The Allahabad High Court while allowing an appeal said that the evidence of a rape victim stands at par with evidence of an injured witness and the accused can be convicted on the basis of the sole testimony of the victim without further corroboration provided the evidence of the victim inspires confidence and appears to be natural and truthful.
The Division Bench of Justice Ashwani Kumar Mishra and Justice Syed Aftab Husain Rizvi passed this order while hearing a Criminal Appeal filed by Anmol and Another.
The criminal appeal has been filed against the order dated 14.09.2017, passed by Special Judge (POCSO Act)/Additional Session Judge, Shahjahanpur, in Special Case under Sections 376(d) I.P.C and 5(Chha)/6 of the Protection of Children From Sexual Offences Act, Police Station Garhiya Rangeen, District Shahjahanpur.
The appellants have been convicted for the offences under Sections 376(d) I.P.C and 5 (Chha)/6 of the Protection of Children From Sexual Offences Act and sentenced to undergo life imprisonment for the offence under Section 376(d) I.P.C along with a fine of Rs 75,000/- each and in default of payment of fine, to undergo two months additional simple imprisonment and undergo imprisonment for 15 years each, for the offence under Section under 5(Chha)/6 of the Protection of Children From Sexual Offences Act along with a fine of Rs 25,000/- each and in default of payment of fine, to undergo one month’s additional simple imprisonment.
All the sentences were directed to run concurrently.
Case under Sections 376(d) I.P.C and 5(Chha)/6 of the Protection of Children From Sexual Offences Act was registered on 08.01.2015 at 10.30 a.m at Police Station Garhiya Rangeen, District Shahjahanpur on the written information alleging therein that yesterday, at 6.30 p.m, the daughter of the informant had gone to ease herself in the nearby field, where Anmol and Pappu caught hold of her and at the point of country-made pistol, sexually assaulted her, turn-by-turn. The age of the victim is 15 years.
Special Judge/Additional Sessions Judge took cognizance of the charge-sheet. Charges under Sections 376(d) I.P.C and 5(Chha)/6 of the Protection of Children From Sexual Offences Act were framed against the accused-appellants Anmol and Pappu. The accused pleaded not guilty and claimed to be tried.
The statements of the accused were recorded under Section 313 CrPC. The incriminating materials of the prosecution evidence were put to them. Both the accused have denied it.
They have also stated that the witnesses have deposed against them due to enmity, the victim has deposed under the pressure of her parents. They have also stated that they are innocent and have been falsely implicated due to village rivalry.
The Trial Court, after hearing the arguments of both the parties, by the impugned judgment, held both the accused-appellants guilty, and sentenced them as above.
Counsel for the appellant-accused submitted that the court below has not properly appreciated the facts and evidence on record. The medical report does not support the case of the prosecutrix since no mark of external injury has been found on the body of the victim.
No stains of semen or blood were found on the clothes of the victim. The report of vaginal smear is also negative. Therefore, it creates serious doubt about the credibility of the victim.
It is further submitted that in the absence of injury, the story put forth by the victim is not believable.
It is further contended that except the deposition of the victim which has not been corroborated by the medical evidence, there is no other evidence to connect the accused with guilt. Even the doctor has categorically said that there is no physical or pathological evidence of rape.
Lastly, it is contended that the trial court has materially erred in convicting the accused.
Per contra, A.G.A contended that the victim has fully supported the case of the prosecution. Ordinarily, the evidence of rape victims should not be suspected and should be believed and if the evidence is reliable, no corroboration is necessary.
It is further contended that the doctor has noted internal injury in the form of a partially torn hymen, which supports the deposition of the prosecutrix.
It is further submitted that in the facts and circumstances of the case, no error has been committed by the trial court in convicting the accused for an offence under Section 376(d) I.P.C and 5(chha)/6 of the Protection of Children From Sexual Offences Act.
“It appears that the Investigating Officer has not conducted the investigation in a proper manner. The informant, the father of the victim, is not an eyewitness of the incident. He has only lodged the report on the disclosure made by the victim, but the Investigating Officer has prepared the site-plan on the pointing out of the first informant.
It is clear from the analysis of the evidence on record that there are serious discrepancies and major contradictions in the prosecution evidence. The sole testimony of the victim does not find support from the medical evidence. No mark of external injuries has been found on the body of the victim while it is in the version of the victim that she was physically assaulted. The doctor has also opined that the injury of a partially torn hymen may be caused by a fall or from a stretch. No bleeding has been found. So, the sole testimony of the victim is not of the standard which brings her into the category of a sterling witness on the basis of which without any corroboration, the prosecution case can be treated as proved beyond reasonable doubt. The evidence of the victim is not inspiring, natural, and truthful. We are of the considered opinion that from the evidence on record, the prosecution case does not stand to be proved beyond reasonable doubt.
The trial court has not meticulously appreciated the evidence on record and has committed an error in relying on the sole testimony of the victim to base the conviction.
The finding of guilt recorded by the trial court is not sustainable and the appeal is liable to be allowed”, the Court observed while allowing the appeal.
“The conviction and sentence of the accused appellants, Anmol and Pappu recorded by the trial court are hereby set aside. The accused appellants are in jail. They shall be set at liberty subject to compliance of Section 437-A Cr.P.C, if they are not wanted in any other case”, the Court ordered.