Summary
Appeal against concurrent convictions for abduction, wrongful confinement and gang rape under Sections 366, 342 and 376(2)(g) IPC and under Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act, 1989. The Court upheld the IPC convictions on the prosecutrix's trustworthy sole testimony, holding that under Explanation 1 to Section 376(2)(g) an act of rape by one member of a group acting with common intention renders all liable, and that Section 114A of the Evidence Act raised a presumption of absence of consent. It set aside the conviction under Section 3(2)(v) of the 1989 Act because there was no evidence that the victim's caste identity was one of the grounds for the offence, and reduced the life sentence for gang rape to ten years to match the co-accused.
Issues
- Whether the conviction could rest on the sole testimony of the prosecutrix despite variations between the FIR, the later complaint and her evidence, and the FIR's omission of the appellant's role as a participant in the rape.
- What the prosecution must prove to establish gang rape under Section 376(2)(g) IPC read with Explanation 1.
- Whether the suggestion of a prior relationship between the prosecutrix and the co-accused displaced the presumption of absence of consent under Section 114A of the Evidence Act.
- Whether the conviction under Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act, 1989 (as it stood before the 2016 amendment) could be sustained without evidence that the offence was committed on the ground of the victim's caste identity.
- Whether the sentence of life imprisonment for gang rape should be brought on par with the ten-year sentence imposed on the co-accused.
Provisions considered
- Section 376(2)(g) with Explanation 1 (gang rape, as it stood in 2004), Indian Penal Code, 1860Explanation 1 deems each person in a group acting in furtherance of common intention to have committed gang rape where the woman is raped by one or more of them. Tracing the 1982 Joint Committee recommendation and following Pramod Mahto and Ashok Kumar, the Court held that an act by one is enough to render all in the gang liable so long as they acted in furtherance of a common intention; common intention is implicit in the charge and only evidence of its existence is required. The abduction, confinement and sexual assault here showed the appellant and co-accused acted in concert. (¶¶ 19, 20, 21, 22, 23, 24)
- Section 114A (as it stood in 2004), Indian Evidence Act, 1872In a prosecution for rape under Section 376(2)(g), where sexual intercourse is proved and the prosecutrix states in evidence that she did not consent, the court shall presume absence of consent. Following Roshan Khan and Mohd. Iqbal, the presumption rests on the reasoning that nobody can consent to several persons simultaneously; the feeble suggestion of a four-year relationship with the co-accused did not rebut it. (¶¶ 19, 25)
- Section 366, Indian Penal Code, 1860The prosecutrix's consistent account of being caught hold of, gagged, threatened and forcibly taken on a two-wheeler to the appellant's house established abduction; on this aspect there was no contradiction between the FIR and the later complaint. (¶¶ 14, 16, 17, 19)
- Section 342, Indian Penal Code, 1860Wrongful confinement was established by the prosecutrix's evidence of being locked in a room and later in another house, corroborated by her recovery from the house of DW-2 as spoken to by PW-1, PW-2, PW-3 and PW-11. (¶¶ 14, 17, 19)
- Section 3(2)(v) (as it stood before the amendment of 26.01.2016), Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989The provision punishes a non-SC/ST person who commits an IPC offence punishable with ten years or more against a person 'on the ground that' such person is a member of a Scheduled Caste or Tribe. Concurring with Patan Jamal Vali, the Court held that the statute does not say 'only on the ground', so a conviction can be sustained if caste identity is one of the grounds for the offence, but under the unamended provision mere knowledge of the victim's caste is not enough. There being no evidence that caste identity was a ground for the offence, the appellant was acquitted of this charge. (¶¶ 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44)
Held
- The prosecutrix is not an accomplice, and where her evidence inspires confidence it can be acted upon without corroboration. The court must remain conscious that she is interested in the outcome, but once satisfied that her evidence is trustworthy nothing prevents conviction on her sole testimony. Minor contradictions did not dilute the prosecutrix's clear account of abduction, rape and confinement. (¶¶ 17, 18)
- The variation between the FIR and the complaint lodged two days later, and the fact that the FIR and the medical-consent letters named only the co-accused as the rapist, did not benefit the appellant: the abduction was consistently spoken to, the missing report was prompt and the prosecutrix was recovered from the house of DW-2 after being brought from the appellant's house, the recovery was proved even through a witness treated as hostile, and the prosecutrix unwaveringly deposed to rape by both accused. (¶ 19)
- The evidence of a witness treated as hostile is not effaced from the record; it can be accepted to the extent it is found dependable on careful scrutiny and is consistent with the prosecution case. (¶ 19)
- In a case of gang rape under Section 376(2)(g), an act by one is enough to render all in the gang liable to punishment so long as they acted in furtherance of a common intention. Common intention is implicit in the charge itself and all that is needed is evidence showing its existence; it is not necessary to prove a completed act of rape by each accused. (¶¶ 20, 21, 22, 23, 24)
- Under Section 114A of the Evidence Act, once sexual intercourse is proved and the prosecutrix states she did not consent, absence of consent is presumed. A bare suggestion that she had a prior relationship with the co-accused and went with him willingly, which she denied, did not rebut the presumption. (¶ 25)
- The defence witnesses were disbelieved: DW-1's father worked for the appellant, she admitted not knowing where the prosecutrix went, and PW-1 and PW-2 contradicted her; DW-2's claim that the prosecutrix had rented her house was contrary to the recovery memo she had signed and unsupported by any receipt. The doctor's inability to give a definite opinion did not negate the assault, since clear ocular evidence prevails over medical evidence. (¶¶ 26, 27, 28)
- The two-finger test performed on the prosecutrix in 2004 was deprecated as obnoxious, inhuman and degrading; the Court reiterated Lillu and Shailendra Kumar Rai so that the practice is not repeated on victims of sexual assault. (¶¶ 29, 30, 31, 32)
- For Section 3(2)(v) of the 1989 Act as it stood before 26.01.2016, the offence must have been committed on the ground that the victim belonged to a Scheduled Caste or Tribe. Following Patan Jamal Vali, caste identity need not be the only ground, but it must be one of the grounds; knowledge of the victim's caste by itself is insufficient under the unamended provision (the 2016 amendment lowered the threshold to knowledge). With no evidence that caste identity was a ground for the offence, the conviction under Section 3(2)(v) was set aside. (¶¶ 34, 36, 39, 40, 42, 43, 44)
- To bring the appellant's sentence on par with that of the co-accused for the same offence under Section 376(2)(g), the life sentence was reduced to ten years' rigorous imprisonment with fine of Rs 2,000 (default one year), the sentences under Sections 366 and 342 being left undisturbed and all sentences to run concurrently. (¶ 45)
Result
Appeal partly allowed. Convictions under Sections 366, 342 and 376(2)(g) IPC maintained; conviction under Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act, 1989 set aside. Sentence of life imprisonment under Section 376(2)(g) modified to ten years' rigorous imprisonment with fine of Rs 2,000 and default sentence of one year; other sentences unaltered; all sentences to run concurrently; the appellant to serve out the remaining sentence.