No One Would Level False Rape Allegations In Conservative, Non-Permissive Society Like India: Kerala High Court

While reiterating the settled law on conviction based on sole testimony of prosecutrix in a rape case, the Kerala High Court on Thursday observed,

"In the conservative, tradition bound, non-permissive society like that of ours, none would make a false accusation of rape; braving ostracism, loss of face, social stigma and shame."

The remarks were made while contrasting the Indian law relating to sexual assault trials as against the laws and practices prevalent in the UK. 

In R v. Neville Benson Henry & R. v Jeffrey Patrick Manning, an English Court of Appeals had held that conviction on the evidence of the woman or girl alone would be dangerous due to the possibility of false stories being foisted.

To the contrary, the Indian Supreme Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, had remarked that in the Indian setting, refusal to act on the testimony of a sexual assault victim in the absence of corroboration as a rule would add "insult" to her injuries.

In this light, the Division Bench comprising Justices K. Vinod Chandran and C. Jayachandran observed,

"Though at first blush the law set forth in both United Kingdom and India are the same, there is a semantic difference in so far as the rule and the exception; which is a subtle reflection of the societal conditions in the two Countries".

It added that in India, "testimony of a victim in a rape case, is not akin to that of an accomplice and carries more weight, identical to that of an injured victim...if the court finds it difficult to place implicit reliance on her testimony, evidence which may lend assurance to her testimony may be relied upon."

The Prosecution case was that the father of the victim minor girl had repeatedly committed rape on her, and against the order of nature, and even threatened her with dire consequences. He was accordingly charged under Sections 376 & 377 of the IPC, and for commission of aggravated penetrative sexual assault under the Protection of Children From Sexual Offences Act, 2012 (POCSO Act).

He was convicted by the Additional District and Sessions Court under Ss.376, 377 and 506(1)of the IPC and sentenced to undergo imprisonment for life for the remainder of his natural life. It was against the same that the instant appeal was preferred by the appellant-accused.

The appellant represented by Advocates Renjith B. Marar, Lakshmi N. Kaimal, Arun Poomulli, and Asiwarya Thankachan, contended that as there was no voir dire carried out of the minor child, the testimony would have to be approached with caution. The counsels also challenged the conviction under the POCSO Act on the ground of there being no 'proof of age'. The counsels also brought the attention of the Court on the delay in filing the incident, as well as the inadequate legal assistance that had been rendered by the State Brief for the accused.

Added to these were the contentions on the ground of inconsistencies in the testimonies of the victim (PW1) and her mother (PW2 who was also the wife of the accused). While the former submitted that her parents shared an amicable relationship, the latter had stated that the relationship was strained. Lastly, it was submitted by the counsels for the appellant that on conviction both under 376(2)(f)&(i), only one sentence of life was imposed and in that circumstance, when the charge under one of the two clauses is found to be not maintainable, there should be mitigation insofar as the sentence is concerned.

On the other hand, it was submitted by the Public Prosecutor, O.V. Bindhu, on behalf of the respondent State that the impugned judgment of the Sessions Court ought to be upheld since PW1's testimony was of sterling quality, which was further corroborated by the testimonies of PW2 and PW4 (the victim's teacher whom the latter had confided in). It was further submitted that the medical evidence of the Doctor was also clinching. It was further contended that the charge was vague, especially when the molestation was carried on for a period of two years and there was no possibility of the victim remembering the exact dates on which she had been repeatedly molested, although the date of the last molestation was specifically stated.

It was submitted that the appellant used to molest the victim when her mother was away from home, and also by sending her out on some other errand. Scientific evidence by way of presence of spermatozoa on the dress of the victim was also produced in this regard. 

The Court in this case observed that the manner in which the victim had testified revealed a perceptive witness, and hence, her competence could not be eschewed. In the opinion of the court, the incidents when the victim was molested by her father also did not warrant any closer scrutiny. The evidence of the victim regarding the threats issued by her father, and the medical evidence of the Doctor who examined the victim and that of another who examined the accused appellant were also given due regard by the Court.

On this ground, the Court could not find any reason to interfere with the conviction or sentence imposed by the lower court. On the other hand, as regards the age of the victim, the Court differed in its stance and found that the date of birth proof produced does not stand legal scrutiny.

However, it was held by the Court that the evidence submitted in the case unequivocally establish the crime to have been committed by the accused, beyond all reasonable doubt. 

The Appellate Court thus upheld the conviction under under Sections 376(2)(f), 377 and 506 of the IPC, while that under the POCSO Act was set aside.

Case Title: Shaju@Shaju v. State of Kerala & Anr. 

Citation: 2022 LiveLaw (Ker) 470

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