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Rape — a Psychological Assault?
by Meenu*

Cite as : (2000) 2 SCC (Jour) 44

The law relating to different aspects of trial and punishment of the offence of rape has undergone a sea change in our country due to the consistent efforts of the courts. The case-law is replete with decisions in which the traditional approach of insisting on corroboration of the statement of the victim and of absence of her consent has been categorically abandoned by the courts. The Supreme Court has now added a new dimension to the law by implicitly admitting that rape is not simply a physical assault but a psychological violence.

Courts used to take the position that if there were no proof of physical assault there would be no rape. The presumption that if no physical injury is evident on the victim, no sexual intercourse has taken place or rape has not been committed, ignores the fact that rape is not only an offence involving physical violence, but also psychological violence. This too when existing laws recognize mental agony and psychological violence as offences against the body. The victim of rape besides being physically ravished is psychologically wounded. It is the feeling of having been exploited and violated more than anything else which leaves lifelong scars on the mind of the victim. Perhaps this trauma has been recognized in a case where it was held that the absence of injuries on private parts of the prosecutrix would not rule out her being subjected to rape.1 Krishna Iyer., J, who is famous for his humanistic approach towards law, observed in Rafiq case2:

"[W]hen no woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her, we cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken by the victim strikes a judicial mind as probable. ... When a woman is ravished what is inflicted is not merely physical injury, but 'the deep sense of some deathless shame'. ... Judicial response to human rights cannot be blunted by legal bigotry."3

In a similar spirit the Supreme Court in Sheikh Zakir case4 has held:

"The absence of any injuries on the person of the complainant may not by itself discredit the statement of the complainant. Merely because the complainant was a helpless victim, who was by force prevented from offering serious physical resistance, she cannot be disbelieved."5

In the light of the precedents medical evidence in cases of rape has grown in importance, so much so that sometimes the accused tries to use it to his advantage. The question thus arises whether giving disproportionate importance to medical evidence amounts to bringing back the rule of corroboration. Earlier the victim's testimony had to be corroborated in material particulars. After the dismantling of this rule, now corroboration by medical evidence seems to have come to the fore. In Gopal Kakkad case6, where the question as to what constitutes sexual intercourse and rape was discussed, the Apex Court has put the matter in perspective7:

"Sexual intercourse: In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore, quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."

It was further held in this case: (SCC p. 222, para 37)

"[T]o constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of law. ... In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is a crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."

Thus what follows from this judgment is that although medical evidence is relevant to establish the factum of occurrence of sexual intercourse, it is to remain restricted only to the factual aspect of the offence. The legal aspect whether rape was committed has to be established in the light of testimonial evidence, including the statement of the victim.

This is precisely what happened in Ranjit Hazarika case8. The victim in this case, a young girl, innocently accepted the offer of the accused to walk her home. She was raped on the roadside. An FIR was lodged; she was sent for medical examination. At the trial, prosecution witnesses remained unchallenged. Being aware of the developments in law, the trial court convicted the accused under Section 376 IPC. The High Court of Assam upheld the conviction and sentence. But the accused still thought he could wriggle out. In his appeal by special leave the accused contended that the medical evidence "belies the testimony of the prosecutrix and her parents". The Apex Court rejected this argument and gave emphasis to the evidence of the prosecutrix thus:

"The prosecutrix has, in her statement recorded at the trial as also her earlier statement recorded under Section 164 CrPC, clearly narrated the manner in which the appellant forcibly performed sexual intercourse with her without her consent on the roadside.... Her statement has remained virtually unchallenged in the cross-examination. The statement of the prosecutrix has been amply corroborated by her mother and her father, .... Their evidence was not challenged in the cross-examination at all."9

Absence of injury to the prosecutrix advanced as a plea to disprove the allegation of rape was dismissed by the Supreme Court thus:

"The mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result of the penetration of the penis in her vagina. She was subjected to sexual intercourse in a standing posture and that itself indicates the absence of any injury on her private parts. To constitute the offence of rape, penetration, however slight, is sufficient. The prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement has remained unchallenged in the cross-examination. Neither the non-rupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutrix particularly when we find that in the cross-examination of the prosecutrix nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake. The opinion of the doctor that no rape appears to have been committed was based only on the absence of rupture of the hymen and injuries on the private parts of the prosecutrix. 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'."10

In the appeal the counsel of the appellant sought to bring out that, in the absence of corroboration of statement of the prosecutrix by medical evidence, the conviction of the appellant was bad. This contention was totally rejected by the Apex Court and it was also reiterated that there is no need for corroboration. The Apex Court asserted:

"The prosecutrix of a sex offence is a victim of a crime and there is no requirement of law which requires that her testimony cannot be accepted unless corroborated."11

The Court while convicting the accused relied on Gurmit Singh case12 which had brought about a logical conclusion to the controversy over the rules of corroboration and prudence. This case is in essence the culmination point of the evolution of law discussed so far. The Supreme Court, in this case, has clearly explained the importance of the victim's testimony:

"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. .... The testimony of the victim in such cases is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. ... The evidence of a victim of sexual assault stands almost on par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding."13

The Court has here again recognized the fact that rape is not a medical condition but a crime. But what is more important is that the judiciary is now appreciative and sensitive towards the sociological and psychological aspect of rape. There could be a scenario in which the victim is stripped naked, molested, but never penetrated! What would then be the offence? Sexual assault, molestation or rape? If the accused degrades a woman and he does everything other than penetration, would he then be charged with a lesser offence? There is indeed a very thin line between sexual abuse, molestation and rape. Finally it seems that law is progressing and evolving towards recognizing this aspect of sexual offences. The decision in Madan Lal v. State of J&K14 affirms this feeling. In this case, the victim was a thirteen-year-old girl whose headmaster forced her into intercourses. The FIR was registered under Sections 376/511 IPC. The Sessions Court acquitted the headmaster because the girl's statement was that there had been penetration into the vagina to a depth of a quarter of one inch or one inch; but in the absence of injury to the hymen, her story was found to be unbelievable. The High Court while reversing the order of acquittal found "her evidence that of a truthful witness, which gives an account of the incident that happened to a rustic girl who was traumatized on account of sexual harassment meted out to her by none other than her own school headmaster".

The Apex Court while holding the accused guilty of committing the offence of attempt to rape observed:

"The difference between preparation and an attempt to commit an offence consists chiefly in the greater degree of determination and what is necessary to prove for an offence of an attempt to commit rape has been committed is that the accused has gone beyond the stage of preparation. If an accused strips a girl naked and then making her flat on the ground undresses himself and then forcibly rubs his erected penis on the private parts of the girl but fails to penetrate the same into vagina and on such rubbing ejaculates himself then it is difficult for us to hold that it was a case of merely assault under Section 354 IPC and not an attempt to commit rape under Section 376 read with Section 511 IPC."15

Thus it can be seen that all possible frivolous defences of the accused in rape cases have systematically been rejected by the courts. The prosecutrix no longer requires her statement to be corroborated either in material particulars, or by other witnesses, or by medical opinion. All that is needed is the "Truth". The counsel for the State has to see to it that the victim's truth is recognized and appreciated in evidence by the court. Any conviction on the testimony of the prosecutrix which inspires confidence, wherever challenged will stand its ground if the prosecutrix has stated: "Truth and nothing but the truth." It seems that the age-old saying "Satyameve Jayate"16 will finally be given its due meaning and respect.

The case of Ranjit Hazarika8 shows that when the victim says she has been raped, she will be believed. Perhaps the court has now understood that even if the victim is not physically injured she is psychologically injured. From a time when physical injuries were held to be necessary to corroborate evidence of penetration, at last the slightest of penetration is construed to be within the term "sexual intercourse". Finally it seems that it has been acknowledged that rape is not only an offence against the body but more so an offence against the psyche of the victim. The physical injuries, if any, can always heal but it is the emotional scars, which can never be wiped out. The victim, even if no sexual intercourse has taken place in the medical sense, still is left with the feeling of having been violated. Even if no penetration ever occurred the fact remains, that the victim is left with the feeling of having been robbed. She not only feels unclean and spoilt, it is difficult for her to feel normal ever again. The psychological impact on the victim is so intense that the victim in most cases is unable to have a normal sex life. Relying on the Hazarika8 judgment the counsel for the State can now lay emphasis on the psychological injury of the rape victim and can demonstrate to the court that even if no injury has been caused, even if the accused failed to penetrate, the victim has been raped. Whatever the technicalities of medical science indicate, the fact remains that the victim in her own perception and more so in the perception of society has been raped. The Hazarika8 judgment is extremely significant and if the trial courts appreciate its implications, rape victims will get justice in the first instance.

*   Advocate, High Court of Delhi, New Delhi. (The author expresses her deep gratitude to Prof. B.B. Pande and Mr Maurya Vijay Chandra for their guidance and inspiration.) Return to Text

  1. Tukaram v. State of Maharashtra, (1979) 2 SCC 143 : 1979 SCC (Cri) 381 Return to Text
  2. Rafiq v. State of U.P., (1980) 4 SCC 262 : 1980 SCC (Cri) 947 Return to Text
  3. Id., at p. 265, paras 6 and 7. Return to Text
  4. Sk. Zakir v. State of Bihar, (1983) 4 SCC 10 : 1983 SCC (Cri) 761 Return to Text
  5. Id., at p. 18, para 8 Return to Text
  6. Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204, 222 : 1992 SCC (Cri) 598 Return to Text
  7. Parikh: Textbook of Medical Jurisprudence and Toxicology, 5th Edn., p. 439. Return to Text
  8. Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635 : 1998 SCC (Cri) 1725 Return to Text
  9. Id., at pp. 636-37, para 4. Return to Text
  10. Id., at p. 637, para 5. Return to Text
  11. Id., at p. 637, para 6. Return to Text
  12. State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 : 1996 SCC (Cri) 316 Return to Text
  13. Id., at pp. 395-396, para 8. Return to Text
  14. Madan Lal v. State of J&K, (1997) 7 SCC 677 : 1997 SCC (Cri) 1151 Return to Text
  15. Id., at p. 689, para 12. Return to Text
  16. "Satya ki hi jeet hoti hai" Return to Text
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