Can a rape accused question a victim’s past sexual history to challenge her allegation or prove consent? The Orissa High Court rejected victim-blaming arguments but also acquitted the accused of repeated rape where individual acts were not proved clearly.
CUTTACK: The Orissa High Court has ruled that a victim’s previous sexual history cannot be used to question her credibility or establish consent in a rape case. The Court said that a rape trial cannot be turned into a “victim-blaming” exercise or an inquiry into the victim’s character.
A Bench of Dr. Justice Sanjeeb Kumar Panigrahi strongly criticised the argument raised on behalf of the accused that the victim was “habituated to sexual intercourse”.
The Court observed:
“It is difficult to appreciate how such an argument could have been advanced at all, in the face of the clear statutory position and the settled principles governing appreciation of evidence in sexual offences. What legal consequence can possibly follow from the observation that the prosecutrix was “habituated to sexual intercourse”? Does it disprove the occurrence alleged? Does it establish consent? Does it render the testimony of a minor victim less credible in law? The answer to each of these questions is plainly in the negative.”
According to the prosecution, the incident took place on the night of April 3, 2016, when the victim’s parents were away from the village. The two accused allegedly came to her house. When she opened the door, they allegedly caught her, gagged her, dragged her from the house and carried her to a hillock near the village.
The victim was allegedly kept confined from the night of April 3 until the morning of April 5, 2016. During this period, the accused allegedly tied her, denied her food and sexually assaulted her several times.
On the morning of April 5, the accused allegedly brought her down from the hillock and abandoned her near her house. She later narrated the incident to the villagers who had gathered there.
An FIR was registered, and after investigation, the police filed a charge sheet against both accused. The Special Court framed charges under Sections 363, 366, 376-D and 376(2)(n) of the Indian Penal Code and Sections 6 and 10 of the Protection of Children from Sexual Offences Act.
The Special Court convicted both accused of kidnapping, kidnapping for illicit sexual intercourse, gang rape, repeated rape and offences under the POCSO Act.
During the appeal, the accused relied upon the medical officer’s observation that the victim was “habituated to sexual intercourse“. They argued that this showed she was familiar with sexual intercourse and had willingly accompanied them.
The High Court rejected this argument. It held that a victim’s previous sexual experience has no relevance while deciding whether she was raped during the incident in question.
The Court stated:
“Section 53A of the Indian Evidence Act and the proviso to Section 146 of the same Act, inserted by the Criminal Law (Amendment) Act, 2013, expressly prohibit drawing any inference from a victim’s prior sexual experience as to her consent or credibility in a rape trial. In any event, the victim being a child of 16 years, the question of consent is entirely immaterial by virtue of Section 3 read with Section 5 of the POCSO Act.”
Justice Panigrahi also criticised the attempt to shift the Court’s attention from the alleged acts of the accused to the previous sexual conduct of the victim.
The Court remarked:
“It is, at best, a desperate effort to grasp at a medical observation and use it to cast aspersions on the victim. Such an argument is precisely the kind of victim-blaming which the law does not permit. The appellants are on trial for their alleged conduct. The prosecutrix is not on trial for her character. This Court cannot countenance an attempt to divert attention from the accusation by placing a minor victim under moral scrutiny. The submission is therefore deprecated and rejected.”
Regarding the conviction for gang rape under Section 376-D IPC, the Court explained that the prosecution is not required to prove a separate completed act of rape by every accused.
Relying on the Supreme Court’s judgment in Ashok Kumar v. State of Haryana (2002), the High Court said that where two or more persons act together with a common intention to commit rape, each person can be held responsible for the acts committed by the others in furtherance of that common intention.
The Court also upheld the conviction under Sections 363 and 366 IPC. It found that the victim had been kidnapped with the intention of subjecting her to illicit sexual intercourse.
However, the High Court found the evidence insufficient to sustain the separate conviction under Section 376(2)(n) IPC for repeated rape.
The Court noted that although the victim had stated that both accused repeatedly raped her, her statement did not clearly specify how many times each accused committed the act or which particular acts were attributable to each individual accused.
The Judge observed:
“I have examined the evidence on this point. PW-2 [victim] stated that “both accused repeatedly committed rape on her” during the period of confinement spanning two nights and one day. This general statement, while establishing the overall course of conduct, does not particularise how many times each individual accused committed the act, at what intervals, and in what sequence. The expression “repeatedly” in the victim’s account, read in the context of a joint confinement involving two accused, makes it inherently difficult to segregate individual acts attributable to each accused for the purpose of Section 376(2)(n).”
The High Court therefore acquitted the accused of the charge under Section 376(2)(n) IPC. This part of the ruling underlines that even in serious sexual offence cases, every separate charge must be proved through clear and legally sufficient evidence. An accused cannot be convicted for an additional offence merely because other serious charges have been established.
However, the convictions and sentences under Sections 363, 366 and 376-D IPC and Sections 6 and 10 of the POCSO Act were maintained. Section 376-D IPC carries a minimum punishment of 20 years of rigorous imprisonment.
The appeal was accordingly partly allowed, limited to the acquittal under Section 376(2)(n) IPC, while the remaining convictions and punishments were upheld.
EXPLANATORY TABLE OF ALL IMPORTANT LAWS AND SECTIONS MENTIONED
| LAW AND SECTION | WHAT THE PROVISION MEANS | HOW IT WAS APPLIED IN THIS CASE |
| Section 415(2), BNSS, 2023 | Permits an appeal against a conviction by a person convicted in a trial conducted by a Sessions Judge or Additional Sessions Judge, corresponding to the earlier appellate provision under CrPC. | The two criminal appeals were considered under this provision, corresponding to Section 374(2) CrPC. |
| Section 374(2), CrPC, 1973 | Allowed a person convicted by a Sessions Judge, Additional Sessions Judge or in certain serious trials to appeal before the High Court. | Mentioned as the corresponding earlier procedural provision governing the appeals. |
| Section 161, CrPC | Authorised the police to examine witnesses and record their statements during investigation. | The Court compared the victim’s police statement with her later judicial statement and trial testimony while examining consistency. |
| Section 164, CrPC | Permitted a Magistrate to record statements or confessions during investigation with procedural safeguards. | The victim’s statement before the Magistrate was considered consistent with her police statement and trial deposition. |
| Section 154, CrPC | Governed the recording of information relating to a cognisable offence, commonly called an FIR. | The Court explained that an FIR need not contain every minute fact and is not an exhaustive account of the prosecution case. |
| Section 357, CrPC | Empowered criminal courts to direct payment of compensation to victims from the fine or otherwise, subject to the provision. | The trial court’s victim-compensation direction was maintained. |
| Section 428, CrPC | Provides that detention undergone by an accused before conviction must be set off against the final term of imprisonment. | The appellants retained the benefit of set-off for their pre-conviction custody. |
| Section 361, IPC | Defines kidnapping from lawful guardianship, including taking a female below 18 years from her lawful guardian without the guardian’s consent. | The Court found that the 16-year-old victim had been taken from her parents’ lawful keeping. |
| Section 363, IPC | Prescribes punishment for kidnapping from lawful guardianship. | The conviction under this section was upheld. |
| Section 366, IPC | Punishes kidnapping or abducting a woman with the intention that she may be compelled or induced to marry or subjected to illicit intercourse. | The Court relied on the alleged nighttime removal, secluded confinement and sexual assault to uphold the conviction. |
| Section 376-D, IPC | Deals with gang rape. When persons act as a group or in furtherance of common intention, each person may be treated as having committed the offence. | The Court held that separate proof of a completed penetrative act by every individual accused was unnecessary where joint action and common intention were established. |
| Section 376(2)(n), IPC | Prescribes enhanced punishment where the same person repeatedly commits rape on the same woman. | The conviction was set aside because the evidence did not clearly identify how many separate acts were attributable to each individual appellant. |
| Section 6, Indian Evidence Act, 1872 | Makes facts forming part of the same transaction relevant. This is commonly known as the doctrine of res gestae. | The immediate statements made by the victim to villagers after her return were treated as part of the same transaction and used as corroborative evidence. |
| Section 53A, Indian Evidence Act | Prohibits using a rape victim’s previous sexual experience to infer consent or assess the quality of consent in the incident being tried. | The Court held that the medical observation regarding previous sexual activity was legally irrelevant to consent or credibility. |
| Section 138, Indian Evidence Act | Regulates the sequence and scope of examination-in-chief, cross-examination and re-examination. | The Court emphasised that a disputed fact must be properly put to the relevant witness during cross-examination. |
| Section 146, Indian Evidence Act | Permits questions in cross-examination to test a witness’s veracity, subject to statutory restrictions. | The proviso bars questions or evidence about a victim’s general immoral character or previous sexual experience for proving consent in specified sexual-offence prosecutions. |
CASE DETAILS
| PARTICULAR | DETAILS |
| Court | High Court of Orissa at Cuttack |
| Case Title | PB v. State of Odisha and AB @ B v. State of Odisha |
| Appeal Numbers | CRLA No. 489 of 2023 and CRLA No. 483 of 2023 |
| Nature of Proceedings | Criminal appeals challenging the conviction and sentence passed by the Special Judge, Bolangir |
| Statutory Provision for Appeal | Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023, corresponding to Section 374(2) CrPC |
| Bench | Dr. Justice Sanjeeb K. Panigrahi |
| Counsel for the Appellants | Mr. Dipti Ranjan Swain, Advocate; Mr. S.S. Ray (2), Advocate |
| Counsel for the State | Ms. Gayatri Patra, Additional Standing Counsel |
KEY TAKEAWAYS
- A victim’s past sexual history cannot be used to prove consent or attack her credibility.
- A serious accusation does not remove the prosecution’s duty to prove every separate charge beyond reasonable doubt.
- The repeated-rape conviction was set aside because specific acts by each accused were not clearly established.
- Courts cannot mechanically add convictions merely because another grave offence has been proved.
- Justice must protect genuine victims without sacrificing the legal rights of accused men or treating allegations as automatic proof.
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