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CASE NO.: Appeal (crl.)  1134 of 2006

PETITIONER: State of Kerala

RESPONDENT: Kurissum Moottil Antony

DATE OF JUDGMENT: 09/11/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 5856 of 2005)

ARIJIT PASAYAT, J.

       Leave granted.

         The State of Kerala challenges the order passed by the  learned Single Judge of the Kerala High Court directing  acquittal of the respondent by accepting revision petition filed  by the respondent.  Respondent was found guilty of offences  punishable under Sections 451 and 377 of the Indian Penal  Code, 1860 (in short ’IPC’).  The Trial Court had convicted the  respondent as aforesaid and had imposed sentence of six  months and one year rigorous imprisonment respectively with  fine of Rs.2000/- in each case.  The fine amount of Rs.2000/-  was to be paid to the victim in terms of Section 357 (1)(b) of  the Code of Criminal Procedure, 1973 (in short ’Cr.P.C.’).

Factual background as unfolded during trial of the  respondent was that on 10.11.1986 accused trespassed into  the house of the victim-girl who was nearly about 10 years of  age on the date of occurrence and committed unnatural  offence on her.  After finding the victim alone in the house the  accused committed unnatural offence by putting his penis  having carnal intercourse against order of nature.  The victim  (PW-1) told about the incident to her friend (PW-2) who  narrated the same to the parents of the victim and accordingly  on 13.11.1986 First Information Report was lodged. The  investigation was undertaken by PW-11 who sent both the  victim and the accused for medical examination. He also  seized the dress worn by the victim at the time of occurrence.   The Chemical Analyst report Ex.P7 indicated presence of  human semen and spermatozoa on the dress of the victim.   Potency of the accused was also proved by the doctor (PW-10)  as per Ex.P6.                 

To further the prosecution version, 11 witnesses were  examined.  The accused pleaded innocence.  On consideration  of the evidence on record, learned Judicial Magistrate, Ist  Class, found the accused guilty and convicted and sentenced  as aforesaid noted. An appeal before the learned Sessions  Judge, Kelpetta did not bring any relief to the accused.   Revision was filed before the High Court which by the  impugned order set aside the order of conviction and sentence.  

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The primary ground on which the High Court directed  acquittal was the absence of corroboration and alleged  suppression of a report purported to have been given before  the FIR in question was lodged.         

In support of the appeal, learned counsel for the State  submitted that the High Court’s approach is clearly erroneous.   This Court in a catena of cases has held that corroboration is  not necessary for a case of this nature. Finding certain alleged  inconsistencies in the victim’s testimony, the High Court had  observed that corroboration was necessary. It relied on a  purported statement stated to have been made at anterior  point of time. It was observed that in the said complaint  details of the incident constituting the offence were not  disclosed. This was suppressed by the Investigating Officer  and mother of the victim i.e. PW-5.   

There is no appearance on behalf of the respondent- accused in spite of the service of the notice. An accused cannot cling to a fossil formula and insist on  corroborative evidence, even if taken as a whole, the case  spoken to by the victim strikes a judicial mind as probable.  Judicial response to human rights cannot be blunted by legal  jugglery. A similar view was expressed by this Court in Rafiq v.  State of U.P. (1980 (4) SCC 262) with some anguish. The same  was echoed again in Bharwada Bhogiabhai and Hirjibhai v.  State of Gujarat (AIR 1988 SC 753). It was observed in the  said case that in the Indian setting refusal to act on the  testimony of the victim of sexual assault in the absence of  corroboration as a rule, is adding insult to injury. A girl or a  woman in the tradition bound non-permissive society of India  would be extremely reluctant even to admit that any incident  which is likely to reflect on her chastity or dignity had ever  occurred. She would be conscious of the danger of being  ostracized by the society and when in the face of these factors  the crime is brought to light, there is inbuilt assurance that  the charge is genuine rather than fabricated. Just as a witness  who has sustained an injury, which is not shown or believed  to be self-inflicted, is the best witness in the sense that he is  least likely to exculpate the real offender, the evidence of a  victim of sex offence is entitled to great weight, absence of  corroboration notwithstanding. Corroboration is not the sine  qua non for conviction in a rape case. The observations of  Vivian Bose, J. in Rameshwar v. The State of Rajasthan (AIR  1952 SC 54) were, ’’The rule, which according to the cases has  hardened into one of law, is not that corroboration is essential  before there can be a conviction but that the necessity of  corroboration, as a matter of prudence, except where the  circumstances make it safe to dispense with it, must be  present to the mind of the judge...". To insist on corroboration except in the rarest of rare  cases is to equate one who is a victim of the lust of another  with an accomplice to a crime and thereby insult womanhood.  It would be adding insult to injury to tell a woman that her  claim of rape will not be believed unless it is corroborated in  material particulars as in "the case of an accomplice to a  crime". (See State of Maharashtra v. Chandra Prakash  Kewalchand Jain (1990 (1) SCC 550). Why should be 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? The plea  about lack of corroboration has no substance. It is unfortunate that respect for womanhood in our  country is on the decline and cases of molestation and rape

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are steadily growing. Decency and morality in public and  social life cart be protected only if Courts deal strictly with  those who violate the social norms.  The above position was highlighted by this Court in  Bhupinder Sharma v. State of H.P. (2003 (8) SCC 551).   The rule regarding non-requirement of corroboration is  equally applicable to a case of this nature, relating to Section  377 IPC.

In addition, it is to be noted that reading of PW-1’s  evidence shows that the High Court proceeded on erroneous  impression as if written complaint was earlier lodged before  the police which was suppressed by the prosecution.  A close  reading of PW-5’s evidence shows that she has not stated  anything of that nature. On the contrary, evidence of the  mother PW-5 and the father PW-4 is that they went to the  police station with the victim and FIR was lodged.  The High  Court had proceeded on the basis as if PW-2 has resiled from  her statement made during investigation.  It is really not so.  She has stated about accused going into the house of the  victim asking for water and when PW-1 went inside to take the  glass, accused forcibly catching her. The evidence of PW-1 who  was 10 years of age at the time of occurrence and was about  14 years of age at the time of deposition in Court has  categorically and elaborately described the incident.  She has  graphically described as to how the offence was committed.  She has stated that while she was alone in the house, the  accused who was her neighbour came to her and asked for a  glass of water. But he did not go and wanted more glass of  water.  When she turned to take the glass she was caught  forcibly by him and was to made lie on the floor.  The accused  lifted her skirt and removed her underwear and thrust his  male organ, and committed carnal intercourse against the  order of nature. She cried but nobody heard the same except  her brother who was unable to help, as he was lying in bed  because of paralysis.  The accused went away thereafter.

In cross-examination no material inconsistency has  surfaced except some minor ones which are but natural.  The  High Court clearly lost sight of these factors and has directed  acquittal on untenable grounds. It is unsustainable and is set  aside. Orders of the Trial Court and First Appellate Court  stand restored. Steps shall be taken by the concerned Court to  take the respondent-accused to custody to serve remainder of  sentence.             

Appeal is allowed.