'Dignity Of Rape Victim Must Be Upheld, Judge's Duty To Forbid Scandalous Questions In Cross Examination': Bombay High Court

A division bench of Justices Sadhana Jadhav and Sarang Kotwal in their judgement reminded the trial courts to resort to Sections 148, 151 and 152 of the Indian Evidence Act and stop such a line of cross-examination, remind the victim that she cannot be compelled to answer the questions put to her by the defence lawyers.

Referring to numerous graphic details of the act put to a victim during cross-examination and the trial judge's "passive approach", the bench observed,

"We strongly disapprove of all these suggestions put to the witness. We are more pained because of the passive approach adopted by the learned Judge in allowing these questions. These suggestions crossed all lines of basic dignity. Under the garb of giving suggestions, graphic details of the act were put to the witness. This was wholly unwarranted. The learned Judge has recorded that at that stage the witness was sobbing. The learned Judge should have intervened and stopped this line of cross-examination."

The court made these observations while dismissing appeals filed by three convicts who were sentenced to suffer life imprisonment by a Sessions Court in Pune in a case of gang rape of a 25-year-old married woman. In April 2010, the victim had taken a lift from two accused from Hinjewadi, IT Park in Pune, thinking that it was a shared taxi. However, a third accused joined the duo later and the victim was eventually taken to a secluded place and gang-raped by the trio.

While the High Court bench appreciated the trial judge for the way the trial was conducted otherwise, it did not agree with the free hand to the defence while cross-examining the victim.

"While it is true that the accused has a right to conduct cross-examination to prove his innocence but these suggestions can by no stretch of imagination be called as proper cross-examination. Even under Section 152 of the Indian Evidence Act, the Court was duty-bound to forbid any question which appeared to be intended to insult or annoy or which though proper in itself, appeared to the Court needlessly offensive in form."

The bench added that the trial courts can also invoke section 151 (Indecent and scandalous questions) of the Indian Evidence Act, which empowers the Court to forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court.

"The learned trial Judge failed in his duty in not protecting the dignity of PW-1 and not exercising his powers under Sections 151 and 152 of the Indian Evidence Act," the court observed.

On section 148 (Court to decide when question shall be asked and when witness compelled to answer) of the Indian Evidence Act, the bench said that section could have been used by the trial judge to decide whether the victim can be compelled to answer the questions put to her. Observing that the suggestions made to the victim were violative of basic dignity, the bench said,

"The Court is expected to warn the witness that he is not obliged to answer if such questions are improper and if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence."

On the point of sentence to the accused, the bench relied on Supreme Court judgment in the case of Purushottam Dashrath Borate & another v. State of Maharashtra (2015 Cri. L.J. 2862), where the court had observed that violent crimes against women were on the rise in recent years and therefore the sentencing policy adopted by the Courts, in such cases, ought to have a stricter yardstick so as to act as a deterrent. The Bombay High Court bench upheld the life imprisonment of three convicts.

"There are a shockingly large number of cases where the sentence of punishment awarded to the accused is not in proportion to the gravity and magnitude of the offence thereby encouraging the criminal and in the ultimate making, justice suffer by weakening the system's credibility. The object of sentencing policy should be to see that the crime does not go unpunished and the victim of a crime as also the society has the satisfaction that justice has been done to it," the Supreme Court had observed in that judgment, which too was a case from Pune of rape and murder of a woman who was working in the night shift.

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