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Friday, July 26, 2013

Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of.” = No test identification is necessary - She denied all the suggestions made by the prosecution that she was a girl of easy virtue or bad character and she was a consenting party to the said incident or she was habitual to sex.- when she categorically deposed that some boys also raped and she fell unconscious = The test identification parade could not be held as the prosecutrix had fled away from her village and gone to reside with her sister at Bokaro after being threatened by the accused, therefore, appellants should not be allowed to take the benefit of this circumstance. There is no prohibition in law to convict the accused of rape on the basis of sole testimony of the prosecutrix and the law does not require that her statement be corroborated by the statements of other witnesses.= under Section 313 Cr.P.C.,- No explanation had been furnished by either of them as to why the prosecutrix had deposed against them and involved them in such a heinous crime.= Rape cannot be treated only as a sexual crime but it should be viewed as a crime involving aggression which leads to the domination of the prosecutrix. In case of rape besides the psychological trauma, there is also social stigma to the victim. Majority of rapes are not sudden occurrences but are generally well planned as in this case. Social stigma has a devastating effect on rape victim. It is violation of her right of privacy. Such victims need physical, mental, psychological and social rehabilitation. Physically she must feel safe in the society, mentally she needs help to restore her lost self esteem, psychologically she needs help to overcome her depression and socially, she needs to be accepted back in the social fold. Rape is blatant violation of women’s bodily integrity. 17. After considering the case from all angles, we do not see any cogent reason to interfere with the findings of fact recorded by the courts below. The appeals lack merit and are, accordingly, dismissed.

                    reported in         http://judis.nic.in/supremecourt/imgst.aspx?filename=40588                         
       Non-Reportable


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                    CRIMINAL APPEAL NOS. 109-110 of 2011




      Md. Iqbal & Anr.
           …Appellants


                                   Versus




      State of Jharkhand
             …Respondent



                               J U D G M E N T

      Dr. B.S. Chauhan, J.


      1.    These appeals have been preferred against the impugned  judgment
      and order dated 2.9.2009 passed by the  High  Court  of  Jharkhand  at
      Ranchi in Criminal Appeal Nos. 316 and 218 of 2002, by which the Court
      has affirmed the judgment and order of the trial court dated 22.5.2002
      passed in GR. No. 151 of  1999,  by  which  the  appellants  had  been
      convicted for the offence punishable under Section 376(2)(g) of Indian
      Penal Code, 1860 (hereinafter referred to as the  ‘IPC’).  
They  were
      sentenced to undergo RI for a period of 10 years and further, to pay a
      fine of Rs.5,000/- each, and  in  default  of  the  same,  to  further
      undergo RI for a period of 6 months.
However, both the appellants were
      acquitted of charges punishable under Sections 3(1)(xii)  and  3(2)(v)
      of The Scheduled  Castes  and  the  Scheduled  Tribes  (Prevention  of
      Atrocities) Act, 1989.


      2.    Facts and circumstances giving rise to these appeals are that:
      A.    Aliva Kongari (PW.10) – the prosecutrix  at  about  10  a.m.  on
      13.6.1999 came to the district headquarters Simdega from  her  village
      Jhingur Pani Toli.
There she met her  friends  Kiran  and  Shashi  and
      alongwith them  she  went  to  enjoy  a  movie  at  the  cinema  hall.
      Thereafter, she proceeded towards the vegetable market. Here, she  was
      followed by two boys (appellants) who  told  her  to  accompany  them.
      Though, she refused to go with them, they caught hold of her hands and
      took her forcibly to a school situated in Bhathi Toli  and  there  she
      was subjected to rape by both of them.
      B.    Subsequently, other boys also came there and some of  them  also
      raped her.  
However,  she  was  tired  and  became  unconscious.  She
      regained her consciousness in the morning and nearby, she saw  an  old
      lady.
One of the appellants, was also there just outside  the  school.
      On enquiring,  the old lady told  her that his name was Iqbal.
      C.    The  prosecutrix  went  to  the  police  station  and  lodged  a
      complaint. Her statement was recorded. Her clothes,  particularly  her
      petticoat was taken by the police and she was taken  to  the  hospital
      for  medical  examination.
In  view  of  the   aforesaid   complaint,
      investigation started and the appellants were arrested after 2-3 days.
      D.    After the conclusion of the investigation, the  chargesheet  was
      filed against the accused appellants.  They  pleaded  not  guilty  and
      thus,  were put to trial.
      E.    During the trial, most of the witnesses turned hostile.
 However,
      the trial court vide  impugned  judgment  and  order  dated  22.5.2002
      convicted and sentenced the appellants as  referred  to  hereinbefore.
      Their appeals have also been dismissed by the High Court vide impugned
      judgment and order dated 2.9.2009.
            Hence, these appeals.


      3.    Ms. Kumud Lata Das, learned counsel appearing for the appellants
      has submitted that 
the version of the prosecutrix is not in consonance
      with  medical evidence and the conduct of  the  prosecutrix  was  very
      unnatural.
Even the father of the prosecutrix who had been examined as
      a prosecution witness turned hostile and did not support the  case  of
      the prosecution.
Therefore, the version of the  prosecutrix  that  she
      had been taken from  the  market  by  the  appellants  to  the  school
      building where she was subjected to rape, is very  unlikely  as  these
      are public places  where  someone  would  have  come  to  her  rescue.
      Furthermore, in spite of the fact  that  the  school,  where  she  was
      subjected to rape had two rooms she was raped in a verandah, this  too
      seems  unlikely.
The  prosecution  failed  to  examine  the  material
      witnesses particularly the old lady who disclosed the name of  one  of
      the appellants as Iqbal to the  prosecutrix.
No  Test  Identification
      Parade was conducted. 
 Even the evidence of Surendra Kumar  (PW.9)  is
      far  from  satisfactory.  
Due  to  the  aforementioned  contentions,
      benefit of doubt should be given to  the  appellants.  Therefore,  the
      appeals deserve to be allowed.


      4.    Mr. Jayesh Gaurav, learned counsel appearing on  behalf  of  the
      State, has  opposed  the  appeal  as  there  are  concurrent  findings
      recorded by the courts below.
The test  identification  parade  could
 not be conducted because the prosecutrix had left her village for some other place  under  the  threat/pressure  of  the  accused.   
Further,
witnesses have turned hostile because of the pressure exerted  by  the accused-appellants.  
Thus, the appeals are liable to be dismissed.


      5. We have considered the rival submissions made  by  learned  counsel
      for the parties and perused the record.
      6.    Aliva Kongari, (PW.10), the prosecutrix, is  the  most  material
      witness. She deposed, that she was forcibly taken  by  the  appellants
      from the vegetable market to the school and  was  subjected  to  rape.
      Subsequently, other boys also came and some of them  also  raped  her.
      She  raised  hue  and  cry  and  was  very  tired.  Thus,  she  became
      unconscious. After regaining consciousness in the early  morning,  she
      approached the police station and lodged the  complaint.   She  showed
      her blood stained clothes as well as stains of a semen like  substance
      on them.  She had been medically examined on 15.6.1999.
            She further deposed that she was being  persistently  threatened
      from the appellants/accused, therefore, she left her house  after  the
      incident and went to stay with her sister at Bokaro.   She  identified
      both the appellants/accused in the court.  Her mother  had  died.  She
      had informed her father about the incident  when  he  came  to  police
      station on 14.6.1999.  
She denied all  the  suggestions  made  by  the
      prosecution that she was a girl of easy virtue or  bad  character  and
      she was a consenting party to the said incident or she was habitual to sex.


      7.    Dr. Jacika Dehm (PW.7)  who  had  examined  the  prosecutrix  on
      15.6.1999, found that her hymen was ruptured and noted  the  following
      injuries on her person:
            “3” x ½” abrasion on the medical side of right thigh.
           “½” x ½” abrasion on the medical side of left  thigh, which  may be due to sanitary pad.
           In the opinion of the  doctor,  
spermatozoa  was  not  found  in
vaginal swab examination and there was no injury in her  private
 parts.The patient was habitual to sexual intercourse.


           Dr. Jacika Dehm (PW.7)  proved the medical report.




      8.    Surendra Kumar Singh, S.I., (PW.9), the Investigating Officer of
      the case, deposed that in order to hold the T.I. parade, he tried  his
      best to locate the prosecutrix as she was not residing in her village.
       Her father had given in writing that the prosecutrix had  shifted  to
      Calcutta. Therefore, there would be no sanctity of T.I.  parade  after
      such an inordinate delay.


      9.    Majahar Alam (PW.1), Bablu Khan (PW.2), Kulanand Prasad  (PW.3),
      Md.  Yakir  (PW.5)  and  Abdul  Rashid  (PW.6)  were  the  prosecution
      witnesses.   Their  statements  under  Section  161  of  the  Criminal
      Procedure Code, 1973 (hereinafter referred to as `the Cr.P.C.’),  were
      only to the extent that they had gone to the place of occurrence after
      hearing commotion,  but they turned hostile and did  not  support  the
      case of the prosecution. Chaturdhan Pradhan, (PW.9), remained merely a
      formal witness who had to prove FIR only.


      10.   Father of the prosecutrix  Edmon  Kongari,  (PW.4),  had  turned
      hostile,  however, at the most, he could depose what  the  prosecutrix
      had told him on 14.6.1999 when he came  to  meet  her  in  the  police
      station.


      11.   Statement of the  prosecutrix  had  been  duly  corroborated  by
      medical evidence. Since she was examined two days after the  incident,
      it is natural that spermatozoa would not be found in her vaginal swab.




      12.   The  test  identification  parade  could  not  be  held  as  the
      prosecutrix had fled away from her village and gone to reside with her
      sister at Bokaro after being threatened  by  the  accused,  therefore,
      appellants  should  not  be  allowed  to  take  the  benefit  of  this
      circumstance.


      13.   The trial court has thoroughly appreciated the facts of the case
      and come to the conclusion that in view of the provisions  of  Section
      114-A of Indian Evidence Act,  1872  there  is  a  presumption  as  to
      absence of consent in case of gang rape and it will be  presumed  that
      the prosecutrix did not give consent, as this presumption is based  on
      the reasoning that nobody can be a consenting party to several persons
      simultaneously.   Thus, consent is not possible in the  case  of  gang
      rape.


      14.   There is no prohibition in law to convict the accused of rape on
      the basis of sole testimony of the prosecutrix and the  law  does  not
      require that her statement be corroborated by the statements of  other
      witnesses.
            In Narender Kumar v. State (NCT of Delhi),  AIR  2012  SC  2281,
      this Court has observed that even if a woman is of easy virtues or use
      to sexual intercourse, it cannot be a licence for any person to commit
      rape and it further held:

           “24.  Conviction  can  be  based  on  sole  testimony   of   the
           prosecutrix  provided  it  lends  assurance  of  her  testimony.
           However, in case the court has reason not to accept the  version
           of prosecutrix on its face value, it may look for corroboration.
           In case the evidence is read  in  its  totality  and  the  story
           projected by the prosecutrix is  found  to  be  improbable,  the
           prosecutrix case becomes liable to be rejected.


           The court must act with sensitivity and appreciate the  evidence
           in totality of the background of the entire case and not in  the
           isolation. Even if the prosecutrix is  of  easy  virtue/unchaste
           woman that itself cannot be a determinative factor and the court
           is required to adjudicate whether the accused committed rape  on
           the victim on the occasion complained of.”

      (See also: Vijay @ Chinee v. State of Madhya  Pradesh,  (2010)  8  SCC
      191)


      15.   In the statements of the accused/appellants  under  Section  313
      Cr.P.C.,  only  a  bold  statement  had  been   made   by   both   the
      accused/appellants that they were innocent.
No explanation  had  been
      furnished by either of them as to  why  the  prosecutrix  had  deposed
      against them and involved them in such a heinous crime.


      16.   Rape cannot be treated only as a sexual crime but it  should  be
      viewed as a crime involving aggression which leads to  the  domination
      of the prosecutrix. 
In case of rape besides the psychological  trauma,
      there is also social stigma to the victim. 
Majority of rapes  are  not
      sudden occurrences but are generally well planned  as  in  this  case.
      Social stigma has a devastating effect on rape victim. It is violation
      of  her  right  of  privacy.  
Such  victims  need  physical,   mental,
      psychological and social rehabilitation. 
Physically she must feel safe
      in the society, mentally she needs  help  to  restore  her  lost  self
      esteem, psychologically she needs help to overcome her depression  and
      socially, she needs to be accepted back in the social fold.  
 Rape  is
      blatant violation of women’s bodily integrity.


      17.   After considering the case from all angles, we do  not  see  any
      cogent reason to interfere with the findings of fact recorded  by  the
      courts below.  The appeals lack merit and are, accordingly, dismissed.






                                ……………………………..........J.                (DR.
                                B.S. CHAUHAN)



……………..................................J.
                                                               (S.A.  BOBDE)

      NEW DELHI;
      July 22, 2013




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