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Medical corroboration in rape cases not pre-requisite, bail denied to accused: MP HC

The Single Bench has held that delay in filing FIR by the victim is no ground to throw away the prosecutrix’s case and that medical corroboration is not an absolute necessity while assessing gang rape cases.

Adeeti Singh 24 Oct 2020

MP High Court

On October 16, 2020 Justice Akhil Kumar Srivastava of the Madhya Pradesh High Court has held that medical corroboration of the victim’s statement in a case of gang rape is not absolutely necessary. The order was passed in Harishchandra vs State of Madhya Pradesh (CRA No. 3608 of 2020).  Ms. Savita Choudhary represented the appellant/accused whereas Shri Anuj Singh, appeared for the State. There was no representation present in court for the complainant.

“After hearing learned counsel for both the parties and the entire material available in the PDF format and the fact that it is a case of gang rape and delay in lodging the FIR in rape cases is no ground to discard entire prosecution case and it is also not necessary that medically it should be corroborated and looking to the statement of prosecutrix recorded under section 164 of Cr.P.C. and other material available in PDF form and considering the entire material on merit, this Court is of the view that it is not a fit case in which appellant- Harishchandra may be released on bail under Section 439 of Cr.P.C. filed under Section 14-A of (POA) Act, hence, the appeal is hereby dismissed”, the Single Bench noted.

Justice Srivastava observed this while hearing an appeal filed under section 14A of the SC/ST (Prevention of Atrocities) Act (that allows appeal to a higher court) against the order of a lower court on June 9, 2020 passed by the Special Judge, S.C./S.T Act, Jabalpur, whereby it had refused to grant bail to the accused.

Background

The accused was charged for kidnapping, inducing her to into marriage, wrongful confinement, administering intoxicating drugs, criminal intimidation, repeated rape under relevant sections of the Indian Penal Code and the SC/ST Act and has been in custody in Jabalpur since September 6, 2018.

It was submitted by the Prosecution, that a missing report was filed by the uncle of the complainant and subsequently an FIR under the aforementioned sections against the accused and other co accused in 2018 at the Police Station Ghamapur District, Jabalpur, Madhya Pradesh. The counsel of the accused (Harishchandra), submitted that he has been in jail since September 2018 and the trial is still pending. Further it was alleged that he is innocent and that there is no direct or indirect allegation against him in this crime. There was a delay in lodging an FIR for which no explanation has been furnished was also argued. It was also submitted that the prosecutrix had gotten married to the accused and for which an affidavit sworn by her was filed with the bail application. Hence, there is no likelihood of his absconding and tampering with the evidence and should be granted bail.

But the counsel appearing for the State vehemently opposed the bail application and prayed for rejection of this appeal on the ground that it is a matter of gang rape and in her statement recorded under section 164 of Cr.PC, the prosecutrix had clearly stated against the appellant.

But the court denied the benefit of bail to the accused and dismissed his appeal.

With respect to medical corroboration in sexual assault cases, there have been some significant rulings. In B.C Deva vs State of Karnataka (2007) 12 SCC 122, the Division Bench of Justices R.V Raveendran and Lokeshwar Singh Panta of the Supreme Court had held that even though the medical evidence does not reveal any instance of forced sexual activity, the trustworthy oral testimony of the victim can be accepted by the court. In this case the victim’s oral testimony about being sexually assaulted was corroborated by her mother, father and two eye witnesses even though the medical reports did not reveal any signs of sexual intercourse. The court noted that, “Though, the report of the Gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted.” Since the clothes of the accused and the victim was collected the next day of the incident, the court observed that the medical report cannot be given any importance because the clothes of the accused was taken into possession by the police on the next day of the incident and that there was no evidence to show that he handed over the same clothes to the police, which he was wearing on the day of incident. “The possibility of absence of seminal stains on petticoat of the prosecutrix which she was wearing at the time of the incident, could not be ruled out due to the fact that the petticoat got drenched in the water and the seminal stains might have been washed away”, the Bench also noted.

Justices A Anand and S Majmudar of the Supreme Court in Ranjit Hazarika v State of Assam (1998) 8 SCC 635, had upheld the evidence provided by the prosecutrix and said that, “Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion?” In this case, a young 14-year-old girl was subject to rape by the accused in 1987 when he offered to walk her home and had non-consensual sexual intercourse with her. The opinion of the doctor that no rape appeared to have been committed was based only on the absence of rupture of the hymen and injuries on the private parts of the prosecutrix. The Division Bench held that “this opinion cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. Besides, the opinion of the doctor appears to be based on no reasons.”

The order can be read here:

 

Related:

https://www.sabrangindia.in/article/allahabad-hc-quashes-rape-fir-parties-settle-dispute-getting-married

https://sabrangindia.in/article/women-lawyers-move-sc-against-madhya-pradesh-hc-rakhi-bail-order

Medical corroboration in rape cases not pre-requisite, bail denied to accused: MP HC

The Single Bench has held that delay in filing FIR by the victim is no ground to throw away the prosecutrix’s case and that medical corroboration is not an absolute necessity while assessing gang rape cases.

MP High Court

On October 16, 2020 Justice Akhil Kumar Srivastava of the Madhya Pradesh High Court has held that medical corroboration of the victim’s statement in a case of gang rape is not absolutely necessary. The order was passed in Harishchandra vs State of Madhya Pradesh (CRA No. 3608 of 2020).  Ms. Savita Choudhary represented the appellant/accused whereas Shri Anuj Singh, appeared for the State. There was no representation present in court for the complainant.

“After hearing learned counsel for both the parties and the entire material available in the PDF format and the fact that it is a case of gang rape and delay in lodging the FIR in rape cases is no ground to discard entire prosecution case and it is also not necessary that medically it should be corroborated and looking to the statement of prosecutrix recorded under section 164 of Cr.P.C. and other material available in PDF form and considering the entire material on merit, this Court is of the view that it is not a fit case in which appellant- Harishchandra may be released on bail under Section 439 of Cr.P.C. filed under Section 14-A of (POA) Act, hence, the appeal is hereby dismissed”, the Single Bench noted.

Justice Srivastava observed this while hearing an appeal filed under section 14A of the SC/ST (Prevention of Atrocities) Act (that allows appeal to a higher court) against the order of a lower court on June 9, 2020 passed by the Special Judge, S.C./S.T Act, Jabalpur, whereby it had refused to grant bail to the accused.

Background

The accused was charged for kidnapping, inducing her to into marriage, wrongful confinement, administering intoxicating drugs, criminal intimidation, repeated rape under relevant sections of the Indian Penal Code and the SC/ST Act and has been in custody in Jabalpur since September 6, 2018.

It was submitted by the Prosecution, that a missing report was filed by the uncle of the complainant and subsequently an FIR under the aforementioned sections against the accused and other co accused in 2018 at the Police Station Ghamapur District, Jabalpur, Madhya Pradesh. The counsel of the accused (Harishchandra), submitted that he has been in jail since September 2018 and the trial is still pending. Further it was alleged that he is innocent and that there is no direct or indirect allegation against him in this crime. There was a delay in lodging an FIR for which no explanation has been furnished was also argued. It was also submitted that the prosecutrix had gotten married to the accused and for which an affidavit sworn by her was filed with the bail application. Hence, there is no likelihood of his absconding and tampering with the evidence and should be granted bail.

But the counsel appearing for the State vehemently opposed the bail application and prayed for rejection of this appeal on the ground that it is a matter of gang rape and in her statement recorded under section 164 of Cr.PC, the prosecutrix had clearly stated against the appellant.

But the court denied the benefit of bail to the accused and dismissed his appeal.

With respect to medical corroboration in sexual assault cases, there have been some significant rulings. In B.C Deva vs State of Karnataka (2007) 12 SCC 122, the Division Bench of Justices R.V Raveendran and Lokeshwar Singh Panta of the Supreme Court had held that even though the medical evidence does not reveal any instance of forced sexual activity, the trustworthy oral testimony of the victim can be accepted by the court. In this case the victim’s oral testimony about being sexually assaulted was corroborated by her mother, father and two eye witnesses even though the medical reports did not reveal any signs of sexual intercourse. The court noted that, “Though, the report of the Gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted.” Since the clothes of the accused and the victim was collected the next day of the incident, the court observed that the medical report cannot be given any importance because the clothes of the accused was taken into possession by the police on the next day of the incident and that there was no evidence to show that he handed over the same clothes to the police, which he was wearing on the day of incident. “The possibility of absence of seminal stains on petticoat of the prosecutrix which she was wearing at the time of the incident, could not be ruled out due to the fact that the petticoat got drenched in the water and the seminal stains might have been washed away”, the Bench also noted.

Justices A Anand and S Majmudar of the Supreme Court in Ranjit Hazarika v State of Assam (1998) 8 SCC 635, had upheld the evidence provided by the prosecutrix and said that, “Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion?” In this case, a young 14-year-old girl was subject to rape by the accused in 1987 when he offered to walk her home and had non-consensual sexual intercourse with her. The opinion of the doctor that no rape appeared to have been committed was based only on the absence of rupture of the hymen and injuries on the private parts of the prosecutrix. The Division Bench held that “this opinion cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. Besides, the opinion of the doctor appears to be based on no reasons.”

The order can be read here:

 

Related:

https://www.sabrangindia.in/article/allahabad-hc-quashes-rape-fir-parties-settle-dispute-getting-married

https://sabrangindia.in/article/women-lawyers-move-sc-against-madhya-pradesh-hc-rakhi-bail-order

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