The Delhi High Court has held the presumption of truth attached to the testimony of a sexual assault victim is not irrebuttable..However, the evidence required to rebut such a presumption in favour of a victim of sexual assault would be of an extremely high standard, the Court held..The judgment was passed by a Single Judge Bench of C Hari Shankar in an appeal preferred by one Shiva against his conviction by a trial court. The trial court had sentenced the appellant to 30 years of rigorous imprisonment..As per the victim’s statement under Section 161 CrPC, she was forcefully take away by the appellant while she was travelling from Kanpur to Raebareli with her husband and her children..Thereafter, she found herself in a room in Delhi. She alleged that the appellant did not allow her to leave the house and administered intoxicating drugs to her. She alleged that he used to commit “wrong acts” with her for over nine months, apart from torturing her mentally and physically..The victim also levelled allegations of gang rape by two of the appellant’s friends who had their faces covered. One day, she managed to somehow leave the house and contact the police..The trial court held the appellant guilty of commission of offences under Sections 344, 376, 376(D), 323 and 506 of the IPC based on the victim’s “consistent testimony” and forensic science reports. It, however, acquitted him of the charges under Sections 328, 366 and 377 IPC..Before the High Court, the appellant disputed the version put forth by the victim on various grounds. It was broadly argued that the cohabitation between the appellant and the victim was consensual..Analyzing the contentions, the Court opined that the result of the DNA profiling of the semen found at various sites left no doubt regarding the actual physical fact of sexual intercourse between the appellant and the victim..It recorded that as per the forensic report, no semen of any other person was found on the victim, her salwar, or on the bed sheet seized from the room where the offence was alleged to have taken place..While examining the conviction of the appellant for gang rape, the Court also raised serious questions as to how and when a bag of used condoms was seized from the premises when only one used condom formed part of the exhibit provided to the Forensic Science Laboratory..“This is, in the opinion of this Court, an extremely serious discrepancy, especially as the DNA analysis of the semen found on the single used condom received by the FSL constitutes the sole basis for the decision, of the learned ASJ, to convict the appellant under Section 376D of the IPC.”.Interestingly, the conviction for gang rape was based on the FSL report which states that the semen found in the one used condom did not match the DNA profile of the appellant..The High Court further noted that there was a delay of two weeks in forwarding the seized bag of used condoms to the FSL..“The inference that the bag of used condom was tampered with before it was forwarded to the FSL is inescapable”, the Court remarked..The Court thus concluded that the fact that the appellant’s DNA profile did not match the one found on the used condom was entirely insufficient to justify a finding of gang rape having taken place..“If nothing else, the presence of semen in a condom does not necessarily indicate penetration”, it stated..Having set aside the conviction for gang rape, the Court remarked that the only question left to be determined was whether the sexual intercourse was consensual..It was opined that the case, as sought to be built up by the prosecution on the basis of the allegations of the prosecutrix, bristled with improbabilities and even impossibilities..Apart from the fact that the victim’s allegation that she was forcibly brought to the house in an unconscious state did not inspire confidence, there was no evidence of any injury on any part of her body to sustain allegations of physical torture or assault, the Court said..The Court also noted that the house where the victim was kept had as many as ten to twelve other tenants, and even shared a common toilet. Yet, none of the tenants was co-opted as a witness, or was aware of the incident..After noting various other discrepancies, the Court remarked,.“When seen holistically, the entire narrative as propounded by the victim and adopted by the prosecution which was accepted (in part) by the Trial court was impossible to believe.”.The Court then observed that the testimony of a victim of sexual assault could be rebutted..“It is true that, in cases of sexual offence and sexual assault, the testimony, of the allegedly assaulted prosecutrix, carries great weight, and may, in many cases, justifiably constitute the sole basis for conviction. It is equally trite, however, that, at the very highest, such testimony remains in the realm of presumption, howsoever strong such presumption may be. .Law, however, does not recognise the irrebutable presumption, and the expression, though often used, must remain an oxymoron. The law does style certain presumptions as ―irrebutable; that, however, only means that the law would not allow the rebuttal of such presumptions, and not necessarily that the presumptions themselves are incapable of rebuttal.”.While discussing the concept of consent, the Court added,.“Proving the presence, or absence, of consent, is always a tricky affair, as it requires psychoanalysis of the victim of the alleged sexual assault. It being impossible to conclusively determine the state of mind of any person, the court is always required, where the determination of such state of mind is necessary in law, to holistically consider the circumstances of the case, and arrive at a conclusion in that regard.”.Coming to the incident at hand, which partly took place before the Criminal Law (Amendment) Act, 2013 came into force, the Court opined that even if the amendment Act was to be made applicable to the case, Section 114A of the Evidence Act read with Section 4 of the Evidence Act would allow a rebuttal with adequate evidence and material..“…even if Section 114A of the Evidence Act were to be treated as applicable to the present case, the usage of the words ―shall presume, in the said provision, read with Section 4 of the Evidence Act, would allow a rebuttal, albeit with adequate evidence and material, of the presumption of lack of consent, which Section 114A creates.”.The Court also recorded that there were “embellishments and inconsistencies” between the victim’s statements made under Section 161 and 164 CrPC..It was thus concluded,.“The case of the prosecutrix, as sought to be set up against the appellant is, therefore, replete with inconsistencies, improbabilities and imponderables and cannot, therefore, in the opinion of this Court, suffice to convict the appellant of having committed ―rape‖ on the prosecutrix, or even of having assaulted her in any other manner.”.Therefore, the appellant’s conviction was set aside..The appellant was represented by Advocate Pramod Kumar Dubey with advocates Pinky Dubey, Saurabh Kumar and Harpreet Kalsi. .The State was represented by APP Meenakshi Chauhan. .Read the Judgment:
The Delhi High Court has held the presumption of truth attached to the testimony of a sexual assault victim is not irrebuttable..However, the evidence required to rebut such a presumption in favour of a victim of sexual assault would be of an extremely high standard, the Court held..The judgment was passed by a Single Judge Bench of C Hari Shankar in an appeal preferred by one Shiva against his conviction by a trial court. The trial court had sentenced the appellant to 30 years of rigorous imprisonment..As per the victim’s statement under Section 161 CrPC, she was forcefully take away by the appellant while she was travelling from Kanpur to Raebareli with her husband and her children..Thereafter, she found herself in a room in Delhi. She alleged that the appellant did not allow her to leave the house and administered intoxicating drugs to her. She alleged that he used to commit “wrong acts” with her for over nine months, apart from torturing her mentally and physically..The victim also levelled allegations of gang rape by two of the appellant’s friends who had their faces covered. One day, she managed to somehow leave the house and contact the police..The trial court held the appellant guilty of commission of offences under Sections 344, 376, 376(D), 323 and 506 of the IPC based on the victim’s “consistent testimony” and forensic science reports. It, however, acquitted him of the charges under Sections 328, 366 and 377 IPC..Before the High Court, the appellant disputed the version put forth by the victim on various grounds. It was broadly argued that the cohabitation between the appellant and the victim was consensual..Analyzing the contentions, the Court opined that the result of the DNA profiling of the semen found at various sites left no doubt regarding the actual physical fact of sexual intercourse between the appellant and the victim..It recorded that as per the forensic report, no semen of any other person was found on the victim, her salwar, or on the bed sheet seized from the room where the offence was alleged to have taken place..While examining the conviction of the appellant for gang rape, the Court also raised serious questions as to how and when a bag of used condoms was seized from the premises when only one used condom formed part of the exhibit provided to the Forensic Science Laboratory..“This is, in the opinion of this Court, an extremely serious discrepancy, especially as the DNA analysis of the semen found on the single used condom received by the FSL constitutes the sole basis for the decision, of the learned ASJ, to convict the appellant under Section 376D of the IPC.”.Interestingly, the conviction for gang rape was based on the FSL report which states that the semen found in the one used condom did not match the DNA profile of the appellant..The High Court further noted that there was a delay of two weeks in forwarding the seized bag of used condoms to the FSL..“The inference that the bag of used condom was tampered with before it was forwarded to the FSL is inescapable”, the Court remarked..The Court thus concluded that the fact that the appellant’s DNA profile did not match the one found on the used condom was entirely insufficient to justify a finding of gang rape having taken place..“If nothing else, the presence of semen in a condom does not necessarily indicate penetration”, it stated..Having set aside the conviction for gang rape, the Court remarked that the only question left to be determined was whether the sexual intercourse was consensual..It was opined that the case, as sought to be built up by the prosecution on the basis of the allegations of the prosecutrix, bristled with improbabilities and even impossibilities..Apart from the fact that the victim’s allegation that she was forcibly brought to the house in an unconscious state did not inspire confidence, there was no evidence of any injury on any part of her body to sustain allegations of physical torture or assault, the Court said..The Court also noted that the house where the victim was kept had as many as ten to twelve other tenants, and even shared a common toilet. Yet, none of the tenants was co-opted as a witness, or was aware of the incident..After noting various other discrepancies, the Court remarked,.“When seen holistically, the entire narrative as propounded by the victim and adopted by the prosecution which was accepted (in part) by the Trial court was impossible to believe.”.The Court then observed that the testimony of a victim of sexual assault could be rebutted..“It is true that, in cases of sexual offence and sexual assault, the testimony, of the allegedly assaulted prosecutrix, carries great weight, and may, in many cases, justifiably constitute the sole basis for conviction. It is equally trite, however, that, at the very highest, such testimony remains in the realm of presumption, howsoever strong such presumption may be. .Law, however, does not recognise the irrebutable presumption, and the expression, though often used, must remain an oxymoron. The law does style certain presumptions as ―irrebutable; that, however, only means that the law would not allow the rebuttal of such presumptions, and not necessarily that the presumptions themselves are incapable of rebuttal.”.While discussing the concept of consent, the Court added,.“Proving the presence, or absence, of consent, is always a tricky affair, as it requires psychoanalysis of the victim of the alleged sexual assault. It being impossible to conclusively determine the state of mind of any person, the court is always required, where the determination of such state of mind is necessary in law, to holistically consider the circumstances of the case, and arrive at a conclusion in that regard.”.Coming to the incident at hand, which partly took place before the Criminal Law (Amendment) Act, 2013 came into force, the Court opined that even if the amendment Act was to be made applicable to the case, Section 114A of the Evidence Act read with Section 4 of the Evidence Act would allow a rebuttal with adequate evidence and material..“…even if Section 114A of the Evidence Act were to be treated as applicable to the present case, the usage of the words ―shall presume, in the said provision, read with Section 4 of the Evidence Act, would allow a rebuttal, albeit with adequate evidence and material, of the presumption of lack of consent, which Section 114A creates.”.The Court also recorded that there were “embellishments and inconsistencies” between the victim’s statements made under Section 161 and 164 CrPC..It was thus concluded,.“The case of the prosecutrix, as sought to be set up against the appellant is, therefore, replete with inconsistencies, improbabilities and imponderables and cannot, therefore, in the opinion of this Court, suffice to convict the appellant of having committed ―rape‖ on the prosecutrix, or even of having assaulted her in any other manner.”.Therefore, the appellant’s conviction was set aside..The appellant was represented by Advocate Pramod Kumar Dubey with advocates Pinky Dubey, Saurabh Kumar and Harpreet Kalsi. .The State was represented by APP Meenakshi Chauhan. .Read the Judgment:
