Evidence Of Prosecutrix Does Not Inspire Confidence: Bombay High Court Acquits Rape Accused

The Bombay High Court set aside the conviction of a man in a rape case saying that the evidence of the prosecutrix does not inspire confidence.

The Aurangabad Bench was dealing with an appeal filed by the aforesaid man against the judgment of the Additional Sessions Judge by which he was convicted under Section 376 of the Indian Penal Code (IPC) and sentenced to suffer seven years of rigorous imprisonment along with fine.

A Single Bench of Justice Abhay S. Waghwase observed, “On carefully analyzing the above evidence of victim, it is found that she reported about sexual intercourse while she was returning with flour from a four mill. There are no details of day, date and time, where she met accused exactly and by what mode he took her towards the water tank and at what distance was it located. She speaks about he initially insisting to perform marriage. Therefore, such material clearly suggests previous acquaintance of victim and accused. In fact the alleged episode which took place while she was returning from flour mill, is apparently an improvement and omission as such material is not finding place in her statement. Her answer in cross about she being picked up and carried up to railway station, is unworthy of reliance. Resultantly, her evidence does not inspire confidence.”

The Bench noted that the parents of victim are not examined so as to establish the exact age of victim and though the victim herself claims to be married 10 years back, exactly at what age she came in contact with the accused is not getting clear from the evidence of prosecution.

Advocate Rahul O. Awasarmol appeared on behalf of the appellant while APP N.D. Batule appeared for the respondent.

Facts of the Case -

The police station had filed challan against the accused appellant for the offence punishable under Sections 363, 366-A, 376, and 506 of IPC alleging that when the victim was proceeding towards village in the morning in the year 2011, the accused approached her, offered to marry her, and further suggested that they should run away and perform marriage. When the victim was alone in her house, she left the same and accompanied the accused who took her towards a mal near water tank and on promise of marriage, he had forcible intercourse with her and then threatened to finish her if she reported the incident to anyone.

Thereafter, the accused kept the victim in the house of his relative for two days and subsequently refused to marry her. When she came back, she narrated the incident to her family members and approached the police station. Hence, a crime was registered which was investigated and after gathering sufficient evidence, chargesheet against the accused was submitted. The Sessions Court reached to a finding that the prosecution had established the charges but only for the offence punishable under Section 376 IPC. Aggrieved by this, the accused was before the High Court.

The High Court in view of the above facts said, “On visiting testimony of PW6 Dr. Patod at Exhibit 68, she is found to be deposing that she examined victim on 14.08.2011 and she found hymen to be ruptured, but there were no injuries on other parts of her body. According to her, she sought radiologist’s and Dentist’s opinion regarding age of prosecutrix and as per their opinion, her age was 16 to 17 years and 15 years respectively. Her personal opinion was that age of prosecutrix was 14 to 15 years. She identified the medical report Exhibit 72 issued by her.”

The Court added that while under cross, doctor denied issuing wrong opinion but further admitted that actual age of the victim was more than 19 years. It said that the medical expert speaks about radiological age to be around 16 to 17 years and in cross, doctor has admitted that age of victim could be 19 years and therefore, in absence of conclusive evidence about age and taking into consideration the age narrated by doctor, it is unsafe to hold that victim was a minor or below 18 years of age at the time of incident.

“Admittedly appellant is only held guilty for commission of offence punishable under Section 376 of IPC. Therefore it is to be seen whether such offence is at all made out. … There is no clear opinion about forceful sexual intercourse as alleged. Evidence of doctor is also silent about any history of forceful sexual assault or on promise of marriage. As stated above, details of alleged episode which took place at water tank are not stated by her. She is directly examined on 14.08.2011 by doctor PW6 and this doctor has stated that there were no injuries on the parts of body. Therefore, medical evidence is also ambiguous and not conclusive”, it noted.

The Court also observed that in the totality of circumstances and when prosecution could not establish very age of the victim and moreover, she herself having left the house and had accompanied accused to a couple of districts and reported the occurrence late i.e., almost after five days, her version about forceful sexual intercourse or intercourse on promise of marriage cannot be readily accepted.

“… she has accompanied accused to another district without resisting or raising alarm. Her testimony about she being lifted and taken is unbelievable. There is material omission about alleged occurrence taking place at mal. Therefore, it is unsafe to rely on her sole testimony. In the light of her evidence, this court is of the opinion that there ought to have been further corroboration to her testimony but there is none. Even facts in the case in hand being distinct to the citation relied by learned APP, the same cannot be taken aid of”, it said.

The Court concluded that the Trial Court accepted the version of prosecutrix without assigning proper reasons and hence, there is no proper appreciation of the evidence of victim. It added that the medical evidence is also not full proof regarding commission of offence under Section 376 IPC.

Accordingly, the High Court allowed the appeal and acquitted the appellant.

Cause Title- Munja v. The State of Maharashtra (Neutral Citation: 2024:BHC-AUG:782)

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