15 July 2019


Judgments

High Court of Allahabad

Shoib Vs. State of U.P.

MANU/UP/1955/2017

11.08.2017

Criminal

Conviction of accused cannot be sustained, if sole testimony of prosecutrix found artificial

Instant criminal appeal is against the judgment passed by trial Court, whereby Accused Appellant was convicted for offences under Sections 363, 366, 342, 376 of Indian Penal Code, 1860 (IPC). All the sentences were directed to run concurrently. Trial Court on basis of evidence on record came to conclusion that, the present Appellant was instrumental behind this and was found guilty and was punished. Present appeal has been filed on ground that, findings of the Court below are perverse and erroneous and not proved by medical evidence and that there was no motive to commit the offence. Further, that none of the independent witness had been examined by prosecution and story of the prosecution is highly improbable.

In order to hold a person guilty of an offence under Section 363 of IPC, it must be proved that, accused played an active part in taking away a female out of the keeping of her guardian without the consent of the guardian either prior to, or at the time of her taking away out of such guardianship by either directly using force or threat against the female or injecting into her mind some irresistible allurements or temptations which may impel her to leave or forsake the custody of her guardian. In facts of present case, prosecution has failed to prove that, the accused played any active part in taking away the victim out of keeping of her lawful guardianship. Sole testimony of the victim is not at all reliable.

Admittedly, victim was not examined by any Medical Officer and naturally, there is no medical report to ascertain or have the opinion of the Medical Officer on forcible rape and also to ascertain, whether the victim received any injury on her person. It is to be noted that all the PWs, except the official witness, are related and interested witnesses. The prosecution did not examine any independent witness, not even any neighbour. The evidence of prosecution witnesses is quite unnatural and unbelievable. Such evidence cannot lend any corroborative value to the evidence of the victim and it cannot be a basis for conviction of the accused.

There was inordinate delay in lodging the first information report. No explanation has been given by the prosecution regarding delay. There was no hue and cry in the family and neighbours or by reporting the police for the incident. It is true that, a Court has to take seriously the cases relating to violence against woman. Simultaneously, the Court has a duty to guard itself against false charges of rape. The narration of the prosecution case is full of vital omissions and contradictions and it raises strong doubt which over-shadows the genesis of the prosecution case. High Court opined that, it would be unsafe to sustain the conviction in present case relying upon the testimony of the prosecutrix alone. Dignity of woman will have to be protected, but without aid of emotion.

In Sadashiv Ramrao Hadbe v. State of Maharashtra, it has been observed that it is true that in a rape case, accused could be convicted on the sole testimony of the prosecutrix ,if it is capable of inspiring confidence in mind of the Court and if version given by the prosecutrix is supported by medical evidence and whole surrounding circumstances makes the case set up by the prosecutrix highly probable and believable. Therein, it is also observed that the Court shall be extremely careful in accepting the sole testimony of the prosecutrix, when the entire case is improbable and unlikely to happen.

Since, prosecutrix avoided medical examination, she could not be examined medically to obtain a report of Medical Officer or to ascertain whether she received any injury on her person due to alleged rape committed upon her by the Appellant. Except her oral evidence, there is no other medical or other documentary evidence supporting her allegation. Her evidence has been found as much artificial as imaginary, which is due to subsisting rivalry between her family and the accused Appellant. The possibility of making false allegation against the Appellant cannot be ruled out. Apex Court in Narayan v. State of Rajasthan, held that, though evidence of prosecutrix can alone sustain conviction of the accused but if evidence is found so artificial that it cannot be accepted, conviction and sentence imposed upon accused for offences punishable under Sections 363, 366, 376 and 342 of IPC is liable to be set aside. Accordingly, Impugned conviction and sentence are quashed and set aside. Appellant is acquitted on benefit of doubt.

Relevant

Narayan v. State of Rajasthan MANU/SC/7284/2007
: (2007) 6 SCC 465, Sadashiv Ramrao Hadbe v. State of Maharashtra MANU/SC/0607/2006
: (2006) 10 SCC 92

Tags : Conviction Legality Evidence Credibility

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