Even A Woman Of Easy Virtue Has A Right Of Refuse To Submit Herself To Sexual Intercourse To Anyone, SC Restores Conviction In Gangrape Case

‘The evidence of such a woman cannot be thrown overboard merely because she is a woman of easy virtue.’

Even assuming that the prosecutrix was of easy virtue, she has a right of refuse to submit herself to sexual intercourse to anyone, said a Supreme Court bench while restoring conviction of four men accused in a gangrape case.

Background

Before the trial court, the accused in their statement under Section 313 CrPC, had stated that the prosecutrix was of bad character and she was indulging in prostitution. Though they told the court that a complaint was lodged by them against her, nothing was produced before the court. The trial court convicted them taking into account the evidence of the prosecutrix.

Before the high court, the alleged complaints lodged against the prosecutrix were submitted during the arguments in the appeal filed by the accused.  Taking note of this additional evidence, the high court observed that the trial court erred in saying that the accused failed to prove the making of previous complaints against the prosecutrix. The accused were acquitted by the high court.

Any material produced before the appellate court to fill up the gaps by either side can’t be considered

The bench comprising Justice R. Banumathi and Justice Indira Banerjee observed that the high court was not right in taking into consideration those complaints produced at the time of arguments in the appeal. It said: “The power conferred under Section 391 Cr.P.C. is to be exercised with great care and caution. In dealing with any appeal, the appellate court can refer to the additional evidence only if the same has been recorded as provided under Section 391 Cr.P.C. Any material produced before the appellate court to fill-up the gaps by either side cannot be considered by the appellate court; more so, to reverse the judgment of the trial court. As rightly contended by the learned Additional Solicitor General, the High Court has taken into consideration the materials produced by the Bar, namely, complaints allegedly made against the prosecutrix and other women including the one allegedly given on 21.07.1997 just one week prior to the incident. The High Court was not right in taking into consideration those complaints produced at the time of arguments in the appeal.”

Evidence of such a woman cannot be thrown overboard

The bench approved the observations made by the trial court that even if the allegations of the accused that the prosecutrix is of immoral character are taken to be correct, the same does not give any right to the accused persons to commit rape on her against her consent.

Referring to judgment in State of Maharashtra and Another v. Madhurkar Narayan Mardikar, the bench said the evidence of such a woman cannot be thrown overboard merely because she is a woman of easy virtue. The bench further said that the high court erred in placing reliance upon the complaints allegedly made against the prosecutrix to doubt her version and to hold that a false case has been foisted against the accused.

The bench then restored the trial court judgment observing that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. Setting aside the high court verdict, the bench said: “The High Court erred in taking into consideration the materials produced before the appellate court viz., the alleged complaints made against the prosecutrix and other women alleging that they were engaged in prostitution. Even assuming that the prosecutrix was of easy virtue, she has a right of refuse to submit herself to sexual intercourse to anyone.”

The bench affirmed the sentence of 10 years imposed on the accused by the trial court.
Full Judgment