This case analysis is written by Madhur Samriti Sharma, a 4th year student of ICFAI Law School (IFHE), Hyderabad
1996 AIR 1393, 1996 SCC (2) 384
Anand, A.S. (J), Ahmad Saghir S. (J)
16th January 1996
- Sections 363, 366, 368, 376 IPC.
- Section 118 of the Evidence Act, 1872
Facts and Procedural History
- A young girl below 16 years of age, was studying in the 10th class at the time in Government High School, Pakhowal. The matriculation examinations were going on. The examination centre of the girl was located in the Boys High School, Pakhowal. On 30th March, 1984 at about 12.30 p.m. after taking her test in Geography, the girl was going to the house of her maternal uncle, Darshan Singh. When she had covered a distance of about 100 karmas from the school, a blue ambassador car being driven by a Sikh youth aged 20/25 years came from behind. In that car Gurmit Singh, Jagjit Singh Bawa and Ranjit Singh were sitting. The car stopped near her. Ranjit Singh came out of the car and caught hold of the girl from her arm and pushed her inside the car. Jagjit Singh Bawa put his hand on the mouth of the girl while Gurmit Singh threatened the girl, that in case she raised an alarm she would die.
- All the three accused (respondents herein) drove her to the tube well of Ranjit Singh. She was taken to the `kotha’ of the Tube well. The driver of the car after leaving the girl and the three accused persons there went away with the car. In the said kotha, Gurmit Singh compelled the girl to take liquor, falsifying to her that it was juice. Her refusal did not have any effect and she unwillingly consumed liquor. Gurmit Singh then got removed her salwar and also opened her shirt. She was made to lie on a cot in the kotha while his companions guarded the kotha from outside. Gurmit Singh committed rape upon her. She raised rule as she was suffering pain but Gurmit Singh threatened to kill her if she continued 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 upon her.
- Each one of the accused committed sexual intercourse with the girl forcibly and against her will. They all subjected 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 the tube well 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 girl 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 time and narrated the entire story to her mother, Smt. Gurdev Kaur. Her father Trilok Singh was not present in the house at that time. He returned from his work late in the evening. The mother of the girl, narrated the incident to her husband Trilok Singh on his arrival. Her father straightaway contacted Sarpanch Joginder 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 affect a compromise on 1 April 1984 but since the panchayat could not give any justice of relief to the girl, she along with her father proceeded to the police station Raikot to lodge a report about the occurrence with the police. When they reached the bus adda (Bus Stand) of village Pakhowal, the police met them and she made her statement before ASI Raghubir Chand who made an endorsement, and sent the statement of the girl to the police station Raikot for registration of the case on the basis of which formal FIR was registered by SI Malkiat Singh. ASI Raghubir Chand then took the girl and her mother to the primary health centre Pakhowal for medical examination of the girl. She was medically examined by lady doctor DR. Sukhwinder Kaur on 2 April 1984, who found that the hymen of the girl was teared with fine radiate tears, swollen and painful. Her pubic hair were also found mated.
- According to DR. Sukhwinder Kaur, intercourse with the girl could be “one of the reasons for laceration which I found in her hymen”. She went on to say that the possibility could not be eliminated that the girl “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 girl along with 5 slides of vaginal smears and one sealed phial containing pubic hair of the girl. On the pointing out to the girl, the investigating officer prepared the rough site plan of the place from where she had been abducted. The girl also led the investigating officer to the tube well kotha of Ranjit Singh where she had been wrongfully confined and raped. The investigating officer prepared a rough site plan of the Kotha. A search was made for the accused on 2 April 1984 but they were not found. They were also not traceable on 3 April 1984, in spite of a raid being conducted at their houses by the ASI.
- On 5 April 1984 Jagjit Singh Bawa and Ranjit Singh were produced before the investigating officer by Gurbachan Singh and Jagjit Singh on the same day were produced before DR. B.L. Bansal for medical examination. The doctor opined that both the accused were fit to perform sexual intercourse. Gurmit Singh respondent was arrested on 9 April 1984 by SI Malkiat Singh. He was also got medically examined on 9 April 1984 from DR. B.L. Bansal who opined that Gurmit Singh was also fit to perform sexual intercourse. The sealed parcels containing the slides of vaginal smears, the pubic hair and the salwar of the girl were sent to the chemical examiner. The report of the chemical examiner revealed that semen was found on the slides of vaginal smear, though no spermatozoa was found either on the pubic hair or the salwar of the girl. On completion of the investigation, respondents were challenged and were charged for offences under Sections 363, 366, 368, 376 IPC.
- With a view to connect the respondents with the crime, the prosecution examined DR. Sukhwinder Kaur, PW1; The Girl, PW2; DR. B.L. Bansal, PW3; Trilok Singh, father of the girl, PW6; Gurdev Kaur, mother of the girl, PW7; Gurbachan Singh, PW8; Malkit Singh, PW9 and SI Raghubir hand PW10, besides, some formal witnesses like the 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. 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 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 to by the Sarpanch and therefore the Sarpanch was intimidating 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 girl.
- He stated that there was long standing litigation going on between his father and the father of the girl and their family members were not even on speaking terms with each other. He went on to add that on 1 April 1984 he was given beating by Trilok Singh PW6, on grounds of suspicion that he might have instigated some persons to abduct his daughter and in retaliation he and his elder brother on the next day had given beating to Trilok Singh, PW6 and also abused him and on that account Trilok Singh PW, 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 Bawa produced DW-1 Kuldip Singh and DW-2 MHC, Amarjit Singh in defence and tendered in evidence, a Photostat copy of his passport and 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.
- The Trial Court hastily acquitted the accused which is under the challenge here.
Issues before the Court
- Whether the prosecution’s story stands fortified by any lucid or trustworthy evidence or not and if there’s any need for validating evidence to be brought in court as per the Evidence Act of 1872?
- The judge opined that according to the evidence act Corroborative evidence is not a vital element in every case of rape and is only as used as a guidance paradigm and not as substantiate law in judicial proceedings. A prosecutrix of a sexual crime cannot be put on par with an assistant and should remain as a victim of the crime (the evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness, if not more). The evidence act does not state that a victim’s evidence cannot be accepted unless it is corroborated in material particulars and according to the same act it can be stated that the prosecutrix is a competent witness. Under Section 118 her evidence must receive the same credibility.
- Furthermore, extra care and caution must be provided to evaluate her evidence. The bench stated that the court needs to be conscious of the fact that if it chooses to not trust on the testimony of the prosecutrix it can look for evidence that may lend testimony’s assurance. The nature of this evidence, however, must depend on the essential facts and prerequisites. At the same time if the prosecutrix does not have a strong motive to falsely involve the person charged then the court must not hesitate in accepting her evidence.
There cannot be a deceased consistency in the rule of law and it is to be made stretchy based on different facts and circumstances. Courts cannot adhere to a fossil formula (in this case- insist upon corroboration of evidence) even if the court thinks that the victim is credible and trustworthy.
- If the court is poised at the prosecutrix’s evidence it must not ask for anything else and if the person is guilty of having committed the felony of rape, the victim will be given compensation.
- The court needs to be very sensitive in cases involving sexual assault and the testament of the victim must always be respected in the background.
- The high courts will be directed to consistently hold the trial of rape cases on the camera, rather than in the open court as envisaged by Section 327(2) Cr. P.C. and would be required to ask the presiding officers to do so as well.
- It is also directed that these kinds of cases will be tried by lady judges as much as possible so that the victim is granted the ease and can make her statement effective. This will also enable courts to preach and effectively discharge their duties.
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