'Old Torn Hymen' Can't Give Benefit Of Doubt In Rape Case If Victim's Testimony Reliable: Allahabad High Court Upholds 1983 Conviction

A bench of Justice Santosh Rai observed that a hymen may be torn due to different factors such as sports, cycling, gymnastics, horse-riding, extraneous physical labour, or accidental injury, etc.

The Court further noted that some individuals are born with a perforated or absent hymen, while in some others, it is highly elastic and hence, medical findings of this nature cannot override a victim's credible statement.

With these observations, the bench upheld the 3-year sentence and conviction of a rape accused in connection with an incident dating back to February 1982.

The case in brief

The accused had moved the High Court challenging his conviction and the 3-year Sentence awarded by the Additional Sessions Judge, Allahabad, in May 1983.

Briefly put, as per the prosecution's case, the victim, an illiterate fifteen-year-old girl, had gone to ease herself in the Kachhar area across a local canal (Nala) in her Village at around 9:30 AM.

The accused appellant, Rakesh, along with co-accused Prakash, intercepted her and committed rape one by one. When she resisted, they brutally assaulted her with blows.

The trial court convicted the accused based on the victim's oral testimony, which was corroborated by the medical report prepared the same day. The medical report indicated 6 distinct injuries, including abrasions, a linear scratch and contusions on her body.

Before the High Court, it was the specific submission of the accused that the medical evidence pointed towards the victim's "old torn hymen", which indicated that she was habituated to having physical relationships with others.

Relying on this submission, the accused's counsel attempted to prove that the accused had not committed rape or gang rape with the victim.

The High Court, however, rejected this hyper-technical approach and the argument highlighting the "bad character" of the victim. The Court observed thus:

"…if the hymen was old torn, an accused cannot be granted benefit of doubt solely on the aforesaid ground, whereas the statement of victim regarding committing rape is “wholly reliable”. Rape is a 'legal term' not 'medical term'. Thus, on the basis of opinion of doctor that hymen was old torn, a specific finding cannot be drawn that accused appellant has not committed rape with the victim".

The single judge also emphasized that the offence of rape is normally committed in a secret environment, meaning there is practically no possibility of finding independent eye-witnesses.

The Court added that the testimony of a prosecutrix stands at par with that of a normal or injured witness.

In this regard, the bench relied on the Supreme Court's judgment in Ganga Singh Vs. State of MP 2013, wherein it was held that a victim's evidence needs no corroboration if it inspires confidence and appears natural and truthful.

In the present case, the Court found the survivor's statement regarding the commission of rape to be "wholly reliable" as it was corroborated by the medical evidence

However, while upholding the conviction, the High Court took serious note of the trial court's mishandling of sentencing in this case.

Though the lower court had convicted the appellant under Section 376 IPC, it awarded a lenient sentence of only 3 years' rigorous imprisonment, with no fine imposed.

The High Court said that the trial court committed a manifest error of law by imposing a sentence well below the statutory minimum of seven years without recording any "adequate and special reasons," which was mandatorily required under the law as it stood in 1983.

Furthermore, the High Court also pointed out another grave illegality committed by the trial court as it failed to impose a fine, which is an "integral part and fundamental aspect" of the punishment in cases of sexual offences.

During the final arguments, the appellant's counsel prayed that the accused be released on probation as he was now over 60 years old, suffers from various ailments, has no previous criminal history, and the appeal has been pending since 1983.

The High Court, however, refused to grant him the benefit of probation as it noted that doing so in case of a rape conviction would "send a wrong message to the society and dilute the deterrence of criminal law”.

Ultimately, the bench upheld the trial court's conviction and directed the accused to pay a mandatory fine of Rs. 50,000. This amount is to be paid as compensation to the victim or her legal representatives within one month.

If the convict fails to pay the fine, he will have to undergo an additional 6months of rigorous imprisonment, the bench further provided.

The Court cancelled the appellant's bail bonds with immediate effect and ordered him to surrender before the trial court within 10 days to serve out the remainder of his sentence.

Advocate Imran Syed appeared for the appellant

AGA Purushottam Maurya appeared for the State.