Allahabad High Court
Guddoo vs State Of U.P. on 22 August, 2017
Author: Sheo Kumar Singh-I
Bench: Sheo Kumar Singh-I
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved A.F.R. Case :- CRIMINAL APPEAL No. - 477 of 1996 Appellant :- Guddoo Respondent :- State Of U.P. Counsel for Appellant :- P.L. Misra,Syed M M Jafari Counsel for Respondent :- Govt. Advocate And Case :- CRIMINAL APPEAL No. - 500 of 1996 Appellant :- Prem Chand & Others Respondent :- State Of U.P. Counsel for Appellant :- Ajai Shukla,S C Shukla Counsel for Respondent :- Govt. Advocate Hon'ble Sheo Kumar Singh-I,J.
1. Instant Criminal Appeals have been filed against judgment and order dated 2.11.1996 passed by Additional Session Judge, Court No.2, Bahraich in Session Trial No. 179 of 1994 whereby accused appellants Guddoo, Prem Chand, Magadhu and Parmanand were found guilty under sections 363, 366, 342, 376(1) of IPC and all the appellants were sentenced for two years rigorous imprisonment with fine of Rs. 1000/- under Section 363 IPC, three years rigorous imprisonment with fine of Rs. 1000/- under Section 366 IPC, six months rigorous imprisonment under Section 342 and ten years rigorous imprisonment with fine of Rs. 4000/- under Section 376 IPC. In case of default of payment of fine, the appellants have been further sentenced to undergo rigorous imprisonment for six months. All the sentences were directed to run concurrently.
2. The prosecution story reveals that on 15.11.1993 when at about 2.00 P.M., the complainant was going to his house from market and reached near Bakshipura, Kailash Nagar, Indira Shikhsha Niketan then heard some noise of female. He stopped himself there and inquired from the women gathered there. The ladies present there intimated him that Prem Chand with his friends came with a girl and he is inside the room. Two persons were waiting and standing outside the room keeping watch on the situation. The complainant made a noise, on that, the persons standing outside the room fled away and after chasing them one of them was caught hold. One of the person who was inside the room also fled away from the room. He was also chased and was caught hold. In the mean time Shahid Ali, Abdul Rahman and Maya Ram reached there and when they entered into the room, they saw that the appellant Prem Chand was standing there in a naked position. The victim, a minor girl was crying on the floor. When inquired from the victim, she narrated that the accused appellant Prem Chand allured her by giving Rs.20/- and came here with his friends and committed rape one by one. She had also communicated that Prem Chand, who was caught hold on the spot, allured her and committed bad thing inside the room one by one and two persons were keeping watch standing outside the room. In the mean time the persons gathered there, chased the appellant Magadhu also who was caught hold. The matter was reduced into writing and communicated to the police station with giving custody of the persons, present appellants to the police where a first information report was lodged under these sections and the victim was medically examined by the doctor. She was given to the custody of her guardian and after investigation, a charge sheet was submitted before the court. Learned Chief Judicial Magistrate took the cognizance and committed the case to the court of session where all the accused were summoned and charges under sections 363, 366, 376(2)(6) and 342 IPC were framed against them for which they pleaded not guilty and claimed for trial.
3. In order to prove the prosecution case, PW-1 complainant Vijay Kumar, PW-2 victim , PW-3 Maya Ram , PW-4 SHO Sushil Kumar Singh, PW-5 Dr. Sushma Mishra, PW-6 Constable Mohd. Jalis and PW-7 Constable Ram Awtar were examined. In the statement recorded under Section 313 Cr.P.C. the accused-appellants denied from the charges and stated that the complainant and the witnesses were inimical to them. The appellant Prem Chand had stated that he was called from a nearby place. He with his friends were falsely implicated in this case. No defence witness has been examined by the appellants. Learned trial court after examining and assessment of the evidence found all the accused appellants guilty and sentenced them, as above.
4. During pendency of the appeal, the appellant accused Magadhu died, thus the appeal against Magadhu stands abated. Learned counsel for the appellants had submitted that the offence as contained in Section 363 IPC is not made out because there was no kidnapping from lawful guardianship. The story reveals that the girl/victim who was minor was induced by offering an amount of Rs. 20/- and was taken away to one of the room which was in possession of appellant Prem Chand and all the remaining accused-appellants who formed a group to commit sexual offence and with premeditation and pre-consultation followed Prem Chand and committed rape.
5. Simple offer of Rs.20/- and taking away the victim do not mean that she was consenting party or she was not taken from lawful guardianship. Even if the victim was in the market, she can be deemed to be always in the custody of lawful guardianship and any one who is inducing to take away with certain allurement can be said to have taken away the victim from lawful guardianship. The explanation to Section 361 IPC runs to say that the words lawful guardian in this Section include any person lawfully entrusted with the care or custody of said minor or other person. On the basis of above, the fact that the victim was in the market does not mean that she was not under lawful guardianship.
6. It has further been contended by learned counsel for the State that in considering the provisions of Section 361 IPC and other cognate Sections of Indian Penal Code it was necessary to bear in mind that these provisions were intended more for the protection of the minors and persons of unsound mind themselves that for the rights of the guardians of such persons. Sections 361, 363, 366 and 368 IPC are quoted below:-
"361. Kidnapping from lawful guardianship.--Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Explanation.--The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
363. Punishment for kidnapping.--Whoever kidnaps any person from 1[India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 1[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid].
368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person.--Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement."
7. Learned counsel for appellants has further argued that the victim/prosecutrix was major at the time of occurrence. In the first information report, the age of the victim was not mentioned but the perusal of record reveals that at the time of recording the statement of the witnesses, PW-2 was shown as 10 to 12 years and it was assessment of the court before the parties that certainly the incident was of year 1993 and the statement of the victim was recorded in January 1995 thus certainly she was below 10 years and was minor. For the assessment of her age, on the basis of fusion of bones and physical development, she was medically examined where the medical officer Dr. Sushma Mishra has narrated that on 16.11.1993 she was posted as Medical Officer, Mahila Hospital, Baharaich and examined the victim and found her to be minor. Since also stated on oath that there were tear found in her vaginal part fourchette which was due to penetration while committing the sexual intercourse. She has further narrated that the symptom can be found in case there was a penetration whether it was partial or more than partial. She has further stated that the tear was found on the vaginal part was fresh because heeling was not started.
8. Now the question is as to whether in absence of any educational certificate the report submitted by the Medical Officer on the basis of fusion of bones or physical development of the victim and teeth as well can be taken into account.
9. Determination of age has become very relevant to fix the criminal liability upon a person for the reason that under Section 82 Indian Penal Code (hereinafter called IPC), a child below the age of 7 years is not supposed to commit an offence. If a child between 7 and 12 years commits an offence, his immaturity and understanding of things is to be determined by the court under Section 83 IPC. Section 361 IPC makes the kidnapping of a boy below 16 years and of a girl below 18 years from lawful guardianship an offence. Under Section 363-A IPC- kidnapping of a minor for maiming/begging is an offence. Under Section 366-A IPC- procuration of a minor girl below 18 years is an offence. Under Section 366-B- importing a girl below 21 years of age from a foreign land for the purpose of prostitution is an offence. Under Section 369 IPC, kidnapping/ abducting a child under the age of 10 years, with intent to steal from his person, is an offence. Under Sections 372, 373 selling and purchasing a minor below 18 years of age for the purpose of prostitution is an offence. Under Section 375 IPC, rape even with the consent of a girl below 16 years or sexual intercourse with his wife below 15 years is an offence.
10. Attainment of majority under the provisions of Indian Majority Act, 1875, competence for bail a witness, as the law may provide minimum age for being a witness; eligibility for employment etc. one of paramount importance. There may be cases where employee may approach the court for correction of date of birth and in that case also, determination of age may become a relevant factor in this regard.
11. Age of a person can be determined by examination of following parts of the body:-
(i) Teeth (Dental age):- First the child has twenty milk teeth (temporary/deciduous teeth), which are replaced by permanent teeth after the age of five/six years, which takes two years to have complete set except the third molar, which erupts at the age of seventeen and above.
(ii) Height:- Generally, according to geographical situation, a person attains the height according to his age, but it does not provide for any general rule and may vary from person to person, depending upon the family conditions, including heredity/mal-nutrition etc.
(iii) Weight:- A person may have a particular weight on attaining a particular age, or he gains weight according to age upto a certain limit. But no general formulae can be treated as weight depends upon race, climate, dietic, hereditary factors and other conditions.
(iv) General appearance (Minor signs):- Some idea may be taken regarding the age of a person from his appearance in general. For determining the age etc., the second sex character may also be relevant. The growth of hairs appears first on the pubes and then in the axillae (arm-pits). The first sign of beginning puberty is found with the appearance of hair along labia. In the case of girls, it commences with the appearance of soft and pale coloured browny hair on the pubes at the age of about thirteen years and a few sparse dark hairs appear at about fourteen years. The growth becomes thicker in the course of a year and two when hair commence to grow in the axillae. The development of breasts in girls commences from 13 to 14 years, but it is liable to be affected by loose habits and social environment.
(v) Ossification of bones:- This is a relevant factor for determination of the age. Ossification of bones occur upto the age of 18 years and it is examined seeing the fusion of the bones at the wrist, elbow and pelvis. But this factor becomes irrelevant on attaining the age of 18 years because by that time, fusion may completely take place.
12. In a child bones are not fully ossified (consolidated). Ossification centres for different bones appear at different ages and fuse or unite with the main bone at different ages. With the help of x-rays, it is possible to determine the extent of ossification and the union of epiphytic bones. This gives a fairly good estimate within a margin of 2 years. Appearance of ossification alter and fusion is at a different stage. For the purpose of determining the age, study of ossification of bones of wrist, elbow and pelvis is very important. In case of wrist joint, there are about eight small and 2 long bones and completion of the said bones takes place at different age and all of them do not attain the fusion simultaneously. Similarly, for pelvis bone ossification centres, appear around 14 years of age and fuse between 17-20 years. The 3/4 gap appears in pelvis bone which are filled up after a time but generally they are completed by the age of 18 to 20 years. Different bones take different time to gain fusion. Similarly, in the case of elbow, there appears to be a gap in the bones and its completion takes place.
13. In light of above facts, I have considered the medical report submitted by the Medical Officer on the basis of fusion of bones and development of physique and the statement of the doctor who had been examined to verify the X-ray report and age, I am of the view that the version of the expert/doctor who had opined the age of the victim about 12 years of age cannot be denied only on the basis of argument of learned counsel for the appellants and thus this Court is of the view that the victim was minor at the time of incident.
14. Now the question raised before the court by the learned counsel for appellant is that offence as defined in Section 376 IPC has not been committed by the appellants. Section 376 IPC reads as under:-
"376. Punishment for rape. - (1) Whoever, except in the cases provided for by sub-section (2) commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both :
Provided 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 seven years.
(2) Whoever, -
(a) being a police officer commits rape -
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine :
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Explanation 1. - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub- section.
Explanation 2. - "woman's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation 3. - "hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.]
15. On this point victim was examined as PW-2 who had stated before the court that on the given time and place the appellant Guddu and other three persons induced her and took away near Dargah and kept her in a room where the appellant Guddu committed rape and after that all other appellants also committed rape one by one. She has also narrated that the appellants committed rape forcefully without her consent and in the mean time one person came outside the room and entered into the room then one of the accused was also present there and another fled away. The person who caught hold the accused-appellant with the victim came to the police station from where she was sent to hospital for medical examination and after that she was taken to court for recording the statement. She had further stated that the appellant-accused induced her by payment of Rs. 20/- and also specifically narrated the fact of penetration by the appellants accused.
16. While considering the trial of rape cases, the Supreme Court in State of A.P. v. Gangula Satya Murthy (AIR 1997 SC 1588) held that the Courts are expected to show great responsibility. It was held thus:
"27. Before parting with the case we would like to point out that the Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of late crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasise that the Courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in the totality of the background of the entire case and not in isolation.
One of us (Dr. Anand J.) has observed in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 : (1996 AIR SCW 998, Para 20) thus:
"The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity.""
17. In State of Punjab v. Gurmit Singh and others (AIR 1996 SC 1393), the Supreme Court held thus:
"20. Of late, crime against women in general and rape in particular is on the increase, It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Court, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. ..... "
18. In Rameshwar S/o.Kalyan Singh v. The State of Rajasthan (AIR 1952 SC 54), the accused was charged with the offence of raping a girl below eight years of age. The Supreme Court held that the High Court was right in holding that the guilt of the accused was proved by the evidence of the victim which was legally corroborated by the girl's statement to her mother. The Supreme Court held thus:
"Now a woman who has been raped is not an accomplice. If she was ravished she is the victim of an outrage. If she consented there is no offence unless she is a married woman, in which case questions of adultery may arise. .. That, in my opinion, is exactly the law in India so far as accomplices are concerned and it Is certainly not any higher in the case of sexual offences. The only clarification necessary for purposes of this country is where this class of offence is sometimes tried by a judge without the aid of jury. In these cases, it is necessary that the judge should give some indication in his judgment that he has had this rule of caution in mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considers it safe to convict without corroboration in that particular case.
The nature and extent of the corroboration is required when it is not considered safe to dispense with it. Here, again, the rules are lucidly expounded by Lord Reading in Baskerville's case,(1916) 2, K. B. 658 at p. 664 to 669. It would be impossible, indeed it would be dangerous, to formulate the kind of evidence which should, or would, be regarded as corroboration. Its nature and extent must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence charged. But to this extent the rules are clear.
First, it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case,apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction. As Lord Reading says:
"Indeed, if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential to the case, it would be merely confirmatory of other and independent testimony."
All that is required is that there must be "some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it."
Secondly, the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime.This does not mean the corroboration as to identity must extend to all the circumstances necessary to identify the accused with the offence. ......"
19. The decision in Rameshwar S/o.Kalyan Singh v. The State of Rajasthan (AIR 1952 SC 54), was quoted with approval by a Constitution Bench of the Supreme Court in State of Bihar v.Basawan Singh (AIR 1958 SC 500) and also in Madho Ram and another v. State of U.P. (AIR 1973 SC 469), Sidheswar Ganguly v.State of West Bengal (AIR 1958 SC 143), Gurcharan Singh v.State of Haryana (AIR 1972 SC 2661), Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (AIR 1983 SC 753) and Wahid Khan v.State of M.P. (AIR 2010 SC 1).
20. In Bhajan Singh alias Harbhajan Singh and others v.State of Haryana (AIR 2011 SC 2552), it was held: The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.
"Convincing evidence is required to discredit an injured witness". Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. ......"
21. In Gurcharan Singh v. State of Haryana (AIR 1972 SC 2661), the Supreme Court held:
"....The basic question which, therefore, arises is as to how far the testimony of the prosecutrix before us can form the basis of the appellant's conviction. It is well settled that the prosecutrix cannot be considered as an accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence. As a rule of prudence, however; court normally looks for some corroboration of her testimony so as to satisfy its conscience that she is telling the truth and that the person accused of rape on her has not been falsely implicated. The matter is not res integra and Court has, on more occasions than one, considered and enunciated the legal position. ......"
22. In Madho Ram and another v. State of U.P. (AIR 1997 SC 469), the Supreme Court held thus:
"The principles that have to be borne in mind by courts when considering evidence of the prosecutrix, have been clearly laid down by several decisions of this Court. It has been held that the prosecutrix cannot be considered to be an accomplice. As a rule of prudence, however, it has been emphasised that Courts should normally look for some corroboration of her testimony in order to satisfy itself that the prosecutrix is telling the truth and that a person, accused of abduction or rape, has not been falsely implicated. The view that, as a matter of law, no conviction without corroboration was possible has not been accepted. The only rule of law is the rule of prudence namely the advisability of corroboration should be present in the mind of the Judge or the Jury, as the case may be. There is no rule of practice that there must in every case, be corroboration before a conviction can be allowed to stand. As to what type of corroboration may be required when the court is of the opinion that it is not safe to dispense with that requirement, it has also been laid down that the type of corroboration required must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence with which a person is charged.(See Rameshwar v. The State of Rajasthan, 1952 SCr 377 = (AIR 1952 SC 54); Sidheswar Ganguly v. The State of West Bengal, 1958 SCR 749 = (AIR 1958 SC 143).) These principles have also been reiterated in the recent judgment of this Court in Gurcharan Singh v. State of Haryana, AIR 1972 SC"
23. In Krishan Lal v. State of Haryana (AIR 1980 SC 1252), it was held thus:
"It is true that old English cases, followed in British Indian courts, had led to a tendency on the part of judge-made law that the advisability of corroboration should be present to the mind of the Judge "except where the circumstances make it safe to dispenses with it". Case-law, even in those days, had clearly spelt out the following propositions :
"The tender years of the child, coupled with other circumstances appearing in the case, such, for example as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the Judge or the Jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed, to stand."
"It would be impossible, indeed it would be dangerous to formulate the kind of evidence which should, or would, be regarded as corroboration. Its nature and extent must necessarily vary with circumstances of each case and also according to the particular circumstances of the offence charged."
Observations on probative force of circumstances are not universal laws of nature but guidelines and good counsel.
We must bear in mind human psychology and behavioural probability when assessing the testimonial potency of the victim's version. What girl would foist a rape charge on a stranger unless a remarkable set of facts or clearest motives were made out ? The inherent bashfulness, the innocent naivete_and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilities the hypothesis of false implication. ...."
24. In Rafiq v. State of U.P.(AIR 1981 SC 559), it was held:
"Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances. Indeed, from place to place, from age to age, from varying life-styles and behavioural. complexes, inferences from a given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but realistic diversity lest rigidity in the shape of rule of law in this area be introduced through a new type of precedential tyranny. The same observation holds good regarding the presence or absence of injuries on the person of the aggressor or the aggressed. ...."
25. In State of Maharashtra v. Chandraprakash Kewalchand Jain (AIR 1990 SC 658), it was held thus:
"A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under S. 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more.
What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to S. 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage:
"It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary."
Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation.
It would have proper, having regard to the increase in the number of sex-violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman 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 story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in some of the Western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eve-teasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms. The standard of proof to be expected by the Court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity."
26. In State of Punjab v. Gurmit Singh and others (AIR 1996 SC 1393), the Supreme Court held:
"The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion ? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable, Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a Victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity least that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable."
27. In Aman Kumar and another v. State of Haryana (AIR 2004 SC 1497), Hon'ble the Supreme Court held:
"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 suffice."
28. In State of Himachal Pradesh v. Asha Ram (AIR 2006 SC 381), Hon'ble the Supreme Court held:
" We record our displeasure and dismay, the way the High Court dealt casually with the offence so grave, as in the case at hand, overlooking the alarming and shocking increase of sexual assault on the minor girls. The High Court was swayed by sheer insensitivity totally oblivious of growing menace of sex violence against the minors much less by the father. The High Court also totally overlooked the prosecution evidence, which inspired confidence and merited acceptance. It is now well settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case."
29. In S.Ramakrishna v. State (AIR 2009 SC 885), it was held:
"A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Indian Evidence Act, 1872 (in short "the Evidence Act") nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding, the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."
30. In State of M.P. v. Dayal Sahu (AIR 2005 SC 3570), the Supreme Court held that non examination of doctor and non production of doctor's report would not be fatal to the prosecution case, if the statement of the prosecutrix and other prosecution witnesses inspire confidence.
31. The Hon'ble Supreme Court in Vijay alias Chinee v State of Madhya Pradesh (2010) 8 SCC 191 held, after referring to various decisions, that "the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix."
32. In Ranjit Hazarika v. State of Assam ((1998) 8 SCC 635), it was held:
"The prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement has remained unchallenged in the cross-examination. Neither the non-rupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutrix particularly when we find that in the cross examination of the prosecutrix, nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake. ....."
33. Learned counsel for appellants had further submitted that when the victim followed the appellants it expresses the consent of the victim while arguing on behalf of the State, learned counsel for State Zeba Islam Siddiqui had argued that the fact of inducing by payment of Rs. 20/- and taking the victim into one of the room and committing the ofence of sexual intercourse one by one by all the appellants. During the course of the offence, two appellants were inside and two appellants were standing outside the room to wait and watch to have care and attention from passers by and when victim was crying loudly, it was heard by passers by and women who were residing in neighbour who gathered there and informed the complainant PW-1 who caught hold the accused with assistance of other persons gathered there which shows that there was no consent at all.
34. The Consent/ Presumption as to absence of consent is defined as under in evidence act :-
"114A. Presumption as to absence of consent in certain prosecutions for rape.-- In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of the Indian Penal Code, (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent."
35. Section 90 of the Indian Penal Code is also relevant while considering the question of consent. Section 90 reads as follows:
"90. Consent known to be given under fear or misconception.-- A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.-- if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.-- unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age."
36. In Rao Harnarain Singh Sheoji Singh v. State (1958 Crl.L.J.563), the Punjab and Haryana High Court held thus:
"A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be 'consent' as understood in law. Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.
Submission of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act, of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure."
37. In Vijayan Pillai v. State of Kerala (1989(2) KLJ 234), the Kerala High Court held:
''In order to prove that there was consent on the part of the prosecutrix it must be established that she freely submitted herself while in free and unconstrained possession of her physical and mental power to act in a manner she wanted. Consent is an act of reason accompanied by deliberation, a mere act of helpless resignation in the face of inevitable compulsion, non-resistance and passive giving in cannot be deemed to be 'consent'. Consent means active will in the mind of a person to permit the doing of the act of and knowledge of what is to be done, or of the nature of the act that is being done is essential to a consent to an act. Consent supposes a physical power to act, a moral power of acting and a serious and determined and free use of these powers. Every consent to act involves submission, but is by no means follows that a mere submission involves consent.... "
38. In Anthony, In re's case, the Madras High Court concurred with the view taken in Rao Harnarain Singh's case and held:
"A woman is said to consent only when she agrees to submit herself while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammeled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former."
39. In Uday v. State of Karnataka ((2003) 4 SCC 46), the Supreme Court quoted with approval the decisions of the Punjab and Haryana High Court in Rao Harnarain Singh's case, of the Kerala High Court in Vijayan Pillai's case and of the Madras High Court in Anthony, In re's case.
40. In Deelip Singh @ Dilip Kumar v State of Bihar ((2005) 1 SCC 88), the Supreme Court referred to these decisions and also the decisions in Uday v. State of Karnataka ((2003) 4 SCC 46) and State of Himachal Pradesh v. Mangoram ((2000) 7 SCC 224).
41. In State of Himachal Pradesh v. Mangoram (2000 Cr.L.J.4027 = (2000) 7 SCC 224),the Supreme Court held that the submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between the resistance and assent.
42. In State of U.P. v. Chhoteylal (AIR 2011 SC 697), the Supreme Court held that a wider meaning is to be given to the word 'consent'. After referring to Stroud's Judicial Dictionary and various decisions, the Supreme Court held thus:
"This Court in a long line of cases has given wider meaning to the word 'consent' in the context of sexual offences as explained in various judicial dictionaries. In Jowitt's Dictionary of English Law (Second Edition), Volume 1 (1977) at page 422 the word 'consent' has been explained as an act of reason accompanied with deliberation, the mind weighing, as in a balance, the good or evil on either side. It is further stated that consent supposes three things- a physical power, a mental power, and a free and serious use of them and if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise, or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind."
43. Stroud's Judicial Dictionary (Fourth Edition), Volume 1 (1971) at page 555 explains the expression 'consent', inter alia, as under :-
"Every 'consent' to an act, involves a submission; but it by no means follows that a mere submission involves consent," e.g. the mere submission of a girl to a carnal assault, she being in the power of a strong man, is not consent (per Coleridge J., R. v. Day, 9 C. and P.724)."
44. Stroud's Judicial Dictionary also refers to decision in the case of Holman v. The Queen ([1970] W.A.R. 2) wherein it was stated: 'But there does not necessarily have to be complete willingness to constitute consent. A woman's consent to intercourse may be hesitant, reluctant or grudging, but if she consciously permits it there is "consent".'
45. In Words and Phrases, Permanent Edition, (Volume 8A) at pages 205-206, few American decisions wherein the word 'consent' has been considered and explained with regard to the law of rape have been referred. These are as follows :-
"In order to constitute "rape", there need not be resistance to the utmost, and a woman who is assaulted need not resist to the point of risking being beaten into insensibility, and, if she resists to the point where further resistance would be useless or until her resistance is overcome by force or violence, submission thereafter is not "consent". People v. Mcllvain (55 Cal. App. 2d 322)."
"Consent," within Penal Law, '2010, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent. People v. Pelvino, 214 N.Y.S. 577"
" "Consenting" as used in the law of rape means consent of the will and submission under the influence of fear or terror cannot amount to real consent. Hallmark v. State, 22 Okl. Cr. 422"
"Will is defined as wish, desire, pleasure, inclination, choice, the faculty of conscious, and especially of deliberate, action. It is purely and solely a mental process to be ascertained, in a prosecution for rape, by what the prosecuting witness may have said or done. It being a mental process there is no other manner by which her will can be ascertained, and it must be left to the jury to determine that will by her acts and statements, as disclosed by the evidence. It is but natural, therefore, that in charging the jury upon the subject of rape, or assault with intent to commit rape, the courts should have almost universally, and, in many cases, exclusively, discussed "consent" and resistance. There can be no better evidence of willingness is a condition or state of mind no better evidence of unwillingness than resistance. No lexicographer recognizes "consent" as a synonym of willingness, and it is apparent that they are not synonymous. It is equally apparent, on the other hand, that the true relation between the words is that willingness is a condition or state of mind and "consent" one of the evidences of that condition. Likewise resistance is not a synonym of unwillingness, though it is an evidence thereof. In all cases, therefore, where the prosecuting witness has an intelligent will, the court should charge upon the elements of "consent" and resistance as being proper elements from which the jury may infer either a favourable or an opposing will. It must, however, be recognized in all cases that the real test is whether the assault was committed against the will of the prosecuting witness. State v. Schwab, 143 N.E. 29"
46. In Chhoteylal's case, the Supreme Court referred to Mangoram's case ((2000) 7 SCC 224 = AIR 2000 SC 2798), Uday's case ((2003) 4 SCC 46 = AIR 2003 SC 1639), Gurmit Singh's case (AIR 1996 SC 1393) and Vijay @ Chinee v. State of M.P. ((2010) 8 SCC 191).
49. In State of Himachal Pradesh v. Shree Kant ShekarI (AIR 2004 SC 4404), the Supreme Court held:
"Even otherwise the High Court seems to have fallen in grave error in coming to the conclusion that the victim has not shown that the act was not done with her consent. It was not for the victim to show that there was no consent. Factually also the conclusion is erroneous right from the beginning that is from the stage when the FIR was lodged and in her evidence there was a categorical statement that the rape was forcibly done not withstanding protest by the victim. The High Court was therefore wrong in putting burden on the victim to show that there was no consent. The question of consent is really a matter of defence by the accused and it was for him to place materials to show that there was consent...."
48. In State of Rajasthan v N.K. (AIR 2000 SC 1812), a three Judge Bench of the Supreme Court held that absence of injuries on the person of the prosecutrix had weighed with the High Court for inferring consent on the part of the prosecutrix and it was unjustifiable. The Supreme Court also held thus:
"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. ...."
49. In Satpal Singh v. State of Haryana (2010Cri.L.J.4283), the Supreme Court considered the question as to when a woman can be said to have given consent and it was held thus:
"It can be held that a woman has given consent only if she has freely agreed to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to, it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. An act of helplessness on the face of inevitable compulsions is not consent in law. More so, it is not necessary that there should be actual use of force. A threat or use of force is sufficient.
The concept of 'Consent' in the context of Section 375, IPC has to be understood differently, keeping in mind the provision of Section 90, IPC, according to which a consent given under fear/coercion or misconception/mistake of fact is not a consent at all.
Scheme of Section 90, IPC is couched in negative terminology. Consent is different from submission. [Vide Uday v. State of Karnataka, AIR 2003 SC 1639 : (2003 AIR SCW 1035); Deelip Singh @ Dilip Kumar v. State of Bihar, AIR 2005 SC 203; and Yedla Srinivasa Rao Vs. State of A.P. (2006) 11 SCC 615.]"
50. Therefore, it is only reasonable to think that at any cost, they wanted to keep the victim girl under wrongful confinement to achieve their goal. They succeeded in doing so. It is too much to expect that a girl like the victim girl could raise alarm and escape, in the peculiar facts and circumstances of the case.
51. In State of U.P. v. Chhoteylal (AIR 2011 SC 697), the victim girl was kidnapped by two adult males, one of them wielded fire-arm and threatened her and she was taken away from her village. Answering the contention that the victim girl could have raised alarm at the bus stand and other places where she was taken, the Supreme Court held that in the circumstances of the case it was sensible not to raise any alarm. Any alarm at unknown place might have endangered her life. The absence of alarm by her at the public place cannot lead to an inference that she had willingly accompanied the accused. The circumstances made her a submissive victim and that does not mean that she was inclined and willing to have sexual intercourse with the accused. Specially when abrasion on the right wrist and injuries were found on the part of the body of the victim, though mark of injury is not essential for the offence of rape.
52. Learned counsel for the appellants has submitted that according to the statement of the doctor the victim was reported to be of habitual of sexual intercourse.
53. The facts as narrated above in no way help the accused/appellants as per dictum of Hon'ble the Apex Court as laid down in the case of State of U.P. vs. Pappu alias Yunus and another reported in MANU/SC/1021/2004. Even assuming that the victim was previously accustomed to sexual intercourse, though there is no evidence on record, 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 licence 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.
54. Similarly the theory as adopted by learned counsel for the appellants ''two finger test' does not support in light of case of Lillu @ Rajesh and another vs. State of Haryana reported in MANU/SC/0369/2013, where it was held in case victim minor, question as to whether she had been habitual to sexual activities or not, is immaterial to determine issue of consent. Hon'ble the Apex Court held as follows:-
"So far as the two finger test is concerned, it requires a serious consideration by the court as there is a demand for sound standard of conducting and interpreting forensic examination of rape survivors."
55. In Narayanamma (Kum) v. State of Karnataka and Ors. MANU/SC/0829/1994: (1994) 5 SCC 728, the Court held that "fact of admission of two fingers and the hymen rupture does not give a clear indication that prosecutrix is habitual to sexual intercourse. The doctor has to opine as to whether the hymen stood ruptured much earlier or carried an old tear. The factum of admission of two fingers could not be held adverse to the prosecutrix, as it would also depend upon the size of the fingers inserted. The doctor must give his clear opinion as to whether it was painful and bleeding on touch, for the reason that such conditions obviously relate to the hymen."
56. In State of U.P. v. Pappu @ Yunus and Anr. MANU/SC/1021/2004: AIR 2005 SC 1248, the Court held that a prosecutrix complaining of having been a victim of an offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars, for the reason, that she stands on a much higher pedestal than an injured witness.
57. The Court while dealing with the issue in State of Uttar Pradesh v. Munshi AIR 2009 SC 370, has expressed its anguish and held that even if the victim of rape was previously accustomed to sexual intercourse, it cannot be the determinative question. On the contrary, the question still remains as to whether the accused committed rape on the victim on the occasion complained of. Even if the victim had lost her virginity earlier, it can certainly not give a licence to any person to rape her. It is the accused who was on trial and not the victim. So as to whether the victim is of a promiscuous character is totally an irrelevant issue altogether in a case of rape. Even a woman of easy virtue 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. A prosecutrix stands on a higher pedestal than an injured witness for the reason that an injured witness gets the injury on the physical form, while the prosecutrix suffers psychologically and emotionally.
58. In Narender Kumar v. State (NCT of Delhi) MANU/SC/0481/2012: AIR 2012 SC 2281, the Court dealt with a case where the allegation was that the victim of rape herself was an unchaste woman, and a woman of easy virtue. The court held that so far as the prosecutrix is concerned, mere statement of prosecutrix herself is enough to record a conviction, when her evidence is read in its totality and found to be worth reliance. The incident in itself causes a great distress and humiliation to the victim though, undoubtedly a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The Court further held as under:
"Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a women of "loose moral character" can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. 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. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated. (Vide: State of Maharashtra and Anr. v. Madhukar Narayan Mardikar MANU/SC/0032/1991: AIR 1991 SC 207; State of Punjab v. Gurmit Singh and Ors. MANU/SC/0366/1996: AIR 1996 SC 1393; and State of U.P. v. Pappu @ Yunus and Anr. MANU/SC/1021/2004: AIR 2005 SC 1248)."
59. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all.
60. In State of Punjab v. Ramdev Singh MANU/SC/1063/2003: AIR 2004 SC 1290, the Court dealt with the issue and held that rape is violative of victim's fundamental right under Article 21 of the Constitution. So, the courts should deal with such cases sternly and severely. Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her self-esteem and dignity as well. 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 leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity. Rape is not only an offence against the person of a woman, rather a crime against the entire society. It is a crime against basic human rights and also violates the most cherished fundamental right guaranteed under Article 21 of the Constitution.
61. In view of International Covenant on Economic, Social, and Cultural Rights 1966; United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, rape survivors are entitled to legal recourse that does not retraumatize them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender-based violence. The State is under an obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with his privacy.
62. In Mohd. Imran Khan Vs. State (Govt. of NCT of Delhi), (2012) 1 SCC (Cri) 240 a 15 years old victim was kidnapped on knife point and raped in a hotel and again in house by two accused persons High Court reduced sentence from seven years to five years. The Supreme Court analyzed that Law of Rape and pointed out that it is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Indian Evidence Act, 1872 nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. The court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. (Vide: State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658; State of U.P. v. Pappu @Yunus & Anr. AIR 2005 SC 1248; and Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191).
Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.
63. Again in State of Punjab Vs. Gurmit Singh & amp; Ors.6 (1996) 2 SCC 384, the Court made the following weighty observations;
"The court over-looked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alram. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how car that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances".
64. The important thing that the court has to bear in mind is that what is lost by a rape victim. The victim loses value as a person. Ours is a conservative society and, therefore, a woman and more so a young unmarried woman will not put her reputation in peril by alleging falsely about forcible sexual assault. In examining the evidence of the prosecutrix the courts must be alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. Society's belief and value systems need to be kept uppermost in mind as rape is the worst form of woman's oppression. A forcible sexual assault brings in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim and it is, therefore, most unlikely of a woman, and more so by a young woman, roping in somebody falsely in the crime of rape. The stigma that attaches to the victim of rape in Indian society ordinarily rules out the leveling of false accusations. An Indian woman traditionally will not concoct an untruthful story and bring charges of rape for the purpose of blackmail, hatred, spite or revenge. The Supreme Court has repeatedly laid down the guidelines as to how the evidence of the prosecutrix in the crime of rape should be evaluated by the court. The observations made in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat (1983) 3 SCC 217 deserve special mention where the Supreme Court observed as follows:-
"In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should 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 ? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opiniated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the Western World which has its own social mileu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the Western World. It is wholly unnecessary to import the said concept on a turn-key basis and to transplate it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian Society and its profile. The identities of the two worlds are different. The solution of problems cannot therefore be identical. It is conceivable in the Western Society that a female may level false accusation as regards sexual molestation against a male for several reasons such as:
(1) The female may be a 'gold digger' and may well have an economic motive to extract money by holding out the gun of prosecution or public exposure.
(2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted, and chased by males.
(3) She may want to wreak vengence on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account.
(4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarassing position, on account of personal or political vendatta. (5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self-importance in the context of her inferiority complex.
(6) She may do so on account of jealousy. (7) She may do so to win sympathy of others. (8) She may do so upon being repulsed.
By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because: (1) 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 had ever occurred. (2) She would be conscious of the danger of being ostracised by the Society or being looked down by the Society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (S) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent"
65. Rape is a heinous crime and once it is established against a person charged of the offence, justice must be done to the victim of crime by awarding suitable punishment to the crime doer. The criminal justice system in not working in our country as it should. The police reforms have not taken place despite directions of this Court in the case of Prakash Singh & amp; Ors. Union of India & amp; Ors. (2006) 8 SCC 1. The investigators hardly have professional orientation; they od not have modern tools. On many occasions impartial investigation suffers because of political interference. The criminal trials are protracted because of non-appearance of official witnesses on time and the non-availability of the facilities for recording evidence by video conferencing. The public prosecutors have their limitation; the defence lawyers do not make themselves available and the court would be routinely informed about their pre-occupation with other matters; the courts remain overburdened with the briefs listed on the day and they do not have adequate infrastructure. The adjournments thus become routine; the casualty is justice. It is imperative that the criminal cases relating to offences against the State, corruption, dowry death, domestic violence, sexual assault, financial fraud and cyber crimes are fast tracked and decided in a fixed time frame, preferably, of three years including the appeal provisions. It is high time that immediate and urgent steps are taken in amending the procedural and other laws to achieve the above objectives. We must remember that a strong and efficient criminal justice system is a guarantee to the rule of law and vibrant civil society.
66. Value of Medical Evidence: Appreciating Sociological and Psychological Aspect of Rape:
Courts used to take the position that if there was no proof of physical assault there would be no rape. The presumption that if no physical injury is evident on the victim, no sexual intercourse has taken place or rape has not been committed, ignores the fact that rape is not only an offence involving physical violence, but also psychological violence. This too when existing laws recognize mental agony and psychological violence as offences against the body. The victim of rape besides being physically ravished is psychologically wounded. It is the feeling of having been exploited and violated more that anything else which leaves lifelong scars on the mind of the victim. Perhaps this trauma has been recognized in a case where it was held that the absence of injuries on private parts of the prosecutrix would not rule out her being subjected to rape 1. Krishna Iyer. J. who is famous for his humanistic approach towards law, observed in Rafiq Vs. State of U.P. (1980) 4 SCC 262:
"when no woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her, we cannot cling to a fossil formula and insist on corroborative testimony, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. In this case, the testimony has commanded acceptance from two courts. When a woman is ravished what is inflicted is not merely physical injury. but 'the deep sense of some deathless shame". Judicial response to human rights cannot be blunted by legal bigotry.
67. In a similar spirit the Supreme Court has held in Sheikh Zakir Vs. State of Bihar, (1983) 4 SCC10:-
"The absence of any injuries on the person of the complainant may not by itself discredit the statement of the complainant. Merely because the complainant was a helpless victim who was by force prevented from offering serious physical resistance she cannot be disbelieved."
68. In Madan Gopal Kakkad Vs. Naval Dubey, (1992) 3 SCC 2014, where the question as to what constitutes sexual intercourse and rape was discussed, the Apex Court has put the matter in perspective:-
"Sexual intercourse: In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
69. It was further held:-
"To constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
70. Absence of injury to the prosecutrix advanced as a plea to disprove the allegation of rape was dismissed by the Supreme Court thus:
"The mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result of the penetration of the penis in her vagina. She was subjected to sexual intercourse in a standing posture and that itself indicates the absence of any injury on her private pans. To constitute the offence of rape, penetration, however slight, is sufficient. The prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement has remained unchallenged in the cross-examination. Neither the non-rupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutrix particularly when we find that in the cross-examination of the prosecutrix, nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake. The opinion of the doctor that no rape appeared to have been committed was based only on the absence of rupture of the hymen and injuries on the private parts of the prosecutrix. This opinion cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. Besides, the opinion of the doctor appears to be based on "no reasons".
71. In the appeal the counsel of the appellant sought to bring out that, in the absence of corroboration of statement of the prosecutrix by medical evidence, the conviction of the appellant was bad. This contention was totally rejected by the Apex Court and it was also reiterated that there is no need for corroboration. The Apex Court asserted:-
"The prosecutrix of a sex offence is a victim of a crime and there is no requirement of law which requires that her testimony cannot be accepted unless corroborated".
72. Learned counsel for appellants had submitted that the statement of PW2, victim being a minor should not be taken into account.
73. Evidence of child witness cannot be rejected out rightly. It should be evaluated carefully with greater circumspection. Court has to ascertain whether it is free from influence. It on a careful scrutiny, the testimony of a child witness is found truthful, there can be no hindrance in the way of accepting the same and recording conviction of the accused on the basis of his testimony. ( Rameshwar Vs. State of Rejasthan; AIR 1952 SC 54, Nivrutti Pandurang Kokate and Ors. Vs. State of Maharashtra (2008 (12) SCC 565), Md. Kalam Vs. State of Bihar; 2008 (62) ACC 305, State of Karnataka Vs. Shantappa Madivalappa; AIR 2009 SC 2144, Acharaparambath Pradeepan Vs. State of Kerala; 2007 (57) ACC 293 (SC), Ratan Singh Vs. State of Gujarat; (2004) 1 SCC 64, Panchhi Vs. State of U.P. ; 1998 (37) ACC 528 (SC Three Judges Bench), Prakash vs. State of M.P.; JT 1992 (4) SC 594 , State of MP vs. Ramesh 2011 CRLJ 2297 SC, State of UP vs. Krishna Master AIR 2010 SC 3071)
74. The proviso to S.5, Indian Oaths Act, 1873 prescribes that:
"Provided that where the witness is a child under twelve years of age, and the Court or person having authority to examine such witness is of opinion that though he understands the duty of speaking the truth he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of S.6 shall not apply to such witness, but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth."
75. An omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or judge really was of that opinion can, be gathered from the circumstances when there is no formal certificate [AIR 1952 SUPREME COURT 54 "Rameshwar Vs. State of Rajasthan"]
76. The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial judge who notices his manners, his apparent possession or lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial Court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. [AIR 2008 Supreme Court 1842 "Golla Yelugu Govindu Vs. State of A.P., AIR 2009 Supreme Court 2144 " State of Karnataka Vs. Shantappa Madivalapa Galapurji""]
77. Mr. Izhar Husain, learned counsel for the State, has submitted that though there are no contradictions, even if there are certain discrepancies, these are normal discrepancies which did not corrode the credibility of the prosecution case as laid down in the following cases:-
"72. In State Represented by Inspector of Police v. Raravanan and another - JT 2008 (11) SC 290, reiterating the principle, the Court held:
"18. .... it has been said time and again by this Court that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. Further, on the general tenor of the evidence given by the witness, the trial court upon appreciation of evidence forms an opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, that itself would not prompt the court to reject the evidence on minor variations and discrepancies."
73. In Mahendra Pratap Singh v. State of Uttar Pradesh- JT 2009 (3) SC 120, the Court referred to the authority in Inder Singh and another v. State (Delhi Administration) 1978 (4) SCC 161 wherein it has been held thus:
"2. Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect."
74. In Sunil Kumar Sambhudayal Gupta and others v. State of Maharashtra - JT 2010 (12) SC 287, while dealing with the issue of material contradictions, the Court held:
"30. While appreciating the evidence, the court has to take into consideration whether the contradictions/ omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan)
31. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide State of Rajasthan v. Rajendra Singh.)
32. The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt." (Vide Mahendra Pratap Singh v. State of U.P. )"
And again:
"35. The courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so." (See Syed Ibrahim v. State of A.P.22 and Arumugam v. State)"
78. In this context, I may fruitfully reproduce a passage from State of U.P. v. M.K. Anthony- (1985) 1 SCC 505:
"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. ..."
79. In Harijana Thirupala v. Public Prosecutor, High Court of A.P.-(2002) 6 SCC 470, it has been ruled that:
"11. .... In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses."
80. In Ugar Ahir v. State of Bihar-AIR 1965 SC 277, a three-Judge Bench held:
"7. The maxim falsus in uno, falsu in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."
81. In Krishna Mochi v. State of Bihar-(2002) 6 SCC 81, the Court ruled that:
"32. .... The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing the world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". I find that this Court in recent times has conscientiously taken notice of these facts from time to time".
82. In Inder Singh (supra), Krishna Iyer, J. laid down that:
"Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes."
83. In the case of State of U.P. v. Anil Singh-1988 (Supp.) SCC 686, it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.
84. The statement of PW-2, victim was recorded in question and answer form and the perusal of the statement of the victim recorded under Section 164 Cr.P.C. before the court is perfectly natural and has been corroborated by other evidence. PW-3 Maya Ram had also stated on oath that the appellant Prem Chand was caught hold on the spot inside the room in naked position and the victim was also inside the room on the floor crying with the pain who had narrated that appellant Prem Chand with other co-accused appellants who were identified by the witnesses and the victim before the court committed rape.
89. Learned counsel for the appellants had submitted that test identification parade was not done by the investigating officer. It is settled proposition of law that any defect in the investigation will not be a ground to disbelieve the statement of other eye witnesses.
90. Under Section 9 of Evidence Act, Test Identification Parade is not a right of the accused under the provisions of the Identification of Prisoners Act, 1920. Investigating Agency is not obliged to hold TIP. Question of identification arises where accused is not known to the witness. [ Vide Mahabir Vs. State of Delhi, AIR 2008 SC 2343, Heera Vs. State of Rajasthan, AIR 2007 SC 2425, Simon Vs. State of Karnataka, (2004) 2 SCC 694, Malkhan Singh Vs.State of M.P., 2003(47) ACC 427 (SC),Visveswaran Vs. State, 2003 (46) ACC 1049 (SC)]
91. Tip does not constitute substantive evidence. Court can accept evidence of identification of the accused without insisting on corroboration.[Vide Santosh Devidas Behade vs. State of Maharashtra, 2009(4) Supreme 380, Mahabir Vs. State of Delhi, AIR 2008 SC 2343, Malkhan Singh Vs. State of M.P., 2003(47) ACC 427 (SC)]
92. First time identification of the accused by witnesses in the court: Where the accused was not known to the witnesses from before the incident, first time identification of the accused by the witnesses in the court during trial has been held by the Supreme Court as sufficient and acceptable identification of the accused. (vide Subal Ghorai Vs. State of W.B., (2013) 4 SCC 607, Mahabir Vs. State of Delhi, AIR 2008 SC 2343, Heera Vs. State of Rajasthan, AIR 2007 SC 2425, Ashfaq Vs. State Govt. of NCT of Delhi, (2004) 3 SCC 116, Simon Vs. State of Karnataka, (2004) 2 SCC 694, Dana Yadav S. State of Bihar, 2003(47) ACC 467 (SC), Munna Vs. State (NCT) of Delhi, 2003 (47) ACC 1129 (SC)]
93. PW-4 SHO Dargah Sharif Sushil Kumar Singh also examined before the court who proved charge sheet Ex.K-2 to Ex. K-3. PW-5 Constable Ram Awtar Yadav was posted as Constable Moharrir in P.S. Dargah and on the information given by the complainant Vijay Kumar he has reduced everything into writing and proved Ex. K-3 and G.D. Ex. K-4. Fard supurdagi by which the victim was given into custody of his brother. PW-6 Mohd. Jalis has proved the documents Ex. K-9 because the investigating officer Sri. V.N. Tripathi was reported to have died.
94. Learned counsel for appellants had further submitted that the trial court erred in recording the conviction because the prosecution failed to prove the case or failed to properly assess the evidence. Accused-appellants were held on the spot in a naked position by the passers by and the prosecution case has been fully narrated and proved by public witnesses, eye witnesses as well as victim who was sufferer of the circumstances.
95. In light of above submissions and discussions, this Court is of the view that the point of minority of the victim and the point of kidnapping from the lawful guardianship and committing rape have been fully discussed by the learned trial court and there is no infirmity, illegality or irregularity in convicting the appellants/accused.
96. Learned counsel for the appellants has further submitted that a lenient view should be taken on the point of sentence.
97. In Sevaka Perumal and another v. State of Tamil Nadu (1991) 3 SCC 471 , after referring to the decision in Mahesh v. State of M.P. (1987) 3 SCC 80 , the Court observed that "undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats. The Court further observed that if the Courts do not protect the injured, the injured would then resort to private vengeance and, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed."
98. In State of M.P. v. Saleem alias Chamaru and another (2005) 5 SCC 554 , the Court opined that the object of sentencing should be to protect society and to deter the criminal that bing the avowed object of law. It further ruled that it is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
99. In Ravji alias Ram Chandra v. State of Rajasthan (1996) 2 SCC 175 the Court while giving emphasis on relevance of imposition of adequate sentencing in the social context observed thus:-
"The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". In our view, if for such heinous crimes the most deterrent punishment for wanton and brutal murders is not given, the case of deterrent punishment will lose its relevance."
100. In State of Karnataka v/s Krishnappa AIR 2000 SC 1470 , a three- Judge Bench, while discussing about the purpose of imposition of adequate sentence, opined that protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence and the sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.
101. In Jameel v. State of Uttar Pradesh (2010) 12 SCC 532 , the Court observed as under: -
"In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime,the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.
It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."
102. In Shyam Narain v/s State (NCT of Delhi) (2013) 7 SCC 77 , it has been ruled that primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes, for it serves as a deterrent. The Court observed, true it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. It has been further opined that while carrying out this complex exercise, it is obligatory on the part of the court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.
103. In Guru Basavaraj v. State of Karnata a (2012) 8 SCC 734, the Court, discussing about the sentencing policy, had to say this: -
"There can hardly be any cavil that there has to be a proportion between the crime and the punishment. It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice which includes adequate punishment cannot be lightly ignored."
104. In Rattiram v. State of M.P. (2012) 4 SC 516 though in a different context, it has stated that: -
"the criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the viewpoint of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries.... it is the duty of the court to see that the victim's right is protected."
105. It is seemly to state here that though the question of sentence is a matter of discretion, vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life'.
106. In Ramji Dayawala & Sons (P.) Ltd. v. Invest Import AIR 1981 SC 2085: -
"when it is said that a matter is within the discretion of the court it is to be exercised according to well established judicial principles, according to reason and fair play, and not according to whim and caprice. `Discretion', said Lord Mansfield in R.v. Wilkes, ((1770) 98 ER 327), `when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular' (see Craies on Statute Law, 6 th Edn., p.273)."
107. After considering the facts and legal points as raised by learned counsel for the appellants and learned AGA for the State, this Court is of the view that the learned trial court has appreciated the evidence of the prosecution rightly and found that the accused/appellants are guilty and awarded just and reasonable punishment. No interference is required in the order impugned. Thus, the appeals deserve to be dismissed and are hereby dismissed.
108. Appellants are reported to be on bail. Their bail is cancelled. They shall be taken into custody immediately and be sent to jail to serve out of the sentence.
109. Office is directed to communicate this order to the court concerned for immediate compliance and also to send back lower court record and also send the compliance report within one month from the date of receipt of the order.
Order Date :- 22.8.2017 prabhat