~Sumedha Ray

Sheikh Zakir v. State of Bihar

[1983 AIR 911, 1983 SCR (2) 312]


The crime of rape is a heinous crime, a crime against the society, a crime against human dignity, one that reduces man to an animal. Rape has been given a vast definition under Section 376 of The Indian Penal Code, 1860[1]. Rape is not a dirty secret now; it has become a violent crime. With the increasing amount of rape cases, it is becoming difficult to curb them. It is troubling enough that such a small proportion of reported rapes make it to the court, worse still that so few victims come forward in the first place. But most disturbing of all is the reason why so many people keep their suffering to themselves; because they do not think they will be believed. The rape is still a dirty secret, hedged about with so much blame and shame that victims feel that they cannot come forward, is testament to how far we still have to go to curb such menaces prevailing in our society.

It is the spurt in the number of unmerited acquittals, recorded by the criminal courts, which gives rise to the demand for death sentence to the rapists. The courts have to display a greater sense of responsibility and be more sensitive while dealing with charges of sexual assault on women. A doubt has to be reasonable and not an excuse for finding in favour of the acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, more so when the victims of crimes are merely helpless and that is obvious in a number of Indian cases. So, the Supreme Court has once again emphasized in a case of rape that non-examination of doctor who examined the victim and non-production of doctor’s report is not fatal to prosecution, if evidence of victim is reliable. The court has to consider the plight of the victim in a case involving rape and the social stigma that may follow the victim to the grave and which in most cases, practically ruins all prospects of a normal life for the victim.

Facts of the Case:

The facts of the case of Sheikh Zakir v. State of Bihar[2] are that the appellant was convicted under Section 376 of The Indian Penal Code[3]for raping a tribal woman mainly on the evidence of the victim who was the complainant, her husband and two other witnesses, one of whom that he had seen the appellant on the body of the victim while the other had stated that he had seen the appellant fleeing away from the scene of occurrence. The High Court dismissed the appeal and confirmed the conviction.

The appellant submitted that the local Mukhiya to whom the complainant and her husband were alleged to have gone to complain about the incident   immediately after its occurrence, the  police officer who was alleged to have refused to record the complaint and also two other witnesses mentioned in  the complaint  had not been examined by the prosecution and this, together with the absence of a medical examination report  given by a doctor after examining the person of the complainant immediately after the occurrence, was fatal to the prosecution case.  The Mukhiya and one of the two other witnesses mentioned in the complaint who had not been examined earlier were examined pursuant to the orders made by the Court and they did not support the prosecution case.


It was held that even though a victim of rape cannot be treated as an accomplice, on account of a long line of judicial decisions, the evidence of an accomplice requires corroboration. Section 133 of The Evidence Act[4] says that an accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon the corroborated testimony of an accomplice. But the rule of practice is that it is prudent to look for corroboration of the evidence of an accomplice by other independent evidence. This rule is based on human experience and is incorporated in Section 114 of the Act[5].

There must be an indication in the course of the judgment that the judge had this rule in his mind when he prepared the judgment and if in a given case, the judge finds that there is no need for such corroboration he should give reasons for dispensing with the necessity for such corroboration. But if a conviction is based on the evidence of Prosecutrix without any corroboration it will not be illegal on that sole ground. In the case of a grown-up and married woman, it is always safe to insist on such corroboration. Wherever corroboration is necessary it should be from an independent source but is not necessary that every part of the evidence of the victim should be confirmed in every detail by independent evidence. Such corroboration can be sought from either direct evidence or circumstantial evidence or from both.

Case Comment: 

In Kishan Lal v. State of Haryana[6], it was held that the difference may be necessarily reflected in the nature of the inquiries for the two different purposes. The reading of the deposition in the Sheikh Zakir case[7] shows that it has a ring of truth around it. Her evidence has been corroborated in material particulars by the evidence of her husband and the other two witnesses. The statement made by the complainant to her husband immediately after the incident is admissible under Section 157 of the Act[8] and has a corroborative value. The Mukhiya has not given any version about the incident but has merely stated that the complainant and her husband had not gone to him to complain. It is significant that his name figured in the complainant as a witness. The complainant could not have taken the risk of including his name if he had not been actually contacted by her. He was cited as a witness to show that immediately after the occurrence the complainant had made a statement regarding the crime before him which would be corroborating evidence.

It has to be borne in mind that he was examined nearly 12 years after the incident and it is sufficiently long period and particularly for persons of easy conscience to make half-hearted statements in courts.The point for consideration in this case is whether the approach adopted by The High Court and the trial court of the case is correct and whether the material is sufficient to warrant the conviction recorded by them. The Supreme Court in this case held that the absence of any injuries on the person of the complainant may not by itself discredit the statement of the complainant. Merely because the complainant was a helpless victim, who was by force prevented from offering serious physical resistance, she cannot be disbelieved. In the light of the precedents medical evidences in cases of rape has grown in importance, so much so that sometimes the accused tried to use it to its own advantage. The question thus arises whether giving disproportionate importance to medical evidence amounts to bringing back the rule of corroboration. Earlier the victim’s testimony had to be corroborated in material particulars. After the dismantling of this rule, now corroboration by medical evidence seems to have come to the core.

In Gopal Kakkad case[9], where the question as to what constitutes sexual intercourse and rape was discussed, the Apex court has put the matter into perspective. Thus what follows from this judgment is that although medical evidence is relevant to establish the factum of occurrence of sexual intercourse, it is to remain restricted only to the factual aspect of the offence. The legal aspect whether rape was committed has to be established in the light of testimonial evidence, including the statement of the victim.

This is precisely what happened in Ranjit Hazarika’s case[10]. The victim in this case, a young girl innocently accepted the offer of the accused to walk her home. She was raped on the roadside. An FIR was lodged; she was sent for medical examination. At the trail, prosecution witnesses remained unchallenged. Being aware of the developments in law, the trail court convicted the accused under Section 376 IPC[11]. The High Court of Assam upheld the conviction and sentence. But the accused still thought he could wriggle out. In his appeal by special leave, the accused contended that the medical evidence belies the testimony of the prosecutrix and her parents. The Apex Court rejected this argument and gave emphasis to the evidence of the prosecutrix. Henceforth, non- production of the medical report would not be of much consequence if the other evidence on record is believable.In a case[12], it was held that the non-production of the medical report would not be of much consequence if the other evidence on record is believable.

In State of Rajasthan v. NK[13], it was held by the Supreme Court that the refusal to act on the testimony of the victim of sexual assault is in the absence of corroboration, as a rule, is adding to injury. The court criticized viewing evidence of such victims with the aid of spectacles fitted with lenses tinted with doubts, disbelief or suspicion.


In conclusion, it can be said that the courts have to do justice to the society and to the victim on one hand and to the offenders on the one hand. The proper balanced view must be taken. The legislative wisdom reflected by the statutes has to be respected by the courts and the permitted departure therefrom made only for compelling and convincing reasons. But that is not to say that medical evidence is unnecessary or irrelevant. Even where medical evidence is absent, the court has to arrive at a conclusion on an appreciation of all the relevant circumstances.                               

[1] Section 376, The Indian Penal Code, 1860.

[2]Sheikh Zakir v. State of Bihar 1983 AIR 911, 1983 SCR (2) 312.

[3] Section 376, The Indian Penal Code, 1860

[4] Section 133, The Indian Evidence Act, 1872

[5] Section 114, The Indian Evidence Act, 1872

[6] Kishan Lal v. State of Haryana CIVIL APPEAL NO. 4924 OF 2011.

[7] Supra note 2.

[8] Section 157, The Indian Evidence Act, 1872.

[9] Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204, 222 : 1992 SCC (Cri) 598.

[10]Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635 : 1998 SCC (Cri) 1725.

[11] Section 376, The Indian Penal Code, 1860.

[12]Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983), CriLJ 1096 SC.

[13] State of Rajasthan v. NK (2000), CriLJ 2205 SC.

About the author: Sumedha is a third-year law student at Symbiosis Law School, Pune.

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