The Invisible Scars

By Dr Swati Jindal Garg

Former Supreme Court judge Justice Arijit Pasayat said: “While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.”

Acknowledging that sometimes cruelty, especially of a sexual nature, cannot be seen but only felt, the Delhi High Court recently said that the mere lack of injuries on the victim’s private parts cannot be used as a basis to conclude that a penetrative sexual assault under the POCSO Act did not occur. The most important question that now follows is whether a lack of any physical injury on the victim is conclusive proof that there was no coercion involved and hence goes to prove that rape did not occur?

Justice Amit Bansal of the Delhi High Court, while upholding the conviction of an accused in a case involving sexual offenses against a four-and-a-half-year-old victim, observed: “It is not necessary that in every case there would be an injury caused. Therefore, mere absence of injuries cannot be a ground to hold that penetrative sexual assault did not take place.” The accused was sentenced to 12 years rigorous imprisonment under Section 6 of the POCSO Act, three years under Section 363 of the IPC and six months under Section 342 IPC.

The major portion of the defense rested on the ground that there were material contradictions in the victim’s statements and that the prosecution’s case was based solely on her testimony, which lacked sufficient corroboration. They also argued that the absence of certain injuries and the condition of the hymen suggested that the case should be treated as one of “touching” rather than penetration. This would result in a far lighter punishment for the accused. 

The prosecution, on the other hand, relied on the victim’s untarnished testimony and contended that her various statements supported the prosecution’s case without inconsistencies. They emphasised that the victim’s statement during the trial, her statement under Section 161 of the CrPC and the statement given to the doctor during the medical examination were consistent in describing the accused’s actions. They also stressed that a conviction under Section 376 of the IPC can be based on the sole testimony of the victim if it was found to be reliable and trustworthy as in such cases the probability of having eye-witnesses is extremely low.

The Court also took note of the submission that the victim’s statements, recorded under Section 161 of the CrPC and during the trial, had consistently detailed the same incident of the accused inserting his finger into her private parts. The Court also discussed the alleged inconsistency between the victim’s statement under Section 164 of the CrPC and her other statements, and it reminded the defense that minor contradictions, especially considering the victim’s young age, did not render her testimony unreliable. “There is no doubt that the victim has been consistent in all her other statements and has unequivocally stated that the appellant had inserted his finger in her private parts. In fact, in her testimony before the Court she went on to say that this act had caused her a lot of physical pain. Thus, the contradiction in her statement under Section 164 of the CrPC is of a minor character and does not make her testimony unreliable.”

The Court cited legal precedents to support its observation that minor discrepancies should not be given undue importance and that the credibility of the witness should be evaluated based on the overall context of the case. The Court said that the reliability of the victim’s statement, her ability to withstand cross-examination and the corroboration provided by her mother’s statement all went to show that she was indeed the victim. 

Answering to the major contention of the defense—the absence of injuries on the victim’s private parts—the Court explained that this did not necessarily negate the offense and that the presence of injury depended on various factors. Upholding the view taken by the lower court, the High Court said: “The trial court has correctly observed that injury on the private parts in cases of sexual offences depends on various factors such as depth of insertion, among others. It is not necessary that in every case there would be an injury caused. Therefore, mere absence of injuries cannot be a ground to hold that penetrative sexual assault did not take place.”

According to the prosecution, the incident took place in June 2017 when the child, who was playing outside her house, went missing. While searching for her, the father then went to a neighbour’s house and found her there, it said. On returning home, the child disclosed that the man had taken her to his house on the pretext of giving her Mango Frooti and sexually assaulted her. The parents informed the police and a case was registered against the man. 

This is not the first time that the courts have said that lack of physical injuries does not negate the occurrence of rape. The apex court has also said that an accused can be convicted for rape even if there are no injuries on the private parts of the victim as this does not amount to consensual sex. A bench of Justices VS Sirpurkar and RM Lodha had said: “Corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent.” The observation was made while rejecting the argument of convict Rajender alias Raju who claimed that absence of any injuries on the victim’s private parts indicated that she consented to the sex and that the charge of rape was not corroborated by any other evidence except her testimony.

The apex court also stressed that in rape cases, the sole testimony of the witness without any corroboration can be relied on as rarely would a self-respecting Indian woman accuse a man of raping her. “In the context of Indian culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit,” the bench said.

In another case too, the Court had held that the contention of the accused that the prosecutrix was habitual of sexual intercourse and there were no signs of recent forcible sexual intercourse or injuries on her body could not stand as it was not expected that every rape victim should have injuries on her body to prove her case.

In the case of Dastagir Sab, the Court had reiterated that injury on the body of the victim is not essential to prove a charge of rape and its absence would not by itself be sufficient to discard the case. In a case where the accused persons forcibly took a girl in a car to a canal and raped her one after the other, they claimed that the absence of injury on any part of her body falsifies the case of rape. This was because, they claimed, the victim was expected to offer resistance which would normally cause certain injury on her body and particularly on the back and as this was not so, it should be held that there was no such incident. Here too, the Court held that this statement was devoid of any merit. 

Time and again, courts have noted that it is not necessary that whenever resistance is offered, there must be some injury on the body of the victim. In the above case, considering that the accused were four in number and the girl was around 20 years, she was not expected to offer such resistance as would cause injuries to her body. Thus there has been more than one instance where the courts have outright rejected the arguments of the accused.

The presumption that no bodily injury on the victim indicates that she had consented to sexual intercourse with the accused and thereby no rape was committed ignores the fact that rape is not just a physical condition, but much beyond that. Rape is an offense that has a deep psychological effect on the victim. It is an offense that challenges the dignity of the women and leaves a deep scar on her soul, so much so that she starts feeling hatred and disgust against her own body. 

Therefore, it is imperative that courts take a balanced view of the situation while keeping in mind the mental state of the woman who has been violated and punish the offenders accordingly. 

—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi

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