Supreme Court of India
THE STATE OF PUNJABversusGURMIT SINGH ANR ORS.
- Citation
- 1996 INSC 75
- Decided
- 16 January 1996
- Disposal
- Appeal(s) allowed
- Bench
- A S ANAND
Holding
The prosecutrix's testimony was reliable and, supported by medical and chemical evidence, the trial court erred in acquitting; the appeal is allowed and the respondents are convicted under IPC sections 363, 366, 368 and 376.
Summary
The State of Punjab appealed the acquittal of Gurmit Singh and two others for abduction, wrongful confinement and rape of a minor girl. The trial court had disbelieved the prosecutrix, citing her ignorance of car details, alleged delay in filing the FIR, and alleged family enmity. The Supreme Court held that the girl’s testimony was truthful and was corroborated by medical examination, chemical analysis and parental statements, and that the trial court’s assessment was unreasonable and perverse. The Court also clarified that delay in filing an FIR in sexual offences can be justified, investigative negligence does not vitiate victim credibility, and corroboration, while not mandatory, strengthens the case. Consequently, the appeal was allowed, the respondents were convicted under IPC sections 363, 366, 368 and 376, and sentenced to five years’ rigorous imprisonment with fine for rape and three years for abduction, with sentences running concurrently. The Court emphasized that rape trials should be conducted in camera under Section 327(2) CrPC and warned against stigmatizing victims.
Issues considered
- The credibility of a minor prosecutrix's testimony without corroboration in a rape case
- Whether delay in filing an FIR for a sexual offence undermines the victim's reliability
- The impact of investigative negligence (failure to trace the car/driver) on the victim's testimony
- The relevance of alleged enmity between parties to infer false accusation
- The appropriate application of Sections 363, 366, 368 and 376 IPC to the facts
- The duty of courts to conduct rape trials in camera under Section 327(2) CrPC
Legislation cited
- Code of Criminal Procedure, 1973s. 154, s. 327(2), s. 327(3)
- Indian Evidence Act, 1872s. 114, s. 118
- Indian Penal Code, 1860s. 363, s. 366, s. 368, s. 376
Subjects
rapeabductionwrongful confinementminor victimvictim testimonycorroborationdelay in FIRin-camera trialSection 327 CrPCIPC sections 363 366 368 376evidence law
Judgment
A THE STATE OF PUNJAB
v.
GURMIT SINGH ANR ORS.
JANUARY 16, 1996
B [DR. A.S. ANAND AND S. SAGHIR AHMAD, JJ.]
Indian Penal Code 1860---Sections 363, 366, 368 and 376-Abduction,
Wrongful confinement aiul rape of a minor girl-Acquittal by Trial Court
disbelieving the prosecutrix and discarding medical evidence--Held- Prosecutrix •
reliable and truthful witness-corroboration by medical evidence and chemical
c examination report though no such corroboration is necessary to rely upon the
testimony of the prosecutrix.
Criminal Procedure Code 1973--Section 154-Delay in.filing FIR-Time
spent to secure justice through village panchayats and consultations between
D the.family members-Held, generally a complaint is lodged in a sexual offence
after a cool thought since the incidence concerns the reputation ~f the victim
and honour of her .family-Therefore delay is justified.
Criminal Procedure Code 1973--Sections 327 (2) and (3)--Sexual
o.ffences--/n camera trial should be the rule and open court trial an exception.
E
According to the prosecution, the Prosecutrix aged around 15 years,
was going to her uncle's home after giving her matriculation examination
and was abducted by the respondents. They took her to a tubewell kotha
and made her drink liquor ignoring her protest, telling her that it was only
F fruit juice. Thereafter all the three respondents had sexual intercourse
with her without her consent and against her will. Next day, in the mo ruing
the prosecutrix was dropped by the respondents at the same place from
where she was abducted. The prosecutrix after giving her examination on
that day returned to her house and told P. W. 7 (Mother) her traumatic
experience. P.W. 6 (Father) learnt about it through P.W. 7. A compromise
G
was tried through the Sarpanch of his village and the Sarpanch of the
village where the Respondents were living. When compromise talks failed,
P.W. 6 and the prosecutrix filed an FIR. The prosecutrix was sent for
medical examination. All the three respondents were arrested.
H The trial court acquitted all the respondents disbelieving the evi-
532
STATE v. GURMIT SINGH 533
dence of prosecutrix on the ground that she was not a reliable witness and A
was attempting to shield her own conduct by indulging in falsehood to
implicate the respondents. The trial court was of the opinion that it was
a false case and that the accused had been implicated on account of enmity.
Hence this appeal.
Allowing the appeal, this Court
B
HELD : 1. The prosecutrix has made a truthful statement and the
prosecution has established the case against the respondents beyond every
reasonable doubt. The trial court fell in error in acquitting them. The
appreciation of evidence by the trial court is not only unreasonable but C
perverse. [552-B)
2. Even though no corroboration is necessary to rely upon the
testimony of the prosecutrix, yet sufficient corroboration from the medical
evidence and the chemical examination report is available on the record.
Her statement has been fully supported by the evidence of her father D
' , (p.w.6) and her mother (p.w.7). The unchallenged fact that it was the
prosecutrix who had led the investigating officer to the Kotha of the
tubewell where she had been raped, lent a built-in-assurance that the
charge levelled by her was "genuine" rather than "fabricated" because
it is no one's case that she knew the first respondent earlier or that she E
had ever seen or visited the Kotha at his tubewell. [547-D-F)
' 3. Delay in lodging FIR in sexual offences can be due to variety of
> reasons particularly the recluctance 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 the family. F
It is only after giving it a cool thought that a complaint of sexual offence
is generally lodged. [543-A-B)
4. If the investigating officer did not conduct the investigation
properly or was negligent in not being able to trace out the driver of the G
car, that can not become a ground to discredit the testimony of the
prosecutrix. The prosecntrix had no control over the investigating agency
and the negligence of the investigating officer would not affect the
credibility of the statement of the prosecutrix. [542-F-G)
5. There is evidence on record to establish that on the date of the H
534 SUPREME COURT REPORTS [1996] l S.C.R.
A occurrence, the prosecutrix was below 16 years of age. The prosecutrix
herself and her parents deposed at the trial that her age was less than 16
years on the date of occurrence. Their evidence was suppOT!ed by the
birth certificate Ex. P.J. Both PW. 6 and PW. 7, the father and mother
of the prosecutrix respectively, explained that they had changed their
B daughter's name as according to the Holy Guru Granth Sahib her name
was required to start with the word "Chhachha" and in the school leaving
certificate her name was correctly given. There·is nothing to disbelieve
the explanation given by these witnesses in that behalf. [550-C-E]
6. There is no proof of the existence of any enmity between the
C parties as alleged by the respondent to falsely implicate him on a charge
of rape. Even if it be assumed for the sake of argument that there was
some litigation, it could hardly be a ground for a father to put forth his
·daughter to make a wild allegation of rape against the son of the opposite
party, with a view to take revenge. It defies human probabilities. No
D father conld stoop so low as to bring forth a false charge of rape on his
'
nnmarried minor daughter with a view to take revenge on account of
some pending civil litigation. Again, if the accused could be falsely '
involved on account of that enmity, it was equally possible that the
accused could have sexually assaulted the prosecutrix to take revenge for
after all, enmity is a double edged weapon, which may be used for false
E
implication as well as to take revenge. [549-A-C]
7.1. In view of the above, the judgment of the Trial Court is set
aside and all the respondents are convicted for offence~ punishable under '
Sections 363, 366, 368 and 376 IPC. [552-C] '
F
7.2. So far as the sentence is concerned, the court has to strike a
just balance. In this case, the occurrence took place on 30.3.1984 (more
than 11 years ago). The respondents were aged between 21-24 years of
age at the time when the offence was committed. All the respondents as
well as the prosecutrix must have by now got married and settled down
G in life, which needs to be taken into consideration while imposing alJ
appropriate sentence on the respondents. For the offence under Section x-
376 IPC each of the respondent~ are sentenced to undergo five years RI
and to pay a fine of Rs. 5000 and in default of payment of fine to undergo
1 year RI each. For the offence under Section 363 IPC they are sentenced
H to under go three years RI each but no separate sentence for the offence
STATE "· GURMIT SINGH 535
under Sections 366/368 IPC is imposed. The substantive sentences of A
imprisonment shall, however, run concurrently. [552-C-F]
8. 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. Corroborative evidence is not an imperative component of
B
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. 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 any· amount of suspicion, treating her as if she c
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 testimonial tyranny making
justice a casualty. [544-H; 545-B-D] D
>
State of Maharastra v. Chandra Prakash Kewalchand Jain, [1990] 1
sec 550, relied on.
9. The courts are expected to use self-restraint while recording E
findings in cases which have larger repercussions so far as the future of
the victim of a sex crime is concerned and even wider implications on
the society as a whole where the victim of crime is discouraged, the
criminal encouraged and in turn crime gets rewarded. No stigma, like
• the one, as cast in the present case, should be cast against the prosecutrix
by the courts, for after all it is the accused and not the victim of sex crime F
who is on trial in the court. [551-F-G; 552-A]
10. Provisions under Sections 327 (2) and (3) of Cr. P.C. are in the
nature of exception to the general rule of an open trial. They cast a duty
on the court to conduct the trial of rape cases etc. invariably ''in camera''. G
The courts should, as far as possible, avoid disclosing the name of the
prosecutrix in their orders to save further embarrassment to the victim of
sex crime. The anonymity of the-l"ictims of the crime must be maintained
as far as possible throughout. Trial of rape cases in camera should be the
rule and open trial in such cases an exception. [555-A, C, G-H; 556-B] H
536 SUPREME COURT REPORTS [1996] 1 S.C.R.
A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 616
of 1985.
From the Judgment and Order dated 1.6.85 of the Additional Judge,
Special Court Ludhiana in Sessions Case No. 69151 of 1984 & Trial No. 56
of 1985.
B
Ms. Arnita Gupta, R.S. Suri and R.L. Deo for the Appellant.
Ujagar Singh, Davender Verma and Ms. Naresh Bakshi for the
)
Respondent Nos. 1-2.
C.S. Ashri for the Respondent No. 3.
c The Judgment of the Court was delivered by
DR. ANAND, J. This appeal under Section 14 of the Terrorist Affected
Areas (Special Courts) Act, 1984 is directed against the judgment and order
of Additional Judge, Special Court, Ludhiana dated 1.6.1985 by which the
D respondents were acquitted of the charge of abduction and rape. For what
follows, the judgment impugned in this appeal, presents a rather disquietening
and a disturbing feature. It demonstrates lack of sensitivity on the part of the •
court by casting unjustified stigmas on a prosecutrix aged below 16 years in
a rape case, by overlooking human psychology and behavioural probabilities.
An intrinsically wrong approach while appreciating the testimonial potency
E of the evidence of the prosecutrix has resulted in miscarriage of justice. First
a brief reference to the prosecution case :
The prosecutrix (narue withheld by us), a young girl below 16 years
of age, was studying in the 10th class at the relevant time in Government
High School, Pakhowal. The matriculation examinations were going on at
F the material time. The examination centre of the prosecutrix was located in
t.he Boys High School, Pakhowal. On 30th March, 1984 at about 12.30. p.m.
after taking her test in Geography, the prosecutrix was going to the house
of her maternal uncle, Darshan Singh, and when she had covered a distance
of about 100 karmas from the school a blue ambassador car being driven by
G a sikh youth aged 20/25 years came from behind. In that car Gurmit Singh,
Jagjit Singh @ Bawa and Ranjit Singh accused were sitting. The car stopped
near her. Ranjit Singh accused carue out of the car and caught hold of the
prosecutrix from her arm and pushed her inside the car. Accused Jagjit Singh
@ Bawa put his hand on t~e mouth of the'prosecutrix while Gurmit Singh
accused threatened the prosecutrix, that in case she raised an alarm she
H would be done to death. All the three accused respondents herein drove her
STATE v. GURMIT SINGH [DR. ANAND, J] 537
... to the tubewell of Ranjit Singh accused. She was taken to the 'kotha' of the
Tubewell. The driver of the car after leaving the prosecutrix and the three
accused persons there went away with the car. In the said kotha Gurmit Singh
A
compelled the prosecutrix to take liquor, misrepresenting to her that it was
i.uice. Her refusal did not have any effect and she reluctantly consumed
liquor. Gurmit Singh then got removed her salwar and also opened her shirt. B
She was made to lie on a cot in the kotha while his companions guarded the
kotha from outside. Gurmit Singh cominitted rape upon her. She raised roula
as she was suffering pain but Gurmit Singh threatened to kill her if she
persisted in raising alarm. Due to that threat, she kept quiet. After Gurmit
Singh had committed rape upon her, the other two accused, who were earlier
guarding the kotha from outside, came in one by one, and committed rape
c
upon her. Jagjit Singh alias Bawa committed rape on her after Gurmit Singh
and thereafter Ranjit Singh committed rape on her. Each one of the accused
committed sexual intercourse with the prosecutrix forcibly and against her
will. They all subjec:ed her to sexual intercourse once again during the night
against her will. Next morning at about 6.00 a.m., the same car arrived at D
the tubewell kotha of Ranjit Singh and the three accused made her to sit in
that car and left her near the Boys High School, Pakhowal near about the
place from where she had been abducted. The prosecutrix had to take her
examination in the subject of Hygiene on that date. She, after taking her
examination in Hygiene, reached her village Nangal-kalan, at about noon E
time and narrated the entire story to her mother, Smt. Gurdev Kaur, PW 7.
Her father Trilok Singh PW 6 was not present in the house at that time. He
returned from his work late in the evening. The mother of the prosecutrix,
, Smt. Gurdev Kaur PW 7, narrated the episode to her husband Trilok Singh
PW 6 on his arrival. Her father straightaway contacted Sarpanch Joginder F
Singh of the village. A panchayat was convened. Matter was brought to the
notice of the Sarpanch of village Pakhowal also. Both the Sarpanches, tried
to effect a compromise on 1.4.1984 but since the panchayat could not give
any justice or relief to the prosecutrix, she alongwith her falher proceeded
to the police station Raikot to lodge a report about the occurrence with the
police. When they reached at the bus adda of village Pakhowal, the police G
met them and she made her statement, Ex. PD, before AS! Raghubir Chand
PW who made an endorsement, Ex. PD/I and sent the statement Ex. PD of
the prosecutrix to the police station Raikot for registration of the case on the
basis of which formal FIR Ex. PD/2 was registered by SI Malkiat Singh. AS!
Raghubir Chand then took the prosecutrix and her mother to the primary H
538 SUPREME COURT REPORTS [1996] l S.C.R.
A health centre Pakhowal for medical examination of the prosccutrix. She was
medically examined by lady doctor Dr. Sukhwinder Kaur, PW 1 on 2.4.84,
who found that the hymen of the prosecutrix was lacerated with fine rediate
tears, swollen and painful. Her pubic hair were also found mated. According
to PW! intercourse with the prosecutrix could be "one of the reasons for
laceration which I found in her hymen". She went on to say that the
B possibility could not be ruled out that the prosecutrix "was not habitual to
intercourse earlier."
During the course of investigation, the police took into possession a
sealed parcel handed over by the lady doctor containing the salwar of the
prosecutrix alongwith 5 slides of vaginal smears and one sealed phial
c containing pubic hair of the prosecutrix, vide memo Ex. PK. On the pointing
out of the prosecutrix, the investigating officer prepared the rough site plan
Ex. PF, of the place from where she had been abducted. The prosecutrix also
had led the investigating officer to the tubewell kotha of Ranjit Singh where
she had been wrongfully confined and raped. The investigating officer
D prepared a rough site plan of the Kotha Ex. PM. A search was made for the
accused on 2.4.1984 but they were not found. They were also not traceable
on 3.4.1984, inspite of a raid being conducted at their houses by the ASL
On 5.4.1984 Jagjit Singh alias Bawa and Ranjit Singh were produced before
the investigating officer by Gurbachan Singh PW 8 and were placed under
arrest. Both Ranjit Singh and Jagjit Singh on the same day were produced
E before Dr. B.L. Bansal PW 3 for medical examination. The doctor opined
that both the accused were fit to perform sexual intercourse. Gurmit Singh
respondent was arrested on 9.4.1984 by SI Malkiat Singh. He was also got
medically examined on 9.4.1984 from Dr. B.L. Bansal PW 3 who opined that
Gurmit Singh was also fit to perform sexual intercourse. The sealed parcels
F containing the slides of vaginal smears, the pubic hair and the salwar of the
prosecutrix, were sent to the chemical examiner. The report of the chemical
examiner revealed that semen was found on the slides of vagnial smear
though no spermatozoa was found either on the pubic hair or the salwar of
the prosecutrix. On completion of the investigation, respondents were
challaned and were charged for offences under Sections 363,366, 368 and
G 376 !PC.
With a view to connect the respondents with the crime, the prosecution
examined Dr. Sukhwinder Kaur, PW!; prosecutrix, PW 2; Dr. B.L. Bansal,
PW 3; Tirlok Singh, father of the prosecutrix, PW 6; Gurdev Kaur, mother
H of the prosecutrix, PW 7; Gurbachan Singh, PW 8; Malkit Singh, PW 9 and
STATE v. GURMIT SINGH [DR. ANAND, J.] 539
SI Raghubir Chand PW 10, besides, some formal witnesses like the A
draftsman etc. The prosecution tendered in evidence affidavits of some of the
constables, whose evidence was of a formal nature as also the report of the
chemical examiner, Ex. PM. In their statements recorded under Section 313
Cr. P.C. the respondents denied the prosecution allegations against them.
Jagjit Singh respondent stated that it was a false case foisted on him on B
account of his enmity with the Sarpanch of village Pakhowal. He stated that
he had married a Canadian girl in· the village Gurdwara, which was not liked
1 to by the sarpanch and therefore the sarpanch was hostile to him and had got
• him falsely implicated in this case. Gurmit Singh - respondent took the stand
that he had been falsely implicated in the case on account of enmity between
his father and Trilok Singh, PW6, father of the prosecutrix. He stated that
c
there was long standing -litigation going on between his father and the father
of the prosecutrix and their family members were not even on speaking
terms with each other. He went on to add that on 1.4.1984 he was given
beating by Tirlok Singh, PW 6, on grounds of suspicion that he might have
instigated some persons to abduct his daughter and in retaliation he and his D
, elder brother on the next day had given beating to Trilok Singh, PW 6 and
also abused him and on that account Trilok Singh PW 6, in consultation with
the police had got him falsely implicated in the case. Ranjit Singh respondent
also alleged false implication but gave no reasons for having been falsely
implicated. Jagjit Singh alias Bawa produced DW-1 Kuldip Singh and DW- E
2 MHC, Amarjit Singh in defence and tendered in evidence Ex. DC, a
photostat copy of his passport and Ex. DD copy of a certificate of his
marriage with the Canadian girl. He also tendered into evidence photographs
, marked 'C' and 'D', evidencing his marriage with the Canadian girl. The
other two accused however did not lead any defence evidence.
F
The trial court .first dealt with the prosecution case relating to the.
abduction of the prosecutrix by the respondents and observed :
"The first point for appreciation before me would arise whether this
part of the prosecution story stands fortified by any cogent or reliable
G
evidence or not. There is a bald allegation only of (prosecutrix-name
omitted) that she was forcibly abducted in a car. In the F.LR. she
stated that she was abducted in an Ambassador Car of blue colour.
After going through the evidence, I am of the view that this thing
has been introduced by the prosecutrix or by her father or by the
thanedar just to give the gravity of offence. (Prosecutrix name H
,
540 SUPREME COURT REPORTS [1996] 1 S.C.R.
A omitted) was tested about the particulars of the car and she is so
ignorant about the make etc. of the car that entire story that she was
abducted in the car becomes doubtful. She stated in her cross-
exarnination at page No. 8 that the make of the car was Master. She
was pertinently asked whether the make of the car was Ambassador
or Fiat. The witness replied that she cannot tell the "make of the car.
B
But when she was asked as to the difference between Fiat, Ambas-
sador or Master car, she was unable to explain the difference among
these vehicles. So, it appears that the allegations that she was
abducted in a Fiat Car by all the three accused and the driver, is an
imaginary story which has been given either by the thanedar or by
c the father of the prosecutrix."
"If the three known accused are in the clutches of the police, it is not
D
difficult for the LO. to come to know about the car, the name of its
driver etc., but strange enough, SI Raghbir Chand had shown pitiable
negligence when he could not find out the car driver inspite of the fact
that he directed the investigation on these lines. He had to admit that
he made search for taking the car into possession allegedly used in the
E occurrence. He could not find out the name of the driver nor could he
find out which car was used. In these circumstances, it looks to be
improbable that any car was also used in the alleged abduction".
(Omission of name of the prosecutrix - ours)
The trial Court further commented :
F
"On 30th March, 1984 she was forcibly abducted by four desperate
persons who were out and out to molest her honour. It has been
admitted by the prosecutrix that she was taken through the bus adda
of Pakhowal via metalled road. It has come in the evidence that it
is a busy centre. Inspire of that fact she has not raised any alrarn,
G so as to attract persons that she was being forcibly taken. The height
of her own unnatural conduct is that she was left by the accused at
the same point on the next morning. The accused would be the last
person to extend sympathy to the prosecutrix. Had it been so, the
natural conduct of the prosecutrix was first to rush to the house of
H her maternal uncle to apprise him that she had been forcibly
STATE v. GURMIT SINGH [DR. ANAND, J.] 541
abducted on the previous day. The witness after her being left at the A
place of abduction lightly takes her examination. She does not
complain to the lady teachers who were deployed to keep a watch
on the girl students because these students are to appear in the centre
of Boys School. She does not complain to anybody nor her friend
that she was raped during the previous night. She prefers her
B
examination rather than to go to the house of her parents or relations.
Thereafter, she goes to her village Mangat Kalan and informs for the
1
first time her mother that she was raped on the previous night. This
• part of the prosecution story does not look to be probable."
The trial court, thus, disbelieved the version of the prosecutrix C
basically for the reasons; (i) "She is to ignorant about the make etc. of the
car that entire story that she. was abducted in the car becomes doubtful"
particularly because she could not explain the difference between a Fiat car,
Ambassador car or a Master car; (ii) the investigating officer had "shown
pitiable negligence" during the investigation by not tracing out the car and
D
the driver; (iii) that the prosecutrix did not raise any alarm while being
abducted even though she had passed through the bus adda of village
pakhowal (iv) that the story of abduction "has been introduced by the
prosecutrix or by her father or by the thanedar just to give the gravity of
offence" and (v) ihat no corroboration of the statement of the prosecutrix was
available on the record and that the story that the accused had left her near E
the school next morning was not believable because the accused could have
no "sympathy" for her.
• The trial court also disbelieved the version of the prosecutrix regarding
rape. It found that the testimony of the prosecutrix did not inspire confidence F
for the reasons (i) that there had been delay in lodging the FIR and as such
the chances of false implication of the accused could not be ruled out.
According to the trial court Trilok Singh PW 6 became certain on 1.4.84 that
there was no outcome of the meeting between the panchayats Nangalkhurd
and Pakhowal therefore the was no justification for him not to have lodged
the report on 1.4.84 itself and since Trilok Singh had "entered into G
consultations with his wife as to whether to lodge the report or not, it rendered
the matter doubtful." (ii) that the medical evidence did not help the
prosecution case. The trial court observed that in her cross-examination PW
I lady doctor had admitted that whereas inter-course with the prosecutrix
could be one of the reasons for the laceration of the hymen "there could be H
542 SUPREME COUl{T REPORTS [1996] l S.C.R.
A other reasons also for that laceration''. The trial court noticed that the lady
doctor had inserted a vaginal speculum for laking swabs from the posterior
vaginal fornix of the prosecutrix for preparing slides and since the width of
the speculum was about two fingers, the possibility that the prosecutrix was
habituated to sexual inter-course could not be ruled out". The trial court
observed that the prosecutrix was "flighting her imagination in order to rope
B
in the accused persons" and that implicit reliance could not be placed on the
testimony "of such a girl"; (iii) there was no independent corroboration of
her testimony and (iv) that the accused had been implicated on account of
enmity as alleged by the accused in their statements recorded under Section
31'.i Cr. P.C.
c
The grounds on which the trial court disbelieved the version of the
prosecutrix are not at all sound. The findings recorded by the trial court rebel
against realism and lose their sanctity and credibility. The court Jost sight of
the fact that the proseculrix is a village girl. She was student of Xlh Class. It
was wholly irrelevant and immaterial whether she was ignorant of the
D
difference between a Fiat, an Ambassador or a Master car. Again, the
statement of the prosecutrix at the trial that she did not remember the colour
of the car, though she had given the colour of the car in the FIR was of no
material effect on the reliability of her testimony. No fault could also be found
with the prosecution version on the ground that the prosecutrix had not raised
E an alarm while being abducted. The prosecutrix in her statement categorically
asserted that as soon as she was pushed inside the car she was threatened by
the accused to keep quiet and not to raise any alarm otherwise she would be
killed. Under these circumstances to discredit the prosecutrix for not raising '
an alarm while the car was passing through the Bus Adda is traversity of
F justice. The court over-looked 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 negli-
gent in not being able to trace out the driver or the car, how can that become
a ground to discredit the testimony of the prosecutrix? The prosecutrix had no
G 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 al! there was some delay, the same has not only been properly explained
' H by the prosecution but in the facts and circumstances of the case was also
1
STATE v. GURMIT SINGH [DR. ANAND, J.] 543
natural. The courts cannot over-look the fact that in sexual offences delay in A
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 prosecution has ex- B
plained that as soon as Trilok Singh PW 6, father of the prosecutrix came to
know from his wife, PW 7 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, where in the tube well kotha 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
c
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 D
• Singh PW 6 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 aild justification for the consultation between
Trilok Singh and his wife wh_en it found that the said circumstance had
rendered the version of the prosecutrix doubtful. Her statement about the E
manner in which she was abducted and again left near the school in the early
hours of next morning has a ring of truth. 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 observations of the trial
court that the story of the prosecutrix that she was left near the examination F
centre next morning at about 6 a.m. was "not believable" as the accused would
be the last persons to extend sympathy to the prosecutrix" are not at all
intelligible. The accused were not showing "any sympathy" to the prosecutrix
while driving her at 6.00 a.m. next morning tc the place from where she had
been abducted but on the other hand were removing her from the kotha of
G
_. Ranjit Singh and leaving her near the examination centre so as to avoid being
detected. 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- H
544 SI IPREME COURT REPORTS [1996] I S.C.R.
A 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 occurre.d, being conscious of the oanger of being
ostracized by the society or being looked down by the cociety. Her not
informing the teachers or her friends at the examination ~entre under the
B circumstances cannot detract from her reliability. In the normal course of
huma.1 conduct, this unmarried minor girl, would not like to give publicity to
the traumatic exporience she had undergone and would feel terribly embar-
rassed in relation to the incident to narrate it to her teachers and others over- •
powered by a feeling of shame and he1 natural inclination would be to avoiJ
talking about it to any r,e, lest the family name and honour is brought into
c controversy. Therefore her informing to her mother only on return to the
parental house and no one else at the examination centre prio. thereto is an
accord with the naturaJ human <onduct of a female. The courts must, while
evaluating evidence, remain ali"e to the fact that in a case of rape, no self-,
respecting woman would come forward in a court just to make a humiliatin;-
D statement against her honour such as is involved in the commission of rape on
her. In cases involvrng 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
E otherwise reliable prosecution case. The inherent bashfulness of the females
and the tenden<y to conceal outrage of sexual aggression are frctors which the
Courts should not over-look. 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 diffi,,dty to act on
F the testimony of r vktim of seimal 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 er
a woman who complains of rape or sexual molestation, be viewed with doubt,
disbelief or suspicion? T: ;e Court while appreciating the evidence of a
G prosecutrix may look for some assurance of her statement to sati • ."y it~ 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. The evidence
of a victim of sexual assault stands almost at par with the evidence of an
H injured witness and to an extent is even more reliable. Just as a witness who
STATE v. GURMIT SINGH [DR. ANAND, J.] 545
has sustained some injury in the occurrence which is not found to be self A
inflicted, is considered to be a good witness in the st.1se that he is least likely
'-;- to shield the real culpri~ 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 B
prosecutrix is not~ requirement of law but a guidance of prudence under given
circumstances. It must not be over-looked that a rtoman or a gtrl subjected to
sexual assault is not an accomplice tn the crime but is a victim of another
'( person's lust and it is improper and undesirable to test her evidence with a
• certain a"lount of suspicion, treating her as if she were an accomplice .
c
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 testimonial tyranny making
justice a casually. Courts cannot cling to a fossil formula and insist upon
corroboration even if, taken as a whole, 1he case spoken of by the victim of
sex crime strikes the judicial mind as probable. In State of Maharashtra v. D
Chaiulraprakash Kewalchand Jain, [1990] l SCC 550 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
E
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 Section 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 F
evidence as in the case of an i11jured 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 G
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 H
546 SUPREME COURT REPORTS [1996] l S.C.R.
A 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
B evidence unless the same is shown to be infirm and not trustworthy.
If the totality and the circumstances appearing on the record of the
case disclose that the prosecutrix does not have· a stroag motive to
falsely involve the persori charged, the court should ordinarily have
11
no hesitation in accepting her evidence.
c 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
D 'corroboration'. However, in this case there is ample corroboration available
on the record to lend further credence to the testimony of the prosecutrix.
The medical evidence has lent full corroboration to the testimony of
the prosccutrix. According lo PW 1 lady Doctor Sukhvinder Kaur she had
examined the prosecutrix on 2.4.84 at about 7.45 p.m. at the Primary Health
E
Centre, Pakhowal, and had found that "her hymen was lacerated with fine
rediate tears, swollen and painful". The pubic hair were also found mated.
She opined that inter-course with the prosecutrix could be "one of the reason
for the laceration of the hymen" of the prosecutrix. She also opined that the
"possibility cannot be ruled out that (prosecutrix) was not habitual of inter-
F course earlier to her examination by her on 2.4.84". During her cross-
examination, the lady doctor admitted that she had not inserted her fingers
inside the vagina of the prosecutrix during the medico-legal examination but
that she had put a vaginal speculum for taking the swabs from the posterior
vaginal fornix for preparing the slides. She disclosed that the size of the
G speculum was about two fingers and agreed with the suggestion made to her
during her cross-examination that "if the hymen of a girl admits two fingers
easily, the possibility that such a girl was habitual to sexual inter-course
cannot be ruled out". However, no direct and specific question was put by
the defence to the lady doctor whether the prosecutrix in the present case
H could be said to be habituated to sexual intercourse and there was no
STATE v. GURMIT SINGH [DR. ANAND, J.] 547
challenge to her statement that the prosecutrix 'may not have been subjected A
to sexual intercourse earlier'. No enquiry was made from the lady doctor
about the tear of the hymen being old. Yet, the trial court interpreted the
statement of PW I Dr. Sukhwinder Kaur to hold that the prosecutrix was
habituated to sexual inter-course since the speculum could enter her vagina
easily and as such she was " a girl of loose character". There was no warrant
B
for such a finding and the finding if we may say so with respect is a whoJly
irresponsible finding. In the face of the evidence of PW I, the trial court
wrongly concluded that the medical evidence had not supported the version
" of the prosecutrix .
•
The trial court totaJly ignored the report of the Chemical Examiner Ex.
PM, according to which semen had been found on the slides which had been
c
prepared by the lady doctor from the vaginal secretions from the posterior
of the vaginal fomix of the prosecutrix. The presence of semen on the slides
lent authentic corroboration to the testimony of the prosecutrix. This vital
evidence was foresaken by the trial court and as a result wholly erroneous
conclusions were arrived at. Thus, even though no corroboration is necessary D
to rely upon the testimony of the prosecutrix, yet sufficient corroboration ·
from the medical evidence and the report of the chemical examiner is
available on the record. Besides, her statement has been fuJly supported by
the evidence of her father, Tirlok Singh, PW 6 and her mother Gurdev Kaur
PW 7, to whom she had narrated the occurrence soon after her arrival at her E
house. Moreover, the unchallenged fact that it was the prosecutrix who had
led the investigating officer to the Katha of the tubeweJI of Ranjit Singh,
where she had been raped, lent a built-in assurance that the charge leveJled
by her was "genuine" rather than "fabricated" because it is no one's case that
she knew Ranjit Singh earlier or had ever seen or visited the kotha at his
tubeweJI. The trial court completely overlooked this aspect. The trial court F
did not disbelieve that the prosecutrix had been subjected to sexual inter-
course but without any sound basis, observed that the prosecutrix might have
spent the "night" in the company of some "persons" and concocted the story
on being asked by her mother as to where she had spent the night after her
maternal uncle, Darshan Singh, came to Nangal-Kalan to enquire about the G
prosecutrix. There is no basis for the finding that the prosecutrix had spent
the night in the company of "some persons" and had indulged in sexual
intercourse with them of her own free will. The observations were lnade .on
surmises and conjectures-the prosecutrix was condemned unheard.
The trial court was of the opinion that it was a 'false' case and that the H
548 SUPREME COURT REPORTS [1996] l S.C.R.
A accused had been implicated on account of enmity. In that connection it
observed that since Trilok Singh PW 6 had given beating to Gunnit Singh on
1.4.84 suspecting his hand in the abduction of his daughter and Gurmit Singh
accused and his elder brother had abused Trilok Singh and given beating to
Trilok Singh PW 6 on 2.4.84, "it was very easy on the part of Trilok Singh
to persuade his daughter to name Gurmit Singh so as to take revenge''. The
B
trial court also found that the relations between the family of Gunnit Singh
and of the prosecutrix were strained on acGount of civil litigation pending
between the parties for 7/8 years prior to the date of occurrence and that was
also the 'reason' to falsely implicate Gunnit Singh. Indeed, Gurrnit Singh
accused in his statement under Section 313 Cr. P.C. did raise such a plea but
c that rlea has remained unsubstantiated. Trilok Singh PW 6 categorically
denied that he had any litigation with the father of Gurrnit Singh at all and
went on to say no litigation had ever taken place between him and Muka~d
Singh father of Gurmit Singh over a piece of land or otherwise. To the similar
effect is the statemer.t of Gurdev Kaur PW 7 who also categorically stated
D that there had been no litigation between her husband and Mukand Singh
father of Gurrnit Singh. The trial court ignored this evidence and found
support for the plea of the accused from the statement of the prosecutrix in
which during the first sentence of her cross-examination she admitted that
litigation was going on between Mukand Singh father of Gurmit Singh and
her father for the last 8/9 years over a piece of land. Jn what context the
E statement was made is not clear. Moreover, the positive evidence of PW 6
and PW 7 that there was no litigation pending between PW 6 and the father
of Gunnit Singh completely belied the plea of the accused. If there was any
civil litigation pending between the parties as alleged by Gunnit Singh he
could have produced some documentary proof in support thereof but none
F was produced. Even Mukand Singh, father of Gunnit Singh did not appear in
the witness box to support the plea taken by Gunnit Singh. The allegation
regarding any beating given to Gurrnit Singh by PW 6 and to PW 6 by
Gurntit Singh and his brother was denied by PW 6 and no material was
brought forth in support of that plea either and yet the trial Court for
undisclosed reasons assumed that the story regarding the beating was correct.
G Some strny sentences in the statement of the proseuctirx appear to have been
unnecessarily blown out of all proportion to hold that "admittedly" PW~ had
been given beating by Gurmit Singh accused and that there was civil
litigation pending between the father of the prosecutrix and the father of
Gurrnit Singh to show that the relations between the parties were enemical.
H There is no acceptable material on the record to hold that there was any such
STATE v. GURMIT SINGH [DR. ANAND, J.] 549
civil litigation pending between the parties. Even if it be assumed for the sake A
of argument that there was ·same such litigation, it could hardly be a ground for
......,_
a father to put forth his daughter to make a wild allegation of rape against the
son of the opposite party, with a view to take revenge. It defies human
probabilities. No father could stoop so low as to bring forth a false charge of
rape on his unmarried minor daughter with a view to take revenge from the B
father of an accused on account ~f pending civil litigation. Again, if the
accused could be falesly involved on account of that enmity, it was equally
possible that the accused could have sexually assaulted the prosecutrix to take
{
revenge from her father, 'or after all, enmity is_a double edged weapon, which
• may be used for false implication as well as to take revenge. In any oase, there
c
is no proof of the existence of such enmity between PW 6 and the father of
Gurmit Singh which could have prompted PW 6 to put up his daughter to
falsely implicate Gurmit Singh on a charge of rape. The trial court was in error
to hold that Gurmit Singh had been implicated on account of enmity between
the two families and for the beating given by Gcrmit Singh and his brother to
PW 6, in retaliation of the beating given by PW 6 to Gurmit Singh on D
1.4.1984. Similarly, so far as Jagjit Singh respondent i~ concerned, the trial
~ court opined that he could have been got implicated at the instance of the
Sarpanch of village Pakhowal, who was hostile to Jagjit Singh. The ground of
hostility as given by Jagjit Singh against the Sarpanch of village Pakhowal
... stems out of the fact that the sarpanch was annoyed with him for marrying a E
Canandian girl in the village Gurdwara. There is no evidence whatsoever on
the record to show that the Sarpanch of village Pakhowal had any relationship
or connection with the prosecutrix or her father or was in any way in a position
).
to exert so much of influence on the prosecutrix or her family, that to settle his
~
score Trilok Singh PW 6 would put forward his daughter to make a false
F
allegation of rape and thereby jeopardise her own honour and future prosepects
of her marriage etc. The plea of Jagjit Singh alias Bawa like that of Gurmit
Singh did not merit acceptance and the trial. court erroneously accepted the
same without any basis. The plea of the accused was a plea of despair not
worthy of any crc..ience. Ranjit Singh, apart from stating that he had been
falsely implicated in the case did not offer any reasons for his false implica-
G
tion. It was at his tubewell kotha that rape had been committed on the
_,.. prosecutrix. She had pointed out that kotha to the police during investigation.
No ostensible reason has been suggested as to why the prosecutrix would
falsely involve Ranjit Singh for the commission of such a heinous crime and
nominate his Katha as the place where she had been subjected to sexual H
550 SUPREME COURT REPORTS [1996] l S.C.R.
A mocestation by the respondents. The trial court ignored that it is almost
inconceivable that an unmarried girl and her parents would go lo 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 Jagjit Singh and Gunnit Singh respondents.
From the statement of the prosecutrix, it clearly emerges that she was
B abducted and forcibly subjected to sexual intercourse by the three respondents
without her consent and against her will. In this fact situation the question of
age of the prosecutrix would pale into insignificance. However, in the present
case, there is evidence on the record to establish that on the date of the
occurrence, the prosecutrix was below 16 years of age. The prosecutrix
C herself and her parents deposed at the trial that her age was less than 16 years
on the date of the occurrence. Their evidence is supported by the birth
certificate E.x. P.J. Both Trilok Singh PW 6 and Gurdev Kaur PW 7, the father
and mother of the prosecutrix respectively, explained that initially they had
named their daughter, the prosecutrix, as Mahinder Kaur but her name was
D changed to ..... (name omitted), as according to the Holy Guru Granth Sahib
her name was.required to start with the word "chhachha" and therefore in the
school leaving certificate her name was correctly given. There was nothing to
disbelieve the explanation given by Trilok Singh and Gurdev Kaur in that
behalf. The trial court ignored the explanation given by the parents observing
E that "it could not be swallowed being a belated one". The trial court was in
error. The first occasion for inquiring from Trilok Singh PW 6 about the
change of the name of the prosecutrix was only at the trial when he was asked
about Ex. PJ and there had been no earlier occasion for him to have made any
such statement. It was, therefore, not a belated explanation. That apart, even
according to the lady doctor PW I, the clinical examination of the prosecutrix
F established that she was less then 16 years of age on the date of the
occurrence. The birth certificate Ex. PJ was not only supported by the oral
testimony of Trilok singh PW 6 and Gurdev Kaur PW 7 but also by that of the
school leaving certificate mark · B'. With a view to do complete justice, the
trial court could have summoned the concerned official from the school to
G prove various entries in the school leaving certificate. From the material on
the record, we have come to an unhesitating conclusion that the prosecutrix
was less than 16 years of age when she was made _a victim of the lust of the
respondents in the manner deposed to by her against"her will and without her
consent. The trial court did not record any positive finding as to whether or
H
STATE v. GURMIT SINGH [DR. ANAND, J.] 551
not the prosecutrix was below 16 years of age on 30th March 1984 and instead A
went on to observe that 'even assuming for the sake of argument that the
prosecutrix was less than 16 years of age on 30th March 1984, it could still not
help the case as she was not a reliable witness and was attempting to shield
her own co~duct by indulging in falsehood to implicate the respondents'. The
entire approach of the trial court in appreciating the prosecution evidence and B
drawing inferences therefrom was erroneous.
The trial court not only erroneously disbelieved the prosecutrix, but
quite uncharitably and unjustifiably even characterised her as a girl "of loose
morals" or "such type of a girl".
c
What has shocked our judicial conscience all the more is the inference
drawn by the court, based on no evidence and not even 011 a denied suggestion,
to the effect :
"The more probability is that (prosecutrix) was a girl of loose
character. She wanted to dupe her parents that she resided for one D
night at the house of her maternal uncle, but for the reasons best
known to her she does not do so and she preferred to give company
to some persons."
We must express our strong disapproval of the approach of the trial E
court and its casting a stigma on the character of the prosecutrix. The
observations lack sobriety expected of a Judge. Such like stigmas have the
potential of not only discouraging an even otherwise reluctant victim of
)-
sexual assault to bring forth complaint for trial of criminals, thereby making
the society to suffer by letting the criminal escape even a trial. The courts are
expected to use self-restraint while recording such findings which have larger F
repercussions so far as the future of the victim of the sex crime is concerned
and even wider implications on the society as a whoJe-where the victim of
crime is discouraged - the cri1ninal encouraged and in tum crime gets
rewarded! Even in cases, unlike the present case, where there is some
acceptable material on the. record to show that the victim was habituated to G
sexual intercourse, no such inference like the victim being a girl of "]oose
moral character" is permissible to be drawn from that circumstance alone.
Even if the prosecutrix, in a given case, has been promiscuous in her sexual
behaviour earlier, she has a right to refuse to submit herself to sexual
intercourse to anyone and everyone because she is not a vulnerable object or H
552 SUPREME COURT REPOIITS (1996) I S.C.R.
A prey for being sexually assaulted ty anyone and everyone. No stigma, like the
one as cast in the present case should be cast against such a witness by the
Court, for after all it is the accused and not the victim of sex crime who is on
trial in the Court.
As a result of the aforesaid discussion, we find that the prosecutrix has
B made a truthful statement and the prosecution has established the case against
the respondents beyond every reasonable doubt. The trial court fell in ~rror ·
in acquitting them of the charges levelled against them. The appreCiation of
evidence by the trial court is not only unreasonable but perverse. The
conclusions arrived at by the trial court are untenable and in the established
C facts and circumstances of the case, the view expressed by it is not possible
view. We, accordingly, set aside the judgment of the trial court and convict all
the three respondents for offences under Sections 363/366/368 and 376 !PC.
So far as the sentence is concerned, the court has to strike a just balance. In
this case the occurrence took place on 30.3.1984 (more than II years ago. The
D respondents were aged between 21-24 years of age at .the time when the
offence was committed. We are informed that the respondents have not been
involved in any other offence after they were acquitted by the trial court on
1.6.85, more than a decade ago. All the respondents as well as prosecutrix
must have by now got married and settled down in life. These are some of the
factors which we need to take into consideration while im;>0sing an appropri-
E
ate sentence on the respondents. We accordingly sentence the respondents for
the offence under section 376 IPC to undergo five years R.l. each and to pay
a fine of Rs. 5000 each and in default of payment of fine to I year's R.l.
each. For the offence under Section 363 !PC we sentence them to undergo
three years R.l. each but impose no separate sentence for the offence under
F Section 366/368 !PC. The substantive sentences of imprisonment shall,
however, run concurrently.
This Court in Delhi Domestic working Women's Forum v. Union of
India, [1995] I SCC 14, had suggested, on the formulation of a scheme, that
G at the time of conviction of a person found guilty of having committed the
offence of rape, the Court shall award compensation.
In this case, we have, while convicting the respondents, imposed, for
reasons already set out above, the sentence of 5 years R.I. with fine of Rs.
5000 and in default of payment of fine further R.l. for one year on each of
H the respondents for the offence under Section 376 !PC. Therefore, we do not,
STATE '" GURMIT SINGH (DR. ANAND, J] 553
""-t in the instant case, for those very reasons, consider it desirable to award any A
compensation, in addition to the fine already imposed, particularly as no
s..:heme also appears to have been drawn up as yet.
Before, parting with the case, there is one oth~r as"""t to which we
wculd like to adven to.
(
B
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
ali rpheres, we show little or no concern for her honour. It is a sad reflec:ion
en the attitude of indifference of the sodety towards the vi<'lation of human
dignity of the victims of sex crimes. We must remember that a rapist n~t only
viok•es the victim's priv.cy and personal integrity, but inevitably causes
c
se1ious psychological as well as physical harm in the process. Rape is not
merely a physical assault - it is often destru~tive 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
' D
a great responsibility while trying an accused on charges of rape. They must
" deal with such cases with utmost sensitivity. The Coons should examine the
broader probabilities of a case and not get swayed by minor contradictions
or insignificant discrepancie~ in the statement of the prosecutrix, which are
not of a fatal nature, to throw out an otherwise reliable prosecution case. If
eviden~e of the prosecutrix inspires confidence, it must be relied upon
E
without seeking corroboration of her statement in material particulars. If for
~ some reason the Coun finds it difficult to place implicit reliance on her
testimony, it may loo[; for evidence which may lend assurance to her
' testimony, shon of corroboration required in the case of an accomplice. The
testimony of the prosecutrix must be appreciated in thL background of the
entire case and the trial coun must be alive to its responsibility and be F
sensitive while dealing with cases involving sexual molestations.
There has been lately, lot of criticism of the treatment of the victims of
sexual aosault in the coun 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
G
->-
details of the rape. The victim is required to repeat again and again the details
of the rape incident not so much as to bring out the facts on record or to test
her credibility but to test her story for inconsistencies with a view to attempt
to twist the interpretation of events given by her sc; as to make them appear
inconsistent with her allegations. The coun, therefore, should not sit as a silent H
554 SUPREME COURT REPORTS [1996] l S.C.R.
A 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 lo 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
B
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 a confused stray sentence may be wrongly interpreted as
"discrepancies and contradictions" in her evidence.
c
The alarming frequency of crime against women led the Parliament to
enact Criminal Law (Amendment) Act, 1983 (Act 43 of 1983) to make the
law of rape more realistic. By the Amendment Act, sections 375 and 376
were amended and certain more penal provisions were incorporated for
punishing such custodians who molest a woman under their custody or care.
D Section IJ4-A was also added in the Evidence Act for drawing a conclusive
presumption as to the absence of consent in certain prosecutions for rape,
involving such custodians. Section 327 of the Code of Criminal Procedure
which deals with the right of an accused to an open trial was also amended
oy addition of sub-sections 2 and 3 after re-numbering the old Section as sub-
E sections (I). Sub-section 2 and 3 of Section 327 Cr. P.C. provide as follows
Section 327. Court to be open -
(2) Notwithstanding anything contained in sub-section (!), the
F inquiry into and trial of rape or an offence under Section 376,
Section 376-A, Section 376-B, Section 376-C or Section 376-D of
the Indian Penal Code shall be conducted in camera :
Provided that the presiding judge may, if he thinks fit, or on an
application made by either of the parties, allow any particular person
G to have access to, or be or remain in, the room or building used by
the Court.
(3) Where any proceedings are held under sub-section (2) it shall
not be lawful for any person lo print or publish any matter in relation
H to any such proceedings, except with the previous permission of the
STATE v. GURMIT SINGH [DR. ANAND, J.] 555
Court." A
These two provisions are in the nature of exception to the general. rule
of an open trial. Inspite of the amendment, however, it is seen that the trial
courts either are not conscious of the an1endment or do not realise its
importance for hardly does one come across a case where the enquiry and trial
of a rape case has been conducted by the court in camera. The expression that
B
the inquiry into and trial of rape "shall be conducted in camera" as occurring
in sub-section (2) of Section 327 Cr. P.C. is not only significant but very
important. It casts a duty on the Court to conduct the trial of rape cases etc.
invariably "in camera". The Courts are obliged to act in furtherance of the
intention expressed by the legislature and not to ignore its mandate and must C
invariably take recourse to the provisions of Section 327 (2) and (3) Cr. P.C.
and hold the trial of rape cases in camera. It would enable the vi_ctim of crime
to be a little comfortable and answer the questions with greater ease in not too
familiar a surroundings. Trial in camera would not only be in keeping with the
self respect of the victim of crime and in tune with the legislative intent but D
.
~
is also likely to improve the quality of the evidence of a prosecutrix because
she would not be so hesitant or bashful to depose frankly as she may be an
open court, under gaze of public. The improved quality of her evidence would
assist the courts in arriving at the truth and sifting truth from falsehood. The
High Courts would therefore be well advised to draw the attention of the trial
E
courts to the amended provisions of Section 327 Cr. P.C. and to impress upon
the Presiding Officers to invariably hold the trial of rape cases in camera,
rather than in the open court as envisaged by Section 327(2) Cr. P.C. When
trials are held in camera, it would not be law~ul for any person to print or
publish any matter in relation to the proceedings in the case, except with the
previous permission of the Court as envisaged by Section 327 (3) Cr. P.C. This F
would save any further embarrassment being caused to the victim of sex crime.
Wherever possible it may also be worth considering whether it would not be
more desirable that the cases of sexual assaults on the females are tried by
lady Judges, wherever available, so that the prosecutrix can make her
statement with greater ease and assist the _Courts to properly discharge their G
duties, without allowing the truth to be sacrificed at the altar of rigid
technicalities while appreciating evidence in such cases. The Courts should as
far as possible, avoid disclosing the name of the prosecutrix in their orders
to save further embarrassment to the victim of sex crime. The anonymity of
the victim of the crime must be maintained as far as possible throughout. In H
556 SUPREME COURT REPORTS [ 1996] I S.C.R.
A the present case, the trial court has repeatedly used the name of the victim
in its order under appeal, when it could have just· referred to her as the
prosecutrix. We need say no more on this aspect and hope that the trial
Courts would take rocourse to the provisions of Section 327 (2) and (3) Cr.
P.C. liberally. Trial of rape cases in camera should be the rule and an ope11
B trial in such cases an exception.
M.K. Appeal allowed.
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