SC: Immoral character of a woman doesn’t entitle anyone to rape her.

The Hon’ble Supreme Court, today i.e. on 30th October 2018, in the matter of State (Govt. of NCT of Delhi) v. Pankaj Chaudhary and others while commenting on the ambit of Perjury & Appellate authority’s powers w.r.t additional evidence, also held that an Immoral character of a woman does not give any right to anyone to commit rape on her.

Observations of the Hon’ble Apex Court in regard to Rape

In any event, absence of external injuries does not tantamount to consent nor does it discredit the version of prosecutrix.  (Para 14)

Even if the allegations of the accused that the prosecutrix is of immoral character are taken to be correct, the same does not give any right to the accused persons to commit rape on her against her consent.  (Para 22)

(Para 22) Even a woman of easy virtue is entitled to privacy and it is not open to any person to violate her and she is equally entitled to protection of law. Further, the evidence of such a woman cannot be thrown overboard merely because she is a woman of easy virtue.  (State of Maharashtra and Another v. Madhurkar Narayan Mardikar (1991) 1 SCC 57)

Even assuming that the prosecutrix was of easy virtue, she has a right of refuse to submit herself to sexual intercourse to anyone. (Para 43)

Observations of the Hon’ble Apex Court in regard to Evidence

The power conferred under Section 391 Cr.P.C. is to be exercised with great care and caution. In dealing with any appeal, the appellate court can refer to the additional evidence only if the same has been recorded as provided under Section 391 Cr.P.C. Any material produced before the appellate court to fill-up the gaps by either side cannot be considered by the appellate court; more so, to reverse the judgment of the trial court.  (Para 21)

Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference like the victim being a woman of ‘loose moral character” is permissible to be drawn from that circumstance alone. A woman of easy virtue also could not be raped by a person for that reason.  (Para 23)

(Para 24) Conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence.(Vishnu alias Undrya v. State of Maharashtra (2006) 1 SCC 283).

(Para 24) There is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the ‘probabilities factor’ does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. (State v. N.K. The accused (2000) 5 SCC 30)

Observations of the Hon’ble Apex Court in regard to Perjury

The object of Section 340 Cr.P.C. is to ascertain whether any offence affecting administration of justice has been committed in relation to any document produced or evidence given in court during the time when the document or evidence was in custodian legis and whether it is also expedient in the interest of justice to take such action as required under Section 340 Cr.P.C. (Para 37)

Before directing the prosecution to be initiated under Section 195 Cr.P.C., the court has to follow the procedure under Section 340 Cr.P.C. and record a finding that“it is expedient in the interest of justice……..”. Though wide discretion is given to court under Section 340 Cr.P.C., the same has to be exercised with care and caution. To initiate prosecution under Section 195 Cr.P.C too readily that too against the police officials who were conducting the investigation may not be a correct approach.  (Para 38) 

Any disparaging remarks and direction to initiate departmental action/prosecution against the persons whose conduct comes into consideration before the court would have serious impact on their official career. (Para 35)

(Para 39) There are two preconditions for initiating proceedings under Section 340 Cr. P.C. :

  1. (i)  materials produced before the court must make out a prima-facie case for a complaint for the purpose of inquiry into an offence referred to in clause (b)(i) of sub-section (1) of Section 195 Cr.P.C. and
  2. (ii)  it is expedient in the interests of justice that an inquiry should be made into the alleged offence.

Prosecution for perjury be sanctioned by the courts only in those cases where perjury appears to be deliberate and that prosecution ought to be ordered where it would be expedient in the interest of justice to punish the delinquent and not merely because there is some inaccuracy in the statement. (Para 41)

Copy of the judgement: Judgement 30-Oct-2018

-Tushar Kaushik

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