Penal Code, 1860 – Explanation 1 to s.376(2)(g) – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – s.3(2)(v) – Appellant convicted u/ss.366, 376(2)(g) and 342, IPC and s.3(2)(v), 1989 Act – Challenge to: Held: In a case of gang rape u/s.376(2)(g), IPC an act by one is enough to render all in the gang for punishment as long as they have acted in furtherance of the common intention – Common intention is implicit in the charge of s.376(2)(g) itself and all that is needed is evidence to show the existence of common intention – Prosecutrix clinchingly and unwaveringly deposed about the commission of rape by both the appellant and the co-accused – Ingredients of s.376(2)(g) are squarely attracted in view of the abduction of the victim, her wrongful confinement, her testimony about being subjected to sexual assault – Appellant along with co-accused acted in concert and with a common intention to sexually assault the prosecutrix – Conviction of the appellant u/ss.366, 342 and 376(2)(g), IPC upheld – However, on facts, offence u/s.3(2)(v), 1989 Act is not attracted – Appellant acquitted from the charge of s.3(2)(v), 1989 Act. [Paras 19(d), 23]
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – s.3(2)(v) – When not attracted – Present case, if covered within the threshold set out in Patan Jamal Vali case:
Held: No – No evidence to establish that the victims caste identity was one of the grounds for the occurrence of the offence – On facts, no evidence to bring the case within the threshold of Patan Jamal Vali – In the absence of any evidence attracting the offence of s.3(2)(v), the conviction of the appellant u/s.3(2)(v), 1989 Act is set aside and he is acquitted from the charge thereunder. [Para 44, 45]
Criminal Law – Rape – Testimony of prosecutrix – Reliance upon:
Held: Prosecutrix is not an accomplice and if her evidence inspires confidence it can be acted upon without corroboration – In the present case, not only does the evidence of the prosecutrix sound natural, it also inspires confidence – On facts, any need for corroboration can be safely dispensed with – All that the law mandates is that the Court should be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of charge levelled by her – If after keeping that aspect in mind if the Court is satisfied that the evidence is trustworthy, the Court can act on the sole testimony of the prosecutrix. [Paras 17, 18]
Evidence Act, 1872 – s.114A – Presumption as to absence of consent in certain prosecutions for rape:
Held: Plea that the prosecutrix was in a relationship with the co-accused and there was consent, rejected – Evidence of the prosecutrix makes it clear that she was subjected to forcible sexual intercourse against her consent – Apart from a feeble suggestion that the prosecutrix was having physical relations with the coaccused for the last four years and that she went to his house out of her free will, there is nothing concrete adduced to rebut the presumption. [Para 25]
Criminal Law – Rape – Two-finger test – Practice deprecated – Reiterated that such degrading practice be not repeated: Held: Though the medical examination of Prosecutrix was done on 29.06.2004 long before the judgments of this Court deprecating such practice and directing that any person who conducts the “two-finger test” or per vaginum examination (while examining a person alleged to have been subjected to a sexual assault) in contravention of the directions of this Court shall be guilty of misconduct however, it is reiterated that this obnoxious, inhuman and degrading practice be not repeated on victims of sexual assault and in future these practices do not recur. [Paras 29, 31] Words and Phrases – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – s.3(2)(v) – “on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe” – 2016 Amendment – Discussed. [Paras 35-42]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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