Haneef And (2) Others. vs The State Of U.P. on 20 September, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

AFR

Reserved

Case :- CRIMINAL APPEAL No. – 305 of 1999

Appellant :- Haneef And (2) Others.

Respondent :- The State Of U.P.

Counsel for Appellant :- Alok Kapoor

Counsel for Respondent :- Govt Advocate

Hon’ble Sheo Kumar Singh-I,J.

1. Challenge is the judgment and order dated 07.07.1999 passed by 1st Additional Sessions Judge, Unnao, in Session Trial No. 88 of 1997 whereby and whereunder accused/appellants Haneef, Smt. Khatoon and Rashid were found guilty under section 366 of IPC and were sentenced to undergo rigorous imprisonment for five years. However, accused Haneef was acquitted of the charge under Section 376 IPC and all the accused/appellants were also acquitted of the charge under Section 363 IPC.

2. The brief facts, as narrated by the prosecution, are that the victim, the daughter of Ram Narain, was student of Class X and she used to attend Manhar Coaching Centre, Adarsh Nagar, Unnao, from 04.00 -07.00 PM daily. On 27.11.1996 at about 07.30 PM, she was returning to her house after attending the coaching centre and was in the way, due to electric light gone of, there was darkness in the way and in the meantime accused Haneef, his brother in law Rashid and one unknown person forcibly took her to their house in Mohalla Adarsh Nagar where mother and sister of accused Haneef locked her in a room. She was given a paper and was compelled to sign on it and when she refused to sign on the paper she was beaten and threatened to face dire consequences. The mother of accused Haneef tide her hands and after that she went away. Thereafter accused Haneef entered into the room and committed rape with the victim. She was confined in the house of the appellants for 3 to 4 days. On 02.12.1996 accused Haneef took her to Kanpur and when they came to the bus stand at Unnao, the victim raised alarm and at about 12.00 noon the police personnel came there and took her in custody but accused succeeded to flew away from there. When the victim did not return to her house on 27.11.1996 after attending the coaching, her mother Smt. Parmeshwari made search for her and ultimately she lodged a report at Police Station Kotwali on 05.12.1996 at about 06.35 PM whereupon a case at Crime No.1695 of 1996 was registered under Section 363 and 366 IPC. After recovery of the victim she was brought before the Magistrate for recording the statement under Section 164 Cr.P.C. on 10.12.1996 and she was also medically examined at Women’s Hospital, Unnao. After recording the statement of the witnesses and completing the investigation, the Investigating Officer submitted a charge sheet against all the accused persons. Learned Chief Judicial Magistrate took cognizance of the offence and committed the case to the Court of Sessions where all the accused persons were summoned and charges under Sections 363 and 366 were levelled against all the accused persons for which they pleaded not guilty and claimed for trial. A charge under Section 376 IPC was also levelled against accused Haneef for which he pleaded not guilty and claimed for trial.

3. In order to prove the prosecution case, PW-1 Constable Moharrir Bhanu Pratap Singh, PW-2 Parmeshwari, mother of the victim, PW-3 the victim, PW-4 Dr. Ram Pati Devi, PW-5 SI Suraj Singh and PW-6 Dr. Satya Prakash were examined.

4. In the statement recorded under Section 313 Cr.P.C., the accused Haneef had stated that the victim was major at the time of occurrence and she went away from her house voluntarily and on 30.11.1996 an application was presented before one Ram Autar Advocate for marriage which was verified by the victim. Rest of the accused appellants have denied the charges and stated that they have been falsely implicated in this case and also stated that a false charge sheet has been submitted against them.

5. I have heard Mr. Alok Kapoor, learned counsel for the appellants, and Mr. Shesh Nath Singh, learned Additional Government Advocate for the State.

6. Before proceeding with the case, it would be appropriate to simply narrate the things on the basis of the statement recorded by learned Additional Chief Judicial Magistrate, Unnao on 10.12.1996. On that day, the victim was taken to the court of learned Additional Chief Judicial Magistrate, who recorded the statement under Section 164 Cr.P.C. as follows:-

The victim was studying in Class X at the time of recording the statement. She had narrated that on 27.11.1996 at about 07.30 PM when she was returning after attending the coaching centre named Manhar Coaching Centre, Adarsh Nagar, Police Station Kotwali, Unnao, the accused Haneef, his one relative Rashid and one boy met to her. It was dark due to non-supply of the electricity. All these three persons caught hold the victim and took her to their house at Adarsh Nagar. Mother and sister of accused Haneef met there, took the victim in a room and locked there. When she cried, they threatened to beat her. They forced her to put her signature on a paper and when she refused, she was brutally beaten and also threatened that if she would refuse to sign on the paper, her mother and father will be finished. When she did not sign the paper, she was taken to one room in underground and was locked there and was brutally beaten. Mother of Haneef tide her hands and after that she went out of the room. Haneef came there and committed “bad work”. Haneef opened all the clothes of the victim and also opened his clothes and after that forcefully “Meri Ijjat Loot Lee”. She was kept in that underground room for two days and again she was kept in the house for 3-4 days and was pressurized to put her signature. On 02.12.1996 when Haneef with his friends was taking her towards Kanpur and reached at Kanpur Bus Stand Unnao at about 12.00 in the day, she shouted to save her and the police came there and escaped her. She expressed her desire to go with her parents.

7. After recovery by the police personnel, she was taken to the hospital where Emergency Medical Officer examined her on 06.12.1996, who reported that hymen was torn and healed and vagina admits two fingers. Copy of the GD entry dated 06.12.1996 reveals that the victim was recovered from the Bus Stand and was taken by the police personnel and was produced before learned Magistrate for recording her statement under Section 164 Cr.P.C.

8. Learned counsel for the appellants has stated that the victim had put her signature on one of the papers which have been filed by the appellants in the Court below and was verified by the Advocate notary on 30.11.1996 which is on record which reveals that an instrument by notary had been prepared in which they have been shown as major and expressed their desire to live as husband and wife.

9. Learned counsel for the State has submitted that the victim was put under threat and her signature was obtained by forceful means. It has further been submitted that the paper which is a form of declaration is not admissible in evidence nor it is a certificate of marriage. Firstly the notary advocate is not entitled to certify the marriage. Secondly, the marriage, as stated by the appellants, is not known to Muslim Marriage Act. Thirdly, the tradition is not admissible in the family or the relatives of the appellants. Fourthly, the marriage is not admissible in the family or relatives of the victim. Fifthly, the marriage is not known or recognized in either Mohammedan Law or Hindu Law. Learned counsel for the State has submitted that on false pretext of marriage appellant Haneef had committed sexual offence and raped her forcefully without her consent and prepared this document in his defence. It is known fact that if anything is morally correct, it can never be legally wrong. Similarly, if anything is legally correct that can never be morally wrong. If the parties or the appellant Haneef was willing to marry the victim, they might have performed the ceremony according to law or admissibility in their family traditions. It is neither Nikah nor marriage nor it is admissible in both families in tradition. In the circumstances, when the victim, while she was produced before learned Magistrate for recording the statement under Section 164 Cr.P.C., had stated that she was forced to put her signature, total papers should be read in light of her statement. It is the version of the appellants that she put her signature willingly as stated under Section 313 Cr.P.C. but when the victim was produced before the Magistrate she had stated otherwise and also stated that she was forcibly taken while she was returning after attending the coaching and was forcibly locked in the underground room and was forcibly sexually assaulted and raped and was forced to put her signature.

10. Now the question raised before the court by the learned counsel for appellants is that offence as defined in Section 376 IPC has not been committed by the appellants. Section 376 IPC reads as under:-

“376. Punishment for rape. – (1) Whoever, except in the cases provided for by sub-section (2) commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both :

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(2) Whoever, –

(a) being a police officer commits rape –

(i) within the limits of the police station to which he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

(e) commits rape on a woman knowing her to be pregnant or

(f) commits rape on a woman when she is under twelve years of age; or

(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine :

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Explanation 1. – Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub- section.

Explanation 2. – “woman’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widows’ home or by any other name, which is established and maintained for the reception and care of women or children.

Explanation 3. – “hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.]

11. 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.””

12. 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. ….. ”

13. In Rameshwar S/o.Kalyan Singh v. The State of Rajasthan (AIR 1952 SC 54), the accused was charged with the offence of raping a girl below eight years of age. The Supreme Court held that the High Court was right in holding that the guilt of the accused was proved by the evidence of the victim which was legally corroborated by the girl’s statement to her mother. The Supreme Court held thus:

“Now a woman who has been raped is not an accomplice. If she was ravished she is the victim of an outrage. If she consented there is no offence unless she is a married woman, in which case questions of adultery may arise. .. That, in my opinion, is exactly the law in India so far as accomplices are concerned and it Is certainly not any higher in the case of sexual offences. The only clarification necessary for purposes of this country is where this class of offence is sometimes tried by a judge without the aid of jury. In these cases, it is necessary that the judge should give some indication in his judgment that he has had this rule of caution in mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considers it safe to convict without corroboration in that particular case.

The nature and extent of the corroboration is required when it is not considered safe to dispense with it. Here, again, the rules are lucidly expounded by Lord Reading in Baskerville’s case,(1916) 2, K. B. 658 at p. 664 to 669. It would be impossible, indeed it would be dangerous, to formulate the kind of evidence which should, or would, be regarded as corroboration. Its nature and extent must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence charged. But to this extent the rules are clear.

First, it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case,apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction. As Lord Reading says:

“Indeed, if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential to the case, it would be merely confirmatory of other and independent testimony.”

All that is required is that there must be “some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it.”

Secondly, the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime.This does not mean the corroboration as to identity must extend to all the circumstances necessary to identify the accused with the offence. ……”

14. 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).

15. 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. ……”

16. 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. ……”

17. 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”

18. 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. ….”

19. 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. ….”

20. 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.”

21. 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.”

22. 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.”

23. 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.”

24. 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.”

25. 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.

26. 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.”

27. 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. …..”

28. For better understanding the case, it would be appropriate to quote the provisions of Sections 366 IPC:-

“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; [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]”

29. Learned counsel for the appellants has submitted that it is not a case of rape for the reasons that the victim was major and there was consent.

30. In reply thereof, learned counsel for the State has submitted that even if the victim is said to be major, law or morality does not permit anyone or anybody to commit rape or force her to enter into marriage without her consent and without her free will. There is statement of the victim recorded under Section 164 Cr.P.C. that she was forcibly taken away and was forcibly sexually assaulted and raped. The victim was examined as PW-3, who had stated on oath that on the date of occurrence when she was returning her house after 07.00 PM after attending the coaching, she was taken away forcibly to the house of the appellants and was locked in an underground room where her hands were tide and accused Haneef without her consent forcibly raped her. Later on she was forced to put her signature on a paper. There is a medical report that hymen was torn. There is statement of appellant Haneef that she put her signature on a paper or gone with the appellant Haneef voluntarily or there is a notary affidavit to the effect that they wanted to marry. All these facts, documents and evidence reveal that virtually the appellant Haneed had committed rape with the victim. The total defence is that the victim voluntarily consented and entered into an agreement for which the victim herself had denied in her statement under Section 164 Cr.P.C. and stated on oath. Thus, the defence version is not tenable and the documents have been prepared in defence. The circumstances under which she was taken and locked in a room or paper was prepared or there was a police report that she was being taken to Kanpur where in the way she was recovered by the police after her loud/noise to save her by the police personnel show that there was no consent at all.

31. 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.”

32. 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.”

33. 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.”

34. 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…. ”

35. 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.”

36. 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.

37. 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).

38. 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.

39. 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.”

40. 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).”

41. Stroud’s Judicial Dictionary also refers to decision in the case of Holman v. The Queen ([1970] W.A.R. 2) wherein it was stated: ‘But there does not necessarily have to be complete willingness to constitute consent. A woman’s consent to intercourse may be hesitant, reluctant or grudging, but if she consciously permits it there is “consent”.’

42. 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″

43. 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).

44. 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….”

45. 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. ….”

46. 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.]”

47. 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.

48. 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.

49. 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.

50. 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.

51. 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.”

52. 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.”

53. 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.

54. 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.

55. 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).”

56. 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.

57. 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.

58. 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.

59. In Mohd. Imran Khan Vs. State (Govt. of NCT of Delhi), (2012) 1 SCC (Cri) 240 a 15 years old victim was kidnapped on knife point and raped in a hotel and again in house by two accused persons High Court reduced sentence from seven years to five years. The Supreme Court analyzed that Law of Rape and pointed out that it is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Indian Evidence Act, 1872 nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. The court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. (Vide: State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658; State of U.P. v. Pappu @Yunus Anr. AIR 2005 SC 1248; and Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191).

Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.

60. Again in State of Punjab Vs. Gurmit Singh amp; Ors.6 (1996) 2 SCC 384, the Court made the following weighty observations;

“The court over-looked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alram. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how car that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances”.

61. The important thing that the court has to bear in mind is that what is lost by a rape victim. The victim loses value as a person. Ours is a conservative society and, therefore, a woman and more so a young unmarried woman will not put her reputation in peril by alleging falsely about forcible sexual assault. In examining the evidence of the prosecutrix the courts must be alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. Society’s belief and value systems need to be kept uppermost in mind as rape is the worst form of woman’s oppression. A forcible sexual assault brings in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim and it is, therefore, most unlikely of a woman, and more so by a young woman, roping in somebody falsely in the crime of rape. The stigma that attaches to the victim of rape in Indian society ordinarily rules out the leveling of false accusations. An Indian woman traditionally will not concoct an untruthful story and bring charges of rape for the purpose of blackmail, hatred, spite or revenge. The Supreme Court has repeatedly laid down the guidelines as to how the evidence of the prosecutrix in the crime of rape should be evaluated by the court. The observations made in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat (1983) 3 SCC 217 deserve special mention where the Supreme Court observed as follows:-

“In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opiniated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the Western World which has its own social mileu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the Western World. It is wholly unnecessary to import the said concept on a turn-key basis and to transplate it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian Society and its profile. The identities of the two worlds are different. The solution of problems cannot therefore be identical. It is conceivable in the Western Society that a female may level false accusation as regards sexual molestation against a male for several reasons such as:

(1) The female may be a ‘gold digger’ and may well have an economic motive to extract money by holding out the gun of prosecution or public exposure.

(2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted, and chased by males.

(3) She may want to wreak vengence on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account.

(4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarassing position, on account of personal or political vendatta. (5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self-importance in the context of her inferiority complex.

(6) She may do so on account of jealousy. (7) She may do so to win sympathy of others. (8) She may do so upon being repulsed.

By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because: (1) A girl or a woman in the tradition bound non- permissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracised by the Society or being looked down by the Society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (S) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband’s family of a married woman would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent”

62. Rape is a heinous crime and once it is established against a person charged of the offence, justice must be done to the victim of crime by awarding suitable punishment to the crime doer. The criminal justice system in not working in our country as it should. The police reforms have not taken place despite directions of this Court in the case of Prakash Singh amp; Ors. Union of India amp; Ors. (2006) 8 SCC 1. The investigators hardly have professional orientation; they od not have modern tools. On many occasions impartial investigation suffers because of political interference. The criminal trials are protracted because of non-appearance of official witnesses on time and the non-availability of the facilities for recording evidence by video conferencing. The public prosecutors have their limitation; the defence lawyers do not make themselves available and the court would be routinely informed about their pre-occupation with other matters; the courts remain overburdened with the briefs listed on the day and they do not have adequate infrastructure. The adjournments thus become routine; the casualty is justice. It is imperative that the criminal cases relating to offences against the State, corruption, dowry death, domestic violence, sexual assault, financial fraud and cyber crimes are fast tracked and decided in a fixed time frame, preferably, of three years including the appeal provisions. It is high time that immediate and urgent steps are taken in amending the procedural and other laws to achieve the above objectives. We must remember that a strong and efficient criminal justice system is a guarantee to the rule of law and vibrant civil society.

63. Value of Medical Evidence: Appreciating Sociological and Psychological Aspect of Rape:

Courts used to take the position that if there was no proof of physical assault there would be no rape. The presumption that if no physical injury is evident on the victim, no sexual intercourse has taken place or rape has not been committed, ignores the fact that rape is not only an offence involving physical violence, but also psychological violence. This too when existing laws recognize mental agony and psychological violence as offences against the body. The victim of rape besides being physically ravished is psychologically wounded. It is the feeling of having been exploited and violated more that anything else which leaves lifelong scars on the mind of the victim. Perhaps this trauma has been recognized in a case where it was held that the absence of injuries on private parts of the prosecutrix would not rule out her being subjected to rape 1. Krishna Iyer. J. who is famous for his humanistic approach towards law, observed in Rafiq Vs. State of U.P. (1980) 4 SCC 262:

“when no woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her, we cannot cling to a fossil formula and insist on corroborative testimony, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. In this case, the testimony has commanded acceptance from two courts. When a woman is ravished what is inflicted is not merely physical injury. but ‘the deep sense of some deathless shame”. Judicial response to human rights cannot be blunted by legal bigotry.

64. In a similar spirit the Supreme Court has held in Sheikh Zakir Vs. State of Bihar, (1983) 4 SCC10:-

“The absence of any injuries on the person of the complainant may not by itself discredit the statement of the complainant. Merely because the complainant was a helpless victim who was by force prevented from offering serious physical resistance she cannot be disbelieved.”

65. In Madan Gopal Kakkad Vs. Naval Dubey, (1992) 3 SCC 2014, where the question as to what constitutes sexual intercourse and rape was discussed, the Apex Court has put the matter in perspective:-

“Sexual intercourse: In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains.”

66. It was further held:-

“To constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one.”

67. Absence of injury to the prosecutrix advanced as a plea to disprove the allegation of rape was dismissed by the Supreme Court thus:

“The mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result of the penetration of the penis in her vagina. She was subjected to sexual intercourse in a standing posture and that itself indicates the absence of any injury on her private pans. To constitute the offence of rape, penetration, however slight, is sufficient. The prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement has remained unchallenged in the cross-examination. Neither the non-rupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutrix particularly when we find that in the cross-examination of the prosecutrix, nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake. The opinion of the doctor that no rape appeared to have been committed was based only on the absence of rupture of the hymen and injuries on the private parts of the prosecutrix. This opinion cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. Besides, the opinion of the doctor appears to be based on “no reasons”.

68. In the appeal the counsel of the appellant sought to bring out that, in the absence of corroboration of statement of the prosecutrix by medical evidence, the conviction of the appellant was bad. This contention was totally rejected by the Apex Court and it was also reiterated that there is no need for corroboration. The Apex Court asserted:-

“The prosecutrix of a sex offence is a victim of a crime and there is no requirement of law which requires that her testimony cannot be accepted unless corroborated”.

69. Mr. Shesh Nath Singh, learned counsel for the State, has submitted that though there are no contradictions, even if there are certain discrepancies, these are normal discrepancies which did not corrode the credibility of the prosecution case as laid down in the following cases:-

“72. In State Represented by Inspector of Police v. Raravanan and another – JT 2008 (11) SC 290, reiterating the principle, the Court held:

“18. …. it has been said time and again by this Court that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. Further, on the general tenor of the evidence given by the witness, the trial court upon appreciation of evidence forms an opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, that itself would not prompt the court to reject the evidence on minor variations and discrepancies.”

73. In Mahendra Pratap Singh v. State of Uttar Pradesh- JT 2009 (3) SC 120, the Court referred to the authority in Inder Singh and another v. State (Delhi Administration) 1978 (4) SCC 161 wherein it has been held thus:

“2. Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect.”

74. In Sunil Kumar Sambhudayal Gupta and others v. State of Maharashtra – JT 2010 (12) SC 287, while dealing with the issue of material contradictions, the Court held:

“30. While appreciating the evidence, the court has to take into consideration whether the contradictions/ omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan)

31. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide State of Rajasthan v. Rajendra Singh.)

32. The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt.” (Vide Mahendra Pratap Singh v. State of U.P. )”

And again:

“35. The courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so.” (See Syed Ibrahim v. State of A.P.22 and Arumugam v. State)”

70. In this context, I may fruitfully reproduce a passage from State of U.P. v. M.K. Anthony- (1985) 1 SCC 505:

“10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. …”

71. In Harijana Thirupala v. Public Prosecutor, High Court of A.P.-(2002) 6 SCC 470, it has been ruled that:

“11. …. In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses.”

72. In Ugar Ahir v. State of Bihar-AIR 1965 SC 277, a three-Judge Bench held:

“7. The maxim falsus in uno, falsu in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.”

73. In Krishna Mochi v. State of Bihar-(2002) 6 SCC 81, the Court ruled that:

“32. …. The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim “let hundred guilty persons be acquitted, but not a single innocent be convicted” is, in practice, changing the world over and courts have been compelled to accept that “society suffers by wrong convictions and it equally suffers by wrong acquittals”. I find that this Court in recent times has conscientiously taken notice of these facts from time to time”.

74. In Inder Singh (supra), Krishna Iyer, J. laid down that:

“Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes.”

75. In the case of State of U.P. v. Anil Singh-1988 (Supp.) SCC 686, it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.

76. Learned counsel for the State has submitted that accused/appellants have been found guilty under Section 366 IPC while accused/appellant Haneef was acquitted from the charges levelled under Section 376 IPC, which is perverse and not according to law or the statement recorded before the Court. Learned court below had acquitted the accused/appellant Haneef from the charges under Section 376 IPC only on the ground that “Haneef Kamre Me Aya …. Bura Kam Kiya”. Learned court below interpreted it that the victim had not stated that appellant Haneef penetrated his penis into her vagina. This is an absurd interpretation of the words. The victim was narrating the facts before the Court where the court staff including the advocates were present when she said “Kamre Me Aya …..Wa Bura Kam Kiya …..Meri Ijjat Loot Lee”. All these means that there was forceful rape. It is surprising that learned court below has interpreted that these acts do not come within the purview of even Section 354 IPC. The circumstances under which the offence was committed were, as narrated by the prosecution and the victim, that she was taken in an underground room where her hands were made tide and the lady accused went away from there and later on accused Haneef entered into the room, opened all the clothes of the victim even she objected and then he opened his own clothes and then committed “Bura Kam ……Ijjat Loot Lee. Even if it is not interpreted to commit rape, what does it mean. Learned court below while interpreting all these facts has narrated as under:-

“8. The last charge against all the accused persons is under Section 366 IPC. From the statement of PW-3 Km. Prabha Sharma, I find that this offence is duly proved. She has stated on oath that while she was returning from the Coaching Classes, she was abducted from the way by accused Haneef and Rashid, who forcibly took her to the house of Haneef in the darkness, as electric light had gone off. It has also been proved from her statement that accused Haneef and Smt. Khatoon compelled her to sign a blank paper and she was confined in a room and beaten. The accused have also filed a declaration of marriage before the Notary to show that the prosecutrix had married accused Haneef out of her own free will. This shows that abduction was made to compel Km. Prabha Sharma to marry against her will. The defence case is that the prosecutrix was a consenting party and that she herself went to the house of the accused. However, the prosecutrix denies it. Declaration of marriage has not been properly proved because neither Notary has been examined nor the signature of the prosecutrix thereon have been proved. As regards the photograph, I cannot attach much importance to it, particularly in the absence of its negative and particularly when the prosecutrix denies to have got photographed. It is also alleged by the prosecutrix that accused Haneef raped her though the charge of rape is not proved beyond doubt on account of insufficient evidence and on account of details having not been divulged by the prosecutrix. This allegation is, however, a circumstance to show that the adbudction was done to compel the marriage of Km. Prabha Sharma with accused Haneef against her will. Since accused Haneef and Rashid abducted Km. Prabha Sharma to compel her marriage against her will knowing that she may be forced to illicit intercourse and since Smt. Khatoon abetted the commission of the offence by confining the prosecutrix in a room of her house knowing that Km. Prabha Sharma had been abducted and the circumstances that after Smt. Khatoon came out of the room after tying her hands, accused Haneef went inside the room and committed rape on Km. Prabha Sharma. Thus, I find that all the three accused had the knowledge that Km. Prabha Sharma was abducted to compel her for marriage against her will and that they also knew that she would be forced to illicit intercourse, I thus find charge under Section 366 IPC duly proved against all the three accused persons.”

77. The version as narrated by the trial court totally discloses the commission of offence under Section 366 IPC against all the accused persons and charges under Section 376 IPC against accused Haneef were found proved.

78. Learned counsel for the State has submitted that the prosecution has been able to establish the role of accused Haneef in committing the offence mentioned under Section 376 IPC in addtion to the offence under Section 366 IPC and acquittal of accused Haneef under Section 376 IPC is perverse and against the records and appellant Haneef will also be convicted and sentenced under Section 376 IPC. The question arises about the power of the Court to reverse the acquittal and convict him.

79. In Jadunath Singh and Ors. v. State of Uttar Pradesh MANU/SC/0120/1971 : (1971) 3 SCC 577, a three-Judge Bench of the Apex Court has opined:

22. This Court has consistently taken the view that in an appeal against acquittal the High Court has full power to review at large all the evidence and to reach the conclusion that upon that evidence the order of acquittal should be reversed. This power of the appellate court in an appeal against acquittal was formulated by the Judicial Committee of the Privy Council in Sheo Swarup v. King Emperor MANU/PR/0071/1934 : AIR 1934 PC 227 and Nur Mohammad v. Emperor MANU/PR/0022/1945 : AIR 1945 PC 151. These two decisions have been consistently referred to in the judgments of this Court as laying down the true scope of the power of an appellate court in hearing criminal appeals (see Surajpal Singh v. State MANU/SC/0033/1951 : AIR 1952 SC 52 and Sanwat Singh v. State of Rajasthan MANU/SC/0078/1960 : AIR 1961 SC 715).

80. In Shivaji Sahabrao Bobade v. State of Maharashtra MANU/SC/0167/1973 : (1973) 2 SCC 793, the Court has ruled that there are no fetters on the plenary power of the appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de novo, informed, however, by the weighty thought that the rebuttable innocence attributed to the Accused having been converted into an acquittal, the homage the jurisprudence owes to individual liberty constrains the higher court not to upset the finding without very convincing reasons and comprehensive consideration.

81. In State of Karnataka v. K. Gopalakrishna MANU/SC/0071/2005 : (2005) 9 SCC 291, it has been held that where the findings of the court below are fully unreasonable or perverse and not based on the evidence on record or suffer from serious illegality and include ignorance and misreading of record, the appellate court will be justified in setting aside such an order of acquittal.

82. In Girja Prasad (dead) by L.Rs. v. State of M.P. MANU/SC/7862/2007 : (2007) 7 SCC 625, it has been observed that in an appeal against acquittal the appellate court has every power to reappreciate, review and reconsider the evidence as a whole before it. The Court further stated that it is, no doubt, true that there is a presumption of innocence in favour of the Accused and that presumption is reinforced by an order of acquittal recorded by the trial court, but that is not the end of the matter, for it is for the appellate court to keep in view the relevant principles of law, to reappreciate and reweigh the evidence as a whole and to come to its own conclusion in accord with the principles of criminal jurisprudence.

83. In State of Uttar Pradesh v. Ajai Kumar MANU/SC/7116/2008 : (2008) 3 SCC 351, the principles stated in State of Rajasthan v. Sohan Lal MANU/SC/0397/2004 : (2004) 5 SCC 573 were reiterated. It is worth noting that in Sohan Lal (supra), it has been stated thus:

3. … This Court has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal.

84. In Chandrappa and Ors. v. State of Karnataka MANU/SC/7108/2007 : (2007) 4 SCC 415, this Court culled out the general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal. The said principles are enumerated below:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the Accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.

85. In Shivaji Sahabrao Bobade (supra), taking note of the contemporary context, the Court held:

….The dangers of exaggerated devotion to the Rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light heartedly as a learned Author1 has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted “persons” and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that “a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent….” In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic.

86. Learned counsel for the State has submitted that when the accused Haneef himself had admitted the commission of rape in his statement under Section 313 Cr.P.C., while he had stated voluntarily that the victim was major and voluntarily flew away from her house and presented an application before Ram Autar Advocate for marriage who verified it, it means that the appellant Haneef had all those relations which are said to be relations of marriage. Learned court below has discussed it in detail and also came to the conclusion that this paper has not been proved nor admissible in evidence and also not a certificate of marriage. Further the concerned Advocate was not authorized by any competent authority to issue such a certificate. Learned counsel for the State has further submitted that the incident as narrated in the statement under Section 313 Cr.P.C. and the documents which were produced by the defence are admission of the fact that the appellant Haneef had taken away the victim and committed sexual offence within the purview of Section 376 IPC and she was forced to put her signature to marry or to had sexual intercourse within the definition of an offence as mentioned under Section 376 IPC. Since this paper is not admissible nor proved thus the Court cannot presume it as a certificate of marriage.

89. It is a settled principle of law that the statement made by the accused under Section 313 of the Cr.P.C. can be used by the Court to the extent that it is in line with the case of the prosecution. The same cannot be the sole basis for convicting an accused. In the present case, the statement of accused before the Court, to some extent, falls in line with the case of the prosecution and to that extent, the case of the prosecution can be substantiated and treated as correct by the Court. The legislative intent behind this section appears to have twin objects. Firstly, to provide an opportunity to the accused to explain the circumstances appearing against him. Secondly, for the Court to have an opportunity to examine the accused and to elicit an explanation from him, which may be free from the fear of being trapped for an embarrassing admission or statement.

90. The proper methodology to be adopted by the Court while recording the statement of the accused under Section 313 of the Cr.P.C. is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused to state before the Court as to what is the truth and what is his defence, in accordance with law. It was for the accused to avail of that opportunity and if he fails to do so then it is for the Court to examine the case of the prosecution on its evidence with reference to the statement made by the accused under Section 313 of the Cr.P.C.

91. In Hate Singh Bhagat Singh vs. State of Madhya Bharat [AIR1953 SC 468], while dealing with Section 342 of the old Cr.P.C. equivalent to Section 313 of the present Cr.P.C. observed that answer of the accused given can be used in other enquiries or trials for other offences.

92. In the case of Narayan Singh vs. State of Punjab [(1963) 3 SCR 678 a Three Judge Bench of this Court held as under:

“Under Section 342 of the Cr.P.C. of Criminal Procedure by the first Sub-section, insofar as it is material, the Court may at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under Section 342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation if any, of the incident which forms the subject matter of the charge and his defence. By Sub-section (3), the answers given by the accused may “be taken into consideration” at the enquiry or the trial. If the accused person in his examination under Section 342 confesses to the commission of the offence charged against him the Court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety.

93. Following the law laid down in Narayan Singh’s case (supra) the Apex Court in State of Maharashtra v. Sukhdeo Singh [1992 CriLJ 3454] further dealt with the question whether a statement recorded under Section 313 of the Cr.P.C. can constitute the sole basis for conviction and recorded a finding that the answers given by the accused in response to his examination under Section 313 of the Cr.P.C. of 1973 can be taken into consideration in such an inquiry or trial though such a statement strictly is not evidence and observed in paragraph 52 thus:

“Even on the first principle we see no reason why the Court could not act on the admission or confession made by the accused in the course of the trial or in his statement recorded under Section 313 of the Cr.P.C…..”

It is thus well established in law that admission or confession of accused in the statement under Section 313 of the Cr.P.C. recorded in the course of trial can be acted upon and the Court can rely on these confessions to proceed to convict him.

94. Learned counsel for the appellants has submitted that the offence under Section 376 IPC was done with the consent of the victim.

95. Learned court below while discussing the facts has narrated that there was forcible sexual intercourse and statement recorded under Section 164 Cr.P.C. and the statement on oath before the Court reveal that there was no free consent. Accused/appellant Haneef has admitted the act of sexual intercourse in his application for bail moved on 21.10.1997 before learned trial court while in paragraph 6 and in other paragraphs he had admitted sexual relations but with the consent while the prosecutrix has denied any consent.

96. Learned State Counsel has contented that there was no consent at all.

97. Accordingly, on the basis of above discussions, learned court below has correctly appreciated the evidence while concluding the finding under Section 366 IPC against all the appellants but committed error while acquitting accused Haneef from the charges levelled against him under Section 376 IPC. Perusal of the statement of the victim recorded under Section 164 Cr.P.C., the statement on oath before the Court and the papers filed in defence including the contents in the bail application, reveal that there was sexual intercourse by the appellant Haneef. From the date of recovery of and coming out of the hands and clutches of the appellants till the statement is recorded before the Court, she says that she was forcibly taken away and was subjected to sexual intercourse without her consent. Thus, this Court has no option but to hold that the accused/appellant Haneef is also found guilty under Section 376 IPC and according to the propositions of law as laid down above, the accused Haneef can be sentenced appropriately in accordance with law.

98. Learned counsel for the appellants has further submitted that the main role while committing the offence has been assigned to appellant Haneef. The role of appellant no.2 Smt. Khatoon and appellant no.3 Rashid is stated to be taking the victim into the room or locking into the room and thus a lenient view should be taken on the point of sentence with regard to appellant nos. 2 and 3.

99. This Court is of the view that under Section 366 IPC it would suffice the purpose of law if they are punished with imprisonment of one year with fine of Rs.10,000/- each with default stipulation of six months’ imprisonment. In addition to above, accused/appellant Haneef is also found guilty under Section 376 IPC and it would meet the ends of justice if he is sentenced to undergo rigorous imprisonment for a period of five years with fine of Rs.10,000/- with default stipulation of one years’ imprisonment. Accordingly, the appeal is partly allowed. The conviction of appellants Haneef, Smt. Khatoon and Rashid under Section 366 IPC is confirmed but the sentence is modified and they are punished with imprisonment of one year with fine of Rs.10,000/- each with default stipulation of six months’ imprisonment. The acquittal of accused/appellant Haneef from charges under Section 376 IPC is set-aside. He is also found guilty under Section 376 IPC and is sentenced to undergo rigorous imprisonment for a period of five years with fine of Rs.10,000/- with default stipulation of one years’ imprisonment. All the sentences shall run concurrently. Out of the fine amount so deposited, 50% of the same shall be paid to the victim. Appellants are on bail. Their bail is cancelled. Learned Chief Judicial Magistrate is directed to take the appellants into custody forthwith to serve out the sentence. The period of detention already undergone by the appellants in the instant case shall be set off in their substantive sentence in accordance with the provisions of Section 428 Cr.P.C.

103. Office is directed to communicate this order to the court concerned for immediate compliance and also to send back lower court record.

Order Date :- 20.09.2017

A.Katiyar

 

 

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