(The Trial Court had acquitted the offenders for the offenses under the sections 363, 366, 368 and 376. The Supreme Court set aside the judgment and punished the offenders after investigating all the circumstances with Rigorous Imprisonment and Fine)
Bench:
- Anand A. S (J)
- Ahmad Saghir S. (J)
Issue:
Whether the prosecution’s story stands fortified by any cogent or reliable evidence or not and if there is any need for corroborating evidence to be brought in court as per the Evidence Act 1872?
Facts:
• The prosecutrix was a young girl below 16 years of age who was studying in the 10th class at the relevant time. On March 30th, 1984 after she took a test in the school the prosecutrix was going to the house of her maternal uncle.
• When she had covered a distance of about 100 karmas from the school, a car driven by a Sikh youth aged 20-25 years came from behind. The Car contained all the accused people- Gurmit Singh, Jagjit Singh Bawa and Ranjit Singh (accused) were sitting.
• The car stopped near her and Ranjit Singh came out of the car and caught hold of the prosecutrix and pushed her inside the car. Jagjit Singh allegedly put his hand on the mouth of the victim while Gurmit Singh threatened the prosecutrix with death and drove her to the tube-well owned by Ranjit Singh. The driver then left the prosecutrix and the three accused after dropping them off. Gurmit Singh compelled the prosecutrix to take liquor, misrepresenting to her that it was juice. Her refusal did not have any effect and she reluctantly consumed liquor.
• Gurmit Singh then stripped her and she was made to lie on a cot in the Kotha while his companions guarded the Kotha. He then raped her after threatening to kill her again. Thereafter the other two accused individually raped her and subjected her to sexual intercourse once again during the night. Each one of the accused committed sexual intercourse with the prosecutrix forcibly and against her will. She was subjected intercourse once again during the night.
• The next morning the same car arrived at the tube-well and the three accused made her sit in that car and left her near the Boys High School, Pakhowal, near the place from where she was abducted.
• The prosecutrix had to take her examination in the subject of Hygiene. After her examination she went to her village and then narrated the entire story to her mother, Smt. Gurdev Kaur, PW.7. Her father Trilok Singh, PW 6 wasn’t present in the house at that time. Late in the evening, the mother narrated the incident to her husband.
• Her father then straightaway contacted the Sarpanch, Joginder Singh of the village and a panchayat was later convened where it tried to effect a compromise.
• No relief was given, the prosecutrix along with her father proceeded to file a complaint with the police station where she was taken to a primary health center for medical examination. A female doctor medically examined her, Dr. Sukhwinder Kaur PW 1, who found that the hymen of the prosecutrix was lacerated with fine radiate tears, swollen and painful. Her pubic hair was also found mated. According to PW1, intercourse with the prosecutrix could be “one of the reasons for laceration which I found in her hymen”. She also said that, the possibility could not be ruled out that the prosecutrix “was not habitual to intercourse earlier.”
• She also gave the police a sample containing the salwar of the prosecutrix along with 5 slides of vaginal smears and one sealed vial containing pubic hair of the prosecutrix as evidence under The Evidence Act.
• When the accused were found, Dr. B L Bansal did their medical examination. The doctor opined that all the accused were fit to perform sexual intercourse.
• The sealed parcels containing the slides of vaginal smears, the pubic hair and the salwar of the prosecutrix were sent to the chemical examiner. The report of the chemical examiner revealed that semen was found on the slides of vaginal smear though no spermatozoa was found either on the pubic hair or the salwar of the prosecutrix.
• On completion of the investigation respondents were challenged and were charged for offenses under Sections 363, 366, 368 and 376 of IPC.
• The Trial Court carelessly acquitted the accused. The Judgment was then challenged in the Supreme Court.
Respondents Contentions:
• The respondents denied the allegation against them.
• Jagijit Singh stated that it was a false case foisted on him on account of his enmity with the Sarpanch of village Pakhowal. He stated that he had married a Canadian girl in the village Gurdwara, which was not liked to by the sarpanch and therefore the sarpanch was hostile to him and had got him falsely implicated in this case.
• Gurmit Singh -respondent took the stand that he had been falsely implicated in the case on account of enemity between his father and Tirlok Singh, PW6, father of the prosecutrix. He stated that there was long standing litigation going on between his father and the father of the prosecutrix and their family members were not even on speaking terms with each other.
• Ranjit Singh respondent also alleged false implication but gave no reasons for having been falsely implicated.
Judgment:
The Court opined that according to the evidence act, corroborative evidence is not essential component in every case of rape and is only used as a guidance paradigm and not as substantive law in judicial proceedings. The prosecutrix of a sexual offence cannot be put at par with an accomplice and should remain as a victim of the crime. The Evidence Act does not state that a victim’s evidence cannot be accepted unless it is corroborated in material particulars and according to the same act it can be stated that the prosecutrix is a competent witness under Section 118 and hence her evidence must receive the same credibility. The Court mentioned that, extra care and caution must be provided to evaluate her evidence.
The Bench stated that the court needs to be conscious of the fact that if it chooses to not rely on the testimony of the prosecutrix it can look for evidence that may lend testimony’s assurance. The nature of this evidence, however, must depend on the necessary facts and prerequisites. At the same time if the prosecutrix does not have a strong motive to falsely involve the person charged then the court must not hesitate in accepting her evidence.
There cannot be a dead uniformity in the rule of law and it is to be made flexible based on different circumstances. Courts cannot cling to a fossil formula, even if the court thinks that the victim is credible and trustworthy.
• If the court is confident at the prosecutrix’s evidence it must not ask for anything else and if the person is guilty of having committed the offense of rape, the victim will be given compensation .
• The court needs to be very sensitive in cases involving sexual assault and the testimony of the victim must always be appreciated in the background.
• The high courts will be advised to invariably hold the trial of rape cases in the camera, rather than in the open court as envisaged by Section 327(2) Cr. P.C. and would be required to ask the presiding officers to do so as well.
• It is also advised that these kinds of cases will be tried by lady judges as much as possible so that the victim is granted the ease and can make her statement effectively. This will also enable courts to opine and effectively discharge their duties.
The court also mentioned that it heavily reprimanded the adherence to rigid technicalities in these sensitive cases and stated that they should henceforth avoid disclosing the name of the victim to save her from embarrassment. Lastly, the court sentenced the respondents for the offence under Section 376 IPC to undergo five years of Rigorous Imprisonment each and to pay a fine of Rs.5000/- each and in default of the payment of the fine to 1 year’s Rigorous Imprisonment. For the offence under Section 363 IPC the respondents were sentenced to three years of Rigorous Imprisonment, but no separate sentence was imposed for the offence under Section 366/368 of IPC. The substantive sentences were to be run concurrently.
Relevant Paragraphs:
From the statement of the prosecutrix, it clearly emerges that she was abducted and forcibly subjected to sexual intercourse by the three respondents without her consent and against her will. In this fact situation the question of age of the prosecutrix would pale into insignificance. However, in the present case, there is evidence on the record to establish that on the date of the occurrence, the prosecutrix was below 16 years of age. The prosecutrix herself and her parents deposed at the trial that her age was less than 16 years on the date of the occurrence.The trial court ignored the explanation given by the parents observing that "it could not be swallowed being a belated one". The trial court was in error.even according to the lady doctor PW1, the clinical examination of the prosecutrix established that she was less than 16 years of age on the date of the occurrence. The birth certificate Ex. PJ was not only supported by the oral testimony of Trilok Singh PW6 and Gurdev Kaur PW7 but also by that of the school leaving certificate mark `B'. With a view to do complete justice, the trial court could have summoned the concerned official from the school to prove various entries in the school leaving certificate. From the material on the record, we have come to an unhesitating conclusion that the prosecutrix was less than 16 years of age when she was made a victim of the lust of the respondents in the manner deposed to by her against her will and without her consent. The trial court did not return any positive finding as to whether or not the prosecutrix was below 16 years of age on 30th March 1984 and instead went on to observe that `even assuming for the sake of argument that the prosecutrix was less than 16 years of age on 30th March 1984, it could still not help the case as she was not a reliable witness and was attempting to shield her own conduct by indulging in falsehood to implicate the respondents'. The entire approach of the trial court in appreciating the prosecution evidence and drawing inferences therefrom was erroneous.
The trial court not only erroneously disbelieved the prosecutrix, but quite uncharitably and unjustifiably even characterized her as a girl "of loose morals" or "such type of a girl".What has shocked our judicial conscience all the more is the inference drawn by the court, based on no evidence and not even on a denied suggestion .
We must express our strong disapproval of the approach of the trial court and its casting a stigma on the character of the prosecutrix. The observations lack sobriety expected of a Judge. Such like stigmas have the potential of not only discouraging an even otherwise reductant victim of sexual assault to bring forth complaint for trial of criminals, thereby making the society to suffer by letting the criminal escape even a trial. The courts are expected to use self- restraint while recording such findings which have larger repercussions so far as the future of the victim of the sex crime is concerned and even wider implications on the society as a whole-where the victim of crime is discouraged- the criminal encouraged and in turn crime gets rewarded! Even in cases, unlike the present case, where there is some acceptable material on the record to show that the victim was habituated to sexual intercourse, no such inference like the victim being a girl of "loose moral character" is permissible to be drawn from that circumstance alone. Even if the prosecutrix, in a given case, has been promiscuous in her sexual behavior 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 had everyone. No stigma, like the one as cast in the present case should be cast against such a witness by the Courts, for after all it is the accused and not the victim of sex crime who is on trial in the Court.
As a result of the aforesaid discussion, we find that the prosecutrix has made a truthful statement and the prosecution has established the case against the respondents beyond every reasonable doubt. The trial court fell in error in acquitting them of the charges leveled against them. The appreciation of evidence by the trial court is not only unreasonable but perverse. The conclusions arrived at by the trial court are untenable and in the established facts and circumstances of the case, the view expressed by it is not a possible view. We, accordingly, set aside the judgment of the trial court and convict all the three respondents for offenses under Sections 363 / 366 / 368 and 376 IPC.
