Testimony of rape victim must be appreciated, says Supreme Court judge

New Delhi: Justice R. Justice Banumathi, who gave a separate but concurring judgment in the Nirbhaya gang-rape case on Friday, said the testimony of the rape victim must be appreciated in the court and the notion that it has to be corroborated by other evidence must be removed.

Justice Banumathi made several suggestions on the role of judiciary in dealing with rape cases.

* While dealing with cases of rape, the court must act with utmost sensitivity and appreciate the evidence of prosecutrix (victim) in lieu of settled legal principles.

* Examine the broader probabilities of a case and it should not be swayed by minor contradictions and discrepancies in appreciation of evidence of the witnesses which are not of a substantial character.

* Courts should not attach undue importance to discrepancies, where the contradictions sought to be brought up from the evidence of the prosecutrix are immaterial and of no consequence. Minor variations in the testimony of the witnesses are often the hallmark of truth of the testimony. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence.

* Persisting notion that the testimony of victim has to be corroborated by other evidence must be removed. To equate a rape victim to an accomplice is to add insult to womanhood.

* The testimony of the rape victim must be appreciated in the background of the entire case and the trauma which the victim had
undergone. When the victim was in such a condition, the victim cannot be expected to give minute details of the occurrence. Non-mention of minute details cannot be termed as a material omission.

* Dying declaration is a substantial piece of evidence provided it is not tainted with malice and is not made in an unfit mental state.

* In cases where there are more than one dying declarations, the court should consider whether they are consistent with each other. If there are inconsistencies, the nature of the inconsistencies must be examined as to whether they are material or not.

* In cases where there are more than one dying declaration, it is the duty of the court to consider each one of them and satisfy itself as to the voluntariness and reliability of the declarations. Court has to examine the contents of dying declaration in the light of various surrounding facts and circumstances.

Her observations came as the Supreme Court on Friday upheld the death sentences of all four convicts in the fatal 2012 gang rape of Nirbhaya in a moving bus, a "rarest of rare" crime that sparked nationwide outrage over violence against women in the country.

While a bench of Justice Dipak Misra, Justice Ashok Bhushan and Justice Banumathi upheld the death sentence to all the convicts, Justice Banumathi gave a separate but concurring judgement with additional reasoning for concurrence.