of Punjab Vs. Ramdev Singh  Insc 654 (17 December 2003)
Raju & Arijit Pasayat Arijit Pasayat, J.
violence apart from being a dehumanizing act is an unlawful intrusion on the
right of privacy and sanctity of a female. It is a serious blow to her supreme honour
and offends her self-esteem and dignity it degrades and humiliates the victim
and where the victim is a helpless innocent child or a minor, it leaves behind
a traumatic experience. A rapist not only causes physical injuries but more
indelibly leaves a scar on the most cherished possession of a woman i.e. her
dignity, honour, reputation and not the least her chastity.
is not only a crime against the person of a woman, it is a crime against the
entire society. It destroys, as noted by this Court in Shri Bodhisattwa Gautam
v. Miss Subhra Chakraborty (AIR 1996 SC 922), the entire psychology of a woman
and pushes her into deep emotional crisis.
a crime against basic human rights, and is also violative of the victim's most
cherished of the Fundamental Rights, namely, the Right to Life contained in
Article 21 of the Constitution of India, 1950 (in short the 'Constitution') The
Courts are, therefore, expected to deal with cases of sexual crime against
women with utmost sensitivity. Such cases need to be dealt with sternly and
severely. A socially sensitized judge, in our opinion, is a better statutory armour
in cases of crime against women than long clauses of penal provisions,
containing complex exceptions and provisos.
State of Punjab questions acquittal of the
respondent (hereinafter referred to as 'the accused') who was charged for
commission of offence punishable under Section 376 of the Indian Penal Code,
1860 (for short 'the IPC').
not propose to mention name of the victim. Section 228-A of IPC makes
disclosure of identity of victim of certain offences punishable. Printing or
publishing name of any matter which may make known the identity of any person
against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is
alleged or found to have been committed can be punished. True it is, the
restriction, does not relate to printing or publication of judgment by High
Court or Supreme Court.
keeping in view the social object of preventing social victimization or
ostracism of the victim of a sexual offence for which Section 228-A has been
enacted, it would be appropriate that in the judgments, be it of this Court,
High Court or lower Court, the name of the victim should not be indicated. We
have chosen to describe her as 'victim' in the judgment. (See State of Karnataka v. Puttaraja (2003 (8) Supreme 364)
Prosecution version as unfolded during trial is as follows:
1.10.1985 the mother of the victim PW-4 lodged information with the police that
17-18 days back the accused had committed rape on her daughter PW-7. According
to the information lodged, the victim had told her mother after coming from
house of the accused that she was forcibly dragged away by the accused while
she was cleaning utensils and was raped. At the time of occurrence wife of the
accused was absent and taking advantage of her absence, the accused committed
the lustful act.
father of the victim PW-5 was lying ill seriously they did not think it proper
to inform him and when he recovered from illness, and the police had come to
the village for investigating into some other case, information was lodged. The
victim-girl was sent for medical examination and she was examined by PW-2.
After completion of investigation, charge sheet was placed and accused faced
trial. He denied the accusations and pleaded false implication. It was stated
that the mother of the victim had taken some money as advance for serving as
maid servant and as she did not work and refused to refund the money, a suit
was filed for recovery of the amount and, therefore, with a view to avoid
payment false accusation has been made. The trial Court placed reliance on the
evidence of the prosecution witnesses and convicted the accused of the offence
punishable under Section 376 IPC and sentenced him to 7 years rigorous
imprisonment and a fine of Rs.1,000/- with default stipulation. Being aggrieved
by the judgment, accused filed Crl. A. No. 432-SB/86 in the Punjab and Haryana High Court. By the
impugned judgment dated 2.12.1994 the High Court allowed the appeal and set
aside the conviction and consequently the sentence.
to High Court primarily four factors render the prosecution version vulnerable.
Firstly, there was unexplained delay in lodging FIR. Secondly, the victim's
evidence did not inspire confidence as there were exaggerations, and a friend
to whom she claimed to have told about the incidence was not examined. Thirdly,
the medical evidence indicated that the victim was habituated to sexual
intercourse and, therefore, her version that she was raped by the accused is
not believable. Fourthly, there was no evidence to show that the victim was
employed as a maid servant in the house of the accused.
support of the appeal learned counsel for the State submitted that approach of
the High Court is totally erroneous. In case of sexual assaults the Court has
to take note of the realities of life and should not enter into hyper
technicalities. The delay was properly explained and nothing was brought on
record to raise any doubt about the reason indicated by PWs.-4 and 5. Merely
because respectable persons in the locality and police were not informed the
prosecution should not have been doubted. Had they informed police earlier
there was no question of explaining the delay. The reasons for which there was
delay have been properly explained. The hypothetical medical evidence has been
given primacy to cast doubt over the victim's version. When the defence itself
suggested that victim was engaged as maid servant, the High Court's conclusion
that there was no material to show about her employment as a maid servant is
based on total misreading of the evidence.
because of doctor's hypothetical and opinionative evidence that the victim was
accustomed to sexual intercourse, prosecution version of rape was not to be
response, learned counsel for the accused supported the judgment submitting
that reasonings indicated by the High Court are on terra firma, more
particularly when the victim's testimony is completely unreliable because it is
at great variance with the medical evidence.
it is submitted that the judgment is one of acquittal and after a long lapse of
time the jurisdiction under Article 136 should not be exercised.
in lodging the FIR cannot be used as a ritualistic formula for doubting the
prosecution case and discarding the same solely on the ground of delay in
lodging the first information report. Delay has the effect of putting the Court
in its guard to search if any explanation has been offered for the delay, and
if offered, whether it is satisfactory or not. If the prosecution fails to
satisfactorily explain the delay and there is possibility of embellishment in
prosecution version on account of such delay, the same would be fatal to the
prosecution. However, if the delay is explained to the satisfaction of the
Court, same cannot by itself be a ground for disbelieving and discarding the
entire prosecution version, as done by the High Court in the present case.
evidence of PWs-4 and 5 read with that of the victim clearly explained as to
why the first information report was lodged after 17-18 days. The evidence of
the aforesaid three witnesses clearly show that PW-5 was seriously ill and the
family members did not want to create tension in his mind when he was not
physically well and waited for his recovery. In spite of the lengthy
cross-examination this aspect has not been shaken by the defence. The view of
the High Court that PW-4 should have told some respectable person or the father
earlier to say least is a view which has no foundation and overlooks the very
reason to shun or openly publicise it to avoid the ignominy involved in it. In
a tradition bound and conservative society, more particularly in a rural area,
the shame of sexual assault on a girl of about 14 years cannot be lost sight
of. This down to earth reality has been lost sight of by the High Court. The
trial Court had rightly emphasized this aspect, but unfortunately, the High
Court took a contrary view irrationally.
the victim's evidence has been discarded by holding that it is at variance with
the medical evidence. The High Court has not indicated as to in what way it is
at variance with the medical evidence.
statement that according to doctor, victim's vagina admitted two fingers and
she could on earlier occasions have had sexual intercourse five, ten or fifteen
times rules out rape by accused once as alleged in no way casts doubt on
counsel for the respondent-accused pointed out that rape as claimed by the
victim was discounted by the evidence of PW-2, who did not find visible injury
when she medically examined the victim. In our opinion the same is of no
consequence. The doctor examined the victim after about 3 weeks. That being so,
the effect of the act on the physical form was practically obliterated. That is
not denied by the doctor. Merely because the friend of the victim was not
examined that also cannot be a suspicious circumstance to throw suspicion on
the victim's evidence.
factor which seems to have weighed with the High Court is the evidence of
doctor PW-4 that there were signs of previous sexual intercourse on the victim.
That cannot, by stretch of imagination, as noted above, be a ground to acquit
an alleged rapist. Even assuming that the victim was previously accustomed
sexual intercourse, that is not a determinative question. On the contrary, the
question which was required to be adjudicated was did the accused commit rape
on the victim on the occasion complained of. Even if it is hypothetically
accepted that the victim had lost her virginity earlier, it did not and cannot
in law give license 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. Finally, if we may say as a last straw, is the fallacy in High
Court's reasoning about lack of evidence relating to the employment of the
victim as a maid servant. The High Court completely overlooked the fact that
the suggestions given to witnesses, more particularly PWs-4, 5 and 7 that the
accused or his wife had threatened to put an end to the victim's service as a
maid servant because of her immoral character, or refusal to refund the amount
taken as advance for her employment as a maid servant.
well settled that a prosecutrix complaining of having been a victim of the
offence of rape is not an accomplice after the crime.
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 do.
noted by this Court in State of Rajasthan v. Noore Khan (2000 (3) Supreme 70)
"Absence of injuries on the person of the prosecutrix has weighed with the
High Court for inferring consent on the part of the prosecutrix. We are not at
all convinced. We have already noticed that the delay in medical examination of
the prosecutrix was occasioned by the factum of the lodging of the FIR having
been delayed for the reasons which we have already discussed. The prosecutrix
was in her teens. The perpetrator of the crime was an able-bodied youth
bustling with energy and determined to fulfil his lust armed with a knife in
his hand and having succeeded in forcefully removing the victim to a secluded
place where there was none around to help the prosecutrix in her defence. The
injuries which the prosecutrix suffered or might have suffered in defending
herself and offering resistance to the accused were abrasions or bruises which
would heal up in the ordinary course of nature within 2 to 3 days of the
incident. The absence of visible marks of injuries on the person of the prosecutrix
on the date of her medical examination would not necessarily mean that she had
not suffered any injuries or that she had offered no resistance at the time of
commission of the crime.
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." The High
Court was not justified in reversing the conviction of the respondent and
recording the order of acquittal. An unmerited acquittal does no good to the
society. If the prosecution has succeeded in making out a convincing case for
recording a finding as to the accused being guilty, the court should not lean
in favour of acquittal by giving weight to irrelevant or insignificant
circumstances or by resorting to technicalities or by assuming doubts and
giving benefit thereof where none reasonably exists. A doubt, as understood in
criminal jurisprudence, has to be a reasonable doubt and not an excuse for a
finding in favour of acquittal. An unmerited acquittal encourages wolves in the
society being on the prowl for easy prey, more so when the victims of crime are
helpless females or minor children. The courts have to display a greater sense
of responsibility and to be more sensitive while dealing with charges of sexual
assault on women, particularly of tender age and children.
from any angle the High Court's judgment does not stand scrutiny and deserves
to be set aside which we direct. The conviction as recorded by the trial Court
and the sentence imposed by it are restored.
accused shall surrender forthwith to serve remainder of sentence, if any. The
appeal is allowed to the extent indicated.