Supreme Court of India
State Of Punjab vs Ramdev Singh on 17 December, 2003
Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity 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 more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted by this Court in Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty (AIR 1996 SC 922), the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the 'Constitution') The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos.
DELAY IN LODGING RAPE CASES NOT A GROUND TO THROW OUT THE PROSECUTION CASE:-
Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the same would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, same cannot by itself be a ground for disbelieving and discarding the entire prosecution version, as done by the High Court in the present case.
in the case of Bhupinder Kumar vs. State: 2015 SCC OnLine Del 9457, this Court has observed that delay in lodging of the FIR by a Prosecutrix is not fatal to the Prosecution case. Relevant paras are reproduced as under:
"12. One of the major contention of learned counsel for the appellant is that there is delay of 16 days in lodging the FIR therefore, the delay in lodging the FIR is fatal. The submission is devoid of any merit inasmuch case in Karnel Singh v. State of M.P, (1995) 5 SCC 518, it was held by Apex Court that merely because the complaint was lodged less than promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false. In Gurmit Singh (supra), it was observed that that in sexual offences delay in 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.
In the case of Tulshidas Kanolkarv. The State of Goa: (2003) 8 SCC 590, the Hon'ble Supreme Court has observed as under:
"... ... The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstances for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle."
ABSENCE OF INJURIES ON BODY :-
Absence of Injurties on body of victim would not negate the commission of offence.
It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would do. As was noted by Supreme Court in State of Rajasthan v. Noore Khan (2000 (3) Supreme 70) "Absence of injuries on the person of the prosecutrix has weighed with the High Court for inferring consent on the part of the prosecutrix. We are not at all convinced. We have already noticed that the delay in medical examination of the prosecutrix was occasioned by the factum of the lodging of the FIR having been delayed for the reasons which we have already discussed. The prosecutrix was in her teens. The perpetrator of the crime was an able-bodied youth bustling with energy and determined to fulfil his lust armed with a knife in his hand and having succeeded in forcefully removing the victim to a secluded place where there was none around to help the prosecutrix in her defence. The injuries which the prosecutrix suffered or might have suffered in defending herself and offering resistance to the accused were abrasions or bruises which would heal up in the ordinary course of nature within 2 to 3 days of the incident. The absence of visible marks of injuries on the person of the prosecutrix on the date of her medical examination would not necessarily mean that she had not suffered any injuries or that she had offered no resistance at the time of commission of the crime.
Absence of injuries on the person of the prosecutrix is not necessarily an evidence of falsity of the allegation or an evidence of consent on the part of the prosecutrix. It will all depend on the facts and circumstances of each case."
Supreme Court of India
State Of Maharashtra And Another vs Madhukar Narayan Mardikar on 23 October, 1990
Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. So also it is not open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate it against her wish. She is equally entitled to the protection of law. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard. At the most the officer called upon to evaluate her evidence would be required to administer caution unto himself before accepting her evidence.
POSITION OF CONSENT UNDER SECTION 90 :-
In State of H.P. v. Mange Ram, AIR 2000 SC 2798, this Court, while dealing with the issue held:
"Submission of the body under the fear or terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances." (Emphasis added)
In Uday v. State of Karnataka, AIR 2003 SC 1639, a similar view has been reiterated by this Court observing : consent supposes 3 things , physical power to act , a mental power of acting and free and serious use of them.
“……We are inclined to agree with this view that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.”
In Pradeep Kumar Verma v. State of Bihar & Anr, AIR 2007 SC 3059, this Court held as under:
“9.The crucial expression in Section 375 which defines rape as against her will. It seems to connote that the offending act was despite resistance and opposition of the woman. IPC does not define consent in positive terms. But what cannot be regarded as consent is explained by Section 90 which reads as follows:
"consent given firstly under fear of injury and secondly under a misconception of fact is not consent at all."
That is what is explained in first part of Section 90. There are two grounds specified in Section 90 which are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries. The factors set out in first part of Section 90 are from the point of view of the victim and second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the Court has to see whether the person giving the consent has given it under fear or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology. As observed by this Court in Deelip Singh @ Dilip Kumar v. State of Bihar (2005 (1) SCC 88), Section 90 cannot be considered as an exhaustive definition of consent for the purposes of IPC. The normal connotation and concept of consent is not intended to be excluded.
In the case of Reg. v. William Case, (a) (1850) Crl. Law Cases 220 (Vol. IV) if a girl does not resist intercourse in consequence of misapprehension, this will not amount to a consent on her part. It was held that where a medical man, to whom a girl of fourteen years of age was sent for professional advice, had criminal connection with her, she making no resistance from a bona fide belief that he was treating her medically, he could be convicted for rape.
Similarly, in the case of The Queen v. Flattery (1877) 2 QBD 410 where the accused professed to give medical advice for money, and a girl of nineteen consulted him with respect to illness from which she was suffering, and he advised that a surgical operation should be performed and, under pretence of performing it, had carnal intercourse with her, it was held that he was guilty of rape.
Likewise, in the case of The King v. Williams (1923)1 KB 340 the accused was engaged to give lessons in singing and voice production to the girl of sixteen years of age had sexual intercourse with her under the pretence that her breathing was not quite right and he had to perform an operation to enable her to produce her voice properly. The girl submitted to what was done under the belief, wilfully and fraudulently induced by the accused that she was being medically and surgically treated by the accused and not with any intention that he should have sexual intercourse with her. It was held that the accused was guilty of rape.
Supreme Court of India
Dilip vs State Of M.P on 16 April, 2013
In Delhi Domestic Working Women’s Forum v. Union of India & Ors., (1995) 1 SCC 14, this Court found that in the cases of rape, the investigating agency as well as the Subordinate courts some times adopt totally a indifferent attitude towards the prosecutrix and therefore, this court issued following directions in order to render assistance to the victims of rape:
“(1) The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well-acquainted with the criminal justice system. The role of the victim's advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counselling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant's interests in the police station represent her till the end of the case.
(2) Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.
(3) The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.
(4) A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.
(5) The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorised to act at the police station before leave of the court was sought or obtained.
(6) In all rape trials anonymity of the victim must be maintained, as far as necessary. (228A ipc)
(7) It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatised to continue in employment.
(8) Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape.”
Undoubtedly, any direction issued by this Court is binding on all the courts and all civil authorities within the territory of India.
In addition thereto, it is an obligation on the part of the State authorities and particularly, the Director General of Police and Home Ministry of the State to issue proper guidelines and instructions to the other authorities as how to deal with such cases and what kind of treatment is to be given to the prosecutrix, as a victim of sexual assault requires a totally different kind of treatment not only from the society but also from the State authorities. Certain care has to be taken by the Doctor who medically examine the victim of rape. The victim of rape should generally be examined by a female doctor. Simultaneously, she should be provided the help of some psychiatric. The medical report should be prepared expeditiously and the Doctor should examine the victim of rape thoroughly and give his/her opinion with all possible angle e.g. opinion regarding the age taking into consideration the number of teeths, secondary sex characters, and radiological test, etc. The Investigating Officer must ensure that the victim of rape should be handled carefully by lady police official/officer, depending upon the availability of such official/officer. The victim should be sent for medical examination at the earliest and her statement should be recorded by the I.O. in the presence of her family members making the victim comfortable except in incest cases. Investigation should be completed at the earliest to avoid the bail to the accused on technicalities as provided under Section 167 Cr.P.C. and final report should be submitted under Section 173 Cr.P.C., at the earliest.
Supreme court of India
In Om Prakash v. State of U.P is a case decided by a two-judge bench , held that committing a rape on a woman "knowing her to be pregnant" is only convictable if it is proven that she is pregnant, otherwise the accused would be convicted for rape only. So If prosecution fails to show that accused had knowledge , accused will only be convicted of rape simpliciter.
Delhi High Court
Shiva @ Chandrika vs State on 1 July, 2019
This distinction assumes significance when one refers to Section 114A of the Evidence Act, on which the learned ASJ has chosen to place considerable reliance. Section 114A creates a ―presumption of absence of consent‖, where the prosecutrix so alleges, thereby shifting the onus, to prove presence of consent, on the accused. The protection of Section 114A of the Evidence Act would not, however, be available to the prosecutrix, in the present case,, as the offence committed by the appellant, even if it were to be deemed to have been so committed, would fall within Section 376(1) of the IPC,nd not under Section 376(2) thereof, and the applicability of Section 376(2) of the IPC is the statutory sine qua non, for Section 114A of the Evidence Act to apply.
TWO FINGER TEST UNCONSTITUTIONAL :-
In 2013, the Supreme Court had observed in the case Lilu @ Rajesh v State of Haryana and another that the 'two finger test' will violate the woman's right to privacy and dignity.
Case Title: State Of Gujarat v. Rameshchandra Ramabhai Panchal Case No.: R/Crl. Appl. No. 122/1996
The Gujarat High Court has held that the "archaic and outdated" practice of two-finger test, conducted to determine the virginity/consent of a rape victim, is unconstitutional.
"Our endeavour is to remind the trial Courts as well as the medical fraternity that the "two-finger test" is unconstitutional, as it violates the right of the victim of sexual assault to privacy, physical and mental integrity and dignity. If the trial Court comes across any such medical certificate, wherein, there is a reference of such test, then it should take cognizance of the same and do the needful in the matter."
Lastly reminding the State of its obligation in view of the International Covenant on Economic, Social, and Cultural Rights 1966 and the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, apart from its statutory and constitutional obligation, the court said,
"the victim of sexual assault are entitled to legal recourse that does not traumatize 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 measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with their privacy."
Chaitu Lal vs. State of Uttarakhand CRIMINAL APPEAL NO. 2127 OF 2009
The Supreme Court upheld conviction of a man under Section 376 read with Section 511 of the Indian Penal Code for attempt of rape of a woman.
In the appeal, the contention raised on behalf of the accused was that, since he did not committ any overt act such as; any attempt to undress himself in order to commit the alleged act, his actions do not constitute the offence under Section 511 read with Section 376.
In this case it was proved that the accused had pounced upon the victim, sat upon her and lifted her petticoat while she protested against his advancements and wept. One of the witness was a neighbour. When he reached the spot hearing the commotion, the accused had run away. The High Court had upheld the conviction recorded by the Trial Court for attempt to rape."But, on careful perusal of the aforesaid decision in the backdrop of facts and circumstances of the present case, both the cases are distinguishable as in the case cited above, it is clearly noted that the accused failed at the stage of preparation of commission of the offence itself. Whereas, in the present case before us the distinguishing fact is the action of the accused-appellant in forcibly entering the house of the complainant-victim in a drunken state and using criminal force to lift her petticoat despite her repeated resistance"
The court noted that, had there not been an intervention of the neighbour, the accused would have succeeded in executing his criminal design. The conduct of the accused in the present case is indicative of his definite intention to commit the said offence, the bench said while upholding conviction
Supreme Court of India
Independent Thought vs Union Of India on 11 October, 2017
Exception 2 to Section 375 IPC should be read down to bring it within the four corners of law and make it consistent with the Constitution of India.
88. In view of the above discussion, I am clearly of the opinion that Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years is liable to be struck down on the following grounds:–
(i) it is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India;
(ii) it is discriminatory and violative of Article 14 of the Constitution of India and;(iii) it is inconsistent with the provisions of POCSO, which must prevail.
Therefore, Exception 2 to Section 375 IPC is read down as follows:
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape”.
It is, however, made clear that this judgment will have prospective effect.
Supreme Court of India
In Re Assessment Of The Criminal ... vs Versus on 18 December, 2019
It is necessary to take stock of the implementation of provisions of criminal law, including the said amendments, relating to rape cases and other sexual offences. It is necessary to call for information with regard to status of affairs at ground level from various duty holders like investigation agencies, prosecution, medico-forensic agencies, rehabilitation, legal aid agencies and also Courts to get a holistic view to make criminal justice system responsive in the cases of this nature."
The delay in such matters has, in recent times, created agitation, anxiety and unrest in the minds of the people. The Nirbhaya case is not an isolated case where it has taken so long to reach finality. In fact, it is said that it has been one of the cases where agencies have acted swiftly taking into account the public outrage.
The bench referred to the National Crime Records Bureau's 2017 statistics, according to which- a total of 32,559 cases of rape were registered in India.
The court appointed Senior Advocate Sidharth Luthra as Amicus Curiea to assist the court. The matter is posted for February 7.
"As per the mandate under Section 173 (1A) Cr.P.C. , the investigation in relation to an offence under Section 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376Db or 376 E of the Indian Penal Code (45 of 1860) shall be completed within two months from the date on which the information was recorded by the police officer in charge of the Police Station," as per the order.
Supreme Court has asked the status report with regard to the following:-
(1) whether police is completing the investigation and submitting the final report within a period of two months from the date of recording of information of the offence and if no, reasons for delay?
(2) whether sufficient number of women police officers are available to conduct investigation into the offences relating to rape and other sexual offences?
The bench also sought the implementation of guidelines laid down in the Lalita Kumari v. Government of U.P., (2014). The police is dutybound to register the offence based upon the information given by the victim/informant in case of cognizable offence.
Recording of 161 Statement
The bench sought status report over recording of victim's statement under Section 161 by a woman police officer or any woman officer.
Thus, we consider it appropriate to call for status report with regard to the following:
(1) whether all the Police Stations have a woman police officer or woman officer to record the information of the victim?
(2) In case, an information relating to offence of rape received at a Police Station, reveals that the place of commission of the offence is beyond its territorial jurisdiction, whether in such cases FIR without crime number are being recorded?
(3) whether provisions are available for recording of first information by a woman police officer or a 4 woman officer at the residence of the victim or any other place of choice of such person in case the victim is temporarily or permanently mentally or physically disabled?
(4) whether all the District Police Units have the details of special educator or an interpreter in case of a mentally or physically disabled victim?
(5) whether the police department of states or union territories have issued any circulars to make provision of videography of the recording of statements and depository of the same?
(6) whether any state has published guidelines in the shape of Standard Operating Procedure (SOP) to be followed for responding after receipt of the information relating to case of rape and similar offences?
The status report also sought regarding recording of victim's statement:
(1) whether the police is taking the victim for recording of the statements as soon as the commission of the offence is brought to the notice of police?
(2) whether the Magistrate Courts or the trial courts have the availability of the interpreter or special educator in each Districts?
(3) whether the Magistrate Courts or the trial Courts have the facility of videography of the statements and depository of the same in the Courts?
In addition, the court recorded to the Ministry of Health and Family Welfare, Government of India's "Guidelines & Protocols: Medicolegal care for survivors/victims of sexual violence" and also the Ministry of Women and Child Development's Medical Kit for examination of the victim and the accused in cases of rape.
The Union Government and the 7 State Government have not provided this medical kit to all the Primary Health Centers or Community Health Centers. This Medico Forensic Kit is essential for collection of Medical/DNA evidence. 12. Further, Per-Vaginum examination commonly referred to as 'Two-finger test' has been held to be of no consequence and violative of the dignity of woman.
Citing this court's observation in the case -Lillu alias Rajesh and Anr. v. State of Haryana, (2013) 14, the bench said " two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity."
The Court also called for status report with regard to the following:-
(1) whether the Medical Opinion in the cases relating to rape and similar offences is being given in compliance with the mandate of Section 164A of Cr.P.C.?
(2) whether the Medical Opinion in the cases relating to rape and similar offences is being given in tune with definition of rape under Section 375 of IPC as it stands today?
(3) whether the states have adopted the Guidelines & Protocols of The Ministry of Health and Family Welfare, Government of India or have they prepared their own Guidelines & Protocols?
(4) whether requisite Medico-forensic kit are available with all the hospitals/health centres run by the Government or by local authorities?
(5) whether the medical experts have done away with the Per-Vaginal examination commonly referred to as 'Two-finger test' and whether any directions have been issued by the states in this regard?
(6) whether medical experts have done away with the practice of giving opinion on the previous sexual experience of the victim or any directions have been issued by the states in this regard?
(7) whether lady medical practitioners, if mandated, are available at all district and sub-divisional headquarters to draw up the medical examination report of the victim?
On Forensic Examination
(1) whether there is any Standard Operating Procedure (SOP) or Protocol for taking samples for Forensic DNA, Forensic odontology and other forensics for Medical Practitioners?
(2) whether there are adequate number of equipped Forensic Laboratories at least one at every 10 Division Level to conduct forensic DNA and Forensic odontology analysis regionally?
3) subject to availability, whether Central Government has notified sufficient number of Government scientif