of Kerala Vs. Kurissum Moottil Antony  Insc 771 (9
Pasayat & Lokeshwar Singh Panta
out of SLP (Crl.) No. 5856 of 2005) ARIJIT PASAYAT, J.
State of Kerala challenges the order passed by the
learned Single Judge of the Kerala High Court directing acquittal of the
respondent by accepting revision petition filed by the respondent. Respondent
was found guilty of offences punishable under Sections 451 and 377 of the
Indian Penal Code, 1860 (in short 'IPC'). The Trial Court had convicted the
respondent as aforesaid and had imposed sentence of six months and one year
rigorous imprisonment respectively with fine of Rs.2000/- in each case. The
fine amount of Rs.2000/- was to be paid to the victim in terms of Section 357
(1)(b) of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.').
background as unfolded during trial of the respondent was that on 10.11.1986
accused trespassed into the house of the victim-girl who was nearly about 10
years of age on the date of occurrence and committed unnatural offence on her.
After finding the victim alone in the house the accused committed unnatural
offence by putting his penis having carnal intercourse against order of nature.
The victim (PW-1) told about the incident to her friend (PW-2) who narrated the
same to the parents of the victim and accordingly on 13.11.1986 First
Information Report was lodged. The investigation was undertaken by PW-11 who
sent both the victim and the accused for medical examination. He also seized
the dress worn by the victim at the time of occurrence.
Chemical Analyst report Ex.P7 indicated presence of human semen and spermatozoa
on the dress of the victim.
of the accused was also proved by the doctor (PW-10) as per Ex.P6.
further the prosecution version, 11 witnesses were examined. The accused
pleaded innocence. On consideration of the evidence on record, learned Judicial
Magistrate, Ist Class, found the accused guilty and convicted and sentenced as
aforesaid noted. An appeal before the learned Sessions Judge, Kelpetta did not
bring any relief to the accused.
was filed before the High Court which by the impugned order set aside the order
of conviction and sentence.
primary ground on which the High Court directed acquittal was the absence of
corroboration and alleged suppression of a report purported to have been given
before the FIR in question was lodged.
support of the appeal, learned counsel for the State submitted that the High
Court's approach is clearly erroneous.
Court in a catena of cases has held that corroboration is not necessary for a
case of this nature. Finding certain alleged inconsistencies in the victim's
testimony, the High Court had observed that corroboration was necessary. It
relied on a purported statement stated to have been made at anterior point of
time. It was observed that in the said complaint details of the incident
constituting the offence were not disclosed. This was suppressed by the
Investigating Officer and mother of the victim i.e. PW-5.
is no appearance on behalf of the respondent- accused in spite of the service
of the notice.
accused cannot cling to a fossil formula and insist on corroborative evidence,
even if taken as a whole, the case spoken to by the victim strikes a judicial
mind as probable.
response to human rights cannot be blunted by legal jugglery. A similar view
was expressed by this Court in Rafiq v. State of U.P. (1980 (4) SCC 262) with some anguish. The same was echoed again
in Bharwada Bhogiabhai and Hirjibhai v. State of Gujarat (AIR 1988 SC 753). It was observed in the said case that in
the Indian setting refusal to act on the testimony of the victim of sexual
assault in the absence of corroboration as a rule, is adding insult to injury.
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 or
dignity had ever occurred. She would be conscious of the danger of being
ostracized by the society and when in the face of these factors the crime is
brought to light, there is inbuilt assurance that the charge is genuine rather
than fabricated. Just as a witness who has sustained an injury, which is not
shown or believed to be self-inflicted, is the best witness in the sense that
he is least likely to exculpate the real offender, the evidence of a victim of
sex offence is entitled to great weight, absence of corroboration
notwithstanding. Corroboration is not the sine qua non for conviction in a rape
case. The observations of Vivian Bose, J. in Rameshwar v. The State of
Rajasthan (AIR 1952 SC 54) were, ''The rule, which according to the cases has
hardened into one of law, is not that corroboration is essential before there
can be a conviction but that the necessity of corroboration, as a matter of
prudence, except where the circumstances make it safe to dispense with it, must
be present to the mind of the judge...".
insist on corroboration except in the rarest of rare cases is to equate one who
is a victim of the lust of another with an accomplice to a crime and thereby
would be adding insult to injury to tell a woman that her claim of rape will
not be believed unless it is corroborated in material particulars as in
"the case of an accomplice to a crime". (See State of Maharashtra v. Chandra Prakash Kewalchand Jain
(1990 (1) SCC 550). Why should be 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? The plea about
lack of corroboration has no substance.
unfortunate that respect for womanhood in our country is on the decline and
cases of molestation and rape are steadily growing. Decency and morality in
public and social life cart be protected only if Courts deal strictly with
those who violate the social norms.
above position was highlighted by this Court in Bhupinder Sharma v. State of H.P. (2003 (8) SCC 551).
rule regarding non-requirement of corroboration is equally applicable to a case
of this nature, relating to Section 377 IPC.
addition, it is to be noted that reading of PW-1's evidence shows that the High
Court proceeded on erroneous impression as if written complaint was earlier
lodged before the police which was suppressed by the prosecution. A close
reading of PW-5's evidence shows that she has not stated anything of that
nature. On the contrary, evidence of the mother PW-5 and the father PW-4 is
that they went to the police station with the victim and FIR was lodged. The
High Court had proceeded on the basis as if PW-2 has resiled from her statement
made during investigation. It is really not so.
has stated about accused going into the house of the victim asking for water
and when PW-1 went inside to take the glass, accused forcibly catching her. The
evidence of PW-1 who was 10 years of age at the time of occurrence and was
about 14 years of age at the time of deposition in Court has categorically and
elaborately described the incident. She has graphically described as to how the
offence was committed.
has stated that while she was alone in the house, the accused who was her neighbour
came to her and asked for a glass of water. But he did not go and wanted more
glass of water. When she turned to take the glass she was caught forcibly by
him and was to made lie on the floor. The accused lifted her skirt and removed
her underwear and thrust his male organ, and committed carnal intercourse
against the order of nature. She cried but nobody heard the same except her
brother who was unable to help, as he was lying in bed because of paralysis.
The accused went away thereafter.
cross-examination no material inconsistency has surfaced except some minor ones
which are but natural. The High Court clearly lost sight of these factors and
has directed acquittal on untenable grounds. It is unsustainable and is set
aside. Orders of the Trial Court and First Appellate Court stand restored. Steps
shall be taken by the concerned Court to take the respondent-accused to custody
to serve remainder of sentence.