By Mahima Singh
“Seems like a manual for Rape Victims”, “judge tried the woman”, “Evidence of how little judiciary has learnt” are few of the judging remarks upon a district judge for being just “dutiful”. Through the zig-zag constricted passageways of facts and fabrication, commissions and omissions, the judicial intellect has just managed to wriggle through which couldn’t have been achieved had it not been for the microscopic perusal of the utterly bewildering substance at hand.
Having, mostly the victim’s testimony for the prosecution case and been urged to rely upon her sole testimony by the Special Public Prosecutor, little choice did the judge have than to have a microscopic view of variable versions of the victim’s statements in the email, before the police, before the magistrate and finally before the court. Every time the victim describes an association with a person, it turns out to be the exact opposite- whether it is for her proclaimed “close friends” who she allegedly rushes to first divulge the half cooked details of her nightmare, brazenly refusing any friendly relation with her while they categorically define their relation to her only “professional” or it is Nikhil Agarwal, admittedly the first person she met immediately after the alleged incident proclaimed by her to be an acquaintance only that rather turns out to be an intimate friend upon the perusal of her 4000 messages exchanged with him. It is here that the judge Kshama Joshi timely cautions the intellectual mind, at Para 154 and at further many a point about her sheer intent behind having reproduced the messages of the victim, being “The chats were referred only to be read against her claims under oath that Nikhil was a mere acquaintance/ casual friend and the purpose of producing the evidence of these chats is to show that the prosecutrix is lying and the chats were not referred for the purpose of proving her character”, yet the narrative conveniently woven by the modern intellectuals is otherwise.
One could have still overlooked the written refusal of the victim to undergo medical examination or her destruction of evidence by washing her clothes from the scene of offence, however, it is impossible to ignore the tangible bruises in the integrity of her submissions. Curiously pondering over the laborious judgement leads one to conceive the massive void created due to lack of corroboration of the victim’s submissions on all the fronts. Be it her preplanned stay with her “Russian boyfriend” (who she first denies even knowing) as per her message exchange with her best friends well ahead of the event but purporting to have extended her stay owing to the trauma or her messages to the then boyfriend about her whereabouts while she’s seen partying at the Capiz bar or her being in the suite of the VVIP guest she was chaperoning at awefully late hours for considerably long duration- the prosecutrix’s integrity is evidently compromised. Yet, the prosecution even wrongly alleges the accused of seeking plea of alibi (when a person claims to be elsewhere but the scene of offence), in vain.
Undoubtedly, ‘the trial’ is of the accused and an ‘Inequitable’ one when the very fundamental principle of jurisprudence and fundamental right guaranteed to the accused under articles 14,19, 21 and 39(a) has been frustrated. It is sadly the Investigating officer who has rather facilitated the omission of the very critical CCTV footage of the first floor (where the accused claims to have been in the critical two minute along with the victim), never put up the quintessential questions to the victim elaborately enumerated in the bulky judgement, filed a complaint that categorically looks away from visual evidence, blatantly skipped very vital procedural steps such as to attach or seize the DVR, have its hash value generated, so and so forth- the judgement explains over fifty four paragraphs from 328-384 the mysterious mishappenings that have sequentially condemned the case of the prosecution.
‘Confession’ being another crucial element at the heart of the prosecution case has been given a discreet view by the judge in over thirty-one pages and fourteen paragraphs citing many a relevant authority. It is reiterated in the judgement from the State of Rajasthan vs Rajaram, where Hon’ble apex court has observed “Deliberate and voluntary confessions of guilt, if proved, are among the most effectual proofs in law.” While the slightest presence of feeling of threat, inducement or promise takes that away. In the present case, the judge deciphers every instance that renders the reader skeptical about the ‘voluntary nature’ of the clearly coerced confession which never once mentions the word ‘sexual assault’ in spite of the explicit chronological demands of the victim on mail to fulfil her malafide objectives.
While an advocate of human rights will choose to see the toil and turmoil of the judge who has never at a single juncture talked about the character or sexual history of the victim let alone issuing advisory or a manual to the rape victim and viably contemplated each relevant detail to arrive at conclusion, it is the vision choked with ‘ism’ that gets hooked to the obvious and perceives the paradigmatical logical contemplation of the facts layered with fabrication at each instance and builds the rhetoric of the judge being ‘misogynist or stereotypical in putting the victim to trial’ when it is arguably none of these.
What is obvious is only the reminder that proof is the prerequisite for the execution of justice and that burden is invariably upon the prosecution. It is just the tip of the iceberg that one sees here in terms of gaps and inconsistencies, a vigilant indulgence of the whole document steers the thought away from what is being contemplated. What is contemplated is certainly more palatable for a society bleeding with capitalism and breeding upon their convenient ‘isms’ yet one must be reminded that inconsistencies are way too palpable to scorn.
Equality plummets in the absence of equity.
The Author is an Advocate, Supreme Court of India.