Injury To Private Parts Of Victim Not Always Necessary As Evidence To Establish Offence Of Gang-Rape : Allahabad High Court

The High Court said that the absence of injury to the prosecutrix's private parts could be due to the non-employment of force in perpetration of the crime in cases where she is put in fear to an extent that she did not resist the act.

A bench of Justice JJ Munir added that the other possibility could be that the victim being unconscious or semiconscious due to the deleterious effect of an intoxicating substance, like alcohol or any other drug, due to which she is unable to offer resistance.

Observing thus, the court upheld the conviction of a rape accused. The bench, however, set aside the conviction of three of his co-accused by giving them a benefit of doubt.

The Bench noted that the prosecutrix was consistent about her account of being forced to imbibe alcohol and then raped by four men through the night.

The bench added that her account was corroborated by circumstance and recovery and the same could not be disbelieved merely because her internal medical examination did not reveal genital injury, particularly when she was semiconscious due to the stupefying effect of alcohol.

Briefly put, an FIR was lodged on January 13, 2015 wherein the 15 year old victim alleged gang-rape by four men, including two named and two unnamed offenders, after she was forced to consume alcohol.

The Additional Sessions Judge/ F.T.C., Mahoba, vide judgment and order dated March 2, 2017, convicted Irfan (conviction now upheld by HC), Irfan @ Golu, Ritesh @ Shanu and Manvendra @ Kallu under Section 376-D IPC and sentenced each of them to suffer rigorous imprisonment for a term of 20 years.

Challenging their conviction, the appellant-accused moved the HC wherein they primarily argued that it was a case of false implication.

They also pointed towards several lacunas in the procession's case including the argument that when the victim had alleged confided the names of all the four accused with her mother, it was not understandable why the FIR was lodged against two nominated men alone, leaving the identity of two others to uncertainty.

It was also submitted that the dock identification of the two appellants by the prosecutrix was done after 7-8 months of the occurrence, which is absolutely unreliable.

It was also contended that initially, the victim had disclosed only assault by accused Irfan @ Golu, however, this was followed by an FIR the next evening alleging gang-rape by four men.

On the other hand, Additional Government Advocate Shashi Shekhar Tiwari, supported the impugned judgment as he strongly argued that the prosecutrix had remained consistent in her testimony about the crime and the manner in which it was committed.

Having heard the parties for both sides, the bench, at the outset, rejected the appellants' case that the prosecution case was liable to be discredited as the prosecutrix had changed the case from one of simple assault into gang-rape.

The bench noted that a rape victim can behave very differently, according to the socioeconomic background, the society where she stays, the kind of village, town or city she lives in, and many other similar and relevant factors.

“The prosecutrix's father is a Class-IV employee working with the Block Development Office and her mother, a midday meal worker. She herself is a student of B.A. Final Year at the Government Girls College, Charkhari. Charkhari is a small town, governed by a Nagar Palika. In these circumstances, for the prosecutrix or her parents to report with promptitude the gruesome offence of gang-rape, is a tall order,” the Court reasoned.

The court added that a day's time for the prosecutrix and her parents to firm up and report to the police was the result of an inhibitive behaviour, in the circumstances, that in no manner suggest falsehood for the prosecution.

The Court said that her testimony was consistent and dependable and one that inspired confidence. The bench, however, was of the view that the only accused who had been unmistakably identified by the prosecutrix was Irfan @ Golu.

About the other appellants, the Court found their identification to be not free from doubt and hence, the bench opined that they deserved benefit of doubt.

However, the Court said that there was no impediment in holding the appellant (Irfan @ Golu) alone, whose identity has been well established as one of the and connected matters perpetrators, guilty of the offence of gang-rape.

“This is so because the involvement of four offenders is also well established, but their identity is the subject of a reasonable doubt that must enure to their benefit,” the Court held.

Regarding the absence of injury on victim's body, the Court said that this fact was clearly attributable to the fact that she was semiconscious and under the stupefying effect of the alcohol that she was forced to imbibe by the offenders.

In this regard, the court referred to the Supreme Court's recent ruling in the case of Raju alias Umakant v. State of M.P, wherein, in the facts and circumstances of that case, it was observed by the top court that even if no other injury other than the one on the lip of the victim was present, it did not mean that sexual assault was not committed agajsnt her.

Referring to the facts of the present case, the High Court observed thus:

“She was in a semiconscious state and may not be trusted with her identification of those offenders she knew not beforehand, but that does not mean that her account of suffering the gruesome crime is to be disbelieved altogether, merely because there was no injury to her private parts.”

In the result, the Criminal Appeal qua appellants, Irfan, Ritesh @ Shanu and Manvendra @ Kallu was allowed and they were acquitted, granting them the benefit of doubt.

However, the appeal by the appellant (Irfan @ Golu) was dismissed and his conviction and sentence by the Trial Court was affirmed.