'Prosecutrix Testimony Not Reliable': Allahabad High Court Acquit Rape Accused After 20 Yrs In Jail, Appeal Remained Defective For 16 Years

A Division Bench of Justices Dr. Kaushal Jayendra Thaker and Gautam Chowdhary while passing order for release of one Vishnu, set aside the conviction order passed by a Trial Court in 2003, under Sections 376 and 506 of IPC and Section 3(2)(v) read with Section 3(1)(xii) of the Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

It held,

"We are unable to convince ourselves with the submission made by learned AGA for State that she has been a victim of atrocity as well rape and, therefore, the accused should not be leniently dealt with."

The Court further opined that the sole testimony of a prosecutrix, if reliable, is sufficient to convict the accused. However, in the instant case, it observed that the testimony of the prosecutrix cannot be said to be that of a sterling witness and does not inspires the Court's confidence.

Background

The FIR in this matter dates back to September 2000. As per the prosecution, the prosecutrix was 5 months pregnant and was on her way to give lunch for her father-in-law, when she was grabbed by the accused, thrashed to the ground and then sexually exploited.

It was their case that the incident occurred because of the caste of the prosecutrix, the matter of fact which was known to the accused.

Further, as per the prosecutrix, she was threatened of dire consequences by the accused in case she revealed the incident to anyone else and therefore, her family members did not go to the Police Station for three days. Thereafter, the prosecutrix's father-in-law lodged the FIR.

After conviction by the Trail Court, the Appellant preferred the instant appeal in 2005 through jail, which remained defective for a period of 16 years. This defective conviction appeal was taken up as listing application and was filed by the Legal Services Authority with a special mention that accused is in jail for 20 years.

Findings

At the outset, the Division Bench expressed displeasure that a defective appeal was not cured for a period of 16 long years. It observed,

"Most unfortunate, aspect of this litigation is that the appeal was preferred through jail. The matter remained as a defective matter for a period of 16 years and, therefore, we normally do not mention defective appeal number but we have mentioned the same."

The Court then proceeded to examine the veracity of allegations levelled by the prosecutrix and her family, and concluded that there are material contradictions in their testimonies, rendering their oral evidence unreliable.

In light of the ratio laid down in Ganesan v. State, Criminal Appeal No. 680 of 2020, that if the testimony of a prosecutrix is trustworthy and reliable then a conviction may be based on sole testimony of the victim, the Bench observed,

"In our case when we rely on the said decision, it is borne out that the testimony of the prosecutrix cannot be said to be that of a sterling witness and the medical evidence on evaluation belies the fact that any case is made out against the accused."

Contradictions in Prosecutrix's testimony

The Bench noted that the prosecutrix in her ocular version had conveyed that she dictated the FIR while she did not go inside the police station but she was sitting outside the Police Station. However, in her cross examination she accepted that it was her father-in-law who dictated the report to the police station officer.

According to the prosecutrix, it was rainy season when incident occurred, she was thrashed in the bushes and according to her the accused had committed bad act with her for ten minutes. She did not convey the incident to her husband immediately who was in the fields but on next day, she conveyed the same to her father-in-law.

The father-in-law however in his statement recorded on cross-examination stated that the incident was told by his daughter-in-law to his wife who told him about the same.

There was a motive on the part of complainant as there was land dispute between the parties.

Medical evidence does not support prosecution case

The Division Bench noted that the medical evidence did not support the prosecution case. While it was conscious that it is not necessary that there must be corroboration in the prosecution version and medical evidence however, the Bench opined,

"The medical evidence should show some semblance of forcible intercourse, even if we go as per the version of the prosecutrix that the accused had gagged her mouth for ten minutes and had thrashed her on ground, there would have been some injuries to the fully grown lady on the basis of the body."

The Court noted that the medical examiner did not find any external or internal injury on the person of the victim. On this count, it observed

"We find one more fact that despite allegation that rape is committed as alleged by the prosecutrix, there are no injuries on the private part of the lady, who is a fully grown up lady and who was pregnant and is said to have been threshed.

In our finding, the medical evidence goes to show that doctor did not find any sperm. The doctor categorically opined that no signs of forcible sexual intercourse were found. This was also based on the finding that there were no internal injuries on the lady

If the pregnant lady carries fifth month pregnancy is thrashed forcefully on the ground then there would have been some injury on her person but such injuries on her person are totally absent."

Caste based allegations not made out

Lastly the Bench opined that the prosecution could not prove that the alleged incident occurred because the prosecutrix belonged to a particular class.

It observed.

"While perusing the entire evidence beginning from FIR to the statements of PWs-1, 2 and 3 we do not find that commission of offence was there because of the fact that the prosecutrix belonged to a certain community.

The learned Trial Judge has materially erred as he has not discuss what is the evidence that the act was committed because of the caste of the prosecutrix."

Case Title: Vishnu v. State of UP

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