August 7, 2007

'Rape conviction sans medical proof valid'29 Jul 2007, 0053 hrs IST , Dhananjay Mahapatra , TNN

NEW DELHI: A recent Supreme Court judgment convicting a rape accused relying solely on the victim's testimony despite the medical evidence not proving intercourse may have startled many.

Would such reliance on the victim's testimony lead to abuse of the law and miscarriage of justice? Legal experts feel that is not necessarily the case.

The key for them is that the testimony of the victim should be "cogent, convincing and trustworthy". And they feel that was the case when the apex court upheld the charge against the accused.

They also sought to drew attention to the process of cross-examination. In the course of this, the experts claimed that it can be determined whether the charge is false and motivated or not. They added that in most cases medical evidence has a bearing; only in exceptional cases are they overlooked in view of more weighty evidence that might come out in the course of the victim's testimony.

The Supreme Court's judgment last week is similar to a rape case judgment of US in 2000. A 19-year-old student of the University of Denver was convicted of rape under the Colorado law solely on the basis of the testimony from the victim, despite a defence witness adversely commenting on her mental state of affair.

Senior advocate K T S Tulsi said any departure from this rule of attaching weight to the victim's statement would put women in a more vulnerable position.

If, for instance, a married woman, who is habituated to sex, is raped, there is a possibility that medical examination may not be able to show sexual assault. Should the victim then be disbelieved only for lack of medical evidence, asks Tulsi.

Advocate Aparna Bhat, who heads the Rape Crisis Cell for the Delhi government, says there is little chance of men getting convicted on false charges on the basis of the apex court judgment.

The lack of semen stains on the undergarments is no basis to presume innocence of a rape accused, she says. In case of a pre-planned assault on a woman, if the rapist either does not ejaculate or use a condom, there would be no semen marks on his or the victim's undergarments, she says.

Bhat, however, does not rule out the possibility of a small number of women trying to harass men by levelling false rape charges as they know that the law as well as the sentiments of the judge would be in their favour.

Of the 600-odd cases being handled by the 'Rape Crisis Cell', only 25 to 30 fall in this category, which also includes police pursuing false rape charges against men to save them of tedious investigation to catch the real culprit, she said.

In the Safdarjung rape case of November 2005, the police immediately arrested a person to take credit of expeditiously solving the case. During the test identification parade, the victim was categoric that he was not the aggressor. Despite this, the police pursued the case in the court, which acquitted the man as the victim reiterated her statement, she said

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