Show greater sensitivity in rape cases, SC tells courts

By T. Padmanabha Rao

NEW DELHI, AUG. 25. The Courts should show `greater sensitivity' bestowing `careful attention' in dealing with cases involving offence of `rape' which is a `serious one', a three-Judge Bench of the Supreme Court has emphasised.

The evidence in such a given case should be appreciated not being carried away by ``insignificant contradictions'', the Bench said.

Delivering the judgment of the Bench, Mr. Justice K. G. Balakrishnan, set aside a judgment of the Himachal Pradesh High Court which affirmed the verdict of the Sessions Judge (Trial Court) acquitting the accused (17 years) in a case of `rape' of a young girl (14 years) in a village on March 17, 1993.

The Bench which included the Chief Justice, Dr. Justice A. S. Anand and Mr. Justice R. C. Lahoti, on scrutiny of the evidence, held that the finding of the Trial Court that there was ``consent'' on the part of the prosecutrix (victim) was ``without any basis''.

``The evidence as a whole indicates that there was resistance by the prosecutrix and there was no voluntary participation by her for the sexual act,'' the Bench said.

``Submission of the body under the fear of terror cannot be construed as a consented sexual act'' and ``consent for the purpose of Section 375 of the Indian Penal Code (IPC) requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between the resistance and assent,'' the Bench pointed out.

Whether there was consent or not, ``is to be ascertained only on a careful study of all relevant circumstances,'' the Bench held.

On a careful perusal of the oral evidence of the victim which was corroborated by medical and other evidence, the Bench observed that the absence of `nail marks' or minor injuries on the body of the accused ``is not of much significance''.

Even if it was assumed that the victim was above 16 years, the reasons attributed by the Trial Court to prove that she had given `consent' for the sexual act ``are not true'' the Bench noted. The Trial Court's finding that the victim was above the age of 16 (on the date of the incident) was ``based on faulty reasons'' unsupported by evidence, the Bench said.

As regards the sentence, the Bench took a `lenient view' in view of the plea of the counsel for the accused that both the victim and the accused - both teenagers - were related and that any custodial sentence ``at this distance of time'' might cause rupture to social harmony in the village and might only help to rekindle the flames of anger which had been smouldering for so long between near relatives. The Bench thus held that the sentence already undergone by the accused would be sufficient to meet the ends of the justice.

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