STATE Vs. MADAN LAL
LAWS(J&K)-1993-3-8
HIGH COURT OF JAMMU AND KASHMIR
Decided on March 02,1993

STATE Appellant
VERSUS
MADAN LAL Respondents




JUDGEMENT

PER MIR J. - (1.)THIS appeal arises out of a judgment passed by Sessions Judge, Udhampur on 30.1.1988 whereby respondent has been acquitted of a charge under section 376/511, Ranbir Penal Code. BRIEF FACTS:
(2.)RESPONDENT , who was posted as Head Master of Government Middle School Khun, Tehsil Ramnagar, during school hours sent the prosecutrix, Mst, Rajni, aged 13 years, a student of 8th class, to his residence, for cooking his meals. He used to live in a rented house nearby. Accused -respondent during recess period, which fell between 10 A.M. and 11 AM reached his residence. He asked the other two girls, Mst. Sunita and Mst. Krishana, to leave the premises but asked the prosecutrix to stay. When the other two girls left the respondent after using force upon the prosecutrix submitted her to an offence of sexual assault and detained her in the house for four hours. When the prosecutrix reached her house she narrated her story of woe to her mother, Mst. Shakuntala Devi. A report was lodged and case was registered in terms of Sections 376/511, read with Sec. 342 R.P.C. He pleaded not guilty. The prosecution in order to prove the charge examined as many as 24 witnesses, including the prosecutrix. Mst. Rajni. The Trial Court disbelieved the prosecution story and acquitted the accused -respondent. Hence this appeal.
(3.)THE Trial Court while returning the impugned judgment has totally disbelieved the statement of the prosecutrix, because according to the Trial Court bereft of any corroboration same could not be believed. Here in the first instance arises an occasion for us to adjudge as to whether or not in all cases statement of the prosecutrix requires corroboration. The answer to this question will determine the fate of the finding of the Trial Court in this case. The Supreme Court, as back as in 1983 in Bharwade Bhagnidhari Hirji Bhai, reported in AIR 1983 SC 753 signaled of a need for placing reliance on the uncorroborated statement of a prosecutrix. The apex Court impressed by the male predominance existing in our country wanted to believe a prosecutrix, the victim of a sex offence, which is always committed in privacy. Their lordships laid down the following ratio: -
"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 be 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 focused 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 western world. It is wholly unnecessary to import the said concept on a turn -key 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."
The Supreme Court while analying the social backwardness of our women, their subjugation to male superiority and their simplicity, declined to accept that an Indian girl will ordinarily make false allegations of a sexual assault on her. There, according to the Highest Court, might by very rare exceptions but it was hurriedly added by their lordships that such exceptions, it at all available, could only be fond in urban elites. A long list of reasons was enumerated by their lordships for holding this belief. The sum total of the ratio laid down in this authority is that when a simple rustic village woman alleges of a sexual offence having been committed upon her, even if that statement is not corroborated, the Court can, in the given circumstances of the case, convict the accused on the basis of that statement only.
This point again came up for consideration before the Supreme Court in case State of Maharashtra versus Chandraprakash Kewalchand Jain, reported in AIR 1990 SC 658. While identifying the standard of proof required in bringing home to the accused charges of a sexual offence the Supreme Court maintained that seeking corroboration from a victim of a sexual offence is to equate her with an accomplice and in doing so the courts will be insulting the women folk. While reversing the order of acquittal passed by the High Court the Supreme Court convicted the accused and laid down as under: -

"A prosecutrix of a sexual -offence cannot be put on 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 S 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violance. The same degree of care and caution must be attached 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 leveled 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 similar to illustration, (b) to S 114 which requires it to look for the 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 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 trust -worthy. If the totality of the circumstances appearing on the record of the case disclose 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. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage.........." The High Court in this case had observed as under: - "It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary."
The apex Court reversed the anology and held that ordinarily the courts should rely upon evidence of prosecutrix as is done in case of an injured witness, unless special circumstances in rarest of rare cases warrant greater caution. In response to High Court view their lordships of the Supreme Court held as under: -
"With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of 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."
Moved by an increase in sexual offences, especially during state custody, the Supreme Court has in this case finally clinched the issue by laying down that it is only in rarest of rare cases that court, in order to place reliance upon the evidence of a prosecutrix, should look for corroboration, following thereby that in all other cases a conviction of an accused can be based upon uncorroborated statement of the prosecutrix. Their lordships observed as under: -
"We think it proper, having regard to the increase in number of sex -violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of 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 it unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behavior. Ours is not a permissive society as in some of the Western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eve -teasing, from molestation to rape. Decency and morality in public life can be promoted and protested by only if we deal strictly with those who violate the societal norms. The standard of proof to be expected by the court in such cases must take into account the fact that such crimes generally are 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."



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