Full Judgment Text
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CASE NO.:
Appeal (crl.) 547 of 1997
PETITIONER:
State of Punjab
RESPONDENT:
Ramdev Singh
DATE OF JUDGMENT: 17/12/2003
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
Sexual violence apart from being a dehumanizing act is an unlawful
intrusion on the right of privacy and sanctity of a female. It is a serious blow to her
supreme honour and offends her self-esteem and dignity \026 it degrades and humiliates the
victim and where the victim is a helpless innocent child or a minor, it leaves behind a
traumatic experience. A rapist not only causes physical injuries but
more indelibly leaves a scar on the most cherished possession of a woman
i.e. her dignity, honour, reputation and not the least her chastity.
Rape is not only a crime against the person of a woman, it is a crime
against the entire society. It destroys, as noted by this Court in Shri
Bodhisattwa Gautam v. Miss Subhra Chakraborty (AIR 1996 SC 922), the
entire psychology of a woman and pushes her into deep emotional crisis.
It is a crime against basic human rights, and is also violative of the
victim’s most cherished of the Fundamental Rights, namely, the Right to
Life contained in Article 21 of the Constitution of India, 1950 (in
short the ’Constitution’) The Courts are, therefore, expected to deal
with cases of sexual crime against women with utmost sensitivity. Such
cases need to be dealt with sternly and severely. A socially sensitized
judge, in our opinion, is a better statutory armour in cases of crime
against women than long clauses of penal provisions, containing complex
exceptions and provisos.
The State of Punjab questions acquittal of the respondent
(hereinafter referred to as ’the accused’) who was charged for
commission of offence punishable under Section 376 of the Indian Penal
Code, 1860 (for short ’the IPC’).
We do not propose to mention name of the victim. Section 228-A of
IPC makes disclosure of identity of victim of certain offences
punishable. Printing or publishing name of any matter which may make
known the identity of any person against whom an offence under Sections
376, 376-A, 376-B, 376-C or 376-D is alleged or found to have been
committed can be punished. True it is, the restriction, does not relate
to printing or publication of judgment by High Court or Supreme Court.
But keeping in view the social object of preventing social victimization
or ostracism of the victim of a sexual offence for which Section 228-A
has been enacted, it would be appropriate that in the judgments, be it
of this Court, High Court or lower Court, the name of the victim should
not be indicated. We have chosen to describe her as ’victim’ in the
judgment. (See State of Karnataka v. Puttaraja (2003 (8) Supreme 364)
Prosecution version as unfolded during trial is as follows:
On 1.10.1985 the mother of the victim PW-4 lodged information with
the police that 17-18 days back the accused had committed rape on her
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daughter PW-7. According to the information lodged, the victim had told
her mother after coming from house of the accused that she was forcibly
dragged away by the accused while she was cleaning utensils and was
raped. At the time of occurrence wife of the accused was absent and
taking advantage of her absence, the accused committed the lustful act.
As the father of the victim PW-5 was lying ill seriously they did not
think it proper to inform him and when he recovered from illness, and
the police had come to the village for investigating into some other
case, information was lodged. The victim-girl was sent for medical
examination and she was examined by PW-2. After completion of
investigation, charge sheet was placed and accused faced trial. He
denied the accusations and pleaded false implication. It was stated that
the mother of the victim had taken some money as advance for serving as
maid servant and as she did not work and refused to refund the money, a
suit was filed for recovery of the amount and, therefore, with a view to
avoid payment false accusation has been made. The trial Court placed
reliance on the evidence of the prosecution witnesses and convicted the
accused of the offence punishable under Section 376 IPC and sentenced
him to 7 years rigorous imprisonment and a fine of Rs.1,000/- with
default stipulation. Being aggrieved by the judgment, accused filed
Crl. A. No. 432-SB/86 in the Punjab and Haryana High Court. By the
impugned judgment dated 2.12.1994 the High Court allowed the appeal and
set aside the conviction and consequently the sentence.
According to High Court primarily four factors render the
prosecution version vulnerable. Firstly, there was unexplained delay in
lodging FIR. Secondly, the victim’s evidence did not inspire confidence
as there were exaggerations, and a friend to whom she claimed to have
told about the incidence was not examined. Thirdly, the medical evidence
indicated that the victim was habituated to sexual intercourse and,
therefore, her version that she was raped by the accused is not
believable. Fourthly, there was no evidence to show that the victim was
employed as a maid servant in the house of the accused.
In support of the appeal learned counsel for the State submitted
that approach of the High Court is totally erroneous. In case of sexual
assaults the Court has to take note of the realities of life and should
not enter into hyper technicalities. The delay was properly explained
and nothing was brought on record to raise any doubt about the reason
indicated by PWs.-4 and 5. Merely because respectable persons in the
locality and police were not informed the prosecution should not have
been doubted. Had they informed police earlier there was no question of
explaining the delay. The reasons for which there was delay have been
properly explained. The hypothetical medical evidence has been given
primacy to cast doubt over the victim’s version. When the defence
itself suggested that victim was engaged as maid servant, the High
Court’s conclusion that there was no material to show about her
employment as a maid servant is based on total misreading of the
evidence.
Merely because of doctor’s hypothetical and opinionative evidence
that the victim was accustomed to sexual intercourse, prosecution
version of rape was not to be discarded.
In response, learned counsel for the accused supported the
judgment submitting that reasonings indicated by the High Court are on
terra firma, more particularly when the victim’s testimony is completely
unreliable because it is at great variance with the medical evidence.
Residually, it is submitted that the judgment is one of acquittal and
after a long lapse of time the jurisdiction under Article 136 should not
be exercised.
Delay in lodging the FIR cannot be used as a ritualistic formula
for doubting the prosecution case and discarding the same solely on the
ground of delay in lodging the first information report. Delay has the
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effect of putting the Court in its guard to search if any explanation
has been offered for the delay, and if offered, whether it is
satisfactory or not. If the prosecution fails to satisfactorily explain
the delay and there is possibility of embellishment in prosecution
version on account of such delay, the same would be fatal to the
prosecution. However, if the delay is explained to the satisfaction of
the Court, same cannot by itself be a ground for disbelieving and
discarding the entire prosecution version, as done by the High Court in
the present case.
The evidence of PWs-4 and 5 read with that of the victim clearly
explained as to why the first information report was lodged after 17-18
days. The evidence of the aforesaid three witnesses clearly show that
PW-5 was seriously ill and the family members did not want to create
tension in his mind when he was not physically well and waited for his
recovery. In spite of the lengthy cross-examination this aspect has not
been shaken by the defence. The view of the High Court that PW-4 should
have told some respectable person or the father earlier to say least is
a view which has no foundation and overlooks the very reason to shun or
openly publicise it to avoid the ignominy involved in it. In a tradition
bound and conservative society, more particularly in a rural area, the
shame of sexual assault on a girl of about 14 years cannot be lost sight
of. This down to earth reality has been lost sight of by the High
Court. The trial Court had rightly emphasized this aspect, but
unfortunately, the High Court took a contrary view irrationally.
Further, the victim’s evidence has been discarded by holding that
it is at variance with the medical evidence. The High Court has not
indicated as to in what way it is at variance with the medical evidence.
Mere statement that according to doctor, victim’s vagina admitted two
fingers and she could on earlier occasions have had sexual intercourse
five, ten or fifteen times rules out rape by accused once as alleged in
no way casts doubt on victim’s evidence.
Learned counsel for the respondent-accused pointed out that rape
as claimed by the victim was discounted by the evidence of PW-2, who did
not find visible injury when she medically examined the victim. In our
opinion the same is of no consequence. The doctor examined the victim
after about 3 weeks. That being so, the effect of the act on the
physical form was practically obliterated. That is not denied by the
doctor. Merely because the friend of the victim was not examined that
also cannot be a suspicious circumstance to throw suspicion on the
victim’s evidence.
Another factor which seems to have weighed with the High Court is
the evidence of doctor PW-4 that there were signs of previous sexual
intercourse on the victim. That cannot, by stretch of imagination, as
noted above, be a ground to acquit an alleged rapist. Even assuming that
the victim was previously accustomed sexual intercourse, that is not a
determinative question. On the contrary, the question which was
required to be adjudicated was did the accused commit rape on the victim
on the occasion complained of. Even if it is hypothetically accepted
that the victim had lost her virginity earlier, it did not and cannot in
law give license to any person to rape her. It is the accused who was
on trial and not the victim. Even if the victim in a given case has been
promiscuous in her sexual behaviour earlier, she has a right to refuse
to submit herself to sexual intercourse to anyone and everyone because
she is not a vulnerable object or prey for being sexually assaulted by
anyone and everyone. Finally, if we may say as a last straw, is the
fallacy in High Court’s reasoning about lack of evidence relating to the
employment of the victim as a maid servant. The High Court completely
overlooked the fact that the suggestions given to witnesses, more
particularly PWs-4, 5 and 7 that the accused or his wife had threatened
to put an end to the victim’s service as a maid servant because of her
immoral character, or refusal to refund the amount taken as advance for
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her employment as a maid servant.
It is well settled that a prosecutrix complaining of having been a
victim of the offence of rape is not an accomplice after the crime.
There is no rule of law that her testimony cannot be acted without
corroboration in material particulars. She stands at a higher pedestal
than an injured witness. In the latter case, there is injury on the
physical form, while in the former it is both physical as well as
psychological and emotional. However, if the court of facts finds it
difficult to accept the version of the prosecutrix on its face value, it
may search for evidence, direct or circumstantial, which would lend
assurance to her testimony. Assurance, short of corroboration as
understood in the context of an accomplice would do.
As was noted by this Court in State of Rajasthan v. Noore Khan
(2000 (3) Supreme 70)
"Absence of injuries on the person of the
prosecutrix has weighed with the High Court for
inferring consent on the part of the prosecutrix. We
are not at all convinced. We have already noticed
that the delay in medical examination of the
prosecutrix was occasioned by the factum of the
lodging of the FIR having been delayed for the
reasons which we have already discussed. The
prosecutrix was in her teens. The perpetrator of the
crime was an able-bodied youth bustling with energy
and determined to fulfil his lust armed with a knife
in his hand and having succeeded in forcefully
removing the victim to a secluded place where there
was none around to help the prosecutrix in her
defence. The injuries which the prosecutrix suffered
or might have suffered in defending herself and
offering resistance to the accused were abrasions or
bruises which would heal up in the ordinary course of
nature within 2 to 3 days of the incident. The
absence of visible marks of injuries on the person of
the prosecutrix on the date of her medical
examination would not necessarily mean that she had
not suffered any injuries or that she had offered no
resistance at the time of commission of the crime.
Absence of injuries on the person of the prosecutrix
is not necessarily an evidence of falsity of the
allegation or an evidence of consent on the part of
the prosecutrix. It will all depend on the facts and
circumstances of each case."
The High Court was not justified in reversing the conviction of
the respondent and recording the order of acquittal. An unmerited
acquittal does no good to the society. If the prosecution has succeeded
in making out a convincing case for recording a finding as to the
accused being guilty, the court should not lean in favour of acquittal
by giving weight to irrelevant or insignificant circumstances or by
resorting to technicalities or by assuming doubts and giving benefit
thereof where none reasonably exists. A doubt, as understood in criminal
jurisprudence, has to be a reasonable doubt and not an excuse for a
finding in favour of acquittal. An unmerited acquittal encourages wolves
in the society being on the prowl for easy prey, more so when the
victims of crime are helpless females or minor children. The courts have
to display a greater sense of responsibility and to be more sensitive
while dealing with charges of sexual assault on women, particularly of
tender age and children.
Looked from any angle the High Court’s judgment does not stand
scrutiny and deserves to be set aside which we direct. The conviction as
recorded by the trial Court and the sentence imposed by it are restored.
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The accused shall surrender forthwith to serve remainder of sentence, if
any. The appeal is allowed to the extent indicated.