Victim's Testimony 'Unreliable', She Appears To Be A Consenting Party: Allahabad High Court Acquits Man In 1984 Rape Case

A bench of Justice Mohd. Faiz Alam Khan observed that the trial court had committed patent illegality in accepting the unreliable testimony of the alleged victim/prosecutrix.

The Court added that the alleged victim appeared to be a consenting party and major at the date and time of the alleged incident; hence, the trial court's judgment was liable to be set aside.

“The testimony of the victim/prosecutrix, which has been highlighted herein before, in the considered opinion of this court, is not of the character which may be classified as 'wholly reliable' or 'unimpeachable' and is not trustworthy. There are various major contradictions in her evidence and overall perusal of her evidence, as recorded before the trial court, would give an impression that perhaps she had accompanied the accused persons of her own,” the Court remarked.

The Court further noted that the alleged victim's age had been assessed as 17-18 years at the time of the alleged incident through the ossification process, and she had admitted to having married two years before the alleged incident and was also having a child of four months at that point in time.

Thus, with regard to the two-year variable on either side, the alleged victim appeared to be major at the time of the alleged incident, the Court said.

The case in brief

An FIR in this matter was lodged by the alleged victim/prosecutrix herself on January 22, 1984, alleging that at about 7 pm, the appellant and co-accused-Prakash Jamadar forcibly abducted and took her to a place, where one of their associates also joined them and all the four persons committed rape with her against her wish till 10 p.m.

She also alleged that they threatened to kill her and closed her mouth by tying cloth to her mouth. It was also alleged that she knew two of the accused by their names, and the remaining two accused persons were not known to her.

After making a hue and cry, she was let free, and thereafter, she went to the police station with her husband and lodged the FIR.

After finding sufficient evidence/material, the investigating officer submitted a charge sheet against the appellants, Pasru @ Ismail, Prakash Jamadar, Hansram, and Kishori, under section 376 IPC.

Importantly, as per the medical evidence in the case, some semen stains were noticed on the Appellant's underwear, which was sealed and sent for chemical analysis. During the trial, the accused claimed that he was forced to wear the said underwear by the police personnel at the police station.

On the other hand, no injuries were found during the medical examination of the alleged victim/prosecutrix. Her age was ascertained through the ossification process as 17-18 years, and vaginal smear, which was collected from the alleged victim/prosecutrix, also showed no sperm etc.

The trial court, after appreciating the evidence available on record, found the case of the prosecution proved beyond reasonable doubt pertaining to the instant appellant and co-convict, however, the other two accused persons were acquitted.

The appellant and co-accused preferred an appeal against the judgment of conviction; however, since the co-accused died during the appeal's pendency, his criminal appeal abated.

Before the HC, the counsel's primary contention for the accused/appellant was that the alleged victim's husband was not an eyewitness. The other three prosecution witnesses, who claimed that they had seen the abduction of the victim/prosecutrix, had turned declared hostile and hence, there was no case made out against the appellant.

Court's observations

Taking note of the case's facts and the trial court's judgment, the Court observed that the prosecution's case before the trial court was based on the testimony of the victim/prosecutrix as all the alleged eyewitnesses had turned hostile.

The Court noted that she had made several contradictory statements during her testimony and cross-examination. Overall, perusing her evidence, as recorded before the trial court, gave the impression that perhaps she had accompanied the accused persons on her own, the Court said.

In view of this, the Court stressed that having regard to the fact that the victim/prosecutrix appears to be a consenting party, the report of the forensic lab, with regard to the finding of seminal stains on the inner garments of the appellant and the prosecutrix/victim would not be of any significance.

Thus, finding testimony 'unreliable', the Court allowed the appeal and acquitted the accused of the charges framed against him under section 376 IPC.

Case title - Pasru @ Ismail vs. The State 2024 LiveLaw (AB) 272

Case Citation: 2024 LiveLaw (AB) 272

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