Absence Of Injury On Prosecutrix Implies Her Consent For Sex

Absence Of Injury On Prosecutrix Implies Her Consent For Sex: P&H HC Upholds Acquittal In Rape Case

In a clear, categorical and convincing observation, the Punjab and Haryana High Court in Union Territory, Chandigarh v Amit Kumar @ Rachu and others in CRM-A No. 1887-MA of 2017 (O&M) delivered just recently on October 16, 2019 minced no words in observing that absence of injury on the person of the prosecutrix would lead to an inference that she was a consenting party to sexual intercourse. The Punjab and Haryana High Court in this notable case refused to grant Leave to Appeal against the judgment of acquittal in a rape case. It has thus been made absolutely clear by the Punjab and Haryana High Court in this latest, landmark and extremely laudable judgment that to attract the offence of rape, the victim should not be a consenting party to a sexual intercourse and absence of injury on the person of the prosecutrix would palpably lead to the logical conclusion that she too was a consenting party and therefore rape charges would not be attracted in such case!

CRM No. 27600 of 2017

To start with, this noteworthy judgment authored by Justice Jaswant Singh for himself and Justice Lalit Batra of Punjab and Haryana High Court at the very outset points out that, “Present application has been filed under Section 5 of the Limitation Act read with Section 482 Cr.P.C. for condonation of delay of 53 days in filing the appeal. Upon notice, counsel for respondent No. 1 has filed a reply dated 27.05.2019 to the present application. After hearing counsel for the parties, the delay of 53 days in filing the application for grant of leave to appeal is condoned. Application stands disposed of accordingly.”

CRM-A-1887-MA of 2017

Starting from scratch, para 1 first and foremost lays the groundwork by pointing out that, “Present application has been filed under section 378(3) of the Code of Criminal Procedure 1973 (in short “the Code”) for grant of Leave to Appeal against the judgment of acquittal dated 30.01.2017 passed by learned Additional Sessions Judge-cum-Judge Special Court, Chandigarh, whereby respondents accused have been acquitted for the offences under Section 363, 366, 120-B, 376-D, 342 Indian Penal Code (IPC).”

While dwelling on the facts of the case, para 2 then says that, “Tersely put the facts of the case of the prosecution are that  PW-2 (Pappu son of Munshi Ram, father of the prosecutrix/victim) moved a complaint to the local police station wherein he stated that his daughter (prosecutrix) was found missing. He also alleged in the complaint that on 30.10.2015 at about 11/12 P.M. she went to attend a ‘Jagran’ but she did not come back to the house till morning. He made her frantic search but he failed to find out any clue of her whereabouts. Later on, he came to know that four boys, namely, Amit, Suraj, Kannu and Vikas (respondents/accused) abducted her in a car bearing Registration No. CH-01-AR-6944. On the basis of this complaint, a formal F.I.R. (Ex. P-17) was registered under Sections 363, 366, 120-B IPC. During investigation, all the accused were arrested and prosecutrix was also recovered. Her statement under Section 164 Cr.P.C. was got recorded by the Investigating Officer. Accused were medically examined and prosecutrix was also subjected to medical examination.”

Needless to say, it is then pointed out in this same para 2 ahead that, “After completion of necessary formalities of investigation, the report under Section 173 Cr.P.C. was presented before the Court of Judicial Magistrate and thereafter the case was committed to the Court of Sessions. Copies of report as envisaged under Section 208 Cr.P.C. were supplied to the respondents accused free of cost. Finding a prima facie case, the accused respondents were charge-sheeted for the commission of offences under Sections 376-D, 366, 342 read with Section 120-B of Indian Penal Code.

On the face of it, para 2 then further discloses that, “To prove its case against the respondents accused, the prosecution has examined the following Ten (10) witnesses which are as under:-

Prosecutrix as PW-1, Pappu, complainant/father of the prosecutrix as PW-2, HC Gulzar Singh as PW-3, HC Yash Pal as PW-4, Dr Parijat as PW-5, Sonu as PW-6, Dr. Chandrani as PW-7, ASI Rajvir Singh as PW-8, Constable Sonu Kumar as PW-9 and Sandeep Garg as PW-10.”

Furthermore, it is then mentioned in this same para 2 that, “On completion of prosecution evidence, the statements of accused under Section 313 Cr.P.C. were recorded in which all the incriminating circumstances appearing by way of evidence of prosecution against the respondents accused were put to them and they pleaded their innocence and false implication. Accused-Amit Kumar @ Racha in a statement under Sectiion 313 Cr.P.C. put forth a stand that he has been falsely implicated by the parents of the prosecutrix, as there was love affair between the prosecutrix and him and the family members of the prosecutrix, in order to teach him a lesson, have concocted this false case. Chances of defence was given by the trial Court to the respondents accused but no defence evidence was produced. On the basis of weak evidence produced by the prosecution against the respondents, they have been acquitted of the charges for the commission of offences under Sections 376-D, 366, 342 read with Section 120-B of Indian Penal Code.”

After hearing the version of both parties, the Bench then holds in para 3 that, “We have heard learned cousnel for the parties and have also gone through the paper-book very carefully with their assistance. We are of the view that the prosecutrix in this case was neither kidnapped nor abducted. The story of the prosecution put forward in the Trial Court looks to be highly improbable. The defence version is probable. Admittedly, the prosecutrix was running about more than 18 years of her age at the time of alleged incident. As per the alleged case of the prosecution, the prosecutrix was abducted by the accused from ‘Jagran’ at the knife point and the accused further took her to a hotel situated in Sector-42, Chandigarh. It is not established by the prosecution that how from assembly crowd of ‘Jagran’, the accused could manage to abduct her. It is not the case of prosecution that ‘Jagran’ was concluded at around 11/12 P.M. As such, the prosecutrix was supposed to sit in the gathering of ‘Jagran’ till its conclusion. It is not cleared by the prosecution how she came in the compnay of the accused and how the accused branded a knife on her in order to abduct her.”

While continuing in the same vein, it is then further elaborated upon in this same para 3 that, “Further, prosecutrix has testified that she was kept confined in a ‘Jhuggi’ for two days. If the prosecutrix was wrongly confined at the house of accused Shanti wife of Balwant Singh for about two days, she should be the first person to raise hue and cry. It is not the case of prosecution that prosecutrix was given any intoxicant, by virtue of which she lost her senses for two days and was not in a position to raise noise. Therefore, in the absence of any intoxication, the prosecutrix was able to raise hue and cry in case she kept confined forcibly in the house of Shanti for two days. Medical examination has also highlighted that there was no injury on any part of the prosecutrix. Medical expert PW-5 (Dr. Parijat) has stated that there was chances of recent sexual intercourse with the prosecutrix. In cross examination, this Medical Expert has testified that no injury on the private part of the prosecutrix was noticed. Meaning thereby, the doctor did not find any injury on the person of the prosecutrix, from which it can be inferred that she was a consenting party to the sexual intercourse. There is no corroborative evidence to the testimony of the prosecutrix that she was victim of rape. Her testimony had not stood the test of credence and in these circumstances, we are inclined to extend the benefit of doubt to the respondents. The statement of other witnesses is formal in nature. The contradictions, as observed by the Trial Court in the impugned judgment, are itself sufficient to discard the case of the prosecution in toto. As such, the Trial Court has not committed any mistake in giving the benefit of doubt to the accused for want of cogent and convincing evidence.

Not less important is what is then stated unequivocally in para 4 that, “That apart, the scope of the Appellate Court, while dealing with the appeals against acquittal, is settled. Though there is no embargo on the Appellate Court to reverse the decision based on the evidence upon which the acquittal is based, generally the order of acquittal based on presumption of innocence of the accused, is further strengthened by acquittal. The Appellate Court, while considering an apppeal against acquittal, has to consider whether there are compelling and substantial reasons for reversing the order of acquittal. The Appellate Court can reverse the order of acquittal if the view taken by the Court is palpably erroneous and it could not have been taken by the Court of competent jurisdiction and is taken against well settled canon of criminal jurisprudence. Merely because the Appellate Court, on re-appreciation and re-evaluation of the evidence, is inclined to take a different view, interference with the judgment of acquittal is not justified. If the view taken by the trial Court is a possible view, even if two views are equally balanced it need not result in interference by the Appellate Court in the judgment of the trial Court of acquittal. The Appellate Court will have to see whether there is perversity in the decision if the conclusions are contrary to the evidence on record or the Court’s entire approach is patently illegal or it is based on erroneous understanding. If the order of acquittal is to be reversed, the Appellate Court must examine and discuss the grounds given by the trial Court to acquit the accused and must give cogent reasons to overturn the findings. Thus, while considering the order against acquittal, generally the Appellate Court should not interfere where view taken by the trial Court is not unreasonable or perverse. With the legal position in mind, we have considered the view taken by the trial Court is a possible view and it does not require any interference by this Court.”

Lastly, it is then held in the last para 5 that, “In view of the above discussion, this Court is of the opinion that the trial Court, while appreciating the entire evidence in its proper perspective, has rightly held that the prosecution has failed to prove its case beyond any reasonable doubt. Thus, no case for any kind of interference in the impugned judgment is made out. The view of the trial Court is hereby affirmed and is mainatained. The instant application is without any merit and, therefore, dismissed. Leave to Appeal is declined.”

In the ultimate analysis, what the foregoing discussion as we saw in different paras of this notable ruling boils down to is this: The absence of injury on the prosecutrix implies her consent for sex. In addition, there was no corroborative evidence that could substantiate the testimony of the prosecutrix that she was victim of rape. The bottom line is: Sex with consent without any injury anywhere on body and absence of any corroborative evidence cannot be considered rape at all! Very rightly so!

Sanjeev Sirohi