HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Case :- CRIMINAL APPEAL No. – 324 of 1998
Appellant :- Smt.Tanno @ Tarawati and others
Respondent :- State Of U.P.
Counsel for Appellant :- Awadhesh Kumar
Counsel for Respondent :- Govt. Advocate
Hon’ble Sheo Kumar Singh-I,J.
1. Challenge in the instant criminal appeal is the judgment and order dated 12.05.1998 passed by the then 5th Additional Sessions Judge, Unnao, in Sessions Trial No.496 of 1991 arising out of Case Crime No.526 of 1989. By the impugned order, appellants namely Smt. Tanno @ Tarawati, Radhey Shyam, Tej Ram, Smt. Munni and Laxmi Narain @ Pappu were found guilty for the offence under Sections 363, 366, 368 and 376 IPC, Police Station Kotwali, District Unnao and were sentenced as under:-
i. Under Section 363 IPC – Smt. Tanno @ Tarawati and Laxmi Narain @ Pappu – 5 years’ R.I. with fine of Rs.1000/- each with default stipulation of 2 years’ R.I.
ii. Under Section 366 IPC – Smt. Tanno @ Tarawati and Laxmi Narain @ Pappu – 7 years’ R.I. with fine of Rs.1000/- each with default stipulation of 1 year’s R.I.
iii. Under Section 368 IPC – Tej Ram (deceased) – 7 years’ R.I. with fine of Rs.1000/- with default stipulation of 1 year’s R.I.
iv. Under Section 368 IPC – Munni Devi – 3 years’ R.I. with fine of Rs.1000/- with default stipulation of 1 year’s R.I.
v. Under Section 376 IPC – Radhey Shyam – 7 years’ R.I. with fine of Rs.1000/- with default stipulation of 1 year’s R.I.
All the sentences were directed to run concurrently.
2. The prosecution story reveals that Anil Kumar Gupta was residing with his younger sister, the victim, aged about 13 years after the death of his parents. The complainant Anil Kumar Gupta used to sell fruits on Thelia and on the date of incident i.e. 07.06.1989 at about 08.30 am when he was out of his house for selling the fruits, Smt. Tanno @ Tarawati wife of Ashok Kumar and Laxmi Narain @ Pappu came to his house and on the pretext that Nani is sick, by enticing and inducing on the false pretext, they took away the victim from the house of the complainant. When he returned home, the victim (his sister), was not found in the house and then neighbours informed that his Mausi and Mama, the above named accused persons, had visited in the morning and took his sister with them. The complainant visited the house of Nani where he was informed that they have gone to Lakhimpur Kheri and again when she was not found there, the complainant complained the fact to the police station by means of a complaint (Ext. Ka-1). The prosecution story reveals that the victim, sister of the complainant, was induced on the false pretext and kidnapped by accused with intention to marry with a person against her will or against the desire of the complainant, who is the brother of the victim. The case was initially registered under Section 363 and 366 IPC against accused/appellants Laxmi Narain, Tanno @ Tarawati and Tej Ram and later on after investigation, it was found that the victim was subjected to false marriage and one Radhey Shyam induced on the false pretext of marriage and committed sexual intercourse with the victim against her desire and will and thus, after investigation, a charge sheet under Section 363 and 366 IPC against Laxmi Narain, second charge sheet under Section 363, 366 and 376 IPC against Radhey Shyam, Tej Ram and Smt. Munni and third charge sheet under Section 363, 366 and 376 IPC against Smt. Tanno alias Tarawati, were submitted. Learned Magistrate took cognizance and committed the case to the Court of sessions for trial. After framing the charge, it was read over to the accused/appellants for which they denied and claimed for trial.
3. In order to prove the prosecution story, the prosecution examined the following witnesses:-
i. PW-1 – Prosecutrix/victim as a witness of fact,
ii. PW-2 – Anil Kumar Gupta, the complainant and brother of the victim,
iii. PW-3 – Dr. Manju Gupta, in order to prove medical report, and
iv. PW-4 – SI Param Lal Verma, Investigating Officer.
4. After recording the statement under Section 313 Cr.P.C. and after hearing the learned counsel for the defence, the appellants/accused were found guilty for the aforesaid offence and were sentenced, as above, aggrieved by which, the present appeal has been filed.
5. During pendency of the appeal, appellant/accused Tej Ram died and thus appeal stands abated in respect of him.
6. A question is raised by the learned counsel for the appellants that appellant no.1 Smt. Tanno @ Tarawati and appellant no.5 Laxmi Narain, who happen to be Mausi and Mama respectively of the victim, can never be convicted for the reason that in the first information report the complainant himself has narrated that they were looking after the care of the victim and the complainant. In this way, they were working as guardians of the victim and the complainant after the death of their parents. After the death of the parents, the complainant and victim were residing together. The complainant used to go out of the house for business purpose for selling of the fruits. His maternal uncle (Mama) and Mausi came to the house and persuaded by way of inducement and on the false pretext that her Nani is sick, took away the minor, a 13 years’ old victim to their house.
7. It has been contended by learned counsel for the State that if virtually Nani was sick then there was no need to come with Mausi and after reaching at the house of Nani it came to the knowledge of the victim that her Nani was alright and there was nothing adverse with the health of her Nani. Secondly, even if the theory of taking the victim to the house of Nani is taken into account, appellant no.5 (Mama) was sufficient to come at the house of the victim to take away the girl with the consent of the brother or he had simply intimated the brother of the victim to come and see his/her Nani but the theory is otherwise. The victim was taken away on the false pretext that Nani was sick though it was not correct and secondly the appellant no.5, who happens to be Mama of the victim, comes at the house of the victim with appellant no.1 Smt. Tanno @ Tarawati so that the victim may be persuaded and convinced to follow them. Simply coming on a certain intervals at the house of the victim can never be said to be entrustment of the minor in the custody of the appellants. In fact after the death of the parents, the victim was residing with her brother who was taking care of all these things and at the time of occurrence the complainant/brother of the victim was lawful guardian within the meaning of Section 361 IPC. In this way, the appellants had taken away the girl, who was minor aged about 13 years at the time of occurrence, from the lawful guardianship of the complainant with intention that she may be compelled to marry with another person against her will.
8. On behalf of the appellants, it has further been contended that it was incumbent upon the prosecution to prove that the girl was taken away from the custody of the lawful guardian. Appellant nos. 1 and 5 had submitted that since being close relatives they were visiting the house of the victim on certain intervals to look after and care them, it cannot be said that they were not lawful guardians of the victim at the time of incident. It has further been argued on behalf of the appellants that maternal uncle/Mama and Mausi of the victim had absolute right to the custody of the minor girl in the absence of father and mother and on that basis it has been submitted that charge of kidnapping is not sustainable against appellant nos. 1 and 5.
9. In view of this Court, the contention is neither correct nor acceptable. The circumstances of the victim and the complainant reveals that after the death of their parents, they were residing in the house and the brother was actual and natural guardian looking after the care of the minor. No such right exists in maternal uncle or anyone on the mother side in a circumstance as mentioned in the present case. For considering the lawful guardianship, the interest of the minor shall be taken into account. The circumstances reveal that the minor was taken away from her house in absence of her brother on false pretext that her Nani was sick though later on it was found wrong. The victim, a minor girl, against whom it was argued that appellant nos. 1 and 5 were lawful guardian, permitted or associated other accused Radhey Shyam to take away and on the false pretext of marriage committed forceful sexual intercourse in a drunken position. All these facts reveal and narrate that the appellants were not working in the interest of the minor. From the moment they permitted the minor to go with Radhey Shyam, the next accused, or associated in the activities like false marriage and forcing the victim to go with Radhey Shyam where she was compelled to have sexual intercourse with other accused Radhey Shyam reveals that the conduct of the appellants as such in no way shall be deemed to be conduct in the interest of the victim, the minor. 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 facts, appellant nos. 1 and 5 could not claim to be lawful guardian of the minor.
10. 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.”
11. In light of above facts, the contention of learned counsel for the appellants that appellant nos.1 and 5 were working as a lawful guardian is not tenable. Thus, at the time of occurrence brother, the complainant, was lawful guardian of the victim who was taken away from the custody of the lawful guardianship.
12. The story further reveals that after reaching at Shukla Ganj, the house of her Nani, she did neither found her brother there nor Nani was sick. From Shukla Ganj, Smt. Tanno @ Tarawati, Laxmi Narain and Tej Ram, who were present at Shukla Ganj, took her to Ganga Ghat station, boarded into the train and after boarding into the train, Laxmi Narain @ Pappu returned back while Smt. Tanno @ Tarawati and Tej Ram accompanied the victim. When the train reached at Unnao station the victim requested to get down from the train on the pretext to ease herself but no attention was paid and she was brought to Sitapur and then to Lakhimpur Kheri where she was kept in the house of Tej Ram and Munni Devi, for 3-4 days. Co-accused Munni Devi knowing that the minor has been kidnapped or has been abducted, wrongfully confined her in her house and assisted with all other co-accused to go to court premises at Lakhimpur Kheri for marriage and compelled her to visit at temple and follow Radhey Shyam who compelled minor victim to have sexual intercourse. This was the reason the trial court found her guilty under Section 368 IPC. The brother of the victim reached there amidst but he was not permitted to meet his sister and he returned back. The prosecution story further reveals that all the accused persons were there with Radhey Shyam took the minor to the Court at Lakhimpur Kheri for marriage and obtained her thumb impression forcibly. She was compelled to marry with Radhey Shyam though she was not willing and she was taken to one of the temple for marriage ceremony and after that she was sent with Radhey Shyam who had sexual intercourse with her forcibly without her consent. The statement of the witness/victim reveals that accused Radhey Shyam was in a drunken state and committed the offence of sexual intercourse without the consent of the minor on the false pretext of marriage. The brother of the victim after returning from the house of Tej Ram lodged the first information report and police reached there and the victim was recovered and the accused persons were arrested. The victim was brought to Lucknow and Unnao and was sent for medical examination.
13. Learned counsel for the appellants has further taken ground and argued that the victim/prosecutrix was major at the time of occurrence.
14. In the first information report the age of the victim has been endorsed as 13 years. For the assessment of her age on the basis of fusion of bones and physical development, X-ray of right wrist and right elbow was taken and was sent for medical report. The Medical Officer who has proved Ext. Ka-2 and Ext. Ka-3 has stated on oath that the victim was about 15 years of age.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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 15 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.
21. Now the question is as to whether the accused Radhey Shaym has committed an offence within the definition of Section 376 IPC. Section 376 IPC reads as follows:-
“Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.”
22. In the statement recorded under Section 313 Cr.P.C. he has stated that report was falsely lodged against him and he has been falsely implicated in this case. There is a police report and evidence that the victim was taken to Lakhimpur Kheri in the house of the co-accused where the appellant Radhey Shyam was also present and the victim was taken to one of the temple where a false story of sindoor and bangles was given to the victim and after that she was induced to follow Radhey Shyam and was compelled for sexual intercourse without her will or consent.
23. 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.””
24. 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. ….. ”
25. 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 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. ……”
26. 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).
27. 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. ……”
28. 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. ……”
29. 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”
30. 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. ….”
31. 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. ….”
32. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (AIR 1983 SC 753), after referring to Rameshwar’s case (AIR 1952 SC 54), it was held as follows:
“And whilst the sands were running out in the time-glass, the crime graph of offences against women in India has been scaling new peaks from day to day. That is why an elaborate rescanning of the jurisprudential sky through the lenses of ‘logos’ and ‘ethos’, has been necessitated.
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 opinionated, 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 milieu, 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 turnkey 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 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 see 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 vengeance 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 jealous.
(7) She may do so to win sympathy of others.
(8) She may do so upon being repulsed.
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 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 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 innocent. (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, act as a deterrent. ….”
33. 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.”
34. 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.”
35. 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.”
36. 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.”
37. 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.”
38. 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.
39. 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.”
40. 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. …..”
41. The submission of learned counsel for the appellants that there was a free consent of family/victim is not tenable on the ground that she was taken away from the lawful guardianship of her brother and again taken from the house of her Mama to Lakhimpur Kheri and was compelled on the false pretext of marriage to go with accused Radhey Shyam and he committed sexual intercourse in a drunken state. All these facts reveal that there was no free consent at all.
42. 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.”
43. 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.”
44. 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.”
45. 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…. ”
46. 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.”
47. 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.
48. 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).
49. 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.
50. The learned counsel for the applicant also relied on the decision of the Supreme Court in Kuldeep K.Mahato v. State of Bihar ((1998) 6 SCC 420). On going through the judgment in Kuldeep’s case, it is seen that the Supreme Court held that the evidence of the prosecutrix that she was raped was unbelievable. However, the Supreme Court confirmed the conviction of the accused under Section 363 of the Indian Penal Code. The finding in paragraph 11 of the judgment in Kuldeep’s case was on facts of that case and it cannot be applied to the case on hand.
51. 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.”
52. 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).”
53. Stroud’s Judicial Dictionary also refers to decision in the case of Holman v. The Queen ( 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”.’
54. 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″
55. 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).
56. 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….”
57. 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. ….”
58. 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.]”
59. 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.
60. 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.
61. Learned counsel for the appellants has submitted that by going from Unnao to Kanpur then from Sitapur to Lakhimpur Kheri shows the willingness of the victim. At the time when she was taken from the house she went on her own accord and on this ground it is argued that taking the victim from house could not be stated to be either abduction/kidnapping. During cross examination the victim and her brother clearly admitted that fact that at several places when she was in the company of the appellants there was general public and even there were some people but she did not raise any alarm and on the basis of these facts it has been argued that she prepared herself to go along with the appellants and it cannot be said to be a case of kidnapping or abduction.
62. Through appearance and medical evidence the victim does not appear to be more than 15 years though in the first information report she has been reported to be 13 years of age. Visiting of victim with Mama, appellant no.5, and another accused appellant no.1, Mausi, on the pretext that her Nani was ill can never be said to be her will or she went on her own accord. Circumstances of the case reveal the inference of guilt of the appellants having different tendency and pointing towards the guilt of the accused by taking or enticing or inducing the minor from the lawful guardian and from the house of her brother and thus taking her to other places forms a chain and a conclusion can be drawn that the crime was committed by the accused intentionally.
63. 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.
64. 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.
65. 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.”
66. 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.”
67. 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.
68. 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.
69. 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).”
70. 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.
71. 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.
72. 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.
73. 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.
74. Learned counsel for the appellants has further submitted that a lenient view should be taken on the point of sentence.
75. 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.”
76. 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.
77. 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.”
78. 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.
79. In Jameel v. State of Uttar Pradesh (2010) 12 SCC 532 , the trial court had convicted the appellant therein under Section 308 IPC along with another and punished them with two years rigorous imprisonment. In appeal, the conviction and sentence of the appellant were affirmed. By the time the matter came to be considered by Court, 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.”
80. 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.
81. 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.”
82. 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.”
83. 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’.
84. 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).”
85. 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 appeal deserves to be dismissed and is hereby dismissed.
86. 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.
87. 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 :- 03.8.2017