Allahabad High Court: Old Torn Hymen Cannot Cast Doubt on Credible Rape Survivor’s Testimony

By Rajesh Pandey

The Allahabad High Court has observed that an old, torn hymen cannot give the benefit of doubt in a rape case if the testimony of the victim is reliable.

While making this observation, the high court upheld the 1983 conviction and three-year sentence of an accused of rape in connection with an incident dating back to 1982.

With these observations and judgment, the high court further clarified that rape is a legal term and not a medical term.

The bench of Justice Santosh Rai clarified that a hymen can be torn due to different factors such as sports, cycling, gymnastics, horse-riding, extraneous physical labour or accidental injury, etc.

The court further noted that some individuals are born with a perforated or absent hymen, while in some others, it is highly elastic and hence, medical findings of this nature cannot override a victim’s credible statement.

The accused, Rakesh, had moved the high court challenging his conviction and the 3-year sentence awarded by the additional sessions judge, Allahabad, in May 1983.

The victim, an illiterate fifteen-year-old girl, had gone to ease herself in the Kachhar area across a local canal (Nala) in her village at around 9:30 a.m.

The accused appellant, Rakesh, along with another co-accused, intercepted her and committed rape one by one. When she resisted, they brutally assaulted her with blows.

Subsequently, the trial court convicted the accused based on the victim’s oral testimony, which was corroborated by the medical report prepared the same day.

The medical report indicated six distinct injuries, including abrasions, a linear scratch and contusions on her body.

During the hearing of a criminal appeal before the high court, the counsel for the accused submitted that the medical evidence pointed towards the victim’s old, torn hymen, which indicated that she was habituated to having physical relationships with others.

Relying on this submission, the accused’s counsel attempted to prove that the accused had not committed rape or gang rape with the victim.

The high court, however, rejected this hyper-technical approach and the argument highlighting the bad character of the victim.

The court observed, “If the hymen was old, torn, an accused cannot be granted the benefit of doubt solely on the aforesaid ground, whereas the statement of the victim regarding committing rape is wholly reliable.

Rape is a legal term, not a medical term. Thus, based on the opinion of the doctor that the hymen was old and torn, a specific finding cannot be drawn that the accused appellant has not committed rape with the victim”.

The court also emphasized that the offence of rape is normally committed in a secret environment, meaning there is practically no possibility of finding independent eye-witnesses.

The court added that the testimony of a prosecutrix stands at par with that of a normal or injured witness.

In this regard, the high court relied on the Supreme Court’s judgment in Ganga Singh Vs. State of MP 2013, wherein it was held that a victim’s evidence needs no corroboration if it inspires confidence and appears natural and truthful.

In the present case, the court found the survivor’s statement regarding the commission of rape to be wholly reliable, as it was corroborated by the medical evidence.

However, while upholding the conviction, the high court took serious note of the trial court’s mishandling of sentencing in this case.

Though the lower court had convicted the appellant under section 376 (rape) of the Indian Penal Code (IPC), it awarded a lenient sentence of only three years’ rigorous imprisonment, with no fine imposed.

The High Court said that the trial court committed a manifest error of law by imposing a sentence well below the statutory minimum of seven years without recording any adequate and special reasons, which was mandatorily required under the law, as it stood in 1983.

In addition to it, the high court also pointed out another grave illegality committed by the trial court, as it failed to impose a fine, which is an integral part and fundamental aspect of the punishment in cases of sexual offences.

However, the appellant’s counsel requested that the accused be released on probation, as he was now over 60 years old, suffers from various ailments, has no previous criminal history, and the present criminal appeal has been pending since 1983.

The high court, however, refused to grant him the benefit of probation, as it noted that doing so in the case of a rape conviction would send a wrong message to society and dilute the deterrence of criminal law.

Ultimately, the court upheld the trial court’s conviction and directed the accused to pay a mandatory fine of Rs. 50,000.

This amount is to be paid as compensation to the victim or her legal representatives within one month.

If the convict fails to pay the fine, he will have to undergo an additional six months of rigorous imprisonment, the court further provided.

The accused, Rakesh, is presently on bail.

Thus, in the judgment dated June 23, the high court cancelled the accused’s bail bonds with immediate effect and ordered him to surrender before the trial court within ten days to serve out the remainder of his sentence.