EVIDENCE OF A RAPE VICTIM

Keeping in view the Indian Society and Indian Conditions, Hon'ble SC in Bharwada Bhoginbhai Hirjibhai V. State of Gujarat, AIR 1983 SC 753 observed, “Rarely will a girl or a woman in India make such false allegations of sexual assault, whether she belongs to the urban or rural society, or, sophisticated, or, not-so sophisticated, or, unsophisticated society. Only very rerely can one conceivably come accross an exception or two and that too possibily from amongst the urban elites. Because:-

  1. A girl or a woman in the tradition bound non-permissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred;

  2. She would be conscious of the danger of being ostracised by the Society or being looked down by the society including by her own family members, relatives, friends, and neighbours;

  3. She would have to brave the whole world;

  4. She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered;

  5. If she is unmarried, she would apprehend that it would be, difficult to secure an alliance with a suitable match from a respectable or an acceptable family;

  6. lt would almost inevitably and almost invariably result in mental torture and suffering to herself;

  7. The tear of being taunted by others will always haunt her;

  8. She would feel extremely embarrassed in relating the incident to others being over powered by feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo;

  9. The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy;

  10. The parents of an unmarried girl as also the husband and members of the husband's family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour;

  11. The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence;

  12. The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent. In view of these factors the victims and their relatives are not too keen to bring the culprit to books.

And when in the face of these factors the crime is brought to light there is a built in assurance that the charge is genuine rather than fabricated. [289 F-H, 290 A-E] 283 2:4. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness.

Just as a witness who has sustained an injury (which is not shown or believed to be self-inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding......”

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State of U.P.  v  Pappu @ Yunus and another, 2005 Cri.L.J. 331

(A)Penal Code (45) of 1860) S.376 Rape – Finding that the prosecutrix was not having good character and was girl of easy virtues – Held, not ground for acquittal of accused.

11. Even assuming that the victim was previously accustomed sexual intercourse, that is not a determinative 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 any 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 or prey for being sexually assaulted by anyone and everyone.

 

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