Case Of Accused Under S.313 CrPC Not Suggested To Victim In Cross-Examination; Supreme Court Refuses To Set Aside Conviction In Rape Case

In a recent case concerning an offence of rape, the Supreme Court observed that the conviction can't be set aside if the accused statements recorded under Section 313 of CrPC (stating that there was a prosecutrix consent to perform sexual intercourse) are not put to use in evidence by the accused in the form of suggestion while cross-examining the prosecutrix. 

Taking reference to Section 313 (4) of CrPC which states that answers given by the accused may be used against him during the trial, the bench comprising Justices Abhay S. Oka and Ujjal Bhuyan observed that if the part of the accused statements recorded under Section 313 states facts about the victim that she had consented for sexual intercourse, and such a fact is not suggested to the victim during her cross-examination, then the accused statements cannot be considered in isolation. They have to be considered in conjunction with the evidence adduced by the prosecution.

In the present case, the accused persons/appellants were convicted for committing an offence of rape on the prosecutrix/victim. The appellants in their Section 313 statements claimed that they were involved in the paid sex with the victim, and the victim had consented for the same. However, the fact of voluntary sexual intercourse with the victim was not suggested to the victim by the accused while doing the victim's cross-examination, so that the victim could rebut the accused Section 313 statements.

After perusing the cross-examination of the victim, the court observed as follows:

“We have carefully perused the cross-examination of the prosecutrix. In the cross-examination, the case put to her was that she had voluntarily accompanied the accused Vijay. There was no suggestion given by the accused that the sexual intercourse with the prosecutrix was with her consent. The evidence of the prosecutrix in her examination-in-chief that the accused committed sexual intercourse with her has not been shaken. The case of accused Vijay made out in his statement under Section 313 of Cr.PC was that he was in a relationship with the victim for one year and was paying money to the victim for maintaining a sexual relationship. This case has not been put to the prosecutrix. Even the case made out by accused Sunil and Ravi that they were keeping a physical relationship with the prosecutrix by paying money has not been put to the prosecutrix.”, the judgment authored by Justice Abhay S Oka said.

The court noted that suggestion about the victim's consent to the sexual intercourse was not put to her during her cross-examination denying her an opportunity to rebut the accused claim regarding there being victim's consent while doing an act of sexual intercourse.

While appreciating the evidence adduced by the prosecution, the Section 313 statements of the three accused that they maintained a physical relationship with the prosecutrix by paying her money ought to be considered by putting it in use during the prosecutrix cross-examination.

Drawing reference from the case of State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 the court held that the manner in which the prosecutrix was taken to the area where her rape was committed and after that to another place establishes the case of the prosecutrix of forcible sexual intercourse.

In Gurmit Singh's case, the court held that if the prosecutrix does not have a strong motive to falsely implicate the accused the court should have no hesitation in accepting her evidence.

“Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable.”, also the court observed in Gurmit Singh's Case.

Based on the above premise, the appeal was dismissed and the decision of the High Court convicting the accused/appellants was affirmed.

Counsels For Petitioner(s) Mr. Ketan Paul, AOR Mr. Suryanarayana Singh, Sr. Adv. Mr. Naresh Kumar, AOR

Counsels For Respondent(s) Mrs. K. Sarada Devi, AOR Mr. R.Vijay Nandan Reddy, Adv. Mr. V.krishna Swaroop, Adv. Mr. Ketan Paul, AOR Ms. Shubhi Pandey, Adv. Ms. Chakshu Purohit, Adv.

Case Title: VIJAY KUMAR VS. THE STATE OF HIMACHAL PRADESH, Crl.A. No. 002568 / 2024

Citation : 2024 LiveLaw (SC) 403

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