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PETITIONER: RAFIQ

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT14/08/1980

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. REDDY, O. CHINNAPPA (J)

CITATION:  1981 AIR  559            1981 SCR  (1) 402  1980 SCC  (4) 262

ACT:      Constitution of India 1950 Art. 136-Concurrent findings of fact  Appeal by special leave against conviction for rape by Lower Courts-Supreme Court when would interfere.

HEADNOTE:      Indian Penal  Code 1860,  s.  376-Evidence  and  proof- Absence of  injuries on  prosecution-Whether  fatal  to  the prosecution-Testimony of  prosecutrix-Corroboration  whether necessary.      The  petitioner   was  convicted   on  the   charge  of committing rape  on a  middle aged  Bal Sewika  in a village welfare organisation  who was  sleeping a  girls school. The trial  Court   imposed  a  sentence  of  7  years’  rigorous imprisonment. The  High Court,  confirmed the conviction and sentence.      In the  Special Leave  Petition to  this Court  it  was contended  on  behalf  of  the  petitioner  relying  on  the decision of  this Court in Pratap Mishra & Ors. vs. State of Orissa, A.I.R.  1977 S.C.  1307 that  absence of injuries on the person  of the  victim was  fatal tb the prosecution and that corroborating  evidence was  an imperative component of judicial credence  in rape cases. It was also submitted that the sentence of 7 years was too severe.      Dismissing the petition; ^      HELD: 1. No interference on the score of culpability or quantum of punishment is called for. 1405      2. Concurrent  findings of  fact ordinarily  acquire  a deterrent sanctity and tentative finality when challenged in this Court.  The special  jurisdiction under  Article 136 of the Constitution  which is  meant mainly to correct manifest injustice or errors of law of great moment cannot be invoked in the instant case. [403 H]      3.(i) The  facts and circumstances often vary from case to case, the crime situation and the myriad psychic factors, social conditions  and people’s  life-styles may  fluctuate, and so, rules of prudence relevant in one fact-situation may be inept  in another.  The argument  that regardless  of the specific circumstances  of a crime and criminal milieu, some strands of  probative reasoning which appealed to a Bench in one reported decision must mechanically be extended to other

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cases cannot be accepted. [404 D]      (ii) Pratap  Misra’s case laid down no inflexible axiom of law on either point. [404 C]      4. Corroboration  as a  condition for judicial reliance on the  testimony of  a prosecutrix  is not a matter of law, but a  guidance of  prudence under given circumstances. [404 E] 403      In the  instant case  the testimony  of the prosecutrix has commanded acceptance from two courts. A sensitized judge who sees  the conspectus  of circumstances  in its  totality hardly rejects  the testimony  of a rape victim unless there are  very   strong  circumstances   militating  against  its veracity. There  is none  in this  case. The confirmation of the conviction  by the  Courts below  must therefore,  be  a matter of course. [404H, 405B]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Special Leave Petition (Criminal) No. 950 of 1980.      From the  Judgment and  order dated  21-9-1979  of  the Allahabad High Court in Crl. A. No. 2305/74.      U. S. Prasad for the Petitioner.      The Judgment of the Court was delivered by,      KRlSHNA IYER, J.-This special Leave Petition relates to a conviction  and sentence  for  an  offence  of  rape.  The escalation of  such crimes  has  reached  proportions  to  a degree  that   exposes  the   pretensions  of  the  nation’s spiritual leadership and celluloid censorship, puts to shame our ancient  cultural  heritage  and  -  humane  claims  and betrays a  vulgar masculine outrage on human rights of which woman’s personal  dignity is  a sacred  component. We refuse special leave and briefly state a few reasons for doing so.      Draupadi, a middle-aged Bal Sewika in a village welfare organization’ was  sleeping in a girls’ school where she was allegedly raped  by Rafiq, the petitioner, and three others. The offence  took place  around 2.30  a.m. On  August 22/23, 1971, and  the next  morning the victim related the incident to the  Mukhiya Sewika  of the village. A report was made to the Police  Station on  August  23.  1971  at  mid-day.  The investigation that  followed resulted  in a  charge-sheet, a trial and,  eventually, in  a conviction based substantially on the  testimony  of  the  victim.  Although  some  of  the witnesses. tell-tale  fashion. shifted  their loyalties  and betrayed the  prosecution case,  the trial  court’ entered a finding of  guilt against  the appellant, giving the benefit of doubt  to the other three obscurely. A 7-year sentence of rigorous imprisonment  was awarded as justly merited. having regard to  the circumstances. The appeal carried to the High Court proved  unsuccessful but, undaunted, he petitioner has sought leave to appeal to this Court.      Concurrent  findings   of  fact  ordinarily  acquire  a deterrent sanctity and tentative finality when challenged in this Court  and we  rarely invoke  the special  jurisdiction under Art.  136 of the Constitution which is meant mainly to correct manifest injustice or errors of law of great moment. By these  substantial canons  the present petition for leave has not even a dog’s chance. 404      Counsel   contended   that   there   was   absence   of corroboration of  the testimony  of  the  prosecutrix,  that there was absence of injuries on the person of the woman and so  the   conviction  was   unsustainable,  tested   on  the

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touchstone of  case-law. None  of these  submissions has any substance and  we  should,  in  the  ordinary  course,  have desisted from making even a speaking order but counsel cited a decision  of this Court in Pratap Misra & Ors. v. State of Orissa and  urged that  absence cf injuries on the person of the  victim   was  fatal   to  the   prosecution  and   that corroborative  evidence   was  an  imperative  component  of judicial credence in rape cases.      We do  not agree.  For one  thing, Pratap  Misra’s case (supra) laid  down no  inflexible axiom  of  law  on  either point. The  facts and  circumstances often vary from case to case. the  crime situation  and the  myriad psychic factors, social conditions  and people’s  life-styles may  fluctuate, and so, rules of prudence relevant in one fact-situation may be inept  in another.  We cannot  accept the  argument  that regardless of  the specific  circumstances of  a  crime  and criminal milieu,  some strands  of probative reasoning which appealed  to   a  Bench   in  one   reported  decision  must mechanically be  extended to other cases. Corroboration as a condition for  judicial  reliance  on  the  testimony  cf  a prosecutrix is  not a  matter of  law,  but  a  guidance  of prudence under  given circumstances.  Indeed, from  place to place,  from  age  to  age.  from  varying  life-styles  and behavioural complexes, inferences from a given set of facts, oral and  circumstantial, may have to be drawn not with dead uniformity but  realistic diversity  lest  rigidity  in  the shape of  rule of  law in  this area be introduced through a new type of precedential tyranny. The same observation holds good regarding  the presence  or absence  of injuries on the person of the aggressor or the aggressed.      There are  several "sacred cows" of the criminal law in Indo-Anglian jurisprudence which are superstitious survivals and need  to be  re-examined. When  rapists are revelling in their promiscuous  pursuits and half of humankind-womankind- is protesting  against its  hapless lot,  when no  woman  of honour will  accuse another  of rape  since  she  sacrifices thereby what  is dearest to her, we cannot cling to a fossil formula and insist on corroborative testimony, even if taken as a  whole, the  case spoken  to by  the victim  strikes  a judicial mind  as probable.  In this case, the testimony has commanded acceptance  from  two  courts.  When  a  woman  is ravished what  is inflicted  is not  merely physical injury. but ’the deep sense of some deathless shame". 405      "A rape! a rape!......................      Yes, you have ravish’d justice;      Forced her to do your pleasure.      Hardly a  sensitized judge  who sees  the conspectus of circumstances in its totality and rejects the testimony of a rape victim  unless  there  are  very  strong  circumstances militating against is veracity. None we see in his case, and confirmation of  the conviction  by the  courts below  must, therefore, be a matter of course. Judicial response to human rights cannot be blunted by legal bigotry.      The case before us occurred in 1971 and is drawing to a close in  1980. What a pity ! Now that there is considerable public and  parliamentary attention to the violent frequency of rape  cases it  is time that the court reminds the nation that  deterrence   comes   more   effectively   from   quick investigations, prompt  prosecutions  and  urgent  finality, including special rules of evidence and specialised agencies for trial. Mechanical increase of punitive severity, without more, may  yield poor  dividends for  women victims.  In Dr. Johnson’s  time   public  hanging   for  pick-pocketing  was prevalent in  England but  as Dr. Johnson sardonically noted

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pick-pockets were  busy  plying  their  trade  among  crowds gathered to  see some  pick-pocket being  publicly executed. Dr. Johnson’s  wit is  our wisdom. The strategy for a crime- free society  is not  draconian  severity  in  sentence  but institutional sensitivity,  processual celerity  and  prompt publicity among  the concerned  community.  "Lawlessness  is abetted by  a laggard,  long-lived, lacunose  and legalistic litigative syndrome  rather than by less harsh provisions in the Penal  Code". The  focus must  be on  the evil,  not its neighbourhood.      Counsel  submitted  that  a  7-year  sentence  was  too severe. No,  because, as  we have stated earlier, rape for a woman is  deathless shame  and must  be dealt  with  as  the gravest crime  against human dignity. No interference on the score of  culpability or quantum of punishment is called for in the circumstances.      We refuse special leave. N.V.K.                                   Petition dismissed. 406