BACKGROUND
Plaintiff: Government of Nepal on behalf of Rukum 11
Defendants: Syane alias Saroj BC and Chankhe alias Ajeeb Sunar, Dal Bahadur Dangi, Tej Kumar B.K, Hari Khadka
Appellants: Saroj BC and Ajeeb Sunar
Case: Rape
Case No. 073-CR-1679, 073-CR-1737
Court: Supreme Court of Nepal
Bench: Division Bench
Judges: Hon’ble Acting Chief Justice Hari Krishna Karki and Hon’ble Sushmalata Mathema
Decision Date: 2079/08/19

SUBSTANTIVE FACT OF THE CASE

A.    FIRST INFORMATION REPORT:

The victim was travelling to her maternal uncle’s house from Rukum to Shamshergunj, Banke by a bus (Na. 4 Kha 5167) on 2071/04/20. The following day i.e. on 2071/04/21 after the bus arrived at Shamshergunj, the accused Saroj BC and Ajeeb Sunar hid victim’s bag and mobile phone and refused to give her back. Despite her insistence to the driver to stop the bus at her stop, the driver sped up the bus and drove her to Nepalgunj Buspark. After Driver Dal Bahadur Dangi and the helper Tej Bahadur B.K. got out of the bus, Saroj BC, Ajeeb Sunar and Hari Khadka asked the victim to come at the last seat of the bus and they would return back her bag and mobile phone. They brought her to the last seat holding her hand and Hari Khadka closed the door of the bus and put on the latch. Ajeeb
 
Sunar asked the victim to allow him to have sexual intercourse with her. When the victim replied that she is not such type of girl, Ajeeb Sunar and Saroj BC caught her hands and legs, made her lay on the seat, closed her mouth and opened her pants off. The victim was raped by Ajeeb Sunar followed by Saroj BC at the back seat of the bus in Nepalgunj Buspark at around 3:30 a.m. on 2071/04/21.

B.    DISPUTED FACT
All Four accused made a denial statement before the Honorable Court. Since there was no admission or confession made before the Court from the accused in regards to commission of the offense alleged by the victim, the disputed fact here is in the truth or falsity of the allegation of rape and accomplice of rape. Statements made by the defendants before the Banke District Court:

I.    Saroj BC: He denied the truth of the allegation of rape and stated that information mentioned in the FIR is false and claimed to be innocent.
II.    Hari Khadka: He denied the truth of the allegation of closing the door of the bus and putting on the latch. He also claimed that the information stated by the victim in FIR is completely false.
III.    Ajeeb Sunar: He stated that he knew victim before 15/20 days of the incident. He and the victim had fallen into love and had decided to marry. However, when he came to know that the victim is already married and has a child, he refused to marry. The victim asked him certain amount of money to which he refused to give. Thus, for that very reason, she was angry and wanted to trap him. Therefore, the victim fabricated the case and provided false information in the FIR.
IV.    Dal Bahadur Dangi: He denied of raping the victim as well denied the allegation of being accomplice.

C.    FACTS IN ISSUE OR ISSUE RAISED BEFORE THE DISTRICT COURT
I.    Whether the accused Saroj BC and Ajeeb Sunar committed an offense of rape or not?
II.    Whether the accused Hari Khadka, Dal Bahadur Dangi and Tej Kumar B.K. committed and offense of accomplice of rape or not?


D.    DECISION OF BANKE DISTRICT COURT ON 2072/08/22.
I.    Saroj BC and Ajeeb Sunar: They were convicted for an offense of rape and sentenced to 5 years of imprisonment as per Sec. 3(4) of Chapter on Rape of Muluki Ain 2020 and additional 5 years of imprisonment as per Sec.3A of the same chapter of Muluki Ain 2020. Similarly, the court ordered the victim to be paid Rs. 50,000/- as a compensation.
II.    Hari Khadka: Since he admitted the accusation and alongside the accusation made against him was admitted by co-accused too, he was sentenced to 1 year of imprisonment as per Sec.4 of Chapter on Rape of Muluki Ain 2020.
III.    Dal Bahadur Dangi and Tej Kumar B.K: They were acquitted on the ground that the allegations against them could not be established.


E.    DECISION OF TULSIPUR HIGH COURT, NEPALGUNJ BENCH ON 2073/11/03
The High Court upheld the decision of the District court.


F.    CLAIM OF APPELLANTS BEFORE THE HON’BLE SUPREME COURT

a.    MEMORANDUM OF APPEAL:
i.    Saroj BC:
Cases of rape cannot be determined by speculation and interpretation beyond the facts. Since the opinion of the doctor and the circumstances are the decisive factors, there is no evidential grounds to convict appellant on the basis of Medical Report. There is no possibility of occurrence of rape in the situation as portrayed by the victim in the charge sheet. The so-called victim has mentioned Buspark as a crime scene area. However, in public places like Buspark, there is 24 hours security from the police as well as there is presence of public too. At such, there is no possibility of committing rape easily. If the accused had hid her bag and phone, she could have immediately asked for help from other passengers but she did not do so. Similarly, had there been rape, there would have been wound marks in the victim’s body, breast, cheeks, lips, etc. The medical report of Bheri Zonal Hospital also does not mention about any signs of rape.
It is never acceptable to punish for a heinous crime like rape when the incident itself has not been established. The fact that the incident of rape itself is unconfirmed, mere speculation, contradictory statements of the complainant and the statement made against the will before the investigating officer cannot be conclusive evidence in such a serious case. Thus, the Hon’ble Supreme Court should repeal the judgment of Banke District Court and Tulsipur High Court that convicted him on the presumptive basis of unproven facts beyond reasonable doubt and declare him innocent.

ii.    Ajeeb Sunar:
He claimed that he cannot be convicted without taking certain statements into accounts such as:- his statement in the district court that he had been forced by the police to make a confession, his denial statement before the court supported by his witness Nim Bahadur K.C. These statements should hold evidential value.
There is no any signs or objects related to the crime in the crime scene. Even people who were investigated immediately after the incident were not eyewitnesses. Similarly, the deed of scene of crime was not prepared under his presence, which makes the deed suspicious and establishes my innocence. There is contradiction in the statement of victim itself where the victim has mentioned that she was raped multiple times from Shamshergunj to Nepalgunj. Had she been raped while the bus was moving, she could have complained to police when the bus stopped at multiple check posts or she could have shouted for help from the passengers in the bus but she did none.
The medical examination report of both Ajeeb Sunar and the victim expressed no signs of wounds, injury, scratch, bitten marks, etc. in their any parts of body or near their genital organs. Similarly, the victim’s medical examination report also expressed that the hymen has been ruptured but could not be identified whether it had been ruptured recently or not. Despite the rape committed by 2 people against a same person, there is absence of any signs of rape in the body which proves that the allegation of rape was false.
FIR that has been filed explicitly mentioning the name of the offender is not a sufficient evidence to convict an accused of the offense. Such FIR must be supported by other independent and strong evidences which is lacking in this case. Fact must prove the establishment of the incident not only orally but also through action and conduct.
No act of resistance, victim stating that she was raped while the bus was moving, unawareness of other passengers about rape being committed, victim staying in bus despite all passengers got out after reaching bus stop. The decision of the Tulsipur High Court is faulty. Thus, he claimed before the Hon’ble Supreme Court
to repeal the decision of Tulsipur and High Court and declare him innocent.

b.    ARGUMENTS PRESENTED BY APPELLANT AND RESPONDENT

i.    APPELLANT: In any offense, there must be a concurrence of actus reus and mens rea. There does not seem to be any relevance of that matter in the presented case. Similarly, there does not seem to be any consistency between the FIR and victim’s statement. It has not been mentioned in the Medical report that there had been a rape. Thus, they cannot be convicted for an offense of rape. They must be declared innocent and must be acquitted.
ii.    RESPONDENT: The victim after escaping from the scene of crime went to the police station and informed the police about the crime that had been committed. It is not true that only the wound marks on victim’s body helps to prove the offense.

G.    JUDGEMENT OF SUPREME COURT ON 2079/08/19
The court upheld the judgement of Tulsipur High Court, Nepalgunj Bench and held that claim of the appellants cannot be satisfied.

H.    EVIDENCE
According to Black’s Law Dictionary, “Evidence is something that tends to prove or disprove the existence of an alleged fact. Similarly, direct evidence refers to those evidence that proves or disproves fact in issue directly.
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ORAL EVIDENCE AS DIRECT EVIDENCE
1)    Statement of Victim
When I asked the driver to stop the bus so that I can get down from the bus, Ajeeb Sunar snatched my phone and bag and threw towards the driver. The conductor did not let me get down from the bus. The bus did not stop at my Bus stop i.e. at Shamshergunj and stopped directly at Nepalgunj Buspark at 2:30 am. The Driver, conductor, helper etc. raped me in turn. Some caught my hands and legs whereas some raped me. I got to know the name of the accused when he was called Chankhe (Ajeeb Sunar) by someone. I do not know the name of the driver and conductor. There is no involvement of Hari Khadka in the crime scene.

Evidential value of Victim’s statement: If the victim of the act, incident or condition or situation, expresses any fact immediately or immediate before or after, regarding any act, incident or condition/situation such fact may be taken as evidence ¹. Such statement is also considered as a direct evidence.

2)    Statement of Accused
Although the accused Saroj BC had made a denial statement before the Honorable Supreme Court, he had confessed his crime before the investigating officer. His statement was further asserted and proved in corroboration with the statements made before the investigating officer by Ajeeb Sunar and Hari Khadka. Similarly, such statement was consistent with FIR, police report, deed of scene of crime and deed of detailed information of scene of crime based on the information provided by few people.

Evidential value of accused statement: Since the confession made by Ajeeb Sunar before the investigating officer is corroborated by other evidences and facts, the Court has acknowledged the admissibility of such statement.


I. EXHIBITS AND THEIR EVIDENTIAL VALUE
According to Black’s Law Dictionary, exhibit refers to a document, record, or other tangible object formally introduced as evidence in court. They can take many forms such as photographs, charts, videos, etc. They provide additional information or support for a claim or argument made by one of the parties. Similarly, Exhibits are subject to the regular rules of evidence. They must be relevant, not unduly prejudicial, not confusing or misleading, and not contain evidence that is privileged, would violate the opinion rule, or constitutes inadmissible hearsay. ²


ORAL EXHIBITS
1)    Statement of Witnesses

• Ram Prasad Adhikari (Witness of Dal Bahadur Dangi): I was in the tea shop near the Buspark gate on the said date and time. I had also met Dal Bahadur Dangi there. The accusation against Dal Bahadur is false since he did not assist other offenders in committing rape. From the day, I have known him, he is not a person with bad conduct. The complainant (victim) had asked money from Dal Bahadur and he had denied to give her. Thus, this is why he was falsely accused.
• Ravi BC (Witness of Saroj BC): After I and Saroj BC got the news about our mother being unwell and sick, we both travelled to Salyan from Nepalgunj Buspark at 6 am. The allegation of complainant is false since he did not commit an offense of rape. At the time of the offense, Saroj BC was with me.
• Neem Bahadur KC (Witness of Ajeeb Sunar): The victim was sitting in the last seat of the bus. When coming from Agaiyya to Nepalgunj, there were around 15/16 passengers. The victim has ignored this fact and mentioned that only she and the accused were present in the court. Since Ajeeb Sunar was also travelling in the bus, the victim might have given complaint against him. About 8/10 passengers got off from the bus at Nepalgunj Buspark. There was no act of hiding the victim’s phone or snatching her bag when travelling from Shamshergunj to Nepalgunj. Neither the victim had asked the bus to stop. By that very reason, Ajeeb Sunar had not committed an offense of rape. The allegation against him is false.
• Mukti Rokaya (Witness of Hari Khadka): I was at Nepalgunj for the purpose of medical examination. When I had called him, he told that since his bus will be travelling from Nepalgunj to Rukum on 21/04/2071 at night we can travel together in his bus. Therefore, I had gone to visit him on 20/04/2071 at evening. Later on, that night, we had slept together too. Since, he was with me on the date of offense, the allegation that he had put on the latch of the bus and assisted other accused in committing rape is false.

2)    Statements of person who expressed the facts during document preparation in the course of inquiry or examination.

• Bhim Bahadur Khatri: On the said date, I was at my home itself which is located in Shamshergunj. I had heard that the accused raped the victim in the bus.
• Lokendra Bista: The bus travelling from Rukum without stopping at Shamshergunj and dropping the victim there, was brought to Nepalgunj and the victim was raped in the bus there. I got to know this from the police after the victim had complained against the accused before that police officer.

Evidential value: The fact expressed by a person in the document prepared in the course of inquiry or examination of any act, incident or situation/ condition pursuant to the prevailing law, may be taken as evidence, in case he/she appears before the court and records his/her statement as a witness. ³

DOCUMENTARY EXHIBITS
Medical Report: Medical examination report of Bheri Zonal Hospital was presented before the court to establish whether there were any signs of rape. However, it did not express any signs of rape and mentioned absence of marks, injury or wounds and struggle or resistance marks in the body of the victim as well as the accused. However, it had mentioned that the victim’s hymen has been ruptured but cannot be identified clearly whether it has been ruptured recently or way before.

J.    PRESUMPTION 
Although in this case, there is no room for presumptions enlisted in Sec 6 and 7 of Evidence Act 2031, we can draw a presumption from the social construction or the societal structure. Generally, it is presumed that woman do not lie when it comes to chastity since sexual integrity and dignity is what matters to her most. She will not do or speak anything that will defame her since there is a different perception of society towards the rape victim.
In the judgement of this case, the court has stated that, “If a heinous crime like rape had not occurred, there would be no situation where any woman would appear before the court and support her FIR complaint in a way that harms her social respect, honor and reputation.”
Similarly, the Court has cited the case of Deepak Rawal vs Government of Nepal⁴ wherein it has been held that, “Since rape is a covert criminal act, there cannot be an eye witness. The statement of the victim of such a crime should be taken as universal evidence unless otherwise established. The statement of the victim should be accepted unless other objective evidence proves it wrong.

ANALYSIS
This case established a landmark principle that, “if a victim of rape herself files FIR despite threat in her dignity due to her family, social and cultural context; or despite of fear of stigmatization and also makes the same statement before the court then such statement unless proven otherwise is considered to be irrefutable evidence in the sense of justice. In heinous crimes against physical integrity and dignity of women, the Court should take the victim’s statement with utmost seriousness. Victim’s statement and FIR will have the most importance in the offence of rape.”
In the offenses of rape, where there is no sign of rape in the victim’s body, we can identify two types of rules of corroboration:
i.    One school of thought that asserts the need of corroborative evidence to prove victim’s
testimony. (Colonial Rule of Corroboration)
ii.    And the other, that rejects necessity of corroborative evidences to prove victim’s testimony.


Colonial Rule of Corroboration 
This rule is based on the belief that women lie about rape and that their evidence should be independently corroborated.⁵ This belief gave rise to the establishment of the “cautionary rule”, which emphasized that the uncorroborated testimony of a rape complainant must be viewed with particular caution.⁶
Colonial Rule of Corroboration demonstrates over reliance on medico-legal evidences in rape cases, where rape is treated as a question of science rather than question of law.⁷ Signs of rape in victim’s body is one of the determining factors to establish the fact of occurrence of rape. To testify the truth of victim’s allegation of rape, signs of rape is sought in victim’s body. Injuries in specific parts of the complainant’s body and marks of struggle or resistance are sought by doctors and judges as corroborative “signs of rape”. If no “signs of rape” are found, this observation is then noted in the medical report and used to discredit the testimony of a rape complainant, by indicating that either the sexual intercourse was consensual or the rape accusation is false.⁸
In the case of Government of Nepal vs. Rabi Kumar Gupta ⁹ wherein the Supreme Court of Nepal held that, “Since, victim is the main witness in the rape case, her statement is important. However, unless proven by other independent evidences factually, mere allegation of rape will not have evidentiary value. Victim’s statement must be natural and chronologically consistent with the incident as well as must be objectively supported.
In the case of Government of Nepal vs Subhas Bhar ¹⁰, the court held that Although the victim's statement is considered as an important link in the case of rape, if it is evaluated only in a unilateral and mechanical way, there may be a deviation in the process of fulfilling the purpose of justice. When it is seen that the physical health examination of the victim, the nature of the incident, and other independent evidence of the crime cannot be confirmed beyond doubt, the defendant should not be punished by accepting only the victim's statement, in FIR or before the court, deed of inquiry as evidence.

Similarly, In the case of Surendra BK vs Government of Nepal ¹¹ it was held that, “The fact of commission of rape should be established through a medical examination of the victim which shows that she was forced. In the absence of eye witnesses, confession of accused and the signs of resistance, no one can be held guilty only on the basis of the complaint of the victim or his close relative.

Indian Supreme Court in the case of Rajoo ¹² has held that, “It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration. it can never be presumed that her statement should, without exception, be taken as the gospel truth.”

Similar to the aforementioned judgement, the Supreme Court of Nepal in the case of Abhimanyu Ahir vs Government of Nepal held that “ In the sexual offenses like rape, the victim’s body itself is taken as a scene of crime and victim herself is considered as the eye witness of the crime. Rape is an offense against women’s sexual privacy, sexual integrity and right to live with dignity. Therefore, in the case of rape, victim’s statement is considered as an important evidence because she without caring about the uncomfortable situation and social disgrace she will have to face comes to the court and gives her statement in order to punish the offender. But that does not mean only the victim’s or complainant’s statement will absolutely establish the offense. Victim’s statement must corroborate with her medical report and other evidences seen from the case file. Objectively, any incident is established from the evidence. In the absence of other evidences, the mere statement from a person does not suffice to establish the offense. To say that it is not important to examine other evidences when victim herself has made her statement before the court is not just in the sense of justice. Considering the victim’s statement as decisive evidence and convicting the accused when no other evidence is supporting the commission of offense leads to limiting of accused’s right to criminal justice. It is true that offense of rape causes a deep pain to the victim and affects her dignity but false allegation is also likely to impact the accused’s dignity. If the judges are to convict the accused solely on the basis of victim’s statement
where there are absence of other evidences and eye witness, then the accused may never get justice.”
Therefore, in the light of aforementioned cases, we can draw conclusion that this school of thought also focuses on quantity of evidence as it requires other evidences in corroboration to victim’s statement.

Testimonial Credibility Rule
In contrast to western belief, Indian sub-continent regions like India, Nepal, etc. strongly believe that “Chastity is to woman, what machismo is to man” and therefore have a belief that usually women will not speak out if she is the victim of rape and if she speaks out then she will not lie about it. This notion can be reflected in various judgments of various countries. For example, in the case of Parimal Rana Chhetri vs Chitra KC, ¹³ the Supreme Court of Nepal has stated that, “Generally, a woman does not blame any other man in such a way that her integrity, honor, character and reputation is disgraced when she has sexual intercourse with a particular man.”
Similarly, Supreme Court of India has held that, “When no woman of honor 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 testimony, even if taken as a whole, the case spoken to 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 ¹⁴". These judgments reflect the social construction of the society about how important is the sexual integrity, honor and reputation to a woman. Therefore, there is a mere presumption that women will not lie about her chastity and blame anyone knowing the consequences how disgraceful she has to be. Therefore, this school of thought believes that there is no necessity of corroborative evidence to support victim’s testimony. There are many such notable cases in India. For example:
i.    In the case of Damburu Naiko, Supreme Court of India held that, “It is not necessary that there should be corroboration to the evidence of the victim of rape. If the evidence inspires confidence to be truthful, that itself would be sufficient to convict the accused. ¹⁵”
ii.    Similarly, in the case of Rafiq it has held that, “Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances.” ¹⁶
iii.    In the case of Bharwada Bhoginibhai Hirjibhai, Supreme Court of India held that, “Viewing the evidence of the girl or the women who complains of rape or sexual molestation with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion, is to justify the charge of male chauvinism in a male dominated society.” ¹⁷
And lastly, in the case of Gurmit Singh ¹⁸, it was held that, “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 honor such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion?”

CONCLUSION
This judgement reflects the sensitivity of the Judge towards the rape victim. The judge has given verdict understanding the societal structure and construction understanding the consequences of rape. Rape victims are likely to undergo stigmatization. There are various instances where rape victim faces vehement rejection in marriage or the marriage is called off or they are divorced by their husband. Not only that, rape victims are disgraced by the people and some even tend to boycott them as if they were the one who was in fault. That is why women do not speak out against rape easily. If the victims of rape are viewed with doubt, disbelief or suspicion, then that adds salt to the injury of the victim. However, that does not mean the accused must be convicted arbitrarily solely based on the victim’s statement. The Court must establish a proper standard to balance this issue.