Rape
Anantalf
(Querist) 14 April 2011
This query is : Resolved
Whether without consent having sex with other person amounts to rape or only with the non-consenting woman.
Its features, materials, ingredients and other things which are either consequential or deeply associated with the same.
Thanks Gulshan Sir in Advance for the vast knowledge in the earlier subjects, which I posted.
Gulshan Tanwar
(Expert) 14 April 2011
Section 375—Clause thirdly—Rape—Consent—Distinction with passive submission—Absence of any protest by prosecutrix—Effect of.
No marks of injury were found on the person of the girl after the incident and their absence goes a long way to indicate that the alleged intercourse was a peaceful affair, and that the story of a stiff resistance having been put up by the girl is all false.
It would be preposterous to suggest that although she was in the company of her brother (and also perhaps of Ashok and her aunt Nushi) and had practically left the police station, she would be so over-awed by the fact of the appellants being persons in authority or the circumstance that she was just emerging from a police station that she would make no attempt at all to resist. On the other hand, her natural impulse would be to shake off the hand that caught her and cry out for help even before she noticed who her molester was. Her failure to appeal to her companions who were no other than her brother, her aunt and her lover, and her conduct in meekly following Ganpat appellant and allowing him to have his way with her to the extent of satisfying his lust in full, makes us fell that the consent in question was not a consent which could be brushed aside as "passive submission".
The fear which clause Thirdly of Section 375 speaks of is negatived by the circumstance that the girl is said to have been taken away by Ganpat right from amongst her near and dear ones at a point of time when they were all leaving the police station together and were crossing the entrance gate to emerge out of it. The circumstantial evidence available, therefore, is not only capable of being construed in a way different from that adopted by the High Court but actually derogates in no uncertain measure from the inference drawn by it.
Tukaram and another v. The State of Maharashtra, 1978 CrLJ 1864 : 1979 AIR (SC) 185 : 1978 CrLR (SC) 479 : 1978 CAR 413 : 1979 SCC (Cr) 381
Section 375—Rape—Age of prosecutrix below 18 years—Conduct of prosecutrix showing consent—Accused entitled to acquittal.
Dr. Maya Shankar Thakur (P.W. 2), had emphatically stated that the age of prosecutrix was below 18 years on the date of occurrence. Both the Courts below found that the age of prosecutrix was below 18 years. After going through the evidence of Dr. Maya Thakur (P.W. 5) (or P.W. 2) and other material on record we are of the opinion that this finding needs no interference.
The prosecutrix had sufficient opportunity not only to run away from the house at Ramgrah but she could have also taken the help of neighbours from the said village. The medical evidence of Dr. Maya Shankar Thakur-P.W. 2 also indicates that there were no injuries on the person of the prosecutrix including her private part. Her entire conduct clearly shows that she was a consenting party to the sexual intercourse and if this be so, the conviction of the appellant under Section 376, I.P.C. cannot be sustained. There is one more additional factor which we must mention that it is not the case of the prosecutrix that she was put in physical restraint in the house at Ramgarh, with the result her movements were restricted. This circumstance also goes to negative the case of forcible intercourse with the prosecutrix by the appellant.
Kuldeep K. Mahato v. State of Bihar, 1998 CrLJ 4033 : 1998 AIR (SC) 2694 : 1998 SCC (Cr) 1460 : 1998 CAR 424 : 1998 (3) BLJR 1906
Section 375—Rape—Attempt to rape—Accused undressing the child girl and himself but failing to penetrate due to premature discharge—Distinction with outraging the modesty—Conviction for attempting to rape, restored.
The circumstances show that the accused intended to commit rape on the girl. In the commission of that crime, he laid the girl on the seat in the Maruti Car and then laid himself over her. He pulled down her nicker and also opened the zip of his pant and took out his male organ. He pressed his male organ on the private part of the girl. But since he discharged, he could not penetrate and was unable to complete the offence of rape. However, it is clear that he did attempt to commit rape.
State of Maharashtra v. Rajendra Jawanmal Gandhi, 1997 CrLJ 4657 : 1997 AIR (SC) 3986 : 1997 (3) Crimes 285 : 1997 (8) SCC 386 : 1997 (2) BLJR 1644
Section 375—Rape—Circumstantial evidence—Medical opinion—No conclusive opinion about recent sign of sexual intercourse—Presence of blood in the male clipping which was explained by the accused does not connect him with the offence—Accused entitled to benefit of doubt.
The Doctor, P.W. 8 who examined the accused has stated that he found only two pin-head abrasions on the genital of the accused and on examination he opined that he could not find any recent sign of sexual intercourse and he also added that there was no such sign of having intercourse within one hour of his examination. However to a Court question, P.W. 8 stated that as a result of forcible sexual intercourse those abrasions can be possible. We are unable to see as to how this evidence, in any manner, is helpful to the prosecution. When P.W. 8 stated that he could not find any sign of sexual intercourse at least within one hour of his examination then it is only a matter of conjectures as to when the accused had any intercourse. The accused is a man aged 57 years and it is not as if he was not used to sexual intercourse. In any event the prosecution has not established that the accused had an intercourse on the day of the occurrence. Then the presence of blood in the nail clippings and on the underpant does not also incriminate and do not connect the accused in any manner with the alleged offences. The accused also had given an explanation namely that his gums were bleeding and in wiping out the same he got these blood stains. Even otherwise having given our earnest consideration, we are not able to say that this last circumstance coupled with the circumstance of last seen in the company of the accused amount to legal proof of the guilt particularly when the crucial circumstance namely that the accused showed the dead body is held to be not established. When such a main link goes, the chain gets snapped and the other circumstances cannot in any manner establish the guilt of the accused beyond all reasonable doubts. It is at this juncture the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes unconsciously it may happen to be a short step between moral certainty and the legal proof. At times it can be a case of `may be true'. But there is a long mental distance between `may be true' and `must be true' and the same divides conjectures from sure conclusions. The least that can be said in this case is that at least there is a reasonable doubt about the guilt of the accused and the benefit of the same should go to him.
Jaharlal Das v. State of Orissa, 1991 CrLJ 1809 : 1991 AIR (SC) 1388 : 1991 SCC (Cr) 527 : 1991 CAR 217 : 1991 CrLR (SC) 467 : 1991(2) Crimes 268
Section 375—Rape—Conduct of Police—Withholding the report of chemical examiner while treating the case as cancelled—Report of chemical examiner supporting the prosecutrix—No importance can be given to the conduct of Police.
The police officers including the Superintendent of Police, did not even consider it their duty to produce before the Court the report of examination by the Chemical Examiner of the vaginal swabs of the prosecutrix as to the presence of semen and spermatozoa. There is no explanation why such a very important and vital evidence has been withheld from the Court. In the circumstances, no importance whatsoever should be given to the fact that the police was not satisfied about the genuineness of the prosecution case.
Balwant Singh and others v. State of Punjab, 1987 CrLJ 971 : 1987 AIR (SC) 1080 : 1987 CrLR (SC) 187 : 1987 CAR 114 : 1987 SCC (Cr) 249 : 1987(1) Crimes 910 : 1987 BLJR 491
Section 375—Rape—Corroboration—Absence of marks of physical violence —In the circumstances held not to have vitiated the prosecution case.
The absence of marks of physical violence on the prosecutrix is not surprising. According to her the respondent had slapped her and threatened her with dire consequences when she tried to resist him on both occasions. Since she was examined almost 24 hours after the event it would be too much to expect slap marks on her person. It is, however, true that according to PW 12 Dr. More there were no marks of injury on the body of the respondent when he was examined on the 22nd itself at about 8.45 p.m. While it is true that the version of the prosecutrix is that she had tried to resist him, it must be realised that the respondent being a strong man was able to overpower her and take her by force. Besides, he was a man in authority in police uniform. The prosecutrix was alone and helpless.
It may be that the evidence as to resistance may have been overstated, a tendency which is generally noticed in such cases arising out a fear of being misunderstood by the society. That is not so say that she was in any way a consenting party. She was the victim of brute force and the lust of the respondent.
State of Maharashtra v. Chandraprakash Kewalchand Jain, 1990 CrLJ 889 : 1990 AIR (SC) 658 : 1990 SCC (Cr) 210 : 1990 CAR 63 : 1990 CrLR (SC) 328 : 1990(1) Crimes 724
Section 375—Rape—Corroboration—Absence of spermatozoa—Effect of.
The semen found on one of her garments and on the bed sheet attached from the room was of group A which is the group of the respondent, vide Ex. 70. Of course the other articles, viz. the mattress and the underwear of the respondent bore no stains. On the contrary the find of semen lends corroboration, if corroboration is at all needed to the version of the prosecutrix. The possibility of the semen stains being of Mohamad Shafi is ruled out as his group was found to be `B' and not `A'. In the circumstances the absence of semen or spermatozoa in the vaginal smear and slides, vide report Ex. 71, cannot cast doubts on the credit worthiness of the prosecutrix. The evidence of PW 3 Dr. Vijaya Lele shows that she had taken the vaginal smear and the slides on 23rd August, 1981 at about 1.30 p.m. i.e., almost after 24 hours. The witness says that spermatozoa can be found if the woman is examined within 12 hours after intercourse, thereafter they may be found between 48 and 72 hours but in dead form. Shamimbanu may have washed herself by then. Therefore absence of spermatozoa cannot discredit her evidence.
State of Maharashtra v. Chandraprakash Kewalchand Jain, 1990 CrLJ 889 : 1990 AIR (SC) 658 : 1990 SCC (Cr) 210 : 1990 CAR 63 : 1990 CrLR (SC) 328 : 1990(1) Crimes 724
Section 375—Rape—Corroboration—Existence of semen stains on the under garment (Langot) does not necessarily connect the accused with the offence.
We find that Rahim Beg is a young man of 22. The Langot in question was dirty at the time it was taken into possession. It cannot be said as to how old was the semen stain on the Langot. The semen stain on the Langot of a young man can exist because of a variety of reasons and would not necessarily connect him with the offence of rape.
Rahim Beg v. The State of U.P., 1972 CrLJ 1260 : 1973 AIR (SC) 343 : 1972 CAR 248 : 1972 SCC (Cr) 827
Section 375—Rape—Corroboration—Medical evidence—Charge of rape of young virgin girl of 10-12 years—Absence of any injury marks on the organ of accused would point towards his innocence.
According to Dr. Katiyar, Medical Officer of District Jail Rae Bareli, if a girl of 10 or 12 years who is virgin and whose hymen is intact is subjected to rape by a fully developed man, there are likely to be injuries on the male organ of the man. No injury was, however, detected by the doctor on the male organ of any of the two accused. The absence of such injuries on the male organs of the accused would thus point to their innocence.
Rahim Beg v. The State of U.P., 1972 CrLJ 1260 : 1973 AIR (SC) 343 : 1972 CAR 248 : 1972 SCC (Cr) 827
Section 375—Rape—Delay in lodging FIR—Accused a relative of prosecutrix —No reason of false implication—Delay does not vitiate the prosecution case.
The accused was a distant relative whom the prosecutrix had met for the first time about 5 or 6 years before at the wedding of her sister-in-law. Thereafter she had not many occasions to meet him. Her relations with the accused were not strained. The relations of her husband with the accused were also not strained. In the circumstances there was no motive or reason for the prosecutrix or her husband to falsely involve the accused in the commission of a crime which would not put her chastity at stake. Her husband had come to celebrate Diwali with his wife and family members and quarrel with anyone, more so a relative, would be farthest from his thought. Even the complaint filed by the accused on the 23rd was a fall out of the incident at which he was beaten. Unless the evidence discloses that she and her husband had strong reasons to falsely implicate the accused, ordinarily the Court should have no hesitation in accepting her version regarding the incident.
State of Rajasthan v. Shri Narayan, 1992 CrLJ 3655 : 1992 AIR (SC) 2004 : 1992 SCC (Cr) 781 : 1992 CAR 260 : 1992(2) Crimes 1154 : 1992 (2) CCR 224
Section 375—Rape—Evidence of prosecutrix—Corroboration—Appeal against conviction—Point raised by accused that medical evidence is inconsistent with the version of prosecutrix—High Court in its explicit terms observed that medical evidence had been influenced and deserved to be rejected—Words of prosecutrix believed by both the Courts—No ground to interfere in the appeal.
The only ground urged in support of this appeal is that the medical evidence is, inconsistent with the version of the prosecutrix who claims to have been raped by the appellant. That there is such a discrepancy is beyond doubt. However, the High Court has in explicit terms observed that the medical evidence had been influenced and deserved to be rejected. It appears that the Doctor examining the prosecutrix was changing her stand, an initially she had stated that there were signs of sexual intercourse, but later changed her opinion to say that there were no such signs. The prosecutrix was an unmarried girl coming from the weaker section of the society who pinned the appellant to be the one who had committed rape on her. Her words have believed by both the Court below. We see no reason to differ from the analysis of her statement and as to her credibility, as recorded by the High Court. There is, therefore, no ground to interfere in this appeal.
Dagdulal v. State of Madhya Pradesh, 1995 CrLJ 3639
Section 375—Rape—FIR—Delay—Complaint lodged less than promptly, does not raise the inference that the complaint was false.
Merely because the complaint was lodged less than promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false.
Karnel Singh v. State of M.P., 1995 CrLJ 4173 : 1995 AIR (SC) 2472 : 1995 SCC (Cr) 977 : 1995(3) Crimes 527 : 1995(4) CCR 10
Section 375—Rape—Identification of accused—Lighting—Presence of light proved by evidence—Rape victim aged about 13 years could not have forgotten the accused when she had much more than fleeting glance of the accused—Identity of accused rightly established.
State of Madhya Pradesh v. Sunder Lal, 1992 Cr.L.J. 2519 : 1992 AIR (SC) 1413 : 1992 SCC (Cr) 393 : 1992 CrLR (SC) 407 : 1992(1) Crime 1240
Section 375—Rape—Injury on person of prosecutrix—Married woman allegedly raped by relative—Possibility of intercourse with husband does not explain the injuries which corroborate the allegation of rape.
The husband of the prosecutrix was serving in the Army and had come to the village to celebrate Diwali with his wife and family members. When her husband had gone out and she was preparing to serve fodder to the cattle, the accused came from behind, put one hand on her mouth and the other on her back and tried to push her into the cattle-shed. She resisted him whereupon he threw her on the ground, lifted her Ghagra, untied his dhoti and forcibly raped her. The prosecutrix being a strong woman resisted the accused and in the process sustained abrasions on her lumber region as well as elbow joints. It is not possible to believe that a woman would suffer such abrasions while having sexual intercourse with her husband. The presence of abrasions on her elbow joints and the lumber region supply evidence of struggle during the act.
It is not possible to believe that when a married woman has sex with her husband in the privacy of their bed-room she would suffer abrasions on her body and the vaginal walls. The abrasions on the vaginal wall and the consequential inflammation of the labia majora as well as minora and the clitoris provide corroborative evidence that someone had forcible sex with her. The learned single Judge was, therefore, wrong in brushing aside this important objective evidence tendered by the prosecution.
State of Rajasthan v. Shri Narayan, 1992 CrLJ 3655 : 1992 AIR (SC) 2004 : 1992 SCC (Cr) 781 : 1992 CAR 260 : 1992(2) Crimes 1154 : 1992 (2) CCR 224
Section 375—Rape—Investigation—Defect—Designedly defective investigation to help the accused—It would not be right in acquitting an accused solely on account of the defect.
In cases of defective investigation the Court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective.
Karnel Singh v. State of M.P., 1995 CrLJ 4173 : 1995 AIR (SC) 2472 : 1995 SCC (Cr) 977 : 1995(3) Crimes 527 : 1995(4) CCR 10
Section 375—Rape—Medical opinion—Appreciation of—Injuries on person of prosecutrix—It corroborates the evidence.
The medical report, in our opinion, supports the case of the prosecutrix that she was raped. According to the medical report, the hymen was torn and the edges of the tear were red and painful and bled on touch. There were abrasions on the right breast. She complained of pain in both legs and back of neck. The High Court has rightly observed that these are the indications of first sexual intercourse of a female. According to the High Court, there was swelling on the internal walls of the vagina because of the forcible and violent intercourse by many persons. The prosecutrix (P.W. 2) was subject to a lengthy cross-examination, but she did not break down under the pressure of such cross-examination. It is the evidence of her father, Dalip Singh (P.W. 3), that she was found in an unconscious state and she remained unconscious till one hour before dawn. This evidence also supports the evidence of the prosecutrix. It may be that Dalip Singh is the father of the prosecutrix, but there is no ground to discard his evidence.
It cannot be said that whenever resistance is offered there must be some injury on the body of victim. The appellants were four in number and the prosecutrix being a girl of 19/20 years of age, she was not expected to offer such resistance as would cause injuries to her body. It is also not correct to say that there was no injury at all. It has been earlier noticed that as per the medical report she had red abrasions on her right breast.
Balwant Singh and others v. State of Punjab, 1987 CrLJ 971: 1987 AIR (SC) 1080 : 1987 CrLR (SC) 187 : 1987 CAR 114 : 1987 SCC (Cr) 249 : 1987(1) Crimes 910 : 1987 BLJR 491
Section 375—Rape—Medical opinion—Appreciation of—It cannot be expected from the medical report that the number of persons who committed rape could be specified.
Balwant Singh and others v. State of Punjab, 1987 CrLJ 971: 1987 AIR (SC) 1080 : 1987 CrLR (SC) 187 : 1987 CAR 114 : 1987 SCC (Cr) 249 : 1987(1) Crimes 910 : 1987 BLJR 491
Section 375—Rape—Minor—Absence of marks of violence and even consent is immaterial—Mere penetration is sufficient.
Gurcharan Singh v. State of Haryana, 1973 CrLJ 179 : 1972 AIR (SC) 2661 : 1973 (2) SCR 197 : 1972(2) SCC 749 : 1973 Cr LR (SC) 280
Section 375—Rape—Pendency of litigation between the father of the prosecutrix and the accused persons—The suggestion that prosecutrix could falsely implicate the accused persons is absurd.
Balwant Singh and others v. State of Punjab, 1987 CrLJ 971: 1987 AIR (SC) 1080 : 1987 CrLR (SC) 187 : 1987 CAR 114 : 1987 SCC (Cr) 249 : 1987(1) Crimes 910 : 1987 BLJR 491
Section 375—Rape—Penetration—Proof of—Medical opinion that vagina not admitting more than one finger—In the face of injuries it cannot be inferred that no penetration took place.
In the absence of hymen with the edges torn and profuse bleeding from the vagina staining the Salwar. Merely because the Doctor found that the Vagina admitted one finger with difficulty, it cannot be inferred that there was no penetration as the muscles must have contracted by then. The appellant, a robust man must have penetrated the vagina for otherwise there would not have been so much of bleeding. Surprisingly no question was put to Dr. Kapila to solicit his opinion in this behalf.
Prithi Chand v. State of Himachal Pradesh, 1989 CrLJ 841 : 1989 AIR (SC) 702 : 1989 SCC (Cr) 206 : 1989 All WC 392
Section 375—Rape—Police officer misusing the authority and allegedly raping the prosecutrix—Approach of the Court be same as in case of any other accused.
When such a crime is committed by a person in authority, e.g. a police officer, should the Court's approach be the same as in any other case involving a private citizen? By our criminal laws wide powers are conferred on police officers investigating cognizable offences. The infrastructure of our criminal investigation system recognises and indeed protects the right of a woman to decent and dignified treatment at the hands of the investigating agency.
If a police officer misuses his authority and power while dealing with a young helpless girl aged about 19 or 20 years, her conduct and behaviour must be judged in the backdrop of the situation in which she was placed. The purpose and setting, the person and his position, the misuse or abuse of office and the despair of the victim which led to her surrender are all relevant factors which must be present in the mind of the Court while evaluating the conduct-evidence of the prosecutrix. A person in authority, such as a police officer, carries with him the awe of officer which is bound to condition the behaviour of his victim. The Court must not be oblivious of the emotional turmoil and the psychological injury that a prosecutrix suffers on being molestated or raped. She suffers a tremendous sense of shame and the fear of being shunned by society and her near relatives, including her husband. Instead of treating her with compassion and understanding as one who is an injured victim of a crime, she is, more often than not, treated as a sinner and shunned. It must, therefore, be realised that a woman who is subjected to sex-violence would always be slow and hesitant about disclosing her plight. The Court must, therefore, evaluate her evidence in the above background.
State of Maharashtra v. Chandraprakash Kewalchand Jain, 1990 CrLJ 889 : 1990 AIR (SC) 658 : 1990 SCC (Cr) 210 : 1990 CAR 63 : 1990 CrLR (SC) 328 : 1990(1) Crimes 724
Section 375—Rape—Proof of—Corroboration—Necessity of—Victim of rape is not an accomplice even though rule of prudence require corroboration of prosecution evidence—Although the accused may be convicted on the uncorroborated testimony of prosecutrix if the Court comes to conclusion that such corroboration was not necessary.
Sidheswar Ganguly v. State of West Bengal, 1958 AIR (SC) 143 : 1958 CrLJ 273 : 1958 SCR 749 : 1958 All WR (SC) 391 : 1958 Pat LR (SC) 1
Section 375—Rape—Proof of—Medical opinion—Necessity of—Prosecutrix belonging to backward community living in remote area could not be expected to have rushed to the doctor immediately—Absence of injuries of person of woman could be presumed on account of her age and being mother of four children—Absence of medical opinion does not affect prosecution case.
The complainant being a woman who had given birth to four children it was likely that there would not have been any injuries on her private parts. The complainant and her husband being persons belonging to a backward community like the Santhal tribe living in a remote area could not be expected to know that they should rush to a doctor. In fact the complainant has deposed that she had taken bath and washed her clothes after the incident. The absence of any injuries on the person of the complainant may not be 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. In this situation the non-production of a medical report would not be of much consequence if the other evidence on record is believable. It is, however, nobody's case that there was such a report and it had been withheld.
Sheikh Zakir v. State of Bihar, 1983 CrLJ 1285 : 1983 AIR (SC) 911 : 1983 CAR 334 : 1983 CrLR (SC) 413 : 1983 SCC (Cr) 761 : 1983 BLJR 450
Section 375—Rape—Proof of—Presence of smegma—Effect of—Attempt to rape proved—Victim committed suicide—Non availability of victim is no ground to acquit the accused.
In our considered opinion, the circumstances attending the case, the evidence of PWs 3, 4 and 6 coupled with the medical evidence has established that there was an attempt of rape if not the offence of rape having been committed by the respondent. We arrive to the conclusion that the offence is only an attempt of rape on the medical evidence which does not clingingly establish the proof of rape as required by law. The presence of smegma was inconsistent with a recent intercourse and that it would take about 24 hours to accumulate if the smegma is rubbed during intercourse. Admittedly, the respondent was arrested on the very same day and taken for medical examination along with the victim girl within seven hours and that it was during that examination, the Medical Officer found smegma on the dorsal side of the posterior glands. Merely because a victim is dead and consequently could not be examined can never be a ground to acquit an accused if there is evidence otherwise available proving the criminal act of the accused concerned.
State of Karnataka v. Mahabaleshwar Gourya Naik, 1992 CrLJ 3786 : 1992 AIR (SC) 2043 : Cr LR (SC) 586 : 1992 (2) : 1992(2) Crimes 654 : 1992 (2) CCR 128
Section 375—Rape—Proof of—Testimony of prosecutrix—Corroboration —Difference in social setting of Indian and Western World—Possibility of false accusation in Western society has no application in Indian set up.
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.
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 transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identifies 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 vegeance 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 embarrassing position, on account of personal or political vendetta.
(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 statement, 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 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 ostracized 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. (5) 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 overpowered 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 husbands' 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.
We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the `probabilities-factor' does not render it unworthy of credence, as a general gule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the `probabilities-factor' is found to be out of tune.
Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 CrLJ 1096 : 1983 AIR (SC) 753 : 1983 SCC (Cr) 728 : 1983 CAR 343 : 1983(2) Guj LR 1073 : 1983 (2) Crimes 232
Section 375—Rape—Sentence—Young age—Prosecutrix raped by two young persons sharing one room in the hotel—Considering the very young age of accused persons and other circumstances sentence reduced to three years.
Admittedly, the accused and the prosecutrix shared one room and it is nobody's case that besides the prosecutrix and accused persons, any other person stayed in the room. The Police Constable P.W. 2 and the roomboy of the hotel P.W. 4 heard screaming of the prosecutrix for help and when the door was opened one of the accused was found putting on pant. Hence we agree with the High Court that offence of rape against both the accused was established by the prosecution. Therefore, we do not find any reason to interfere with the conviction of both the accused under Section 376, IPC. So far as the sentence of seven years' rigorous imprisonment on both the accused persons is concerned, it appears to us that it may not be unlikely that the accused persons at the beginning had a genuine desire to help the prosecutrix in reaching her brother's place quickly. But later on when she agreed to share the same room at night in the hotel the two young men became victim of sexual lust and against the consent and protest of the prosecutrix, committed rape on her. Considering the very young age of the accused persons and considering the circumstances under which there was every likelihood that they could not overcome the fit of passion and lost all sense of decency and morality and ultimately committed the offence of rape and also considering the fact that the incident had taken place long back and during the course of the proceedings up to this Court, both of them had suffered disrepute and mental agony, we think that the ends of justice would be met if both the accused persons are awarded a lesser sentence. We, therefore, direct that both the accused persons should suffer rigorous imprisonment for three years.
Raju v. State of Karnataka, 1994 CrLJ 248 : 1994 AIR (SC) 222 : 1994 SCC (Cr) 538 : 1994(1) Crime 156 : 1994 (1) Rec CrR 177
Section 375—Rape—Testimony of prosecutrix cannot be treated as testimony of accomplice but should be treated at par with injured witness—Insistence on corroboration in such every case is not proper.
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 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 or 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. 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.
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.
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 as woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity.
State of Maharashtra v. Chandraprakash Kewalchand Jain, 1990 CrLJ 889 : 1990 AIR (SC) 658 : 1990 SCC (Cr) 210 : 1990 CAR 63 : 1990 CrLR (SC) 328 : 1990(1) Crimes 724
Gulshan Tanwar
(Expert) 14 April 2011
Dont compare the Indian Penal Law with the American Law, as here in India rape is committed only with the females whereas in America Rape means non-consenting persons which may be either males or females and indulge in this act, amounting to Rape.
Naresh Kudal
(Expert) 14 April 2011
Gulshan jee do you copy and paste the whole digest in reply?
RAJU O.F.,
(Expert) 16 April 2011
Such long and exhaustive answers could be given, only by Mr.Gulshan Sir, who has the patience and time to do so. Persons asking such academic queries, better refer to texts or guides, on such subjects. The space for reply by experts, could be better utilised for persons in real problems, requiring legal remedy. I feel, we cannot educate the general public, all the law, through this forum.
Gulshan Tanwar
(Expert) 02 May 2011
Instead of what I may write, please go through and attract knowledge and enhance wisdom :)
These days I am writing on Rape laws and soon to make it a question that rapist should not go scot free even in absence of lack of evidences....Throw some light on the same topic----
