CHAPTER – III

CHALLENGES IN PROSECUTION OF SEXUAL

OFFENCES AND INSTITUTIONS INVOLVED
IN ADMINISTRATION OF JUSTICE

Today, sexual assault trials have become the most complex matters which come
before the criminal Courts. These have always presented their own peculiar problems.
Unlike the case in murders, thefts and non-sexual assaults, the prosecution must
establish the threshold proposition that a crime has indeed been committed. Only then
does it become necessary to enquire who committed it. Not all survivors find it
necessary to report sexual assault to the criminal justice system in order to move
forward from their experience. In fact, some feel that the criminal justice system re-
victimizes them in its process. Though, the essential object of criminal law is to
protect society against criminals and law – breakers. For this purpose it provides the
machinery for the detection of crime, apprehension of suspected criminals, collection
of evidence, determination of guilt or innocence of the suspected person, and the
imposition of suitable punishment on guilty person. But at present the subject of
sexual offences and more specifically the role of criminal justice system in managing,
investigation and prosecuting sexual offender have attracted lively and controversial
debate, in both public and legal spheres. According to the Justice J.S Verma
Committee on amendments to criminal laws, 2013, a comprehensive body of
legislation to deal with sexual offences against women is not in itself sufficient to
prevent sexual violence or to bring about gender justice. Government agencies
including the police whose primary duty is to ensure the safety and security of all its
citizenry, including women, who make up half of the population, must function
efficiently in order to ensure that the purposes and objectives of the legislation are
complied with. It is only then that issues of gender violence can be dealt with through
the mechanism of the law and the Constitution of India. Sexual offences pose a
daunting challenge for the police and for the criminal justice system holistically.
Although a victim plays a crucial role in the criminal justice process, there are many
reasons why rape and sexual assault are not prosecuted. This chapter will therefore

101
address the challenges in prosecuting sexual offences and the institution involved in
administration of justice.

3.1 CHALLENGES IN PROSECUTION OF SEXUAL OFFENCES

Sexual Crimes against women is a global outcry. A wide variety of sex related
offences take place in different circumstances and social settings. Some of the most
prominent ones are sexual assault (without intercourse), forcible rape, sexual abuse of
mentally or physically disabled people, sexual abuse of children including statutory
rape (sexual intercourse with or without consent with minors) adultery, sodomy,
fornication, forced marriage and co-habitation including the marriage of children,
violent acts against the sexual integrity of women including female genital mutilation
and obligatory inspection for virginity and forced prostitution and trafficking of
people for the purpose of sexual exploitation.1

In India, there is no dearth of cases of this sort. On the night of February 1988, a
group of policemen helped by home guards and chowkidars entered the village
Pararia in Bihar, and created terror by committing this type of offence, which even
today villagers remember as a bad dream. It was to avenge the assault on two of their
colleagues, which had taken place a week before. Fourteen policemen went on a
rampage of looting destructing and committing mass rape. These policemen were
acquitted in court on the strength of their defence counsel‘s argument that those
women could not be equated with such ladies as hail from decent and respectable
society. These women were engaged in menial work so they were of questionable
character. After the judgment, there was total silence. No one deemed fit to speak on
behalf of these poor women who earned their living by the sweat of their brows.2
Another case of mass rape of 25 tribal women of Ujaimaidan Tripura in June 1991
follows exactly the Pararia pattern. The brutalization perpetrated by the counter
insurgency outfit, the 27 Assam Rifles, who raped women from the age of 12 to 45
years.3 These are the two instances of many cases which take place from time to time
in the country. Despite the stringency in the societal and governmental approach

1
Harold J. Vetter and Ira J. Silverman, The Nature of Crime, (W. B. Saunders Company,
Philadelphia, 1978).
2
State of Bihar v. Ajit Kumar, 2008 (1) JCR 604 (Jhr).
3
Dr. Narendra Kr Verma, ―Effectiveness of Indian Legislation with Special Reference to Female
Sexual Offences‖, 23 (IJESR, Vol. 2, Issue 2, 2015, Rajasthan).

102
towards this dreadful menace the increasing trend of rapes has remained unabated. It
is a known fact that recorded rape cases are only the tip of the iceberg as not only
many cases of rape are not reported, but also many of those cases in our country are
not registered. Even if they are reported, the unscrupulous officers in the police
stations do not register the cases. Even if the case is registered and an investigation
starts, the female victims mostly feel shy and embarrassed to answer delicate
questions posed by male investigating officers; as a result, the truth is not revealed. In
India, although, many rape cases are charge sheeted, a large number of these cases
ultimately end in acquittal. There are many reasons for the large-scale acquittal in
rape cases. Prolongation of investigation, laxity on the part of the investigating
officers, non-availability of witnesses, etc. have been identified as major contributing
factors for the same. Medical evidence is a crucial piece of information, which is
required for establishing the case of rape in a court of law. It has been observed that
lady doctors in government hospitals in many cases hesitate to give frank medical
opinion in rape cases for fear of appearing as a prosecution witness and being
subjected to embarrassing cross-examination. The Law Commission of India in its
84th report, 19804, also pointed out that the report of the medical examination is often
cursory or is not sent in time. Data relating to sex related offences are mostly
available from the police record, clinical setting, non-governmental organizations and
survey research. But whatever information is available on the subject is merely the tip
of the iceberg. Because of the very nature of the offence, incidents are not properly
reported to the police on account of many reasons arising out of ignorance, illiteracy,
and fears of retaliation from the offenders or merely because of an inability to have
access to the police. There is also a fear of shame and stigmatization of the victims
and their families, or reluctance on the part of the family to report the case, especially
where the perpetrator is powerful and rich. Lack of faith of the common people in the
official law enforcement mechanisms of the Police, Courts and laws also add to the
problem of under reporting of sexual cases. While measuring rates of sexual violence
can be difficult, there is no uncertainty in the national data that the majority of sexual
assaults are never reported to police. It is believed that only 15.8 to 35 per cent of all

4
Law Commission of India, 84th Report on Rape and allied Offences: Some Questions of
Substantive Law, Procedure and Evidence, 23 (1980).

103
sexual assaults are reported to the police.5 Over recent years the complexity of sexual
assault trials has been increased due to following reasons discussed as under:-

3.1.1 Non–Reporting of Sexual Violence

The 1st foremost Challenge or question before the Prosecuting authority is that: Why
the sexual offences in relation to the women went unreported or are under-reported?
The Law Commission of India claims that during the recent years, the impact of the
Criminal Justice system on victim of rape and other sexual offences has received
considerable attention both in legal circle and amongst organizations and individuals
with the welfare of the women. In the legal field of criminology, an increasing interest
is being shown in the victim and his or her position in the criminal justice system. In
consequences, a greater attention is now being paid to the female victim of a sexual
offence.6 Even than the most prominent difficulty in the delivery of justice to the
victims of sexual offences is the very low reporting of cases. The evidence as to
whether domestic violence is less likely to be reported to the police than violence
between strangers is mixed. Contrary to popular beliefs, empirical studies have
established that in most cases of rape, molestation or child sexual abuse - the
perpetrator is usually someone known to the victim.7 The Surveys of interpersonal
violence suggest that the police are less likely to be notified when the offender is a
partner or other family member than when the offender is a stranger.8 A survivor‘s
relationship with the offender has a strong effect on the likelihood of reporting. When
an offender is an intimate partner or former intimate partner, only 25 per cent of
sexual assaults are reported to the police. When an offender is a friend or
acquaintance, only 18 to 40 per cent of sexual assaults are reported. When an offender
is a stranger, between 46 and 66 per cent of sexual assaults are reported.9 For victims
living in small or remote villages, physical access to the legal system may be difficult,
as well. If a victim does not live near a police station or courthouse, the travel

5
NCRB ―Crime in India: Compendium‖, (MHA, 2014).
6
Law Commission of India, 84th Report on Rape and allied Offences: Some questions of substantive
Law, Procedure and Evidence, 23 (1980).
7
Hon‘ble Mr. K.G. Balakrishnan, ―National Consultation on Access to Justice, Relief and
Rehabilitation of Rape Victims‖, (New Delhi, March 07, 2010).
8
Richard Felson and Paul-Philipee Pare, ―The Reporting of Domestic Violence and Sexual Assault
by Non Strangers to Police‖, (Unpublished) (The Pennsylvania State University, March 2005).
9
T. Hart and C. Rennison, ―Reporting Crime to the Police‖, (U.S. Bureau of Justice Statistics,
2003).

104
required to report a crime (as well as seek medical treatment) can be a significant
obstacle. She may not have access to transportation, and, if she has children, she is
likely responsible for their care during the day. She may not even know where to go. 10
Ms. Sharada Raut, DCP in charge of Crimes against Women Cell, Mumbai,
highlighted the fact that in 94 per cent of the cases the accused is known to the victim
and most of these crimes occur within the home or immediate neighborhoods, where
the role of police is minimal.11 Victims of rape or molestation are either hesitant or
reluctant to report the commission of these crimes. This is primarily due to fears about
social stigma and disapproval. There is a very real phenomenon described as
‗secondary-victimization‘ wherein the victim of a crime faces additional harassment
and humiliation in the course of investigation and trial. Especially when the
perpetrators are in a position of power over the victims, there is a strong distrust of the
credibility of the investigation itself. A 14 years old Malviya Nagar servant quarter
residents alleges that her alcoholic father raped her. The girl was employed as a
caretaker in a nearby playschool. The girl had reported that she was beaten up if she
resisted. She also have two younger sisters and frequently they were beaten up by
their father. The girl did not tell anyone about the abuse because - her father had made
threats that she would be sold into prostitution and other members of the family would
be killed. One day she noticed her father cruelty towards her younger sister. Then she
decided to share the incidence with play school teacher and narrated everything. The
teacher took the girl to police station and has registered a complaint.12

In another incident a 14 years old Nepalese girl came to Delhi with her aunt in search
of job. She started working as a house maid in Sangam Vihar. After one year the girl
was dragged up by a gang of boys in a moving van while coming back from the
nearby market. They drove her for about 20 minutes tied her hands together, covered
her eyes with a blindfold to an unknown location near Nizamuddin, where six or
seven men assaulted, raped and tortured her. They drugged her and she was ordered to
perform sexual acts. She stated that she had suffered abuse at the hands of stranger

10
Kim Thuy Seelinger, et.al. ―The Investigation and Prosecution of Sexual Violence‖. (HRC,
University of California, Berkeley, May 2011).
11
Rahat, ―Consultation between Stakeholders on dealing with Cases of Sexual Crimes‖ (12th Sep.,
2013, Mumbai).
12
Sanjeeda, ―An Analytical Study of Rape in Delhi‖ (Volume 2, Issue 3, pp. 60-68, August 2013,
IJEPR).

105
over a period of two years. After a bit she felt mentally owned by them, they didn‘t
have to force her. One day suddenly a team of police rescued her and investigated
about the crime.13

Elizabeth Sheehy, vice-dean of research and professor at the University of Ottawa

who specializes in sexual assault law. Provided a long list of what could be expected
when reporting sexual assault to police14:-

 Police interviews - may be several, by several officers,

 Police make a decision whether the report is ―founded‖ or

unfounded‖—they may decide they don‘t believe the woman;

 They may even say they believe her but there‘s no point going ahead
because unlikely to be successful;

 Some women who persist/insist may be threatened with charges of

mischief by police; There‘s not a lot women can do if police failed to
found or investigate;

 Police may undertake further investigative steps like interviewing the

alleged perpetrator;

 Women sometimes ask for the rape kit results and police are not
obliged to tell them what they revealed or to use it or to rush results;

 Even if the case makes it through police, they overwhelmingly charge

at lowest level Tier 1, even when there are aggravating facts that
should result in higher levels - i.e. weapon, bodily harm, multiple men;

 Crowns also drop charges or plead them away;

 Women experience huge trauma through cross-exam and disclosure of

their records, past sexual history;

 Convictions are rare.

13
Hon‘ble Mr. K.G. Balakrishnan, ―National Consultation on Access to Justice, Relief and
Rehabilitation of Rape Victims‖, (New Delhi, March 07, 2010).
14
Erika Turker, Why don‘t Victims or Bystanders Report Sexual Assault, available at:
http://globalnews.ca/news/1645523/why-dont-victims-or-bystanders-report-sexual-assault/ (Last
retrieved on 10 Sep., 2016).

106
The poll carried out by the parenting website Mums net found that the vast majority
of women who are raped or sexually assaulted do not report the crime to police, in
many cases because they have little confidence that their attacker would be brought to
justice.15 Moreover, the survivors of sexual assault cite the following reasons for not
reporting a sexual assault16:-

1. Fear of reprisal

2. Personal matter

3. Reported to a different official

4. Not important enough to respondent

5. Belief that the police would not do anything to help

6. Belief that the police could not do anything to help

7. Did not want to get offender in trouble with law

8. Did not want family to know

9. Did not want others to know

10. Not enough proof

11. Fear of the justice system

12. Did not know how

13. Feel the crime was not ―serious enough‖

14. Fear of lack of evidence

15. Unsure about perpetrator‘s intent

3.1.2 Prolongation of Police Investigation

The Police force is an instrument for the prevention and detection of crime.17 Section
23 of the Police Act, 1861 provides that it shall be the duty of every police officer to

15
Martin Beckford, ―80% of Women Don‘t Report Rape or Sexual Assault, Survey Claims‖,
available at: http://www.telegraph.co.uk/news/uknews/crime/9134799/Sexual-assault-survey-80-
of-women-dont-report-rape-or-sexual-assault-survey-claims.html, (Last Retrieved on 25 Sep.,
2016).
16
D. Kilpatrick et al., “Drug-facilitated, Incapacitated, and Forcible Rape: A National Study,‖ (2007,
U.S. Bureau of Justice Statistics).
17
The Police Act, 1861, Preamble.

107
collect and communicate intelligence affecting the public peace; to prevent the
commission of offences and public nuisance; to detect and bring offenders to justice
and to apprehend all persons whom he is legally authorized to apprehend, and for
whose apprehension sufficient grounds exist.18

According to Clause (h) of Section 2 of the Code of Criminal Procedure

―Investigation‖ includes all the proceedings under the code for the collection of
evidence conducted by a Police officer or by any person (other than a magistrate) who
is authorized by a magistrate.19 The Supreme Court of India in H.N. Rishbud v. State
of Delhi20, has viewed the Investigation of an offence as generally consisting of:-

1. Proceeding to the spot ;

2. Ascertainment of the facts and circumstances of the case.

3. Discovery and arrest of the suspected offender;

4. Collection of evidence relating to the commission of the offence which

may consist of :-

(a) The examination of various persons (including the accused) and

the reduction of their statements into writing, if the officers
think fit,

(b) The search of places or seizure of things considered necessary

for the investigation or to be produced at the trial; and

(5) Formation of the opinion as to whether on the material collected there

is a case to place the accused before a magistrate for trial, and if so,
taking the step necessary for the same by filling of a charge - sheet
under Section 173.

All above is far from the reality. Why it is so because not only are many sexual cases
not reported since most victims of rape or molestation are either hesitant or reluctant
to report the commission of these crimes, but even if they dare to complain or report
then the unscrupulous officers in the police stations do not register many such cases in
India. Where the primary responsibility of Police is to protect life, liberty and
18
Section 23, The Police Act, 1861.
19
Section 2(h), Cr.PC, 1973.
20
AIR 1955 SC 196.

108
property of citizens. This results in second biggest challenge in prosecuting not only
sexual offences but other offences too. Attitude of police and its investigation policy
especially in sexual offences can be discussed under following heads as mentioned
under:-

1. Non registration of FIR.

2. Laxity in investigation on the part of police officer conducting

investigation, where FIR is registered.

3. Dual Victimization of the victim if she reported a sexual assault.

4. Inadequate knowledge of such kind of offence.

3.1.2.1 Non-registration of FIR

According to the Section 154 of the Code of Criminal Procedure, the officer in -
charge of a police station is mandated to register every information oral or written
relating to the commission of a cognizable offence. Non registration of cases is a
serious complaint against the police.21 The National Police Commission of India in its
4th Report has pointed out that a complaint often heard against the police is that they
evade registering cases for taking up investigation when specific complaints are
lodged at the police station.22 In the study conducted by the Indian Institute of Public
Opinion, New Delhi, regarding ―Image of the Police in India‖23, it found that over
50% of the respondents have mentioned ―non-registration of complaints‖, as a
common malpractice in police stations. Among the several malpractices it is ranked
third, the first two places being taken by:-

I. Showing partiality towards rich or influential people in cases involving

them or reported by them, and

II. Shielding goondas and other criminal elements concerned in gambling

dens, illicit distillation, etc. This malpractice of non-registration arises
from several factors, including the extraneous influences and
corruption that operate on the system, besides the disinclination of the
staff to take on additional load of investigational work in the midst of
21
Section 154, Cr.PC, 1973.
22
The National Police Commission of India, 4th Report, 1980.
23
Indian Institute of Public Opinion, ―Image of the Police in India‖. (MHA , 1978 , New Delhi).

109
 heavy pressure of several other duties. Among all such factors the most
important one which accounts for a substantial volume of crime going
unregistered is the anxiety of the political executive in the State
Government to keep the recorded crime figures low so as to claim
before the State Legislature, the public and the press that crime is well
controlled and is even going down as a result of ‗efficient‘ police.

The Report of Committee on Reforms of Criminal Justice System 24 has also pointed
out that There is an increasing tendency amongst the police station officers to advise
the informants, who come to give oral complaints, to bring written complaints not
only this even in cognizable cases quite often the Police Officers do not entertain the
complaint and send the complainant away saying that the offence is not cognizable. A
common citizen is not aware of this artificial distinction between cognizable and non-
cognizable offences. It is very unreasonable and awkward. Not only this a victim is
asked to wait for several hours before an FIR is recorded and while she is waiting in
the open several officers become curious and ask her irrelevant questions. Also the
norm of filing a zero FIR in cases where there is doubt about jurisdiction is not
followed and the victim is shunted from one police station to the other. Even though it
is mandatory to record the statement of a child under POCSO at the residence of the
victim or at a place where she is comfortable, the police insist that the victim should
be brought to police station and is interrogated before a complaint is filed to ensure
her credibility. Due to this, often, the victim does not register the complaint and is
sent back despite the fact that non-registering of the complaint of sexual violence is a
punishable offence under the IPC.25

3.1.2.2 Laxity in investigation, where FIR is registered

The manner in which police investigations are conducted is of critical importance to

the functioning of the Criminal Justice System. Not only serious miscarriage of justice
will result if the collection of evidence is vitiated by error or malpractice, but
successful prosecution of the guilty depends on a thorough and careful search for truth

24
Government of India, Ministry of Home Affairs, Justice V.S. Malimath Committee Report on,
―Reforms of Criminal Justice System‖, (Vol. 1, March 2003, New Delhi.).
25
Kim Thuy Seelinger, et.al. ―The Investigation and Prosecution of Sexual Violence.‖ (HRC,
University of California, Berkeley, May 2011).

110
and collection of evidence which is both admissible and probative. In undertaking this
search, it is the duty of the police to investigate fairly and thoroughly and collect all
evidence, whether for or against the suspect.

As discussed earlier that Police official shows partiality towards rich or influential
people in cases involving them or reported by them which result in non-registration
of the complaint or the FIR of the victim at the 1st instance.26 However, if somehow
they took up the complaint or register the FIR then right from the police constable at
the entry point in a police station upwards, the IO, the senior officers, and even the
constable who accompanies the victim to a hospital, the clerical staff at the reception
desk in hospital, to doctors and nurses and the public prosecutor – each one becomes a
judge, and interrogates the victim in a derogative manner and doubts her credibility.
Sometimes the accused is brought face to face with the victim and he is allowed to
intimidate her or dissuade her from lodging the complaint. The accused invariably
makes accusations against the victim‘s character which the police tend to accept and
therefore tries an out of court settlement between the accused and victim rather than
that of investigating the case. Ms. Sharada Raut, DCP in charge of Crimes against
Women Cell, Mumabi while highlighted the fact that in 94 per cent of the cases the
accused is known to the victim states that most of these crimes occur within the home
or immediate neighbourhoods, where the role of police is minimal.27 Thus, police
often resort to short cut methods and exhibit negative traits of police sub-culture,
namely, rudeness, use of, defensiveness in face of criticism, lack of innovativeness
etc.

Not only this in cases where the complaint about the commission of sexual offence
against the women is reported by a third party. The investigation team not reaches on
time. The 2013 Delhi gang rape titled as ―Nirbhaya‖ is a good example of such an
ignorance on the part of investigating agency. It is reported that three hours later, a
Police Control Room (PCR) van picked up Nirbhaya‘s naked body and her injured
friend lying under a flyover.28 Thus, prompt police investigation is imperative for

26
The National Police Commission of India, 4th Report, 1980.
27
Kim Thuy Seelinger, et.al., ―The Investigation and Prosecution of Sexual Violence‖. (HRC,
University of California, Berkeley, May 2011).
28
Tina P. Lapsia, ―Impact of the ―Nirbhaya‖ Rape Case: Isolated Phenomenon or Social Change‖,
(Honors Scholar Theses. Paper 453. 2015) available at: mailto:digitalcommons@uconn.edu. (Last
Retrieved on 18 Sep., 2016).

111
justice delivery to the victims. If the police investigation starts immediately after the
event has taken place, witnesses not only are able to recall the incident easier but the
suspects are less likely to develop a concocted defence. Further an Immediate
physical and medical examination of the victim is of utmost importance after
reporting of sexual offence because this is the beginning point of any investigation.
Moreover, it helps in ruling out the possibility of false allegation, which happens
many times because of many reasons.29 But a victim is asked to wait for several hours
before and after an FIR is recorded. She is not sent to medical examination until the
FIR is recorded and she is interrogated several times by the investigation officer.30
The investigating officer finds it important to record the statement of the victim of
sexual offence before a magistrate or in police station rather than taking the survivor
victim to the hospital for her medical examination. As in some cases the investigation
report itself shows that firstly the victim (x) taken to the magistrate by the I.O. for
recording of her statement under Section 164 Cr.PC. and thereafter she has been taken
to the hospital for his medical examination.31 It may be apt to point out that the rank
of the Investigating officer investigating a case also has a bearing on the quality of
investigation. The minimum rank of an SHO in the country is SI. However, some of
the important police stations are headed by the officers of the rank of Inspector. It has
been observed that investigations are mostly handled by lower level officers, namely,
HC and ASI etc. The senior officers of the police stations, particularly the SHOs
generally do not conduct any investigations themselves. This results in deterioration
of quality of investigations. Another important aspect impacting on the quality of
investigation is the insularity of the investigating officers and the supervisory ranks.
Also it has now become a regular feature to embellish the FIRs and statements, giving
incorrect facts and circumstances, with the objective of roping in innocent persons for
political reasons or to settle personal scores. This happens even in grave offences like
murder and rape etc. Witnesses and victims even make false statements before the
Magistrates under Section 164 Cr.P.C. Further the present level of application of
forensic science in crime investigation is low in the country; only 5-6 per cent of the

29
Dr. Barindra N. Chattoraj, Sex Related Offences and Their Prevention and Control Measures: An
Indian Perspective, (LNJN, MAH, and New Delhi).
30
Adv. Flavia Agnes, ―Challenges faced by the Victim/Survivor‖, (RAHAT, 12 th Sep., 2013,
Mumbai).
31
Interview with Adv. Jitender Kumar, District Court Complex, Hisar (Haryana).

112
registered cases are referred to the FSLs and Finger Print Bureau during
investigations. Besides inefficiency, the public complained about rudeness,
intimidation, suppression of evidence, concoction of evidence and malicious padding
of cases on the part of police.32 Moreover, sometimes ingredients of the offence are
not clearly brought out in the charge sheet or in the supporting documents, due to
which the cases results in acquittals.33 Recent police data has confirmed the above
view held by our patriarchal society as it shown that there is only 19 per cent
conviction in rape cases.34

It is not always so that police does not show any interest for investigating sexual
offences against the women or other offences cognizable or non–cognizable, beside
all above things in a cross-section of the police officers at all levels the police officers
itself find it difficult to investigate properly because due to following reasons
mentioned as under35:-

1. Excessive workload due to inadequacy of manpower and long working

hours even on holidays and the absence of shift system;

2. Non co-operative attitude of the public at large;

3. Inadequacy of logistical and forensic back up support;

4. Inadequacy of trained investigating personnel;

5. Inadequacy of the state-of-the-art training facilities in investigation,

particularly in- service training;

6. Lack of coordination with other sub-system of the Criminal Justice

System in crime prevention, control and search for truth;

7. Distrust of the laws and Courts;

8. Lack of laws to deal effectively the emerging areas of crime such as

organised crime, money laundering etc.;

32
Justice V.S. Malimath, ―Level of the Investigating Officer‖, (M.H.A, March 2003, New Delhi).
33
S. Bale and Ujwala Pawar, ―Challenges Faced by Prosecutors‖ (RAHAT, 12 th Sep., 2013,
Mumbai).
34
Jatin Anand, Only 19% Conviction in Rape Cases in 3 Years : Police Data, (Hindustan Times,
March 6, 2014).
35
S. Bale and Ujwala Pawar, ―Challenges Faced by Prosecutors‖ (RAHAT, 12 th Sep., 2013,
Mumbai).

113
 9. Misuse of bail and anticipatory bail provisions;

10. Directing police for other tasks which are not a part of police
functions;

11. Interrupting investigation work by being withdrawn for law and order
duties in the midst of investigation. Political and executive
interference;

12. Existing preventive laws being totally ineffective in curbing criminal

tendencies of hardened criminals and recidivists.

3.1.2.3 Dual victimization of the victim

Victims turn to the police for assistance and protection. Police may cause secondary
victimization when they ask victims questions that imply that they are blameworthy or
when they explicitly state to victims that their actions contributed to the rape. This
implication includes but is not limited to questions or statements pertaining to a
victim‘s dress, use of alcohol or drugs, the victim‘s reason for being at a certain
location at the time of the rape, degree of resistance, prior sexual encounters with the
alleged assailant, whether the victim ―led on‖ the alleged assailant, and whether the
victim responded sexually to the incident.36 Investigation of sex offences, particularly
rape cases, requires extra sympathetic handling of the traumatized victims. Therefore
the investigators must try to establish proper rapport with the rape victims and help
the latter overcome shame, nervousness and reluctance. But the reality is totally
opposed to what is stated above. She is treated as an accused rather than a victim of
the crime.37

There is no one in the entire system who speaks for her or stands by her side. Several
times, a victim may not wish to lodge a complaint but may wish to only avail of
treatment in a public hospital. But most public hospitals refuse treatment unless the
case is converted into a medico legal case (MLC). Consent of the victim is not taken
before she is examined both externally and internally though the law mandates this,

36
Secondary Victimization by Police and Court, available at: http://what-when-how.com/
interpersonal-violence/secondary-victimization-by-police-and-courts/ (Last Retrieved on : 20 Sep.,
2016).
37
Adv. Flavia Agnes, ―Challenges faced by the Victim/Survivor‖, (RAHAT, 12 th Sep., 2013,
Mumbai).

114
and the process of undressing and examination can be very humiliating as strict
privacy is not maintained. Also she is not sent to medical examination until the FIR is
recorded.38 Even though it is mandatory to record the statement of a child under
POCSO at the residence of the victim or at a place where she is comfortable, the
police insist that the victim should be brought to police station and is interrogated
before a complaint is filed to ensure her credibility.39 Sometimes the accused is
brought face to face with the victim and he is allowed to intimidate her or dissuade
her from lodging the complaint. Even in cases where charge-sheets are filed and
charges are framed and a trial commences, the dice is often loaded against the
victim.40

In the Delhi Domestic Working Women‟s Forum vs. Union of India41, the Court also
observed that the victims invariably found the trial of an offence of rape trial a
traumatic experience. The experience of giving evidence in court has been negative
and destructive and the victims have often expressed that they considered the ordeal
of facing cross - examination in the criminal trial to be even worse than the rape itself.

3.1.2.4 Inadequacy of police officers

A crime investigation is a specialized work where the IOs (Investigating Officers) can
perform their duties properly only when they are properly trained and possess
necessary skills and expertise. There is need to develop and sharpen Investigative
skills of the officers As the complexity and nature of crime is changing fast, training
facilities in emerging disciplines such as forensic accounting and information
technology etc need to be developed and imparted to the IOs. It has been observed
that investigations are mostly handled by lower level officers, namely, HC and ASI
etc. The senior officers of the police stations, particularly the SHOs generally do not
conduct any investigations themselves. This results in deterioration of quality of
investigations. Though no hard and fast rule can be laid down as to the rank of the IO
for a particular type of case but it is felt that as far as possible, all sessions triable
cases registered in the police stations should be investigated by the senior most police

38
Interview with Adv Jitender Kumar, District Court Complex, Hisar (Haryana).
39
Section 24 of the Protection of Children from Sexual Offences Act, 2012.
40
Hon‘ble Mr. K.G. Balakrishnan, ―National Consultation on Access to Justice, Relief and
Rehabilitation of Rape Victims‖, (New Delhi, March 07, 2010).
41
(1995) 1 SCC 14.

115
officers posted there, be they SIs or Inspectors.42 As the investigators usually had no
training in taking statements from complainants and there was little effort made to
locate evidence which may have had a bearing on proof of the case.43

The National Police Commission pointed out a tendency among police officers in
certain places to launch prosecutions on the conclusion of investigations irrespective
of the strength of evidence for a reasonable expectation of conviction in court. There
are also instances in which a very large number of accused are included in the charge-
sheet irrespective of the strength of evidence against each individual accused.44 Also
sometimes ingredients of the offence are not clearly brought out in the charge sheet or
in the supporting documents, due to which the cases results in acquittals. At times the
IO is indifferent to the court proceedings summoned to court to give evidence. When
the officials come to depose, they are not prepared with the facts of the case and
hence fumble, making mistakes which prove detrimental to the case.45

In her presentation, at RAHAT a consultation between Stakeholders on dealing with

Cases of Sexual Crimes Dr. Sadanand Date, Joint Commissioner of Police (Law and
Order), Mumbai, opined that a large number of cases categorized as ‗promise of
marriage cases‘ need to be booked under a special category and should not be treated
as rape cases under Section 376 of IPC. They could be charged under other relevant
sections such as cheating, criminal breach of trust, etc. She also pointed out there are
also many cases which are categorized as ‗elopement‘ cases, where the parents of a
minor girl file charges of rape against the boy even though the girl has eloped of her
own free will. This former statement and opinion of a police of a higher rank itself
shows lack of profession knowledge of law.46 The Supreme Court of India in State of
U.P v. Chhoteylal47, observed that criminal justice system is not working in our
country as it should. The police reforms have not taken place despite directions of this
Court in the case of Prakash Singh & Ors v. Union of India & Ors.48 We do not
intend to say anything more in this regard since matter is being dealt with separately

42
Justice V.S. Malimath, ―Insularity and Integrity of The Investigating Agency‖, (M.H.A, March
2003, New Delhi).
43
Margaret Cunneen, ―Prosecuting Sexual Assault‖, (AICIC, 2004, Australia).
44
The National Police Commission of India, 4th Report, 1980.
45
Ujwala Pawar, ―Challenges Faced by Prosecutors‖ (RAHAT, 12th Sep., 2013, Mumbai).
46
Sadanand Date, ―Challenges Faced by the Police‖ (RAHAT, 12th Sep., 2013, Mumbai).
47
(2011) 2 SCC 550.
48
(2006) 8 SCC 1.

116
by a 3 - Judge Bench. The investigators hardly have professional orientation; they do
not have modern tools. On many occasions impartial investigation suffers because of
political interference. The criminal trials are protracted because of non-appearance of
official witnesses on time and the non-availability of the facilities for recording
evidence by video conferencing.

3.1.3 Challenges during the Trial of the Sexual Offence

It is often stated that a women who is raped undergoes two crises – the rape and the
subsequent trial. While the 1st seriously wounds her dignity, curbs her individual,
destroys her sense of security and may often ruin her physically, the 2nd is no less
potent of mischief inasmuch as it not only forces her to relive through the traumatic
experience, but also does so in the glare of the publicity in a total alien atmosphere,
with the whole apparatus and paraphernalia of the criminal justice system focused
upon her.49 In India, though about 80 per cent of the rape cases are charge sheeted by
the police, a large number of these cases ultimately end in acquittal. These courts
from the time of their establishment till the end of 2014, 89 resulted in acquittal.50

A study conducted by Indian Express on special courts revealed that of the 107
judgments disposed of by the progress of Court trials gets blocked by a variety of
reasons discussed as under: -

1. Poor Prosecution System

2. Unnecessary - Adjournments during the Course of Trial

3. Witness Perjury

4. Law Conviction Rate

3.1.3.1 Poor prosecution system

So far as the system of prosecution is concerned, it is often seen that best legal talent
is not availed of for placing its case before the Court. The accused is normally
represented by a very competent lawyer of his choice. There is a mismatch in that; an

49
Law Commission of India, 84th Report on Rape and Allied offences: Some Questions of
Substantive Law, Procedure and Evidence,‖ The Crisis of Rape‖, 1 (1980).
50
Jayna Kothari and Aparna Ravi,‖ Sexual Offences Court on Trial: Neither Fast nor Just‖ (1st July,
2015, The Indian Express).

117
equally competent lawyer is not there to represent the prosecution. The burden of
proof being very heavy on the prosecution, it is all the more necessary for the
prosecution to be represented by a very able and competent lawyer. Lack of co-
ordination between the investigation and the prosecution is another problem. This
makes things worse. The investigation of a criminal case, however good and
painstaking it may be, will be rendered fruitless, if the prosecution machinery is
indifferent or inefficient. One of the well-known causes for the failure of a large
number of prosecutions is the poor performance of the prosecution.

In practice, the accused on whom the burden is little he is not to prove his innocence
engages a very competent lawyer, while, the prosecution, on whom the burden is
heavy to prove the case beyond reasonable doubt, is very often represented by persons
of poor competence, and the natural outcome is that the defence succeeds in creating
the reasonable doubt on the mind of the court. When the accused appears or is brought
before the Court in pursuance of a commitment of the case. The prosecutor open his
case by describing the charge brought against the accused and stating by what
evidence he proposes to prove the guilt of the accused. Thus, the prosecutor plays a
key role in the criminal justice system. Because he or she decides who will be
charged, what charge will be filed, who will be offered a plea bargain, and the type of
bargain that will be offered. The prosecutor also may recommend the offender‘s
sentence. A prosecutor has broad discretion at the very stage. According to the
Supreme Court of U.S. ―so long as the prosecutor has probable cause to believe that
the accused committed an offence defined by the statute, the decision whether or not
to prosecute, and what charge to file or bring before a grand jury generally rests
entirely in his discretion‖.51 In Babu v. State of Kerala52, the Court observed that
―Public Prosecutors are really Ministers of justice whose job is none other than
assisting the state in the administration of Justice. They are not representative of any
party. Their job is to assist the court by placing before the court all relevant aspects of
the case. They are not there to see the culprits escape conviction.‖ In Balvant Singh v.
State of Bihar53, the Hon‘ble Supreme Court has pointed out that it is the statutory
responsibility of the public prosecutor alone to apply his mind and decide about the

51
Bordenkircher v. Haayes, 434 U.S. 357, 364 (1978).
52
1984 Cr LJ (Ker H.C).
53
AIR 1977 SC 2265.

118
withdrawal of prosecution and his power is non–negotiable and cannot be bartered
away in favour of those who may be above him on administrative side. In Subhash
Chander v. State54, the Supreme Court stated that it is the public prosecutor alone and
not any other executive authority that decides withdrawal of prosecution. In doing so,
he acts as a limb of the judicial process and not as an extension of the executive. The
fact that the ―prosecutor controls the doors to the courthouse‖ may be particularly
important in cases in which the credibility of the victim is a potentially important
issue, such as sexual assault cases.

Another important factor for the success of the prosecution is proper coordination
between the prosecutor and the Investigating Officer. The papers before filing in
Courts would be scrutinized by the Prosecutor, and advice given wherever any
deficiencies came to be noticed. Only after the rectification of the same, would the
papers filed in Court. The Prosecutor would keep a close watch on the proceedings in
the case, inform the jurisdictional police, and get the witnesses on dates of trial,
refresh the memory of witnesses where necessary with reference to their police
statements, and examine the witnesses, as far as possible at a stretch.55 But now a days
it is not practiced as stated. Ms. Ujwala Pawar District Government Pleader from
Pune, made a presentation on the difficulties faced by the prosecutors specially in
cases where the evidence collected is cursory and insufficient for conviction.
Sometimes ingredients of the offence are not clearly brought out in the charge sheet or
in the supporting documents, due to which the cases results in acquittals. Also at times
the IO is indifferent to the court proceedings and has to be summoned to Court to give
evidence. When the officials come to depose, they are not prepared with the facts of
the case and hence fumble, making mistakes which prove detrimental to the case.
Trainee doctors in public hospitals, who are generally on duty at night when cases are
brought in, sign the medical reports. But when the case comes up for trial, they may
have completed their internship and might have returned to their native place.
Tracking them becomes difficult and proving the medical report without their help is
a major problem in court, despite the medical documents supporting the prosecution
version. She added that doctors feel intimidated during cross examinations and there

54
AIR 1980 SC 423.
55
Justice V.S. Malimath Committee Report on, ―Reforms of Criminal Justice System‖, 125 Vol. 1,
March 2003, New Delhi.

119
is a general fear of Courts in the minds of most doctors. Only a few medical officers
are well versed with the process of cross examination. At times the family forces the
victim not to give evidence, especially when the accused is a family member, near
relative or an influential person in the community.56 In another practice almost every
party to the prosecution, nowadays prefer its own private prosecutor, as the
prosecuting party to the case don‘t show much faith in the public prosecutor engage
by the state. But Section 301(2) of the Code of Criminal Procedure provides that if in
any such case any private person instruct a pleader to prosecute any person in any
court, the public prosecutor shall conduct the prosecution, and the pleader so
instructed shall act therein under the direction of the Public Prosecutor or Assistant
Public Prosecutor, and may, with the permission of the Court, submit written
arguments after the evidence is closed in the case. In Re, Rakhan Ojha57, the Calcutta
High Court held that a private party has no locus standi to engage any lawyer to
conduct prosecution. In Malika Begum v. Abdul Khader58, the Andhra Pradesh High
Court held that even when a case is committed to session on a complaint, it is the
public Prosecutor who is to conduct the session case. Also the code does not
specifically mention about the sprit in which the duties of the prosecutor are to be
discharged. It does not speak of the attitude the prosecutor should adopt while
conducting prosecution. A public prosecutor should be personally indifferent to the
result of case. His duty should consist only in placing all available evidence
irrespective of the fact that whether it goes against the accused or help him, before the
Court.59 In Kuldeep Singh v. State of Punjab60, it was observed and held by the Punjab
and Haryana High Court that – Normally, a counsel representing a complainant party
cannot conduct prosecution and he can only assist the Public Prosecutor in
Prosecuting the case and file written arguments at the end of the arguments with the
permission of the court. Therefore, when a public prosecutor abdicated his power by
not putting questions to defence witness in cross – examination and allowed the
private counsel to do so, the High Court directed the Public Prosecutor to cross –

56
S. Bale and Ujwala Pawar, ―Challenges Faced by Prosecutors‖ (RAHAT, 12 th Sep., 2013,
Mumbai).
57
1998 Cr.LJ 287 (Cal).
58
1985 Cr.LJ 926 (AP).
59
Law Commission of India, 14th Report on ―Reforms of Judicial Administration‖, p. 765 (Vol. II,
Para 2, 1958).
60
1996 Cr.LJ 1619 (P&H)

120
examine the witness with the assistance of the counsel appointed by the complainant.
Not only this Section 321 of the Code of Criminal Procedure. 61 Provides that – the
Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the
consent of the Court, at any time before the judgment is pronounced, withdraw from
the prosecution of any person generally or in respect of any one or more offences for
which he is tried; and upon such withdrawal-

(a) if it is made before a charge has been framed, the accused shall be
discharged in respect of such offence or offences;

(b) if it is made after a charge has been framed, or when under this Code
no charge is required, he shall be acquitted in respect of such offence
or offences: Provided that where such offence-

(i) was against any law relating to a matter to which the executive
power of the Union extends, or

(ii) was investigated by the Delhi Special Police Establishment

under the Delhi Special Police Establishment Act, 1946 (25 of
1946 ), or

(iii) involved the misappropriation or destruction of, or damage to,

any property belonging to the Central Government, or

(iv) was committed by a person in the service of the Central

Government while acting or purporting to act in the discharge
of his official duty, and the Prosecutor in charge of the case hag
hot been appointed by the Central Government, he shall not,
unless he had been permitted by the Central Government to do
so, move the Court for its consent to withdraw from the
prosecution and the Court shall, before according consent,
direct the Prosecutor to produce before it the permission
granted by the Central Government to withdraw from the
prosecution.

61
Section 321, The Code of Criminal Procedure, 1973.

121
3.1.3.2 Unnecessary adjournments during the course of trial

Public expects and deserves speedy trial and quick justice. Delay is a denial of
justice. There are two problems about which every one complains. The first is posting
large number of cases which everyone knows cannot be dealt with on that day for
sheer want of time. This leads to the Court wasting considerable time in calling the
cases. The second problem relates to frequent adjournments. A notorious problem in
the functioning of the courts, particularly in the trial courts is the granting of frequent
adjournments, mostly on flimsy grounds. Adjournments contribute to delays in the
disposal of cases. They also contribute to hardship, inconvenience and expense to the
parties and the witnesses. The witness has no stake in the case and comes to assist the
court to dispense justice. He sacrifices his time and convenience for this. If the case is
adjourned he is required to go to the Court repeatedly. He is bound to feel unhappy
and frustrated. This also gives an opportunity to the opposite party to threaten or
induce him not to speak the truth. The right to speedy trial is thwarted by repeated
adjournments. Adjournment is a curse of the Courts.62

Section 309 of the Code regulates adjournments and provides that adjournment should
be granted only when the court finds it necessary or advisable for reasons to be
recorded. It also gives discretion to the court to grant adjournment subject to payment
of costs.63 However, these conditions are not strictly followed and the bad practice
continues. It has been seen and observed that it become a general habit of trial court to
grant frequent adjournments without any specific reason. As stated by advocate
Jitender Kumar the trial Court allows the plea of adjournment unnecessarily. In a case
where an application under Section 319 of Cr.PC, 1973 is filed, after Examination-in-
Chief, the trial court took 5 months to decide it. As the court is waiting for reply of
defence even when the defence has no role to play in said adjudication upon Section
319. Also the defence had deferred the cross – examination and sought adjourn soon
after the Examination-in-Chief and the court granted the same even upon an objection
of prosecution. In another case reported under Sections 354, 452 and 506 IPC, the
court of Senior Division Judicial Magistrate took 4, months to decide an application
under Section 173(8) of the Code of Criminal Procedure, 1973; as the Court is waiting

62
Vinod Kumar v. State of Punjab, (2015) 3 SCC 220.
63
Section 309. The Code of Criminal Procedure, 1973.

122
for the reply of defence and allow the adjournments as per the wishes of the defence
counsel.64

Same thing as described by the learned counsel Jitender Kumar is pointed out by the
Hon‘ble Supreme Court in above noted case of Vinod v. State of Punjab (Supra) that
adjournments are sought on the drop of a hat by the counsel, even though the witness
is present in Court, contrary to all principles of holding a trial. That apart, after the
examination-in-chief of a witness is over, adjournment is sought for cross-
examination and the disquieting feature is that the trial Courts grant time. The law
requires special reasons to be recorded for grant of time but the same is not taken note
of. In fact, it is not all appreciable to call a witness for cross-examination after a long
span of time. It is imperative if the examination-in-chief is over, the cross-
examination should be completed on the same day. If the examination of a witness
continues till late hours the trial can be adjourned to the next day for cross-
examination. It is inconceivable in law that the cross-examination should be deferred
for such a long time. It is anathema to the concept of proper and fair trial.

The duty of the court is to see that not only the interest of the accused as per law is
protected but also the societal and collective interest is safe-guarded. It is distressing
to note that despite series of judgments of this Court, the habit of granting
adjournment, really an ailment, continues. How long shall we say, ―Awake Arise‖
There is a constant discomfort. Therefore, we think it appropriate that the copies of
the judgment be sent to the learned Chief Justices of all the High Courts for
circulating the same among the learned trial Judges with a command to follow the
principles relating to trial in a requisite manner and not to defer the cross-
examination of a witness at their pleasure or at the leisure of the defence counsel, for
it eventually makes the trial an apology for trial and compels the whole society to
suffer chicanery. Let it be remembered that law cannot allowed to be lonely; a
destitute. The Court in Gurnaib Singh v. State of Punjab65, expressed that, we are
compelled to proceed to reiterate the law and express our anguish pertaining to the
manner in which the trial was conducted as it depicts a very disturbing scenario. As is
demonstrable from the record, the trial was conducted in an extremely haphazard and

64
Interview with Adv Jitender Kumar, District Court Complex, Hisar (Haryana).
65
(2013) 7 SCC 108.

123
piecemeal manner. Adjournments were granted on a mere asking. The cross-
examination of the witnesses was deferred without recording any special reason and
dates were given after a long gap. The mandate of the law and the views expressed by
this Court from time to time appears to have been totally kept at bay. The learned trial
Judge, as is perceptible, seems to have ostracised from his memory that a criminal
trial has its own gravity and sanctity. In this regard, we may refer with profit to the
pronouncement in Talab Haji Hussain v. Madhukar Purshottam Mondkar66, wherein
it has been stated that an accused person by his conduct cannot put a fair trial into
jeopardy, for it is the primary and paramount duty of the criminal Courts to ensure
that the risk to fair trial is removed and trials are allowed to proceed smoothly without
any interruption or obstruction‖. Also in Swaran Singh v. State of Punjab67, the Court
Stated that it has become more or less a fashion to have a criminal case adjourned
again and again till the witness tires and gives up. It is the game of unscrupulous
lawyers to get adjournments for one excuse or the other till a witness is won over or is
tired. Not only is a witness threatened, he is abducted, he is maimed, he is done away
with, or even bribed. There is no protection for him. In adjourning the matter without
any valid cause a court unwittingly becomes party to miscarriage of justice.‖ There
are around 21.3 million cases currently pending in various Courts in India including
the Supreme Court. The magnitude of this problem was brought sharply into
perspective in a magazine article last year, which stated ―if the nation‘s judges
attacked their backlog nonstop with no breaks for eating or sleeping and closed 100
cases every hour, it would take more than 35 years to catch up‖.68

3.1.3.3 Witness perjury

Witness is an important constituent of the administration of justice. By giving

evidence relating to the commission of the offence he performs a sacred duty of
assisting the court to discover truth. The National Police Commission in its 4th report
referred to the inconveniences and harassment caused to witnesses in attending courts.
The Commission reproduced a rather critical and trenchant letter it received from a

66
AIR 1958 SC 376.
67
(2000) 5 SCC 668.
68
Brajesh Ranjan, ―What Caused Justice Delayed‖, Times of India, Aug. 25, 2016.

124
senior District and Sessions Judge. The learned judge gave a litany of grievances and
complaints that a witness may have and then said that69:-

―A prisoner suffers from some act or omission but a witness suffers for no
fault of his own. All his troubles arise because he is unfortunate enough to be
on the spot when the crime is being committed and at the same time ‗foolish‘
enough to remain there till the arrival of the Police‖.

There are three categories of witnesses70:-

(i) victim-witnesses who are known to the accused;

(ii) victims-witnesses not known to the accused (e.g. as in a case of

indiscriminate firing by the accused); and

(iii) witnesses whose identity is not known to the accused.

Category (i) requires protection from trauma and categories (ii) and (iii) require
protection against disclosure of identity. Though special courts under the POCSO Act
have been designated, the designation is only on paper but not in spirit. Court rooms
continue to be formidable with the judge on a high podium and the small child
witness far below where her voice is barely audible to the judge. Although four out of
the five cases under POCSO resulted in conviction, in none of the cases was the
dignity of the victim maintained. This is the primary duty of the prosecutor and also
of the trial judge. Though the trial was held ‗in camera‘ the victim was asked to enter
into a full court room where everyone could see her and only thereafter was the court
vacated before starting the deposition. This is a clear violation of the provision of
maintaining confidentiality. Though the POCSO Act requires that the victim should
not be in full view of the accused while deposing in court, the victim is asked to
depose in full view of the accused. Also, identification of the accused takes place right
at the beginning of the deposition and not after the victim settles down. This unnerves
the victim and she is not able to depose coherently as she is scared.71

69
The National Police Commission of India, 4th Report, 1980.
70
Law Commission of India, 198th Report on, ―Witness Identity and Witness Protection
Programmers‖, 4 (August, 2006, New Delhi).
71
Dr. Barindra N. Chattoraj, Sex related offences and their prevention and Control measures: an
Indian perspective, (LNJN, MHA, and New Delhi).

125
The Supreme Court in Sakshi v. Union of India72, guided that where a child witness is
concerned, the questions have to be given in writing to the judge, who in turn should
put them to the child witness. Instead, the child witness is subjected to lengthy cross
examination by defence lawyers and asked to come to court several times to give
evidence. But despite of guide lines of Honb‘le Supreme Court sometimes the child is
precariously placed on the railing of the witness box in order for the judge to be able
to see and hear the answers given by the child. This tends to violate the basic dignity
of the child witness. Another major problem is about safety of witnesses and their
family members who face danger at different stages. They are often threatened and
the seriousness of the threat depends upon the type of the case and the background of
the accused and his family. Many times crucial witnesses are threatened or injured
prior to their testifying in the court. If the witness is still not amenable he may even be
murdered. In such situations the witness will not come forward to give evidence
unless he is assured of protection or is guaranteed anonymity of some form of
physical disguise. There is a growing tendency of subjecting the witness and his
family members to serious threats to life, abduction or raping, or damaging the
witnesses‘ property or harming his image and interest in other ways. The witness has
no protection whatsoever. Many countries in the world have enacted laws for
witnesses‘ protection. There is no such law in India.73 The High Court of Punjab and
Haryana in Bimal Kaur Khalsa‟s case74, observed that neither the Court nor the
government can ensure the ‗total safety‘ of a prosecution witness. A witness deposing
in a criminal case does so with a sense of public duty. The Court can however take
steps to stop the dissemination of information regarding the identity and address of
the witness ensuring that the name, address and identity of the witness are not given
publicly in the media. Even this judgment does not deal with all the aspects relating to
witness protection In, Swaran Singh v. State of Punjab75, the Supreme Court
described the plight of witnesses in criminal courts as follows:-

―Not only that a witness is threatened; he is maimed; he is done away with; or

even bribed. There is no protection for him‖.

72
AIR 2004 SC 3566.
73
Justice V.S. Malimath Committee Report on, ―Reforms of Criminal Justice System‖, 152 (Vol. 1,
March 2003, New Delhi).
74
AIR 1988 P&H p. 95.
75
AIR 2000 SC 2017.

126
3.1.3.4 Low conviction rate

The main objective of the criminal trial is to determine whether an accused person has
violated the penal law and where found guilty, to prescribe the appropriate sanction.
Prosecution is an executive function of the state and is usually discharged through the
institution of the prosecutor. The burden of proof rests on the prosecution as per the
prescribed standard of proof. The prosecutor faces several problems in proving the
guilt of the accused person. Some of these problems fall beyond the scope of his
duties and responsibilities. The legal framework, the law enforcement infrastructure
and the quality of the personnel operating within the legal system, amongst other
factors, considerably affect the conviction rate.76 Over the years, courts in India have
consistently held that sexual offences ought to be dealt with sternly and severely as
undue sympathy to impose inadequate sentence and do more harm to the system and
undermine public confidence in the efficacy of law.77

The conviction rate may be taken to mean the ratio of cases convicted out of the total
number of cases decided in a given year. In India a total number of 132939 cases of
sexual assault were notified out of which 95.2 per cent were charge – sheeted and the
conviction rate of these cases is just 27.1 per cent.78 And is a matter of great concern
and worriness. There is urgent need to bring about quantum improvement in the
situation, more so when the conviction rate is consistently falling over the years in the
country. Following factors are responsible for low conviction rate in the country:-

1. The conviction rate is largely affected by the quality of investigation,

Insufficiency of evidence due to poor investigation and the standard of
proof prescribed by law to send the case to trial.

2. Poor Prosecution due to a total lack of coordination between the

investigator and prosecutor.

3. The propensity of offenders to plead guilty also has a significant

bearing on the conviction rate. This is totally out of row.

76
Kyoji Ishikawa, ―Issues Concerning Prosecution in relation to Conviction, Speedy Trial and
Sentencing‖ (107th ITC, UNAFEI, 1997, Japan).
77
Justice J.S Verma, ―Report of committee on Amendment in Criminal Law 2013‖, New Delhi 2013.
78
NCRB “Crime in India: Compendium‖, 2 (Glossary, MHA, 2014).

127
 4. The present level of application of forensic science in crime
investigation is some-what low in the country, with only 5-6% of the
registered crime cases being referred to the FSLs and Finger Print
Bureau put together.

5. Witness turning hostile. May be due to threat from other side and at
times the family themselves forces the victim not to give evidence,
especially when the accused is a family member, near relative or an
influential person in the community.

6. Judges do not deliver Judgments for years. As a result the Judge may
forget important aspects thereby contributing to failure of justice. Also
the Judgments are not promptly signed after they are typed and read
causing great hardship to the parties.

In Dhananjoy Chatterjee v. State of W.B.79, the Supreme Court opined that shockingly
large numbers of criminals go unpunished thereby increasingly encouraging the
criminals and in the ultimate, making justice suffers by weakening the system‘s
creditability. The imposition of appropriate punishment is the manner in which the
court responds to the society‘s cry for justice against the criminal. Justice demands
that courts should impose punishment befitting the crime so that the courts reflect
public abhorrence of the crime. The Court must not only keep in view the rights of the
criminal but also the rights of the victim of the crime and the society at large while
considering the imposition of appropriate punishment.

In Mahesh v. State of M.P.80, the Supreme Court pointed that it will be a mockery of
justice to permit these appellants [the accused] to escape the extreme penalty of law
when faced with such evidence and such cruel acts. To give the lesser punishment for
the accused would be to render the justicing system of this country suspect. The
common man will lose faith in courts. In such cases, he understands and appreciates
the language of deterrence more than the reformative jargon. In State of Karnataka v.
Puttaraja81, the Supreme Court held that the object should be to protect the society
and to deter the criminal in achieving the avowed object of law by imposing

79
(1994) 2 SCC 220.
80
(1987) 3 SCC 80.
81
(2004) 1 SCC 475.

128
appropriate sentence. It is expected that the courts would operate the sentencing
system so as to impose such sentence which reflects the conscience of the society and
the sentencing process has to be stern where it should be. Imposition of sentence
without considering its effect on the social order in many cases may be in reality a
futile exercise. The social impact of the crime e.g. where it relates to offences against
women like the case at hand, dacoity, kidnapping, misappropriation of public money,
treason and other offences involving moral turpitude or moral delinquency which
have great impact and serious repercussions on social order and public interest, cannot
be lost sight of and per se require exemplary treatment. Any liberal attitude by
imposing meager sentences or taking too sympathetic a view merely on account of
lapse of time or considerations personal to the accused only in respect of such
offences will be result wise counterproductive in the long run and against societal
interest which needs to be cared for and strengthened by the required string of
deterrence inbuilt in the sentencing system‖.

In Sharaddananda v. State of Karnataka82, the Supreme Court lamented at paragraph

92 that the issue of sentencing has two aspects. A sentence may be excessive and
unduly harsh or it may be highly disproportionately inadequate. When an appellant
comes to this Court carrying a death sentence awarded by the trial Court and
confirmed by the High Court, this Court may find, as in the present appeal, which the
case just falls short of the rarest of the rare category and may feel somewhat reluctant
in endorsing the death sentence. But at the same time, having regard to the nature of
the crime, the Court may strongly feel that a sentence of life imprisonment subject to
remission normally works out to a term of 14 years would be grossly disproportionate
and inadequate. What then should the Court do? If the Court‘s option is limited only
to two punishments, one a sentence of imprisonment, for all intents and purposes, of
not more than 14 years and the other death, the Court may feel tempted and find itself
nudged into endorsing the death penalty. Such a course would indeed be disastrous. A
far more just, reasonable and proper course would be to expand the options and to
take over what, as a matter of fact, lawfully belongs to the Court i.e. the vast hiatus
between 14 years‘ imprisonment and death. It needs to be emphasised that the Court

82
(2008) 13 SCC 787.

129
would take recourse to the expanded option primarily because in the facts of the case,
the sentence of 14 years‘ imprisonment would amount to no punishment at all.

In Ravji v. State of Rajasthan83, the Supreme Court held that it is the nature and
gravity of the crime but not the criminal, which are germane for consideration of
appropriate punishment in a criminal trial. The court will be failing in its duty if
appropriate punishment is not awarded for a crime which has been committed not
only against the individual victim but also against the society to which the criminal
and victim belong. The punishment to be awarded for a crime must not be irrelevant
but it should conform to and be consistent with the atrocity and brutality with which
the crime has been perpetrated, the enormity of the crime warranting public
abhorrence and it should ―respond to the society's cry for justice against the criminal‖.
If for extremely heinous crime of murder perpetrated in a very brutal manner without
any provocation, most deterrent punishment is not given, the case of deterrent
punishment will lose its relevance‖.

3.2 INSTITUTIONS INVOLVED IN ADMINISTRATION OF JUSTICE

Criminal Justice Administration in India, Constitutionally speaking, is the area

earmarked for the states.84 Man being a rational animal, order and peace are his age
old aspirations.85 The aim of human life is happiness, which is attained through the
mechanism of law and justice. Hence, justice as a concept revolves around the ways
in which peace and order could be maintained.86 A state is defined in international law
as ―an independent political entity‖ ―occupying a defined territory‖ ―the members of
which are united together for the purpose of resisting external force and preservation
of internal order‖.

A modern state does not rest content with being merely a ―police‖ or law and order
state. It is much more than that. It tends to become a social welfare state. And in order
to carry out its activities and function, whatever may be the range, it become
necessary for any state to establish certain basic organs or agents or instrumentalities

83
(1996) 2 SCC 175.
84
Kelkar. R.V., ―The Supreme Court and Criminal Justice System‖, (Eastern Book Company, 5th
Edn., 2008).
85
Gandhi. B.M., Law of Torts, 1 (Eastern Book Company, 4th Edn., 2011).
86
Rajaram. P, Jurisprudence, 173 (Ashwin Publications, 1st Edn., 1997).

130
which act on its behalf and through which the State can function and operate. All the
people in a state cannot combine and operate all together all the time to achieve the
desired goals. Thus certain fundamental organs become necessary. This creates the
need for constitutional machinery known as the constitutional Law. This lay down the
establishment, power, functions, liabilities and mutual relations of those organs so
created under the need. The legal system of a country is divisible into:-

I. Law governing state.

II. Law by which the state governs and regulates the conduct of its
members.

Laws like Contracts, Torts, Property, and Criminal Law fall in second category. Laws
like Constitutional Law, Administrative Law and Public International Law fall in the
first category. These are laws which seek to govern the state, Law governing the state
fall in the category of Public Law. Law governing the affairs of the citizen‘s fall in the
category of private Law. Traditionally, the structure of a country‘s government is
divided into three institutional components:-

1. Legislature, to make Laws.

2. Executive, To implement and execute Laws, and

3. Judiciary, to interpret the law and administer the justice.

As a matter of fact judiciary alone cannot administer justice unless and until it is
backed up by the other two organs. If there is no legislation then what the judiciary
will interpret and though one may have legislation but if no one is there to execute or
implement then how one will approach the judiciary. Means thereby there is a cycle
of interdependence to each other. But as observed by the Supreme Court in Jayanti lal
Amratlal v. F.N. Rana87, that it cannot be assumed that the legislative functions are
executively performed by the legislature, executive functions by the executive and
judicial functions by the judiciary. There is no implication that the function of the
executive are confined exclusively to those of an executive or administrative
character. Today, the executive performs variegated functions viz. to investigate, to
prosecute, to prepare and to adopt schemes, to issue and cancel licenses,

87
AIR 1964 SC 648.

131
etc.(administrative); to make rules, regulations and bye – laws, to fix prices, etc.
(legislative); to adjudicate on disputes, to impose fine and penalty, etc.(Judicial).

3.2.1 The Legislature

Douglas J. observed that ―Law has reached its finest moments when it has freed man
from the unlimited discretion of some ruler where discretion is absolute, man has
always suffered‖.88 Mr. Green has defined the legislative power as the power to create
rights, powers, privileges, or immunities and there correlatives, as well as status, not
dependent upon any previous rights, duties, etc. (or for the first time), that is,
apparently, the power of creating antecedent legal capacities and liabilities.89

The Preamble to the Constitution guarantees social, economic and political justice
which, include gender justice, liberty of thought, expression, belief, faith and worship;
equality of status and opportunity, while fraternity enjoins citizens to treat each other
with respect and dignity, regardless of gender.90 As quoted by M.K. Gandhi91 that:-

―Woman is the companion of man, gifted with equal mental capacities. She
has the right to participate in the minutest details in the activities of man, and
she has an equal right of freedom and liberty with him. She is entitled to a
supreme place in her own sphere of activity as man is in his. This ought to be
the natural condition of things and not as a result only of learning to read and
write. By sheer force of a vicious custom, even the most ignorant and
worthless men have been enjoying a superiority over woman which they do
not deserve and ought not to have. Many of our movements stop half way
because of the condition of our women‖.

The fundamental rights to life with human dignity92, to equality93, and to work in ones
chosen profession or trade94 inherently include protection from sexual harassment. It
is also necessary to note that Article 21 applies equally to women. Article 21A, which
guarantees the right to education applies to ‗all children‘ irrespective of gender.

88
United States v. Wanderlick 342 (U.S. 98).
89
Vora Fida Ali v. State. AIR 1961 Guj 151.
90
The Constitution of India.
91
Gandhi. M.K., Speeches and Writings (G.A. Natesan & Company, Madras, 1933).
92
Constitution of India,1950, Article 21.
93
Constitution of India,1950, Article 14 & 15.
94
Constitution of India, 1950, Article 19(1)(g).

132
Article 23 prohibits traffic in human beings and forced labour. Article 24 protects
children and enjoins that no child below the age of 14 years will be employed to work
in any factory or mine or hazardous employment. It may also be noticed that Article
51A (e) provides that it shall be the duty of every citizen of India to renounce
practices derogatory to the dignity of women. In Vishakha v. State of Rajasthan95, the
Supreme Court has pointed out that the right to be protected from sexual harassment
and sexual assault is, guaranteed by the Constitution, and is one of the pillars on
which the very construct of gender justice stands.

Article 13 of the Constitution of India provides that: (1) all laws in force in the
territory of the India immediately before the commencement of this constitution, in so
far as they are inconsistent with the provision of this part, shall, to the extent of such
inconsistence, be void. (2) The state shall not make any law which takes away or
abridges the rights conferred by this part and any law mad in contravention of this
clause shall, to the extent of the contravention, be void. (3) in this article the context
otherwise requires– (a) ―law‖ includes any ordinance, order, bye law, rule, regulation,
notification, custom or usage having the territory of India the force of law. (b) ―laws
in force‖ includes laws passed or made by a legislature or other competent authority
in the territory of India before the commencement of this Constitution and not
previously repealed, notwithstanding that any such law or any part thereof may not be
then in operation either at all or in particular areas. (4) Nothing in this article shall
apply to any amendment of this Constitution under Article 368.

The legislature in the country is divided mainly at two levels.

1. The Central level (Law framed by the Union of India).

2. The State Legislature (Laws enacted by the particular state having its
territory within the territory of India).

But unfortunately, words and verdict will remain only the words and verdict nothing
much was gained out of them. In the present scenario offences against women are on
the rise. Hardly is there a day when one does not read various forms crime against
women in the national daily newspapers. Indian law criminalizes sexualized violence

95
AIR 1997 SC 3011.

133
as rape or ―assault or criminal force to woman with intent to outrage her modesty‖.
From 1860, when British India‘s first criminal code was enacted, until 1983, Indian
criminal provisions related to sexual violence remained largely unchanged.96 In 1983,
an acquittal in a highly publicized case of a teenaged girl raped by a police constable
spurred legal reform.97 As in Tuka Ram v. Maharashtra98, known as the Mathura case,
the Supreme Court concluded that the sex was likely a ―peaceful affair‖ because the
medical examination showed no injuries on redacted‘s body and had reported that she
was ―habituated to intercourse‖. The 1983 amendments, criminalized rape as penile-
vaginal penetration, committed by a man upon a woman, without her consent.99 Non-
vaginal penetration or penetration with an object or finger did not constitute rape but
an ―unnatural offence‖100 or an ―assault or criminal force to woman with intent to
outrage her modesty‖.101 Under reforms enacted in 1983, the offense of rape became
cognizable, a crime for which police may arrest a suspect without warrant and non
bailable.102 The 1983 law also criminalized, for the first time, aggravated forms of
rape, such as gang rape, rape of a minor and custodial rape.103 Additionally, if a
victim testified that she did not consent, under the 1983 law, the court must presume a
lack of consent.104 After 1983, a rape conviction was subject to a mandatory minimum
of seven years and the possibility of life imprisonment, and aggravated rape carried a
mandatory minimum of ten years. A conviction of ―assault or criminal force to
woman with intent to outrage her modesty‖ carried no minimum, and a maximum
sentence of two years. The crime of ―unnatural offenses‖ - an anti-sodomy law -
carried no minimum sentence, and a maximum of life imprisonment. But the Indian
law did not explicitly criminalize attempted rape or marital rape of wives over fifteen
years old.105 The high profile New Delhi gang rape in 2012 sparked widespread
protests and calls for reform which led India to enact the Criminal Law (Amendment)

96
Vandada, ―Sexual Violence against Women: Penal Law and Human Rights Perspectives‖, 95-104
(2009).
97
Pratiksha Baxi, Public Secrets of Law: Rape Trials in India, 11-14 (2014).
98
(1979) SCC 143.
99
Section 375, Indian Penal Code, 1860. (Act 45 of 1860).
100
Section 377, Indian Penal Code, 1860. (Act 45 of 1860).
101
Section 354, Indian Penal Code, 1860. (Act 45 of 1860).
102
Section 4, The Criminal Law (Amendment) Act, No. 46 of 1983, ―Amendment of the First
Schedule‖.
103
Section 3, The Criminal Law (Amendment) Act, No. 46 of 1983, ―Substitution of new sections for
Sections 375 & 376.
104
Section 114A, Indian Evidence Act, 1872 (inserted by Act of 1983, S. 6).
105
Section 375, Indian Penal Code, 1860. (Act 45 of 1860). (Exception).

134
Act, 2013. By amending Indian criminal law and procedure, the Act introduced
important reforms to how crimes of sexual violence are investigated and prosecuted
by India‘s criminal justice system. The Act expands the definition of rape to include
penetration of the labia majora, urethra, mouth, or anus with any object or body part,
including the mouth, or any parts of the victim‘s body.106 It also defines consent as
―an unequivocal voluntary agreement‖ and does not require physical resistance to
show lack of consent.107 Additionally, the Act establishes longer and harsher
sentences for crimes of sexual violence. The Act only applies to acts of sexual
violence by men against women and did not criminalize marital rape.

A Part forms Provisions of Indian Penal Code, there are a number of other enactments
which too deals with the sexual offences against the women in the country. Also there
are number of international treaties under which the union of India is obliged to
safeguard and to protect dignity of women. All these other enactments and treaties has
been already disused under Chapter 2, 2.4, ―Legal Frame Work and International
Instrument of Sexual Offences‖, of this research work.

3.2.2 The Executive

As it is well know that the prime function of executive in administration is the

implementation and execution of the intent of legislature. Though executive performs
variegated functions today viz. to investigate, to prosecute, to prepare and to adopt
schemes, to issue and cancel licenses, to make rules, regulations and bye – laws, to fix
prices, to adjudicate on disputes, to impose fine and penalty, etc. one can understand
that the performance of all these functions by the executive is the method by which
the executive attains its prime function. In criminal justice administration there are
various organs of the state constituted under the spirit of legislation which enable the
stage executive to achieve its goals. Out of various organs of the executive of the state
there are the three prime organs of the executive on which the responsibility of
fulfilling the prime function of executive lies. Especially when the legislature is
concern to protect society from criminals. These organs are follows as under:-

1. The Police.

106
Section 9, The Criminal Law (Amendment) Act, No. 13 of 2013, ―Substitution of New Sections
for Sections 375, 376, 376A, 376B, 376C and 376D.
107
Section 9, ―Explanation 2‖ The Criminal Law (Amendment) Act, No. 13 of 2013,

135
 2. The Medical Authorities.

3. Forensic Examination.

4. Legal Aid Authorities.

3.2.3 The Police

A police force is an instrument for prevention and detection of crime. 108 Every State
Governments establishes its own police force which is formally enrolled. The force
consists of such number of officers and men and is constituted in such a manner as the
state government may decide from time to time. The overall administration of the
police in the entire state is vested in the Director General of the Police. The
administration of police in every district vests in the District Superintendent of Police
under the general direction of the District Magistrate who is usually the collector of
the district.109 Every officer appointed to the police other than the inspector – General
of Police (or Deputy or Assistant District Superintendent of police) receives a
certificate in to prescribed form by virtue of which he is vested with the powers,
functions and privileges of a police officer. The certificate when cease to be effective
then it shall be returned forthwith when the police officer ceases to be a police
officer.110 A criminal investigation in India begins with the filing of a police report,
called the First Information Report (FIR), or by a complaint directly to the Court.111
In Arjun Marik v. State of Bihar112, it was observed and held by the Supreme Court
that the duty of the investigating Agency is to act honestly and fairly and not to
restore to fabricating evidence with a view to secure conviction‖. The Criminal
Procedure Code confers specific powers, e.g. power to make arrest, search, etc., on
the members of the police force who are enrolled as police officers. Wider powers
have been given to the police officers who are in charge of the police stations.

Such station – house officers are also required to discharge onerous duties in relation
to the detection, investigation and prevention of offences. Therefore, any officer who
receives information about a cognizable offense, such as rape or crimes against

108
The Police Act, 1861, Preamble.
109
Section 4, The Police Act, 1861.
110
Section 8, The Police Act, 1861.
111
Section 154, 156(3), 190 & 200, The Code of Criminal Procedure, 1973.
112
1994 SCC (Cri) 1551.

136
modesty, is required to document the information in writing and file the FIR with the
competent court. Police officers are required to promptly investigate cognizable
offenses or document the reasons the investigation was not undertaken. Following the
investigation, the judge considers the record and the prosecution‘s opening
statements. If the judge decides that trial should continue, the judge ―frames the
charge‖ and the defendant enters a plea. If the defendant pleads not guilty, the judge
hears evidence from the prosecution and the defense and then renders a judgment of
guilty or innocent. The police role, duties, powers and responsibilities have been spelt
out in the Police Act of 1861. According to Section 23 of the Police Act, police are
required to113:-

(i) prevent the commission of offences and public nuisances ;

(ii) detect and bring offenders to justice;

(iii) apprehend all persons whom the police are legally authorized to
apprehend;

(iv) collect and communicate intelligence affecting the public peace;

(v) obey and execute all orders and warrants lawfully issued to them by
any competent authority;

(vi) take charge of unclaimed property and furnish an inventory thereof to

the Magistrate of the District, and be guided by his orders regarding
their disposal;

(vii) keep order on the public roads, thoroughfares, ghats, landing places
and at all other places of public resort; and

(viii) Prevent obstructions on the occasions of assemblies and processions on

the public roads.

In theory all is good, but in reality things go haywire as pointed in a study conducted
by the Indian Institute of Public Opinion, New Delhi, regarding ―Image of the Police
in India‖114, it found that over 50 per cent of the respondents have mentioned ―non-

113
Section 23, The Police Act, 1861.
114
Indian Institute of Public Opinion, ―Image of the Police in India‖. (MHA, 1978, New Delhi).

137
registration of complaints‖, as a common malpractice in police stations. Among the
several malpractices it is ranked third, the first two places being taken by:-

I. Showing partiality towards rich or influential people in cases involving

them or reported by them, and

II. Shielding goondas and other criminal elements concerned in gambling

dens, illicit distillation, etc.

At one side the National Police Commission pointed that having regard to the
objectives mentioned in the Preamble, we would hold that law enforcement by police
should cover the following two basic functions115:-

(i) Upholding the dignity of the individual safeguarding his constitutional

and legal rights. Police secure this objective by enforcing laws relating
to the protection of life, liberty and property of the people.

(ii) Safeguarding the fabric of society and the unity and integrity of the
nation.

On the other hand it is of the view that apart from investigating the facts of a crime
after it has occurred police have, according to normal public expectation, a
responsibility for preventing the very occurrence of crime. Investigation may be
deemed as an expert professional responsibility that has to be squarely borne by the
police, and their success in this regard depends mostly on their own training,
equipment and competence, aided by public cooperation wherever possible. But in
regard to prevention of crime, police cannot do very much by themselves, since quite
many among the factors that cause crime are beyond their control In fact several of
these factors transcend the criminal justice system itself.

The standard of police investigation in India remains poor. In the first place, there is
inadequacy of the investigating staff. The police officers are hard pressed for time
with multifarious commitments and, thus, not able to devote adequate time for
investigational work. A sample survey done at the instance of the National Police
Commission in six States of the country revealed that on an average, the investigating
officer is able to devote only 27 per cent of his time on investigational work, while the
115
The National Police Commission of India, 2th Report, 1979.

138
rest of the time is taken by other duties connected with the maintenance of law and
order, VIP bandobust, petition enquiries, court attendance, collection of intelligence
and other administrative work. The Committee on Internal Security constituted by the
group of Ministers (GOI) in the wake of Kargil conflict in 2000 was informed by the
DGP, Uttar Pradesh, of the startling fact that the police could devote only 13 per cent
of its time on investigations. Similarly, a random survey done at the instance of
Second West Bengal Police Commission revealed that a Sub-Inspector of an urban
police station in West Bengal, on an average, spent 20-25 per cent of his time on
investigational work; a Sub-Inspector in Calcutta City spent about 41 per cent his time
on it and a Sub-Inspector in rural areas spent 16 to 18 per cent of time in investigative
work due to long distances involved. Inadequate number of IOs coupled with low
percentage of their time being devoted to investigational work, resulting in
perfunctory.116

Also it is unfortunate that the investigation carried out by the police it is not trusted by
the laws and the Courts. Sections 161 and 162 of the Code provide that the statements
of the witnesses examined during investigation are not admissible and that they can
only be used by the defence to contradict the maker of the statement. The confession
made by accused is also not admissible in evidence. The statements recorded at the
earliest stage normally have greater probative value but can‘t be used in evidence.

The observations of the courts in several criminal cases show that the Judges are
reluctant to accept the testimony of police officers. Such is not the position in other
countries. This is a historical legacy of the colonial rulers. It is common knowledge
that police often use third degree methods during investigation. There are also
allegations that in some cases they try to suppress truth and put forward falsehood
before court for reasons such as corruption or extraneous influences political or
otherwise. Therefore unless the basic problem of strengthening the foundation is
solved the guilty continue to escape conviction and sometimes even innocent persons
may get implicated and punished. It is therefore necessary to address ourselves to the
problems and strengthen the investigation agency.

116
Justice V.S. Malimath Committee Report on, ―Reforms of Criminal Justice System‖, Vol. 1,
March 2003, New Delhi.

139
3.2.3.1 Medical authorities

The Supreme Court in Solanki Chimanbhai Ukabhai v. State of Gujarat117, observed

that:-

―Ordinarily, the value of medical evidence is only corroborative. It proves that

the injuries could have been caused in the manner alleged and nothing more.
The use, which the defence can make of the medical evidence, is to prove that
the injuries could not possibly have been caused in the manner alleged and
thereby discredit the eyewitnesses. Unless, however, the medical evidence in
its turn goes so far that it completely rules out all possibilities whatsoever of
injuries taking place in the manner alleged by eye witnesses, the testimony of
the eye witnesses cannot be thrown out on the ground of alleged inconsistency
between it and the medical evidence‖.

The prime object of the medical profession is to render service to humanity; reward or
financial gain is a subordinate consideration. Who-so-ever chooses his profession,
assumes the obligation to conduct himself in accordance with its ideals. A physician
should be an upright man, instructed in the art of healings. He shall keep himself pure
in character and be diligent in caring for the sick; he should be modest, sober, patient,
prompt in discharging his duty without anxiety; conducting himself with propriety in
his profession and in all the actions of his life. Also the physician, engaged in the
practice of medicine shall give priority to the interests of patients. The personal
financial interests of a physician should not conflict with the medical interests of
patients.118

The Indian Medical Council: Code of ethic provides that the physician shall observe
the laws of the country in regulating the practice of medicine and shall also not assist
others to evade such laws. He should be cooperative in observance and enforcement
of sanitary laws and regulations in the interest of public health. A physician should
observe the provisions of the State Acts like Drugs and Cosmetics Act, 1940;
Pharmacy Act, 1948; Narcotic Drugs and Psychotropic Substances Act, 1985;
Medical Termination of Pregnancy Act, 1971; Transplantation of Human Organ Act,
117
AIR 1983 SC 484.
118
Indian Medical Council, ―Professional Conduct, Etiquette and Ethics‖ Regulations, 2002, New
Delhi.

140
1994; Mental Health Act, 1987; Environmental Protection Act, 1986; Pre-natal Sex
Determination Test Act, 1994; Drugs and Magic Remedies (Objectionable
Advertisement) Act, 1954; Persons with Disabilities (Equal Opportunities and Full
Participation) Act, 1995 and Bio-Medical Waste (Management and Handling) Rules,
1998 and such other Acts, Rules, Regulations made by the Central/State Governments
or local Administrative Bodies or any other relevant Act relating to the protection and
promotion of public health.

Section 164 - A Criminal Procedure Code which deals with Medical examination of
the victim of rape says that medical examination shall be conducted by a registered
medical practitioner employed in a hospital run by the Government or a local
authority and in the absence of such a practitioner, by any other registered medical
practitioner, with the consent of such woman or of a person competent to give such
consent on her behalf.119 The Supreme Court in the case of Pt. Parmanand Katara v.
Union of India120, has emphasized the paramount, absolute and total obligation of
doctors, whether in private or government service to extend his/her services with due
expertise for protecting the life of the victim without interference from laws of
procedure. This duty needs no support from any code of ethics or rule of law.

The instruction manual of forensic medical examination of sexual assault a case,

prepared by the ministry of health and family welfare, Government of Maharashtra,
2013 provides that it must be understood by doctors that Forensic Medical
examination of victim is a ―medico-legal emergency‖ as per Supreme Court directives
issued in the year 2000. Hence, such cases must be examined without delay. No such
case should be refused for examination for the reasons of non-availability of lady
medical officer, because as per 164 A Criminal Procedure Code (Cr. PC), any
registered medical practitioner (allopathic) can examine victim in presence of other
woman with the consent of the patient or guardian. In hospitals, where services of
specialists from Forensic Medicine and Gynecology are available (for example
medical colleges/ institutes), this examination should be jointly conducted by them.
The doctor from the forensic department must take the responsibility of all medico
legal part (i.e., forensic medical examination, sample/ forensic evidence collection,

119
Section 164 A. Cr.PC, 1973.
120
(1989) 4 SCC 286.

141
medico – legal report preparation etc) and the doctor from the gynecology department
must take the responsibility of treatment or medical management part. The doctors
from the forensic department should remain on call 24 x 7 for this purpose. Immediate
intervention or referral to higher centers in cases of medical and/or surgical
emergencies arising from sexual assault. Under the circumstances life saving
procedures can be done even without the consent. Collection of evidence and other
necessities can be done simultaneously while dealing with emergency. Whenever
cases of sexual assault comes on her own to the hospital or are brought by the police,
it shall be registered as MLC (medico-legal case).

Objectives of medical and forensic medical examination121:-

1. Providing treatment and appropriate referrals for the patient.

2. Ascertaining whether sexual act has been attempted / completed or not.

3. Ascertaining whether such a sexual act is recent.

4. Ascertaining whether such act was forcibly. The evidence of struggle

and presence of injuries may help to give opinion on this aspect.
However, it must be noted that absence of signs of struggle does not
imply consent.

5. Collection of samples for FSL examination.

6. Ascertaining whether there is e/o non penetrative sexual assault (i.e.

indecent assault).

7. Verification of age and analysis of poisons, intoxicants, drugs etc is

must if validity of consent is questionable.

8. To look for evidence of sexually transmitted diseases.

Despite above all Professional ethics, Judicial and legislative guidelines from time to
time it was noticed that: - Trainee doctors in public hospitals, who are generally on
duty at night when cases are brought in, sign the medical reports. Also there is
insufficient number of female doctors to conduct the medical examinations. The
public and private hospitals are lacking modern equipments of medical examinations.

121
―Instruction Manual of Forensic Medical Examination of Sexual Assault Cases‖, Ministry of
Health and Family Welfare, Government of Maharashtra, 2013.

142
The victim of sexual assault not provided treatment till the FIR is logged. It was
observed by the Justice Verma Committee, 2013. That the directions provided have
not been adequately complied with and doctors, especially in private hospitals, are
extremely wary to deal with cases of this nature. And the committee opined that, the
medico-legal examination report should note the date and time of examination and be
sent without delay to the concerned investigating officer. To avoid unnecessary
delays, the report must be transmitted to the IO by way of email (as a secure PDF file
- digitally signed where possible), in addition to sending by way of regular
government post. Also the duty of the medical profession to extend unqualified
services to victims of such heinous offences should be duly publicized and medical
professionals and hospitals who abstain from performing the same ought to be
punished in accordance with law. The committee recommended that the issue of
whether sexual assault occurred is a legal issue and not a medical diagnosis.
Consequently, doctors should not, on the basis of the medical examination conclude
whether rape had occurred or not. Only findings in relation to medical findings should
be recorded in the medical report.122

3.2.3.2 Age determination

Though psychotically the trauma of sexual abuse or violence has to do nothing with
the age factor of the victim as it is most horrific and worst pain both physically and
mentally through which a victim has to pass but under the legal roof the age of the
offender and of the victim plays an important role while adjudicating the crime. A
number of offenders had escaped the rigorous penalties by taking plea of their
minority and a number of grave crimes have been committed by minors and are
committed against minors on daily basis. But it will become more difficult to
investigate or to adjudicate when the age of the offender or the victim is not knows
and if is known was not correct. As a matter of fact Age or the offender and victim of
crime is important in the setting of a crime investigation as the age at death, birth can
guide investigator to the right direction. Today gender can be determined with DNA
methods but age determination is not as straightforward. Age estimation in children
and adolescents often depends on morphological methods, such as radiological
examination of skeletal and dental development. In adults, however, age estimation

122
Ravji v. State of Rajasthan, (1996) 2 SCC 175.

143
based on these methods is much less accurate. However, a recent study conducted by
forensic experts revealed that ossification of the shoulder joint is completed between
17 and 18, and it was progressive in both males and females. The study analyzed 90
persons, both male and female, in the age group of 14 to 18 in. under the test ―X-rays
of the right shoulder joint was taken in the anterior posterior angle. Observations
regarding the degree of epiphysis union were recorded for each subject and compared
with age‖. According to the Forensic Medicine Experts Ossification is the most
reliable test now. But this test cannot give the exact age of the person. ―However, we
can estimate the age within one or two years. But it becomes difficult to identify the
age of the person if he is more than 20‖. According to the Orthopedic specialists
shoulder joint analysis is crucial although they can analyze the wrist and elbow joints
to establish the age of a person. ―This is useful when persons involved in a crime
plead for lenience citing age‖.123

In India the 1st proof of Age is the Date of Birth Document whether it is a birth
certificate or a document having entry of date of birth. Ossification test or other
medical examination to ascertain the age of individual is the secondary methods.

Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007,
provides that in every case concerning a child or juvenile in conflict with law, the age
determination inquiry shall be conducted by the Court or the board or, as the case may
be, the Committee by seeking evidence by obtaining –

(a) (i) the matriculation or equivalent certificates, if available; and in

the absence whereof;
(ii) the date of birth certificate from the school (other than a play
school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal
authority or a panchayat;
(b) And only in the absence of either (i), (ii) or (iii) of clause (a) above, the
medical opinion will be sought from a duly constituted Medical Board,
which will declare the age of the juvenile or child. In case exact
assessment of the age cannot be done, the Court or the Board or, as the
123
Pinto Deepak, ―Bone Ossification Test Crucial in Deciding Age”, (Deccan Chornicle, e paper , Jan
12, 2018).

144
 case may be, the Committee, for the reasons to be recorded by them,
may, if considered necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into
consideration such evidence as may be available, or the medical
opinion, as the case may be, record a finding in respect of his age and
either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or
in the absence whereof, clause (b) shall be the conclusive proof of the
age as regards such child or the juvenile in conflict with law.‖

In Mahadeo S/o Kerba Maske v. State of Maharashtra and Anr.124, the Supreme Court
has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children)
Rules, 2007, is applicable in determining the age of the victim of rape. The court
further clarified that ―Under Rule 12(3)(b), it is specifically provided that only in the
absence of alternative methods described under Rule 12(3)(a)(i) to (iii), the medical
opinion can be sought for. In the light of such a statutory rule prevailing for
ascertainment of the age of the juvenile in our considered opinion, the same yardstick
can be rightly followed by the Courts for the purpose of the ascertaining the age of a
victim as well.‖ In Lakhan Lal v. State of M.P.125, the High Court of Madhya Pradesh
said that where the doctor having examined the prosecutrix and found her to be below
18½ years, and then keeping in mind the variation of two years, the accused should be
given the benefit of doubt. In State of Madhya Pradesh v. Anup Singh126, in this case
the central question is whether the prosecutrix was below 16 years of age at the time
of the incident. And the prosecution in support of their case adduced two certificates,
which were the birth certificate and the middle school certificate. The date of birth of
the prosecutrix has been shown as 29.08.1987 in the Birth Certificate (Ext. P/5), while
the date of birth is shown as 27.08.1987 in the Middle School Examination
Certificate. There is a difference of just two days in the dates mentioned in the
abovementioned Exhibits. The Court held that the trial Court has rightly observed that
the birth certificate Ext. P/5 clearly shows that the registration regarding the birth was
made on 30.10.1987 and keeping in view the fact that registration was made within 2

124
(2013) 14 SCC 637.
125
2004 Cr.L.J 3962.
126
Criminal Appeal No. 442 of 2010, Supreme Court of India, Decided on 13 July, 2015.

145
months of the birth, it could not be guessed that the prosecutrix was shown as under-
aged in view of the possibility of the incident in question. And we are of the view that
the discrepancy of two days in the two documents adduced by the prosecution is
immaterial and the High Court was wrong in presuming that the documents could not
be relied upon in determining the age of the prosecutrix. The Court mentioned that in
the present case, we have before us two documents which support the case of the
prosecutrix that she was below 16 years of age at the time the incident took place.
These documents can be used for ascertaining the age of the prosecutrix as per Rule
12(3) (b) of Juvenile Justice (Care and Protection of Children) Rules, 2007. The
difference of two days in the dates, in our considered view, is immaterial and just on
this minor discrepancy, the evidence in the form of Exts. P/5 and P/6 cannot be
discarded. Therefore, the Trial Court was correct in relying on the documents. The
High Court also relied on the statement of PW-11 Dr. A.K. Saraf who took the X-ray
of the prosecutrix and on the basis of the ossification test, came to the conclusion that
the age of the prosecutrix was more than 15 years but less than 18 years. Considering
this the High Court presumed that the girl was more than 18 years of age at the time
of the incident. With respect to this finding of the High Court, we are of the opinion
that the High Court should have relied firstly on the documents as stipulated under
Rule 12(3)(b) and only in the absence, the medical opinion should have been sought.
The Court found that the trial Court has also dealt with the aspect of the ossification
test, and has noted that the respondent had cited Lakhan Lal v. State of M.P.127, before
it.

Thus, keeping in view the medical examination reports, the statements of the
prosecution witnesses which inspire confidence and the certificates proving the age of
the prosecutrix to be below 16 years of age on the date of the incident, the supreme
court has set aside the impugned judgment passed by the High Court and uphold the
judgment and order dated 24.04.2006 passed by the IIIrd Additional Sessions Judge,
Satna in Special Case No.123/2003. 17. And directed that the respondent shall be
taken into custody forthwith to serve out the sentence.

3.2.3.3 Forensic Science Department

127
2004 Cri.L.J. 3962.

146
The term forensic is derived from the Latin word ‗forensic‘ which mean related to
court of law. Forensic science can be defined as the method of science applied to
public matters. Today the term is use to mean the application of all basics science to
criminal justice system. The basic sciences like Physic, Chemistry, Mathematics,
Biology etc. are utilized to identify and compare physical evidence in the
investigation of crime. Forensic sciences use the basic principles of all physical and
natural science and have evolved many domain of its own, like: Anthropometry,
Fingerprint, Footprint, Ballistics, Documentation, Forensic Biology, and Serology,
Forensic Chemistry, Forensic Physic, Toxicology, Deontology, Forensic DNA, Cyber
Forensic, Forensic psychology, Forensic Engineering which provides fool prove
scientific aid to criminal justice system.128 The 1st forensic science laboratory was
established in Calcutta in 1952 followed by another in Bombay in 1958. Today there
are 28 State Forensic Science Laboratories and today and large number of Regional
Forensic Science Laboratories in addition to four Central Forensic Science
Laboratories, three governments Examiner of Questioned Document Laboratories and
a CBI Forensic Science Laboratory under the Central Government. National Institute
of Criminology and Forensic Science, New Delhi caters the need of in service tanning
of Forensic scientists, police officers and judiciary in India. The total Forensic
Science activity in the country is co-ordinate by the bureau of police Research and
Development (BPR&D), Ministry of Home Affairs, New Delhi.129 Following are the
Duties of a forensic Scientist130:-

i) To carry out analysis of crime articles and issue analytical reports.

ii) To visit crime scene for proper collection of scientific evidence (proper
samples).
iii) To give evidence in the court of law whenever is summoned.
iv) To train police investigating officers to modernize investigating
methods.
v) To co-ordinate judicial officers awareness of forensic science services.
vi) To develop research and development in crime related case.
128
Dr. Rukmani Krishnamurty, Forensic Science in Crime Investigation, 30, (S & S Books, 1 st edn,
2011, New Delhi).
129
R.K.. Tewari and K.V. Ravikumar, Development of Forensic Science in India: A Historical
Account. (Indian Academy of Forensic Sciences, 1999).
130
Dr. Rukmani Krishnamurty, ―Information Booklet of Maharashtra Directorate of Forensic
Laboratories‖. 2006.

147
 vii) To prepare national level work Manuals to bring uniformity in working
procedures of national wide Forensic Science Laboratories.
viii) To conduct regular technical sessions and trainings to scientists to
upgrade the scientific knowledge.
ix) To prepare regular instruction to investigation officers and medical
officers.

Tandoor Murder Case, Delhi131, was the first criminal case in India solved by the help
of forensics. In this case Shusil Sharma murdered his wife at home by firing three
bullets in to his wife Naina Sahni‘s body. He killed his wife believing that she had her
love affair with her classmate and fellow congress worker Matloob Karim. After
murdering his wife Sharma took her body in his car to the Bagiya restaurant, where he
and restaurant manager Keshav Kumar attempted to burn her in a tandoor there.
Police recovered Sharma‘s revolver and blood-stained clothes and sent them to Lodhi
Road forensic laboratory. They also took blood sample of Sahni‘s parents, Harbhajan
Singh and Jaswant Kaur and sent them to Hyderabad for a DNA test. According to the
lab report, ―Blood sample preserved by the doctor while conducting the post mortem
and the blood stains on two leads recovered from the skull and the neck of the body of
deceased Naina are of ‗B‘ blood group‖. Confirming that the body was that of Sahni,
the DNA report said, ―The tests prove beyond any reasonable doubt that the charred
body is that of Naina Sahni who is the biological offspring of Mr. Harbhajan Singh
and Jaswant Kaur‖. And finally Mr. Shusil Sharma was found guilty with the help of
forensic evidences.

In the case of Raghuvir Dessai v. State132, the Bombay High Court observed that the
Clinching evidence confirmed that the accused is the contributor of the semen which
was collected by Dr. Sapeco in the form of vaginal swab. DNA (Deoxyribonucleic
acid) is found especially in cell nuclei which are the foundation of heredity. DNA is
the genetic blue print for life and is virtually contained in every cell. No two people,
except identical twins have ever had identical DNA. DNA testing can make a virtually
positive identification when the two samples match. It exonerates the innocent and
helps to convict the guilt (see page 249 of Jhala and Rajus Medical Jurisprudence

131
1996 Cri.LJ 3944.
132
2007 Cri. LJ 829.

148
sixth edition). The DNA testing hits the nail on the head of the accused and is the last
and clinching piece of evidence which shows that it is the accused and accused alone
who commits the rape of the victim/PW11. In the case of Thogorani v. State of
Orissa133, a Division Bench of Orissa High Court observed that: the DNA evidence is
now a predominant forensic technique for identifying criminals when biological
tissues are left at scene of crime. DNA testing on samples such as saliva, skin, blood,
hair or semen not only helps to convict but also serves to exonerate. The Sophisticated
technology makes it possible to obtain conclusive results in cases in which the
previous testing had been inconclusive. Moreover, DNA Sampling may also impinge
on familial privacy where information obtained from one person sample provides
information regarding his or her relatives. Though Section 164-A Criminal Procedure
Code which deals with Medical examination of the victim of rape. There are
guidelines provided by the Delhi High Court in W.P. (CRL) 696/2008, Delhi women
Commission v. Delhi Police.134 For the preservation of forensic evidence of rape
survivor by the hospital authorities. Which are as under:-

(1) Doctors/ Hospitals/ Health Department

(a) Special rooms to be set up in all government hospitals for victims to be

examined and questioned in privacy.

(b) A sexual assault evidence collection kit or sexual assault forensic

evidence (SAFE) kit consisting of a set of items used by medical
personnel for gathering and preserving physical evidence following a
sexual assault should be available with all the Government Hospitals.
A sexual assault evidence collection kit should contain commonly
available examination tools such as:

 Detailed instructions for the examiner

 Forms for documentation

 Tube for blood sample

 Urine sample container

133
2004 Cr. LJ 4003.
134
W.P. (CRL) 696/2008, order dated 23.04.2009 ( Delhi High Court).

149
  Paper bags for clothing collection

 Large sheet of paper for patient to undress over

 Cotton swabs for biological evidence collection

 Sterile water

 Glass slides

 Unwaxed dental floss

 Wooden stick for fingernail scrapings

 Envelopes or boxes for individual evidence samples

 Labels

Other items needed for a forensic/ medical examination and treatments that may be
included in the rape kit are:-

 Woods lamp

 Toluidine blue dye

 Drying rack for wet swabs and/or clothing

 Patient gown, cover sheet, blanket, pillow

 Needles/ syringes for blood drawing

 Speculums

 Post-it Notes used to collect trace evidence

 Camera (35 mm, digital, or Polaroid) film, batteries.

 Med scope and/ or colcoscope

 Microscope

 Surgilube

 Acetic acid diluted spray

 Medications

150
  Clean clothing and shower/ hygiene items for the victims use after the
examination

(a) A detailed description of ―Assault/ Abuse History‖ be mentioned by the

attending doctor on the MLC of the victim; the doctor must ensure that the
complete narration of the history of the case detailed by the victim and her
escort is recorded.

(b) After the examination is complete the victim should be permitted to wash up
using toiletries provided by the hospital. The hospital should also have
clothing to put on if her own clothing is taken as evidence.

(c) All hospitals should co-operate with the police and preserve the samples likely
to putrefy in their pathological facility till such time the police are able to
complete their paper work for dispatch to forensic lab test including DNA.

3.2.3.4 Legal Service/Aid Authorities

The expression ―legal aid‖ has not been defined anywhere in Legal Services
Authorities Act, 1987. However it is generally defined as:-

―Legal aid is the provision of assistance to people otherwise unable to afford

legal representation and access to the Court system. Legal aid is regarded as
central in providing access to justice by ensuring equality before the law, the
right to counsel and the right to fair trial.

The phrase ―Legal Service‖ has been defined under Section 2(c) of the Legal Services
Authority Act, 1978. As per to the Act, Legal Service includes the rendering of any
service in the conduct of any case or other legal proceeding before any court or other
authority or tribunal and giving of advice on the legal matter. Whenever the
phraseology namely ―equal justice and free legal aid‖ comes to the mind of court, in
so far our Indian System of Administration of Justice is Concerned Article 39-A of
constitution of India will take its magnitude. Article 39 – A has been inserted by the
constitution of India (42nd Amendment) Act, 1976, Section 8 (w.e.f. 03.01.1977)
Article 39 – A enacts as under:-

―The State shall secure that the operation of the legal system promotes justice,
on a basis of equal opportunity, and shall, in particular, provide free legal aid,

151
 by suitable legislation or schemes or in any other way, to ensure that
opportunities for securing justice are not denied to any citizen by reason of
economic or other disabilities‖.

The Right to legal aid was examined by the Supreme Court in Detail in Hussainara
Kahaton v. State of Bihar135, where prisoners were kept in Bihar jails without a trial
for a longer period than that to which they would have been sentenced, if convicted.
P.N Bhagwati, J., in this case opined that a procedure which did not make available
the legal services to an accused, which was too poor to afford a lawyer, could not be
regarded as ‗reasonable, fair and just‘. Thus, the fundamental right of legal aid was
held to be implicit in the procedural requirement of Article 21 of the Constitution
Article 22(1) of the Constitution directs that no person who is arrested shall be denied
the right to consult and to be defended by a legal practitioner of his choice. This legal
right is also available in the Code of Criminal Procedure, under Section 303. The
Courts have held that from the time of arrest, this right accrues to the arrested person
and he has the right of choice of a lawyer. The accused may refuse to have a lawyer
but the Court has to provide a micus curie to defend him in serious cases. The Courts
have also held that the indigent accused have a right to legal aid. This requirement is
to ensure that. Poverty does not come in the way of any accused getting a fair trial. 136
In Bihar Legal Support Society v. The Chief Justice of India and Anr.137, Chief Justice
of India (as he then was) has observed that In fact, this court has always regarded the
poor and the disadvantaged as entitled to preferential consideration than the rich and
the affluent, the businessmen and the industrialists. The reason is that the weaker
sections of Indian humanity have been deprived of justice on account of their poverty,
ignorance and illiteracy. They are not aware of the fights and benefits conferred upon
them by the constitution and the law. On account of their socially and economically
disadvantage position they lack the capacity to assert their fights and they do not have
the material resources with which to enforce their social and economic entitlements
and combat exploitation and injustice. The majority of the people of our country are
subjected to this denial of justice and, overtaken by despair and helplessness, they
continue to remain victims of an exploitative society where economic power is

135
AIR 1979 SC 1360.
136
AIR Journal, 183 at p. 142, 2001.
137
AIR 1978 SC 38.

152
concerned in the hands of a few and is used for perpetuation of domination over
masses of human beings. This court has always, therefore regarded it as its duty to
come to the rescue of these deprived and vulnerable section of Indian humanity in
order to help them realize their economic and social entitlements and to bring to an
end their oppressions and exploitation. But, it is unfortunate that the programme of
free legal services is not successful to the extent to what it should have been because
of the noncooperative attitude of the members of the Bar. The judicial officers are
also equally responsible for the non-availability of these benefits to this class of
litigants. In each case where a woman or child is a party, it is equally a duty of the
judicial officer concerned to let them know that they are entitled for free legal aid.138
In Mohd. Hussain @ Julfikar Ali v. The State (Govt. of NCT) Delhi139, it was held that
every person has a right to have a fair trial. A person accused of serious charges must
not be denied of this valuable right. Appellant was provided with legal aid/counsel at
the last stage which amounted to denial of effective and substantial aid. Dattu, J.,
matter remanded back with instructions that State council will be provided before the
commencement of trial and till its conclusion, if the accused is unable to employ a
counsel of his choice at his expense. C.K. Prasad, J. concurring with the view that the
sentence and conviction of appellant should be set aside as he was not given legal aid
to defend his case, but not agreeing with the view that case should be remanded to
trial court for fresh trial.

3.2.4 The Judiciary

The Indian judiciary, a single integrated system, has three main hierarchical levels:

1. The Subordinate Courts,

2. High Courts with jurisdiction over one or more states, and

3. The Supreme Court, which is the court of last resort in constitutional,

civil, and criminal matters.140

Although primarily a court of appeals, the Supreme Court also has original
jurisdiction over writs alleging violations of fundamental rights.79 141 Supreme Court
138
Kalaben Kalabhai Desai v. Alabhai Karamshibhai Desai, AIR 2000 Guj 232.
139
(2012) 9 SCC 408.
140
Jurisdiction of the Supreme Court, Supreme Court of India. Available at
http://supremecourtofindia.nic.in/jurisdiction.htm (Last retrieved on 25 Sep., 2016).

153
decisions are binding on India‘s lower Courts.142 Decisions by High Courts - the head
of judicial administration for states - are binding in the respective state jurisdictions,
but not on other High Courts.143 India‘s district courts adjudicate civil and criminal
cases.144 The jurisdiction on criminal matters of district Courts, referred to as Sessions
Courts, depends upon the severity of the crime and punishment. Sessions courts
usually have jurisdiction over rape and forced sodomy cases. The state government
may also direct a Sessions Court to function as a human rights court for the purpose of
trying offenses arising out of violations of human rights.145 Subordinate courts of
Judicial Magistrates have jurisdiction over ―crimes against modesty‖. The jurisdiction
on civil matters of the district Courts depends upon territorial limitations and the
matter‘s pecuniary value. Victims of violations of fundamental rights may seek
redress through India‘s system of Public Interest Litigation (PIL) and writs. Though
the Conviction rate in offences against women is still very low in the country but it is
also true despite the odds the Judiciary in India plays a significant role in protecting
human rights. The Courts have now become the Courts of the poor and the struggling
masses and left open their portals to the poor, the ignorant, the illiterates, the
downtrodden, the have-nots, the handicapped and the half-hungry, half-naked
countrymen. Of the three organs of Government, the judiciary has become a vanguard
of public life. It performs this function mainly by innovative interpretation and
application of the legislative provisions and of the Constitution. The Supreme Court
of India has in the case Ajay Hasia v. Khalid mujid146, declared that it has a special
responsibility, ―to enlarge the range and meaning of the fundamental rights and to
advance the human rights jurisprudence‖. In Vishakha‟s case147, referring the
principles of independence of the judiciary the objective and function of the judiciary
was stated as follows:-

141
Article 32, The Constitution of India,1950.
142
Article 136, The Constitution of India,1950.
143
Mohd. Hussain @ Julfikar Ali vs. the State (Govt. of NCT) Delhi. (2012) 9 SCC 408.
144
District Courts, Indian Courts. Available at http://indiancourts.nic.in/ districtcourt.html (Last
retrieved on 15 Sep., 2016).
145
The Protection of Human Rights Act, 1993, No. 10 of 1994, available at http://nhrc.nic.in/
documents/Publications/TheProtectionofHumanRightsAct1993_Eng.pdf. (Last retrieved on 1 Oct.,
2016).
146
1981 SCR (2) 79.
147
AIR 1997 SC 3011.

154
 (a) To ensure that all persons are able to live securely under the rule of
law;

(b) To promote within the proper limits of the judicial function, the
observance an attainment of human rights; to administer the law
impartially among persons and between persons and the State.

Also in Sheela Barse v. State of Maharashtra148, the Supreme Court observed that
usually the most important encounter which the citizen has with the law is at the
primary level. This level, in fact, frightens many citizens, and has given a feeling of
helplessness that the administration of law does not necessarily lead to justice in the
predominance of truth. Even the secondary and the Tertiary level Courts i.e. the High
Court and the Supreme Court to function, they too depend upon the impressions of the
primary level courts. Thus, if an error creeps in there, it becomes an error which may
not perceptible of correction by the secondary and the tertiary levels‖.

Views expressed by Indian Courts in cases of sexual Violence

Here are the case laws interpreted and decided by Indian courts in offences relating to
women in the country.

In Pratap Misra v. State of Orissa149, and in Laiq Singh v. State of U.P.150, in both
these cases women were raped and the accused were acquitted by the Supreme Court
after consecutive convictions in two subordinate courts on the ground that absence of
any injury on the prosecutrix indicates consent of the prosecutrix. In1978. In Tuka
Ram v. State of Maharastra151, (Known as Mathura Rape Case) the Supreme Court
again pronounced another like judgment against a conviction of the Bombay High
Court under Section 375 IPC and acquitted the accused. In this case, the Session
Judge found the evidence insufficient to convict the accused. The Bombay High Court
reversed the finding and sentenced the accused to rigorous imprisonment. The
Supreme Court reversed the decision of Bombay High Court and held the accused not
guilty on three grounds:-

148
JT 1988 (3) 15 J.
149
(1977) 3 SCC 41.
150
(1970) 2 SCC 561.
151
(1979) 2 SCC 143.

155
 (i) There were no injuries shown by the medical report and thus stiff
resistance having been put by the girl is false. The alleged intercourse
was a peaceful affair.

(ii) The Court disbelieved the testimony that she had raised alarm.

(iii) The Court held that under Section 375 IPC only fear of death or hurt
can vitiate consent for sexual intercourse. There was no such finding
recorded and therefore since the girl was habituated to sexual
intercourse there was consent. The time the judgment was not accepted
silently.

There was a protest against the Judgment rendered by the Apex Court, by various
women organizations and in an open letter to the then Chief Justice, by Upendra Baxi,
Raghunath Kelkar, Lotika Sarkar and Vasudha Dhagamwar, Law teachers at
University of Delhi and Poona it was said that it may be said that in strict law, the
accused was charged with rape on the third component of description of rape. In that
case, the issue before the Court was simply whether the act was committed with her
consent, or under fear of death or hurt? But still the question whether there was
‗consent‘ was quite relevant; indeed, it was crucial. From the facts of the case, all that
is established is submission, and not consent. Could not their lordships have extended
their analysis of ―consent‖ in a manner truly protective of the dignity and right of
Mathura? One suspects that the Court gathered an impression from Mathura‘s liason
with her lover that she was a person of easy virtue. Is the taboo against premarital sex
so strong as to provide a license to the Indian police to rape young girls or to make
them Submit to their desires in police stations.

In Rafiq v. State of U.P.152, resulted in the conviction of the accused despite non
existence of any injury on the victim who was raped while she was sleeping. Mr.
Justice Krishna Iyer observed that when no woman of honor will accuse another of
rape since she sacrifices thereby what is dearest to her, we cannot 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. When a woman is
ravished what is inflicted is not merely physical injury, but the deep sense of some

152
(1980) 4 SCC 262.

156
deathless shame judicial response to human rights cannot be blunted by legal bigotry.
In Prem Chand v. State of Haryana153, the Supreme Court reduced the minimum
sentences of 10 years for rape to 5 years on account of the conduct of the raped girl.
The raped girl was a woman of easy virtue. This decision caused an agitation, and a
movement by woman‘s organization led to gross criticism of the Supreme Court and
resulted in the filing of a review petition. Though the review petition did not succeed
the Supreme Court tried to clarify its position. It said; we have neither characterized
the victim Suman Rani as a woman of questionable character and easy virtue nor
made any reference to her character or reputation in any part of our judgment but used
the expression conduct in the lexicographical meaning for the limited purpose of
showing as to how Suman Rani has behaved or conduced herself in not telling anyone
for 5 days about the sexual assault perpetrated on her. In the end Supreme Court said
that we would like to express that this Court is second to none in upholding the
decency and dignity of womanhood and we have not expressed any view in our
judgment that character, reputation or status of a raped victim is a relevant factor for
consideration by the court, while awarding the sentence to a rapist. In Bhupendra
Sharma v. State of H.P.154 The Supreme Court of India defined the offence of rape as;
simply put, the offence of rape is ―ravishment of a woman‖ without her consent or
against her will by force, fear or fraud and also includes the ―carnal knowledge‖ of a
woman. In order to bring home the charge of rape against a man, it is necessary to
establish that the ―sexual intercourse‖ complained of was either against the will or
without her consent. Where the consent is obtained under the circumstances
enumerated under clauses firstly to sixthly, the same would also amount to rape. In
Dileep Singh v. State of Bihar155, the Supreme Court observed that ―though will and
consent often interlace and an act done against the will of the person can be said to be
an act done without consent, the Indian Penal Code categorizes these two expressions
under separate heads in order to as comprehensive as possible. The difference
between the two expressions was brought out by the Supreme Court in State of U.P. v.
Chottey Lal156 in the following words:-

153
1989 Supp (1) SCC 286.
154
(2003) 8 SCC 551.
155
(2005) 1 SCC 88.
156
(2011) 2 SCC 550.

157
 ―Be that as it may, in our view, clause Sixthly of Section 375 IPC is not
attracted since the prosecutrix has been found to be above 16 years (although
below 18 years). In the facts of the case what is crucial to be considered is
whether clause Firstly or clause Secondly of Section 375 IPC is attracted. The
expressions ―against her will‖ and ―without her consent‖ may overlap
sometimes but surely the two expressions in clause Firstly and clause
Secondly have different connotation and dimension. The expression ―against
her will‖ would ordinarily mean that the intercourse was done by a man with a
woman despite her resistance and opposition. On the other hand, the
expression ―without her consent‖ would comprehend an act of reason
accompanied by deliberation. (Emphasis supplied)‖.

It must be noted that the Courts have followed the tests laid down under Section 90 of
the IPC for establishing ―consent‖. Section 90 provides that a consent is not such a
consent as is intended by any section of this Code, if the consent is given by a person
under fear of injury, or under a misconception of fact, and if the person doing the act
knows, or has reason to believe, that the consent was given in consequence of such
fear or misconception; or

Consent of insane person: if the consent is given by a person who, from unsoundness
of mind, or intoxication, is unable to understand the nature and consequence of that to
which he gives his consent; or Consent of child: unless the contrary appears from the
context, if the consent is given by a person who is under twelve years of age. In State
of H.P v. Mango Ram157, the Court observed that the evidence as a whole indicates
that there was resistance by the prosecutrix and there was no voluntary participation
by her for the sexual act. Submission of the body under the fear of terror cannot be
construed as a consented sexual act. Consent for the purpose of Section 375 requires
voluntary participation not only after the exercise of intelligence based on the
knowledge of the significance and moral quality of the act but after having fully
exercised the choice between resistance and assent. Whether there was consent or not,
is to be ascertained only on a careful study of all relevant circumstances. From the
evidence on record, it cannot be said that the prosecutrix had given consent and
thereafter she turned round and acted against the interest of the accused. There is clear

157
(2000) 7 SCC 224.

158
credible evidence that she resisted the onslaught and made all possible efforts to
prevent the accused from committing rape on her. Therefore, the finding entered by
the learned Sessions Judge that there was consent on the part of the prosecutrix is
without any basis. The section further clarifies that mere penetration is sufficient to
constitute the offence of rape. In Koppula Venkatrao v. State of A.P.158, the Supreme
Court held that the sine qua non of the offence of rape is penetration, and not
ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and
not actual rape. Definition of ―rape‖ as contained in Section 375 IPC refers to ―sexual
intercourse‖ and the Explanation appended to the section provides that penetration is
sufficient to constitute the sexual intercourse necessary to the offence of rape.
Intercourse means sexual connection.‖

In relation to Section 376 read with Section 511 of IPC. The Supreme Court in the
above noted case held the following:-

―The plea relating to applicability of Section 376 read with Section 511 IPC
needs careful consideration. In every crime, there is first, intention to commit,
secondly, preparation to commit it, and thirdly, attempt to commit it. If the
third stage, that is, attempt is successful, then the crime is complete. If the
attempt fails, the crime is not complete, but law punishes the person
attempting the act. Section 511 is a general provision dealing with attempts to
commit offences not made punishable by other specific sections. It makes
punishable all attempts to commit offences punishable with imprisonment and
not only those punishable with death. An attempt is made punishable, because
every attempt, although it falls short of success, must create alarm, which by
itself is an injury, and the moral guilt of the offender is the same as if he had
succeeded. Moral guilt must be united to injury in order to justify punishment.
As the injury is not as great as if the act had been committed, only half the
punishment is awarded.

A culprit first intends to commit the offence, then makes preparation for committing it
and thereafter attempts to commit the offence. If the attempt succeeds, he has
committed the offence; if it fails due to reasons beyond his control, he is said to have

158
(2004) 3 SCC 602.

159
attempted to commit the offence. Attempt to commit an offence can be said to begin
when the preparations are complete and the culprit commences to do something with
the intention of committing the offence and which is a step towards the commission of
the offence. The moment he commences to do an act with the necessary intention, he
commences his attempt to commit the offence. The word ―attempt‖ is not itself
defined, and must, therefore, be taken in its ordinary meaning. This is exactly what
the provisions of Section 511 require. An attempt to commit a crime is to be
distinguished from an intention to commit it; and from preparation made for its
commission. Mere intention to commit an offence, not followed by any act, cannot
constitute an offence. The will is not to be taken for the deed unless there be some
external act which shows that progress has been made in the direction of it, or towards
maturing and affecting it. Intention is the direction of conduct towards the object
chosen upon considering the motives which suggest the choice. Preparation consists
in devising or arranging the means or measures necessary for the commission of the
offence. It differs widely from attempt which is the direct movement towards the
commission after preparations are made. Preparation to commit an offence is
punishable only when the preparation is to commit offences under Section 122
(waging war against the Government of India) and Section 399 (preparation to
commit dacoity). The dividing line between a mere preparation and an attempt is
sometimes thin and has to be decided on the facts of each case. There is a greater
degree of determination in attempt as compared with preparation.

An attempt to commit an offence is an act, or a series of acts, which leads inevitably

to the commission of the offence, unless something, which the doer of the act neither
foresaw nor intended, happens to prevent this. An attempt may be described to be an
act done in part-execution of a criminal design, amounting to more than mere
preparation, but falling short of actual consummation, and, possessing, except for
failure to consummate, all the elements of the substantive crime. In other words, an
attempt consists in it the intent to commit a crime, falling short of, its actual
commission or consummation/completion. It may consequently be defined as that
which if not prevented would have resulted in the full consummation of the act
attempted. The illustrations given in Section 511 clearly show the legislative intention
to make a difference between the cases of a mere preparation and an attempt.

160
In order to find an accused guilty of an attempt with intent to commit a rape, court has
to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired
to gratify his passions upon her person, but that he intended to do so at all events, and
notwithstanding any resistance on her part. Indecent assaults are often magnified into
attempts at rape. In order to come to a conclusion that the conduct of the accused was
indicative of a determination to gratify his passion at all events, and in spite of all
resistance, materials must exist. Surrounding circumstances many times throw beacon
light on that aspect.‖ In the matter of Vijay @ Chinee v. State of Madhya Pradesh159.
the Supreme Court of India has revisited the law relating to evidence of a victim to
determine the liability of an accused in an offence of rape. The Court examined its
earlier decisions to hold that the evidence of the victim, if found credible, was alone
sufficient to convict the accused. In State of Maharashtra v. Chandraprakash
Kewalchand Jain160, the Court held that a woman, who is the victim of sexual assault,
is not an accomplice to the crime but is a victim of another person‘s lust and,
therefore, her evidence need not be tested with the same amount of suspicion as that
of an accomplice. The Court observed that a prosecutrix of a sex 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 Section 118 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 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 Section 114 which requires it to look for
corroboration. If for some reason 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

159
(2010) 8 SCC 191.
160
AIR 1990 SC 658.

161
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 trustworthy. If the totalities 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.

In State of U.P. v. Pappu @Yunus & Anr.161, the Supreme Court held that even in a
case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual
intercourse, it may not be a ground to absolve the accused from the charge of rape. It
has to be established that there was consent by her for that particular occasion.
Absence of injury on the prosecutrix may not be a factor that leads the court to
absolve the accused. The Court further held that there can be conviction on the sole
testimony of the prosecutrix and in case, the court is not satisfied with the version of
the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may
get assurance of her testimony. The Court held that it is well settled that a prosecutrix
complaining of having been a victim of the offence of rape is not an accomplice after
the crime. There is no rule of law that her testimony cannot be acted without
corroboration in material particulars. She stands at a higher pedestal than an injured
witness. In the latter case, there is injury on the physical form, while in the former it is
physical as well as psychological and emotional. However, if the court of facts finds it
difficult to accept the version of the prosecutrix on its face value, it may search for
evidence, direct or circumstantial, which would lend assurance to her testimony.
Assurance, short of corroboration as understood in the context of an accomplice,
would do.‖ In State of Punjab v. Gurmit Singh & Ors.162, the Court held that in cases
involving sexual harassment, molestation etc. the Court is duty bound to deal with
such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies
in the statement of a prosecutrix should not be a ground for throwing out an otherwise
reliable prosecution case. Evidence of the victim of sexual assault is enough for
conviction and it does not require any corroboration unless there are compelling
reasons for seeking corroboration. The Court may look for some assurances of her
statement to satisfy judicial conscience. The statement of the prosecutrix is more
161
AIR 2005 SC 1248.
162
AIR 1996 SC 1393.

162
reliable than that of an injured witness as she is not an accomplice. The Court further
held that the delay in filing FIR for sexual offence may not be even properly
explained, but if found natural, the accused cannot be given any benefit thereof. The
Court observed as under:-

―The Court overlooked the situation in which a poor helpless minor girl had
found herself in the company of three desperate young men who were
threatening her and preventing her from raising any alarm. Again, if the
investigating officer did not conduct the investigation properly or was
negligent in not being able to trace out the driver or the car, how can that
become a ground to discredit the testimony of the prosecutrix? The
prosecutrix had no control over the investigating agency and the negligence of
an investigating officer could not affect the credibility of the statement of the
prosecutrix. The courts must, while evaluating evidence remain alive to the
fact that in a case of rape, no self respecting woman would come forward in a
court just to make a humiliating statement against her honour such as is
involved in the commission of rape on her. In cases involving sexual
molestation, supposed considerations which have no material effect on the
veracity of the prosecution case or even discrepancies in the statement of the
prosecutrix should not, unless the discrepancies are such which are of fatal
nature, be allowed to throw out an otherwise reliable prosecution case seeking
corroboration of her statement before replying upon the same as a rule, in such
cases, amounts to adding insult to injury Corroboration as a condition for
judicial reliance on the testimony of the prosecutrix is not a requirement of
law but a guidance of prudence under given circumstances. 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.

163
 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‖.

The apex court also took note of the defence strategy of continuous questioning in
rape cases in the hope of inconsistencies and observed that it is the role of the court to
ensure that cross -examination ―is not made a means of harassment or causing
humiliation to the victim of crime‖. It directed that the name of the prosecutrix in rape
cases should not be disclosed by the courts and the trial should be held in camera as a
rule. It also directed that as far as possible, trials must be conducted by women judges.
Quoting Section 327 of the Code of Criminal Procedure, 1973 the court explained that
provisions of section 327 of Cr.PC are in the nature of exception to the general rule of
an open trial. Inspite of the amendment, however, it is seen that the trial courts either
are not conscious of the amendment or do not realise its importance for hardly does
one come across a case where the enquiry and trial of a rape case has been conducted
by the court in camera. The expression that the inquiry into and trial of rape ―shall be
conducted in camera‖ as occurring in Sub-section (2) of Section 327 Cr. P.C. is not
only significant but very important. It casts a duty on the Court to conduct the trial of
rape cases etc. invariably ―in camera‖. The Courts are obliged to act in furtherance of
the intention expressed by the Legislature and not to ignore its mandate and must
invariably take recourse to the provisions of Section 327 (2) and (3) Cr. P.C. and hold
the trial of rape cases in camera. It would enable the victim of crime to be a little
comfortable and answer the questions with greater ease in not too familiar
surroundings. Trial in camera would not only be in keeping with the self-respect of
the victim of crime and in tune with the legislative intent but is also likely to improve
the quality of the evidence

The Supreme Court in Vishakha v. State of Rajasthan163, has defined sexual

harassment. The Court opined that sexual harassment includes such unwelcome
sexual determined behavior (whether directly or by implication) as:-

(i) Physical Contracts and advances;

(ii) A demand or request for sexual favours;

163
AIR 1977 SC 3011.

164
 (iii) Sexually colored remarks;

(iv) Showing pornography;

(v) Any other unwelcome physical verbal or non-verbal conduct of a

sexual nature.

Where any of these acts is committed in circumstances where under the victim of such
conduct has a reasonable apprehension that in relation to the victim‘s employment or
work whether she is drawing salary, honorarium or voluntary, whether in
Government, Public or private enterprises such conduct can be humiliating and may
constitute a health and safety problem. Further, the Court provided certain guide lines
under Article 141 of the Constitution of India till the enactment of the statute for the
purpose and said that - It shall be the duty of the employer or any other responsible
person in work places or other institution to prevent or direct the commission of acts
of sexual harassment by taking all steps required. In this case the petitioner sought to
enforce the fundamental rights of working women. The said petition wanted an
enforcement of Articles 14, 19 and 21. It was observed by the Court that gender
equality includes protection from sexual harassment and right to work with dignity,
which is a universally recognized basic human right. The common minimum
requirement of this right has received global acceptance. The international
conventions and norms are, therefore, are of great significance in the formulation of
the guidelines to achieve this purpose. Thus, the Vishakha judgment made it clear that
gender equality and the right to a secure workspace was part of the fundamental rights
guaranteed under the Constitution and that it was the duty of the judiciary to ensure
(as a part of the Constitutional machinery) that the State enforced these rights,
especially in view of the nation‘s obligation to comply with covenants of international
treaties and conventions. In Municipal Corporation of Delhi v. Female Workers‟
Muster Roll164, the Supreme Court observed the constitutional position vis-à-vis the
Indian reality as under:-

―Not long ago, the place of a woman in rural areas has been traditionally her
home; but the poor illiterate women forced by sheer poverty now come out to
seek various jobs so as to overcome the economic hardship. They also lake up

164
AIR 2000 SC 1274.

165
 jobs which involve hard physical labor, the female workers who are engaged
by the Corporation on muster roll have to work at the site of construction and
repairing of roads. Their services have also been utilized for digging of
trenches. Since they are engaged on daily wages, they, in order to earn their
daily bread, work even in advance stage of pregnancy and also soon after
delivery, unmindful of - detriment to their health or to the health of the new-
born. It is in this background that we have to look to our Constitution which,
in its Preamble, promises social and economic justice. We may first look at
the Fundamental Rights contained in Chapter III of the Constitution. Article
14 provides that the State shall not deny to any person equality before law or
the equal protection of the laws within the territory of India. Dealing with this
Article vis-a-vis the Labour Laws, this Court in Hindustan Antibiotics Ltd. v.
Workmen, has held that labour to whichever sector it may belong in a
particular region and in a particular industry will be treated on equal basis.
Article 15 provides that the State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, and place of birth or any of them.
Clause (3) of this Article provides as:- (3) Nothing in this article shall prevent
the State from making any special provision for women and children. The
Court also noticed Article 39(e) of the Constitution‖.

From Part III, we may shift to Part IV of the Constitution containing Directive
Principles of State Policy. Article 38 provides that the State shall strive to promote the
welfare of the people by securing and protecting, as effectively as it may, a social
order in which justice, social, economic and political shall inform all the institutions
of the national life. Sub-clause (2) of this Article mandates that the State shall strive to
minimize the inequalities in income and endeavor to eliminate inequality in status,
facilities and opportunities. Another form of sexual harassment is the horrendous
practice of eve-teasing. In DIG v. S. Samudiram165, the Supreme Court has referred to
eve-teasing as a euphemism, which attracts penal action. In this case, a policeman
was caught eve teasing a married woman. It led to his dismissal from service and the
initiation of criminal proceedings. The aggrieved employee challenged the dismissal
order before the Tamil Nadu Administrative Tribunal, Chennai. While the said

165
(2012) 11 SCALE 420.

166
application was pending before the Tribunal, the Judicial Magistrate, Tenkasi
rendered a judgment acquitting the respondent of all charges. The Tribunal noticed
that no reliance could be placed on the judgment of the Criminal Court and upheld the
order of dismissal from service, which was eventually upheld by the Supreme Court.

Since the above case was in the context of eve teasing, the observations of
Radhakrishnan, J. are:-

In our view, the learned Judge perceptively has looked at not only sexual
harassment at workplaces but the safety of women in all places. We are of the
opinion that the safety of women in all places is again a fundamental
guarantee which is enforceable against the State.

In Sachin Jana v. State of West Bengal166, this case involving acid attack which had
caused disfigurement of the victim, the Supreme Court applied Section 307 IPC
(Attempt to murder) read with Section 34 on the basis that to justify a conviction
under Section 307 it was not essential that ‗bodily injury capable of causing death was
inflicted‘. The Section made a distinction between the act of the accused and its result.
Therefore, it was not necessary that the injury actually caused to the victim should be
sufficient under ordinary circumstances to result in death. The Court is only required
to see whether the act, irrespective of its result, was done with the intention or
knowledge mentioned in Section 307. It was sufficient if there was intent coupled
with an overt act in execution thereof.

In State of Maharastra v. Madhukar N. Mardicor167, the Supreme Court in this case,

laid down that even a prostitute has a right to privacy - the unchastity of a woman
does not make her open to any and every person to violate her person as and when he
wishes. She is entitled to protect her person if there is an attempt to violate it against
her wish. She is equally entitled to the protection of law. Therefore, merely because
she is a woman of easy virtue, her evidence cannot be thrown overboard. At the most
the officer called upon to evaluate her evidence would be required to administer
caution unto himself before accepting her evidence. In the circumstances of the case
however there was sufficient corroboration of the fact of a police inspector‘s attempt

166
(2008) 3 SCC 390.
167
(1991) 1 SCC 57.

167
to bend her by force to submission which evidence was generated by the inspector‘s
unsuccessful bid to camouflage the incident into a prohibition raid‖ Prosecutrix was
not having good character and was a girl of easy virtue. The Supreme Court in State
of U.P. v. Pappu168, held that it is no ground for acquittal of the accused. The Court
observed even assuming that the victim was previously accustomed to sexual
intercourse that is not a determination question. On the contrary the question which
was required to be adjudicated was, did the accused commit rape on the victim on the
occasion complained of? Even if it is hypothetically accepted that the victim had lost
her virginity earlier it did not and cannot in law give license to a person to rape her. It
is the accused who was on trial and not the victim. Even if the victim in a given case
has been promiscuous in her sexual behavior earlier, she has a right to refuse to
submit herself to sexual intercourse to anyone and everyone because she is not
vulnerable object to prey for being sexually assaulted by anyone and everyone.

Can a conviction be set aside because the medical report did not indicate the number
of persons who had raped? Answering this question in an appeal, Justice Dutt, in
Balwant Singh v. State of Punjab169, said that we do not think that on medical
examination it is possible to say about the number of person committing rape on a girl
and accordingly in the report the lady doctor has not expressed any opinion in this
regard. The evidence of the prosecutrix that all the appellants had committed rape on
her is not inconsistent with the medical report. In Pradeep Kumar v. Union Adm.
Chandigarh170, it was laid down that to bring the offence of rape in the category of
gang rape it is necessary to prove :-

1. That more than one person had acted in concert with common intention
to commit rape on victim.

2. That more than one accused had acted in concert in commission of

crime of rape with pre-arranged plan, prior meeting of mind and with
the element of participation in action. It may also be in a plan formed
suddenly at the time of commission of offence which is reflected by
element of participation in action.

168
(2005) 3 SCC 594.
169
(1987) 2 SCC 27.
170
(2006) 10 SCC 608.

168
 3. That in furtherance of such common intention one or more person of
the group actually committed offence of rape on victim or victims.

In this case prosecutrix stated that accused reached spot after rape had been
committed. Mere presence of appellant accused at spot is insufficient to prove gang
rape.

In the case of Bodhisatwa v. Subhra Chocrovarty171, the accused entered into a false
marriage with a woman and she became pregnant. He made her undergo an abortion
but reported the same thing again. When she asked the accused to maintain her, he
disowned her on the ground that there was no marriage. The accused was prosecuted
under Sections 312, 420, 493, 496 and 498-A, IPC. The court while refusing the
appellant‘s request to quash the prosecution case expatiated on the existing rape laws.
The Court ruled that rape was not merely an offence under the IPC, it was also a
violation of a woman‘s right to live with dignity and personal freedom. Speaking on
behalf of the Court, Sagir Ahmad. J. observed that rape is thus not only a crime
against the person of a woman; it is a crime against entire society. It destroys the
entire psychology of a woman and pushes her into emotional crisis it is a crime
against basic human right and is also violative of the victim‘s most cherished of the
fundamental Rights, namely, the right to life.

In Mohd Chaman v. State (NCT of Delhi)172, the crime in rape of child aged more than
one year by the appellant aged 30 years. In the process, injuries were inflicted upon
the child‘s liver resulting in death. It was held that the crime committed is
undoubtedly serious and heinous and the conduct of the appellant is reprehensible. It
reveals a dirty and perverted mind of a human being who has no control over his
carnal desires. But treating the case on the touchstone of the guidelines in Bachan
Singh v. State of Punjab and Macchi Singh v. State of Punjab and balancing the
aggravating and mitigating circumstances emerging from the evidence on record, the
case cannot be called one of the rarest of rare cases. The appellant cannot be said to be
such a dangerous person that to spare his life will endanger to community. It cannot
be held that the circumstances of the crime are such that there is no alternative but to
impose the death sentence even after according maximum weightage to the mitigating
171
(1996) 1SCC 490.
172
(2001) 2SCC 28.

169
circumstance in favour of the offender. The case is one in which a humanist approach
should be taken. The Court set aside capital punishment and instead awarded rigorous
imprisonment for life.

In Kamalanantha v. State of T.N.173, it was chocking to the judicial conscious of the

Court, wherein the Apex Court observed that the insatiable lust for sex of Swami
Premananda leads to the raping of 13 Ashram girls and murder of one. The Ashram
which is supposed to be Gods above turned out to be a devil‘s workshop. It is a classic
case of betrayal of fatherly and divinely trust of the inmates of the Ashram girls who
were mostly orphans and destitute. The defense taken by Premananda was that some
of the prosecutrix had given consent for the sexual activities; however, it was found
that the consent was obtained by deceitful means, as most of the girls in the Ashram
were orphans with no other place to go. The accused had control over them.
Therefore, consent obtained by the deceitful means or under threat of death or hurt is
no consent at all. It was held by the Supreme Court that the charges leveled against
the accused within the purview of the offence alleged and that the offence of rape was
proved for convicting the accused. In Satpal Singh v. State of Haryana174, it was
stated that consent implies exercise of free and untrammeled right to forbid or
withhold what is being consented to. It is always a voluntary and conscious
acceptance of what is proposed to be done by another and concurred in by the former.
However, an act of helplessness in the face of inevitable compulsions is not consent in
law.

In State of U.P. v. Munshi175, a case where the Court observed that in rape cases, the
fact that the victim was previously accustomed to sexual intercourse is not a
determinative question. It is the accused, who is on trial and not the victim, who has
been promiscuous in her sexual behaviour earlier. She has a right to refuse to submit
herself to sexual intercourse to anyone, because she is not a vulnerable object or prey
for being sexually assaulted by anyone and everyone. In State of H.P. v. Gian
Chand176, the trial Court found the prosecutrix‘s account of the rape very natural and
confidence inspiring. Her mother, whose testimony too was found natural and

173
(2005) 5 SCC 194.
174
(2010) 8 SCC 71.
175
(2008) 9 SCC 390.
176
(2001) 6 SCC 71.

170
trustworthy, however, created some inconsistency about the place of occurrence. It
was held by the Supreme Court that the inconsistency in the mother‘s version was too
insignificant to be given much weight age, and the High Court wrongly treated it as a
major lacuna in the prosecution‘s case. It held that conviction can be based on
prosecutrix‘s testimony corroborated by medical evidence and other circumstances
such as report of chemical examination, if available evidence is otherwise
trustworthy.

In Santhosh Mooliya v. State of Karnataka177, the Supreme Court emphasized that

there is no need to consider a self-respecting woman‘s state of mind. In a case of rape,
particularly if the prosecutrix is illiterate and uneducated, her statements have to be
accepted in Toto without further corroboration if they were cogent, reliable,
convincing and trustworthy. Any statement of rape is an extremely humiliating
experience for one but the real culprit. While appreciating the evidence of prosecutrix,
the courts must keep in mind that no woman with self-respect would put her honour at
stake by falsely alleging the commission of rape on her. In Karnel Singh v. State of
M.P.178, the prosecutrix was a poor labourer working in a factory and was raped by
the accused, who was convicted by the lower Courts. Against this conviction, he
appealed to the Supreme Court which, on the evidence on record, found that there was
no delay in filing the FIR. The rule that evidence of a victim must be corroborated had
no application, as the Court found that the prosecutrix could not be tested with the
same amount of suspicion as an accomplice. The presence of semen on the clothes
and private parts gave full support to the story narrated by the prosecutrix. Hence, it
was held that the appeal, having no merit, deserved dismissal and the conviction
needed no interference.

In State of Rajasthan v. Hemraj179, it was held by the Apex Court that it was
inconceivable conceptually that a woman can commit a rape. The expression in
Explanation I to Section 376 (2) (g), ―in furtherance of their common intention‖,
relates to the intention to commit rape. A woman cannot be said to have an intention
to commit rape or gang rape. Therefore, prosecution of a woman was held to be
impermissible. In exception to Section 375 IPC, sexual intercourse by a man with his
177
(2010) 5 SCC 445.
178
(1995) 5 SCC 518.
179
(2009) 12 SCC 403.

171
own wife, the wife not being, under 15 years of age, is not rape. The wife‘s ―consent‖
is based on the common-law rule of marital exemption. However, this concept has
undergone a change, and marital rape is now an offence in the US, Sweden, Denmark,
Australia and the UK. In Ravji v. State of Rajasthan180, where it was held thus: ―[In
the said case] it is the nature and gravity of the crime but not the criminal, which are
germane for consideration of appropriate punishment in a criminal trial. The
punishment to be awarded must not be irrelevant but conform to atrocity and brutality.

In State of M.P. v. Balu181, a minor girl of 13 years was raped due to animosity
between families of victim and accused. The sentence of 7 years was reduced to
period already undergone which was about 10 months. Ground taken for reducing the
sentence was that the accused was 17 years old at the time of incident and was
illiterate. The Supreme Court on appeal held that none of the reasons are either
adequate or special, to reduce the sentence. ―The High Court does not seem to have
applied its mind to the gravity of offence. The sympathy shown by the High Court is
wholly misplaced and it has grossly erred in reducing the sentence. In Dinesh v. State
of Rajasthan182, it was held that Section 228-A IPC makes disclosure of the identity of
victim of certain offences punishable (Sections 376, 376-A, 376-B, 376-C and 376-D
IPC). This is keeping in view the object of preventing social victimization or
ostracism of the victim of sexual offence.

In Bodhisattwa Gautam v. Subhra Chakraborty183, is an epitome of an entirely new

and revolutionary concept. In the present case, the accused entered into a false
marriage with a woman and she became pregnant. He made her undergo an abortion,
but repeated the same thing again. When she asked the accused to maintain her, he
disowned her on the ground that there was no marriage. The accused was prosecuted
under Sections 312, 420, 493, 496 and 498-A IPC. The court, while refusing the
appellant‘s request to quash the prosecution case, expatiated on the existing rape laws.
The Court ruled that rape was not merely an offence under the IPC, it was also a
violation of a woman‘s right to live with dignity and personal freedom. Speaking on
behalf of the court, Mr. Justice Saghir Ahmed observed thus: -

180
(1996) 2 SCC 175.
181
(2005) 1 SCC 108.
182
(2006) 3 SCC 771.
183
(1996) 1 SCC 490.

172
 ―Rape is thus not only a crime against the person of a woman (Victim), it is a
crime against the entire society. It destroys the entire psychology of a woman
and pushes her into deep emotional crisis. It is a crime against basic human
rights and is also violative of the victim‘s most cherished of the Fundamental
Rights, namely, the Right to Life contained in Article 21. To many feminists
and psychiatrists, rape is less a sexual offence than an act of aggression aimed
at degrading and humiliating women‖.

The Supreme Court in Ranjit D. Udeshi v. State of Maharashtra184, observed that the
test of obscenity laid down by Cockburn CJ, should not be discarded. It held that the
test of obscenity to adopt in India is that obscenity without a preponderating social
purpose or profit cannot have the constitutional protection of free speech and
expression, and it is obscenity in treating sex in a manner appealing to the carnal
desire of human nature or having that tendency. The obscene matter in a book must be
considered by itself and separately to find out whether it is so must be considered by
itself and separately to find out whether it is so gross and its obscenity so decided that
it is likely to deprave and corrupt those whose minds are open to influences of this
sort and into whose hands the book is likely to fall. In this context, the interest of our
contemporary society and particularly the influence of the book on it must not be
overlooked. It was further observed in this case that merely treating with sex and
nudity in art and literature cannot be regarded as evidence of nudity or obscenity
without something more. It was held that where obscenity and art are mixed, art must
be so preponderating as to push the obscenity into the shadows, or the obscenity must
be so trivial and insignificant that it can have no effect and may be overlooked. When
treatment of sex becomes offensive to public decency and morality is judged by the
prevailing standards of morality in that society, then only the work may be regarded
as an obscene production. It was held in Chandrakant Kalyandas Kakodkar v. State
of Maharashtra185, that in considering the question of obscenity of a publication what
the court has to see is whether a class, and not an isolated case, into whose hand the
book, article or story falls, suffers in its moral outlook or becomes depraved by
reading it or might have impure and lecherous thoughts aroused in their minds.

184
AIR 1965 SC 881.
185
(1969) 2 SCC 687.

173
In Promilla Kapur v. Yash Pal Bhasin186, the Delhi High Court examined the book
entitled Indian Call Girls. The Court felt that there was nothing wrong if a sociologist
made a research on the subject of call girls in order to know the reasons as to how and
why girls enter this profession. In Surjit Singh Thind v. Kanwaljit Kaur187, the High
Court of Punjab & Haryana held that allowing the medical examination of a woman
for her virginity would certainly violate her right of privacy and personal liberty
enshrined under Article 21 of the Constitution. Such an order would amount to a
roving enquiry against a female, who are vulnerable even otherwise.

In Budhadev Karmasker v. State of West Bengal188, a Public Interest Litigation was to

provide a life to dignity to the sex workers in India by giving them technical skills to
earn their livelihood respectfully, instead of selling their bodies. A panel on sex
workers was appointed by the Supreme Court to get a State wise figure of sex workers
rehabilitated so far. The Supreme Court had, by its earlier orders, dated 19 July, 2011
and 2 August, 2011, directed that certain funds be provided to the panel so that it
could work effectively. In its order, dated 19 July, 2011, the court had directed the
States and Union territories to carry out surveys to ascertain the number of sex
workers, who would like to be rehabilitated, and those who would want voluntarily to
continue in the same profession. In its order, dated 2 August, 2011, the Supreme
Court realized the fact that just by its order, the sex workers in the country cannot be
rehabilitated instantly. It is a situation in which the mission has to be carried our
patiently. The Court involved the Home, Social Welfare and Women‘s Welfare
Departments of all Central as well as State Governments and Union territories. It also
forwarded a copy of its order regarding identification and rehabilitation to the
Chairperson of the National Commission for Women with a request to depute its
members and actively participate in the panel, so established by the Court. In the
Public Interest Litigation relating to women, the Supreme Court, realizing the
importance of abolition of prostitution and to rehabilitate the sex workers, has given
various directions, involving Home Department, Social Welfare and Women‘s
Welfare Department, Central and State Governments, including Union Territories and
also the Chairperson of the National Commission for women.

186
1989 CriLJ 1241 (Del).
187
AIR 2003 P&H 353.
188
Criminal Appeal No. 135 of 2010, Judgment, dt. 24.08.2011.

174
In State of Karnataka v. Krishnappa189, the Hon‘ble Supreme Court has held that the
reasons that accused an unsophisticated and illiterate citizen belongs to the weaker
section of the society; that he was a chronic addict to drinking and had committed
rape of a girl where in the state of ―intoxication‖ and that his family comprise of a old
mother, wife and children depends upon him. These reasons are neither special nor
adequate. The measure of punishment in the wake of rape cannot depend upon the
social status of the convicts or the accused. It must depend upon the conduct of the
accused, the state and age of the sexually assault female and the gravity of the
criminal act. The crime of violence upon women needs to be severally dealt with. The
social economic status, religion, race, caste or creeds of the accused or the victims are
ir-relevant consideration in sentencing policy. The protection of society and deterring
the criminals is the avowed object of law and that is required to be achieved by
imposing an appropriate sentence. The sentencing Court is expected to consider all
relevant facts into consideration bearing on the questions of sentence and proceed to
impose a sentence commensurate with the gravity of the sentence. Court must hear the
loud cry for justice by the society in cases of the heinous crime of rape on innocent
helpless girls of tender years, and respond by imposition of proper sentence. Public
abhorrence of the crime needs reflection through imposition of appropriate sentence
by the Court. To show mercy in the case of such a heinous crime would be a travesty
of justice and the plea of leniency would be wholly misplaced. In Gurvail Singh @
Gala & Anr. v. State of Punjab190, the Court held that to award the death sentence,
the aggravating circumstances (crime test) have to be fully satisfied and there should
be no mitigating circumstance (criminal test) favoring the accused. Even if both the
tests are satisfied as against the accused, then the Court has to finally apply the Rarest
of Rare Cases test ( R-R Test ), which depends on the perception of the society and
not ―judge – centric‖, this is whether the society will approve the awarding of death
sentence to certain types of crime or not. While applying this test, the Court has to
look into variety of factors like society‘s abhorrence, extreme indignation and
antipathy to certain types of crimes like rape and murder of minor girls and the Court
award death sentence, because situation demands, due to constitutional compulsion,
reflected by the will of the people.

189
(2000) 4 SCC 75.
190
AIR 2013 SC 1177.

175
In Satwantin Bai v. Sunil Kumar and Other191, the appellant aged 10-13 years was
guarding her crops, a per person aged about 22-23 years wearing a shirt with red
stripes and black trouser came, he chased the girl/appellant and then caught and raped
her. The girl/appellant shouted for help which attracted the attention of 3 persons PW-
2, PW-3 and PW 4. PW 4 was the brother of the victim girl, who chased the accused
but was not able to catch him. The investigating officer did not arrange test
identification parade. PW 2, PW 4 and PW 6 had failed to identify the accused in the
Court. However, the prosecutrix identified the accused/appellant in the Court. The
Trial Court observed that in the absence of any prior identification parade such
identification in Court for the first time was not good enough, therefore acquitted the
accused of the charges leveled against him. Against this judgment the appellant/
prosecutrix preferred revision in High Court, this was dismissed. The appellant
challenged this order and judgment in Supreme Court, stating that the testimony of the
Appellant was cogent and supported by other evidence on record. The FIR was lodged
without delay and the fact that she was subjected to rape was well established. The
Appellant in her FIR had clearly stated that she would be able to identify the accused
and had given sufficient indications regarding his identity. Therefore identification of
the accused first time in Court by the prosecutrix was not flawed an any count and
ought to be accepted. Relying on Ashok Debbaramma @ Achak Debbarrna v. State of
Tripura192, it was also submitted that identification for the first time in Court is good
enough, and can be relied upon if the witness is otherwise trust worthy and reliable.
―She also had a reason to remember their faces as they had committed a heinous
offence and put her to shame. She had, therefore, abundant opportunity to notice their
features In fact on account of her traumatic and tragic experience, the faces of the
appellants must have got imprinted in her memory, and there was no chance of her
making a mistake about their identity‖. The Apex Court in para 10 elaborating the
scope and evidentiary value of the Identification Parade observed that- ―It has
consistently been held by this Court that what is substantive evidence is the
identification of an accused in Court by a witness and that the prior identification in a
test identification parade is used only to corroborate the identification in Court.
Holding of test identification parade is not the rule of law but rule of prudence.

191
(2015) 3 SCC 449.
192
(2014) 4 SCC 747.

176
Normally identification of the accused in a test identification parade lends assurance
so that the subsequent identification in Court during trial could be safely relied upon.
However, even in the absence of such test identification parade, the identification in
court can in given circumstances be relied upon, if the witness is otherwise
trustworthy and reliable. The law on the point is well-settled and succinctly laid down
in Ashok Debbarma @ Achak Debbarma v. State of Tripura.193 The Apex Court
further held that the evidence of the prosecutrix was reliable and trust worthy. The
High Court was not justified in dismissing the revision. Therefore, appeal was
allowed and accused was convicted for having committed the offence under Section
376(1) IPC.

In Saint Shri Asharam Bapu v. State194, the Rajasthan High Court while deciding upon
the bail application of Saint Shri Asharam Bapu who was accused under Sections 342,
376, 354-A, 506, 509/34 of the IPC, Sections 23 & 26 of the Juvenile Justice (Care
and Protection of Children) Act, 2000 and under Section 8 of the Protection of
Children from Sexual Offences Act, 2012. It was argued that that as per the medical
report, there is no sign of rape having been committed. Admittedly, the hymen was
intact. Hence, under no circumstances, offence under Section 376 IPC is made out.
Further, the petitioner is 74 years of age. He is a happily married man and he has two
children. The prosecutrix is the age of his grand-daughter. He is devoted to religious
pursuits. Also the girl is not dumb. In case, what she says is true, it is not understood
as to why she did not resist or make any effort to run out or scream. Hence, the
prosecutrix has cooked up a false story. She was neither called into the Kutiya nor any
such incident took place. Her own conduct on the night of 14th and 15th as well as in
the morning shows that the case is fabricated. However after hearing the arguments
and averments from the both sides the Court stated as under:-

The argument that the allegation of rape is incorrect as the same is not
corroborated by the medical evidence does not help the petitioner at this stage.
In fact, the explicit detail provided by the prosecutrix supports the medical
evidence. As per the medical evidence, the hymen is found intact. The same is

193
(2014) 4 SCC 747.
194
In the High Court of Judicature for Rajasthan at Jodhpur, Misc. Bail Application No. 7115/2013,
Decided on 01.10.2013.

177
 in keeping with her allegation that the petitioner felt her body in an indecent
manner for more than an hour. He removed his own clothes, molested her and
tried to force her to perform oral sex. The medical evidence would have been
in contradiction if the allegation was of sexual intercourse. The allegation as
above falls within the definition of ‗penetrative sexual assault‘ provided under
Section 3A of the Chapter-II of the Protection of Children from Sexual
Offences Act, 2012 as well as the definition of ‗rape‘ provided in Section
375(a) under the Amended Act of 2013.

That the prosecutrix was not a minor, too, is not borne out from the record. The
prosecutrix was earlier studying at Pratabp Singh Memorial Secondary School,
Sonepat. The school leaving certificate from Sonepat School as well as the certificate
of the present institution run on behalf of the petitioner himself shows the date of birth
of the prosecutrix as 04.07.1997. Moreover, the third certificate is the high school
certificate issued by the Board of Secondary Education, Madhya Pradesh, and Bhopal,
in which the date of birth of the prosecutrix is also entered as 04.07.1997. The said
certificate issued by a duly recognized Board is admissible in evidence. Hence, it
cannot be said at this stage that the prosecutrix is not a minor. The Court has cited the
Apex Court observation in Satpal Singh v. State of Haryana195, to answer the
argument that there is delay in lodging the FIR and that the prosecutrix did not
mention anything to her parents and left the ashram without complaining to anyone,
reads as under:-

―In a rape case the prosecutrix remains worried about her future. She remains
in a traumatic state of mind. The family of the victim generally shows
reluctance to go to the police station because of society‘s attitude towards
such a woman. It casts doubts and shame upon her rather than comfort and
sympathies with her. Family remains concern about its honor and reputation
of the prosecutrix. After only having a cool thought it is possible for the
family to lodge a complaint in sexual offences‖. ―In case of sexual offences,
the criteria may be different altogether. As honor of the family is involved, its
members have to decide whether to take the matter to the Court or not. In such
a fact-situation, near relations of the prosecutrix may take time as to what

195
(2010) 8 SCC 714.

178
 course of action should be adopted. Thus, delay is bound to occur. The Court
in its observation has quoted that this Court has always taken judicial notice of
the fact that ―ordinarily the family of the victim would not intent to get a
stigma attached to the victim. Delay in lodging the First Information Report in
a case of this nature is a normal phenomenon‖.

Citing the case of Mohan Lal & Anr. v. State of Punjab196, pointed that the evidence
of a victim of sexual assault stands almost on a part with the evidence of an injured
witness and to an extent is ever more reliable. Just as a witness who has sustained
some injury in the occurrence, which is not found to be self-inflicted, is considered to
be a good witness in the sense that he is least likely to shield the real culprit, the
evidence of a victim of a sexual offence is entitled to great weight, absence of
corroboration notwithstanding. The court held that in determining whether the grant
of bail should be granted or not, both the seriousness of the charge and the severity of
the punishment should be taken into consideration.

The question before the Humble Supreme Court in Priya Patel v. State of M.P. &
Anr.197, was whether a lady cab be prosecuted for gang rape. The revision filed before
the High Court questioned legality of the charge framed so far as the appellant is
concerned, relatable to Section 376(2) (g) IPC. It was contended that a woman cannot
be charged for commission of offence of rape. The High Court was of the view that
though a woman cannot commit rape, but if a woman facilitates the act of rape,
Explanation-I to Section 376(2) comes into operation and she can be prosecuted for
―gang rape‖ bare reading of Section 375 makes the position clear that rape can be
committed only by a man. The section itself provides as to when a man can be said to
have committed rape. Section 376(2) makes certain categories of serious cases of rape
as enumerated therein attract more severe punishment. One of them relates to ―gang
rape‖ shall be punished, etc. The Explanation only clarifies that when a woman is
raped by one or more in a group of persons acting in furtherance of their common
intention each such person shall be deemed to have committed gang rape within this
Sub-section (2). That cannot make a woman guilty of committing rape. This is
conceptually inconceivable. The Explanation only indicates that when one or more

196
Criminal Appeal Nos. 878-879 of 2011, decided on 11.4.2013.
197
(2006) 6 SCC 263.

179
persons act in furtherance of their common intention to rape a woman, each person of
the group shall be deemed to have committed gang rape. By operation of the deeming
provision, a person who has not actually committed rape is deemed to have committed
rape even if only one of the group in furtherance of the common intention has
committed rape. ―Common intention‖ is dealt with in Section 34 IPC and provides
that when a criminal act is done by several persons in furtherance of the common
intention of all, each of such persons is liable for that act in the same manner as if it
was done by him alone. ―Common intention‖ denotes action in concert and
necessarily postulates a pre-arranged plan, a prior meeting of minds and an element of
participation in action. The acts may be different and vary in character, but must be
actuated by the same common intention, which is different from same intention or
similar intention. The sine qua non for bringing in application of Section 34 IPC that
the act must be done in furtherance of the common intention to do a criminal act. The
expression ―in furtherance of their common intention‖ as appearing in the Explanation
to Section 376 (2) relates to intention to commit rape. A woman cannot be said to
have an intention to commit rape. Therefore, the counsel for the appellant is right in
her submission that the appellant cannot be prosecuted for alleged commission of the
offence punishable under Section 376(2) (g). The residual question is whether she can
be charged for abetment. This is an aspect which has not been dealt with by the trial
court or the High Court. If in law, it is permissible and the facts warrant such a course
to be adopted, it is for the concerned court to act in accordance with law. We express
no opinion in that regard.

In case of Ms. Eera through Dr. Manjula Krippendorf v. State (Govt. of NCT of
Delhi) & Anr.198, the pivotal issue that emanates for consideration before the Court
relates to the interpretation of Section 2(d) of the Protection of Children from Sexual
Offences Act, 2012 and the primary argument of the learned counsel for the appellant
is that the definition in Section 2(d) that defines ―child‖ to mean any person below the
age of 18 years, should engulf and embrace, in its connotative expanse, the ―mental
age‖ of a person or the age determined by the prevalent science pertaining to
psychiatry so that a mentally retarded person or an extremely intellectually challenged
person who even has crossed the biological age of 18 years can be included within the

198
Criminal Appeal Nos. 1217, 1219 of 2017, Decided on 21.07.2017, Supreme Court of India.

180
holistic conception of the term ―child‖. Noting the facts of the case that the appellant
is represented by her mother on the foundation that she is suffering from Cerebral
Palasy (R. Hemiparesis) and, therefore, though she is biologically 38 years of age, yet
her mental age is approximately 6 to 8 years. In this backdrop, it is contended that the
trial has to be held by the Special Court established under the POCSO Act.
Concluding that definition in Section 2(d) defining the term ―age‖ cannot include
mental age, the court pointed out that the purpose of POCSO Act is to treat the minors
as a class by itself and treat them separately so that no offence is committed against
them as regards sexual assault, sexual harassment and sexual abuse. The sanguine
purpose is to safeguard the interest and well being of the children at every stage of
judicial proceeding. It provides for a child friendly procedure. It categorically makes a
distinction between a child and an adult. On a reading of the POCSO Act, it is clear to
us that it is gender neutral. In such a situation, to include the perception of mental
competence of a victim or mental retardation as a factor will really tantamount to
causing violence to the legislation by incorporating a certain words to the definition.
By saying ―age‖ would cover ―mental age‖ has the potential to create immense
anomalous situations without there being any guidelines or statutory provisions.
Needless to say, they are within the sphere of legislature. To elaborate, an addition of
the word ―mental‖ by taking recourse to interpretative process does not come within
the purposive interpretation as far as the POCSO Act is concerned. In Shankar
Kisanrao Khade v. State of Maharashtra199, the Court, taking into consideration the
conduct of the police for not registering a case under Section 377 IPC against the
accused, the agony undergone by a child of 11 years with moderate intellectual
disability, no reporting of offence of rape committed on her after having witnessed the
incident either to the local police or to the Juvenile Justice Board, gave certain
directions for compliance in future which are necessary to protect the children from
such sexual abuses. The Court ruled that it has a duty to do so because the Court has
guardianship over minor children, especially with regard to the children having
intellectual disability, since they are suffering from legal disability. In Doongar Singh
& Ors. v. The State of Rajasthan200, dismissing the appeal the Court quoted that
before parting with this matter, we must record a disturbing feature in the conduct of

199
(2013) 5 SC.
200
Criminal Appeal Nos. 2045, 2046 of 2017, Decided on 28.11.2017, Supreme Court of India.

181
the trial of the present case. After recording examination-in-chief of the star witness,
PW-14 Prabhu Singh, on 13th April, 2010, the matter was adjourned on the request of
defense counsel to 25th August, 2010 i.e. for about more than four months. After that,
part evidence of the witnesses was recorded on 24th September, 2010 and the matter
was again adjourned to 11th October, 2010. Before that, four witnesses of the same
family in their statements recorded on 10th April, 2010 had become hostile. In a
criminal case of this nature, the trial court has to be mindful that for the protection of
witness and also in the interest of justice the mandate of Section 309 of the Cr.P.C.
has to be complied with and evidence should be recorded on continuous basis. If this
is not done, there is every chance of witnesses succumbing to the pressure or threat of
the accused.

In Om Parkash v. State of Uttar Pardesh201, it has been laid down by the humble
Supreme Court that the names of the victims of sexual offences is not to be indicated
in the judgment keeping in view the social object of preventing social victimization or
ostracism of the victim.

In Mukesh & Anr. v. State of NCT of Delhi & Ors.202, (Nirbhya Rape Case) this
incident shocked the entire nation and generated public rage, a Committee headed by
Justice J.S. Verma, Former Chief Justice of India was constituted to suggest
amendments to deal with sexual offences more sternly and effectively in future. The
suggestions of the Committee led to the enactment of Criminal Law (Amendment)
Act, 2013 which, inter alia, brought in substantive as well as procedural reforms in the
core areas of rape law. In this case all 4 accused were charged under Sections 120-B,
365, 366, 307, 376 (2) G, 377, 302, 395, 396, 201, 412 of IPC, 1860. However during
the course of trial one of the accused named ―Ram Singh‖ has committed suicide and
all remaining accused were found guilty of offence of rape and has been awarded
death penalty by the lower Court which was also confirmed by the High Court. But
the accused appealed against conviction & death sentence before the Hon‘ble
Supreme Court of India. The appeal was decided by the bench comprising Justice
Dipak Misra & Ashok Bhushan. While deciding the appeal the Court scrutinizes the
entire material on record along with the order of conviction pronounced by the
201
(2006) 3 SCC 401.
202
Criminal Appeal No. 607–608 of 2017, Arising out of S.L.P (Criminal) Nos. 3119 – 3120 of
2014, Supreme Court, Decided on May 5, 2017 (Reportable).

182
Session Court and the High Court. The Court noted that the grievance relating to the
lodging of FIR and the manner in which it has been registered has been seriously
commented upon and criticized by the learned counsel for the appellants and it is the
duty of this Court to see every aspect in detail and not to treat it as an ordinary appeal.
Therefore, it is appropriate to grant liberty to the learned counsel for the appellants to
challenge the conviction and the imposition of death sentence from all aspects and
counts and to dissect the evidence and project the irregularities in arrest and
investigation.

The objections raised before the Humble Supreme Court by the Appellants are: -

1. That there was delay in registration of FIR.

2. That the FIR does not contains the names of assailants.

3. CCTV footage cannot be admissible.

4. That refusal to participate in TIP may be considered as circumstance

but it cannot by itself lead to an inference of guilt.

5. That the three dying declarations of the prosecutrix have been

contrived and deserve to be kept out of consideration.

6. That the DNA test of the prosecutrix is not accurate is to be kept out of
consideration.

7. That the Deontology test conducted on accused is not reliable.

8. That the plea of alibi has been wrongly rejected.

9. That the trial Court and the High Court have committed the error of not
applying the doctrine of equality which prescribes similar treatment to
similar persons and the guidelines provided in the decision of Bachan
Singh was completely disregarded.

Upon the above objections and contentions of the appellants the Supreme
Court observed, pointed out and held as under:-

10. While dealing with the above mentioned 1st objection raised by the
counsel of appellant that the delay in the FIR raises serious doubts. The
Court pointed out that:-

183
 Delay in setting the law into motion by lodging of complaint in court
or FIR at police station is normally viewed by courts with suspicion
because there is possibility of concoction of evidence against an
accused. Therefore, becomes necessary for the prosecution to
satisfactorily explain the delay. Whether the delay is so long as to
throw a cloud of suspicion on the case of the prosecution would
depend upon a variety of factors. Even a long delay can be condoned if
the informant has no motive for implicating the accused. The Court
observed that:-

In the present case, after the occurrence, the prosecutrix and the PW-1
were admitted to the hospital at 11:05 p.m.; the victim was admitted to
the Gynaecology Ward and PW-1, the informant, in the casualty ward.
In the initial stages, the intention of all concerned must have been to
save the victim by giving her proper medical treatment. Even assuming
for the sake of argument that there is delay, the same is in consonance
with natural human conduct. Citing the observation made in the case of
State of Himachal Pradesh v. Rakesh Kumar203, the Court repelled the
submission pertaining to delay in lodging of the FIR on the ground that
the first Endeavour is always to take the person to the hospital
immediately so as to provide him medical treatment and only thereafter
report the incident to the police. The Court in the said case further held
that every minute was precious and, therefore, it is natural that the
witnesses accompanying the deceased first tried to take him to the
hospital so as to enable him to get immediate medical treatment. Such
action was definitely in accordance with normal human conduct and
psychology. When their efforts failed and the deceased died they
immediately reported the incident to the police. The Court, under the
said circumstances ruled that in fact, it was a case of quick reporting to
the police. Judged on the anvil of the aforesaid decisions, it was held
that there is no hesitation in arriving at the conclusion that there was no
delay in lodging of the FIR.

203
(2009) 6 SCC 308.

184
 An argument was advanced assailing the FIR before the Court to the
effect that the FIR does not contain: (I) the names of the assailants
either in the MLC, Ex.PW-51/A, or in the complaint, Ex. PW-1/A, (ii)
the description of the bus and (iii) the use of iron rods. Upon this the
Court noted that as far as the argument that the FIR does not contain
the names of all the accused persons is concerned, it has to be kept in
mind that it is settled law that FIR is not an encyclopedia of facts and
it is not expected from a victim to give details of the incident either in
the FIR or in the brief history given to the doctors. FIR is not an
encyclopedia which is expected to contain all the details of the
prosecution case; it may be sufficient if the broad facts of the
prosecution case alone appear. If any overt act is attributed to a
particular accused among the assailants, it must be given greater
assurance. Making reference to certain authorities such as State of
Uttar Pradesh v. Naresh and Others204 and Rotash v. State of
Rajastha205, where the Court opined that-
We, however, although did not intend to ignore the importance of
naming of an accused in the first information report, but herein we
have seen that he had been named in the earlies possible opportunity.
Even assuming that PW 1 did not name him in the first information
report, we do not find any reason to disbelieve the statement of Mooli
Devi, PW 6. The question is as to whether a person was implicated by
way of an afterthought or not must be judged having regard to the
entire factual scenario obtaining in the case. PW 6 received as many as
four injuries.‖

11. Reiterating the principle in State of U.P. v. Naresh & Ors., the Court
opined that it is settled legal proposition that FIR is not an
encyclopedia of the entire case. It may not and need not contain all the
details. Naming of the accused therein may be important but not
naming of the accused in FIR may not be a ground to doubt the
contents thereof in case the statement of the witness is found to be
204
(2011) 4 SCC 324.
205
(2006) 12 SCC 64.

185
 trustworthy. The Court has to determine after examining the entire
factual scenario whether a person has participated in the crime or has
been falsely implicated. The informant fully acquainted with the facts
may lack necessary skill or ability to reproduce details of the entire
incident without anything missing from the same. Some people may
miss even the most important details in narration. Therefore, in case
the informant fails to name a particular accused in the FIR, this ground
alone cannot tilt the balance of the case in favour of the accused. In the
instant case the observation of the Court was that in view of the
aforesaid settled position of law, we are not disposed to accept the
contention that omission in the first statement of the informant is fatal
to the case. We are disposed to think so, for the omission has to be
considered in the backdrop of the entire factual scenario, the materials
brought on record and objective weighing of the circumstances. The
impact of the omission, as is discernible from the authorities, has to be
adjudged in the totality of the circumstances and the veracity of the
evidence. The involvement of the accused persons cannot be
determined solely on the basis of what has been mentioned in the FIR.
It cannot be said that merely because the names of the accused persons
are not mentioned in the FIR, it raises serious doubts about the
prosecution case.

12. In an attempt to discredit the CCTV footage, the counsel for the
appellants has pointed out that only the CCTV recording alleged to be
of this bus was recorded and not of all other white buses that had
‗Yadav‘ written on them. The learned counsel for the defence
subsequently maintained that the CCTV footage cannot be relied upon
as the same has been tampered with by the investigating officers. It
was contended that CCTV footage was not properly examined to check
all possible buses plying on the said route. However, the Court
concluded that there is no reason or justification to disregard the
CCTV footage, for the same has been duly proved and it clearly
establishes the description and movement of the bus. Because CCTV

186
 footage produced by PW-25 Rajender Singh Bisht in two CDs
(Ex.PW-25/C-1 and PW-25/C-2) and seven photographs (Ex.PW-
25/B-1 to Ex.PW-25/B-7) corroborate the version of PW-1 that the
complainant and the victim were present at Saket Mall till 8:57 p.m.
The certificate under Section 65-B of the Indian Evidence Act, 1872
with respect to the said footage is proved by PW-26 Shri Sandeep
Singh (Ex.PW-26/A) who is the CCTV operator at Select City Mall.
And the computer generated electronic record in evidence, admissible
at a trial is proved in the manner specified in Section 65-B of the
Evidence Act. Sub-section (1) of Section 65 of the Evidence Act
makes electronic records admissible as a document, paper print out of
electronic records stored in optical or magnetic media produced by a
computer, subject to the fulfillment of the conditions specified in sub-
Section (2) of Section 65-B of the Evidence Act. When those
conditions are satisfied, the electronic record becomes admissible in
any proceeding without further proof or production of the original, as
evidence of any of the contents of the original or any fact stated therein
of which direct evidence is admissible. Secondary evidence of contents
of document can also be led under Section 65 of the Evidence Act.

13. Criticizing the TIP, it is urged by the learned counsel for the appellants
and that refusal to participate may be considered as circumstance but it
cannot by itself lead to an inference of guilt. It is also argued that there
is material on record to show that the informant had the opportunity to
see the accused persons after they were arrested. Upon this Hon‘ble
Court found it necessary to state that TIP does not constitute
substantive evidence. Referring its earlier pronouncements on the
subject such as Matru Alias Girish Chandra v. State of Uttar
Pradesh206, Santokh Singh v. Izhar Hussain and Another207and
Malkhan Singh v. State of M.P.208, in which it was observed and held
that identification test is primarily meant for the purpose of helping the

206
(1971) 2 SCC 75.
207
(1973) 2 SCC 406.
208
(2003) 5 SCC 746.

187
 investigating agency with an assurance that their progress with the
investigation of an offence is proceeding on the right lines. The
identification can only be used as corroborative of the statement in
Court. The identification parades belong to the stage of investigation,
and there is no provision in the Code of Criminal Procedure which
obliges the investigating agency to hold, or confers a right upon the
accused to claim a test identification parade. They do not constitute
substantive evidence and these parades are essentially governed by
Section 162 of the Code of Criminal Procedure. Failure to hold a test
identification parade would not make inadmissible the evidence of
identification in court. The weight to be attached to such identification
should be a matter for the Courts of fact. It is well settled that the
substantive evidence is the evidence of identification in court and the
test identification parade provides corroboration to the identification of
the witness in Court, if required. However, what weight must be
attached to the evidence of identification in Court, which is not
preceded by a test identification parade, is a matter for the courts of
fact to examine. The Court concluded that in the case at hand, the
informant, apart from identifying the accused who had made
themselves available in the TIP, has also identified all of them in
Court. On a careful scrutiny of the evidence on record, we are of the
convinced opinion that it deserves acceptance. Therefore, we hold that
TIP is not dented.

14. The appellants have been extremely criticized the manner in which the
dying declaration was recorded as there were three dying declarations
and have highlighted the irreconcilable factes. It was contended that
the dying declaration do not inspire confidence, for variations in them
relate to the number of assailants, the description of the bus, the
identity of the accused and the over acts committed by them. It was
also contended that the 3 dying declarations made by the prosecutrix
vary from each other and the said variations clearly reveal the
inconsistencies and the improvements in the dying declarations mirror

188
the improvements that are brought about in PW – 1‘s statements and
the progress of the investigation. The sudden appearance of the name
‗Vipin‘ in the third dying declaration after the recording of Akshay‘s
disclosure statement where he mentions a person named Vipin is
alleged to be indicative of the fact that the dying declaration is, in fact,
doubtful. It is further contended that there are inconsistencies and
numerous procedural irregularities in the recording of the declarations
make it suspicious. In this regard, lack of an independent assessment of
the mental fitness of the prosecutrix, while recording the second dying
declaration, has been highlighted. It is further argued before the Court
that if at all any dying declaration is to be relied on, it should only be
the first dying declaration made on 16.12.2012 and recorded by PW-
Dr. Rashmi Ahuja, and the said dying declaration only states that there
were 4 to 5 persons on the bus. It is further stated that the prosecutrix
was raped by a minimum of 2 men and that she does not remember
intercourse after that. It is, therefore, unsafe to proceed on the
assumption that all six persons on the bus committed rape upon the
prosecutrix within a span of 21 minutes. On the scrutiny of the record
the Court finds that the 1st statement was recorded on 16.12.2012 about
11:15 p.m. by PW-49 Dr. Rashmi Ahuja, in her writing in the
casuality/GRP paper. Dying Declaration was recorded by SDM, Smt.
Usha Chaturvedi, PW-27, on 21.12.2012. The medical record of the
prosecutrix shows that the prosecutrix was not found fit for recording
of her statement until 21st December, 2012 about 6:00 p.m. when the
prosecutrix was declared fit for recording statement by PW-52, Dr. P.K
Verma. PW-52 had examined the prosecutrix and found her to be fit,
conscious, oriented and meaningfully communicative for making
statement vide his endorsement at point ‗A‘ on application, Ex.PW-
27/DB. The second dying declaration, Ex.PW-27/A, was recorded by
PW-27, Smt. Usha Chaturvedi, SDM. This dying declaration is an
elaborate one where the prosecutrix has described the incident in detail
including the act of insertion of rod in her private parts. She also stated
that the accused were addressing each other with names like, ―Ram

189
 Singh, Thakur, Raju, Mukesh, Pawan and Vinay‖. On 25.12.2012, the
prosecutrix‘s statement, Ex.PW-30/D, under Section 164 CrPC was
recorded by PW-30, Pawan Kumar, Metropolitan Magistrate, in the
form of questions by putting her multiple choice questions. This
statement was made through gestures and writings. The statement
recorded by PW-30 which ultimately became another dying
declaration.

Learned counsel for the appellants have objected to the admissibility of the dying
declarations available on record mainly on the ground that they are not voluntary but
tutored. It is argued that the second and third dying declarations are nothing but a
product of tutoring and are non-voluntary and the only statement recorded is the
MLC, Ex.PW49/A and Ex. PW49/B, prepared immediately after the incident, wherein
the prosecutrix has neither named any of the accused nor mentioned the factum of
iron rod being used by the accused persons and the act of the accused in committing
unnatural offence. It is further alleged that the prosecutrix could not have given such a
lengthy dying declaration running upto four pages on 21.12.2012 as she was on
oxygen support. PW-27 has deposed that the prosecutrix was on oxygen support at the
time of recording the second dying declaration. It is further contended that it must be
taken into account that ever since the prosecutrix was admitted to the hospital, she
was continuously on morphine and, thus, she could not have gained consciousness.
The second dying declaration has been further assailed on the ground of being
recorded at the behest of SDM, PW-27, instead of a Magistrate and that too after a
delay of nearly four days. The third dying declaration, Ex.PW-30/D, recorded by the
Metropolitan Magistrate, PW-30, on 25.12.2012 through gestures and writings is
controverted by putting forth the allegations of false medical fitness certificate and
absence of videography. Another argument advanced by the learned counsel raising
suspicion on the genuineness of the second and third dying declarations is that the
dates on which the dying declarations were recorded have been manipulated. The
counsel asseverated that the second dying declaration, i.e., Ex.PW-27/A, purported to
have been recorded by PW-27 on 21.12.2012 was, in fact, recorded on the previous
day as evidenced from the overwriting of the date in Ex. PW-27/B. The counsel also
pointed to the overwriting of the date in the third dying declaration, i.e., Ex. PW-30/C,

190
recorded by PW-30. It is propounded by them that the date was modified thrice in
order to fit in the fake chain of circumstances contrived by the prosecution.

In its observation the Humble Court has pointed out that a dying declaration is an
important piece of evidence which, if found veracious and voluntary by the court,
could be the sole basis for conviction. If a dying declaration is found to be voluntary
and made in fit mental condition, it can be relied upon even without any
corroboration. However, the Court, while admitting a dying declaration, must be
vigilant towards the need for „Compos Mentis Certificate‟ from a doctor as well as the
absence of any kind of tutoring. Citing Laxman v. State of Maharashtra209, the Court
explains the law relating to dying declaration in following words:-

A dying declaration can be oral or in writing and any adequate method of

communication whether by words or by signs or otherwise will suffice
provided the indication is positive and definite. In most cases, however, such
statements are made orally before death ensues and is reduced to writing by
someone like a Magistrate or a doctor or a police officer. When it is recorded,
no oath is necessary nor is the presence of a Magistrate absolutely necessary,
although to assure authenticity it is usual to call a Magistrate, if available for
recording the statement of a man about to die. There is no requirement of law
that a dying declaration must such statement is recorded by a Magistrate there
is no specified statutory form for such recording. Consequently, what
evidential value or weight has to be attached to such statement necessarily
depends on the facts and circumstances of each particular case. What is
essentially required is that the person who records a dying declaration must be
satisfied that the deceased was in a fit state of mind. Where it is proved by the
testimony of the Magistrate that the declaring was fit to make the statement
even without examination by the doctor the declaration can be acted upon
provided the Court ultimately holds the same to be voluntary and truthful. A
certification by the doctor is essentially a rule of caution and therefore the
voluntary and truthful nature of the declaration can be established otherwise.‖

209
(2002) 6 SCC 710.

191
The Humble Court pointed out that the legal position regarding the admissibility of a
dying declaration is settled it in its several judgments. Referring to Panneerselvam v.
State of Tamil Nadu210, the Court stated that it has exhaustively laid down the
following guidelines with respect to the admissibility of dying declaration:-

1. Dying declaration can be the sole basis of conviction if it inspires the

full confidence of the Court.

2. The court should be satisfied that the deceased was in a fit state of
mind at the time of making the statement and that it was not the result
of tutoring, prompting or imagination.

3. Where the court is satisfied that the declaration is true and voluntary, it
can base its conviction without any further corroboration.

4. It cannot be laid down as an absolute rule of law that the dying

declaration cannot form the sole basis of conviction unless it is
corroborated. The rule requiring corroboration is merely a rule of
prudence.

5. Where the dying declaration is suspicious, it should not be acted upon

without corroborative evidence.

6. A dying declaration which suffers from infirmity such as the deceased

was unconscious and could never make any statement cannot form the
basis of conviction.

7. Merely because a dying declaration does not contain all the details as
to the occurrence, it is not to be rejected.

8. Even if it is a brief statement, it is not to be discarded.

9. When the eyewitness affirms that the deceased was not in a fit and
conscious state to make the dying declaration, medical opinion cannot
prevail.

10. If after careful scrutiny, the Court is satisfied that it is true and free
from any effort to induce the deceased to make a false statement and if

210
(2008) 17 SCC 190.

192
 it is coherent and consistent, there shall be no legal impediment to
make it the basis of conviction, even if there is no corroboration.

The Court once again observed that it is well settled that dying declaration can form
the sole basis of conviction provided that it is free from infirmities and satisfies
various other tests. In a case where there are more than one dying declaration, if some
inconsistencies are noticed between one and the other, the court has to examine the
nature of inconsistencies as to whether they are material or not. The Court has to
examine the contents of the dying declarations in the light of the various surrounding
facts and circumstances. Further quoting Chirra Shivraj v. State of Andhra
Pradesh211, in which the Court has dealt with the issues arising out of multiple dying
declarations and has gone to the extent of declining the first dying declaration and
accepting the subsequent dying declarations. The Court found that the 1st dying
declaration was not voluntary and not made by free will of the deceased; and the
second and third dying declarations were voluntary and duly corroborated by other
prosecution witnesses and medical evidence. In the said case, the accused was married
to the deceased whom he set ablaze by pouring kerosene in the matrimonial house
itself. The smoke arising from the house attracted the neighbours who rushed the
victim to the hospital where she recorded three statements before dying. In her first
statement given to the Naib Tehsildar, she did not implicate her husband, but in the
second and third statements, which were also recorded on the same day, she clearly
stated that the accused poured kerosene on her and set her on fire. The accused was
convicted under Section 302 IPC. In this regard, the Court made the following
observations:-

Having referred to the law relating to dying declaration, now we may examine
the issue that in cases involving multiple dying declarations made by the
deceased, who of the various dying declarations should be believed by the
court and what are the principles governing such determination. This becomes
important where the multiple dying declarations made by the deceased are
either contradictory or are at variance with each other to a large extent. The
test of common prudence would be to first examine which of the dying
declarations is corroborated by other prosecution evidence. Further, the
211
(2010) 14 SCC 444.

193
 attendant circumstances, the condition of the deceased at the relevant time, the
medical evidence, the voluntariness and genuineness of the statement made by
the deceased, physical and mental fitness of the deceased and possibility of the
deceased being tutored are some of the factors which would guide the exercise
of judicial discretion by the Court in such matters.

Again in Sandeep and Another v. State of Haryana212, it was held that that there was
no inconsistency between the two dying declarations and non-mention of certain
features in the dying declaration recorded by the Judicial Magistrate does not make
both the dying declarations incompatible. Reproducing a passage from Babulal and
others v. State of M.P.213, for the purpose of stating the value of dying declaration it
was reproduce by the Court as :-

A person who is facing imminent death, with even a shadow of continuing in

this world practically non-existent, every motive of falsehood is obliterated.
The mind gets altered by most powerful ethical reasons to speak only the truth.
Great solemnity and sanctity is attached to the words of a dying person
because a person on the verge of death is not likely to tell lies or to concoct a
case so as to implicate an innocent person. The maxim is ―a man will not meet
his Maker with a lie in his mouth‖ (nemo moriturus praesumitur mentire).
Mathew Arnold said, ―truth sits on the lips of a dying man‖. The general
principle on which the species of evidence is admitted is that they are
declarations made in extremity, when the party is at the point of death, and
when every hope of this world is gone, when every motive to falsehood is
silenced and mind induced by the most powerful consideration to speak the
truth; situation so solemn that law considers the same as creating an obligation
equal to that which is imposed by a positive oath administered in a court of
justice.

Rejecting all the contention of appellants the Apex Court held that:-

Appreciating the third dying declaration recorded on the basis of gestures,

nods and writings on the base of aforesaid pronouncements, we have no

212
(2015) 11 SCC 154.
213
(1992) 4 SCC 225.

194
 hesitation in holding that the dying declaration made through signs, gestures or
by nods are admissible as evidence, if proper care was taken at the time of
recording the statement. The only caution the court ought to take is that the
person recording the dying declaration is able to notice correctly as to what the
declaring means by answering by gestures or nods. In the present case, this
caution was aptly taken, as the person who recorded the prosecutrix‘s dying
declaration was the Metropolitan Magistrate and he was satisfied himself as
regards the mental alertness and fitness of the prosecutrix, and recorded the
dying declaration of the prosecutrix by noticing her gestures and by her own
writings. Considering the facts and circumstances of the present case and upon
appreciation of the evidence and the material on record, in our view, all the
three dying declarations are consistent with each other and well corroborated
with other evidence and the trial Court as well as the High Court has correctly
placed reliance upon the dying declarations of the prosecutrix to record the
conviction.

1. An objection was made in relation to the admissibility of DNA test by the

appellants before the Apex Court. Analyzing and explaining the DNA Test the
Court stated that DNA is the abbreviation of Deoxyribo Nucleic Acid. It is the
basic genetic material in all human body cells. It is not contained in red blood
corpuscles. It is, however, present in white corpuscles. It carries the genetic
code. DNA structure determines human character, behavior and body
characteristics. DNA profiles are encrypted sets of numbers that reflect a
person‘s DNA makeup which, in forensics, is used to identify human beings.
DNA is a complex molecule. It has a double helix structure which can be
compared with a twisted rope ‗ladder‘. DNA technology as a part of Forensic
Science and scientific discipline not only provides guidance to investigation
but also supplies the Court accrued information about the tending features of
identification of criminals. The recent advancement in modern biological
research has regularized Forensic Science resulting in radical help in the
administration of justice. In our country also like several other developed and
developing countries, DNA evidence is being increasingly relied upon by
courts. After the amendment in the Criminal Procedure Code by the insertion

195
of Section 53A by Act 25 of 2005, DNA profiling has now become a part of
the statutory scheme. Section 53A relates to the examination of a person
accused of rape by a medical practitioner. Similarly, under Section 164A
inserted by Act 25 of 2005, for medical examination of the victim of rape, the
description of material taken from the person of the woman for DNA profiling
is must. Also referring to its earlier judgments the court pointed out that it is
quite clear that DNA report deserves to be accepted unless it is absolutely
dented and for non-acceptance of the same, it is to be established that there
had been no quality control or quality assurance. If the sampling is proper and
if there is no evidence as to tampering of samples, the DNA test report is to be
accepted.
It was contented by the appellants that the DNA test cannot be treated to be
accurate, for there was blood transfusion as the prosecutrix required blood and
when there is mixing of blood, the DNA profiling is likely to differ. It is
seemly to note, nothing had been put to the expert in his cross-examination in
this regard. As the authorities relating to DNA would show, if the quality
control is maintained, it is treated to be quite accurate and as the same has
been established, we are compelled to repel the said submission of Mr.
Sharma. The Apex Court concluded that:-

The DNA profiling, which has been done after taking due care for quality,
proves to the hilt the presence of the accused persons in the bus and their
involvement in the crime. The submission that certain samples were later on
taken from the accused and planted on the deceased to prove the DNA aspect
is noted only to be rejected because it has no legs to stand upon. The argument
that the transfusion of blood has the potentiality to give rise to two categories
of DNA or two DNAs is farthest from truth and there is no evidence on that
score. On the contrary, the evidence in exclusivity points to the matching of
the DNA of the deceased with that of the accused on many aspects. The
evidence brought on record with regard to finger prints is absolutely
impeccable and the trial Court and the High Court have correctly placed
reliance on the same and we, in our analysis, have found that there is no
reason to disbelieve the same.

196
2. In the instant case, the prosecution has relied upon the odontology report, i.e.,
bite mark analysis report prepared by PW-71, Dr. Ashith B. Acharya, to link
the incident with the accused persons. The Odontology report links accused
Ram Singh and accused Akshay with the crime in question. The analysis
showed that at least three bite marks were caused by accused Ram Singh,
whereas one bite mark has been identified to have been most likely caused by
accused Akshay. An excerpt from the report, Ex. PW- 71/C, of PW-71, Dr.
Ashith B. Acharya, has been extracted by the High Court. It reads thus:-

―There is absence of any unexplainable discrepancies between the bite marks

on Photograph No. 4 and the biting surfaces of one of the accused person‘s
teeth, namely Ram Singh. Therefore, there is reasonable medical certainty
that the teeth on the dental models of the accused person named Ram Singh
caused the bite marks visible on Photograph No 4; also the bite marks on
Photograph Nos. 1 and 2 shows some degree of specificity to this accused
person's teeth by virtue of a sufficient number of concordant points, including
some corresponding unconventional/ individual characteristics. Therefore, the
teeth on the dental models of the accused person with the name Ram Singh
probably also caused the bite marks visible on Photograph Nos. 1 and 2. The
comparison also shows that there is a concordance in terms of general
alignment and angulations of the biting surfaces of the teeth of the lower jaw
on the dental models of the accused person with the name Akshay and the
corresponding bite marks visible on Photograph No. 5. In particular, the
comparison revealed concordance between the biting surface of the teeth on
the lower jaw of the dental models of the accused person with the name
Akshay and the bite mark visible on Photograph No.5 in relation to the
rotated left first incisor whose mesial surface pointed towards the tongue.
Overall, the bite mark shows some degree of specificity to the accused
person's teeth by virtue of a number of concordant points, including one
corresponding unconventional/individual characteristic. There is an absence
of any unexplainable discrepancies between the bite mark and the biting
surfaces of this accused person‘s teeth. Therefore, the teeth on the dental

197
models of the accused person with the name Akshay probably caused the bite
marks visible on Photograph No. 5.‖

The Apex Court in its judgment has pointed out that where the victim's body
contained various white bite marks. Bite mark analysis play an important role
in the criminal justice system. Advanced development of technology such as
laser scanning, scanning electron microscopy or cone beam computed
tomography in forensic odontology is utilized to identify more details in bite
marks and in the individual teeth of the bite. Unlike fingerprints and DNA,
bite marks lack the specificity and durability as the human teeth may change
over time. However, bite mark evidence has other advantages in the criminal
justice system that links a specific individual to the crime or victim. For a bite
mark analysis, it must contain abundant information and the tooth that made
the mark must be quite distinctive. Bite marks in skin are photographed in
cases where the suspect is apprehended. A thorough dental combination is
administered after dental examination of the suspect. Final comparison of the
details of the original mark with the dentition of the suspect is done by
experts. The bite marks generally include only a limited number of teeth. The
teeth and oral structure of the accused are examined by experts and, thereafter,
bite marks are compared and reports are submitted. Forensic Odontology is a
science and the most common application of Forensic Odontology is for the
purpose of identification of persons from their tooth structure. The court
further stated that Forensic Odontology has established itself as an important
and indispensable science in medico-legal matters and expert evidence
through various reports which have been utilized by Courts in the
administration of justice. In the case at hand, the report is wholly credible
because of matching of bite marks with the tooth structure of the accused
persons and there is no reason to view the same with any suspicion. The area
of forensic odontology consists of three major fields of activity:

(1) The examination and evaluation of injuries to teeth, jaws, and oral
tissues from various causes.

(2) The examination of bite marks with a view to the subsequent

elimination or possible identification of a suspect as the originator.

198
 (3) The examination of dental remains (whether fragmentary or complete,
and including all types of dental restoration) from unknown persons or
bodies for the purpose of identification.‖

It was held by the Court that learned counsel for the appellants would only contend
that the whole thing has been stage-managed. We are not impressed by the said
submission, for the evidence brought on record cogently establishes the injuries
sustained by the prosecutrix and there is consistency between the injuries and the
report. We are not inclined to accept the hypothesis that bite marks have been
managed. The Court concluded that the scientific evidence relating to odontology
shows how far the accused have proceeded and where the bites have been found and
definitely, it is extremely impossible to accept the submission that it has been a
manipulation by the investigating agency to rope in the accused persons.

3. Appellants in their statement U/s 313 Crpc during the course of trial in lower
Court has advanced the plea of alibi. Explaining the plea of alibi the Court
stated that the Latin word alibi means ‗elsewhere‘ and that word is used for
convenience when an accused takes recourse to a defense line that when the
occurrence took place he was so far away from the place of occurrence that it
is extremely improbable that he would have participated in the crime. It is a
basic law that in a criminal case, in which the accused is alleged to have
inflicted physical injury to another person, the burden is on the prosecution to
prove that the accused was present at the scene and has participated in the
crime. The burden would not be lessened by the mere fact that the accused has
adopted the defense of alibi. The plea of the accused in such cases need be
considered only when the burden has been discharged by the prosecution
satisfactorily. But once the prosecution succeeds in discharging the burden it is
incumbent on the accused, who adopts the plea of alibi, to prove it with
absolute certainty so as to exclude the possibility of his presence at the place
of occurrence. When the presence of the accused at the scene of occurrence
has been established satisfactorily by the prosecution through reliable
evidence, normally the Court would be slow to believe any counter-evidence
to the effect that he was elsewhere when the occurrence happened. But if the
evidence adduced by the accused is of such a quality and of such a standard

199
 that the court may entertain some reasonable doubt regarding his presence at
the scene when the occurrence took place, the accused would, no doubt, be
entitled to the benefit of that reasonable doubt. For that purpose, it would be a
sound proposition to be laid down that, in such circumstances, the burden on
the accused is rather heavy. It follows, therefore, that strict proof is required
fore establishing the plea of alibi. The Apex Court also referred to its earlier
judgment in the case of Gurpreet Singh v. State of Haryana214, Shaikh Sattar
v. State of Maharashtra215 and Jitender Kumar v. State of Haryana216, in
which the said principle has been reiterated. It was state by the Court that we
must bear in mind that an alibi is not an exception (special or general)
envisaged in the Penal Code, 1860 or any other law. It is only a rule of
evidence recognized in Section 11 of the Evidence Act that facts which are
inconsistent with the fact in issue are relevant. Illustration (a) given under the
provision is worth reproducing in this context the question is whether A
committed a crime at Calcutta on a certain date. The fact that, on that date, A
was at Lahore is relevant. The Court further opined that while weighing the
plea of „alibi‟, the same has to be weighed against the positive evidence led by
the prosecution, i.e., not only the substantive evidence of PW-1 and the dying
declarations, Ex.PW-27/A and Ex.PW-30/D-1, but also against the scientific
evidence, viz., the DNA analysis, finger print analysis and bite marks analysis,
the accuracy of which is scientifically acclaimed. Considering the inconsistent
and contradictory nature of the evidence of ‗alibi‟ led by the accused against
the positive evidence of the prosecution, including the scientific one, the Court
hold that the accused have miserably failed to discharge their burden of
absolute certainty qua their plea of ‗alibi‟. The plea taken by them appears to
be an afterthought and rather may be read as an additional circumstance
against them.

4. Criticizing the sentence the counsel for appellants has place reliance on
Bachan Singh v. State of Punjab217and submitted that the trial court and the

214
(2012) 8 SCC 18.
215
(2010) 8 SCC 430.
216
(2012) 6 SCC 204.
217
(1980) 2 SCC 684.

200
 High Court have committed the error of not applying the doctrine of equality
which prescribes similar treatment to similar persons and stated that the Court
in Bachan Singh (supra) has categorically held that the extreme penalty can be
inflicted only in gravest cases of extreme culpability; in making the choice of
sentence, in addition to the circumstances of the offence, due regard must be
paid to the circumstances of the offender also; and that the mitigating
circumstances referred therein are undoubtedly relevant and must be given
great weight in the determination of sentence. Further placing reliance on
Machhi Singh v. State of Punjab218, it is submitted that in the said case, the
Court held that a balance sheet of the aggravating and mitigating
circumstances should be drawn up and the mitigating circumstances should be
accorded full weight age and a just balance should be struck between the
aggravating and mitigating circumstances. He further pointed out number of
decisions wherein this Court has given considerable weight to the
circumstances of the criminal and commuted the sentence to life
imprisonment. It was urged that in the present case, the decision in Bachan
Singh (supra) was completely disregarded and the trial court, while sentencing
the accused, only placed emphasis on the brutal and heinous nature of the
crime and the mitigating factors including the possibility of reform and
rehabilitation were ruled out on the basis of the nature of the crime and not on
its own merits. Learned amicus curiae has further propounded that sentencing
and non-consideration of the mitigating circumstances are violative of Articles
14 and 21 of the Constitution. Long lists of earlier judgements were referred in
front of the Court. but ultimately after scrutinizing all material on record the
Apex Court has Concluded as under :-

It is necessary to state here that in the instant case, the brutal, barbaric and
diabolic nature of the crime is evincible from the acts committed by the
accused persons, viz., the assault on the informant, PW-1 with iron rod and
tearing off his clothes; assaulting the informant and the deceased with hands,
kicks and iron rod and robbing them of their personal belongings like debit
cards, ring, informant‘s shoes, etc.; attacking the deceased by forcibly

218
(1983) 3 SCC 470.

201
disrobing her and committing violent sexual assault by all the appellants; their
brutish behaviour in having anal sex with the deceased and forcing her to
perform oral sex; injuries on the body of the deceased by way of bite marks
(10 in number); and insertion of rod in her private parts that, inter alia, caused
perforation of her intestine which caused sepsis and, ultimately, led to her
death. The medical history of the prosecutrix (as proved in the record in Ex.
PW-50/A and Ex. PW-50) demonstrates that the entire intestine of the
prosecutrix was perforated and splayed open due to the repeated insertion of
the rod and hands; and the appellants had pulled out the internal organs of the
prosecutrix in the most savage and inhuman manner that caused grave injuries
which ultimately annihilated her life. As has been established, the prosecutrix
sustained various bite marks which were observed on her face, lips, jaws, near
ear, on the right and left breast, left upper arm, right lower limb, right inner
groin, right lower thigh, left thigh lateral, left lower anterior and genitals.
These acts itself demonstrate the mental perversion and inconceivable
brutality as caused by the appellants. As further proven, they threw the
informant and the deceased victim on the road in a cold winter night. After
throwing the informant and the deceased victim, the convicts tried to run the
bus over them so that there would be no evidence against them. They made all
possible efforts in destroying the evidence by, inter alia, washing the bus and
burning the clothes of the deceased and after performing the gruesome act,
they divided the loot among themselves. As we have narrated the incident that
has been corroborated by the medical evidence, oral testimony and the dying
declarations, it is absolutely obvious that the accused persons has found an
object for enjoyment in her and, as is evident, they were obsessed with the
singular purpose sans any feeling to ravish her as they liked, treat her as they
felt and, if we allow ourselves to say, the gross sadistic and beastly instinctual
pleasures came to the forefront when they, after ravishing her, thought it to be
just a matter of routine to throw her along with her friend out of the bus and
crush them. The casual manner with which she was treated and the devilish
manner in which they played with her identity and dignity is humanly
inconceivable. It sounds like a story from a different world where humanity
has been treated with irreverence. The appetite for sex, the hunger for

202
 violence, the position of the empowered and the attitude of perversity, to say
the least, are bound to shock the collective conscience which knows not what
to do. It is manifest that the wanton lust, the servility to absolutely unchained
carnal desire and slavery to the loathsome bestiality of passion ruled the
mindset of the appellants to commit a crime which can summon with
immediacy ―tsunami‖ of shock in the mind of the collective and destroy the
civilized marrows of the milieu in entirety.

When we cautiously, consciously and anxiously weigh the aggravating circumstances

and the mitigating factors, we are compelled to arrive at the singular conclusion that
the aggravating circumstances outweigh the mitigating circumstances now brought on
record. Therefore, we conclude and hold that the High Court has correctly confirmed
the death penalty and we see no reason to differ with the same. Thus, the appeals of
the appellants are dismissed accordingly.

In CBI v. Baba Gurmeet Ram Rahim Singh219, this case is recently much highlighted
and debated in media through outer country as accused Baba Gurmeet Singh also
known as Maharaj Gurmeet Singh and Gurmeet Ram Rahim Singh, Chief of Dear
Sacha Sauda, Sirsa was charged for the offence under Sections 376, 506 & 509 IPC.
The instant case FIR has been registered and investigation has been taken in
pursuance of the directions passed by the Hon‘ble High Court of Punjab and Haryana
vide its order dated 24.9.2002. Court in its own motion directed CBI of prob in to the
matter regarding allegations made through an anonymous letter/Complaint of Sexual
exploitation of Sadhvis in Dera Sacha Sauda, Sirsa by Baba Gurmeet Singh. The High
Court of Punjab and Haryana had directed the learned District and session Judge,
Sirsa to conduct inquiry in the matter and to submit its report. Accordingly the report
was submitted which discloses that nobody in Dera Sacha Suda, Sirsa was prepared to
disclose about the sexual abuse of girls in Dera Sacha Suda and there is no access to
the hostel of Dera Sacha Sauda where Sadhvi girls were residing, without prior
permission of Baba Gurmeet Singh or the Dera authorities. Further the report of
learned District Session Judge, Sirsa has also stated that the possibility of such acts
could not be ruled out and truth can be only ascertained if the matter is secretly got

219
Court of Special Judge, CBI (Haryana) at Panchkula, Case No. 1853/2013, date of Registration:
27.10.2007, Decided on 25.08.2017.

203
investigated through central agency. Accordingly the High Court of Punjab and
Haryana passed and order at its own motion directing CBI to take up the matter for
investigation. Resultantly, CBI has registered an FIR U/S 376,506 & 509 IPC. During
the further investigation, 18 out of 24 Sadhvis could be traced out and examined and
some of them apprehended danger to their lives if they spoke truth. CBI in its inquiry
has transpired that two of the victim gathered courage and came out to unravel the
misdeeds of Dera Chief. Thus, during the course of investigation their statements have
been recorded under Sections 164 & 161 Cr.PC in which they had deposed about their
sexual harassment & forcible rape against their will & consent. During the trail the
prosecution has examined 15 witnesses who deposed the guilt of accused. The
accused has pleaded that CBI has falsely implicated him in order to malign his
reputation. Further pleaded that he promotes de-addiction of liquor, inspire people
against female foeticide, carries out hundreds of social welfare activities and drug
mafia, anti religious people, political persons and other Dera institutions are against
him and that this case is falsely registered against him in order to defame him and
instant case is part of criminal conspiracy. He further pleaded that he had never raped
any one and since 1990 he is not medically or physically fit to do sex with anyone and
that he is not potent. And the investigation of CBI is partial of the reason that one of
its officers is facing a complaint case against himself. And witnesses have been
induced to make false statement against him. In support defence has examined more
than 30 witnesses. During arguments it was contended that no doubt rape is heinous
offence and has the effect of destroying a women, but at the same time a false
allegation of rape can destroyed the name and reputation of an accused lowering him
in the eyes of his family and public and all these facts must also be kept in mind while
discussing evidence in rape case to strengthen the argument reliance in this regard has
been placed upon Gurpal Sing v. State of Punjab220, P.S. Bhagwat v. State of
Maharashtra,221 it is contended that it may not be wrong that a lady will not put her
character at stake, but it cannot be applied universally and each case has to be
determined on the touch stone of factual matrix therefore and there are number of
instance where charges under Sections 376 and 354 of IPC have been found to be
false. It is also contended that the Court should not act on the solitary evidence of

220
2004 (1) RCR (Criminal) 14.
221
2005 (1) JT 91.

204
prosecutrix as allegation of rape is not supported by any medical evidence or other
circumstance evidence in this case and the Hon‘ble Supreme Court in S.R. Hadbe v.
State of Maharashtra & Another222, has held that the Courts shall be extremely careful
in accepting the sole testimony of prosecutrix when the entire case is improbable and
unlikely to happen. It is further contended that if the evidence of witnesses is found to
be in conflict and in contradiction with other evidence or with the statement already
recorded, then in such a case it cannot be held that prosecution has proved its case
beyond reasonable doubt. It was also contended and argued that the conduct of
Prosecutrix – A in residing in Dera for more than one year after the alleged
occurrences goes against normal human conduct and further conduct of prosecutrix –
B in solemnizing her marriage in Dera premisis and thereafter visiting the Dera and
getting treated her husband in Dera hospital would be against normal human conduct,
thereby creating dent in the story of both prosecutrix.

In the instant case having due regard to the facts and material on record the court has
consider following points for consideration:-

1. Whether the prosecution has produce cogent and reliable evidence to

establish that the accused facing the trial has committed rape upon
prosecutrix ‗A‘ & ‗B‘ at the stated time and places, besides criminally
intimidating both the victims?

2. Whether defense has been able to improbably the prosecution case by

adducing cogent evidence of evidence brought on record?

3. Conclusion.

Scrutinizing the facts and record in hand it was held by the Court that Prosecution/
CBI has been able to establish beyond reasonable doubt guilt of accused Baba
Gurmeet Ram Rahim Singh for committing rape upon prosecutrix on 28/29 .08. 1999
in the area Dera Sacha Sauda, Sirsa and also for criminally intimidating said
prosecutrix and hence accused Baba Gurmeet Ram Rahim is held guilty for
committing offences punishable under Sections 376 and 506 IPC.

222
2006 (10) SCC 92.

205