Eyewitness Did Not Term Incident As 'Rape', No Whisper About 'Resistance Of Victim', Was It Consensual? Gauhati High Court Sets Aside Conviction

Disbelieving the prosecutrix's testimony, the Gauhati High Court has reversed the conviction of a man for alleged rape of a married woman. Justice Arun Dev Choudhury spotted discrepancy in the prosecutrix's statements and also wondered if the acts were consensual as the eyewitness had not made any statement about prosecutrix's resistance to the act.

The bench observed,

"She (eyewitness) went to the house of the victim at around 11 am and saw the accused and the victim committing illegal act and seeing them having been involved in an illegal act, she returned back. In her deposition she has not made a whisper of any resistance of the victim as well raising of any hue and cry by the victim...the deposition...creates a doubt whether this was a rape or a consenting act."

An FIR was lodged by the informant-victim by alleging that on October 3, 2019 around 11 am, the accused taking the advantage of absence of victim’s husband and other family members entered into her residence and made an attempt to outrage her modesty.

On the receipt of the FIR, a case was registered against accused under Sections 448 and 376 of IPC. The Trial Court convicted the accused-appellant and sentenced him to rigorous imprisonment for a period 10 years and fine. Assailing this, accused preferred the present appeal.

The Court noted that in the FIR, the victim alleged that accused attempted to rape her in absence of her family members whereas in her deposition before the court she testified that the accused forcefully raped her for about half an hour. It was further pointed by the Court that two persons who came to the place of occurrence after hearing her alleged hue and cry were neither listed as witnesses nor they were examined which is a vital lacuna in the investigation.

The Court further highlighted that the eyewitness did no term the incident as rape but an "illegal act being committed by both the accused and the victim".

The Court also noted that as per medical report there were no marks of violence. It said if the victim alleged that she was raped for half an hour and she was resisting and raising hue and cry, the same will definitely indicate some minimal kind of evidence of injury or mark of violence.

“…in the considered opinion of this court, on the basis of the evidence available, the quality of evidence of the PW-1, the victim cannot be treated as of sterling quality as to convict the petitioner under section 376 IPC. Rather, the deposition of PW-2 (eyewitness) as discussed hereinabove is suggestive of not a rape but of a consenting relation as she has not deposed anything about any resistance or any force used by the accused, rather she deposed that she saw both of them committing illegal act inasmuch as in the common parlance illegal act will definitely mean in the context of the present case an illegal relation or sexual intercourse with a third party and not with the husband.”

Thus, the Court set aside the conviction and sentence of the appellant passed by the Trial Court.

Case Title: Raham Ali v. The State of Assam & Anr.

Citation: 2023 LiveLaw (Gau) 83

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(Edited by Akshita Saxena)