NABI MIR v. STATE — 1995 DIGILAW 257 (CAL)

N. K. BHATTACHARYYA, J. ( 1 ) BY this application for addition of party, the mother of the victim girl inter alia, prayed that she should be permitted to be added as an Opposite Party in the revisional application filed by 16 accused persons as revisionists. A copy of the application far addition of party has been served upon the State but the State is not coming forward to contest the application of the mother of the victim girl far addition of party. The application far addition was served upon the revisionists through their learned Advocate: Mr. Arun Kumar Mukherjee appearing with the learned Advocate Mr. Debabrata Nandi Heard the submissions of Mr. Amit Talukdar appearing with Mr. Amitabha Karmakar on be half of the proposed added party, the mother of the victim girl, and Mr. Mukherjee appearing with Mr. Nandi far the revisionists. Considered the materials on record, 16 out. of 37 accused persons by this revision have challenged the proceedings in G. R. Case Na. 234/89 pending before the Court of the learned S. D. J. M. at Central arising out Bhagabanpur P. S. Case No. 16/89 dated 25. 3. 1989 under Sections 148/ 149/325/326/436/302/307 of the Indian Penal Code. The P. S. Case was started upon the information lodged by the father of the victim girl Golabdi Sk. During the course of the proceeding in G. R. Case No. 234/89 the said de facto complainant died. In the meantime, investigation was completed and charge-sheet was submitted against 37 accused persons for offence as mentioned earlier. It appears from the order of the learned Magistrate being Order No. 37 dated 27. 4. 1995 that without the permission of the Court and after the submission of the charge-sheet the Investigating Officer made certain corrections in the charge-sheet. The learned Magistrate directed the Investigating Officer to submit show-cause and the cause was shown which was accepted by the learned Magistrate by Order No. 76 dated 5. 5. 1995. The cause shown was that though there were 37 accused persons but the names of the three accused persons were written twice. For that the names of the accused persons were left out in the charge-sheet and correction has been made regarding the same. Those are subject-matters of challenged before this Court. 5. 1995. The cause shown was that though there were 37 accused persons but the names of the three accused persons were written twice. For that the names of the accused persons were left out in the charge-sheet and correction has been made regarding the same. Those are subject-matters of challenged before this Court. Be that as it may, out of 37 accused persons 16 accused persons as revisionists moved this Court in revision challenging the entire proceeding in G. R. Case No. 234/89. In her anxiety that the case, will not be properly contested by the State, the mother of the victim girl and the present application for addition of party as the de facto complainant died during the continuance of the proceeding in G. R. Case No. 234/89. ( 2 ) MR. Talukdar submits before this Court that the Code of Criminal Procedure does not provide any provision for such addition of party. Mr. Talukdar further submits that where there is no provision in the Code, in the interest of justice and fair play the Court should exercise its inherent power under Section 482 of the Code of Criminal Procedure. Mr. Mukherjee on the other hand by referring to Section 394, Cr. P. C. submits that in case of an appeal preferred by the accused against conviction and sentence and in the event of the death of the accused the next of kin may be permitted to proceed with that appeal but no provision has been made for addition in trial or revision. ( 3 ) HAVING heard the learned Advocates for the parties and considering the materials on record, it appears that the Code of Criminal Procedure provides for addition of party in revision under Section 403, Cr. P. C. In the revision, the State has been figured as an Opposite Party and the copy of the revisional application has already been served alongwith the notice upon the State intimating, inter alia, that such an application had been filed upon which directions were given for service and also an ad-interim order was granted and ad-interim order would come up for hearing. The matter regarding extension of adinterim order came up for hearing before this Court on 5. 7. 1995. The State inspite of such notice did not appear to contest the application for extension of ad-interim stay. The matter regarding extension of adinterim order came up for hearing before this Court on 5. 7. 1995. The State inspite of such notice did not appear to contest the application for extension of ad-interim stay. From record it appears that the application for addition of party has already been served upon the State but inspite of such Service the State has not appeared either to support or to contest this application. This is very indicative that the State is taking either no or very little interest in this matter. The matter is of very serious nature and fair play demands that the matter should beheard in its proper perspective. As the State is not coming forward, in all its earnestness, in the interest of justice and fair play and in exercise of my power under Section 403, Cr. P. C. , I permit the mother of the victim girl to be added as a party as an Opposite Party in the revision. The application-for addition of party is thus disposed o ( 4 ) LET the cause-title of the main revisional application be corrected accordingly. The petitioners are directed to serve a copy of the revisional application upon the added Opposite Party through her learned Advocate Mr. Talukdar. Application disposed of. ARTICLE 1996 (3) CRIMES 431 CRIME OF RAPE - SOME CASE STUDIES Rape cases are on the increase. Display of the limbs of women in Television, late night films, circulation of blue films, absence posters etc, have created a polluted environment to which the youth is falling prey. Cases are plenty in which girls aged about 4 to 5 years have been ravished by adult men. In a recent case an old man more than 50 years of age raped a girl, hardly 7 years old. In the case of Laxman Majhi, the culprit ravished and killed his own niece for which he was awarded capital punishment Rape is a form of crimes which can not be prevented by the Police in as much as such instances are stray in nature and there is hardly any habitual rapist who is committing rape one after the other, so that Police can keep an eye on him. Some of the cases have occurred during the early flours of the morning when the victims go out to attend the call of nature. Some of the cases have occurred during the early flours of the morning when the victims go out to attend the call of nature. Many instances are there, particularly in the Adibasi areas when the women, while returning from the weekly market are being raped A few cases have occurred at odd hours of right, during the absence of the husband of the lady or he father of the girl. Some daring cases have happened in city areas where girls have been forcibly carried away and raped. But such cases are few and far between. Then the question comes as to what should be the basic evidence, for conviction in a rape case. Very often the victims wash their clothes, take bath and clean their private parts before they are sent to the Medical Officer for medical examination. In such situations the entire physical evidence is lost. We can not expect to have eye witnesses in the cases of rape. Thus the entire case rests upon the sole testimony of the prosecutrix. In many cases of rape injuries are absent. The legal requirement as per Section 375 I. P. C. is that mere penetration constitutes rape and such penetration may not cause injury in many of the cases. Dr. B. B. Panda, Addi. D. G. of Police C. I. D. , Crimes, Orissa. For a conviction in a rape case, is it necessary that there should be injury in the private part of the prosecutrix? Does the evidence of the prosecutrix need corroboration? In the case of Rafiq v. State of U. P. reported in 1980 Cr. L. J. 1344, Justice Krishna Iyer explaining an earlier decision of the Supreme Court (in the case of Pratap Mishra v. State of Orissa) reported in A. I. R. 1977 S. C. 1307, as regards absence of injury on the person of the woman as fatal to the prosecution and need of corroborating evidence) observed that facts and circumstances often vary from case to case, the crime situation and the myriad psychic factors, social conditions and peoples life style may fluctuate and rules of prudence relevant in one fact-situation may be inept in another. Corroboration as a condition for judicial reliance on the testimony of a prosecutrix, is not a matter of Jaw, but guidance of prudence under given circumstances. Corroboration as a condition for judicial reliance on the testimony of a prosecutrix, is not a matter of Jaw, but guidance of prudence under given circumstances. The learned Judge further Observed that there are several sacred cows of the criminal Jaw in Indo-Anglican jurisprudence which are superstitious survivals and need to be re-examined. When rapists are revelling in their promiscuous pursuits and half of human kind - woman kind is protesting against its hapless lot, when no woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her, we can not cling to a fossil formula and insist on corroborative testimony, even if, taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. In the case of B. B. Harjibhai v. State of Gujarat reported in A. I. R. 1983 S. C. 753 the Apex Court observed that corroboration is not the sine-Qua-non for a conviction in a rape case and that 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. There is no reason to view the evidence of the girl or the woman complaining rape on her or sexual molestation 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. A girl or woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is like to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracised or being looked down by the society including her own family members, relatives, mends and neighbours. In the case of State v. Angom Nobi Singh reported in 1963 (2) Cr. L. J. 715, there was no injury in the private part and no semen was detected in the clothes or in the private part. It was held that the same did not prove that there was no rape. It was held on the other hand that injury she received on her body while trying to ward off the kukri, clearly showed that there was a determination on the part of the accused to gratify their passions even with Violence. It was held that the same did not prove that there was no rape. It was held on the other hand that injury she received on her body while trying to ward off the kukri, clearly showed that there was a determination on the part of the accused to gratify their passions even with Violence. Next question arises as to what is the relevance of character of the lady in a rape case. Section 154 (A) of Evidence Act says that when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character. Taking the clue from this section, invariably attempts are being made to cast aspersion on the character of the victim. In many of the cases, the Medical Officers, for the reasons best known to them, opine that the victim was used to sexual intercourse. The Apex Court, in the case of State of Haryana v. Prem Chand, reported in AIR 1990 S. C. 538, while explaining the word Conductt held the factors like character and reputation of the victim are wholly alien to the very scope and object of Section 376 and can never serve either as misguiding or extenuating circumstances for imposing the sub- minimum sentence with the aid of proviso to Sec. 376 (2 ). Then where S. C. with its judgment (AIR 1989 S. C. 937) had used the expression TConduct in the lexicographical meaning for the limited purpose of sharing as to how the victim had behaved or conducted herself in not telling anyone for about 5 days about the sexual assault perpetrated on her and it was observed that the peculiar facts and circumstances of the case coupled with the conduct of the victim girl do not call for the main sentence as prescribed under section 376 (2), it could be said that the Supreme Court neither characterised the victim as a woman of questionable character and easy virtue, nor made any reference to her character and reputation. In the case reported in AI. R. 1990, S. C. P-656 State of Maharashtra v. Chandraprakash Kewalchand Jam, a Police Officer had committed rape on a young girl in her late teens. Against the judgment of Bombay High Court the State Government of Maharashtra went to the door steps of the Apex Court. In the case reported in AI. R. 1990, S. C. P-656 State of Maharashtra v. Chandraprakash Kewalchand Jam, a Police Officer had committed rape on a young girl in her late teens. Against the judgment of Bombay High Court the State Government of Maharashtra went to the door steps of the Apex Court. The Apex Court observed that in this case evidence of prosecutrix was convincing and corroboration was not necessary. In this judgment the Apex Court laid down the standard of proof expected by the Court and further observed that in such a case there is no room for sympathy or pity and punishment in such cases should be exemplary. In this case the Supreme Court further held that a prosecutrix of a sex offence can not be put on par with the accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence can not be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness u/s 118 of Evidence Act 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 alive to and 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 accepts this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice which requires it to look for corroboration. If for some reasons 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 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. In the case of Prithi Chand v. State of Himachal Pradesh reported in AIR 1989 S. C. 702 the S. C. held that: - TTIt was a case where the victim girl was of the age of 11 to 12 years. In the case of Prithi Chand v. State of Himachal Pradesh reported in AIR 1989 S. C. 702 the S. C. held that: - TTIt was a case where the victim girl was of the age of 11 to 12 years. Medical examination showed absence of hymen with edges torn and profuse bleeding from vagina. The doctor opined that vagina admitted one finger with difficulty. Because of such opinion, the argument advanced was that having regard to such fact and to her tender age, it is not possible to believe that there could be penetration. The Lordships pointed out that the argument overlooked the fact that in absence of penetration there would not have been absence of hymen with edges to and profuse bleeding from the vagina staining the saluar and merely because the Doctor opined that vagina admitted one finger with difficulty, it can not be inferred that there was no penetration as the muscles must have contracted by thent This case is of a lot of help to the prosecution. In the case of Km. Narayanamma v. State of Karnataka reported in 1995 S. C. Cr. R Page 307, there was no injury on the back of the victim and defence had taken the plea that in the absence of the injury on the back of the victim forcible intercourse could not be possible. The Apex Court observed that T1the prosecutrix is 14 years old. She has corroborated on all material particulars including medical evidence and evidence of P. W. 2. Absence of injury on back would be of no consequence when trampled crop provided a cushion and surrounding crops provided a cover obstructing visibility. She and witnesses had no axe to grind against the respondents. In the case of Nagarajan v. State of Tamil Nadu reported in AI. R 1995 S. C. 1926 it had been argued that smegma was found absent in the male organ of the accused and that he may not be guilty. In this case when the police forcibly opened the door of the room accused and victim were found in the room. Disinterested witness was present at the spot. Medical Officers evidence also corroborated commission of rape. The Apex Court while rejecting the appeal of Nagarajan held that circumstances irresistibly pointed out that the accused persons had committed rape. In this case when the police forcibly opened the door of the room accused and victim were found in the room. Disinterested witness was present at the spot. Medical Officers evidence also corroborated commission of rape. The Apex Court while rejecting the appeal of Nagarajan held that circumstances irresistibly pointed out that the accused persons had committed rape. Regarding absence of smegma the Court observed that accused persons were examined after 20 hours of the crime and smegma was found absent on the respective male organ and that for itself may not be a conclusive factor of its removal by sexual intercourse. In the case of State of Punjab v. Gurmit Singh and Others reported in 1996 (I) Crimes Page 37, S. C. (a case u/ss 363, 366, 368 and 376 IPC), the prosecutrix below 16 years was abducted by the three accused in a car while she was going home and was confirmed her in a Kotha. She was forced to take liquor arid was then raped under threat to kill her if she raised alarm. The trial court acquitted the accused on the ground that the prosecutrix was unable to identify the car in which she was abducted. The car was also not traced No alarm was raised. The story of abduction was introduced by the prosecutrix to her parents and that there was no corroboration of the statement of prosecutrix. The rape was disbelieved by the lower Courts. The question raised was whether the grounds on which the trial Court disbelieved the version of the prosecutrix were sound and whether the prosecutrixts statement was reliable. The Apex Court observed that the grounds of acquittal by the Lower Court were not adequate and that the statements of the prosecutrix are reliable. The Apex Court further pointed out that the trial Courts were totally ignorant of the report of the chemical examiner. The opinion of the trial Court that it was a false case due to enmity was perverse. The Apex Court observed that the approach of trial Court was erroneous and inference of loose character of girl was of no avail. In this case the Supreme Court recorded strong disapproval of the approach of the Lower Court. The opinion of the trial Court that it was a false case due to enmity was perverse. The Apex Court observed that the approach of trial Court was erroneous and inference of loose character of girl was of no avail. In this case the Supreme Court recorded strong disapproval of the approach of the Lower Court. The S. C. while laying down guide lines as to how criminal trial of crime against women should be conducted and how the evidence is to be appreciated, - Observed - Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woments rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victimts privacy and personal integrity but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive to the whole personality of the victim. A murder destroys the physical body of the victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. There has been lately, lot of criticism of the treatment of the victims of sexual assault in the Court during their cross-examination. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. There has been lately, lot of criticism of the treatment of the victims of sexual assault in the Court during their cross-examination. The provisions of Evidence Act regarding relevancy of facts notwithstanding, some defence counsel adopt the strategy of continual questioning of the prosecutrix as to the details of the rape. The victim is required to repeat again and again the details of the rape incident not so much as to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to attempt to twist the interpretation of events given by her so as to make them appear inconsistent with her allegations. The Court, therefore, should not sit as a silent spectator while the victim of 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 contradiction in her evidence. The above case laws would clearly indicate as to what the Court needs in the case of a rape. If cases are investigated properly and there is proper prosecution in the Court of law, the rapist will be punished and then only it will have some impact on the criminals. It is a matter of regret that the cases are neither properly investigated nor properly prosecuted in the Courts for which there is large scale acquittal in the rape cases. There is a need for systematic study of such cases by the students of law. It is a matter of regret that the cases are neither properly investigated nor properly prosecuted in the Courts for which there is large scale acquittal in the rape cases. There is a need for systematic study of such cases by the students of law. While talking about the dignity of womanhood, we should not forget that rape cases are on the increase. Once the society, as a whole, becomes conscious the case is investigated properly and prosecuted properly resulting in the conviction of the accused, the criminal will think twice before committing a heinous crime like rape.