Maniappan vs State

P.D. Dinakaran, J.—This criminal revision is directed against the judgment dated 2-2-1993 in Criminal Appeal No. 19 of 1992 on the file of

the learned Sessions Judge, Dharmapuri at Krishnagiri confirming the judgment of the learned Assistant Sessions Judge at Dharmapuri dated 30-7-

1992 in S.C.No.35 of 1989.

The petitioner was facing a trial for an offence punishable under Sections 376 and 448 of I.P.C. before the learned Assistant Sessions Judge,

Dharmapuri in S.C.No.35 of 1989, who in his judgment dated 30.7.1992 sentenced the petitioner to undergo rigorous imprisonment for six years

in respect of the offence u/s 376 of I.P.C. and to undergo rigorous imprisonment for one year in respect of the offence u/s 448 of I.P.C. and both

sentences to run concurrently.

On appeal, the learned Sessions Judge, Dharmapuri at Krishnagiri in his judgment dated 2-2-1993 in Criminal Appeal No. 19 of 1992,

confirmed the conviction and sentences imposed on the petitioner in respect of the offences under Sections 376 and 448 of I.P.C. and against the

said judgment dated 2.2.1993, the petitioner has preferred the above revision petition.

The case of the prosecution is stated as follows:- On 7.12.1986 at 7.00 P.M., the petitioner entered into the thatched house of Parooran,

P.W.3 and raped Salammal, P.W.I, wife of Parooran, P.W.3. At that time, P.W.3 was away for grazing his cattle. P.W.2, mother of P.W.3 was

also away to her sugarcane field.

Pw1, prosecutrix deposed that she was subjected forcible rape by the petitioner and P.W.2, her mother-in-law deposed that while she was

returning from sugarcane field, she heard the cry of P.W.I at a distance of 10 feet from the thatched house, near a tamarind tree. After hearing the

incident, P.W.I, P.W.2 and P.W.3 rushed immediately to Palacode to consult a doctor because Pw1 was carrying six months pregnancy. P.W.6 is

the Assistant Medical Officer who examined the prosecutrix. Thereafter with the consultation of Panchayat Union President by name Urugi, they

lodged a complaint at 10.00 AM on 8-12-1986 in Marandahalli Police Station, Palacode.

On behalf of the prosecution, eleven exhibits and six material objects were filed. PW5 Village Administrative Officer was present at the time of

seizing the material objects from the place of occurrence namely MOl-torn blouse, MO2-blue skirt, MO3-old saree, MO4-broken pieces of red

colour bangles (4), M05-broken pieces of green colour bangles(3), and MO6-broken pieces of yellow colour bangles(5) which belongs to the

prosecutrix.

In the light of the evidences on record and exhibits and material objects filed on behalf of the prosecution, the trial court held that the petitioner

was guilty of the offence under Sections 376 and 448 of I.P.C. and convicted him with the sentence of six years rigorous imprisonment and one

year rigorous imprisonment punishable under Sections 376 and 448 respectively and both the sentences to run concurrently. On an appeal in

C.A.No.19 of 1992, learned Sessions Judge by his judgment dated 2.2.1993 confirmed the conviction.

Mr.V. Gopinath, learned senior counsel for the petitioner challenges the order of conviction on the following grounds;

(1) Judgment of the trial court as well as Appellate Court are erroneous, improper and manifestly illegal inasmuch as there was a deliberate delay in

filing a FIR particularly in view of the admitted fact that they were waiting for consultation of Urugi, Panchayat President who had enemity against

the petitioner.

(2) There is no proper explanation for non- examination of the doctor who examined PW1 at the first instance, after they reached Palacode.

(3) According to the evidence of PW6, there was only an attempt to commit rape.

Per contra, learned Government Advocate contends that mere delay in filing a FIR in the case of rape cannot falsify the case of the prosecution.

He further contends that the suggestion of Assistant Medical Officer, PW6 is that it might also be a case of attempt to rape which cannot be

construed detrimental to the testimony of the prosecutrix.

I have given anxious consideration to the submissions of both the sides.

A careful reading of the evidence of PW1 makes it clear that there is no reason to disbelieve her testimony which is found to be implicitly

satisfactory to make out a case of rape committed by the petitioner. Therefore, there is no requirement to search for a corroboration for a

testimony to support the conviction. In fact her evidence in the chief examination as well as re-examination is direct and unimpeachable. Therefore,

mere absence of examining the medical officer to whom the prosecutrix approached first for her treatment nor the suggestion of PW6 can be

construed as a detrimental to the testimony of PW1.

What remains is to decide on the contention of learned senior counsel for the petitioner regarding the delay in filing the FIR and the entire case

is foisted due to the enmity between the petitioner and Urugi, Panchayat Union President whose consultation was alleged to have led to the filing of

the FIR. In this connection, it is relevant to refer the decision of the Apex Court in The state of Punjab v. Gurtnit Singh and Ors. 1996 (1) Cri (SC)

37 which reads as follows:-

The Courts cannot overlook 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 of her family members to go to the police and complain about the incident which concerns the reputation of the

prosecutrix and the honour or her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged.

It was only when a Panchayats failed to provide any relief or render any justice to the prosecutrix, that she and her family decided to report the

mater 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.

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 discrepancies in the statement

of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution

case.

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 statement to satisfy its judicial conscience, since she is a witness who is

interested in the outcome of the charge leveled 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 a 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 occurrence, 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 lest that type

of rigidity in the shape of rule of law is introduced through a new form of testimony 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.

In State of Maharashtra v. Chandraprakash Kewalchand Jain, 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 nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a

competent witness u/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 or 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 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 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 trust worth. If the totality and not 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 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 ''corroboration''. However, in the case there is ample corroboration

available on the record to lend further credence to the testimony of the prosecutrix.

The trial court ignored that it is almost inconceivable that an unmarried girl and her parents would go to 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 ...

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 all

spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of

human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim''s privacy and personal integrity, but

inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault-it is often destructive 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 deal with such cases with utmost sensitivity.

The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the

statement of the prosecutrix which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix

inspires confidence, it must be relied upon without seeking corroboration of her statement of her statement in material particulars. If for some

reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony,

short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire

case and the trial court 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 assault in the court during their cross examination. The provisions of

Evidence Act regarding relevancy of facts notwithstanding, some defence 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 rape incident not so much as to bring out the facts on

record or to test her incredibility but to test her story for inconsistencies with a view to attempt to twist the interpretation of events given by her so

as to make them appear inconsistent with her allegations. The court, therefore, should not sit as a silent 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 to 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 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 confused stray sentence may be wrongly interpreted as

discrepancies and contradiction "" in her evidence.

In fact in State of Maharashtra v. Suresh Nivrutti Bhusare 1997 (2) CrI. L.J 2003 a Division Bench of Bombay High Court has held as

follows:-

In case of rape, there is always a certain delay in the lodging of the FIR because, a rape victim is bashful and very loathe to report to the police

her traumatic experience of being raped. It is only after an efflux of some time, when she is reassured by her near and dear ones does she muster

the courage of lodging an FIR. So, therefore, the issue of delay in the lodging of the FIR cannot be approached with the same sensitiveness in a

case of rape as in other cases, say a case of murder or a case of attempt to murder. A slightly longer and wider margin has to be given in a case of

rape to the informant. It is well-settled that delay simpliciter in the lodging of an FIR in case of rape, is not material. It only becomes material when

no satisfactory explanation is forthcoming.

In Raji v. State 1997 (2) Cri. L.J 2040 this Hon''ble Court has held as follows:-

The FIR regarding offence of rape was registered by a victim minor girl with some delay. In trial, delay was properly explained. The evidence of

both the victim and her minor brother who witnessed the presence of accused during occurrence was found reliable and convincing as they need

not speak falsehood to implicate accused, that too, in a rape case. Also the evidence of victim was affirmed by medical evidence. Under the

circumstances, mere delay in lodging the FIR would not affect the credibility of the victim in a rape case. Thus conviction of accused was proper.

In the light of the above decisions and careful perusal of the evidence of the prosecutrix, PW1, I am satisfied with the reasons of the learned

Trial Court Judge as well as Appellate Court Judge for the delay in filing the FIR, assuming if there is any as pointed out by the learned senior

counsel for the petitioner. That apart, mere consultation of the local leaders in such crimes will not affect the very case of the prosecution when

there is no reason to disbelieve the testimony of the prosecutrix against whom no prior enmity is alleged by the petitioner. Since the credibility of

the evidence of the prosecutrix viz. PW1 is unquestionable and the same does not suffer any infirmity or blemish, I do not feel any necessity for the

prosecution to examine the doctor who had examined PW1 at the first instance, nor to accept the suggestion or opinion, as the case may be, of

PW6 that there was only an attempt to commit rape.

In the light of the above, I do not find any good and sufficient reason to interfere with the order of conviction and sentence of the courts below.

In the result, criminal revision petition is dismissed and conviction and sentence of the courts below are confirmed.