Rape Is Violation Of Victim’s Fundamental Right Under Article 21: Gauhati HC

It is remarkable, refreshing and reassuring to learn that just recently on 31 August 2020, the Gauhati High Court in a latest and laudable judgment titled Nasiruddin Ali vs The State of Assam and Anr. Represented by P.P.  in Case No. Crl.A. 227/2016 has laid down in no uncertain terms that rape is a violation of victim’s fundamental right under Article 21 of the Constitution. Mrs Justice Rumi Kumari Phukan of Gauhati High Court who authored this noteworthy judgment minced no words to say in simple, straight and strict language that rape tantamount to a serious blow to the supreme honour of a woman and is a crime against the entire society as well! Very rightly so!

To start with, the ball is set rolling in para 2 of this notable judgment wherein it is observed that, “Present appeal is directed against the judgment and order dated 12.07.2016, passed by the learned Assistant Sessions Judge, Tinsukia, in Sessions Case No. 64(M)/2011, whereby the accused/appellant has been convicted under Section 376 of the IPC and sentenced to undergo rigorous imprisonment for a period of 9 (nine) years and to pay fine of Rs. 1,000/-, in default further imprisonment for three month.”

While dwelling on the facts of the case, it is then stated in para 3 that, “The prosecution case in nutshell is that on the night of 26.11.09 at about 10:00 P.M., while the victim was on her way to home on foot from Digboi Chariali market and arrived near Digboi club, one Muslim man having beard forcefully took her to the bathroom of nearby swimming pool and committed rape upon her. On receiving the verbal information from the victim on the following day i.e. on 27.11.2009, at 11.45 A.M., the Digboi Police Station GD Entry No. 1014, dated 27.11.2009 was made and the victim was sent to the hospital for medical examination. ASI Sashi Thakuli, who was entrusted with the investigation of the case by the Officer-in-charge, Digboi P.S., visited the place of occurrence and prepared the sketch map and also recorded the statement of the witnesses. On 27.11.09 itself, as shown by the victim, the accused was apprehended and brought to the police station. The formal ejahar was lodged by the victim on the same day at about 5.30 P.M. and accordingly Digboi P.S. Case No. 264/09, under Section 376 of the IPC was registered. The statement of the victim was recorded under Section 164 of the CrPC and the accused was arrested and forwarded to Court. The medical report of the victim was collected and after completion of the investigation, the charge sheet was filed against the accused/appellant under Section 376 of the IPC.”

To put things in perspective, it is then pointed out in para 28 that, “In his statement under Section 313 CrPC, the accused appellant has given the same statement as he has given in his evidence as DW-1. Thus, the plea of the accused appellant is relevant in the present case, inasmuch, as he has admitted his presence at the time of occurrence at such odd hours of night. In Answer to the Question No. 4 under Section 313 CrPC, he stated as follows:-

“At the time of occurrence, I was doing night duty at Digboi club. At night, security personnel came on patrolling duty twice. I saw one Sanjay Upadhyay entered into the tennis Court along with a girl. I ran to the place along with chowkidar of the garden, Basu ray and one Gogoi and said Sanjay Upadhyay and the girl was caught hold. Sanjay Upadhyay worked in the Digboi Club and I asked Sanjay as to why he had brought girl to the Club and as I rebuked them, both the girl and Sanjay went away. On the very next day, said girl came to my house and asked for my identity card and otherwise, she will lodge case against me. I will examine Vasu Ray as defence witness.””

While punching holes in the accused’s version, it is then pointed out in para 29 that, “Since the accused person has taken a specific plea as stated above, the burden shifts to him to prove such plea. But as discussed above, prosecution has been able to prove that on the fateful day, the accused has committed the offence of rape upon the victim in the said vicinity whereas, the accused has totally failed to prove his plea taken during the course of the trial. He did not produce the other chowkidar, Basu Ray in support of his plea, whereas, evidence of PW-2, who also happened to be present at the time of occurrence has belied the story projected by the accused. Further, his statement also supported the contention of the victim girl that she went to the house of the accused to complain to his wife and thus, the testimony of the victim is found to be an authentic one.”

Be it noted, para 30 then illustrates the nitty-gritty of this leading case by stating that, “Although the victim has reported the matter to so many other persons of the Digboi Club, but those were not examined by the IO, but same cannot be a ground to discard the prosecution case, as evidence of the prosecutrix is supported by other evidence and facts and the circumstances of the case. On closer scrutiny of the entirety of the matter, there appears nothing on the part of the prosecutrix for false indication of the accused person, there being no earlier acquaintance nor any enmity between the duo. Each and every aspect, she narrated, has been supported by the witnesses, but yes, there is no eye-witness to the occurrence and having regard to the isolated place of occurrence, odd hours of night and having no immediate residence nearby, non-having of eye witness/independent witness is natural. The victim has withstand the lengthy cross-examination without any vital contradiction to raise suspicion. Only the fact remains that the victim girl in her statement under Section 164 CrPC after raising all the allegations, has also said one line that for the interest of the family of the accused, she is not interested to proceed with the case. The victim, in course of trial, has also admitted about saying so, but he also boldly denied that because of falsity of allegation, she did not want to proceed with the case. She might have made such statement under pressure being a young girl of 20 years. However it cannot lose sight that the victim pursued the case till conclusion of the trial and her statement remained consistent all through. Some minor omission regarding the time of occurrence 09:30/10:00 pm and that she did not mention in the FIR about working on wages in IOC Hospital, that the FIR did not disclose all details above, are of little consequence and not destructive of genesis of the case. The evidence of prosecutrix in the given facts and circumstances give no room for any doubt and her evidence is akin to the “sterling witness” as she has qualified the test of “sterling witness” as has been held in the decisions referred above. The victim, herein is a poor girl and earns her livelihood as a daily wage earner and there appears no any occasion for false implication of the accused person. Non-seizure of wearing apparels of the victim for tending to FSL, is a lapse on the part of the Investigating Officer. On the other hand, the victim was examined after 2 years of the occurrence and some omission in her testimony that Police took her cloth is not found fatal.”

Interestingly enough, it is then pointed out in para 31 that, “So far as regards the non-finding of injury upon the victim, as per the medical evidence, it is to be noted that injury is not a sine qua non for deciding whether rape has been committed or not. It has to be decided on the factual matrix of each case. The Hon’ble Apex Court in (2013) 11 SCC 688, Radhakrishna Nagesh Vs State of Andhra Pradesh, it has been held that penetration itself proves offence of rape, but contrary is not true, i.e., even if there is no penetration, it does not necessarily mean that there is no rape. The Hon’ble Apex Court further held that absence of injuries would justify any adverse inference against prosecution. In (2014) 13 SCC 574; Krishan Vs State of Haryana, it was also held by the Hon’ble Apex Court that it is not expected that every rape victim should have injuries on her body to prove her case.”

More significantly, it is then envisaged in para 32 that, “In the present case, the conduct of victim is noteworthy, who immediately after the occurrence, reported the matter to the nearby people, to the Police, to the authority of the Digboi Club and the GD Entry and FIR was made on the next day of the occurrence without any delay and there is no material variation in her version. As the FIR was written by some other person, not by the prosecutrix herself, different mentioning of time etc. is not fatal as it does not go to the root of the case. There being no any other adverse circumstances, solitary version of the prosecutrix can be accepted as a true version of the occurrence, which is fully supported by the other evidence on record, coupled with the defence version. The prosecutrix has been able to prove the charge under Section 376 of the IPC, beyond the reasonable doubt and the learned trial Court has appreciated all relevant aspects.”

Most significantly, it is then remarkably and rightly held in para 33 that, “The chastity of a woman ruined as soon as such offence is committed, while in a civilized society, respect or reputation is a basic right. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. Youthful excitement and an attempt for momentary pleasure on the part of a person upon a woman, had a devastating effect in the entire body and mind of the victim. It is to be kept in mind that such offence lowers the dignity of a woman and mars her reputation. The Courts are sensitized that rape is a violation of victim’s fundamental right under Article 21 of the Constitution and rape victim is placed on a higher pedestal than an injured witness. Being the most hatred crime, rape tantamount to a serious blow to the supreme honour of a woman and is a crime against the entire society as well.”

    Finally, it is then held in the last relevant para 34 that, “For the reasons and the discussions above, this Court is of considered view that the order of conviction is liable to be sustained and calls for no interference. However considering the fact that the accused person have family with five children and behind the bar since the date of conviction, when maintaining the conviction he is sentenced to statutory minimum period of conviction of seven years and the sentence remains the same. The period of detention already undergone shall be set off.”

To sum up, the crux of this ruling is that rape is the most heinous crime and it really tantamount to a serious blow to the supreme honour of a woman and is a crime against the entire society as well. How can any civilized society justify it on any pretext whatsoever? Rape cannot be justified under any circumstances and those who commit it must be prepared to face the music of law as it cannot be condoned under any circumstances!

Needless to say that, “A rape is a rape”! There should be certainly no minimum punishment for it as those who commit it deserve no mercy under any circumstances! Under no circumstances should a rapist be allowed to somehow escape the strictest punishment as laid down under our law! There can be certainly no denying it!

Sanjeev Sirohi

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