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THE

STATE OF PUNJAB

v.

GURMIT SINGH ANR ORS.

JANUARY 16, 1996

[DR. A.S. ANAND AND S. SAGHIR AHMAD, JJ.]

Indian Penal Code 1860---Sections 363, 366, 368 and 376-Abduction,

Wrongful confinement aiul rape of a minor girl-Acquittal by Trial Court

disbelieving the prosecutrix

and discarding medical

evidence--Held-Prosecutrix

reliable and truthful witness-corroboration by medical evidence and chemical

examination report though no such corroboration is necessary to rely upon the

testimony

of the prosecutrix.

Criminal

Procedure Code 1973--Section 154-Delay in.filing FIR-Time

spent to secure justice through village panchayats and consultations between

D the.family members-Held, generally a complaint is lodged in a sexual offence

after a cool thought since the incidence concerns the reputation ~f the victim

and honour of her .family-Therefore delay is justified.

E

Criminal Procedure Code 1973--Sections 327 (2) and (3)--Sexual

o.ffences--/n camera trial should be the rule and open court trial an exception.

According to the prosecution, the Prosecutrix aged around 15 years,

was going to her uncle's home after giving her matriculation examination

and was abducted

by the respondents. They took her to a tubewell kotha

and made

her drink liquor ignoring her protest, telling her that it was only

F fruit juice. Thereafter all the three respondents had sexual intercourse

with

her without her consent and against her will. Next day, in the mo ruing

the prosecutrix was dropped

by the respondents at the same place from

where she was abducted. The prosecutrix after giving her examination on

that day returned

to her house and told

P. W. 7 (Mother) her traumatic

G

experience. P.W. 6 (Father) learnt about it through P.W. 7. A compromise

was tried through the Sarpanch of his village and the Sarpanch of the

village where the Respondents were living. When compromise talks failed,

P.W. 6 and the prosecutrix filed an FIR. The prosecutrix was sent for

medical examination.

All the three respondents were arrested.

H The trial court acquitted all the respondents disbelieving the evi-

532

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STATE v. GURMIT SINGH 533

dence of prosecutrix on the ground that she was not a reliable witness and

A

was attempting to shield her own conduct by indulging in falsehood to

implicate the respondents. The trial court was of the opinion that

it was

a false case and that the accused had been implicated

on account of enmity.

Hence this appeal.

Allowing the appeal, this Court

B

HELD : 1. The prosecutrix has made a truthful statement and the

prosecution has established the case against the respondents beyond every

reasonable doubt. The trial court

fell in error in acquitting them. The

appreciation of evidence

by the trial court is not only unreasonable but C

perverse. [552-B)

2. Even though no corroboration is necessary to rely upon the

testimony of the prosecutrix, yet sufficient corroboration from the medical

evidence and the chemical examination report

is available on the record.

Her statement has been fully supported by the evidence of

her father D

(p.w.6) and her mother (p.w.7). The unchallenged fact that it was the

prosecutrix

who had led the investigating officer to the Kotha of the

tubewell where she had been raped, lent a built-in-assurance that the

charge levelled by her was

"genuine" rather than "fabricated" because

it is no one's case that she knew the first respondent earlier or that she E

had ever seen or visited the Kotha at his tubewell. [547-D-F)

' 3. Delay in lodging FIR in sexual offences can be due to variety of

> reasons particularly the recluctance of the prosecutrix or her family

members

to go to the police and complain about the incident which

concerns the reputation of the prosecutrix

and the honour of the family.

It is only after giving it a cool thought that a complaint of sexual offence

is generally lodged. [543-A-B)

F

4. If the investigating officer did not conduct the investigation

properly

or was negligent in not being able to trace out the driver of the

car, that can not become a ground

to discredit the testimony of the

prosecutrix. The prosecntrix had

no control over the investigating agency

and the negligence of the investigating officer would not affect the

credibility of the statement of the prosecutrix. [542-F-G)

G

5. There is evidence on record to establish that on the date of the H

534 SUPREME COURT REPORTS [1996] l S.C.R.

A occurrence, the prosecutrix was below 16 years of age. The prosecutrix

herself and her parents deposed

at the trial that her age was less than 16

years on the date of occurrence. Their evidence was

suppOT!ed by the

birth certificate Ex. P.J. Both PW. 6 and PW. 7, the father and mother

of the prosecutrix respectively, explained that they had changed their

B daughter's name as according

to the Holy Guru Granth

Sahib her name

was required

to start with the word

"Chhachha" and in the school leaving

certificate her name was correctly given. There·is nothing to disbelieve

the explanation given

by these witnesses in that behalf.

[550-C-E]

6. There is no proof of the existence of any enmity between the

C parties

as alleged by the respondent to falsely implicate him on a charge

of rape. Even if it be assumed for the sake of argument that there was

some litigation, it could hardly be a ground for a father

to put forth his

·daughter to make a wild allegation of rape against the son of the opposite

party, with a

view to take revenge. It defies human probabilities. No

D father conld stoop so low as to bring forth a false charge of rape on his

nnmarried minor daughter with a

view to take revenge on account of

some pending civil litigation. Again, if the accused could

be falsely

involved on account of that enmity,

it was equally possible that the

accused could have sexually assaulted the prosecutrix

to take revenge for

E

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after all, enmity is a double edged weapon, which may be used for false

implication as

well as to take revenge. [549-A-C]

7.1. In view of the above, the judgment of the Trial Court is set

aside and all the respondents are convicted for

offence~ punishable under

Sections 363, 366, 368 and 376 IPC. [552-C]

7.2. So far as the sentence is concerned, the court has to strike a

just balance. In this case, the occurrence took place on 30.3.1984 (more

than

11 years ago). The respondents were aged between 21-24 years of

age

at the time when the offence was committed. All the respondents as

well as the prosecutrix must have by now got married and settled down

in life, which needs to be taken into consideration while imposing

alJ

appropriate sentence on the respondents. For the offence under Section

376 IPC each of the respondent~ are sentenced to undergo five years RI

and to pay a fine of Rs. 5000 and in default of payment of fine to undergo

1 year RI each. For the offence under Section 363 IPC they are sentenced

H to under go three years RI each but no separate sentence for the offence

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STATE "· GURMIT SINGH 535

under Sections 366/368 IPC is imposed. The substantive sentences of A

imprisonment shall, however, run concurrently. [552-C-F]

8. The evidence of a victim of sexual assault stands almost at par

with the evidence of an injured witness and

to an extent is even more

reliable. 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. 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

any· 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

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justice a casualty. [544-H; 545-B-D] D

State of Maharastra v. Chandra Prakash Kewalchand Jain,

[1990] 1

sec 550, relied on.

9. The courts are expected to use self-restraint while recording E

findings in cases which have larger repercussions

so far as the future of

the victim of a sex crime is concerned and even wider implications on

the society as a whole where the victim of crime is discouraged, the

criminal encouraged and in turn crime gets rewarded.

No stigma, like

the one, as cast in the present case, should be cast against the prosecutrix

by the courts, for after

all it is the accused and not the victim of sex crime

who is on trial in the court. [551-F-G; 552-A]

10. Provisions under Sections 327 (2) and (3) of Cr. P.C. are in the

nature of exception to the general rule of an open trial. They cast a duty

F

on the court to conduct the trial of rape cases etc. invariably ''in camera''. G

The courts should, as far as possible, avoid disclosing the name of the

prosecutrix

in their

orders to save further embarrassment to the victim of

sex crime. The anonymity of the-l"ictims of the crime must be maintained

as far as possible throughout. Trial of rape cases in camera should be the

rule and open trial in such cases an exception. [555-A, C, G-H; 556-B] H

536 SUPREME COURT REPORTS [1996] 1 S.C.R.

A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 616

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of 1985.

From the Judgment and Order dated 1.6.85 of the Additional Judge,

Special Court Ludhiana in Sessions Case No. 69151 of 1984 & Trial No. 56

of 1985.

Ms. Arnita Gupta, R.S. Suri and R.L. Deo for the Appellant.

Ujagar Singh, Davender Verma and Ms. Naresh Bakshi for the

Respondent Nos.

1-2.

C.S. Ashri for the Respondent No. 3.

The Judgment of the Court was delivered by

DR. ANAND, J. This appeal under Section 14 of the Terrorist Affected

Areas (Special Courts) Act, 1984 is directed against the judgment and order

of Additional Judge, Special Court, Ludhiana dated 1.6.1985 by which the

D respondents were acquitted of the charge of abduction and rape. For what

follows, the judgment impugned in this appeal, presents a rather disquietening

and a disturbing feature. It demonstrates lack of sensitivity on the part of the

court

by casting unjustified stigmas on a prosecutrix aged below 16 years in

a rape case,

by overlooking human psychology and behavioural probabilities.

An intrinsically wrong approach while appreciating the testimonial potency

E

of the evidence of the prosecutrix has resulted in miscarriage of justice. First

a brief reference to the prosecution case :

The prosecutrix (narue withheld by us), a young girl below 16 years

of age, was studying in the

10th class at the relevant time in Government

High School, Pakhowal. The matriculation examinations were going on at

F the material time. The examination centre of the prosecutrix was located in

t.he Boys High School, Pakhowal. On 30th March, 1984 at about 12.30. p.m.

after taking her test in Geography, the prosecutrix

was going to the house

of her maternal uncle, Darshan

Singh, and when she had covered a distance

of about 100 karmas from the school a blue ambassador car being driven by

G a sikh youth aged 20/25 years came from behind. In that car Gurmit Singh,

Jagjit Singh @ Bawa and Ranjit Singh accused were sitting. The car stopped

near

her. Ranjit

Singh accused carue out of the car and caught hold of the

prosecutrix from her arm and pushed her inside

the car. Accused Jagjit

Singh

@ Bawa put his hand on t~e mouth of the'prosecutrix while Gurmit Singh

accused threatened the prosecutrix, that in case she raised an alarm she

H would be done to death. All the three accused respondents herein drove her

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STATE v. GURMIT SINGH [DR. ANAND, J] 537

to the tubewell of Ranjit Singh accused. She was taken to the 'kotha' of the A

Tubewell. The driver of the car after leaving the prosecutrix and the three

accused persons there went away with

the car. In the said kotha Gurmit

Singh

compelled the prosecutrix to take liquor, misrepresenting to her that it was

i.uice. Her refusal did not have any effect and she reluctantly consumed

liquor. Gurmit Singh then got removed her salwar and also opened her shirt. B

She was made to lie on a cot in the kotha while his companions guarded the

kotha from outside. Gurmit Singh cominitted rape upon her. She raised roula

as she was suffering pain but Gurmit Singh threatened to kill her if she

persisted

in raising alarm. Due to that threat, she kept quiet. After Gurmit Singh had committed rape upon her, the other two accused, who were earlier

guarding the kotha from outside, came in one

by one, and committed rape

upon

her.

Jagjit Singh alias Bawa committed rape on her after Gurmit Singh

and thereafter Ranjit Singh committed rape on her. Each one of the accused

committed sexual intercourse with the prosecutrix forcibly and against her

c

will. They all subjec:ed her to sexual intercourse once again during the night

against her will. Next morning

at about

6.00 a.m., the same car arrived at D

the tubewell kotha of Ranjit Singh and the three accused made her to sit in

that car and left her near the Boys High School, Pakhowal near about the

place from where she had been abducted. The prosecutrix had

to take her

examination in the subject

of Hygiene on that date.

She, after taking her

examination in Hygiene, reached her village Nangal-kalan, at about noon E

time and narrated the entire story

to her mother,

Smt. Gurdev Kaur, PW 7.

Her father Trilok Singh PW 6 was not present in the house at that time. He

returned from his work late in the evening. The mother

of the prosecutrix, Smt. Gurdev Kaur PW 7, narrated the episode to her husband Trilok Singh

PW 6 on his arrival. Her father straightaway contacted Sarpanch Joginder F

Singh of the village. A panchayat was convened. Matter was brought to the

notice

of the

Sarpanch of village Pakhowal also. Both the Sarpanches, tried

to effect a compromise on 1.4.1984 but since the panchayat could not give

any justice or relief to the prosecutrix, she alongwith her falher proceeded

to the police station Raikot to lodge a report about the occurrence with the

police. When they reached at

the bus adda of village

Pakhowal, the police

met them and she made her statement, Ex. PD, before AS! Raghubir Chand

PW who made an endorsement, Ex. PD/I and sent the statement Ex. PD of

the prosecutrix to the police station Raikot for registration of the case on the

G

basis of which formal FIR Ex. PD/2 was registered by SI Malkiat Singh. AS!

Raghubir Chand then took the prosecutrix and her mother to the primary H

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538

SUPREME COURT REPORTS [1996] l S.C.R.

health centre Pakhowal for medical examination of the prosccutrix. She was

medically examined

by lady doctor Dr. Sukhwinder Kaur,

PW 1 on 2.4.84,

who found that the hymen

of the prosecutrix was lacerated with fine rediate

tears, swollen and painful. Her pubic hair were also found mated. According

to

PW! intercourse with the prosecutrix could be "one of the reasons for

laceration which I found

in her

hymen". She went on to say that the

possibility could not

be ruled out that the prosecutrix

"was not habitual to

intercourse earlier."

During the course of investigation, the police took into possession a

sealed parcel handed over

by the lady doctor containing the salwar of the

prosecutrix alongwith 5 slides

of vaginal smears and one sealed phial

containing pubic hair

of the prosecutrix, vide memo Ex.

PK. On the pointing

out

of the prosecutrix, the investigating officer prepared the rough site plan

Ex.

PF, of the place from where she had been abducted. The prosecutrix also

had led the investigating officer

to the tubewell kotha of Ranjit

Singh where

she had been wrongfully confined and raped. The investigating officer

prepared a rough site plan of the Kotha Ex. PM. A search was made for the

accused on 2.4.1984 but they were not found. They were also not traceable

on 3.4.1984, inspite

of a raid being conducted at their houses by the

ASL

On 5.4.1984 Jagjit Singh alias Bawa and Ranjit Singh were produced before

the investigating officer

by Gurbachan

Singh PW 8 and were placed under

arrest. Both Ranjit Singh and Jagjit Singh on the same day were produced

before

Dr. B.L. Bansal

PW 3 for medical examination. The doctor opined

that both the accused were fit

to perform sexual intercourse. Gurmit

Singh

respondent was arrested on 9.4.1984 by SI Malkiat Singh. He was also got

medically examined on 9.4.1984 from

Dr. B.L. Bansal

PW 3 who opined that

Gurmit Singh was also fit to perform sexual intercourse. The sealed parcels

containing the slides

of vaginal smears, the pubic hair and the salwar of the

prosecutrix, were sent

to the chemical examiner. The report of the chemical

examiner revealed that semen

was found on the slides of vagnial smear

though

no spermatozoa was found either on the pubic hair or the salwar of

the prosecutrix.

On completion of the investigation, respondents were

challaned and were charged for offences under Sections 363,366, 368 and

376 !PC.

With a view to connect the respondents with the crime, the prosecution

examined Dr. Sukhwinder Kaur, PW!; prosecutrix, PW 2; Dr. B.L. Bansal,

PW 3; Tirlok Singh, father of the prosecutrix, PW 6; Gurdev Kaur, mother

of the prosecutrix, PW 7; Gurbachan Singh, PW 8; Malkit Singh, PW 9 and

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STATE v. GURMIT SINGH [DR. ANAND, J.] 539

SI Raghubir Chand PW 10, besides, some formal witnesses like the A

draftsman etc. The prosecution tendered in evidence affidavits of some of the

constables, whose evidence was of a formal nature

as also the report of the

chemical examiner, Ex.

PM. In their statements recorded under Section 313

Cr. P.C. the respondents denied the prosecution allegations against them.

Jagjit Singh respondent stated that it was a false case foisted on him on B

account of his enmity with the Sarpanch of village Pakhowal. He stated that

he had married a Canadian girl in· the village Gurdwara, which was not liked

to

by the sarpanch and therefore the sarpanch was hostile to him and had got

him falsely implicated

in this case. Gurmit

Singh -respondent took the stand

that he had been falsely implicated in the case on account

of enmity between

his father and Trilok

Singh, PW6, father of the prosecutrix. He stated that

there

was long standing -litigation going on between his father and the father

c

of the prosecutrix and their family members were not even on speaking

terms with each other. He went

on to add that on 1.4.1984 he was given

beating by Tirlok

Singh, PW 6, on grounds of suspicion that he might have

instigated some persons to abduct his daughter and

in retaliation he and his D

elder brother on the next day had given beating to Trilok

Singh, PW 6 and

also abused him and on that account Trilok Singh PW 6, in consultation with

the police had got him falsely implicated in the case. Ranjit Singh respondent

also alleged false implication but gave no reasons for having been falsely

implicated. Jagjit Singh alias Bawa produced DW-1 Kuldip Singh and DW-E

2 MHC, Amarjit Singh in defence and tendered in evidence Ex. DC, a

photostat copy

of his passport and Ex. DD copy of a certificate of his

marriage with the Canadian girl.

He also tendered into evidence photographs

marked

'C' and 'D', evidencing his marriage with the Canadian girl. The

other two accused however did not lead any defence evidence.

The trial court .first dealt with the prosecution case relating to

the.

abduction of the prosecutrix by the respondents and observed :

"The first point for appreciation before me would arise whether this

part

of the prosecution story stands fortified by any cogent or reliable

evidence or not. There is a bald allegation only

of (prosecutrix-name

omitted) that she was forcibly abducted in a car.

In the F.LR. she

stated that she was abducted

in an Ambassador Car of blue colour.

After going through the evidence, I am

of the view that this thing

F

G

has been introduced by the prosecutrix or by her father or by the

thanedar just to give the gravity

of offence.

(Prosecutrix name H

540

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SUPREME COURT REPORTS [1996] 1 S.C.R.

omitted) was tested about the particulars of the car and she is so

ignorant about the make etc. of the car that entire story that she was

abducted

in the car becomes doubtful. She stated in her cross­

exarnination

at page No. 8 that the make of the car was Master. She

was pertinently asked whether the make of the car was Ambassador

or Fiat. The witness replied that she cannot tell the

"make of the car.

But when she was asked

as to the difference between Fiat, Ambas­

sador or Master car, she was unable to explain the difference among

these vehicles. So, it appears that the allegations that she was

abducted

in a Fiat

Car by all the three accused and the driver, is an

imaginary story which has been given either by the thanedar or by

the father

of the prosecutrix."

"If the three known accused are in the clutches of the police, it is not

difficult

for the

LO. to come to know about the car, the name of its

driver etc., but strange enough,

SI Raghbir

Chand had shown pitiable

negligence when he could not find out the car driver inspite

of the fact

that he directed the investigation on these lines.

He had to admit that

he made search for taking the car into possession allegedly used in the

occurrence. He could not find out the name

of the driver nor could he

find out which car

was used. In these circumstances, it looks to be

improbable that any car was also used in the alleged abduction".

(Omission

of name of the prosecutrix -ours)

The trial

Court further commented :

"On 30th March, 1984 she was forcibly abducted by four desperate

persons who were out and out to molest her honour.

It has been

admitted

by the prosecutrix that she was taken through the bus adda

of

Pakhowal via metalled road. It has come in the evidence that it

is a busy centre. Inspire

of that fact she has not raised any alrarn,

so as to attract persons that she was being forcibly taken. The height

of her own unnatural conduct is that she was left by the accused at

the same point on the next morning. The accused would be the last

person to extend sympathy to the prosecutrix. Had it been so, the

natural conduct

of the prosecutrix was first to rush to the house of

her maternal uncle to apprise him that she had been forcibly

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STATE v. GURMIT SINGH [DR. ANAND, J.] 541

abducted on the previous day. The witness after her being left

at the

place

of abduction lightly takes her examination. She does not

complain

to the lady teachers who were deployed to keep a watch

on

the girl students because these students are to appear in the centre

of Boys School. She does not complain to anybody nor her friend

that she was raped during the previous night. She prefers her

examination rather than

to go to the house of her parents or relations.

Thereafter, she goes

to her village Mangat Kalan and informs for the

first time her mother that she

was raped on the previous night. This

part

of the prosecution story does not look to be probable."

A

B

The trial court, thus, disbelieved the version of the prosecutrix C

basically for the reasons; (i)

"She is to ignorant about the make etc. of the

car that entire story that she. was abducted in the car becomes doubtful"

particularly because she could not explain the difference between a Fiat car,

Ambassador car or a Master car; (ii) the investigating officer had "shown

pitiable negligence" during the investigation by not tracing out the car and

the driver; (iii) that the prosecutrix did not raise

any alarm while being

abducted even though she had passed through the bus adda

of village

pakhowal (iv) that the story

of abduction

"has been introduced by the

prosecutrix or

by her father or by the thanedar just to give the gravity of offence" and (v) ihat no corroboration of the statement of the prosecutrix was

available on the record and that the story that the accused had left her near

the school next morning

was not believable because the accused could have

no

"sympathy" for her .

The trial court also disbelieved the version

of the prosecutrix regarding

D

E

rape. It found that the testimony of the prosecutrix did not inspire confidence F

for the reasons (i) that there had been delay in lodging the FIR and

as such

the chances

of false implication of the accused could not be ruled out.

According

to the trial court Trilok Singh

PW 6 became certain on 1.4.84 that

there

was no outcome of the meeting between the panchayats Nangalkhurd

and

Pakhowal therefore the was no justification for him not to have lodged

the report on 1.4.84 itself and since Trilok Singh had "entered into

consultations with his wife

as to whether to lodge the report or not, it rendered

the matter doubtful." (ii) that the medical evidence did not help the

prosecution case. The trial court observed that in her cross-examination

PW

I lady doctor had admitted that whereas inter-course with the prosecutrix

could

be one of the reasons for the laceration of the hymen

"there could be

G

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542 SUPREME COUl{T REPORTS [1996] l S.C.R.

A other reasons also for that laceration''. The trial court noticed that the lady

doctor had inserted a vaginal speculum for laking swabs from the posterior

vaginal fornix

of the prosecutrix for preparing slides and since the width of

the speculum was about two fingers, the possibility that the prosecutrix was

habituated to sexual inter-course could not be ruled

out". The trial court

B

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F

G

observed that the prosecutrix was

"flighting her imagination in order to rope

in the accused persons" and that implicit reliance could not be placed on the

testimony "of such a girl"; (iii) there was no independent corroboration of

her testimony and (iv) that the accused had been implicated on account of

enmity as alleged by the accused in their statements recorded under Section

31'.i Cr. P.C.

The grounds on which the trial court disbelieved the version of the

prosecutrix are not at all sound. The findings recorded by the trial court rebel

against realism and lose their sanctity and credibility. The court

Jost sight of

the fact that the proseculrix is a village girl. She was student of Xlh Class.

It

was wholly irrelevant and immaterial whether she was ignorant of the

difference between a Fiat,

an Ambassador or a Master car. Again, the

statement

of the prosecutrix at the trial that she did not remember the colour

of the car, though she had given the colour of the car in the FIR was of no

material effect on the reliability of her testimony.

No fault could also be found

with the prosecution version on the ground that the prosecutrix had not raised

an alarm while being abducted. The prosecutrix in her statement categorically

asserted that

as soon as she was pushed inside the car she was threatened by

the accused to keep quiet and not to raise any alarm otherwise she would be

killed.

Under these circumstances to discredit the prosecutrix for not raising

an alarm while the car was passing through the Bus Adda is traversity of

justice. The court over-looked the situation in which a poor helpless minor girl

had found herself

in the company of three desperate young men who were

threatening her and preventing her from raising any alarm. Again, if the

investigating officer did not conduct the investigation properly or was negli­

gent

in not being able to trace out the driver or the car, how can that become

a ground to discredit the testimony

of the prosecutrix? The prosecutrix had no

control over the investigating agency and the negligence

of an investigating

officer could not affect the credibility

of the statement of the prosecutrix. Trial

Court fell

in error for discrediting the testimony of the prosecutrix on that

account.

In our opinion, there was no delay in the lodging of the FIR either and

if

at al! there was some delay, the same has not only been properly explained ' H by the prosecution but in the facts and circumstances of the case was also

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STATE v. GURMIT SINGH [DR. ANAND, J.] 543

natural. The courts cannot over-look the fact that

in sexual offences delay in A

the lodging

of the FIR can be due to variety of reasons particularly the

reluctance

of the prosecutrix or her family members to go to the police and

complain about the incident which concerns the reputation

of the prosecutrix

and the honour

of her family. It is only after giving it a cool thought that a

complaint

of sexual offence is generally lodged. The prosecution has ex-

B

plained that as soon as Trilok

Singh PW 6, father of the prosecutrix came to

know from his wife, PW 7 about the incident he went to the· village sarpanch

and complained

to him. The sarpanch of the village also got in touch with the

sarpanch

of village Pakhowal, where in the tube well kotha of Ranjit

Singh

rape was committed, and an effort was made by the panchayats of the two

c

villages to sit together and settle the matter. It was only when the Panchayats

failed

to provide any relief or render any justice to the prosecutrix, that she and

her family decided

to report the matter to the police and before doing that

naturally the father and mother

of the prosecutrix discussed whether or not to

lodge a report with the police in view of the repercussions it might have on the

reputation and future prospects

of the marriage etc. of their daughter. Trilok D

Singh PW 6 truthfully admitted that he entered into consultation with his wife

as

to whether to lodge a report or not and the trial court appears to have

misunderstood the reasons aild justification for the consultation between

Trilok

Singh and his wife wh_en it found that the said circumstance had

rendered the version

of the prosecutrix doubtful. Her statement about the E

manner in which she was abducted and again left near the school

in the early

hours of next morning has a ring of truth. It appears that the trial court

searched for contradictions and variations in the statement of the prosecutrix

microscopically, so as to disbelieve her version. The observations of the trial

court that the story

of the prosecutrix that she was left near the examination

F

centre next morning at about 6 a.m. was

"not believable" as the accused would

be the last persons to extend sympathy

to the

prosecutrix" are not at all

intelligible. The accused were not showing "any sympathy" to the prosecutrix

while driving her at 6.00 a.m. next morning tc the place from where she had

been abducted but on the other hand were removing her from the kotha

of

G

Ranjit

Singh and leaving her near the examination centre so as to avoid being

detected. The criticism

by the trial court of the evidence of the prosecutrix as

to why she did not complain

to the lady teachers or to other girl students when

she appeared for the examination at the centre and waited till she went home

and narrated the occurrence

to her mother is unjustified. The conduct of the

prosecutrix

in this regard appears to us to be most natural. The trial court over- H

A

B

c

D

E

544

SI IPREME COURT REPORTS [1996] I S.C.R.

looked that a girl, in a tradition bound non-permissive society in India, would

be extremely reluctant even to admit that any incident. which is likely to reflect

upon her chastity had occurre.d, being conscious of the oanger of being

ostracized

by the society or being looked down by the

cociety. Her not

informing the teachers

or her

friends at the examination ~entre under the

circumstances cannot detract from her reliability. In the normal course of

huma.1 conduct, this unmarried minor girl, would not like to give publicity to

the traumatic exporience she had undergone and would feel terribly embar­

rassed in relation to the incident to narrate it to her teachers and others over­

powered

by a feeling of shame and he1 natural inclination would be to avoiJ

talking about it to

any r,e, lest the family name and honour is brought into

controversy. Therefore her informing to her mother only on return to the

parental house and no one else at the examination centre prio. thereto is an

accord with the naturaJ human <onduct of a female. The courts must, while

evaluating evidence, remain ali"e to the fact that in a case of rape, no self-,

respecting woman would come forward in a court

just to make a

humiliatin;­

statement against her honour such as is involved in the commission of rape on

her. In cases involvrng sexual molestation, supposed considerations which

have no material effect on the veracity

of the prosecution case or even

discrepencies

in the statement of the prosecutrix should not, unless the

discrepencies 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

tenden<y to conceal outrage of sexual aggression are frctors which the

Courts should not over-look. 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

diffi,,dty to act on

F the testimony of r vktim of seimal 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 er

a woman who complains of rape or sexual molestation, be viewed with doubt,

G

H

disbelief or suspicion? T: ;e Court while appreciating the evidence of a

prosecutrix may look for some

assurance of her statement to

sati • ."y it~ 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 at par with the evidence of an

injured witness and to an extent

is even more reliable. Just as a witness who

•

•

STATE v. GURMIT SINGH [DR. ANAND, J.] 545

has sustained some injury in the occurrence which is not found to be self A

inflicted, is considered to be a good witness in the st.1se that he is least likely

'-;-

to shield the real culpri~ 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

B

prosecutrix is

not~ requirement of law but a guidance of prudence under given

circumstances. It must not

be over-looked that a

rtoman or a gtrl subjected to

sexual assault is not an accomplice tn the crime but is a victim of another

'( person's lust and it is improper and undesirable to test her evidence with a

• certain a"lount of suspicion, treating her as if she were an accomplice .

Inferences have to be drawn from a given set

of facts and circumstances with

c

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 casually. Courts cannot cling

to a fossil formula and insist upon

corroboration even if, taken

as a whole, 1he case spoken of by the victim of

sex crime strikes the judicial mind as probable. In State of Maharashtra v. D

Chaiulraprakash Kewalchand Jain, [1990] l SCC 550 Ahmadi, J. (as the Lord

'

Chief Justice then was) speaking for the Bench summarised the position in the

following words :

"A prosecutrix of a sex offence cannot be put on par with an

accomplice. She is in fact a victim of the crime. The Evidence Act

E

nowhere says that her evidence cannot be accepted unless it is

corroborated in material particulars. She is undoubtedly a competent

~

witness under Section 118 and her evidence must receive the same

-

weight as is attached to an injured in cases of physical violence. The

F

same degree of care and caution must attach in the evaluation of her

evidence

as in the case of an i11jured complainant or witness and no

more. What is necessary is that the court must be alive to and

conscious

of the fact that it is dealing with the evidence of a person

who is interested in the outcome

of the charge levelled by her. If

the court keeps this in mind and feels satisfied that it can act on the G

evidence of the prosecutrix, there is no rule of law or practice

incorporated in the Evidence Act similar

to illustration (b) to Section

---

114 which requires it to look for corroboration. If for some reason

the court is hesitant

to place implicit reliance on the testimony of

the prosecutrix it may look for evidence which may lend assurance

H

A

B

c

546 SUPREME COURT REPORTS [1996] l S.C.R.

to her testimony short of corroboration required in the case of an

accomplice. The nature of evidence required to lend assurance to the

testimony

of the prosecutrix must necessarily depend on the facts

and circumstances

of each case. But if a prosecutrix is an adult and

of full understanding the court is entitled to base a conviction of her

evidence unless

the same is shown to be infirm and not trustworthy.

If the totality and the circumstances appearing on the record of the

case disclose that the prosecutrix does not

have· a stroag motive to

falsely involve the persori charged, the court should ordinarily have

no hesitation in accepting her evidence.

11

We are in respectful agreement with the above exposition of law. In

the instant case our careful analysis of. the statement of the prosecutrix has

created

an impression on our minds that she is a reliable and truthful witness.

Her testimony suffers from

no infirmity or blemish whatsoever. We have no

hesitation in acting upon her testimony alone without looking for any

D 'corroboration'. However, in this case there is ample corroboration available

on the record

to lend further credence to the testimony of the prosecutrix.

E

F

The medical evidence has lent full corroboration to the testimony of

the prosccutrix. According lo

PW 1 lady Doctor Sukhvinder Kaur she had

examined the prosecutrix

on 2.4.84 at about 7.45 p.m. at the

Primary Health

Centre, Pakhowal, and had found that "her hymen was lacerated with fine

rediate tears, swollen

and

painful". The pubic hair were also found mated.

She opined that inter-course with the prosecutrix could be "one of the reason

for the laceration

of the

hymen" of the prosecutrix. She also opined that the

"possibility cannot be ruled out that (prosecutrix) was not habitual

of inter­

course earlier

to her examination by her on

2.4.84". During her cross­

examination,

the lady doctor admitted that she had not inserted her fingers

inside the vagina

of the prosecutrix during the medico-legal examination but

that she

had put a vaginal speculum for taking the swabs from the posterior

vaginal fornix for preparing the slides.

She disclosed that the size of the

G speculum

was about two fingers and agreed with the suggestion made to her

during her cross-examination that

"if the hymen of a girl admits two fingers

easily, the possibility that such a girl

was habitual to sexual inter-course

cannot be ruled

out". However, no direct and specific question was put by

the defence to the lady doctor whether the prosecutrix in the present case

H could be said to be habituated to sexual intercourse and there was no

STATE v. GURMIT SINGH [DR. ANAND, J.] 547

challenge to her statement that the prosecutrix 'may not have been subjected

to sexual intercourse earlier'. No enquiry was made from the lady doctor

about

the tear of the hymen being old.

Yet, the trial court interpreted the

statement of PW I Dr. Sukhwinder Kaur to hold that the prosecutrix was

habituated

to sexual inter-course since the speculum could enter her vagina

easily and

as such she was

" a girl of loose character". There was no warrant

for such a finding and the finding

if we may say so with respect is a whoJly

irresponsible finding.

In the face of the evidence of

PW I, the trial court

wrongly concluded that the medical evidence had not supported the version

A

B

" of the prosecutrix .

•

The trial court totaJly ignored the report of the Chemical Examiner Ex.

PM, according to which semen had been found on the slides which had been

prepared

by the lady doctor from the vaginal secretions from the posterior

of the vaginal fomix of the prosecutrix. The presence of semen on the slides

lent authentic corroboration

to the testimony of the prosecutrix. This vital

evidence

was foresaken by the trial court and as a result wholly erroneous

conclusions were arrived at. Thus, even though no corroboration is necessary

to rely upon the testimony of the prosecutrix, yet sufficient corroboration

·

from the medical evidence and the report of the chemical examiner is

available

on the record. Besides, her statement has been fuJly supported by

the evidence of her father, Tirlok

Singh, PW 6 and her mother Gurdev Kaur

PW 7, to whom she had narrated the occurrence soon after her arrival at her

house. Moreover,

the unchallenged fact that it was the prosecutrix who had

led the investigating officer

to the Katha of the tubeweJI of Ranjit

Singh,

where she had been raped, lent a built-in assurance that the charge leveJled

by her was "genuine" rather than "fabricated" because it is no one's case that

she knew Ranjit Singh earlier or had ever seen or visited the kotha at his

tubeweJI. The trial court completely overlooked this aspect. The trial court

did not disbelieve that the prosecutrix had been subjected

to sexual inter­

course but without any sound basis, observed that the prosecutrix might have

spent the

"night" in the company of some "persons" and concocted the story

c

D

E

F

on being asked by her mother as to where she had spent the night after her

maternal uncle, Darshan

Singh, came to Nangal-Kalan to enquire about the G

prosecutrix. There is no basis for the finding that the prosecutrix had spent

the night

in the company of

"some persons" and had indulged in sexual

intercourse with them of her own free will. The observations were lnade .on

surmises and conjectures-the prosecutrix was condemned unheard.

The trial court was of the opinion that it was a 'false' case and that the H

A

B

c

D

E

F

G

H

548 SUPREME COURT REPORTS [1996] l S.C.R.

accused had been implicated on account of enmity. In that connection it

observed that since Trilok Singh PW 6 had given beating to Gunnit Singh on

1.4.84 suspecting his hand in the abduction of his daughter and Gurmit Singh

accused and his elder brother had abused Trilok Singh and given beating to

Trilok Singh PW 6 on 2.4.84, "it was very easy on the part of Trilok Singh

to persuade his daughter to name Gurmit Singh so as to take revenge''. The

trial court also found that the relations between the family

of Gunnit

Singh

and of the prosecutrix were strained on acGount of civil litigation pending

between the parties for 7 /8 years prior to the date

of occurrence and that was

also

the 'reason' to falsely implicate Gunnit

Singh. Indeed, Gurrnit Singh

accused in his statement under Section 313 Cr. P.C. did raise such a plea but

that rlea has remained unsubstantiated. Trilok Singh PW 6 categorically

denied that

he had any litigation with the father of Gurrnit

Singh at all and

went on to

say no litigation had ever taken place between him and

Muka~d

Singh father of Gurmit Singh over a piece of land or otherwise. To the similar

effect is the statemer.t

of Gurdev Kaur

PW 7 who also categorically stated

that there had been

no litigation between her husband and Mukand

Singh

father of Gurrnit Singh. The trial court ignored this evidence and found

support for the plea

of the accused from the statement of the prosecutrix in

which during the first sentence

of her cross-examination she admitted that

litigation was going on between Mukand

Singh father of Gurmit Singh and

her father for the last 8/9 years over a piece of land.

Jn what context the

statement was made is

not clear. Moreover, the positive evidence of PW 6

and

PW 7 that there was no litigation pending between PW 6 and the father

of Gunnit

Singh completely belied the plea of the accused. If there was any

civil litigation pending between the parties

as alleged by Gunnit

Singh he

could have produced some documentary proof in support thereof but none

was produced. Even Mukand

Singh, father of Gunnit Singh did not appear in

the witness

box to support the plea taken by Gunnit

Singh. The allegation

regarding any beating given

to Gurrnit

Singh by PW 6 and to PW 6 by

Gurntit Singh and his brother was denied by PW 6 and no material was

brought forth in support

of that plea either and yet the trial Court for

undisclosed reasons assumed that the story regarding the beating

was correct.

Some strny sentences in the statement of the proseuctirx appear to have been

unnecessarily blown out

of all proportion to hold that

"admittedly" PW~ had

been given beating

by Gurmit

Singh accused and that there was civil

litigation pending between the father of the prosecutrix and the father

of

Gurrnit

Singh to show that the relations between the parties were enemical.

There is

no acceptable material on the record to hold that there was any such

STATE v. GURMIT SINGH [DR. ANAND, J.] 549

civil litigation pending between the parties. Even

if it be assumed for the sake A

of argument that there was

·same such litigation, it could hardly be a ground for

......,_

a father to put forth his daughter to make a wild allegation of rape against the

son

of the opposite party, with a view to take revenge. It defies human

probabilities. No father could stoop so low

as to bring forth a false charge of

rape on his unmarried minor daughter with a view to take revenge from the

B

father of an accused on account

~f pending civil litigation. Again, if the

accused could be falesly involved on account

of that enmity, it was equally

possible that the accused could have sexually assaulted the prosecutrix to take

{

revenge from her father, 'or after all, enmity is_ a double edged weapon, which

•

may be used for false implication as well as to take revenge. In any oase, there

c

is no proof of the existence of such enmity between PW 6 and the father of

Gurmit Singh which could have prompted PW 6 to put up his daughter to

falsely implicate Gurmit Singh on a charge of rape. The trial court was in error

to hold that Gurmit Singh had been implicated on account of enmity between

the two families and for the beating given

by

Gcrmit Singh and his brother to

PW 6, in retaliation of the beating given by PW 6 to Gurmit Singh on D

1.4.1984. Similarly, so far as Jagjit Singh respondent i~ concerned, the trial

~

court opined that he could have been got implicated at the instance of the

Sarpanch

of village Pakhowal, who was hostile to Jagjit

Singh. The ground of

hostility as given by Jagjit Singh against the Sarpanch of village Pakhowal

... stems out of the fact that the sarpanch was annoyed with him for marrying a E

Canandian girl in the village Gurdwara. There is no evidence whatsoever on

the record to show that the Sarpanch

of village

Pakhowal had any relationship

or connection with the prosecutrix or her father or was in any way in a position

).

to exert so much of influence on the prosecutrix or her family, that to settle his

~

score Trilok Singh PW 6 would put forward his daughter to make a false

F

allegation of rape and thereby jeopardise her own honour and future prosepects

of her marriage etc. The plea of Jagjit Singh alias Bawa like that of Gurmit

Singh did not merit acceptance and the trial. court erroneously accepted the

same without any basis. The plea

of the accused was a plea of despair not

worthy

of any

crc..ience. Ranjit Singh, apart from stating that he had been

G

falsely implicated in the case did not offer any reasons for his false implica-

tion.

It

was at his tubewell kotha that rape had been committed on the

_,.. prosecutrix. She had pointed out that kotha to the police during investigation.

No ostensible reason has been suggested

as to why the prosecutrix would

falsely involve Ranjit

Singh for the commission of such a heinous crime and

nominate his Katha

as the place where she had been subjected to sexual H

550 SUPREME COURT REPORTS [1996] l S.C.R.

A mocestation by the respondents. The trial court ignored that it is almost

inconceivable that

an unmarried girl and her parents would go lo

the extent of

staking their reputation and future in order to falsely set up a case of rape to

settle petty scores

as alleged by Jagjit Singh and Gunnit Singh respondents.

B

From the statement of the prosecutrix, it clearly emerges that she was

abducted and forcibly subjected to sexual intercourse

by the three respondents

without her consent and against her will.

In this fact situation the question of

age of the prosecutrix would pale into insignificance. However, in the present

case, there

is evidence on the record to establish that on the date of the

occurrence, the prosecutrix

was below 16 years of age. The prosecutrix

C herself and her parents deposed at the trial that her age was less than 16 years

on the date

of the occurrence. Their evidence is supported by the birth

certificate

E.x. P.J. Both Trilok Singh PW 6 and Gurdev Kaur PW 7, the father

and mother of the prosecutrix respectively, explained that initially they had

named their daughter, the prosecutrix,

as Mahinder Kaur but her name was

D changed

to ..... (name omitted), as according to the Holy Guru Granth

Sahib

her name was.required to start with the word "chhachha" and therefore in the

school leaving certificate her name was correctly given. There was nothing to

disbelieve the explanation given

by

Trilok Singh and Gurdev Kaur in that

behalf. The trial court ignored the explanation given by the parents observing

E that "it could not be swallowed being a belated one". The trial court was in

error. The first occasion for inquiring from Trilok Singh PW 6 about the

change

of the name of the prosecutrix was only at the trial when he was asked

about Ex.

PJ and there had been no earlier occasion for him to have made any

such statement.

It was, therefore, not a belated explanation. That apart, even

F

G

H

according to

the lady doctor PW I, the clinical examination of the prosecutrix

established that she was less then

16 years of age on the date of the

occurrence. The birth certificate Ex.

PJ was not only supported by the oral

testimony

of Trilok singh

PW 6 and Gurdev Kaur PW 7 but also by that of the

school leaving certificate mark · B'. With a view to do complete justice, the

trial court could have summoned the concerned official from the school to

prove various entries

in the school leaving certificate. From the material on

the record, we have come to an unhesitating conclusion that the prosecutrix

was less than 16 years of age when she was made

_a victim of the lust of the

respondents in the manner deposed

to by her

against"her will and without her

consent. The trial court did not record any positive finding

as to whether or

)-

STATE v. GURMIT SINGH [DR. ANAND, J.] 551

not the prosecutrix was below 16 years of age on 30th March 1984 and instead A

went on to observe that 'even assuming for the sake of argument that the

prosecutrix was less than 16 years of age on 30th March 1984, it could still not

help the case

as she was not a reliable witness and was attempting to shield

her own

co~duct by indulging in falsehood to implicate the respondents'. The

entire approach

of the trial court in appreciating the prosecution evidence and B

drawing inferences therefrom was erroneous.

The trial court not only erroneously disbelieved the prosecutrix, but

quite uncharitably and unjustifiably even characterised her

as a girl

"of loose

morals" or "such type of a girl".

What has shocked our judicial conscience all the more is the inference

drawn

by the court, based on no evidence and not even

011 a denied suggestion,

to the effect :

"The more probability is that (prosecutrix) was a girl of loose

character. She wanted

to dupe her parents that she resided for one

night at the house

of her maternal uncle, but for the reasons best

known to her she does not do so and she preferred to give company

to some

persons."

c

D

We must express our strong disapproval of the approach of the trial E

court and its casting a stigma on the character of the prosecutrix. The

observations lack sobriety expected of a Judge. Such like stigmas have the

potential of not only discouraging an even otherwise reluctant victim of

sexual assault to bring forth complaint for trial of criminals, thereby making

the society to suffer by letting the criminal escape even a trial. The courts are

expected to use self-restraint while recording such findings which have larger

repercussions so far as the future of the victim of the sex crime is concerned

F

and even wider implications on the society as a whoJe-where the victim of

crime is discouraged

-the cri1ninal encouraged and in tum crime gets

rewarded! Even in cases, unlike the present case, where there is some

acceptable material

on the. record to show that the victim was habituated to G

sexual intercourse, no such inference like the victim being a girl of

"]oose

moral character" is permissible to be drawn from that circumstance alone.

Even if the prosecutrix, 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 H

552 SUPREME COURT REPOIITS (1996) I S.C.R.

A prey for being sexually assaulted ty anyone and everyone. No stigma, like the

one

as cast in the present case should be cast against such a witness by the

Court, for after

all it is the accused and not the victim of sex crime who is on

trial in the Court.

B

As a result of the aforesaid discussion, we find that the prosecutrix has

made a truthful statement and the prosecution has established the case against

the respondents beyond every reasonable doubt. The trial court fell in

~rror ·

in acquitting them of the charges levelled against them. The appreCiation of

evidence by the trial court is not only unreasonable but perverse. The

conclusions arrived

at by the trial court are untenable and in the established

C facts and circumstances of the case, the view expressed by it is not possible

view.

We, accordingly, set aside the judgment of the trial court and convict all

the three respondents

for offences under Sections 363/366/368 and 376 !PC.

So far

as the sentence is concerned, the court has to strike a just balance. In

this case the occurrence took place on

30.3.1984 (more than II years ago. The

D respondents were aged between 21-24 years

of age at .the time when the

offence was committed.

We are informed that the respondents have not been

involved in any other offence after they were acquitted

by the trial court on

1.6.85, more than a decade ago. All

the respondents as well as prosecutrix

must have

by now got married and settled down in life. These are some of the

E

F

factors which we need to take into consideration while

im;>0sing an appropri­

ate sentence

on the respondents. We accordingly sentence the respondents for

the offence under section 376

IPC to undergo five years R.l. each and to pay

a fine

of Rs. 5000 each and in default of payment of fine to

I year's R.l.

each. For the offence under Section 363 !PC we sentence them to undergo

three years R.l. each but impose

no separate sentence for the offence under

Section 366/368

!PC. The substantive sentences of imprisonment shall,

however, run concurrently.

This Court in

Delhi Domestic working

Women's Forum v. Union of

India, [1995] I SCC 14, had suggested, on the formulation of a scheme, that

G at the time

of conviction of

a person found guilty of having committed the

offence

of rape, the

Court shall award compensation.

In this case, we have, while convicting the respondents, imposed, for

reasons already set out above, the sentence

of 5 years R.I. with fine of Rs. 5000 and in default of payment of fine further R.l. for one year on each of

H the respondents for the offence under Section 376 !PC. Therefore, we do not,

STATE '" GURMIT SINGH (DR. ANAND, J] 553

""-t

in the instant case, for those very reasons, consider it desirable to award any A

compensation, in addition to the fine already imposed, particularly as no

s..:heme also appears to have been drawn up as yet.

Before, parting with the case, there

is one

oth~r as"""t to which we

wculd like to adven to.

(

B

Of late, crime against women in general and rape in particular is on

'

the increase. It is an irony that while we are celebrating women's rights in

ali rpheres, we show little or no concern for her honour. It is a sad reflec:ion

en the attitude of indifference of the sodety towards the vi<'lation of human

dignity

of the victims of sex crimes. We must remember that a rapist

n~t only

c

viok•es the victim's priv.cy and personal integrity, but inevitably causes

se1ious psychological

as well as physical harm in the process. Rape is not

merely a physical assault -it is often

destru~tive of the whole personality of

the victim. A murderer destroys the physical body of his victim, a rapist

'

degrades the very soul of the helpless female. The Courts, therefore, shoulder

"

a great responsibility while trying an accused on charges of rape. They must D

deal with such cases with utmost sensitivity. The Coons should examine the

broader probabilities

of a case and not get swayed by minor contradictions

or insignificant

discrepancie~ in the statement of the prosecutrix, which are

not of a fatal nature, to throw out an otherwise reliable prosecution case. If

eviden~e of the prosecutrix inspires confidence, it must be relied upon

E

without seeking corroboration of her statement in material particulars. If for

~

some reason the Coun finds it difficult to place implicit reliance on her

'

testimony, it may loo[; for evidence which may lend assurance to her

testimony, shon

of corroboration required in the case of an accomplice. The

testimony

of the prosecutrix must be appreciated in

thL background of the

F entire case and the trial coun must be alive to its responsibility and be

sensitive while dealing with cases involving sexual molestations.

There has been lately, lot

of criticism of the treatment of the victims of

sexual

aosault in the coun during their cross-examination. The provisions of

Evidence Act regarding relevancy of facts notwithstanding, some defence

G

->-

counsel adopt the strategy of continual questioning of the prosecutrix as to the

details

of the rape. The victim is required to repeat again and again the details

of the rape incident not so much as to bring out the facts on record or to test

her credibility but to test her story for inconsistencies with a view

to attempt

to twist the interpretation of events given by her

sc; as to make them appear

inconsistent with her allegations. The coun, therefore, should not sit as a silent H

554 SUPREME COURT REPORTS [1996] l S.C.R.

A spectator while the victim of crime is being cross-examined by the defence. It

must effectively control the recording of evidence in the Court. While every

latitude should

be given to the accused lo test the veracity of the prosecutrix

and the credibility of her version through cross-examination, the court must

also ensure that cross-examination is not made a means of harassment or

B

c

D

E

F

G

H

causing humiliation to the victim of crime. A victim of rape. it must be

remembered, has already undergone a traumatic experience and if she is made

to repeat again and again, in unfamiliar surroundings, what she had been

subjected to, she

may be too ashamed and even nervous or confused to speak

and her

silence or a confused stray sentence may be wrongly interpreted as

"discrepancies and contradictions" in her evidence.

The alarming frequency of crime against women led the Parliament to

enact Criminal Law (Amendment) Act, 1983 (Act 43 of 1983) to make the

law

of rape more realistic. By the Amendment Act, sections 375 and 376

were amended and certain more penal provisions were incorporated for

punishing such custodians who molest a woman under their custody or care.

Section

IJ4-A was also added in the Evidence Act for drawing a conclusive

presumption as to the absence of consent in certain prosecutions for rape,

involving such custodians. Section 327 of the Code of Criminal Procedure

which deals with the right of an accused to an open trial was also amended

oy addition of sub-sections 2 and 3 after re-numbering the old Section as sub­

sections (I). Sub-section 2 and 3

of Section 327

Cr. P.C. provide as follows

Section 327. Court to be open -

(2) Notwithstanding anything contained in sub-section (!), the

inquiry into and trial

of rape or an offence under Section 376,

Section 376-A, Section 376-B, Section

376-C or Section 376-D of

the Indian Penal Code shall be conducted in camera :

Provided that the presiding judge may, if he thinks fit, or on an

application made

by either of the parties, allow any particular person

to have access

to, or be or remain in, the room or building used by

the

Court.

(3) Where any proceedings are held under sub-section (2) it shall

not

be lawful for any person lo print or publish any matter in relation

to any such proceedings, except with the previous permission

of the

.

'

. ~

STATE v. GURMIT SINGH [DR. ANAND, J.] 555

Court."

These two provisions are in the nature of exception to the general. rule

of

an open trial. Inspite of the amendment, however, it is seen that the trial

courts either are not conscious of the an1endment or do not realise its

importance for hardly does one come across a case where the enquiry and trial

of a rape case has been conducted by the court in camera. The expression that

the inquiry into and trial

of rape

"shall be conducted in camera" as occurring

A

B

in sub-section (2) of Section 327 Cr. P.C. is not only significant but very

important.

It casts a duty on the Court to conduct the trial of rape cases etc.

invariably

"in camera". The Courts are obliged to act in furtherance of the

intention expressed

by the legislature and not to ignore its mandate and must C

invariably take recourse to the provisions of Section 327 (2) and (3) Cr.

P.C.

and hold the trial of rape cases in camera. It would enable the vi_ctim of crime

to be a little comfortable and answer the questions with greater ease

in not too

familiar a surroundings. Trial

in camera would not only be in keeping with the

self respect

of the victim of crime and in tune with the legislative intent but D

is also likely

to improve the quality of the evidence of a prosecutrix because

she would not be

so hesitant or bashful to depose frankly as she may be an

open court, under gaze of public. The improved quality of her evidence would

assist the courts in arriving

at the truth and sifting truth from falsehood. The

High Courts would therefore be well advised to draw the attention

of the trial

courts to the amended provisions

of Section 327 Cr.

P.C. and to impress upon

the Presiding Officers to invariably hold the trial of rape cases in camera,

rather than

in the open court as envisaged by Section 327(2) Cr.

P.C. When

trials are held in camera, it would not be law~ul for any person to print or

publish any matter in relation

to the proceedings in the case, except with the

previous permission

of the Court as envisaged by Section 327 (3) Cr.

P.C. This

would save any further embarrassment being caused

to the victim of sex crime.

Wherever possible

it may also be worth considering whether it would not be

more desirable that the cases of sexual assaults on the females are tried by

E

F

lady Judges, wherever available, so that the prosecutrix can make her

statement with greater ease and assist the

_Courts to properly discharge their G

duties, without allowing the truth

to be sacrificed at the altar of rigid

technicalities while appreciating evidence

in such cases. The Courts should as

far as possible, avoid disclosing the name of the prosecutrix in their orders

to save further embarrassment to the victim of sex crime. The anonymity

of

the victim of the crime must be maintained as far as possible throughout. In H

556 SUPREME COURT REPORTS [ 1996] I S.C.R.

A the present case, the trial court has repeatedly used the name of the victim

in its order under appeal, when it could have just· referred to her as the

prosecutrix.

We need say no more on this aspect and hope that the

trial

Courts would take rocourse to the provisions of Section 327 (2) and (3) Cr.

P.C. liberally. Trial of rape cases in camera should be the rule and an ope11

B trial in such cases an exception.

M.K. Appeal allowed.