crl. citation

1990 SCC (Crl)210 (State of Maharashtra –vs- Chadraprakash Kewalchnd Jain) in which it was held that “ Having regard to the increase in the number of sex violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particuulars excepts in the rarest of rare caseis to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to the injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to an crime.

Ours is a conservative society where it concerns sexual behavior. Ours is not a permissive society as in some of the western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are increasing. An Indian woman is now required to suffer indignities in different forms, from lower remarks for eve-teasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if we deal strictly with those who violates the societal norms. The standard of proof to be expected by the court in such cases must take into account that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also

realize that ordianarily a woman more so a young girl, will not make her reputation be leveling a false charge concerning her chastity”. 22. In Bhagwada Bhoginbhal Hirihibhal’ Vs – state of Gujurat AIR 1983 SC 753 the Hon’ble Apex court questions “ why should the evidence of a girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in male dominated society “

23. Proceeding further court said that “the statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the

sophisticated, not so not so sophisticated and unsophisticated s society. Only very rarely can one or two conceivable come across an exception of two and that too possibly from amongst the urban elites. Because (1) A girl or woman in the tradition bound non-permissive society of india would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity has ever occurred; (2) She would be conscious of the danger of being ostracized by the society or being looked down by the society including be her own family members, relatives, friends and neighbousr. (3) She would have to brave the whole world (4) She would face the rist of losing the love and respect of her own husband and near relatives and of her matrimonial home and happiness being shattered (5) if she is unmarried, she would apprehend that it

would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family (6) it would almost inevitable and almost invariably result in mental torture and suffering to herself; (7) the fear of being tauted by others will always haunt her (8) She would feel extremely embrassed in relating the incident of others being overpowered by a feeling of shame on account of the upbring in a tradition bound society whereby and large sex is taboo. (9) the natural inclimination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy (10) the parents of an unmarried girl as also the husband and members of the husband’s family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) the fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence (12) The reluctance to face the cross –examination by counsel for the culprit, and the risk of being disbelieved, acts as a deterrant”.

24. The learned Addl. PP would further draw the attention of this court to the decision of Hon’ble Apex Court in State of Maharashtra –vs- Chadraprakash Kewalchnd Jain referred above, in which The Hon’ble Apex Court has an occasion to discuss about what approach of the Court should be while evaluating the prosecution evidence, particularly the evidence of the prosecution, in sex offences. it has held that “ a victim of sexual assault is not an accomplice to the crime but is a victim of another person’s lust and therefore her evidence need

not be tested with the same manner of suspicion as that of an accomplice. She is not in the category of a child witness or an accomplice and therefore the rule of prudence that her evidence must be corroborated in material particulars has no application, at the most the court may look for some evidence which lends assurance”.

25. The Hon’ble court has further held that “the prosecution of a sex offence cannot be put on par with the accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated inn a material particulars. She is undoubtedly, a competent witness under section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person interested in the outcome of the charge leveled by her. If the court keeps this in mind, and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule or practice incorporated in the Evidence Act similar to illustration (b) to section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony

of the prosecutrix must necessarily depends on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding, the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose 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”. It has reiterated the same in Karnel Singh –vs- State of M.P. (1995 SCC(crl)977.

Padma –vs- Radha Krishna and others reported in 2001(1)MWN (Crl.)277 the Hon’ble High Court has held that “delay in lodging complaint explained by the prosecution on the ground that they had to necessarily wait till the marriage of the sister of A1 as assured by A1. The facts of the said case is that A1 promised and induced Pw2 to marry her and tied a Karugumani Pasi and believing his words, both of them has sexual affairs which lasted 7,8,years. During that period, there were two abortions also – PW1/father of Pw2when contacted A2/father of A1, he was assured that after the marriage of the sister of A1, the matter can be discussed. hence there is delay in lodging complaint has been explained, as they had to necessarily wait till the marriage of the sister of A1 as assured”.

In Padma –vs- Radha Krishna and others, referred above, Our Hon’ble High Court has further held that “The language employed under section 415 as well as 376 are relevant to be considered. It is seen from section 375 clause 4 that a man is

said to commit ‘rape’ who except in the case hereunder excepted has sexual intercourse with a woman under circumstance falling under the following description.

‘with their consent, when the man knows that he is not her husband, and that her consent is given because she believes that he another man to whom she is or believes herself to be lawfully married”

G.V.Rao –vs- LHV Prasad and others (2000 SCC (Crl)733,, that the “intentional deception presupposes the existence of a dominant motive of the person making the inducement. Such inducement should have led the person deceived or induced to do or omit to do if he were not deceived. The further requirement is that such act or omission should have caused damage or harm to body, mind, reputation to property”. In K.U.Prabhu raj –vs-State (2012)3LW770) Our Hon’ble High Court has held that “ Mere promise to marry and later on withdrawing the said promise will not amount to an offence of cheating at all. On such false promise to marry, the person to whom such persomise was made should have done or omitted to do something that he would not have done or omitted to do but for the deception.”

Mahesh and another –vs- State of Madhya Pradesh in (2011)9 SCC 626 it was held that “there while discussing about section 134 of Indian Evidence Act, 134, No necessity for prosecution to multiply the witnesses to prove and establish prosecution case. There is no requirement in law of evidence that any

particular number of witnesses is to be examined to prove something. Evidence has to be weighed and not to be counted”.

. In State of Maharashtra –vs- C.K.Jain, referred above, it was held that “in the Absence of details in FIR, oral statement reduced to writing as FIR containing no details. Hence detailed version recorded subsequently in the circumstances. Lack of details of FIR is not material”.

48. In Karnel singh –vas- State of MP, referred above, it was held that “Mere delay in lodging the FIR does not raise the inference that the complainant was false- Indian women slow and hesitant to complain of such assault. In the circumstances defective investigation cannot be a ground for acquitting the accused”

49. In Sukhchainn singh –vs- State of Haryana and others 2002 SCC (Crl) 961 it was held that failure of investigating agency to take steps necessary to prove guilt beyond reasonable doubts, held cannot be a ground to reject the prosecution version or statement of the eyewitnesses. In Allarakha Mansuri -vs- state of Gujarat 20002 SCC (Crl0519 it was held that “defective investigation by itself cannot be made a ground for acquittal”

In Nagesh –vs- state of Karnataka, (2012)6 SCC477 Our Hon’ble Apex Court has explained the importance of examination of accused under 313 questioning and It has held that ”the purpose of putting accused under such examination. under

sec.313 is to put to accused material evidence appearing in a case against him as well as to provide him an opportunity to explain his conduct or his version of the case it is also possible and permissible that an accused may remain silent but in that circumstances and with reference to facts and circumstances of a given case, court may be justified in drawing an adverse inference against accused section 106 and section 114 III(g) of Indian Evidence Act, 1872”.

Ramasubbu -Vs- Loganathan & another In 2009(1) TLNLj (Crl) 411, Our Hon'ble High Court has held that, So far as the offence u/s 304(B) is concerned, to hold a person’s guilty of such offence, 3 ingredients must be proved. They are:1) the death must have occurred within 7 years from the date of marriage.2) the death should have been caused by burns or bodily injury or should have occurred otherwise than under normal circumstances and3) soon before her death the deceased should have been subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry.”

in Prakash -Vs- State of reported in 2006 Crl L.J 2226 that “Evidence of relatives of deceased that she was ill-treated on account of demand of money not inspiring confidence as there were improvements in their evidence and no other evidence to

prove ill-treatment” and held that Accused husband entitled to acquittal for charge u/s 306 IPC.

counsel would rely upon the decision of Hon'ble Apex Court in Narayanamurthy -Vs- state reported in 2008 SAR (Crl) 519 wherein it was held that 'Gift at the time of performing customary thread changing ceremony in connection with birth of child – are not enveloped within the ambit of dowry; as admittedly marriage was done by accused and deceased themselves after eloping from their house's and no question of demanding dowry at the time of marriage will arise”

Satvir Singh Vs. State of Punjab(2001) 8 SCC 633 (SCC p. 643, paras 21-22)wherein it was held: “Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is 'at any time' after the marriage. The third occasion may appear to be an unending period. But the crucial words are 'in connection with the marriage of the said parties'. This means that giving of agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of 'dowry'. Hence the dowry mentioned in section 304-B should be any

property or valuable security given or agreed to be given in connection with the marriage”.

Ramasubbu-vs- Loganathan and another referred supra has held that The basic ingredients to attract the provisions of Section 304B, IPC are as follows:-(1) That the death of the woman was caused by any burns or bodily injury or in some circumstances which were not normal;(2) such death occurs within 7 years from the date of her marriage;(3) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband;(4) such cruelty or harassment should be for or in connection with the demand of dowry; and(5) it is established that such cruelty and harassment was made soon before her death'”

The learned Defence counsel would relying up the decision of our Hon'ble High Court which has held in Michel raj and another -Vs- State reported in 2008 (1) MLJ (Crl) 593 that “prosecution is obliged to show before the occurrence there was cruelty or harassment and only in that case prescription operates. In suicidal death, if no direct evidence for cruelty for demand of dowry seen before the occurrence is proved connection is set under and led Defence counsel would plea that reliance should not be placed on record only on interested and hearsay evidence of PW1 to PW3 and convict the accused”.

In the said referred case the Hon'ble Court has further held that, “Soon before is a relative term and it would depend

upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of proximity test both for the proof of an offence of dowry death as well as for raising a presumption under section 113-B of the Evidence Act. The expression 'soon before her death' used in the substantive section 304 B.I.P.C. and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. The determination of the period which can come within the term 'soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.”

the house, bound to explain the death of the deceased. 1996 SC (Crl) 1120 (P.Sathyanarayana and another v. Mallaiah and others); 2004 1 LW (Crl) 67 (Muthuvel and another v. State by Inspector of police, Keelarakularaman Police Station,

Virudhunagar) and 2007 1 LW (Crl) 61(Mohd. Fazluddin y. State, rep. by Inspector of Police, Chennai).

in Ramasubbu –vs.Loganathan and another, referred supra., where it was held that, “the mere fact that the women has committed suicide within seven years from the date of marriage, is not enough to draw the presumption to abetment to suicide

Prakash -Vs- State of reported in 2006 Crl L.J 2226 that “Evidence of relatives of deceased that she was ill-treated on account of demand of money not inspiring confidence as there were improvements in their evidence and no other evidence to prove ill-treatment”

Narayanamurthy -Vs- state reported in 2008 SAR (Crl) 519 wherein it was held that 'Gift at the time of performing customary thread changing ceremony in connection with birth of child – are not enveloped within the ambit of dowry; as admittedly marriage was done by accused and deceased themselves after eloping from their house's and no question of demanding dowry at the time of marriage will arise” and charge of demanding motor-cycle at the time of Valaikaapu ceremony can’t be termed as dowry.

in Satvir Singh Vs. State of Punjab(2001) 8 SCC 633 (SCC p. 643, paras 21-22)wherein it was held: “Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is 'at any time' after the marriage. The third occasion may appear to be an unending period. But the crucial words are 'in connection with the marriage of the said parties'. This means that giving of agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of 'dowry'. Hence the dowry mentioned in section 304-B should be any property or valuable security given or agreed to be given in connection with the marriage”.

in Ramasubbu-vs- Loganathan and another referred supra has held that The basic ingredients to attract the provisions of Section 304B, IPC are as follows:-(1) That the death of the woman was caused by any burns or bodily injury or in some circumstances which were not normal;(2) such death occurs within 7 years from the date of her marriage;(3) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband;

(4) such cruelty or harassment should be for or in connection with the demand of dowry; and(5) it is established that such cruelty and harassment was made soon before her death'”

in Michel raj and another -Vs- State reported in 2008 (1) MLJ (Crl) 593 that “prosecution is obliged to show before the occurrence there was cruelty or harassment and only in that case prescription operates. In suicidal death, if no direct evidence for cruelty for demand of dowry seen before the occurrence is proved connection is set under and led Defence counsel would plea that reliance should not be placed on record only on interested and hearsay evidence of PW1 to PW3 and convict the accused”.

In the said referred case the Hon'ble Court has further held that, “Soon before is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of proximity test both for the proof of an offence of dowry death as well as for raising a presumption under section 113-B of the Evidence Act. The expression 'soon before her death' used in the substantive section 304 B.I.P.C. and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. The determination of the period which can come within the term 'soon before' is left to be determined

by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.”

1996 SC (Crl) 1120 (P.Sathyanarayana and another v. Mallaiah and others); 2004 1 LW (Crl) 67 (Muthuvel and another v. State by Inspector of police, Keelarakularaman Police Station, Virudhunagar) and 2007 1 LW (Crl) 61(Mohd. Fazluddin y. State, rep. by Inspector of Police, Chennai).



crl. citation

Documents