//
you're reading...
legal issues

sections 376 (2) (g) , 376, 506, 366 and 363 IPC = The trial court has examined the issue on age and after examining the school certificate (Ext. P-N), which stood duly proved by Lakhi Ram (PW-11), Science teacher, Government High Court, Badhana and Gajraj Singh, teacher, Govt. Primary School, Badhana, came to the conclusion that her date of birth as per the school register was 4.6.1987. So on the date of incident i.e. 7.3.2001, she was 13 years 9 month and 2 days old. She was a student of 6th standard ; this Court held that fact of admission of two fingers and the hymen rupture does not give a clear indication that prosecutrix is habitual to sexual intercourse. The doctor has to opine as to whether the hymen stood ruptured much earlier or carried an old tear. The factum of admission of two fingers could not be held adverse to the prosecutrix, as it would also depend upon the size of the fingers inserted. The doctor must give his clear opinion as to whether it was painful and bleeding on touch, for the reason that such conditions obviously relate to the hymen. ; “Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of “easy virtues” or a women of “loose moral character” can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all”. Thus, in view of the above, undoubtedly, the two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent.

Page 1

English: penal code

English: penal code (Photo credit: Wikipedia)

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1226 OF 2011
LILLU @ RAJESH & ANR. Appellants
VERSUS
STATE OF HARYANA Respondent
O R D E R
1. This criminal appeal has been preferred against the impugned
judgment and order dated 20.9.2010 passed by the High Court of
Punjab & Haryana at Chandigarh in Criminal Appeal No. 243-DB of
2002, by way of which the High Court has affirmed the judgment and
order dated 4.3.2002 passed by the Additional Sessions Judge, Jind in
Sessions Case No. 37 of 2001, by way of which the appellant no. 1
has been convicted under Section 376 of the Indian Penal Code, 1860
(hereinafter referred to as `IPC’) and awarded the sentence of seven
years rigorous imprisonment with a fine of Rs. 5,000/- and in defaultPage 2
of making payment, to further undergo imprisonment for two years.
Further he has been convicted under Section 506 IPC and awarded the
sentence of two years rigorous imprisonment. Both the sentences have
been directed to run concurrently. The other co-accused, namely,
Manoj, Satish @ Sitta and Kuldeep have been convicted separately
under sections 376, 506, 366 and 363 IPC. Kuldeep Singh alone has
been found guilty under Section 376 (2) (g) IPC, and has been
awarded sentence of life imprisonment. Out of these four convicts,
Kuldeep Singh and Manoj did not prefer any appeal against the High
Court’s judgment, while appellant nos.1 and 2 preferred the present
appeal. Appellant no.2 had died during the pendency of this appeal
in jail, therefore, we are concerned only with the case of appellant
no.1 i. e. Lillu @ Rajesh.
2. Mr. J.P. Singh, learned counsel for the appellant, submitted that
the prosecution has failed to prove the date of birth of the prosecutrix
and that she was about 17-18 years of age on the date of incident.
Thus, it was a clear cut case of consent. The statement of Raj Bala,
prosecutrix has not been corroborated by any of the witnesses and has
not got corroborated by the medical evidence. Dr. Malti Gupta (PW-
1), who had examined Raj Bala, prosecutrix medically had deposedPage 3
that there was no external mark of injury on any part of her body. The
possibility of prosecutrix being habitual to sexual intercourse could
not be ruled out. There was no bleeding. Thus, in such a fact-situation,
the statement of the prosecutrix that she was unmarried and had never
indulged in sexual activity with any person, or was below 16 years,
could not be relied upon.
3. On the other hand, the State of Haryana, as usual, remained
unrepresented as the government counsel duly appointed by the State
considered it their privilege not to appear in court and become the
burden on public exchequer. So, the court has to examine the case
more consciously going through the record and examine the
correctness of the findings recorded by the courts below.
4. The trial court has examined the issue on age and after
examining the school certificate (Ext. P-N), which stood duly proved
by Lakhi Ram (PW-11), Science teacher, Government High Court,
Badhana and Gajraj Singh, teacher, Govt. Primary School, Badhana,
came to the conclusion that her date of birth as per the school register
was 4.6.1987. So on the date of incident i.e. 7.3.2001, she was 13
years 9 month and 2 days old. She was a student of 6th standard. ToPage 4
refute the same, no evidence worth the name has been led by the
accused-appellant. The said finding stood affirmed by the High Court
and in view thereof, it remains totally immaterial whether the
prosecutrix was a consenting party or not.
5. So far as the medical evidence is concerned, Dr. Malti Gupta
(PW-1), Medical Officer, Civil Hospital, Jind, has deposed that Raj
Bala, prosecutrix was habitual in sexual activities and such a
statement was made in view of the medical examination. Relevant
part thereof reads as under:
“Bilateral breast were moderately developed, There was
no external mark of injury seen any where on the body.
Axillary heir was not developed. Public hair were
partially developed.
On local examination labia majora and labia minora were
moderately developed.
There was no bleeding P/V. Whitish discharge was
present. Hymen was completely torn.
Vagina admitted two fingers cervix was normal, uterus
was of null parous by lateral FF were normal.
….Two swabs were taken from cervix vagina. Public hair
were taken and sent for examination. Salwar worn by Raj
Bala was taken and sealed following were handed over to
the police.
….It is correct that I have given my opinion that hymen
was completely torn. Page 5
….It is also correct that the marginas were completely
heeled. I cannot give the exact time.
….I cannot say whether it was torn one year back 2 years
back or 10 days back.
….I cannot say whether there was any sign of semen on
the swabs taken by me.”
She further deposed:
“…. Since there was no matting of hair so I did not opine
whether there was any semen on the public hair.
….I do not remember whether I enquired from Raj Bala
whether she came to me for medico legal examination
after washing clothes and taking bath or not. However,
the salwar worn by her was taken into custody. I cannot
say from how many days Raj Bala was having sexual
activities. The possibility of Raj Bala of habitual sexual
intercourse cannot be ruled out.”
6. In fact, much has been argued by Mr. J.P. Singh on two fingers
test. Admitting very fairly that in case she was a minor, the question
as to whether she had been habitual to sexual activities or not, is
immaterial to determine the issue of consent.
7. So far as the two finger test is concerned, it requires a serious
consideration by the court as there is a demand for sound standard of
conducting and interpreting forensic examination of rape survivors.

Page 6
8. In Narayanamma (Kum) v. State of Karnataka & Ors.,
(1994) 5 SCC 728, this Court held that fact of admission of two
fingers and the hymen rupture does not give a clear indication that
prosecutrix is habitual to sexual intercourse. The doctor has to opine
as to whether the hymen stood ruptured much earlier or carried an old
tear. The factum of admission of two fingers could not be held
adverse to the prosecutrix, as it would also depend upon the size of the
fingers inserted. The doctor must give his clear opinion as to whether
it was painful and bleeding on touch, for the reason that such
conditions obviously relate to the hymen.
9. In State of U.P. v. Pappu @ Yunus & Anr., AIR 2005 SC
1248, the Court held that a prosecutrix complaining of having been a
victim of an offence of rape is not an accomplice after the crime.
There is no rule of law that her testimony cannot be acted upon
without corroboration in material particulars, for the reason, that she
stands on a much higher pedestal than an injured witness.
This Court while dealing with the issue in State of Uttar
Pradesh v. Munshi, AIR 2009 SC 370, has expressed its anguish and
held that even if the victim of rape was previously accustomed to
sexual intercourse, it cannot be the determinative question. On thePage 7
contrary, the question still remains as to whether the accused
committed rape on the victim on the occasion complained of. Even if
the victim had lost her virginity earlier, it can certainly not give a
licence to any person to rape her. It is the accused who was on trial
and not the victim. So as to whether the victim is of a promiscuous
character is totally an irrelevant issue altogether in a case of rape.
Even a woman of easy virtue has a right to refuse to submit herself to
sexual intercourse to anyone and everyone, because she is not a
vulnerable object or prey for being sexually assaulted by anyone and
everyone. A prosecutrix stands on a higher pedestal than an injured
witness for the reason that an injured witness gets the injury on the
physical form, while the prosecutrix suffers psychologically and
emotionally.
10. In Narender Kumar v. State (NCT of Delhi), AIR 2012 SC
2281, this Court dealt with a case where the allegation was that the
victim of rape herself was an unchaste woman, and a woman of easy
virtue. The court held that so far as the prosecutrix is concerned, mere
statement of prosecutrix herself is enough to record a conviction,
when her evidence is read in its totality and found to be worth
reliance. The incident in itself causes a great distress and humiliationPage 8
to the victim though, undoubtedly a false allegation of rape can cause
equal distress, humiliation and damage to the accused as well. The
Court further held as under:
“Even in cases where there is some material to show
that the victim was habituated to sexual intercourse, no
inference of the victim being a woman of “easy virtues”
or a women of “loose moral character” can be drawn.
Such a woman has a right to protect her dignity and
cannot be subjected to rape only for that reason. She has
a right to refuse to submit herself to sexual intercourse to
anyone and everyone because she is not a vulnerable
object or prey for being sexually assaulted by anyone
and everyone. Merely because a woman is of easy virtue,
her evidence cannot be discarded on that ground alone
rather it is to be cautiously appreciated. (Vide: State of
Maharashtra & Anr. v. Madhukar Narayan Mardikar,
AIR 1991 SC 207; State of Punjab v. Gurmit Singh &
Ors., AIR 1996 SC 1393; and State of U.P. v. Pappu @
Yunus & Anr., AIR 2005 SC 1248).
In view of the provisions of Sections 53 and 54 of the
Evidence Act, 1872, unless the character of the
prosecutrix itself is in issue, her character is not a
relevant factor to be taken into consideration at all”.
11. In State of Punjab v. Ramdev Singh, AIR 2004 SC 1290, this
court dealt with the issue and held that rape is violative of victim’s
fundamental right under Article 21 of the Constitution. So, the courts
should deal with such cases sternly and severely. Sexual violence,
apart from being a dehumanizing act, is an unlawful intrusion on the
right of privacy and sanctity of a woman. It is a serious blow to herPage 9
supreme honour and offends her self-esteem and dignity as well. It
degrades and humiliates the victim and where the victim is a helpless
innocent child or a minor, it leaves behind a traumatic experience. A
rapist not only causes physical injuries, but leaves behind a scar on the
most cherished position of a woman, i.e. her dignity, honour,
reputation and chastity. Rape is not only an offence against the person
of a woman, rather a crime against the entire society. It is a crime
against basic human rights and also violates the most cherished
fundamental right guaranteed under Article 21 of the Constitution.
12. In view of International Covenant on Economic, Social, and
Cultural Rights 1966; United Nations Declaration of Basic Principles
of Justice for Victims of Crime and Abuse of Power 1985, rape
survivors are entitled to legal recourse that does not retraumatize them
or violate their physical or mental integrity and dignity. They are also
entitled to medical procedures conducted in a manner that respects
their right to consent. Medical procedures should not be carried out in
a manner that constitutes cruel, inhuman, or degrading treatment and
health should be of paramount consideration while dealing with
gender-based violence. The State is under an obligation to make such
services available to survivors of sexual violence. Proper measuresPage 10
should be taken to ensure their safety and there should be no arbitrary
or unlawful interference with his privacy.
13. Thus, in view of the above, undoubtedly, the two finger test and
its interpretation violates the right of rape survivors to privacy,
physical and mental integrity and dignity. Thus, this test, even if the
report is affirmative, cannot ipso facto, be given rise to presumption
of consent.
14. In view of the above, the facts and circumstances of the case do
not present special features warranting any interference by this Court.
The appeal lacks merit and is accordingly dismissed.
….…………………………………………………………..J.
(Dr. B.S. CHAUHAN)
…..…………………………………………………………..J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
NEW DELHI;
April 09, 2013.

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,881,343 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers

Follow advocatemmmohan on WordPress.com
%d bloggers like this: