Absence Of Injuries On Victim No Ground To Infer Her 'Consent': SC Upholds Conviction In 35 Year Old Gang Rape Case

The Supreme Court, while upholding the conviction of accused in a 35 year old gang rape case, observed that the absence of injuries on the person of the prosecutrix is by itself no ground to infer consent on the part of the prosecutrix.

The Court was deciding an appeal against the judgment of the Himachal Pradesh High Court by which the accused persons were convicted.

The two-Judge Bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan said, “In the present case, while appreciating the evidence adduced by the prosecution, the statements of the three accused that they maintained a physical relationship with the prosecutrix by paying her money will have to be considered. Dr. Shashi Thakur (PW-4), who had examined the victim, noted inflammation in the private parts of the victim. In the cross-examination, PW-4 opined that it is not necessary that in a case of forcible sexual intercourse, an injury should be there on the body of the victim. Absence of injuries on the person of the prosecutrix is by itself no ground to infer consent on the part of the prosecutrix.”

AOR K. Sarada Devi appeared for the appellant while Senior Advocate Suryanarayana Singh appeared for the respondents.

In this case, the respondents were convicted by the High Court for the offence punishable under clause (g) of sub-section (2) of Section 376 of the Indian Penal Code, 1860 (IPC). They were sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 50,000/- each. The alleged incident was of July 1989 and six accused were tried before the Sessions Court. The Trial Court acquitted the accused on the ground that in the absence of any corroborating evidence of any struggle on the part of the prosecutrix or any corroborating injury on the person of the accused, the defence of the accused that the sexual intercourse was with the consent, cannot be ruled out. The appellant–the State, appealed against the order of acquittal and the High Court set aside the judgment of the Sessions Court and remanded the case to the Sessions Court with a direction to try the accused for the offence of gang rape.

After the order of remand, the case was tried only against five accused as one of them died. The prosecution adopted the evidence recorded before remand, and even the accused adopted their cross-examination. The Sessions Court again passed an order of acquittal and the High Court interfered in an appeal preferred by the State. It converted the acquittal of the accused into a conviction for the offence punishable under Section 376(2)(g) of the IPC. Criminal Appeal was preferred by the State after being aggrieved by that part of the judgment, by which the accused were let off on the sentence of imprisonment for three years which is less than the minimum sentence of ten years as provided under Section 376(2).

The Supreme Court after hearing the contentions of the counsel noted, “… the Court had the power, for adequate reasons mentioned in the judgment, to impose a sentence of imprisonment of either description for a term of less than ten years. We have perused the sentencing part of the impugned judgment of the High Court.”

The Court further noted that what was in the back of the mind of the judges of the High Court was that they were dealing with an incident that had taken place twenty-eight years back, and, in the meantime, the accused and their families had moved ahead in life and therefore, the High Court was of the view that there were adequate reasons which warranted the exercise of powers under the proviso.

“In the facts of the case, enhancement in sentence is not justified nearly 35 years after the incident. … Therefore, we see no merit in the appeal preferred by the State and the appeal preferred by the accused Vijay. Perhaps, except for the accused Vijay, others must have undergone the sentence of three years. In his appeal, Accused-Vijay was granted bail by the order dated 7th May 2018. He has not undergone the sentence of three years. Considering the gravity of the offence, he cannot be shown further leniency. Therefore, the accused, Vijay, must undergo the remaining sentence”, it said.

Accordingly, the Apex Court dismissed the appeals and granted one month time to the accused to surrender before the Trial Court to undergo the remaining sentence.

Cause Title- State of Himachal Pradesh v. Raghubir Singh & Ors. (Neutral Citation: 2024 INSC 421)

Appearance:

Appellant: AOR K. Sarada Devi, Advocates R.Vijay Nandan Reddy, V.krishna Swaroop, AOR Ketan Paul, Advocates Shubhi Pandey, and Chakshu Purohit.

Respondents: Senior Advocate Suryanarayana Singh, AORs Ketan Paul, and Naresh Kumar.

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