State
submitted that the High Court’s approach is clearly erroneous.
This Court in a catena of cases has held that corroboration is
not necessary for a case of this nature. Finding certain alleged
inconsistencies in the victim’s testimony, the High Court had
observed that corroboration was necessary. It relied on a
purported statement stated to have been made at anterior
point of time. It was observed that in the said complaint
details of the incident constituting the offence were not
disclosed. This was suppressed by the Investigating Officer
and mother of the victim i.e. PW-5.
There is no appearance on behalf of the respondent-
accused in spite of the service of the notice.
An accused cannot cling to a fossil formula and insist on
corroborative evidence, even if taken as a whole, the case
spoken to by the victim strikes a judicial mind as probable.
Judicial response to human rights cannot be blunted by legal
jugglery. A similar view was expressed by this Court in Rafiq v.
State of U.P. (1980 (4) SCC 262) with some anguish. The same
was echoed again in Bharwada Bhogiabhai and Hirjibhai v.
State of Gujarat (AIR 1988 SC 753). It was observed in the
said case that in the Indian setting refusal to act on the
testimony of the victim of sexual assault in the absence of
corroboration as a rule, is adding insult to injury. A girl or a
woman in the tradition bound non-permissive society of India
would be extremely reluctant even to admit that any incident
which is likely to reflect on her chastity or dignity had ever
occurred. She would be conscious of the danger of being
ostracized by the society and when in the face of these factors
the crime is brought to light, there is inbuilt assurance that
the charge is genuine rather than fabricated. Just as a witness
who has sustained an injury, which is not shown or believed
to be self-inflicted, is the best witness in the sense that he is
least likely to exculpate the real offender, the evidence of a
victim of sex offence is entitled to great weight, absence of
corroboration notwithstanding. Corroboration is not the sine
qua non for conviction in a rape case. The observations of
Vivian Bose, J. in Rameshwar v. The State of Rajasthan (AIR
1952 SC 54) were, ’’The rule, which according to the cases has
hardened into one of law, is not that corroboration is essential
before there can be a conviction but that the necessity of
corroboration, as a matter of prudence, except where the
circumstances make it safe to dispense with it, must be
present to the mind of the judge...".
To insist on corroboration except in the rarest of rare
cases is to equate one who is a victim of the lust of another
with an accomplice to a crime and thereby insult womanhood.
It would be adding insult to injury to tell a woman that her
claim of rape will not be believed unless it is corroborated in
material particulars as in "the case of an accomplice to a
crime". (See State of Maharashtra v. Chandra Prakash
Kewalchand Jain (1990 (1) SCC 550). Why should be the
evidence of the girl or the woman who complains of rape or
sexual molestation be viewed with the aid of spectacles fitted
with lenses tinged with doubt, disbelief or suspicion? The plea
about lack of corroboration has no substance.
It is unfortunate that respect for womanhood in our
country is on the decline and cases of molestation and rape
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are steadily growing. Decency and morality in public and
social life cart be protected only if Courts deal strictly with
those who violate the social norms.
The above position was highlighted by this Court in
Bhupinder Sharma v. State of H.P. (2003 (8) SCC 551).
The rule regarding non-requirement of corroboration is
equally applicable to a case of this nature, relating to Section
377 IPC.
In addition, it is to be noted that reading of PW-1’s
evidence shows that the High Court proceeded on erroneous
impression as if written complaint was earlier lodged before
the police which was suppressed by the prosecution. A close
reading of PW-5’s evidence shows that she has not stated
anything of that nature. On the contrary, evidence of the
mother PW-5 and the father PW-4 is that they went to the
police station with the victim and FIR was lodged. The High
Court had proceeded on the basis as if PW-2 has resiled from
her statement made during investigation. It is really not so.
She has stated about accused going into the house of the
victim asking for water and when PW-1 went inside to take the
glass, accused forcibly catching her. The evidence of PW-1 who
was 10 years of age at the time of occurrence and was about
14 years of age at the time of deposition in Court has
categorically and elaborately described the incident. She has
graphically described as to how the offence was committed.
She has stated that while she was alone in the house, the
accused who was her neighbour came to her and asked for a
glass of water. But he did not go and wanted more glass of
water. When she turned to take the glass she was caught
forcibly by him and was to made lie on the floor. The accused
lifted her skirt and removed her underwear and thrust his
male organ, and committed carnal intercourse against the
order of nature. She cried but nobody heard the same except
her brother who was unable to help, as he was lying in bed
because of paralysis. The accused went away thereafter.
In cross-examination no material inconsistency has
surfaced except some minor ones which are but natural. The
High Court clearly lost sight of these factors and has directed
acquittal on untenable grounds. It is unsustainable and is set
aside. Orders of the Trial Court and First Appellate Court
stand restored. Steps shall be taken by the concerned Court to
take the respondent-accused to custody to serve remainder of
sentence.
Appeal is allowed.