Rafiq Vs. State of U.P  INSC 151
(14 August 1980)
REDDY, O. CHINNAPPA (J)
CITATION: 1981 AIR 559 1981 SCR (1) 402 1980
SCC (4) 262
Constitution of India 1950 Art.
136-Concurrent findings of fact Appeal by special leave against conviction for
rape by Lower Courts-Supreme Court when would interfere.
Indian Penal Code 1860, s. 376-Evidence and
proof- Absence of injuries on prosecution-Whether fatal to the
prosecution-Testimony of prosecutrix-Corroboration whether necessary.
The petitioner was convicted on the charge of
committing rape on a middle aged Bal Sewika in a village welfare organisation
who was sleeping a girls school. The trial Court imposed a sentence of 7 years'
rigorous imprisonment. The High Court, confirmed the conviction and sentence.
In the Special Leave Petition to this Court
it was contended on behalf of the petitioner relying on the decision of this
Court in Pratap Mishra & Ors. vs. State of Orissa, A.I.R. 1977 S.C. 1307
that absence of injuries on the person of the victim was fatal to the
prosecution and that corroborating evidence was an imperative component of
judicial credence in rape cases. It was also submitted that the sentence of 7
years was too severe.
Dismissing the petition;
HELD: 1. No interference on the score of
culpability or quantum of punishment is called for. 1405
2. Concurrent findings of fact ordinarily
acquire a deterrent sanctity and tentative finality when challenged in this
Court. The special jurisdiction under Article 136 of the Constitution which is
meant mainly to correct manifest injustice or errors of law of great moment
cannot be invoked in the instant case. [403 H] 3.(i) The facts and
circumstances often vary from case to case, the crime situation and the myriad
psychic factors, social conditions and people's life-styles may fluctuate, and
so, rules of prudence relevant in one fact-situation may be inept in another.
The argument that regardless of the specific circumstances of a crime and
criminal milieu, some strands of probative reasoning which appealed to a Bench
in one reported decision must mechanically be extended to other cases cannot be
accepted. [404 D] (ii) Pratap Misra's case laid down no inflexible axiom of law
on either point. [404 C]
4. 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. [404 E] 403 In the instant case
the testimony of the prosecutrix has commanded acceptance from two courts. A
sensitized judge who sees the conspectus of circumstances in its totality
hardly rejects the testimony of a rape victim unless there are very strong
circumstances militating against its veracity. There is none in this case. The
confirmation of the conviction by the Courts below must therefore, be a matter
of course. [404H, 405B]
CRIMINAL APPELLATE JURISDICTION: Special
Leave Petition (Criminal) No. 950 of 1980.
From the Judgment and order dated 21-9-1979
of the Allahabad High Court in Crl. A. No. 2305/74.
U. S. Prasad for the Petitioner.
The Judgment of the Court was delivered by,
KRlSHNA IYER, J.-This special Leave Petition relates to a conviction and
sentence for an offence of rape. The escalation of such crimes has reached
proportions to a degree that exposes the pretensions of the nation's spiritual
leadership and celluloid censorship, puts to shame our ancient cultural
heritage and - humane claims and betrays a vulgar masculine outrage on human
rights of which woman's personal dignity is a sacred component. We refuse
special leave and briefly state a few reasons for doing so.
Draupadi, a middle-aged Bal Sewika in a
village welfare organization' was sleeping in a girls' school where she was
allegedly raped by Rafiq, the petitioner, and three others.
The offence took place around 2.30 a.m. On
August 22/23, 1971, and the next morning the victim related the incident to the
Mukhiya Sewika of the village. A report was made to the Police Station on
August 23. 1971 at mid-day. The investigation that followed resulted in a
charge-sheet, a trial and, eventually, in a conviction based substantially on
the testimony of the victim. Although some of the witnesses. tell-tale fashion.
shifted their loyalties and betrayed the prosecution case, the trial court'
entered a finding of guilt against the appellant, giving the benefit of doubt
to the other three obscurely. A 7-year sentence of rigorous imprisonment was
awarded as justly merited. having regard to the circumstances. The appeal
carried to the High Court proved unsuccessful but, undaunted, he petitioner has
sought leave to appeal to this Court.
Concurrent findings of fact ordinarily
acquire a deterrent sanctity and tentative finality when challenged in this
Court and we rarely invoke the special jurisdiction under Art. 136 of the
Constitution which is meant mainly to correct manifest injustice or errors of
law of great moment.
By these substantial canons the present
petition for leave has not even a dog's chance.
404 Counsel contended that there was absence
of corroboration of the testimony of the prosecutrix, that there was absence of
injuries on the person of the woman and so the conviction was unsustainable,
tested on the touchstone of case-law. None of these submissions has any
substance and we should, in the ordinary course, have desisted from making even
a speaking order but counsel cited a decision of this Court in Pratap Misra
& Ors. v. State of Orissa and urged that absence cf injuries on the person
of the victim was fatal to the prosecution and that corroborative evidence was
an imperative component of judicial credence in rape cases.
We do not agree. For one thing, Pratap
Misra's case (supra) laid down no inflexible axiom of law on either point. The
facts and circumstances often vary from case to case. the crime situation and
the myriad psychic factors, social conditions and people's life-styles may
fluctuate, and so, rules of prudence relevant in one fact-situation may be
inept in another. We cannot accept the argument that regardless of the specific
circumstances of a crime and criminal milieu, some strands of probative
reasoning which appealed to a Bench in one reported decision must mechanically
be extended to other cases. Corroboration as a condition for judicial reliance
on the testimony cf 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.
There are several "sacred cows" of
the criminal law in Indo-Anglian jurisprudence which are superstitious
survivals and need to be re-examined. When rapists are revelling in their
promiscuous pursuits and half of humankind-womankind- is protesting against its
hapless lot, 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
405 "A rape! a
Yes, you have ravish'd justice;
Forced her to do your pleasure.
Hardly a sensitized judge who sees the
conspectus of circumstances in its totality and rejects the testimony of a rape
victim unless there are very strong circumstances militating against is
veracity. None we see in his case, and confirmation of the conviction by the
courts below must, therefore, be a matter of course. Judicial response to human
rights cannot be blunted by legal bigotry.
The case before us occurred in 1971 and is
drawing to a close in 1980. What a pity ! Now that there is considerable public
and parliamentary attention to the violent frequency of rape cases it is time
that the court reminds the nation that deterrence comes more effectively from
quick investigations, prompt prosecutions and urgent finality, including
special rules of evidence and specialised agencies for trial. Mechanical
increase of punitive severity, without more, may yield poor dividends for women
victims. In Dr.
Johnson's time public hanging for
pick-pocketing was prevalent in England but as Dr. Johnson sardonically noted
pick-pockets were busy plying their trade among crowds gathered to see some
pick-pocket being publicly executed.
Dr. Johnson's wit is our wisdom. The strategy
for a crime- free society is not draconian severity in sentence but
institutional sensitivity, processual celerity and prompt publicity among the
concerned community. "Lawlessness is abetted by a laggard, long-lived,
lacunose and legalistic litigative syndrome rather than by less harsh
provisions in the Penal Code". The focus must be on the evil, not its
Counsel submitted that a 7-year sentence was
too severe. No, because, as we have stated earlier, rape for a woman is
deathless shame and must be dealt with as the gravest crime against human
dignity. No interference on the score of culpability or quantum of punishment is
called for in the circumstances.
We refuse special leave.
N.V.K. Petition dismissed.