Courts Should Not Normally Disbelieve Rape Victims

Hemant K. Batra*

Whether a rape convict can be released by a superior court or in other words by an appellate court `on the benefit of doubt’? Yes, it could release the convict and that too without seeking fresh investigation or expert medical view.

On 23 August 2018, the Supreme Court of India acting through the bench of Justice Ranjan Gogoi, Justice Navin Sinha, and Justice K.M. Joseph passed a verdict in Rajak Mohammad Versus the State of Himachal Pradesh thereby acquitting a rape convict by granting him the benefit of doubt.

The Indian Parliament recently gave its overwhelming support and clearance to the Criminal Law (Amendment) Bill, 2018 which introduced the new set of amendments carving out severe punishments for the offence of rape including a death sentence. The minimum punishment also having been raised to an imprisonment of twenty years in some cases. However, the Supreme Court of India in one stroke made the strict law look little softer, by passing a brief judgement of acquittal and relying on circumstantial evidence to acquit a rape accused. Perhaps, the Supreme Court took this view based on more logical considerations, which were never contemplated under the original legislation.

The accused was first acquitted by the trial Court of the charges under Sections 363, 366 and 376 of the Indian Penal Code, 1860. These provisions deal with kidnapping, abduction to compel or induce the victim to marry against her will or seduce to illicit intercourse and rape, respectively. The State Prosecution went in appeal, and the High Court reversed the order of acquittal. The accused was sentenced to rigorous imprisonment for four years, five years and seven years respectively for the offences of kidnapping, abduction to compel or induce the victim to marry against her will or seduce to illicit intercourse and rape.

The appellant challenging his conviction in the instant case before the Supreme Court was in custody for almost three and half years since his conviction and sentencing. The Supreme Court noticed some contradictions in the statements of the alleged raped victim girl and relied on a piece of evidence, which demonstrated that the girl had remained with the accused appellant for about two days in Kullu in the house of a third person and that it was a sufficiently inhabited village with about 60 houses. It was further noted that the girl remained with the appellant for almost 12 days until she was finally found. During this time, she had freely moved around with the appellant and had come across many people whom, the Supreme Court thought, she could have complained of rape or any criminal act by the accused appellant.

So once the Supreme Court assumed or concluded that she was perhaps staying with the accused on her own volition, the only question remained to be examined was as to whether she was an adult or minor. In other words `whether she was a major so as to give her consent.’
The prosecution had brought about on record the School Admission Form and the certificate issued by JBT Teacher of Government School in support of their contention, but it was considered inconclusive by the Supreme Court as it bore victim’s mother’s signatures. Obviously, birth certificates are made on the representations of the parents as that is the normal universal process. Children are too small at the time of their school admissions to make a declaration regarding their date of birth.

The Supreme Court also examined the evidence of a medical doctor (Radiologist) who opined that the age of the girl was between 17 to 18 years. On the issue of age, the Supreme Court held that there was a ‘room for ample doubt about the correct age of the’ girl. So, `The benefit of the aforesaid doubt, naturally, must go in favour of the accused.’

Consequently, the Supreme Court held that the prosecution did not succeed in proving that the girl `was a minor on the date of the alleged occurrence.’ The Supreme Court also held that a possibility of the girl being a consenting party also could not be ruled out. Accordingly, the accused appellant was acquitted on the benefit of doubt. The order of conviction passed by the High Court was set aside, and the accused appellant was directed to be released from custody forthwith.

There are fundamental flaws in the judgement. The Supreme Court predominantly but erroneously relied on two assumptions to acquit the rape accused – (i) uncertainty of the fact that whether the alleged rape victim was minor or not; and (ii) probability of the alleged rape victim having actually consented to the occurrence. The Court itself became unsure on both the above accounts and gave the benefit of doubt to the accused.
There was no room for being unsure. The girl was minor as per the school documents and between 17 to 18 years as per the medical report. Then how could she be deemed as a major? One fails to comprehend. Just because a girl is not seen to be making complaints to third parties does not mean she is a consensual partner. The circumstances of duress or undue influence or seduction ought to have been appreciated. Once, the girl was recovered, she made statements, which proved the charged offences. Whether those criminal acts happened forcibly or by misleading the victim needed due weightage. The Supreme Court suspected the prosecution’s case and in a way disbelieved the alleged rape victim.

The Supreme Court erred to appreciate that the offences charged were under three different sections, namely, Sections 363, 366 and 376 of the Indian Penal Code, 1860. Section 366 has no bearing regarding the assumptions of the Supreme Court as to age and probability of consent. Section 366 states that whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. There was overwhelming evidence to establish offence under Section 366. The Supreme Court perhaps was glued to Section 376, which deals with rape. While doing so it lost sight of other Sections with which accused was charged.

The rape accused got the benefit of doubt, which should have been in the rarest case of direct evidence and not on the basis of circumstantial assumptions.

The Supreme Court is the highest court of the land and presumably the most prudent as well. The external discussions on judgements delivered by them are subjective as the judgements also can never be objective.

*International Law & Policy Expert, Founder of Kaden Boriss Legal, Sr. Fellow at Policy Think Tank – Goeman Bind HTO and Vice President at Saarclaw.

Note: This article is not meant to criticize the Supreme Court or its constituents in any way. The article is purely a critical analysis of the judgement only and not the Judges who have delivered the judgement. The author has absolute trust, respect and confidence in the Indian Judiciary.