COVER STORY, Distressing Chronicle
Frontline Volume 30 – Issue 01 :: Jan. 12-25, 2013
On December 17, Additional Sessions Judge-01 (North), Tis Hazari Courts, Delhi, Savita Rao, pronounced an order in a rape case, but it went largely unnoticed amid the angry protests against the brutal gang rape of a girl in a moving bus the previous night. In her order in State vs Tarkeshwar Yadav & Ors, the judge made scathing comments against the government for giving the nod to withdraw prosecution against the accused.
The case was that the accused had attempted to rape his landlady. The judge was not convinced by the prosecution’s suggestion to withdraw the case in the public interest. The judge said: “In the instant case, the court is yet to examine the truthfulness of the case of complainant or the pleas of defence, whereas this application has been moved [by the prosecution] in utter disregard of the sacrosanct duty towards the society that no injustice is done.”
The judge brought on record the copy of the letter written by the Additional Public Prosecutor (APP) addressed to the Director of Prosecution. The letter says that the “allegations [against the accused] are serious in nature. The offence attached to are of moral turpitude, as such it is not a case fit for withdrawal as it will be against the interest of society.”
The judge concluded that the APP had sought the withdrawal of the case, as directed by his higher ups, “contrary to his independent opinion…. [R]emote control seems to be in unseen hands of someone in establishment….” The judge dismissed the application for withdrawal and also directed the Chief Secretary, Delhi, to take action against those who recommended it.
There appear to be only a few judges like Judge Savita Rao in the country. Often there is huge pressure on complainants and victims to compromise. In many cases, the state is incapable of resisting this pressure, and this makes the victims and the judicial system vulnerable. Frontline’s examination of a few rape cases suggests gross negligence by appellate courts in resisting such pressures. In Sajina T. vs State of Kerala (2008), the rape survivor alleged that the investigators were more interested in persuading her to agree to a compromise rather than bring the offenders to book. The High Court, however, rejected her plea for a probe by the Central Bureau of Investigation.
In K. Venkateshwarlu vs State of Andhra Pradesh decided by the Supreme Court on August 17, 2012, Justice Ranjana Prakash Desai and Justice Aftab Alam acquitted an accused, who was a police constable, even though the High Court had found him guilty. In her judgment, Justice Ranjana Desai said the needle of suspicion pointed to the appellant because he was a police constable, and in the small village where the incident took place witnesses could be scared to depose against him. She said: “There are certain circumstances which do raise suspicion about the appellant’s involvement in the crime…. The demeanour of Prosecution Witness-2 [the victim], …the tears in her eyes, her walking out of the court after looking at the appellant, pricks the judicial conscience. But convictions cannot be based on suspicion, conjectures and surmises…. For want of legal evidence, we will have to set aside the appellant’s conviction and sentence. But we make it clear that we are doing so only by giving him benefit of doubt.” Was the Supreme Court declaring its helplessness over the prosecution’s failure to present cogent evidence?
In State of Punjab vs Gurmit Singh (1996), the Supreme Court held that while every latitude should be given to the accused to test the veracity of the rape victim’s version, the court must also ensure that cross-examination is not used to harass or humiliate the victim. “A victim of rape, it must be remembered, has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings, what she had been subjected to, she may be too ashamed and even nervous or confused to speak, and the silence or a confused stray sentence may be wrongly interpreted as ‘discrepancies and contradictions’,” the court observed.
On August 7 last year, in Rai Sandeep@Deepu vs State of NCT of Delhi, the Supreme Court acquitted the gang-rape accused because of prevaricating statements of the victim in implicating the accused. Thus, according to the victim’s original version, the accused had forcible sexual intercourse one after the other. If that was so, the court said, it was hard to believe that there was no other injury on the private parts of the prosecutrix [victim]. The court found evidence on record that there was only a minor abrasion on the right side of the neck, below the jaw. Should rapes without any evidence of injury to the victim be disbelieved?
In Papuria@Rajesh vs State of Rajasthan, decided on March 2, 1995, Justice V. Palshikar of the Rajasthan High Court acquitted the accused because the statement of the victim—a nine-year-old girl whom the trial court found the accused had ravished—had not been corroborated. The judge ignored the medical evidence that there was injury, her hymen had ruptured and there was some blood oozing. Although the vaginal smear did not point to the presence of semen, the doctor had stated that the injury was due to a blunt object. During cross-examination, the doctor admitted that such injury was also possible if one fell on a hard, blunt object. The judge concluded that the benefit of reasonable doubt should go to the accused.
In Vijay Sood vs State of Himachal Pradesh, delivered on April 27, 2009, Justice Surinder Singh of the Himachal Pradesh High Court reversed the trial court’s conviction of the appellant for rape of the victim on many occasions when the victim was a minor. “Except her own self-serving vague statement, there is no other evidence on record to substantiate her allegation that the accused committed sexual intercourse with her many times against her will,” he held. After finding no corroboration from her mother, a prosecution witness, the judge concluded that the victim’s allegations had not been proved. He concluded that the victim’s testimony did not inspire confidence.
Yad Ram vs State of Rajasthan, decided by Justice Shiv Kumar Sharma and Justice G. Singh of the Rajasthan High Court on February 28, 2008, records the trial court’s proceedings. During cross-examination, the victim was asked in what posture she was raped. She was made to demonstrate it on a bench available in the court. While the victim was being cross-examined, the trial court was a silent spectator and did not control effectively the recording of evidence in the court.
These cases suggest that rape jurisprudence has hardly changed over the past two decades and that it suffers from serious attitudinal aberrations involving judges at all levels.
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