While observing that an old or torn hymen cannot give the benefit of doubt in rape case if the testimony of victim is reliable, the Allahabad high court upheld the 1983 conviction and three years’ sentence of an accused of rape in a case dating back to 1982.
The high court also clarified that rape is a legal term and not a medical term. The bench of Justice Santosh Rai clarified that a hymen may be torn due to different factors such as sports, cycling, gymnastics, horse-riding, extraneous physical labour or accidental injury etc.
The court further noted that some individuals are born with a perforated or absent hymen, while in some others, it is highly elastic and hence medical findings of this nature cannot override a victim’s credible statement.
The accused, Rakesh, had moved the high court challenging his conviction and the 3-year sentence awarded by the additional sessions judge, Allahabad, in May 1983. As per the prosecution, the 15-year-old survivor had gone to ease herself in Kachhar area across a local canal in her village when the accused Rakesh and a co-accused intercepted and raped her.
They also assaulted her with she offered resistance. The trial court convicted the accused on the survivor’s oral testimony which was corroborated by the medical report prepared the same day. The medical report indicated six distinct injuries, including abrasions, a linear scratch and contusions on her body.
The counsel for the accused submitted before the high court that the medical evidence pointed towards the survivor’s old torn hymen, which indicated that she was habituated to physical relationships
Rejecting the argument, the high court observed: “If the hymen was old torn, an accused cannot be granted benefit of doubt solely on the aforesaid ground, whereas the statement of victim regarding committing rape is wholly reliable. Rape is a legal term not medical term. Thus, on the basis of opinion of doctor that hymen was old torn, a specific finding cannot be drawn that accused appellant has not committed rape with the victim.”
The court also observed that rape is generally committed in a secret place, making it unlikely to find independent eyewitnesses. The court said the testimony of a prosecutrix stands at par with that of a normal or injured witness.
In this regard, the high court relied on the Supreme Court’s judgment in Ganga Singh Vs. State of MP 2013, wherein it was held that a victim’s evidence needs no corroboration if it inspires confidence and appears natural and truthful. In the present case, the court found the survivor’s statement regarding the commission of rape to be wholly reliable as it was corroborated by the medical evidence, it said.
However, while upholding the conviction, the high court took serious note of the trial court’s mishandling of sentencing in this case. Though the lower court had convicted the appellant under section 376 (rape) of Indian Penal Code (IPC), it awarded a lenient sentence of only three years’ rigorous imprisonment, with no fine imposed.
The high court said the trial court committed a manifest error of law by imposing a sentence well below the statutory minimum of seven years without recording any adequate and special reasons, which was mandatorily required under the law, as it stood in 1983.
The high court also pointed out another grave illegality of the trial court as it failed to impose a fine, which is an integral part and fundamental aspect of the punishment in cases of sexual offences.
However, the appellant’s counsel requested that the accused be released on probation, as he was now over 60 years old, suffers from various ailments, has no previous criminal history, and the present criminal appeal has been pending since 1983.
The high court, however, refused to grant him the benefit of probation, as it noted that doing so in case of a rape conviction would send a wrong message to the society and dilute the deterrence of criminal law. The court upheld the trial court’s conviction and directed the accused to pay a mandatory fine of ₹50,000 to be paid as compensation to the survivor or her legal representatives within one month.
If there is a default of payment, the accused will have to undergo an additional six months of rigorous imprisonment, the court said in its June 23 order. The accused, who is currently on bail, has also been directed to surrender before the trial court within 10 days to serve the remaining sentence.
