Nitish Banka

    • An overview of a Rape Trial

    We all know recently the rape incident happened in Delhi which had shaken the conscience of the whole nation yes the Nirbhaya case which outraged the people and the society as a whole and which directed the legislature to look into the laws related to sexual offences.

    But here we are looking at the procedure adopted by the courts to try and punish the perpetrators, How police Investigate the issue and how strings of justice are pulled, and what ground the perpetrators seek to evade, are they successful or not. Here the different elements which are the key ingredients to prosecute the perpetrators.

    1.    FIR/Complaint-: The first step taken by the prosecutrix or the family after any rape incidence is to lodge a complaint in a nearest police station ideally without any delay, but a delay in lodging an FIR could be taken as a defence but is not a strong defence, As court would normally believe that the Delay is due to gravity of the offence and normally The amount of embarrassment faced by the prosecutrix and her family, would not facilitate her to open up and report the matter.Tulshidas Kanolkar v The State of Goa – Citation: (2003) 8 SCC 590 – Supreme Court of India

     

    1. Medical Evidence-: Medical evidence from the prosecutrix as well as from accused is taken and sent to forensic investigation, Medical evidence like Blood Sample, Semen, Vagina swabs, Test of Hymen etc. ossification test is also done in some  cases in which the age of the prosecutrix or the appellant is to be determined, but this test only gives indication and question related to juvenile accused could get settled.  However it is the fundamental right of the accused that he can refuse to give medical sample, However this act may weaken up his case, Even if the medical report does not show torn hymen or any injury due to which the prosecutrix was subjected to rape, This does not weaken up the case as medical evidence is not so conclusive that the incidence have not taken place. The medical evidence is usually opinion evidence (Duraipandi Thevar v. State of Tamil Nadu, AIR 1973 SC 659: 1973 Cr. L.J. 602). The medical opinion by itself, however, does not prove or disprove the prosecution case, it is merely of advisory character.
    1. The testimony of prosecutrix -: It is the statement of the prosecutrix which has a high weight than any other evidence, First instance of prosecutrix statement is when an FIR was lodged and it is before the investigating officer that she gives the detailed information about the incidence. Then again she has to make a statement before the magistrate u/s 164 CrPC.Now if there is minor variation between the two statements then it can be easily ignored, major variations that change the direction of the trial can be used as a defence by the accused.Supreme Court has held that in rape cases the testimony of the victim cannot be considered to be the gospel truth, though in normal circumstances her statement has to be relied upon.

    However the general rule is “If the totality of circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.Dyava v/s State of Karnataka”

    1. The statements of other witnesses-: The statements of prosecution witnesses are used for corroboratingthe statements of prosecutrix, but can be rebutted by virtue of cross examination un corroborated statements of prosecutrix which is not a minor raise a suspicion but uncorroborated statements of a minor girl is presumed to be true unless they are not contradictory to other facts. If a witness turns hostile then there is presumption that the witness was influenced by the defence.

    The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Evidence Act enables the Court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party. The view that the evidence of the witness, who has been called and cross-examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The Courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now settled cannon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution. These principles have been encompassed in the judgments of Supreme Court in the cases : a. KoliLakhmanbhaiChanabhai v. State of Gujarat (1999) 8 SCC 624, b. Prithi v. State of Haryana (2010) 8 SCC 536, c. SidharthaVashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1, d. Ramkrushna v. State of Maharashtra (2007) 13 SCC 525.

    Conclusion

    There is a general presumption that no woman would stake her future prospects of marrying and her respect for falsely implicating the accused, especially if the girl is minor.

    Generally court favour the victims unless it is shown that there are highly probable grounds that the accused has not done the heinous act, even the plea that character of the woman is bad do not hold ground as law does not permit that even if the woman is a prostitute no one has a right to rape her.