In cases of defective investigation by police or examination by doctors, Court has to circumspect by evaluating evidence - It would be like to play in hands of defective investigation by Police or examination by doctor


V.D. Gyani and D. Biswas, JJ. 
Crl. Appeal No. 124 of 1994. D/d. 

Nagen Bharal and others Versus State of Assam

J.M. Choudhury, Advocate, for the appellants.
D. Goswami, PP, for the respondent.

For more detail about this judgment,
please contact our helpline number : 094177-67177
or visit our contact us page.

Cases referred :-
Sheikh Zakir v. State of Bihar, AIR 1983 SC 911.
State of Andhra Pradesh v. Gangula Satya Murthy, (1997) 1 SCC 272.
State of Punjab v. Gurmit Singh, AIR 1996 SC 1393 : (1996) 2 SCC 384.
Bharwad Bhoginbhai v. State of Gujarat, AIR 1983 SC 753.
Pramod Mohto v. State of Bihar, AIR 1989 SC 1475.
Delhi Domestic Women Forum v. Union of India, 1995 (1) SCC 14.
Narayanamma v. State of Karnataka, (1994) 5 SCC 728.

Gauhati High Court, Ahmedabad Judgments

V.D. Gyani, J. - This appeal arises out of judgment and order dated 26.7.1994 passed by Addl. Sessions Judge, Jorhat in Sessions Case No. 52(J-J) of 1991 thereby holding the appellant guilty of offence punishable under Section 376 (2),
IPC and sentencing them to undergo imprisonment for life with fine of Rs. 2,000/- each or in default of payment of fine to suffer RI for one year.
2. Prosecution case stated in brief was that on 24.11.1989 prosecutrix Padmabati was returning home in village Thakurbari from Sukansuti village along with her younger brother Ramesh. It was around 2 p.m. she was hardly about 1/2 mile away from village Sukansuti when her younger brother Ramesh feeling motion, went to answer nature's call. She took him slightly away from the road in the jungle and kept waiting for her brother at a short distance away. While she was so waiting accused-appellant No. 1, Nagen who was having a kukri approached her and asked where she was bound for, while so asking he held her and dragged her, she shouted 'marilu', 'marilu'. But who was there in jungle to respond to her call, it was a cry in wilderness. She was slapped and held by neck and attempted to be strangulated bitten on the cheek, accused appellant-Chandradhar also bit her. All the three accused one after another raped her, Nagen was the first followed by accused-appellant Bogai and lastly it was Chandradhar Dutta who raped her. She sustained injury on her breast, face and also her private part. As if it was not enough, accused Bogai again dragged her and beat her. It is alleged that in the meantime one Dharmeswar came followed by more villagers. She was without any cloth on her body. Her brother Ramesh who had gone to answer the nature's call had seen the accused dragging his sister in the jungle, he also heard her cries and saw the other accused coming there. Seeing all this, he ran to his house and narrated the entire story to his brother, returning to the place of occurrence with one Kalai Sarma only to find his sister weeping holding a tree. The accused persons were not to be found there. All of them came to the police station where a report was lodged, on the basis of which a case under Section 376, IPC was registered. During the course of investigation the prosecutrix was sent for medical examination. She was examined by PW 11, Dr. Kamal Morang, the Medical Officer at Bangaon State Dispensary who found the following injuries:
    "Teeth mark on both sides of the cheek and both sides of the breast, semen on the perineum, semen in the vaginal canal".
On completion of investigation the accused were charged and tried for the above offence, their defence at the time of trial as can be gathered from the statements under Section 161, Cr PC was one of the complete denial of the prosecution case. The trial Court however found them guilty and sentenced them as noted above, hence this appeal.
3. Mr. J.M. Choudhury, learned counsel appearing for the appellants has raised the following points :
    That the evidence on record does not support appellants' conviction as recorded by the trial Court, the medical evidence is discrepant and does not afford any corroboration, the teeth mark and bruises as found on the body of the victim are not fully described. No reason is assigned for the opinion given by the doctor. The report from the State Forensic Science Laboratory and the expert evidence of PW 13 Smt. Arunima Baruah demolishes the prosecution case inasmuch as spermatozoa was detected from the wearing apparels sent for chemical examination. The evidence of the prosecutrix, PW 3, and her brother, PW 8, suffers from inherent contradiction rendering their testimony wholly unreliable for sustaining conviction as recorded by the trial Court.
4. Mr. D. Goswami, learned Public Prosecutor appearing for the respondent-State on the other hand maintained that this is one such case where the evidence of prosecutrix itself is sufficient to sustain the conviction recorded by the trial Court, no corroboration as such is needed and despite the discrepancies pointed out by the learned counsel for the appellants there is ample corroboration available on record to sustain the conviction.
5. Before proceeding any further, it would not be out of place to disclose and deal with the authorities relied upon by learned counsel for the appellants. The first case relied upon by the learned counsel is Sheikh Zakir v. State of Bihar, AIR 1983 SC 911. It was a case where the prosecutrix came from a backward community and there was no medical report available, yet the Apex Court held that non-production of medical report is not of much consequence if other evidence is believable. On the point of corroboration the Supreme Court referring to its earlier judgment as reported in AIR 1952 SC 54, AIR 1972 SC 2661, AIR 1980 SC 1252 held -
    "Hence there must be an indication in the course of the judgment that the Judge had this rule in his mind when he prepared the judgment and if in a given case the Judge finds that there is no need for such corroboration he should give reasons for dispensing with the necessity for such corroboration. But if a conviction is based on the evidence of a prosecutrix without any corroboration it will not be illegal on that sole ground. In the case of a grown-up and married woman it is always safe to insist on such corroboration. Wherever corroboration is necessary it should be from an independent source but it is not necessary that every part of the evidence of the victim should be confirmed in every detail by independent evidence. Such corroboration can be sought from either direct evidence or circumstantial evidence or from both."
6. In the instant case, the medical report is very much available. Although a grievance is made by the learned counsel that no reasons are assigned by the doctor in his opinion. Really speaking so far external marks of injuries are concerned, no reasons are required to be assigned. It is merely a description of the injuries as found by the doctor. The teeth mark as found on the cheeks and breast speaks volumes for itself. If has to be viewed in totality of the circumstances and not in isolation. The Supreme Court in one of its recent judgments as reported in State of Andhra Pradesh v. Gangula Satya Murthy, (1997) 1 SCC 272, has pointed out that -
    "The Courts are expected to show great responsibility while trying an accused on charges of rape. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of late crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres we show little or no concern for her honour. It is a sad reflection and it must be emphasised that the Courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in the totality of the background of the entire case and not in isolation."
7. Learned counsel for the appellants further relied on State of Punjab v. Gurmit Singh, AIR 1996 SC 1393 : (1996) 2 SCC 384. Even in this case the Supreme Court has categorically held that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. Although learned counsel has insisted for reasons because of some alleged infirmities of the evidence of doctors, but even the alleged infirmities are not there so far as the external marks of injuries are concerned. The mere fact that no spermatozoa was found by PW 13, the medical examiner while examining the wearing apparels of the prosecutrix does not by itself wash out the medical evidence. After all the mortality of sperms under the vagina is 1$Eroman {1} over {2} to 2 hours and if the wearing apparels are examined much long after by the incident, that hardly makes any difference.
8. The myth of corroboration has been exploded by the Supreme Court in Bharwad Bhoginbhai v. State of Gujarat, AIR 1983 SC 753. The learned counsel has relied on 1983 Supreme Court page 911 (supra), the same volume contains Bhoginbhai's case (supra) and the Supreme Court held -
    "In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyse the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focused on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social moves, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turn key basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. The solution of problems, cannot therefore be identical. It is conceivable in the western society that a female may level false accusation as regards sexual molestation against a male for several reasons such as :
    (1) The female may be a 'gold digger' and may well have an economic motive - to extract money by holding out the gun of prosecution or public exposure.
    (2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by fantasizing or imagining a situation where she is desired, wanted, and chased by males.
    (3) She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account.
    (4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta.
    (5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self-importance in the context of her inferiority complex.
    (6) She may do so on account of jealousy.
    (7) She may do so to win sympathy of others.
    (8) She may do so upon being repulsed.
9. Now coming to the discrepancies and so contradictions in the evidence of prosecutrix, PW 3, and her younger brother, hardly aged 10/12 years again one can refer to Bhoginbhai's case where the Supreme Court held that overmuch importance cannot be attached with the minor discre- pancies giving the following reasons. The reasons are obvious :
    (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
    (2) Ordinarily, it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
    (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
    (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
    (5) In regard to exact time of an incident or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
    (6) Ordinarily a witness cannot be expected of recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused or mixed up when interrogated later on.
    (7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross- examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious minds of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
10. In the light of the principles enunciated by the Supreme Court, as noted above, if one reads the evidence of the prosecutrix PW 3, her younger brother PW 8 and elder brother Kusai Sharma, PW 2 (who rushed to the place of occurrence on being informed by younger brother Ramesh PW 8), really speaking there is no such contradiction, as suggested by the learned counsel. It is nothing but an attempt at overmagnifying the so-called contradictions, taking a microscopic view of statements made by three witnesses. There are bound to be some variation in narration of events which is but natural. This variation does not detract them from truth. Relevant pieces from their statements is extracted below for ready reference. (It may be noted that the deposition is in Assamese and I am going by the translation version as submitted by the learned counsel for the appellant).
    "I know the accused Nagen, Bogai and Chandra respectively. Occurrence took place on 24.11.1989. It was in the month of "Aghun" and occurrence took place at about 2 p.m. Occurrence took place in the midst of a jungle which is situated at a distance of half a mile from village Sukansuti. At that time, I was coming from the village Sukansuti. At that time my younger brother Ramesh who was coming with me told me that he would go for a nature's call. And accordingly I took him inside the jungle. While I was waiting on the road accused Nagen came and enquired me as to where I went. I replied. He caught hold of my hair and dragged me. I shouted 'marilu, marilu'. Accused Nagen slapped and assaulted me with fists. When I shouted he pressed my neck and started cutting with a khukri. He bit me causing bleeding injury on my face and also trampled with his legs. Then Chandra Dutta assaulted me and removed clothes. Thereafter three accused persons raped me. First Nagen Bharali, thereafter Bogai and Chandra raped me. I sustained injuries on my breast, face and genital parts. After committing the rape Bogai came and lifted me to another place where he again bit me causing bleeding injuries."
    x x x
    My injuries were examined by the doctor. It is not a fact that I did not tell the police about the bite marks and also of the assault on me. Accused Nagen made me naked while Negan assaulted and committed rape. I was in sense. Thereafter, Chandra raped me. In continued shouting. I sustained injuries when Chandra and Bogai assaulted me. Bogai felled me down on the jungle full of thorns by kicking. It is not a fact that I did not tell to the police about the assaulted to me by the accused persons. Dharmeswar came and met the accused persons. I did not tell the police that Dharmeswar came and found me in the place of occurrence. While Dharmeshwar was in the jungle, village people came and met me. While I came out naked from the jungle one person named Dayaram met me. I told before police that when Bogai Bharali left me I came wrapping clothes over my body, I saw Dayaram Das and told him about the occurrence."
    PW 8 :
    "I know the accused persons. I know Padmabati. She is my elder sister. While coming back from village Sukansuti along with my sister Padmabati at noon in between 12 and 1 O'clock, while I was passing accused Nagen (identified) dragged Padmabati towards the jungle. My sister started shouting 'marilu, marilu', as I looked back I saw other two accused persons also came and all the three accused persons dragged my sister. Accused Nagen threatened me showing a khukri. Being frightened I ran towards my residence. On the way I met Kulai Sarma. Kulai PW 2 asked me as to what had happened. I told him that the accused persons have lifted my sister towards the jungle. I came to my residence and told the occurrence to my elder brothers. Both the elder brothers, myself and Kulai Sarma came to the place of occurrence going there we saw that elder sister was crying catching hold of a tree. We did not see the accused persons. Thereafter, we all came to the thana. My sister lodged the ejahar in the thana. When the police officer interrogated I told the same statement as deposed today."
    x x x
    After crossing the river Tuni at about 1 k.m. away the jungle is situated. After crossing the jungle an open field is to be crossed and thereafter Sukansuti village is reached, occurrence took place at the time of harvesting sali paddy and surrounding the jungle there were standing paddy in the fields. The field near the jungles is used by our village people for grazing the cow. Having left my sister I met one adult boy on the road but I did not tell him about the occurrence he was also a young boy. Tuni river is to be crossed by a boat I did not know the boatman. I did not tell about the occurrence to boatman. I met Kulai Sarma of our village on my way. Having informed at the village we could not reach the jungle (Kathani). At that time my sister having crossed the Tuni river she was crying catching a tree situated towards our village. My sister was wearing clothes. She had no sandal in her foot. My sister received pain in the neck. Though my sister was walking, two persons were catching hold of her. She could not talk properly as she had pain in the neck. Her cheeks were swelling. It is not a fact that I did not meet Kulai Sarma and talk to him.
    It is not a fact that while I deposed before the police I told that going house I told about the occurrence to my elder sister Phuleswari not to Kulai Sarma. Near the jungle I went inside for the purpose of nature's call and my sister was waiting on the road. The place where I had nature's call was not visible from where my sister was waiting. But, I heard shouting of my sister. Having heard the shouts when I wanted to go near my sister I was shown the khukri as such I could not go near her. It is not a fact that accused Nagen Bharali showed me khukri. Police did not show me the persons who threatened me with khukri. I told police about the person who threatened me with the khukri. While I deposed statement before the police I told that I did not know the names and addresses of the persons who prevented me. It is not a fact that there was no such occurrence as I have narrated. It is not a fact that accused Nagen Bharali took my sister by lifting.
    Nagen and Bogai are residents of Sukanpukhuri and Chandradhar resident of another village. I did not know Nagen and Bogai prior to the occurrence. We went to the residence of Bogiram of Sukanpukhuri. It is not a fact that I deposed as tutored by my sister."
    PW 2.
    "...The occurrence took place during day time. Ramesh came crying and said that our sister is tied and dragged inside a jungle by three boys. After getting this news, myself Padma Das, Dutta Das all together went to the place of occurrence and there we saw Padmabati in a half-naked position and lying unconscious. Finding no body at the place of occurrence we took injured Padmabati to the thana and at night the Police arrested the three accused persons. Later, we came to know from Padma that the three accused persons had raped her."
    x x x
    "I found Padmabati's clothes in a torn state. And found her in an unconscious state. It is not a fact that I did not find Padmabati at the place of occurrence. It is not a fact that I stated before the Police that I saw Padmabati coming crying, from Tunighat and she was crying and I found her in that state. Padmabati regained' consciousness after reaching the thana. The day after the occurrence, Padmabati narrated about the incident. After regaining consciousness, in the thana, she gave her statement before the Police. When Padmabati narrated her incident, I was not there. It is not a fact that Padmabati did not tell me about the incident. After the police arrested Padmabati's accused persons, they were produced in the Court, the next day."
11. Read and re-read the above statements, where does one find any contra- diction? Their evidence is consistent and convincing on strictest test.
12. A reference was made to Modi's Medical Jurisprudence and Toxicology, page 254, 21st Edition, to point out how discrepant the medical examination report is. It is written on a quartersheet. There is no reference to any requisition being made by police for medical examination. Ordinarily such reports are submitted in a prescribed form which contains all necessary information. We have no hesitation in saying that the report as submitted is perfunctory but this lapse on the part of the medical officer, does not rob the victim of truthfulness of her version. There is no room for perfunctoriness even while being prompt in submitting such medical examination reports, more so in medico-legal cases. The doctors entrusted with medical examination must always realise and bear in mind the importance of such reports, which much be submitted with full sense of responsibility to avoid any criticism. In the instant case, so far as the finding as noted in the report are concerned, they are correctly noted depicting the true state of affairs. It is the form of the report which is found fault with.
13. The evidence of PW 11 has been criticised for his omissions to state certain facts in his report such as requisition for medical examination by police, the shape and size of teeth marks (the number of teeth) found on cheek and breast of the prosecutrix, non-mention of presence of nurse Nilima at the time of examination of the prosecutrix. Non-mention of presence of the nurse in the examination report has hardly any effect on the evidentiary value of the report, the fact remains that nurse by name Nilima was present at the time of examination of the prosecutrix as deposed to by PW 11. It is a precautionary measure that a male doctor while examining a female has to exercise. The report itself is produced hereunder :
    "Name : Smt. Padmabati Das, age about 18 years, d/o Lt. Thanuram Das, Thakurbari Gaon.
    Date : 24.11.1989. Date of examination 24.11.1989.
    (a) Teeth marks :
    (i) on both sides of cheeks
      (ii) on both the breasts.
        (b) Semen on the perineum
          (c) Semen in the vaginal canal.
          A case of rape."
        14. PW 11 in his evidence has testified to the injuries as found by him in the following words :
          "I examined Shrimati Padmabati Das, age 18 years produced by Bongaon Police.
          Teeth marks on both sides of the cheek and both sides of the breast, semen on the perineum. Semen in the vaginal canal.
          In my opinion, it is a case of rape and I find it in my findings."
        15. Although the whole cross-examination of PW 11 is directed against omissions in the report, surprisingly enough, it was not tendered in evidence and anybody bothered, neither the defence, nor the PP and not even the trial Court thought of the report being exhibited. Every question in cross-examination is based on this report and the omissions as indicated above have been brought on record. It was the duty of the trial Court to have seen to it that the document is duly tendered in evidence confronted to the witness and exhibited as such. Although this omission on the part of Court does not have any adverse effect on the case as a whole, nonetheless, the Court should be more vigilant, in controlling the proceedings and recording evidence.
        16. Relying on the statements as made by PW 11 that he did not find any injury to the vagina, learned counsel elaborated and argued that in a case of a gang rape, it was a biological impossibility that 3 persons having raped an unmarried girl, yet no injury as such was found. PW 11 is categorical in his statement that he had found semen in the vaginal canal and perineum. This finding clearly goes to show that she was ravished and raped.
        17. A similar, point was raised before the Supreme Court in Pramod Mohto v. State of Bihar, AIR 1989 SC 1475. It was a case where four persons committed rape on the victim Jaiboon Nisa, an unmarried girl of 15/16 years. Thereafter, rape was attempted on Roshanara but on her entreating him that she may be spared as she was pRegulation nt she was released and thereafter, the four persons committed rape on Sakina Khatoon, a sister-in-law of Roshanara. The victims were examined by Dr. Abha Singh, who could not find visible symptoms of sexual assault on the married woman Sakina Khatoon and Maimum Nisa but she found tell-tale marks and injuries on the unmarried girl Jaiboon Nisa which clearly showed that she had been subjected to rape. Several contentions were raised before the Supreme Court and one of the contentions was that the appellant had committed rape in succession on plurality of victims was a biological impossibility and hence the prosecution case was wholly unworthy of acceptance. Dealing with the contention the Supreme Court held :
          "Insofar as the last contention is concerned, we found that the defence has not been able to explain how else PW 1 Jaiboon Nisa, an unmarried girl aged about 15 or 16 years, could have come to sustain the tell-tale marks and injuries of rape on her person as were found by PW 1 Dr. Abha Singh unless she had been raped by the appellants. Once it is established that the appellants had acted in concert and entered the house of the victims and thereafter raped PW 1 Jaiboon Nisa, then all of them would be guilty under Section 376, IPC in terms of Explanation 1 to Clause (g) of sub-section (2) of Section 376, IPC irrespective of whether she had been raped by one or more of them. The Explanation in question reads as under :
          "Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section."
          This Explanation has been introduced by the Legislature with a view to effectively deal with the growing menace of gang rape. In such circumstances, it is not necessary that the prosecution should adduce clinching proof of a completed act of rape by each one of the accused on the victim or on each one of the victims where there are more than one in order to find the accused guilty of gang rape and convict them under Section 376 IPC."
        18. The mere fact that the doctor, PW 11, did not notice any injuries to the vagina, does not by itself necessarily lead to the conclusion that she was not raped by 3 accused appellants. It could well be attributable to a lapse on the part of the doctor, PW 11. As already noted above there are several lapses on his part.
        19. Noting the defects in the present system where the complainants, victims of such case are roughly handled and even not such an attention as needed and warranted are provided, the Supreme Court has recommended assistance to be provided to the complainants in the Police Station since the victim of sexual assault might well be in a distress state of mind more so upon her arrival at the police Station.
          [See Delhi Domestic Women Forum v. Union of India, 1996 (1) SCC 14].
        20. Much has been said about non-examination of one Dharmeswar, who was the first man to arrive at the scene of occurrence, and had lifted the prosecutrix. He was followed by other village-folk. His examination would have only added to some more res-gestae evidence. It does not make any difference so far as the prosecutrix version is concerned.
        21. The evidence of PW 3 the victim of sexual assault with teeth marks of injuries on her cheek and breast which by no stretch of imagination could be self-inflicted is by itself good evidence. The evidence of such a victim of rape as has been pointed out in State of Punjab v. Gurmit Singh, (Supra) is entitled to great weightage, absence of corroboration notwithstanding. The corro- borative evidence is not an imperative component of judicial credence in every case of rape.
        22. The Supreme Court has in one of its very recent judgments as reported in State of Andhra Pradesh v. G. Satya Murthy, (supra) has pointed out -
          "The Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of late crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and it must be emphasised that the Court must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in the totality of the background of the entire case and not in isolation."
        23. The evidence of PW 3 can be unhesitatingly accepted even without seeking for any corroboration. A rustic girl, who has been raped by the appellants has given a very natural version of the whole incident, fully supported by her younger brother. The argument that no aberration or scratch are found on her body is of no avail to the appellants as already noted above, the medical examination of the prosecutrix was highly perfunctory.
        24. In Narayanamma v. State of Karnataka, (1994) 5 SCC 728, the Supreme Court had occasion to consider the question of absence of sperms and in that context had observed that it could as well be due to faulty taking of smear or various other factors. Similarly if in the instant case the doctor failed to notice and note, the scratch or aberration, it could as well be due to faulty examination. The accused-appellants cannot take any advantage of the perfunctory nature of examination and reporting. In such cases of defective investigation or examination by the doctors concerned, the Court has to circumspect by evaluating the evidence, but it would not be right to put a premium on such defects as it would tantamount to play in the hands of defective investigation by Police or examination by doctor.
        25. It is rather unfortunate that in recent times, there has been an increase in violence against women causing serious concern. Rape does indeed pose a series of problems for the criminal justice system. There are cries for harshest penalties, but often times such cries eclipse the real plight of the victim. Rape is an experience which shakes the foundations of the lives of the victims. For many its effect is a long-term one, impairing their capacity for personal relationships, altering their behaviour and values and generating endless fear. In addition to the trauma of the rape itself, victims have had to suffer further agony during legal proceedings.
        26. In view of the foregoing discussions, this appeal is liable to be dismissed. it is accordingly dismissed. The conviction and sentence as imposed by the trial Court, is maintained.
        27. Before parting with this appeal, a highly disturbing feature of this case needs to be noticed. On one hand an argument was advanced that Dharmeswar was the first to arrive at the scene, has not been examined by the prosecution, on the other hand as many as three out of those examined have turned hostile. It is not a mere matter of provisions of law as contained in Sections 145 and 157 of the Evidence Act or the proviso to sub- section (1) of Section 162, Cr PC the question posed is of a larger magnitude than mere formality of declaring a witness hostile. A young girl hardly 18 years of age returning home with her younger brother, hardly 10/12 years was forcibly dragged into a jungle while she was waiting on the road side for her younger brother who had gone to answer nature's call. It was not so much resiling from the previous statements, it reflects on the social values. Declaring a witness hostile is nothing uncommon in a criminal trial, but in a case such as the one at hand those who had failed to rush to rescue the victim of sexual assault, but had arrived at the scene soon after the incident have turned hostile to depose to the minimal facts. The reason is not far to seek the defence stand taken by the accused that they had been falsely implicated as they were active workers or supporters of a particular political group or party. No union or party can afford to tolerate such monstrous assault, the witnesses who have turned hostile, should also be made to realise that rapist who violates the personal integrity of a girl and leaves an indelible mark on her soul cannot escape punishment even by negative support given by such hostile witnesses. The message is loud and clear. Those who are tempted to give such negative support, for whatever reasons should desist from it and move towards upholding the values of social life. Law expects of them to come forward to help the helpless victims and not to side the perpetrators of such crimes which lead to erosion of values.
        28. Let a notice be issued to these hostiles, PW 4 Jagaram @ Jorram, PW 8 Apurba Bora and PW 9 Santi Bora calling upon them to show cause as to why they should not be ordered to be prosecuted for making a false statement on oath. Notices made returnable within a month. Registry to take necessary steps for service of notices. A separate Misc. case in this behalf be registered. The learned trial Judge has imposed fine of Rs. 2,000/- each and has not considered the question of awarding compensation to the victim. Although payment of compensation is but a poor solace to a victim of rape which not only violates the right to life but also impairs human dignity. Taking a total view of the matter it is ordered that each of the appellants shall pay Rs. 10,000/- as compensation to the victim girl. This payment must be paid within 3 months from the date of judgment, failing which the trial Court shall proceed in accordance with law to recover the same from the properties of the accused-appellants.

        Appeal dismissed.



        Geek Upd8 - Law Reporter: In cases of defective investigation by police or examination by doctors, Court has to circumspect by evaluating evidence - It would be like to play in hands of defective investigation by Police or examination by doctor
        In cases of defective investigation by police or examination by doctors, Court has to circumspect by evaluating evidence - It would be like to play in hands of defective investigation by Police or examination by doctor
        Geek Upd8 - Law Reporter
        Loaded All Posts Not found any posts VIEW ALL Readmore Reply Cancel reply Delete By Home PAGES POSTS View All RECOMMENDED FOR YOU LABEL ARCHIVE SEARCH ALL POSTS Not found any post match with your request Back Home Sunday Monday Tuesday Wednesday Thursday Friday Saturday Sun Mon Tue Wed Thu Fri Sat January February March April May June July August September October November December Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec just now 1 minute ago $$1$$ minutes ago 1 hour ago $$1$$ hours ago Yesterday $$1$$ days ago $$1$$ weeks ago more than 5 weeks ago Followers Follow THIS PREMIUM CONTENT IS LOCKED STEP 1: Share. STEP 2: Click the link you shared to unlock Copy All Code Select All Code All codes were copied to your clipboard Can not copy the codes / texts, please press [CTRL]+[C] (or CMD+C with Mac) to copy