By Sandeep Suresh
Sandeep Suresh is a recent graduate of the National Law University in Jodhpur, India.
Sexual offenses against women have always shocked our collective conscience. In the process of creating sensitivity about such offences against woman, we have not been successful in infusing morality into the society, for morality is something inherent and difficult to be imparted. Unfortunately, in India, the Criminal Justice System has also failed to sensitively deliver justice to the victims of such crimes and to restore their dignity. More specifically, trials of sexual offences in India portray an abysmal state of affairs concerning the way in which victims are treated and evidence is appreciated.
This post analyzes two judgments delivered by Special Courts in Bangalore, India specifically designated to conduct rape trials. Both these judgments unfortunately reveal that these Special Courts are not really “Special.” They expose several discrepancies concerning the treatment of victim testimony and methods used to appreciate evidences while deciding a rape case. Undoubtedly, such discrepancies are chiefly due to Special Court judges being insensitive towards the nature of such a heinous crime as sexual offence and being unaware of the binding legal precedents laid down by the Supreme Court of India (SCI).
Let us briefly discuss the main grounds for acquittal in this case. Firstly, the Special Court found that the doctor who examined the victim reported that no sperm was found on the victim’s genitalia. Secondly, the Special Court held that the prosecution failed to prove that the accused threatened the victim of death, as per clause 3 of section 375 of the IPC. The victim’s testimony was the only proof and no other material evidence was present to support that claim.
Dishearteningly, this judgment suffers from various flaws. Firstly, in Prashant Kate v State of Maharashtra, the Bombay High Court had clearly ruled that presence of semen is not necessary for proving an offence of rape: "It is not necessary that in every sexual intercourse, there would be oozing of semen.”  Hence, the Special Court was incorrect in disbelieving the prosecution case by stating that no semen was found on the victim’s genitalia by presuming that it must be present in every case of rape. It has to be remembered that under Indian law, even slight penile penetration is still considered to be rape.
Secondly, the Special Court was incorrect in holding that the prosecution did not submit any material evidence to prove that the victim was threatened by the accused. In State of Punjab v Gurmit Singh, it was held that evidence stated by the victim of sexual assault stands almost on par with the evidence of an injured witness and to an extent is even more reliable.  Further, in Bharwada Bhoginbhai Hirjibhai v State of Gujarat, it was held that 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.  Evidence of the victim in a sexual offence case must be given greater weight than in a normal case. Therefore, in the judgment under discussion, the Special Court has insulted the victim by not willing to accept her testimony that the accused threatened her.
The second judgment under discussion is State of Karnataka v Dasthagir Khan.  In this matter, it was alleged by the prosecution that when the victim was alone at her house, the accused went into the house, closed her mouth, kissed her and forcibly committed sexual intercourse with the victim.
The Special Court once again acquitted the accused from the charges of rape. The main grounds upon which the Special Court acquitted the accused was that the doctor who examined the victim stated in her deposition that on local genital examination of the victim, evidence of signs of recent sexual intercourse was absent. Therefore, the Special Court held that as the medical evidence contradicts with victim’s testimony, the prosecution has not proved the occurrence of rape beyond reasonable doubt.
In Gurmit Singh, the SCI had held that evidence of a victim in a sexual assault case is sufficient for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration.  In Dasthagir Khan, the Special Court Judge had himself noted in the judgment that minor contradictions in evidences of the victim and her mother were not fatal to the prosecution case. Moreover, the victim’s brother had testified that he saw the accused committing sexual intercourse on the victim and saw the accused running away from the house as well. Therefore upon reasonable analysis, it is quite clear that there were no compelling reasons that compelled corroboration for the evidence led by the victim in this case.
Another important judgment of the SCI, delivered in 2007, certainly casts more light on this issue. In B.C. Deva v State of Karnataka, the SCI held that even if the Gynaecologist’s Report did not disclose evidence of sexual intercourse, the oral testimony of the victim was found to be cogent, reliable, convincing and trustworthy. On that basis solely, the Accused was held to be guilty.  Similar and stronger was the decision in Om Prakash v State of Uttar Pradesh.  In this case, the SCI held that, “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 prosecution.”
The judgments discussed in this post merely depict the cover page of a book that is stained by social and legal issues. Without any default, it is necessary that Trial Courts follow the legal precedents that govern rape trials laid down by the SCI and other High Courts. More importantly, Trial Judges must remind themselves that in a case of a heinous crime against her body like rape, no self-respecting woman would come forward merely to make a humiliating statement against her honor such as the commission of rape.
 SC No.217/2012; decided on April 3rd 2014
 Criminal Appeal No. 284 of 2010; decided on March 5th 2012
 1996 CriLJ 1728 SC
 1983 CriLJ 1096 SC
 SC No.810/2012; decided on July 21st 2014
 1996 CriLJ 1728 SC; see State of Himachal Pradesh v Raghubir Singh, (1993) 2 SCC 622
 2007 (9) SCALE 338
 Criminal Appeal No. 629 of 2006; decided on May 11th 2006
Photo Credit: Flickr User Ramesh Lalwani
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