Rajinder
@ Raju Vs. State of H.P. [2009] INSC 1176 (7 July 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.670
OF 2003 Rajinder @ Raju .....Appellant State of H.P. ....Respondent JUDGEMENT
R.M. LODHA, J.
1.
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 assault - it is often destructive of the
whole personality of the victim. The murderer destroys the physical body of his
victim. Rapist degrades the very soul of the helpless female. [State of Punjab
vs. Gurmit Singh and Others1] 2. First, a brief reference to the prosecution
case.
2.
The prosecutrix (name with-held by us), a young girl about 18
years of age, was staying with her parents in village Kothi, district Bilaspur,
(H.P.). The accused, Rajinder@Raju, resident of village Duhak, district
Bilaspur, had taken contract for laying G.I. Pipelines in 1 (1996) 2 SCC 384
village Kothi near the residence of the prosecutrix. In that connection, he
used to store his material in the house of prosecutrix' parents. On January 16,
1996, prosecutrix had some throat pain.
When the
accused came to the house of the prosecutrix and came to know that the
prosecutrix has been suffering from throat pain, he suggested to the mother of
the prosecutrix that his cousin at Ghumarwin was a doctor and if permitted, he
could show the prosecutrix to his cousin. The mother of the prosecutrix agreed.
The
accused took the prosecutrix on his scooter at about 3.00 P.M.
Instead
of taking the prosecutrix to Ghumarwin, he took her to Jablu stating that he
had to collect the rent from his tenants. From Jablu, the accused took
prosecutrix to Berthin. The accused reached Berthin at about 8.00 - 8.30 P.M.
alongwith the prosecutrix. At Berthin, the accused bought some sweets and told
the prosecutrix that he would take her to his house as it was dark. The accused
instead of taking her to his house, took the scooter to some kachha road and
made her to get down from the scooter. After spreading his pattu on the ground
and gagging the prosecutrix mouth made her lie down; untied her salwar and
committed the sexual intercourse with her forcibly. The accused then left her
leaving behind his pattu and torch. After the accused had left, the prosecutrix
saw some light from a house down the road. She walked upto that house and 2
told the lady, Smt. Bimla Devi, (PW-2) residing there, of the incident. The
prosecutrix stayed overnight in the house of PW-2.
PW-2 told
the whole incident to her husband (PW-3). In the morning PW-3 called villagers;
the statement of prosecutrix was recorded by one of the villagers viz., Roop
Singh (PW-4). The FIR was then registered at the Ghumarwin Police Station. The
prosecutrix and the accused were got medically examined. The Investigating
Officer took the apparel of the prosecutrix in his possession and the same was
sent for chemical analysis alongwith vaginal slide and underwear of the
accused. During the investigation, it also transpired that the prosecutrix
belonged to Scheduled Caste. After completion of the investigation, a
charge-sheet was filed against the accused under Sections 366 and 376 IPC and
Section 3(XII) of Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989.
3.
The Sessions Judge, Bilaspur, framed a charge against the accused
for the aforesaid offences. The prosecution examined the prosecutrix (PW-1),
Smt. Bimla devi (PW-2), Suram Singh (PW- 3), Roop Singh (PW-4), Smt. Sheela
Devi (PW-5), Prem Singh (PW- 6), Dr.S.C. Kaushal (PW-7), Police Officials (PWs
8 to 12) and Dr. Savita Mehta (PW-13).
4.
The Statement of the accused under Section 313 Cr.P.C. was
recorded. He denied his involvement in the crime and set up the defence that
the case against him has been engineered at the behest of PW-2, PW-3 and PW-6.
He also stated in his statement under Section 313 Cr.P.C. that mother of the
prosecutrix (PW-5) had taken timber worth Rs. 5,000/- and when he demanded
payment of due amount, PW-5 demanded Rs. 50,000/- from him and said that after
payment of the aforesaid amount only she would finish the case against him.
5.
The Sessions Judge, Bilaspur on consideration of the evidence on
record, acquitted the accused of the charge under Section 3(XII) of Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 but convicted
the accused under Sections 366 and 376 IPC. The accused was sentenced to
rigorous imprisonment for seven years and to pay a fine of Rs. 10,000/- with
default stipulation for the graver offence under section 376 IPC only.
6.
The accused challenged his conviction and sentence before the High
Court of Himachal Pradesh. The learned Single Judge dismissed the appeal
preferred by the accused. Hence the present appeal by special leave.
7.
Mr. Ashok Mehta, the learned Counsel for the accused did not
dispute before us that the accused had sexual intercourse with the prosecutrix
at the time and place of occurrence. The thrust of his contention was that the
accused did not commit the alleged act forcibly; rather such act was committed
by the accused with the consent and free will of the prosecutrix. The aforesaid
contention was argued before the High Court as well and the following
circumstances were pressed into service viz., that the prosecutrix at the
relevant time was 18 years of age and thus capable of consenting to the act of
sex; that the absence of injury/injuries on the person of the prosecutrix is
suggestive of her consent which is further fortified by the fact that the act
of sex is said to have been done after the accused had laid the pattu on the
ground and that the prosecutrix accompanied the accused voluntarily from the
very beginning; and that the aspect of the accused having threatened the prosecutrix
at the point of dagger is palpably false as this does not find mention in the
FIR.
8.
Since the act of sexual intercourse by the accused on the
prosecutrix is admitted, we do not deem it necessary to consider the medical
evidence at great length. Suffice it to say that Dr. Savita (PW-13) examined
the prosecutrix on January 18, 1996. At that time her clothes were found soiled
with blood. PW-13 5 opined that sexual intercourse was committed with the
prosecutrix within 48 hours of her examination. She also conducted the vaginal
test to ascertain the presence of spermatozoa. According to PW-13, the
prosecutrix was not habitual to sexual intercourse and, in her opinion, the
prosecutrix was sexually assaulted for the first time before she examined her.
She was not in a position to opine whether the sexual act was with consent of
the prosecutrix or it was committed forcibly. In the circumstances, it admits
of no doubt that the accused had sexual intercourse with the prosecutrix on the
date and place of occurrence. The core area of debate is whether such act was
committed with the consent of the prosecutrix or not.
9.
The prosecutrix in her deposition has been categorical, clear and
unequivocal that the accused committed forcible sexual intercourse with her.
She testified:
"While
going, the accused stopped the scooter at a lonely place on the road and
thereafter he dragged me by holding me from my arm at some distance from the
road and gagged my mouth and after placing `pattu' on the ground, he untied my
salwar and committed the sexual intercourse with me. I had felt a pain in my
private part and the blood started oozing."
10.
It is true that in her cross examination she stated that the
accused had threatened her with a dagger before Jablu when she refused to go
with him and this aspect was neither stated in her statement under Section 161
Cr.P.C. nor in the FIR but does this 6 contradiction make her evidence
unreliable. We do not think so. The trial court as well as High Court has
accepted her evidence. We find no justifiable reason to take a different view.
11.
The circumstances which have been pointed out by the learned
counsel neither individually nor collectively lead to any plausible inference
that the sexual intercourse with the prosecutrix by the accused was done with
her tacit consent.
12.
The learned counsel for the appellant relied upon few decisions of
this Court, namely, (1) Pratap Misra and Ors. vs. State of Orissa2, (2)
Sadashiv Ramrao Hadbe vs. State of Maharashtra and Anr.3,(3) Narayan alias
Naran vs. State of Rajasthan4 and (4) Radhu vs. State of Madhya Pradesh5.
13.
That the accused is not bound by his pleading and that it is open
to him to prove his defence even from the admissions made by the prosecution
witness or the circumstances proved in the case admits of no doubt. However, so
far as decision in the case of Pratap Misra is concerned, this Court on
consideration of the evidence let therein held that the appellants had sexual
intercourse with the prosecutrix with her tacit consent and the connivance of
her husband. This Court held 2 (1977) 3 SCC 41 3 (2006) 10 SCC 92 4 (2007) 6
SCC 465 5 (2007) 12 SCC 57 7 that there was no material at all to prove the
allegation of rape. Even the medical evidence therein did not support the
prosecution case. We are afraid the decision of this Court in Pratap Misra
turned on its own facts and is of no help to the appellant herein.
14.
In Sadashiv Ramrao Hadbe, this Court while reiterating that in a
rape case, the accused could be convicted on the sole testimony of prosecutrix
if it is capable of inspiring the confidence in the mind of the Court, put a
word of caution that the Court should be extremely careful while accepting the
testimony when the entire case is improbable and unlikely to have happened.
This is what has been stated:
"9.
It is true that in a rape case the accused could be convicted on the sole
testimony of the prosecutrix, if it is capable of inspiring confidence in the
mind of the court. If the version given by the prosecutrix is unsupported by
any medical evidence or the whole surrounding circumstances are highly
improbable and belie the case set up by the prosecutrix, the court shall not
act on the solitary evidence of the prosecutrix. The courts shall be extremely
careful in accepting the sole testimony of the prosecutrix when the entire case
is improbable and unlikely to happen."
15.
It is pertinent to notice that in Sadashiv Ramrao Hadbe, this
Court found that the prosecution evidence suffered from many contradictions and
the whole incident seemed to be highly improbable. It is true that in Sadashiv
Ramrao Hadbe, this Court observed that the absence of injuries on the body of
the prosecutrix improbabilise the prosecution version but the aforesaid
observation 8 has to be understood in the context of the insufficiency of
evidence even to establish sexual intercourse. This is what this Court said:
"10.
In the present case there were so many persons in the clinic and it is highly
improbable that the appellant would have made a sexual assault on the patient
who came for examination when large number of persons were present in the near
vicinity. It is also highly improbable that the prosecutrix could not make any
noise or get out of the room without being assaulted by the doctor as she was
an able-bodied person of 20 years of age with ordinary physique."
The
decision in Sadashiav Ramrao Hadbe does not help the accused at all.
16.
In the Case of Narayan, it was held by this Court that the
evidence of prosecutrix was full of contradictions. In the back-drop of the
allegations made in the FIR that the accused committed rape with prosecutrix
thrice, this Court held that absence of injuries either on her body or private
parts ruled out the prosecution case of forcible sexual intercourse. Suffice it
to say that the case of Narayan turned on its own facts. Insofar as legal
position is concerned, this Court reiterated that evidence of prosecutrix can
alone sustain conviction of the accused.
17.
This Court in Radhu considered the matter thus:
"12.
Dr. Vandana (PW 8) stated that on examination of Sumanbai, she found that her
menstrual cycle had not started and pubic hair had not developed, and that her
hymen was ruptured but the rupture was old. She stated that there were no
injuries on her private parts and she could not give any opinion as to whether
any rape had 9 been committed. These were also recorded in the examination
report (Ext. P-8). She, however, referred to an abrasion on the left elbow and
a small abrasion on the arm and a contusion on the right leg of Sumanbai. She further
stated that she prepared two vaginal swabs for examination and handed it over
along with the petticoat of Sumanbai to the police constable, for being sent
for examination. But no evidence is placed about the results of the examination
of the vaginal swabs and petticoat.
Thus, the
medical evidence does not corroborate the case of sexual intercourse or rape.
13. We
are thus left with the sole testimony of the prosecutrix and the medical
evidence that Sumanbai had an abrasion on the left elbow, an abrasion on her
arm and a contusion on her leg. But these marks of injuries, by themselves, are
not sufficient to establish rape, wrongful confinement or hurt, if the evidence
of the prosecutrix is found to be not trustworthy and there is no
corroboration.
14.
Lalithabai says that when Sumanbai did not return, she enquired with Gyarsibai.
Sumanbai also says that she used to often visit the house of Gyarsibai. She
says that Radhu's parents are kaka and baba of her mother and Radhu was her
maternal uncle. The families were closely related and their relationship was
cordial. In the circumstances, the case of the prosecution that Gyarsibai would
have invited Sumanbai to her house to abet her son Radhu to rape Sumanbai and
that Gyarsibai was present in the small house during the entire night when the
rape was committed, appears to be highly improbable in the light of the
evidence and circumstances.
15. The
FIR states that one Dinesh was sent by Lalithabai to fetch her husband.
Lalithabai and Mangilal have stated that they did not know anyone by the name
Dinesh.
Sumanbai
stated in her evidence that on 29-1-1991, as her father was away, her
brother-in-law went to bring back her father, that the name of her
brother-in-law is Ramesh, but the SHO wrongly wrote his name as
"Dinesh". But none else mentioned about such a mistake. Neither
Ramesh nor Dinesh was examined.
16. The
evidence of the prosecutrix when read as a whole, is full of discrepancies and
does not inspire confidence.
The gaps
in the evidence, the several discrepancies in the evidence and other
circumstances make it highly improbable that such an incident ever took place.
The learned counsel for the respondent submitted that the defence had failed to
prove that Mangilal, father of the prosecutrix was indebted to Radhu's father
Nathu and consequently, defence of false implication of the accused should be
rejected. Attention was invited to the denial by 10 the mother and father of
the prosecutrix of the suggestion made on behalf of the defence that Sumanbai's
father Mangilal was indebted to Radhu's father Nathu and because Nathu was
demanding money they had made the false charge of rape to avoid repayment. The
fact that the defence had failed to prove the indebtedness of Mangilal or any
motive for false implication does not have much relevance as the prosecution
miserably failed to prove the charges. We are satisfied that the evidence does
not warrant a finding of guilt at all, and the trial court and the High Court
erred in returning a finding of guilt."
18.
Again in the case of Radhu, the evidence of prosecutrix was found
full of discrepancies and not worthy of credence. The medical evidence also did
not corroborate the case of sexual intercourse or rape. In Radhu this Court
reiterated the legal position thus:
"6.
It is now well settled that a finding of guilt in a case of rape, can be based
on the uncorroborated evidence of the prosecutrix. The very nature of offence
makes it difficult to get direct corroborating evidence. The evidence of the
prosecutrix should not be rejected on the basis of minor discrepancies and
contradictions. If the victim of rape states on oath that she was forcibly
subjected to sexual intercourse, her statement will normally be accepted, even
if it is uncorroborated, unless the material on record requires drawing of an
inference that there was consent or that the entire incident was improbable or
imaginary. Even if there is consent, the act will still be a "rape",
if the girl is under 16 years of age. It is also well settled that absence of
injuries on the private parts of the victim will not by itself falsify the case
of rape, nor construed as evidence of consent."
It has,
thus, been held in Radhu that absence of injuries on the private parts of the
victim cannot be construed as evidence of consent.
11 19. In
State of Rajasthan vs. N.K. 6, this Court held thus:
19.
"19. For the offence of rape as defined in Section 375 of the
Indian Penal Code, the sexual intercourse should have been against the will of
the woman or without her consent. Consent is immaterial in certain
circumstances covered by clauses thirdly to sixthly, the last one being when
the woman is under 16 years of age. Based on these provisions, an argument is
usually advanced on behalf of the accused charged with rape that the absence of
proof of want of consent where the prosecutrix is not under 16 years of age
takes the assault out of the purview of Section 375 of the Indian Penal Code.
Certainly consent is no defence if the victim has been proved to be under 16
years of age. If she be of 16 years of age or above, her consent cannot be
presumed; an inference as to consent can be drawn if only based on evidence or
probabilities of the case.
The
victim of rape stating on oath that she was forcibly subjected to sexual
intercourse or that the act was done without her consent, has to be believed
and accepted like any other testimony unless there is material available to
draw an inference as to her consent or else the testimony of prosecutrix is
such as would be inherently improbable."
20.
This Court, in the case of Gurmit Singh1, made the following
weighty observations in respect of evidence of a victim of sexual assault:
"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 6 (2000) 5 SCC 30 12 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 on a 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 lest 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."
21.
In the context of Indian Culture, a woman - victim of sexual
aggression - would rather suffer silently than to falsely implicate somebody.
Any statement of rape is an extremely humiliating experience for a woman and
until she is a victim of sex crime, she would not blame anyone but the real
culprit. While appreciating the evidence of the prosecutrix, the Courts must
always keep in mind that no self-respecting woman would put her honour at stake
by falsely alleging commission of rape on her and, therefore, ordinarily a look
for corroboration of her testimony is unnecessary and uncalled for. But for
high improbability in the prosecution case, the conviction in the case of sex
crime may be based on the sole testimony of the prosecutrix. It has been
rightly said that corroborative evidence is not an imperative component of
judicial credence in every case of rape nor the absence of injuries on the
private parts of the victim can be construed as evidence of consent. Insofar as
the present case is concerned, the circumstances referred to and pointed out by
the learned counsel are neither sufficient nor do they justify discarding the
evidence of the prosecutrix. There is nothing on record that creates any
doubt/disbelief or a suspicion about the evidence of the prosecutrix.
In a
case, such as this, where the prosecutrix was misrepresented by the accused
that he would show her to his cousin (a doctor) as 14 she was suffering from
some throat pain and she accompanied him but the accused took her to other
places and when it became dark, took her to a lonely place and committed sexual
intercourse, the prosecutrix was not expected to put any resistance lest her
life would have been in danger. In the facts and circumstances, the absence of
injuries on the person of the prosecutrix does not lead to an inference that
she consented for sexual intercourse with the accused. The young girl became
victim of lust of the accused who was more than double her age and yielded to
sexual intercourse against her will.
22.
In all, we find that the judgment of the High Court affirming the
judgement of the trial court convicting the accused under Sections 366 and 376
IPC does not suffer from any legal flaw. The sentence awarded to the appellant
does not call for any interference by this Court. The appeal having no merit
must fail and is dismissed. The appellant will surrender to his bail bond and
will be taken into custody to serve out the sentence as awarded.
......................J (V.S.Sirpurkar)
......................J (R.M. Lodha)
New Delhi,
July 7, 2009.
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