Medical Report Doesn't Indicate Rape, Evidence Of Minor Victim & Sister Unsubstantiated, Contradictory: Gauhati High Court Sets Aside Conviction
The Gauhati High Court has set aside the conviction and sentence imposed on a man, for committing the alleged offence of rape against a minor under Section 376 of IPC, by the Trial Court on the ground that the evidence of the victim is not similar to the deposition of her younger sister before the court and the evidence of the medical officer who examined the victim does not indicate any...
The Gauhati High Court has set aside the conviction and sentence imposed on a man, for committing the alleged offence of rape against a minor under Section 376 of IPC, by the Trial Court on the ground that the evidence of the victim is not similar to the deposition of her younger sister before the court and the evidence of the medical officer who examined the victim does not indicate any incident of rape.
The single-judge bench of Justice Susmita Phukan Khaund observed:
“It is true that the victim has deposed that the appellant committed sexual assault on her, but due to the myriad of contradictions and the medico legal report given by the MO, benefit of doubt has to be extended to the appellant. Although the Medical Officer and the Magistrate have not stated that the victim is physically challenged, yet assuming that the victim is physically challenged, it will even be more perilous to convict the appellant on the sole testimony of the victim when the evidence is bristled with contradictions.”
The case of the prosecution was that the accused-appellant committed rape on a 13-year-old victim on November 07, 2017 at about 3 pm. The victim's father lodged an FIR under Section 4 of the POCSO Act, 2012 and the accused-appellant was chargsheeted by the Investigating Officer (IO) under Section 6 of the POCSO Act.
The Trial Court vide judgment and order dated July 23, 2019 convicted the accused under Section 376(2)(I) of IPC and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/-.
Hence, the accused-appellant filed the present appeal before the High Court.
The Counsel appearing for the appellant submitted that the key witnesses PW5 (victim) and PW6 (victim's younger sister) cannot speak either Assamese or Bodo and their statements have been interpreted without following the proper procedure of the Oaths Act, 1969
It was further submitted that the findings of the doctor revealed that the victim did not suffer from any sexual assault and her hymen was found to be intact.
On the other hand, the Additional Public Prosecutor submitted that although the medical evidence does not support the offence of rape, the testimony of the victim cannot be discarded. It was further submitted that the evidence of a victim is sufficient to prove a case of sexual assault even though the hymen of the victim at times are found to be intact.
The Court noted that the report and cross-examination of the medical officer who examined the victim revealed that no injuries were detected on the private parts of the victim nor spermatozoa was seen and no evidence of violence was detected.
It was noted by the Court that the sole evidence of two minor witnesses without any substantiating evidence cannot form the basis of conviction. The Court observed that there was no acrimonious relation between the appellant and the informant which would prompt the informant to falsely implicate the appellant as projected by the defence.
“Although no contradictions could be elicited through the cross-examination of the witnesses vis-à-vis the cross-examination of the IO, the contradictions which surfaced through the evidence-in-chief of the witnesses casts a shadow of doubt over the veracity of the evidence, more so, when PW-5 admitted in her cross-examination that she gave her evidence as tutored by her parents”, the Court said.
The Court relied upon the judgment of the Gauhati High Court in Ranjit Hazarika v. State of Assam in 2018 (2) GLJ 585 in which the accused was acquitted because, despite the allegation of sexual assault against him, the evidence of the doctor revealed absence of any injury on the private parts of the victim and the hymen of the victim was found to be intact.
Thus, the Court, owing to the procedural lapses and the contradictions in the evidence, extended a benefit of the doubt to the appellant.
Therefore, the Court set aside the conviction and sentence imposed on the appellant by the Trial Court vide its judgment dated July 23, 2019.
Citation: 2024 LiveLaw (Gau) 1
Case Title: UB v. The State of Assam