๐๐๐๐ค ๐จ๐ ๐๐ง๐ฃ๐ฎ๐ซ๐ฒ ๐๐๐ซ๐ค๐ฌ, ๐๐จ๐ซ๐ซ๐จ๐๐จ๐ซ๐๐ญ๐ข๐ฏ๐ ๐๐ฏ๐ข๐๐๐ง๐๐, ๐๐ฌ๐ ๐จ๐ ๐ ๐จ๐ซ๐๐ and ๐๐๐ฅ๐๐ฒ ๐ข๐ง ๐ ๐๐ ๐๐ญ๐ ๐๐ซ๐ ๐ง๐จ๐ญ ๐ ๐๐ญ๐๐ฅ ๐๐จ๐ซ ๐ ๐๐๐ฉ๐ ๐๐๐ฌ๐: ๐๐๐
In a very important judgment on rape, Honorable Justice Babar Sattar of the Islamabad High Court has ruled that it is not fatal for the case of a rape victim if her case is suffering from delay in lodging FIR even if it is of several months; her statement is not corroborated by other supportive evidence; force has not been used by the perpetrator or there is no marks of violence on the victim’s body. The Court held that if the sole testimony of the rape victim is trustworthy, confidence aspiring and unshakeable, and there is no previous enmity or grudges between the parties, that solitary testimony/statement is sufficient to prove the prosecution case beyond reasonable doubt.ย
The Court has heavily relied on the precedents of Pakistani as well as foreign jurisdictions especially Indian.ย The operative part of the judgment is reproduced herein below for better understanding:
“42. What emerges from the case law cited above are the following
principles:
(i) The sole testimony of a victim in a case of sexual abuse,
where such testimony is independent, unbiased,
straightforward and reliable, is sufficient to support
conviction, as it is understood that offences of sexual
assault transpire in private, for which reason they are
mostly not witnessed by others.
(ii) The exception to the rule, that the sole testimony of the
victim of an offence of sexual abuse needs no corroboration,
are cases where there exists evidence of enmity or a prior
grudge between the complainant and the accused. In such
cases a court must be cautious in relying on the sole
testimony of the complainant, where such testimony is not
corroborated by other evidence establishing a link between
the accused and the offence he/she has been charged with.
(iii) Where corroboration is required, the focus of such
corroboration is to determine whether the accused is linked
to the offence he/she has been charged with and/or can be
placed at the place of occurrence, to ensure that the
complainant does not falsely allege that an occurrence took
place involving the accused, which never did.
(iv) In view of prevalent social realities that inform individual
reactions, there can be no presumption that a rape victim
would falsely identify an innocent person for the criminal
and violent act of a third person who actually committed the
offence.
(v) Any delay in reporting of an offence of sexual abuse, if not
accompanied by facts and circumstances that create
reasonable doubt about the occurrence itself, will not create
a presumption that the complaint was false in view of a natural inclination of victims of sexual abuse to never report the offence at all.
(vi) The evidentiary and probative burden of establishing the
actus reus of rape and that intercourse took place without
the consent of the victim is on the prosecution. And where
the actus reus has been proven beyond doubt, the sole
testimony of the victim, when found truthful and reliable by
the Court in face of cross-examination, may be sufficient to
discharge the onus of proving the mens rea of rape.
(vii) Where the fact that intercourse took place is established,
and the complainant testifies that the intercourse was
against her will and without her consent, the defendant not
pleading that intercourse was a consequence of consent
granted by the complainant is at his own peril. While the
evidentiary burden of proving mens rea remains on the
prosecution, the threshold for discharging probative burden
is low and can be discharged on the basis of the testimony
of the complainant, unless the accused can establish on a
balance of probabilities that the complainant granted
consent, after which the burden would shift back to the
prosecution to prove beyond reasonable doubt that the
complainant had not granted consent for intercourse as
claimed by the accused.
(viii) Use of force is not a necessary ingredient of the offence of
rape and intercourse against the will of the victim or in the
absence of her consent is in itself sufficient to constitute
rape.
(ix) While consent may involve submission, submission does not
necessarily imply consent and therefore passive submission by a victim, out of fear, without putting up physical
resistance, cannot be mistaken for grant of consent.”
The Court at the end held the judgment of the trial court legal and without any defect, and upheld the conviction of the perpetrator.
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