Victim's Sexual History Cannot Be Used To Discredit Rape Allegation: Orissa HC [Read Judgment]

Orissa: The Orissa High Court has dismissed the criminal appeals of two men convicted of abducting and gang-raping a minor girl, holding that a medical opinion describing the victim as "habituated to sexual intercourse" has no legal bearing on whether the offence was committed and cannot be used to cast doubt on her testimony.

Dr. Justice Sanjeeb K Panigrahi was hearing two connected appeals filed under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging a judgment of the Special Judge, Bolangir, convicting under Sections 363, 366, 376(D) and 376(2)(n) of the Indian Penal Code and Sections 6 and 10 of the POCSO Act, and sentencing them to twenty years' rigorous imprisonment.

As per the prosecution case, on the night of 03.04.2016, the accused visited the victim's house in village Salebarat on the pretext of buying a hen, and later that night forcibly took her to a hillock called Gidhghar Pahada, where she was confined and repeatedly raped over two nights before being abandoned near her house on the morning of 05.04.2016.

The appellants challenged the finding that the victim was a minor, contending that the school admission register relied upon by the trial court could not be treated as conclusive proof of age since the Headmaster who produced it admitted he was not posted at the school when the entry was made. They placed reliance on the Supreme Court's ruling in Birka Shiva v. State of Telangana to argue that an unverified register entry could not sustain a POCSO conviction. They also argued that Section 34 of the POCSO Act, which governs age determination of an accused, had been wrongly applied to the victim.

The Court rejected both contentions. It held that the defence never put a specific suggestion to any prosecution witness that the date of birth entry was incorrect or fabricated, leaving the statutory presumption of correctness attached to the register wholly unrebutted, and distinguished Birka Shiva on this ground. It further held that the trial court's use of Section 34 as a procedural route to import the age-determination hierarchy under the Juvenile Justice Rules, in the absence of a dedicated POCSO provision for victims, disclosed no jurisdictional infirmity.

On the credibility of the prosecutrix, the Court held that her account remained consistent across her statement to police, her Section 164 Cr.P.C. statement before the Magistrate, and her deposition, and was corroborated by the medical evidence of fresh hymenal tear, abrasions and soiled clothing found within hours of her return. Relying on State v. Gurmit Singh, the Court reiterated that a conviction can rest on the sole testimony of a prosecutrix where it inspires confidence, and that her evidence stands almost at par with that of an injured witness.

Addressing the defence argument based on the medical opinion that the victim was "habituated to sexual intercourse," the Court held that this observation was legally irrelevant to whether the occurrence took place, whether it was consensual, or whether it affected the reliability of a minor's testimony. It noted that Section 53A of the Indian Evidence Act and the proviso to Section 146, inserted by the Criminal Law (Amendment) Act, 2013, expressly bar drawing any inference from a victim's past sexual conduct, and that consent was in any case immaterial given the victim was a minor.

“The prosecutrix is not on trial for her character,” the Court observed, holding that the submission amounted to “an argument is precisely the kind of victim-blaming which the law does not permit.”

The Court also rejected the plea of false implication over a village pond dispute, holding that no minor girl would expose herself to the trauma of a rape trial merely to settle a score, and that the absence of a village meeting after the incident did not detract from the credibility of the complaint. On the charge of gang rape, it held that the prosecutrix's account of both accused acting jointly from the abduction through the confinement established common intention under Section 376(D) IPC, and that the absence of physical signs on the accused stood adequately explained by unchallenged medical evidence of intervening bathing.

However, the Court set aside the conviction under Section 376(2)(n) IPC, which requires proof of repeated rape by the same accused on the same victim, holding that the trial court had not undertaken any independent analysis segregating the acts attributable to each accused. It clarified that this did not affect the substantive sentence, since the twenty-year sentence under Section 376(D) IPC already carried the same minimum punishment and all sentences were directed to run concurrently.

Confirming the conviction under Sections 363, 366 and 376(D) IPC and Sections 6 and 10 of the POCSO Act, along with the sentence of twenty years' rigorous imprisonment, victim compensation under Section 357 Cr.P.C., and DLSA compensation of Rs. 4,00,000/-, the Court dismissed the appeals in all other respects.

Appearances:

For the Appellants: Mr. Dipti Ranjan Swain and Mr. S.S. Ray (2), Advocates.

For the Respondent (State): Ms. Gayatri Patra, Additional Standing Counsel.

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