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

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

(19)        In para 10, the Court referred to the various relevant factors which make it difficult for a girl or woman in India to make false allegations of sexual assault and that this is also true in the context of rural, urban, sophisticated  and unsophisticated society.  And only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites.  The reasons stated by the Supreme Court emphasized that the woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit such incident as she would be  conscious of the danger of being ostracized or being looked  down by the  society including her own family members, relatives, friends and neighbours and possibly she is under the risk of losing the love and respect of her husband and near relatives if she is married and would apprehend difficulty in securing good alliance if she is unmarried . Supreme Court also referred to other reasons why a woman of rural India would be reluctant to approach police and thereafter stated in para 11 as follows:-

“When  in the face of these factors, the crime is brought to light, there is a, built - in assurance, that the charge is genuine rather than fabricated”.  The court observed further in the same para as follows:

“On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self-inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye-witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Court's in the western world (obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the 'probabilities- factor' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification : Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self preservation. Or when the 'probabilities-factor' is found to be out of tune”.(Emphasis supplied)

                The Court declined to interfere with conviction but modified the sentence to some extent.  However the court referred to the decision in Rameshwar vs. State of Rajasthan  and  followed the dictum stated therein.

(20)        In State of Maharashtra vs. Chandra Prakash kewalchand Jain with connected appeal, a Sub Inspector of Police was convicted and sentenced by a trial court for rape on a girl aged 18 or 19 years.  High Court reversed the conviction and acquitted accused.  The state preferred appeal.  The Supreme Court reversed the decision of High Court, restored the decision of trial court and declined even to interfere with the sentence, as the accused was a man in uniform who committed a serious crime.  In the course of judgment the court observed as follows in para 16

“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 nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under S. 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured 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 evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to S. 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 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 on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage:

"It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary”.

With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation”.(Emphasis supplied)

(21)        The Supreme Court observed as follows in para 17 of the judgment:-

“We think it proper, having regard to the increase in the number of sex-violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in some of the Western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eve-teasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms. The standard of proof to be expected by the Court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity”.

(Emphasis supplied)

(22) In Narayanamma vs. State of Karnataka and others, which disposed of two appeals, one filed by victim of rape and other by the State, Supreme Court reversed the acquittal by the High Court and restored the conviction and sentence of the accused and others by the trial court.  The prosecutrix was a girl aged 17 years on the date of commision of offence, working as a daily agricultural labourer along with other members of the family.  She was raped by the accused persons.  Her cries attracted the attention of a grazier pw2, on seeing whom the accused ran away.  Meanwhile, her nephew, a child aged 9 years helped her to get up and made her to wear clothes. Thereafter her mother and sister came to whom she narrated the incident and they took her to the village.  Meanwhile her brother also came to whom also victim narrated the incident.  He took the victim and also pw2 to the police station. Dealing with the evidence of the victim the Court observed as follows:-

(iii) The prosecutrix having supplied the details of the crime to her mother PW 6, the mother deposed at the trial that she was told by the prosecutrix that the three accused identified by name had committed rape on her. This the High Court termed as an exaggeration because as per her own version Muniyappa had not committed rape. In a sense, Muniyappa facilitated the commission of the crime. He was the initiator and had an active role to play and was equally guilty. The prosecutrix could not be condemned if she conveyed to her mother that he was guilty of the crime of rape committed on her. It could be a difference of perceptions. This particular aspect also does not weigh against the prosecutrix”.

(23) In State of Punjab vs. Gurumit Singh & others the Supreme Court allowed an appeal filed under section 14 of Terrorist Affected Areas (Special Courts) Act 1984, against the acquittal of the accused of the charge of abduction and rape and convicted and sentenced the accused.  The case related to rape of girl aged below 16 years of age, studying in 10th standard during the period of public examination held in local boys high school.  When she was walking towards the house of her uncle after the examination,  a car came from behind in which three persons were sitting, stopped near her and one of the accused alighting from the car pushed her inside the car, while another accused covered her mouth and third accused threatened  to kill her in case she raised an alarm. The driver took the car away.   She was taken to a building near the tubewell by one of the accused and was raped by one after the other after forcing her to drink liquor . This was again repeated at night.  The driver of the car came back and took them away.  She was left near the school where she was to appear for her examination.  She wrote her examination and went home and told her mother.  The mother repeated the story to her husband when he came home in the evening.  He contacted the Sarpanch.  Two sarpanchas tried to effect a compromise and failed in their attempt.  Thereupon the victim and her father met the police and she made a statement to them and case was registered. The trial court disbelieved the evidence of the girl and acquitted the accused.  This was confirmed by the High Court.  The Supreme Court reversed the acquittal and convicted and sentenced the accused.

(24)        The Supreme Court found fault with appreciation of evidence made by trial court that she did not remember the make or colour of the car, even though she had mentioned the colour in the FIS and she did not raise an alarm when she was being abducted and that the driver of the car was not traced out by the investigator. The occurrence took place on 30.3.1994, a Panchayat was held on 1.4.1994, which was not successful and the trial court held that the FIS was lodged, after delay.  Dealing with these aspects Supreme Court has stated as follows:-

“8. ……The Court overlooked 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 negligent in not being able to trace out the driver of 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 all there was some delay, the same had not only been properly explained by the prosecution but in the facts and circumstances of the case was also natural.  The Courts cannot over-look the fact that in sexual offences delay in 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 prosectuion has explained that as soon as Trilok Singh PW6, father of the prosecutrix came to know from his wife, PW7 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, wherein the tubewellKotha of Ranjit Singh rape was committed, and an effort was made by the panchayats of the two 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 Singh PW6 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 and justification for the consultation between Trilok Singh and his wife when it found that the said circumstance had rendered the version of the prosecutrix doubtful.  Her statement about the manner in which she was abducted and again left near the school in the early hour of next morning has a ring of truth”.  (Emphasis supplied)

(25)        Dealing with the manner in which the trial court appreciated the evidence of the victim, the Supreme Court stated:-

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 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-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 occurred, being conscious of danger of being ostracized by the society or being looked down by the society.  Her not informing the teachers or her friends at the examination centre under the circumstance cannot detract from her reliability.  In the normal course of human conduct this unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to her teachers and others overs-powered by a feeling of shame and her natural inclination would be to avoid talking about it to any one, 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 prior thereto is in accord with the natural human conduct of a female”.

(Emphasis supplied)

(26)        The Supreme Court proceeded to observe as follows:-

“The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving 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 tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook.  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 difficulty to act on the testimony of a victim of sexual 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 or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion ? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its 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”.(Emphasis supplied)

(27) The Supreme Court further observed:-

“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 has sustained some injury in the occurence, which is not found to be self inflicted,  is considered to  be a good witness in the sense that he is least likely to shield the real culprit, 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 prosecutrix is not a requirement of law but a guidance of prudence under given circumstances.  It must not be overlooked that 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 a certain 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 least that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty.  Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the  case spoken of by the victim of sex crime strikes the judicial mind as probable”.  (Emphasis supplied)0

(28)        In Aman Kumar vs. State of Haryana, the trial court convicted the two appellants under section 376 IPC, for commiting rape of a girl of tender age (as stated in para 1 of judgment) and duly sentenced them. The Supreme Court altered the conviction to one under section 354 IPC and not under section 376 simplicitor  or section 376 read with section 511 Indian Penal Code and duly sentenced them.  Dealing with the aspect of corroboration of evidence of victim, the Court observed as follows in para 5

“It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the Court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would suffice”.(Emphasis supplied)

This is part three of four part series.

Part I  and Part II can be read here

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