The Allahabad High Court, while setting aside a conviction under Section 376 IPC observed that the testimony of the victim/prosecutrix is not of the character which may be classified as ‘wholly reliable’ or ‘unimpeachable’ and is not trustworthy and there are various major contradictions in her evidence.
Brief Facts:
The present criminal appeal was filed under section 374 CrPC by the appellant against the judgment and order passed by the IInd Additional Sessions Judge, whereby the appellant and co-convict have been convicted for committing an offence under section 376 IPC and sentenced to undergo 10 years rigorous imprisonment.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the appellant submitted that the trial court has committed manifest illegality in appreciating the evidence available on record. The allegation of rape has been levelled against four accused persons, while only two accused persons were named in the FIR and the role of other accused persons had surfaced in the statement of the victim/prosecutrix and other witnesses recorded under section 161 CrPC, however, the trial court has acquitted them, holding their identification doubtful. Further, it was submitted that even if the case of the prosecution is believed as it is, it will emerge that the victim/prosecutrix was a consenting party and perhaps as her mischief was known to her husband, she had lodged the FIR. A further submission was that there are material contradictions in the statement of the victim/prosecutrix so far as threatening to her by showing a knife is alleged and the victim/prosecutrix has also admitted in her statement that she has narrated what has been told to her by the investigating officer. It is further submitted that the duty of the trial court was to ascertain whether the case of the prosecution has been proved beyond reasonable doubt and, if there was any doubt or lacuna in the evidence of the prosecution, the benefit of the same should have been given to the present appellant and the trial court has failed in its duty to appreciate evidence of the prosecution witnesses in the right perspective.
Contentions of the Respondent:
The learned counsel appearing on behalf of the state submitted that the trial court has not committed any illegality or any irregularity in passing the impugned judgment and order. The appellant was named in the FIR. He was known to the victim/prosecutrix. The testimony of the victim/prosecutrix of sexual assault is akin to the evidence of an injured person and the same has been corroborated by the forensic lab report as seminal stains and sperm have been found on the undergarments of the victim/prosecutrix and the appellant.
Observations of the court:
The court noted that the case of the prosecution before the trial court was based on the testimony of the victim/prosecutrix and further referred to various decisions of the court with regard to the manner in which the evidence of a sole witness is to be appreciated and reiterated that in cases of rape order of conviction may be passed on the testimony of the victim alone, if the same is unimpeachable and further stated that if the prosecution is seeking the conviction of an accused person on the basis of the testimony of a single witness, the character of the testimony of that witness must be of the nature of wholly reliable and unimpeachable.
The court stated that in the present case, the testimony of the victim/prosecutrix is not of the character which may be classified as ‘wholly reliable’ or ‘unimpeachable’ and is not trustworthy and 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 stated that the trial court appears to have committed patent illegality in accepting the unreliable testimony of the victim/prosecutrix of the instant case and since she appears to be a consenting party and major at the date and time of the alleged incident, the judgment of the trial court may not be sustained and is liable to be set aside and the appellant is entitled for benefit of doubts, emerging in the case of the prosecution.
The decision of the Court:
The court allowed the appeal and set aside the order of conviction.
Case Title: Pasru @ Ismail vs The State
Coram: Hon’ble Mr. Justice Mohd. Faiz Alam Khan
Case No.: CRIMINAL APPEAL No. - 158 of 1986
Advocate for the Petitioner: P.S. Mehra, Satish Chandra Sitapuri
Advocate for the Respondent: G.A.
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