Brief Facts
- The criminal appeal under Section 374 Cr.P.C, has been preferred by the accused-appellant wherein he has challenged the judgment of conviction and sentence dated 04.01.1994 passed by the Court of learned Special Judge, Scheduled Caste/ Schedule Tribe (Prevention of Atrocities Cases), Kota whereby the learned trial court convicted him for the offence under Section 376 IPC and sentenced him to undergo ten years rigorous imprisonment and as fine and in default of payment of fine he had been directed to undergo additional six months simple imprisonment.
- The police after investigation submitted the chargesheet against the accused-appellant for the offence under Section 376 IPC and also under Section 3 of the SC/ST Act in the Court concerned. The learned trial court framed the charges against the accused-appellant for the offences under Section 376 IPC and also under section 3(2)(v) of the SC/ST Act.
Issues
- Whether the victim of a sexual offence has to necessarily use a term out of the recognised vocabulary for describing the occurrence of an incident and further, if we are to believe that there is in fact an accepted terminology that the court is required to strictly adhere to while appreciating evidence pertaining to a case of sexual offence?
- Whether a person accused of a sexual offence case can be convicted on the basis of the sole testimony of the victim?
- Whether the presence of injury/injury marks is a sine qua non/ prerequisite to attribute the offence of rape to an accused or in other words whether the absence of injury/ injury marks can be treated as a valid ground for affirming the accused’s innocence?
- Whether an FSL report has definitive evidentiary or mere probative value under the Indian criminal jurisprudence. In furtherance to the same, whether a judgment/order should be brought under scrutiny merely on the ground of absence of an FSL report, especially in the cases pertaining to prosecution for sexual offences?
- Whether discrepancies in the testimonies of the victim would amount to a material flaw in the Prosecution story and whether, when and to what extent corroboration of the testimony of a victim of rape is essential to establish the charge?
Held
- The High Court dismissed the Appeal of the Accused and upheld the Order passed by the Ld. Trial Court. The findings of the Court are as under:
Requirement of Specific or recognised Terminology in Testimony of a Victim of Sexual Offence
- The term “rape” carries with it a deep, multifaceted meaning. Legally, it is often defined as forced sexual intercourse without consent, but its societal connotations are equally significant. To be a victim of rape is to be seen as having experienced a grave violation, and the word holds a heavy burden of stigma, blame, and shame. For many survivors, the emotional and psychological toll of identifying their experience as “rape” can be overwhelming. The legal system itself often treats this term with rigidity, requiring specific definitions and evidence that might not fit every violation. Some women, especially those from marginalized communities, may not feel that their experience aligns with the strict parameters of legal definitions, and therefore might hesitate to use the word “rape” even if the violation of their autonomy and dignity is undeniable. In such cases, women, especially from rural parts of the nation may opt for alternative terminology to communicate their experiences—thus references made by less direct language or terms like “khota kaam,” “galat kaam,” “dushkaram”, “oondhi seedhi”, “jhamak jhuma”, “aadi patak di”, should also be weighed and treated at par with the generic word ‘rape’. These words are not necessarily a rejection of the severity of the act; instead, they may reflect the survivor’s internalized fears of judgment or a desire to avoid the stigma that accompanies the word “rape.”
- In the present case, the victim used the term “khota kaam” to describe her ill-experience of having been sexually violated by the accused. In my opinion, the use of this word instead of using the term ‘rape’ does not disregard the possibility of actual occurrence of the alleged incident, nor does it translate to the fact that the offence so alleged did not occur at all. I believe that by asserting a notion that intention should matter more than the choice of words, we acknowledge the spectrum of sexual violence and the diverse ways women articulate their experiences. Every violation is significant, and the harm caused by sexual violence is not diminished simply because a woman did not use the “correct” term to describe it.
- In the instant case, the victim has consistently, throughout the period of investigation and trial, maintained her stance staunchly. Consistency is an everyday norm of judgment. It is a common test of credibility in the courts. It is to be kept in mind that consistency in statement at the various stages of a case has frequently been cited as a criterion by which the courts assess the credibility of a victim. I believe that relying on the very fact that the victim has been consistent throughout, which seems like a relatively objective measure, free of the implicit bias that could affect the credibility of judgment is arguably a better indicator of truth. The victim has at every stage gathered the strength to narrate the incident over and over again and while at it, has remained consistent all throughout. The criterion of consistency here could serve as a modest baseline for establishing a credible accusation against the accused.
Conviction on the basis of sole testimony of the prosecutrix
- It is a settled law cemented with a catena of judgments that conviction can be on the basis of sole testimony of the prosecutrix.
- Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience.
- It is thus well-settled by a catena of decisions of the various Courts of the country that there is no rule of law or practice that the evidence of the victim cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the “probabilities factor” does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration, where, having regard to the circumstances of the case the court may convict the accused on the sole testimony of the prosecutrix.
- It can hence be validly concluded that evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the victim, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. It is undeniable that testimony of the victim 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 the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is further observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.
Absence of injury on the prosecutrix cannot not be a factor that leads the court to absolve the accused.
- Absence of any injury on the person of the victim of a sexual offence should not be a factor that leads the court to absolve the accused.
- The Supreme Court of India has consistently held that the absence of physical injury is not a decisive factor in rape cases. A woman can be raped without any visible signs of injury. The lack of injury does not rule out the possibility of rape, as the crime is primarily about non-consensual intercourse or penetration. The victim may not resist physically for various reasons such as fear, shock, or coercion.
- Thus, in line with my view on this subject, in the instant case, the absence of any visible prominent injury marks does not nullify the accused’s guilt nor does it absolve him of his responsibility as far as his participation in the commission of a crime is concerned. Injuries, not only physical but also mental, have to be considered while dealing with such sensitive matters.
Few key legal considerations in India as to the admissibility of FSL Reports
- The Indian Evidence Act, 1872 does not treat FSL reports as conclusive evidence. They are subject to scrutiny and may be challenged during trial. But this does not automatically grant the report evidentiary value; it still requires the court’s assessment.
- The FSL report can be contested during cross-examination. Either party may challenge the methodology, the handling of evidence, or the qualifications of the expert involved in preparing the report.
- The credibility and reliability of the report is subject to the judge’s assessment. Even though an FSL report might provide significant probative value, the court will consider it alongside other evidence, including testimonies, physical evidence, and the circumstances surrounding the case.
Value of FSL report
- The admissibility and evidentiary value of scientific evidence totally depends upon the facts, circumstance of the case, as well as the opinion of the court, pertaining to that case.
- In conclusion, the evidentiary value of an FSL report in India is probative and a forensic report is highly unreliable and varies on a case to case basis, it can significantly contribute to the determination of facts, but it does not automatically carry evidentiary value until it meets the conditions required for admissibility in court and is backed by some other corroborative evidence. The role of expert opinion or forensic report is primarily of being a ‘relevant fact’, more than that of being an ‘evidence’. The court’s decision is the final in determining if any weight at all is to be given to give an FSL report in light of the overall evidence presented during the trial. Hence non-filing of FSL report cannot be said to be fatal for prosecution case when there is credible evidence of the prosecutrix and others.
Half or incomplete testimony of the witness cannot render the witness hostile
- Moreover, as regards the hostility of the witnesses concerned, in my opinion, during the course of a trial, a witness may or may not answer certain questions which may then be regarded as an incomplete version of their story. Or the witness may at any stage of trial when called upon to testify, give only a half hearted version, either during cross examination or examination-in-chief. However, this does not ipso facto render the witness a ‘hostile witness’. The courts through various judgments have held that declaring a witness as hostile does not ipso facto result in rejection of his evidence entirely.
Evidentiary value of the testimony of Hostile witness
- The evidence of a hostile witness would not be totally rejected if spoken in favor of the prosecution or the accused but it can be subjected to closer scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defense may be accepted
Relevant Para No.
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