Prosecutrix in a Rape Case – Evaluation of Evidence – Part II

Justice (retd) U.L. Bhat

18 May 2014 11:55 AM GMT

  • Prosecutrix in a Rape Case – Evaluation of Evidence – Part II

    (11)   In Bhajan Singh and others V/s. State of Haryana, (which was not a case of rape) the court observed in para 21:-“The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence.Thus, the testimony of an injured witness is...

    (11)   In Bhajan Singh and others V/s. State of Haryana, (which was not a case of rape) the court observed in para 21:-

    “The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence.Thus, the testimony of an injured witness is accorded a special status in law.  Such a witness comes with a built in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.Convincing evidence is required to discredit an injured witness.  Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein”.

    (Emphasis supplied)

    In enunciating the above proposition, the court relied on a number of earlier decisions of the court. Dealing with minor discrepancies, the court observed in para 30 as follows:-

    “It is a settled legal position that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, may not prompt the court to reject the evidence in its’ entiretyIrrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradiction.  Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, would not of itself prompt the court to reject the evidence on minor variations and discrepancies.  After exercising care and caution and sifting through the evidence to separate the truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused.  Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness.  As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are found to occur in the statements of witnesses”

    (Emphasis supplied)

    (12) In Siddeshwara Ganguly case the trial was by jury which held the accused guilty of the offence of rape, whereupon the trial court convicted and sentenced the accused and the High Court confirmed the conviction  and sentence and appeal was preferred to Supreme Court.  Though the case was one of raping two girls said to be below 16 years of age, the finding was that the girl Narmaya was above 16 years and had consented to the sexual act.  It was the commission of rape of Sudharani Roy which was the issue in the case.   Para 9 of the judgment shows that trial Judge’s charge to the jury referred to the rule of prudence regarding corroboration and right of the jury to dispense with corroboration of the evidence of victim if it was found safe to rely on evidence of victim.

    The Supreme Court observed as follows in the same para :–

     “Hence, the learned sessionsJudge was fully justified in telling the jury that there was no rule of law or practice, that there must be corroboration in every case before a conviction for rape.  If the jury had been apprised of the necessity, ordinarily speaking, of corroboration of the evidence of the prosecutrix, it is for the jury to decide whether or not it would convict on the uncorroborated testimony of theprosecutrix, in the particular circumstances of the case before it.  In other words, the insistence on corroboration is advisable, but is not compulsory in the eye oflaw. --------- It is well established that the nature and extent of corroboration necessaryvary with the circumstances of the case.  The nature of corroborative evidence should be such as to lend assurance that the evidence of the prosecutrixcan be safely acted upon”.(Emphasis supplied)

    (13) In State of Bihar vs. Basawan Singh, which was a case not of rape but offence under section 161 IPC, the court was required to consider the  evidence of accomplices as such,  namely, persons comprising members of a raiding party.  The Constitution Bench was in agreement with the observation of Lord Reading in King vs. Baskar Ville 1916 (2) KB 658 to the effect that in respect of the evidence of an accomplice, all that is required is that there must be “some additional evidence rendering it probable that the story of accomplice is true and that it is reasonably safe to accept”.  The Bench also referred to Rameshwar’s case regarding nature and extent of corroboration required when it is not safe to accept the evidence.  The Bench also observed that corroboration need not be by direct evidence that accused committed the crime, and mere circumstantial evidence of his connection with the crime would be sufficient.  It has to be noticed that the Constitution Bench was dealing with evidence of an accomplice.Prosecution for alleged rape of a girl above the age of consent  but with her consent cannot succeed in terms of the definition of rape and but if the victim was below the age of consent, though consent has no legal force, she may be regarded as an accomplice going by the observation in Rameshwar’s case.  However one has to notice the clear distinction between a person who is infact an accomplice and a person who may be deemed to be an accomplice like a consenting girl below the age of consent.

    (14) In Gurucharan Singh vs. State of Haryana, a girl under 16 years of age was repeatedly raped by three accused.  The trial court convicted and duly sentenced them, which was upheld by the High Court.  The Supreme Court dismissed the appeal preferred by one of the accused.   In para 2, the court observed, dealing with the contention that the solitary statement of victim without corroboration in material particulars is not enough to sustain  conviction, as follows:

    “It is well settled that the prosecutrixcannot be considered as accompliceand therefore, her testimony cannot be equated with that of accomplice in a criminal case.  As a rule of prudence, however, the court normally looks for some corroboration of her testimony so as to satisfy its conscience that sheis telling the truth and that the person accused of rape on her, has not been falsely implicated”.(Emphasis supplied)

    Thereafter, in the same paragraph, the Bench quoted extensively from the decision in Rameshwar’s case. Paragraphs 11 and 12 of the judgment referred to two other decisions of the Supreme Court, including the one in the case of Sidheswar Ganguly vs. State of W.B. referred to earlier, which stated that nature of corroborative evidence should be such as to lend assurance that evidence of prosecutrix can be safely acted upon.

    In para 13 Supreme Court stated  that in that case the victim stated to pw4 as soon as he and his companions found her in the appellant’s sugarcane field, as to how  she had been abducted and how  the appellant and another committed rape on her, weeping while narrating the story.  Some broken piece of bangles were recovered from scene of occurrence.  The Supreme Court held that the recovery of the victim and her statement to pw4 and others together with recovery of broken bangle pieces and medical evidence fully corroborated the testimony of victim, which even without corroboration seemed to be impressive enough to render it safe for sustaining the conviction.  The court noted that her statement contained some exaggerations but it did not affect the truth of her testimony on the material point. Dealing with the answers elicited from her in the course of lengthy cross examination  by more than one defence counsel, the court observed –

    “A common village girl of less than 16 years that she is, due allowance must be made for the statement elicited from her in court during cross examination by counsel for defence”.

    (15) In Madhoram & another vs. State of U.P., the appellants were brothers and pw1 Shamlal had two daughters, elder daughter being married to second appellant.  The first appellant Madhoram was a widower aged 42 years, his wife having died about 20 years earlier.  The appellant’s proposal that second daughter (victim) of pw1 aged about 19 years should be married to Madhoram  having been turned down,  the second appellant threatened  that the victim would be compelled by force to marry Madhoram.   On the day in question, the second appellant persuaded the victim to go to the temple to meet her sister, the sister was not there but Madhoram was present.  She was threatened by second appellant not to leave the place but to mary Madhoram.  When she refused, she was forcibly taken out of the temple by both the appellants and was raped by Madhoram repeatedly, and on succeeding days also.  When the victim did not return home and after a futile search for her, the father reported the matter to the police.  Dealing with the argument that corroboration is necessary, the court noted that the principles governing such a case have been clearly laid down by several decisions of the Court.

    The Court observed as follows –

    “It hasbeen  held that the prosecutrix cannot be considered to be an accomplice.  As a rule of prudence however, it has been emphasised that the Courts should normally look for some corroboration of her testimony in order to satisfy itself that the prosecutrix is telling the truth and that aperson, accused of abduction or rape,has not been falsely implicated. The view that, as a matter of law, no conviction without corroboration was possible,has not been accepted.  The only rule of law is the rule of prudence, namely the advisability of corroboration should be present in the mind of the Judge or the Jury, as the case may be.  There is no rule of practice that there must in every case, be corroboration, before a conviction can be allowed to stand ------,it has also been laid down that the type of corroboration required must necessarily vary with the circumstances of each case and also according to the  particular circumstances of the offence with which  a person  is charged”.

    (16) In Krishanlal vs. State of Haryana, the Court dealt with a case where the accused was convicted of offence of rape on the allegation that the victim Shashibalawas sleeping with her mother and other siblings outside the house in the hot  month,  the appellant along with acquitted co-accused carried her away by intimidation to a neighbouring godown belonging to another co-accused and committed rape on her and thereafter when she was nearly unconscious carried her back and placed her on cot.  The next morning her mother found blood on the dress worn by her daughter and on being questioned, victim narrated incident to her.  When her father who was away returned home the victim went to police station and lodged complaint.The appellant was convicted and co-accused were acquitted on the ground of reasonable doubt.   The Court observed that there was  case law even in those days, (that is when old English cases were being followed in British Indian Courts), which clearly spelt out the following proposition

    "The tender years of the child, coupled with other circumstances appearing in the case, such, for example as its demeanour,unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the Judge or the Jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed, to stand."

    (Emphasis supplied)

    The Court further observed:

    "It would be impossible, indeed it would be dangerous to formulate the kind of evidence which should, or would, be regarded as corroboration. Its nature and extent must necessarily vary with circumstances of each case and also according to the particular circumstances of the offence charged."

    (17) In Rafiq vs. State of U.P., the case related to rape on a middle aged Balasevika in a welfare organization, by Rafiq and three others, while she was sleeping in a girl’s school at around 2.30 a.m.   The next morning the victim narrated the incident to Chief Sevika of the village and reported to the police.  Appellant and others were duly charged for the offence of rape.  The trial court acquitted the others but convicted the appellant and duly sentenced him.  Appeal to High Court was unsuccessful and hence the convicted accused approached the Supreme Court.  It was argued before Supreme Court that the testimony of the victim was not corroborated and that there was absence of injury on her person. Appellant relied on decision in Pratap Misra vs. State of Orissa for the proposition that such absence of injury was fatal to prosecution.  The Supreme Court rejected his contention in the following manner in paras 5 and 7.

    “We do not agree. For one thing, PratapMisra's case (supra) laid down no inflexible axiom of law on either point. The facts and circumstances often vary from case to case, the crime situation and the myriad psychic factors, social conditions and people's life-styles may fluctuate, and so, rules of prudence relevant in one fact-situation may be inept in another. We cannot accept the argument that regardless of the specific circumstances of a crime and criminal milieu, some strands of probative reasoning which appealed to a Bench in one reported decision must mechanically be extended to other cases. Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances. Indeed, from place to place, from age to age, from varying life-styles and behavioural. complexes, inferences from a given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but realistic diversity lest rigidity in the shape of rule of law in this area be introduced through a new type of precedential tyranny. The same observation holds good regarding the presence or absence of injuries on the person of the aggressor or the aggressed”.

    (Emphasis supplied)

    “Hardly a sensitized judge who sees the conspectus of circumstances in its totality and rejects the testimony of a rape victim unless there are very strong circumstances militating against its veracity. None we see in this case, and confirmation of the conviction by the courts below must, therefore, be a matter of course. Judicial response to human rights cannot be blunted by legal bigotry”.(Emphasis supplied)

    (18) The decision in Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat was rendered in a case relating to alleged rape on two girls aged about 10 or 12 years; the trial court found appellant guilty of rape, outraging modesty of a woman and wrongful confinement.  High Court sustained the conviction under sections 342 and 354, but held that there was no rape and there was only attempt to commit rape and altered the conviction under section 376 IPC to one  under section 376 read with see 511 Indian Penal Code.  The judgment shows that the parents of victim desired to hush up the matter and the attempt to secure public apology from accused at the instance of an alert social worker which was unsuccessful and thereafter,12 days after the occurrence, FIS was lodged.  The Supreme Court after quoting the decision in Rameshwar’s case observed as follows  in  para 9 of the judgment-

    In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. The solution of problems cannot therefore be identical. It is conceivable in the western society that a female may level false accusation as regards sexual molestation against a male for several reasons such as :-

    (1) The female may be a 'gold digger' and may well have an economic motive- to extract money by holding out the gun of prosecution or public exposure.

    (2) She may be suffering from psychological neurosis and may see an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted, and chased by males.

    (3) She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account.

    (4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta.

    (5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self-importance in the context of her inferiority complex.

    (6) She may do so on account of jealousy.

    (7) She may do so to win sympathy of others.

    (8) She may do so upon being repulsed”.

    (Emphasis supplied)

    This is part two of four part series.

    Part I can be read here


    Justice U.L.Bhat is the former Chief Justice of Gauhati High Court and High Court of Madhya Pradesh. 

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