Sexual Offences: Rape

Criminal Law Amendments: 2013 and 2018

Based on the recommendations of the J.S. Verma Committee, the Criminal Law (Amendment) Act, 2013 (hereinafter “the 2013 Act”) was enacted. The Act has made major changes to the Indian Penal Code, 1860 (hereinafter “IPC”), the Code of Criminal Procedure, 1973 (hereinafter “Cr.P.C.”) and the Indian Evidence Act, 1872 (hereinafter “Evidence Act”), in relation to sexual offences.

The Criminal Law (Amendment) Act, 2018 (hereinafter “the 2018 Act”) was enacted to increase the punishment for rape on minor girls, fixing timelines for completion of investigation, trial & appeals and amend provisions of bail in relation to the offence of rape.

Changes to IPC

The 2013 Act broadened the definition of the offence of rape. The offence now covers four types of sexual acts:

  1. penile penetration of the vagina, mouth, urethra or anus;
  2. insertion of an object or a body-part, other than the penis, into the vagina, urethra or anus;
  3. manipulation of any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of the woman;
  4. application of the man’s mouth to the vagina, anus or urethra of the woman.

The definition also contemplates situations where the offender makes the woman commit these sexual acts on him or with a third person.

Further, the 2013 Act increased the age at which a girl could consent to a sexual act from 16 years to 18 years. It also provided a definition of consent.

The section also clarifies that lack of physical resistance to penetration shall not be considered as implying consent.

The 2013 Act added more categories to the charge of aggravated rape. The focus still remains on the power differential between the accused and the victim, and the vulnerable position of the victim vis-à-vis the accused.

A rape committed during communal or sectarian violence is considered to be aggravated. Rape by a relative, guardian, teacher, or any other person in a position of trust or authority has been categorized as an aggravated form of rape. Rape by a person in a position of control or dominance is considered to be aggravated. The extreme vulnerability faced by a person who is physically or mentally challenged has been taken note of in categorizing rape of a woman suffering from a physical or a mental disability as an aggravated form of rape. Rape of a woman incapable of giving consent is also considered aggravated. The act of repeatedly raping the same woman is an aggravated form of rape. It also increased the age of aggravated rape in relation to underage sexual activity from 12 to 16 years.

The 2013 Act modified the definition of gang rape to distinguish between constituting a group and acting in furtherance of common intention. It provides a separate provision to deal with repeat rape offenders, who are liable to be imprisoned for the rest of their natural lives or with death.

The 2013 Act, added section 354A to IPC which defines and criminalizes sexual harassment and section 354B, IPC which criminalizes assaulting or using criminal force with intent to disrobe a woman. Acts of voyeurism & stalking are criminalized by sections 354C & 354D, IPC, respectively.

Omissions and inactions by a public servant who fails to record a FIR in cases relating to acid attacks, rape, trafficking and offences under section 354 & 354B are punishable under section 166A, IPC. Inaction of hospitals by not providing treatment is punishable under Section 166B.

The 2013 Act substituted the earlier provision of section 370 with an expansively defined section 370 and 370A which provide for comprehensive measures to counter the menace of human trafficking including trafficking of adults and children for exploitation in any form including physical exploitation or any form of sexual exploitation, slavery, servitude, or the forced removal of organs. The consent of the victim is made immaterial in determination of the offence of trafficking.

Sentencing framework was amended to the following effect by the 2013 Act:

  1. Section 354, IPC: Minimum punishment of one year was introduced, and the maximum punishment was increased from two years to five years imprisonment.
  2. Section 376(2), IPC: Maximum punishment was increased to imprisonment for the rest of the person’s natural life.
  3. Section 376A, IPC: Minimum sentence of twenty years imprisonment, and the death penalty is a sentencing option.
  4. Section 376D, IPC: Minimum sentence of twenty years imprisonment introduced for gang rape, and the maximum punishment is imprisonment for the rest of the person’s natural life.
  5. Section 376E, IPC: Minimum punishment of imprisonment for the rest of the person’s natural life and the death penalty is a sentencing option.

Sentencing framework as amended by the 2018 Act:

  1. Section 376 (1), IPC: Minimum punishment was increased from seven years to ten years imprisonment.
  2. Section 376 (3), IPC: Was introduced to punish the rape on a woman under sixteen years of age with a punishment of minimum twenty years imprisonment, which may by be extended to imprisonment for life and a fine being just and reasonable which shall be paid to the victim towards medical expenses and rehabilitation.
  3. Section 376AB, IPC: Was introduced to punish the rape on a woman under twelve years of age with a punishment of minimum twenty years imprisonment, which may be extended to imprisonment for life and a fine being just and reasonable which shall be paid to the victim towards medical expenses and rehabilitation or with death.
  4. Section 376DA, IPC: Was introduced to punish the gang rape on a woman under sixteen years of age with a punishment of minimum twenty years imprisonment, which may by be extended to imprisonment for life and a fine being just and reasonable which shall be paid to the victim towards medical expenses and rehabilitation.
  5. Section 376DB, IPC: Was introduced to punish the gang rape on a woman under twelve years of age with a punishment of minimum twenty years imprisonment, which may be extended to imprisonment for life and a fine being just and reasonable which shall be paid to the victim towards medical expenses and rehabilitation or with death.

Changes to Cr.P.C.

Section 154, Cr.P.C. was amended by the 2013 Act to provide that a FIR in cases of acid attacks and sexual offence shall be recorded by a woman police officer or a woman officer, the same applies to recording of statements under section 161, Cr.P.C.

Section 164, Cr.P.C. was amended by the 2013 Act to require that the statement of the victim of a sexual offence be recorded by a Magistrate as soon as the commission of the offence is brought to the attention of the police.

Section 273, Cr.P.C., which requires that evidence be taken in the presence of the accused, was amended by the 2013 Act to mandate that if the victim is under eighteen years of age, the court shall take steps to ensure that she is not confronted by the accused.

Section 309, Cr.P.C. was amended by the 2013 Act to provide that the trial should as far as possible be completed within two months of the filing of the chargesheet. The 2013 Act, has amended section 197 Cr.P.C. to clarify that sanction is not required if the public servant is accused of committing an offence punishable under section 166A, 166B, or of committing a sexual offence.

Section 54A, Cr.P.C. was amended by the 2013 Act to provide for identification parades to be conducted under the supervision of a Judicial Magistrate, who is tasked with the responsibility of using identification methods that the witness is comfortable with. The Magistrate using section 54A may design an appropriate procedure to facilitate the process of identification. The section also mandates that identification by a physically or mentally challenged person should be videographed.

Under the 2013 Act, if a FIR for rape is sought to be filed by a physically or mentally challenged woman, the police officer is now mandated by Section 154, Cr.P.C. to record the FIR either at the woman’s residence or at a place of convenience to her in the presence of an interpreter or a special educator. In such cases, the police officer is required to get the statement recorded by a Judicial Magistrate under the amended Section 164(5)(a), Cr.P.C. Section 164(5)(a), Cr.P.C. further states that the statement recorded by the Magistrate shall be considered as a statement in lieu of an examination-in-chief of the victim, and she will only be subjected to cross-examination at the trial.

The 2018 Act amended Section 173 (1A) to the effect that investigation of an offence under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376DE, IPC shall be completed within a period of two months. Further, Section 374 (4) and Section 377 (4) were inserted by the 2018 Act to introduce a period of six months as the time period for the disposal of an appeal in relation to offences of rape.

Section 438 (4) Cr.P.C. was introduced by the 2018 Act to deny the benefit of anticipatory bail in cases of offences under Section 376, 376AB, 376DA and 376DB, IPC.

By the 2018 Act a proviso was added under Section 439 (1) to the effect that the High Court or the Court of Session shall, before granting bail in case of offences of rape under Section 376 (3), 376AB, 376DA and 376DB, IPC shall give notice of the application of bail to the Public Prosecutor and Section 439 (1A) was inserted to make it obligatory at the time of hearing of the application for bail in relation to offence under Section 376 (3), 376AB, 376DA and 376DB, IPC to have the presence of the informant or any person authorized by him.

Changes to the Indian Evidence Act

The 2013 Act, added a proviso to section 146 of the Evidence Act stating that when consent is an issue in rape cases, it is not permissible to adduce evidence or ask questions relating to the ‘general immoral character’ or the previous sexual experience of the victim.

A similar change was made by the adding section 53A to the Evidence Act, which states that evidence of character or past sexual experience is not a relevant fact in rape cases.

Key Judgements

Delay in reporting Rape does not defeat charge

Deepak v. State of Haryana, 2015 (4) SCC 762 [Supreme Court of India, 2 Judge Bench]

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Here the accused had preferred an appeal against the concurrent finding of the trial court and the High Court whereby he was convicted of committing the offence of rape and was punished under Section 376, IPC. One of the grounds of appeal by the accused was that there was considerable delay in lodging of FIR.

The court considering the factum of delay in registration of FIR held: “The courts cannot overlook the fact that in sexual offences and, in particular, the offence of rape and that too on a young illiterate girl, the delay in lodging the FIR can occur due to various reasons. One of the reasons is the reluctance of the prosecutrix or her family members to go to the police station and to make a complaint about the incident, which concerns the reputation of the prosecutrix and the honour of the entire family. In such cases, after giving very cool thought and considering all pros and cons arising out of an unfortunate incident, a complaint of sexual offence is generally lodged either by the victim or by any member of her family.”

Satpal Singh v. State of Haryana, 2010 (8) SCC 714 [Supreme Court of India, 2 Judge Bench]

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Here the accused had preferred an appeal against the concurrent finding of the trial court and the High Court whereby he was convicted of committing the offence of rape and was punished under Section 376, IPC.

The accused had appealed on the ground that there was a delay of about four months in the lodging of FIR. The court noting that delay in lodging FIR in sexual offences has to be considered with a different yard stick held that: “…no straitjacket formula can be laid down in this regard. In case of sexual offences, the criteria may be different altogether. As honour of the family is involved, its members have to decide whether to take the matter to the court or not. In such a fact situation, near relations of the prosecutrix may take time as to what course of action should be adopted. Thus, delay is bound to occur. This Court has always taken judicial notice of the fact that: “ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the first information report in a case of this nature is a normal phenomenon.” (Vide Satyapal v. State of Haryana [(2009) 6 SCC 635 : (2009) 3 SCC (Cri) 108 : AIR 2009 SC 2190] , SCC p. 641, para 21.)” In the facts of the case, the court found no merit and hence dismissed the appeal.

State of Uttar Pradesh v. Manoj Kumar Pandey, 2009 (1) SCC 72 [Supreme Court of India, 3 Judge Bench]

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The court here was considering an appeal against concurrent judgments of the trial court and the High Court which acquitted the accused on the ground that there was delay in lodging FIR and that since the victim was more than sixteen years of age, consent had to be presumed.

In considering the question of delay in lodging of FIR, the court held that: “Apart from that normal rule regarding the duty of the prosecution to explain the delay in lodging FIR and the lack of prejudice and/or prejudice caused because of such delayed lodging of FIR does not per se apply to cases of rape. This has been the consistent view of this Court.” With this view, the court set-aside the order of the High Court and remitted the matter for fresh hearing.

Consent and Rape

The definition of Consent was amended by Explanation 2 of Section 375 IPC and the Explanation reads “Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act”.

However, this is a judgment, which is prior to the Amendment, when the legal position was less clear.

Thankappan P.K. v. State of Kerala [Single Judge, Kerala High Court]

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CRL. A. No. 564 of 2018

The accused was convicted and sentenced to a rigorous imprisonment for eight years under Section 376 IPC and a sentence of your years for offences punishable under Section 3(1)(xii) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In appeal before the High Court it was contended by the accused that the trial court found that the prosecution has failed to establish that the victim was a minor, and the evidence will show that the sexual intercourse was consensual. The victim was repeatedly raped on several instances by the accused.

The concept of consent in context of rape was discussed by the court in the following words: It is now settled that mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be ‘consent’ as understood in law and the consent, on the part of a woman as a defence to an allegation of rape, 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 freely exercised a choice between resistance and assent. In other words, the consent in order to relieve an act of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one’s will or pleasure [See Rao Harnarain Singh Sheoji Singh v. State, 1958 Crl. Law Journal 563 and Uday v. State of Karnataka, (2003) 4 SCC 46]. (Para 14)

That apart, as stated in the Declaration on the Elimination of Violence against Women made by the United Nations, violence against women, including sexual assaults, are manifestations of historically unequal power relations between men and women, which has led to domination of men over women. Sexual assaults including rape are therefore crimes of gender inequality. In social reality, sex that is actually desired by a woman is never termed consensual, for when a sexual interaction is equal, consent is not needed and when it is unequal, the consent cannot make it equal. In Meritor Savings Bank, FSB v. Mechelle Vinson et al. [477 US. 57 (1986)], the United States Supreme Court held that welcomeness and not consent, shall be the standard for sex that does not violate the rights of women consistent with gender equality. The relevant passage reads thus: “The fact that sex-related conduct was “voluntary,” in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII…. The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.”

In other words, in a country like ours committed to gender equality, only sexual intercourse which are welcomed could be construed as not violative of the rights of the victim, and accepted as consensual. (Para 15)

In her evidence the prosecutrix had deposed that she did not disclose the incidents to anyone as she was afraid that the accused would do something to her mother and sister. On the question of conduct of the prosecutrix the court held: …it is clear from the materials on record that the victim girl was under a social and psychological hierarchical threat. In a situation of this nature, according to me, the conduct on the part of the victim girl in surrendering before the accused as and when desired by him cannot be said to be unusual or abnormal and such surrender can never be construed as consensual acts of sexual intercourse. I am fortified in this view by the observation made on rape survivors by Judith Lewis Herman, an American Psychiatrist and Researcher on Traumatic Stress in her book, Trauma and Recovery. The relevant observation reads thus: “When a person is completely powerless, and any form of resistance is futile, she may go into a state of surrender. The system of self-defense shuts down entirely. The helpless person escapes from her situation not by action in the real world but rather by altering her state of consciousness…..”

In the facts of the case, the appeal of the accused was dismissed.

Rao Harnarain Singh & Ors v The State, AIR 1958 P&H 123 [Punjab & Haryana High Court, Single Judge]

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(This is a judgment which is prior to the Amendment, when the legal position was less clear.)

The High Court here was considering bail application of the accused persons pending trial for offences to have been committed under Section 302, 376, 109 & 201 of IPC. The argument of the accused was that the victim was a consenting party and she had surrendered her body willingly. Further, bail was sought on the ground that the accused were respectable and well connected persons.

While denying bail to the accused, the court dealt with the factum of consent and held that: “A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be “consent” as understood in law. Consent, on the part of a woman as a defence to an allegation of rape, 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 freely exercised a choice between resistance and assent Submission of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act, of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has wished as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one’s will or pleasure. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.”

Evidentiary value of the statements of Survivor and standards of corroboration

Om Prakash v. State of U.P, 2006 (9) SCC 787 [Supreme Court of India, 2 Judge Bench]

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The Supreme Court here was considering an appeal against a concurrent finding of the trial court and the High Court which held the accused to be guilty of having committed the offence of rape under Section 376 IPC. The accused was charged with the rape of a pregnant woman.

The court in its appreciation of the evidence in hand and the settled position of law held: “It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian woman has a tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members have courage to go before the police station and lodge a case.

A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act, 1872 (in short “the Evidence Act”) similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. This position was highlighted in State of Maharashtra v. Chandraprakash Kewalchand Jain [(1990) 1 SCC 550 : 1990 SCC (Cri) 210]”

In the facts of the case, the appeal was disposed by the Supreme Court with a modification of sentence, by reduction from 10 years to 7 years.

State of Punjab v. Gurmit Singh & Ors., 1996 (2) SCC 384 [Supreme Court of India, 2 Judge Bench]

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The Supreme Court here was considering an appeal under Section 14 of the Terrorist Affected Areas (Special Courts) Act, 1984 against the judgment of trial court by which the three respondents accused of abduction and rape of a minor girl were acquitted. In its acquittal, the evidence of the prosecutrix was wholly dismissed by the trial court by casting unjustified stigmas.

While appreciating the evidence of the victim the court relied on the case of State of Maharashtra v Chandraprakash Kewalchand Jain and held: “The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.”

State of Maharashtra v. Chandrapraksh Kewalchand Jain, 1990 (1) SCC 550 [Supreme Court of India, 2 Judge Bench]

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The Supreme Court here was considering a Special Leave Petition against the order of acquittal by the High Court, reversing the conviction of the accused under Section 376 IPC. The accused here was a police officer who had committed rape on a young girl in her teens. The High Court had reversed the conviction on the ground that the evidence of the prosecutrix was full of contradictions and not consistent with medical evidence as well as the findings recorded by the chemical analyst.

The Supreme Court allowed the appeal and restored the conviction & sentence passed on the respondent by the trial court. In doing so, the Supreme Court was considering the evidentiary value of the prosecutrix. In a detailed analysis of the law of evidence, the court held that the prosecutrix is undoubtedly a competent witness under Section 118 of the Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation.

It was held that “to insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime.”

Further, the court held that: “The standard of proof to be expected by the court in such cases must take into account the fact that crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity. The court must not be oblivious of the emotional turmoil and the psychological injury that a prosecutrix suffers on being molested or raped. She suffers a tremendous sense of shame and the fear of being shunned by society and her near relatives, including her husband. It must, therefore be realized that a woman who is subject to sexual violence would always be slow and hesitant about disclosing her plight. The court must, therefore, evaluate her evidence in the above background.”

The court relied on the following observation made in the case of Bharwad Bhoginbhai Hirjibhai v State of Gujrat (1983 (3) SCC217 with regard to the sole testimony rule: “In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyse the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. The solution of problems cannot therefore be identical.”

Rameshwar v. State of Rajasthan, AIR 1952 SC 54 [Supreme Court of India, 2 Judge Bench]

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The accused was charged with committing rape on a minor girl. Here the High Court set aside the acquittal of the first appellate court and restored the conviction sentence handed over by the trial court. The conviction here was based on sole testimony of the prosecutrix and corroboratory witness statement of the mother of the minor girl. Further, the High Court granted a leave to appeal to the Supreme Court.

At the outset, it was held by the Supreme Court that a woman who has been raped is not an accomplice, if she was ravished she is a victim of an outrage. In dealing with corroboration of a child witness the court held: “The tender years of the child, coupled with other circumstances appearing in the case, such, for example, as its demeanor, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before conviction can be allowed to stand.”

Next the court considered the nature and extent of the corroboration required when it is not considered safe to dispense with it. Here the court laid down the following rules:

  1. It is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction.
  2. The independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime. This does not mean that the corroboration as to identity must extend to all the circumstances necessary to identify the accused with the offence. Again, all that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witness’s story that the accused was the one, or among those, who committed the offence.
  3. The corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. But of course the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal.
  4. The corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime. Were it otherwise, “many crimes which are usually committed between accomplices in secret, such as incest, offences with females” (or unnatural offences) “could never be brought to justice.”

In the facts and circumstance of the case, the court regarded the mother of the minor girl to be an independent witness and dismissed the appeal. Here it was held: “It may be that all mothers may not be sufficiently independent to fulfill the requirements of the corroboration rule but there is no legal bar to exclude them from its operation merely on the ground of their relationship. Independent merely means independent of sources which are likely to be tainted.”

Rape proved even if Survivor does not call for help

Mukesh v. State of Chhattisgarh, 2014 (10) SCC 327 [Supreme Court of India, 2 Judge Bench]

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The Supreme Court here was considering an appeal against a concurrent finding of the trial court and the High Court which held the accused to be guilty of having committed the offence of rape under Section 376 IPC.

The accused took the plea of defence that the prosecutrix did not call out for help, despite the fact that she had managed to free herself. In dealing with defence the court held: “…in the situation, where the prosecutrix was under the threat of being raped by the appellant-accused, we cannot expect her to be prudent and meticulous in her thought process. The state of mind of the prosecutrix cannot be precisely analyzed on the basis of speculation because each person reacts differently to a particular stressful situation.”

Directions on recording evidence in cases of rape

Sakshi v. Union of India & Ors., 2004 (5) SCC 518 [Supreme Court of India, 2 Judge Bench]

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Here the Supreme Court was hearing a writ petition under Article 32 of the Indian Constitution where the petitioner by way of public interest litigation sought several declaratory reliefs. One of them being widening of the interpretation of the term “sexual intercourse” as contained in Section 375 IPC.

The Court held that declaratory reliefs which change the interpretation of a provision cannot be granted under writ jurisdiction as it would amount to law making in the absence of relevant facts and circumstances. However, the writ petition was disposed with the following directions:

  1. The provisions of sub-section (2) of Section 327 CrPC shall, in addition to the offences mentioned in the sub-section, also apply in inquiry or trial of offences under Sections 354 and 377 IPC.
  2. In holding trial of child sex abuse or rape: (i) a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused; (ii) the questions put in cross-examination on behalf of the accused, insofar as they relate directly to the incident, should be given in writing to the presiding officer of the court who may put them to the victim or witnesses in a language which is clear and is not embarrassing; (iii) the victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required.

State of Punjab v. Gurmit Singh & Ors., 1996 (2) SCC 384 [Supreme Court of India, 2 Judge Bench]

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The Supreme Court here was considering an appeal under Section 14 of the Terrorist Affected Areas (Special Courts) Act, 1984 against the judgment of trial court by which the three respondents accused of abduction and rape of a minor girl were acquitted. In its acquittal, the evidence of the prosecutrix was wholly dismissed by the trial court by casting unjustified stigmas.

The Supreme Court after a detailed analysis of the facts of the case held that the prosecutrix has made a truthful statement and the prosecution has established the case of against the respondents beyond reasonable doubt, on this ground the acquittal was set aside and all three respondents were convicted. It was held that, “the court should not sit as a silent spectator while the victim of a crime is being cross-examined by the Defence. It must effectively control the recording of evidence in the court. While every latitude should be given to the accused to test the veracity of the prosecutrix and the credibility of her version through cross-examination, the court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime. A victim of rape, it must be remembered, has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings what she had been subjected to, she may be too ashamed and even nervous or confused to speak and her silence or a confused stray sentence may be wrongly interpreted as “discrepancies and contradictions” in her evidence.”

Further, the court passed the following directions:

  1. The courts are obliged to act in furtherance of the intention expressed by the legislature and not to ignore its mandate and must invariably take recourse to the provisions of Section 327(2) and (3) CrPC and hold the trial of rape cases in camera. It would enable the victim of crime to be a little comfortable and answer the questions with greater ease in not too familiar a surroundings. Trial in camera would not only be in keeping with the self-respect of the victim of crime and in tune with the legislative intent but is also likely to improve the quality of the evidence of a prosecutrix because she would not be so hesitant or bashful to depose frankly as she may be in an open court, under the gaze of public. The improved quality of her evidence would assist the courts in arriving at the truth and sifting truth from falsehood.”
  2. When trials are held in camera, it would not be lawful for any person to print or publish any matter in relation to the proceedings in the case, except with the previous permission of the court as envisaged by Section 327(3) CrPC. This would save any further embarrassment being caused to the victim of sex crime.
  3. Wherever possible, it may also be worth considering whether it would not be more desirable that the cases of sexual assaults on the females are tried by lady Judges, wherever available, so that the prosecutrix can make her statement with greater ease and assist the courts to properly discharge their duties, without allowing the truth to be sacrificed at the altar of rigid technicalities while appreciating evidence in such cases.
  4. The courts should, as far as possible, avoid disclosing the name of the prosecutrix in their orders to save further embarrassment to the victim of sex crime. The anonymity of the victim of the crime must be maintained as far as possible throughout.
  5. Trial of rape cases in camera should be the rule and an open trial in such cases an exception.

Medical Evidence in Rape Trials

Colonial medical jurisprudence textbooks, which have largely remained unchanged for more than a century are particularly influential in rape adjudication, where they are cited by courts in their judgments which perpetuate rape myths and stereotypes.

The testimony of a doctor is often treated as the crucial evidence in rape trials, trumping all other evidence, including the testimony of the victim. Doctors appear to rely heavily on opinions and methods stated in medical jurisprudence textbooks in assessing medical evidence of a crime.

Some medical jurisprudence textbooks assert that medical tests evaluating a woman’s virginity are crucial to understanding the occurrence of rape. Two methods used for the determination of virginity are significant to medical evidence in rape cases. These are first, the finger test (which involves the doctor certifying whether the vagina of a woman can admit one, two, or more fingers to demonstrate sexual habituation) and second, an assessment of the state of the hymen.

Validity of the two-finger test in examination of Rape survivors

Lillu alias Rajesh & Anr. v. State of Haryana, 2013 (14) SCC 643 [Supreme Court of India, 2 Judge Bench]

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The Supreme Court while hearing an appeal against conviction under Section 376 IPC, was considering if the two-finger test is a sound standard of conducting and interpreting forensic examination of rape survivors.

After examining the law laid down in various judgments and considering International Conventions that India is party to, the court held that “the two-finger test and its interpretation violates the right of rape survivors privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipos facto, give rise to a presumption of consent.” In the facts of the case, the appeal preferred by the accused was dismissed as lacking merit.

Assessment of the Criminal Justice System in Response to Sexual Offences, In re, 2019 SCC Online SC 1654 [Supreme Court of India, 3 Judge Bench]

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In this case the court took suo moto cognizance the delays in the criminal justice system in India and deemed it 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 this case the court sought reports/information from various agencies of the state and courts under specific heads in relation to criminal justice. Referring to the case of Lillu alis Rajesh the court held that: “Per-Vaginum examination commonly referred to as ‘two-finger test has been held to be of no consequence and violative of dignity of woman.” The court sought a report on the question: “Whether the medical experts have done away with the per-vaginum examination commonly referred to as ‘two-finger test’ and whether any directions have been issued by the states in this regard?”

State of Gujarat v. Rameshchandra Ramabhai Panchalm, 2020 SCC Online Guj 114 [High Court of Gujarat, Division Bench]

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The State here preferred an appeal against an order of acquittal passed by the trial court so far as the offence of rape punishable under Section 376 IPC. The order of acquittal on the charge of rape was on the ground that the victim was a major and a consenting party. The trial court despite recording that the victim is less than 16 years old came to this conclusion.

The court while appreciating the medical evidence on record, held: “The two-finger test also known as the PV (Per Vaginal) refers to an intrusive physical examination of a woman’s vagina to figure out the laxity of vaginal muscles and whether the hymen is distensible or not. In this, the doctor puts two fingers inside the woman’s vagina and the ease with which the fingers penetrate her are assumed to be in direct proportion to her sexual experience. Thus, if the fingers slide in easily the woman is presumed to be sexually active and if the fingers fail to penetrate or find difficulty in penetrating, then it is presumed that she has her hymen intact, which is proof of her being a virgin.

The test itself is one of the most unscientific methods of examination used in the context of sexual assault and has no forensic value. Whether a survivor is habituated to sexual intercourse prior to the assault has absolutely no bearing on whether she consented when the rape occurred. Section 155 of the Indian Evidence Act, does not allow a rape victim’s credibility to be compromised on the ground that she is “of generally immoral character.”

Relying upon the judgment of the Supreme Court in the case of Lilu alias Rajesh, the court termed the two-finger test as being unconstitutional since it violates the right of the victim to privacy, physical and mental integrity and dignity.

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