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CASE NO.:

Appeal (crl.) 547 of 1997

PETITIONER:

State of Punjab

RESPONDENT:

Ramdev Singh

DATE OF JUDGMENT: 17/12/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

Sexual 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 \026 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.

Rape 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.

It is 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.

The 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').

We do 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.

But 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:

On 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

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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.

As the 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.

According 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.

In 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.

Merely because of doctor's hypothetical and opinionative evidence

that the victim was accustomed to sexual intercourse, prosecution

version of rape was not to be discarded.

In 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.

Residually, 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.

Delay 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

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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.

The 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.

Further, 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.

Mere 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 victim's evidence.

Learned 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.

Another 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

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her employment as a maid servant.

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 do.

As was 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.

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."

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.

Looked 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.

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The accused shall surrender forthwith to serve remainder of sentence, if

any. The appeal is allowed to the extent indicated.