Rules rape survivors stand on a high pedestal
The Lahore High Court has ruled that single testimony of child rape victims, in instances where DNA or medical reports aren’t available, is sufficient to record a conviction.
The remarks were passed by Justice Muhammad Amjad Rafiq at a hearing on Saturday. “A rape victim stands on a higher pedestal than an injured witness, because an injured witness gets the injury of the physical form while the rape victim suffers psychologically and emotionally and a single testimony is sufficient to uphold the conviction.”
The court was hearing an appeal by Kamran, 33, accused of raping a six-year-old student at a Gujranwala school in 2017.
According to the police, Kamran was employed as the security guard at the child’s school. On May 12, 2017, when she was on her way to the washroom, the suspect and his accomplice Barkat Ali cornered the student. Kamran raped her, while Barkat waited outside, keeping guard.
Back at home, she narrated the entire ordeal to her mother, who, then took her to the CMH Hospital with a lady constable Humaira Bashir.
The child’s medical examination corroborated the rape. An FIR was registered three days after the crime and the police arrested Kamran within a week.
After investigation, he was taken to the judicial magistrate of Gujranwala where he was sentenced to life imprisonment and a fine of Rs100,000 compensation was imposed on him.
In 2019, Kamran filed an appeal in the Lahore High Court seeking an annulment of his sentence. He claimed that he was falsely booked in the case to save the real culprits. “No one saw the occurrence, no test identification parade was held, there was inordinate delay in reporting the matter to the police, the testimony of witnesses is inconsistent and contradicted each other and medical evidence negates the rape,” the convict added.
In his 15-page verdict, Justice Rafiq, highlighted the following points.
Children who are victims of sex offenses should be allowed the “tender years” exception, where they are provided flexibility in the interpretation of the hearsay rule to permit the admission in evidence of statement to others about sexual abuse. The judge was referring to the admission of the victim’s mother as a witness in the case.
The court remarked that what a patient says about her state of health to a doctor is admissible and vice versa.
Justice Rafiq observed that the defence, in its appeal, had questioned: 1. Whether after three days of examination, injury to hymen could be regarded as fresh? 2. To what extent the penal insertion attracts the requirement of penetration?
The verdict, citing examples of international publications, ruled: “Soon after the act, the torn margins are sharp and red, and bleed on touch. Even when examined after 3 to 4 days of offence, the edges of the laceration are congested and swollen. The surrounding tissues are also swollen and tender.”
Responding to the second question, it pointed out: “Sexual intercourse means nothing less than penile insertion, even if this is only just between the labia. Full penetration is not necessary and rupture of the hymen is irrelevant, but unless some degree of penile introduction can be proved, a charge of rape cannot be sustained and anything less is ‘indecent assault’. An orgasm or ejaculation of the semen is not relevant, only penetration.”
The verdict added that in the case of small children, the genital injuries found are either absolutely minimal or of such magnitude that one is unable to perform the examination without general anesthetic.
But in this case, the medical officer has clear evidence that corroborates the rape.
It was observed that a report by the Punjab Forensic Science Agency revealed that one of the vaginal swabs found stained with semen didn’t have traces of sperm because of which the DNA profile seemed partial and inconclusive.
But the court countered that the absence of sperms in the vagina does not mean that sexual intercourse has not taken place.
Justice Rafiq, then, ruled that the prosecution has proved its case against the convict and instructed criminal charges should be maintained against Kamran. His appeal has, on the other hand, been dismissed.