Rape is not only a crime against the person of a woman, it is a crime against the entire society
AIR 2004 SC 1290 : (2003) 6 Suppl. SCR 995 : (2004) 1 SCC 421 : JT 2003 (10) SC 416 : (2003) 10 SCALE 791
SUPREME COURT OF INDIA
State of Punjab
Versus
Ramdev Singh
(Before : Doraiswamy Raju And A. Pasayat, JJ.)
Criminal Appeal No. 547 of 1997, Decided on : 17-12-2003.
Constitution of India, 1950—Articles 21 and 136—Penal Code, 1860—Sections 376, 228A, 376A, 376B, 376C and 376D.
Counsel for the Parties:
Bimal Roy Jad (NP), for Appellant.
Ranbir Singh Yadav, Advocate, for Respondent.
Judgment
Arijit Pasayat, J—Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity – it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience, a rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted by this Court in Shri Bodhisattwa Gautam vs. Miss Subhra Chakraborty (AIR 1996 SC 922), the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim’s most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the ‘Constitution’). The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized Judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos.
2. The State of Punjab questions acquittal of the respondent (hereinafter referred to as ‘the accused’) who was charged for commission of offence punishable under Section 376 of the Indian Penal Code, 1860 (for short ‘the IPC’).
3.We do not propose to mention name of the victim. Section 228-A of IPC makes disclosure of identity of victim of certain offences punishable. Printing or publishing name of any matter which may make known the identity of any person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found to have been committed can be punished. True it is, the restriction, does not relate to printing or publication of judgment by High Court or Supreme Court. But keeping in view the social object of preventing social victimization or ostracism of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of this Court, High Court or lower Court, the name of the victim should not be indicated. We have chosen to describe her as ‘victim‘ in the judgment. (See State of Karnataka vs. Puttaraja (2003 (8) Supreme 364).
4. Prosecution version as unfolded during trial is as follows :
On 1-10-1985 the mother of the victim PW-4 lodged information with the police that 17-18 days back the accused had committed rape on her daughter PW-7. According to the information lodged, the victim had told her mother after coming from house of the accused that she was forcibly dragged away by the accused while she was cleaning utensils and was raped. At the time of occurrence wife of the accused was absent and taking advantage of her absence, the accused committed the lustful act. As the father of the victim PW-5 was lying ill seriously they did not think it proper to inform him and when he recovered from illness, and the police had come to the village for investigating into some other case, information was lodged. The victim-girl was sent for medical examination and she was examined by PW-2. After completion of investigation, charge-sheet was placed and accused faced trial. He denied the accusations and pleaded false implication. It was stated that the mother of the victim had taken some money as advance for serving as maid-servant and as she did not work and refused to refund the money, a suit was filed for recovery of the amount and, therefore, with a view to avoid payment false accusation has been made. The trial Court placed reliance on the evidence of the prosecution witnesses and convicted the accused of the offence punishable under Section 376, IPC and sentenced him to 7 years’ rigorous imprisonment and a fine of ` 1,000/- with default stipulation. Being aggrieved by the judgment, accused filed Crl. A. No. 432-SB/86 in the Punjab and Haryana High Court. By the impugned judgment dated 2-12-1994 the High Court allowed the appeal and set aside the conviction and consequently the sentence.
5. According to High Court primarily four factors render the prosecution version vulnerable. Firstly, there was unexplained delay in lodging FIR. Secondly, the victim’s evidence did not inspire confidence as there were exaggerations, and a friend to whom she claimed to have told about the incidence was not examined. Thirdly, the medical evidence indicated that the victim was habituated to sexual intercourse and, therefore, her version that she was raped by the accused is not believable. Fourthly, there was no evidence to show that the victim was employed as a maid-servant in the house of the accused.
5A. In support of the appeal learned counsel for the State submitted that approach of the High Court is totally erroneous. In case of sexual assaults the Court has to take note of the realities of life and should not enter into hyper technicalities. The delay was properly explained and nothing was brought on record to raise any doubt about the reason indicated by PWs-4 and 5. Merely because respectable persons in the locality and police were not informed the prosecution should not have been doubted. Had they informed police earlier there was no question of explaining the delay. The reasons for which there was delay have been properly explained. The hypothetical medical evidence has been given primacy to cast doubt over the victim’s version. When the defence itself suggested that victim was engaged as maid-servant, the High Court’s conclusion that there was no material to show about her employment as a maid-servant is based on total misreading of the evidence.
6. Merely because of doctor’s hypothetical and opinionative evidence that the victim was accustomed to sexual intercourse, prosecution version of rape was not to be discarded.
7. In response, learned counsel for the accused supported the judgment submitting that reasonings indicated by the High Court are on terra firma, more particularly when the victim’s testimony is completely unreliable because it is at great variance with the medical evidence. Residually, it is submitted that the judgment is one of acquittal and after a long lapse of time the jurisdiction under Article 136 should not be exercised.
8. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the same would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, same cannot by itself be a ground for disbelieving and discarding the entire prosecution version, as done by the High Court in the present case.
9. The evidence of PWs-4 and 5 read with that of the victim clearly explained as to why the first information report was lodged after 17-18 days. The evidence of the aforesaid three witnesses clearly show that PW-5 was seriously ill and the family members did not want to create tension in his mind when he was not physically well and waited for his recovery. In spite of the lengthy cross-examination this aspect has not been shaken by the defence. The view of the High Court that PW-4 should have told some respectable person or the father earlier to say least is a view which has no foundation and overlooks the very reason to shun or openly publicise it to avoid the ignominy involved in it. In a tradition bound and conservative society, more particularly in a rural area, the shame of sexual assault on a girl of about 14 years cannot be lost sight of. This down to earth reality has been lost sight of by the High Court. The trial Court had rightly emphasized this aspect, but unfortunately, the High Court took a contrary view irrationally.
10. Further, the victim’s evidence has been discarded by holding that it is at variance with the medical evidence. The High Court has not indicated as to in what way it is at variance with the medical evidence. Mere statement that according to doctor, victim’s vagina admitted two fingers and she could on earlier occasions have had sexual intercourse five, ten or fifteen times rules out rape by accused once as alleged in no way casts doubt on victim’s evidence.
11. Learned counsel for the respondent-accused pointed out that rape as claimed by the victim was discounted by the evidence of PW-2, who did not find visible injury when she medically examined the victim. In our opinion the same is of no consequence. The doctor examined the victim after about 3 weeks. That being so, the effect of the act on the physical form was practically obliterated. That is not denied by the doctor. Merely because the friend of the victim was not examined that also cannot be a suspicious circumstance to throw suspicion on the victim’s evidence.
12. Another factor which seems to have weighed with the High Court is the evidence of doctor PW-4 that there were signs of previous sexual intercourse on the victim. That cannot, by stretch of imagination, as noted above, be a ground to acquit an alleged rapist. Even assuming that the victim was previously accustomed sexual intercourse, that is not a determinative question. On the contrary, the question which was required to be adjudicated was did the accused commit rape on the victim on the occasion complained of. Even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law give 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 pray for being sexually assaulted by anyone and everyone. Finally, if we may say as a last straw, is the fallacy in High Court’s reasoning about lack of evidence relating to the employment of the victim as a maid-servant. The High Court completely overlooked the fact that the suggestions given to witnesses, more particularly PWs-4, 5 and 7 that the accused or his wife had threatened to put an end to the victim’s service as a maid-servant because of her immoral character, or refusal to refund the amount taken as advance for her employment as a maid-servant.
13. 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 phychological and emotional. However, if the Court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would do.
14.As was noted by this Court in State of Rajasthan vs. Noore Khan (2000 (3) Supreme 70)
“Absence of injuries on the person of the prosecutrix has weighed with the High Court for inferring consent on the part of the prosecutrix. We are not at all convinced. We have already noticed that the delay in medical examination of the prosecutrix was occasioned by the factum of the lodging of the FIR having been delayed for the reasons which we have already discussed. The prosecutrix was in her teens. The perpetrator of the crime was an able-bodied youth bustling with energy and determined to fulfil his lust armed with a knife in his hand and having succeeded in forcefully removing the victim to a secluded place where there was none around to help the prosecutrix in her defence. The injuries which the prosecutrix suffered or might have suffered in defending herself and offering resistance to the accused were abrasions or bruises which would heal up in the ordinary course of nature within 2 to 3 days of the incident. The absence of visible marks of injuries on the person of the prosecutrix on the date of her medical examination would not necessarily mean that she had not suffered any injuries or that she had offered no resistance at the time of commission of the crime. Absence of injuries on the person of the prosecutrix is not necessarily an evidence of falsity of the allegation or an evidence of consent on the part of the prosecutrix. It will all depend on the facts and circumstances of each case.”
15. The High Court was not justified in reversing the conviction of the respondent and recording the order of acquittal. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the Court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none reasonably exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, moreso when the victim of crime are helpless females or minor children. The Courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women, particularly of tender age and children.
16. Looked from any angle the High Court’s judgment does not stand scrutiny and deserves to be set aside which we direct. The conviction as recorded by the trial Court and the sentence imposed by it are restored. The accused shall surrender forthwith to serve remainder of sentence, if any. The appeal is allowed to the extent indicated.
In the case reported as Uday v. State of Karnataka, AIR 2003 SC 1639, the Hon’ble Supreme Court has held as under :-
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“It therefore, appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid done by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.”
Consent may be express or implied
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In the case reported as Deepak Gulati v State of Haryana, (2013) 7 SCC 675 : 2013 Law Suit (SC) 442 , the Hon’ble Supreme Court has held that:
“Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had malafide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at any early stage a false promise of marriage by the accused ; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of mis- representation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so, such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was malafide, and that he had clandestine motives. Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances.
Jayanti Rani Panda v. State of West Bengal and anr., 2002 SCC (Cri) 1448, it has been observed that:
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“The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise Sessions Case to marry we do not know when. If a full grown girl consents to an act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC cannot be called in aid in such a case unless the Court can be assured that from the very inception the accused never really intended to marry her.”
Similar observations have also been made in the judgments reported as Pradeep Kumar Verma v. State of Bihar & anr., AIR 2007 SC 3059; Jyotsana Kora v. The State of West Bengal and anr., Manu/WB/0364/2010; Deelip Singh alias Dilip Kuamr v. State of Bihar, (2005) 1 SCC 88; Uday v. State of Karnataka, (2003) 4 SCC 46 and Naresh Kumar v. State (Govt. of NCT) Delhi, 2012 (7) LRC 156 (Del).
Use of Section 114-A of the Indian Evidence Act in Rape case
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Section 114-A of the Indian Evidence Act, 1872 provides, that if the prosecutrix deposes that she did not give her consent, then the Court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114-A of the Act 1872 be pressed into service. Hence, the sole question involved herein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of Sections 417, 375 and 376 IPC have to be taken into consideration, alongwith the provisions of Section 90 of the Act 1872. Section 90 of the Act 1872 provides, that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of Section 375 IPC are concerned, and thus, such a physical relationship would tantamount to committing rape.
The judgments reported as Uday v. State of Karnataka, AIR 2003 SC 1639; Deelip Singh @ Dilip Kumar v. State of Bihar, AIR 2005 SC 203; Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC 615; and Pradeep Kumar Verma v. State of Bihar & Anr., AIR 2007 SC 3059, observe that in the event that the accused’s promise is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act (s) would not amount to rape. Thus, the same would only hold that where the prosecutrix, under a misconception of fact to the extent that the accused is likely to marry her, submits to the lust of the accused, such a fraudulent act cannot be said to be consensual, so far as the offence of the accused is concerned.