Victim's Sexual History Cannot Be Used To Discredit Rape Allegation: Orissa High Court

Asserting that a rape trial cannot be converted to an inquiry into the character of the victim, the Bench of Dr. Justice Sanjeeb Kumar Panigrahi observed–

“It is difficult to appreciate how such an argument could have been advanced at all, in the face of the clear statutory position and the settled principles governing appreciation of evidence in sexual offences. What legal consequence can possibly follow from the observation that the prosecutrix was “habituated to sexual intercourse”? Does it disprove the occurrence alleged? Does it establish consent? Does it render the testimony of a minor victim less credible in law? The answer to each of these questions is plainly in the negative.”

As per prosecution, on the night of 03.04.2016, when the parents of the victim were away from village, the appellants visited her house. Upon the victim opening the door, they allegedly caught hold of her, gagged her mouth, pulled and dragged her, and both accused together lifted and carried her to a hillock near the village.

The victim was kept confined from the night of 03.04.2016 until the morning of 05.04.2016, during which both the appellants allegedly tied her, denied her food and repeatedly committed rape on her. On the morning of 05.04.2016, they brought her down and abandoned her near her house, whereafter she disclosed the entire incident to gathered villagers.

An FIR was lodged and upon completion of investigation, a charge-sheet was filed against the appellants. The Special Court framed charges under Sections 363 (kidnapping), 366 (kidnapping for illicit sexual intercourse), 376-D (gang rape), 376(2)(n) IPC (repeated rape) and Sections 6 (aggravated penetrative sexual assault) and 10 (aggravated sexual assault) of the POCSO Act and found the appellants guilty of the aforementioned offences.

Apart from other contentions, the appellants pointed to the medical officer's finding that the victim was "habituated to sexual intercourse" as evidence that she was not a stranger to intercourse and had willingly accompanied the accused.

The Court, however, made it clear that such suggestion is not at all helpful to the case of the appellant since evidence of prior sexual experience is wholly irrelevant to the question whether the prosecutrix was raped on the date of occurrence.

“Section 53A of the Indian Evidence Act and the proviso to Section 146 of the same Act, inserted by the Criminal Law (Amendment) Act, 2013, expressly prohibit drawing any inference from a victim's prior sexual experience as to her consent or credibility in a rape trial. In any event, the victim being a child of 16 years, the question of consent is entirely immaterial by virtue of Section 3 read with Section 5 of the POCSO Act.”

Justice Panigrahi disapproved the way the appellants attempted to shift focus of the Court from their criminal behaviour to the past sexual conduct of the victim. The Judge thus remarked–

“It is, at best, a desperate effort to grasp at a medical observation and use it to cast aspersions on the victim. Such an argument is precisely the kind of victim-blaming which the law does not permit. The appellants are on trial for their alleged conduct. The prosecutrix is not on trial for her character. This Court cannot countenance an attempt to divert attention from the accusation by placing a minor victim under moral scrutiny. The submission is therefore deprecated and rejected.”

So far as the charge under Section 376-D IPC was concerned, the Bench reiterated the clear legal position that proving a completed act of penetrative sexual assault by each individual accused separately is not essential. Referring to the ruling made by the Apex Court in Ashok Kumar v. State of Haryana (2002), the Court held that where two or more persons act together with a common intention to commit rape, each is liable for the act done by any of them in furtherance of that common intention.

They were also held guilty for kidnapping the victim with an intent to induce her to illicit sexual intercourse and accordingly, their conviction under Sections 363 and 366 were upheld. However, the available evidence was held inconclusive as to culpability of the appellants under Section 376(2)(n) for commission of repeated rape. While acquitting them thereunder, the Judge held–

“I have examined the evidence on this point. PW-2 [victim] stated that "both accused repeatedly committed rape on her" during the period of confinement spanning two nights and one day. This general statement, while establishing the overall course of conduct, does not particularise how many times each individual accused committed the act, at what intervals, and in what sequence. The expression "repeatedly" in the victim's account, read in the context of a joint confinement involving two accused, makes it inherently difficult to segregate individual acts attributable to each accused for the purpose of Section 376(2)(n).”

Notwithstanding such acquittal, the punishments under Sections 363, 366 and 376-D of IPC, which carries the minimum punishment of 20 years rigorous imprisonment, and Sections 6 and 10 of the POCSO Act were maintained. Accordingly, the appeal was partially allowed.

Case Title: Pramod Bariha & Anr. v. State of Odisha

Case No: CRLA Nos. 489 & 483 of 2023

Counsel for the Appellants: Mr. Dipti Ranjan Swain & Mr. S.S. Ray (2), Advocates

Counsel for the State: Ms. Gayatri Patra, Addl. Standing Counsel

Citation: 2026 LiveLaw (Ori) 80