Case No.: Criminal Appeal 109-110 of 2011

Date: 22/07/2013

This appeal has been filed before the Honorable Supreme Court pursuing to the appeal made by the respondent in the High Court of Jharkhand which affirmed the order passed by the trail court convicting the appellants for 10 years of rigorous imprisonment and penalty to be charged re 6000/- to each and failing which will liable to the additional imprisonment period of 6 months, where both the appellants were acquitted of the charges punishable under the section 3(1)(xii) and 3(2)(v) of the Scheduled Caste and the Schedule Tribes (Prevention of Atrocities) Act, 1989.

Prosecutrix is said with a purpose to visit her friend, she came at the District Headquarter Simdega from her village Jhingur Pani Toli. After meeting her friends Kiran and Shashi she went to enjoy a movie in a cinema theatre along with her friends. After the movie she planned to visit the vegetable market, while she was walking towards the vegetable market, she was been followed by two boys (appellant) who told her to come with them with very absurd action. After her immediate refusal, she was beheld by those two boys and was taken to the nearby school situated in Bhathi Toli and was subjected to rape by both of them.

Subsequently, after this incident, there were other boys who arrived later at the location and conducted rape on her, however as she tried in ways to establish her constant refusal and way to make public awareness of the incident by shouting, she eventually was left unconscious. The next morning after regaining the consciousness she enquired from an old lady standing nearby to the location and was informed the named of the person who conducted such a forceful activity on her. The prosecutrix as an immediate response to such a brutal act filed a police complaint against the appellant. Police as per procedure took her petticoat in their custody and took her to conduct the medical examination. After 2- 3 days after lodging of the complaint, police officers arrested the appellants. After the complete investigation of the facts and possibilities, a report was made and the charge sheet was filed in the court. On the day of the hearing in the court, the accused presented in the court by the police pleaded not guilty and thus the investigation started.

During the trail process, most of the witness turned hostile but looking beyond the veil the Trail Court passed an order stating the rigorous imprisonment for the period of 10 years and fine to be paid of Rs 5000/- and if in case any of the convicted fails to pay the fine will liable for an additional period of imprisonment precisely 6 months.

1. Whether the act of rape has been committed on the prosecutrix or not?

2. Whether to give benefit of the doubt to the appellant in case of witness hostility?

3. Should the sole testimony of the prosecutrix valid to charge the appellant.

The Honorable Court after through hearing of the learned counsels from both the side states that the victim who was been sent to the medical examination after two days delay since the act of rape was committed on her, makes it impossible to find any traces of spermatozoa in her vaginal swab. Further, the court states that the father of prosecutrix though turned hostile supported the deposition prosecutrix gave him on the 14/6/1999. The test identification parade could be carried out as the prosecutrix fled away to a different village in Bokaro is known to the court is her sister’s home, pursuing to threats from the appellants, though such parade could not be carried out the benefits of the doubt will not be allowed in favour of the appellants.

The court appreciates the fact that the Trail court in interpreting the section 114A of Indian Evidence Act, 1872 withhold the presumption that no person in the way implied provides the consent for such activity unless explicitly affirm the act. Further, a presumption was primary understanding that such act was non-consensual and was an act of rape on the prosecutrix. The law does not mention any prohibition regarding non-conviction of the accused of rape on sole testimony of the prosecutrix and in the paramount interest of the prosecutrix, it will be unfair if the consideration solely given to the corroboration of the testimony of the prosecutrix and other witnesses.

The court appreciates the evidence provided by the learned counsel and should see the evidence in totality to understand the act with context while deciding though any act mentioned in isolation may provide a blurred image of the scenario, adding to the matter the appellants have not provided any explanation to prove their innocence and has only pleaded to be innocent under section 313 of the Criminal Procedure Code, 1973. The court should also consider the fact that an act of rape is just a not criminal offence, but its damage to the self-esteem of the person and damage to the mental health of the victim which irreparable for a long time to come. The Honorable Supreme Court found the appeal to lack merit for any reconsideration and accordingly dismissed.