An accused acquitted from conviction under Sec 375 (rape) - prosecutrix evidence not of sterling quality; SC.

Supreme Court of India

Justice M R Shah &  Justice Ashok Bhushan

The SC {SANTOSH PRASAD @ SANTOSH KUMAR v. THE STATE OF BIHAR} holds that there are material contradictions in the case of the prosecution. Further, held that not only there are material contradictions, but even the manner in which the alleged incident has taken place as per the version of the prosecutrix is not believable. In the examinationin-chief, the prosecutrix has stated that after jumping the fallen compound wall accused came inside and thereafter the accused committed rape. She has stated that she identified the accused from the light of the mobile. However, no mobile is recovered. Even nothing is on record that there was a brokencompound wall. She has further stated that in the morning at 10 O’clock she went to the police station and gave oral complaint. However, according to the investigating officer a written complaint was given. It is also held that even the FIR is registered at 4:00 p.m. 

The SC held that the version of PW5 -prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests of “sterling witness”. Also held that there is a variation in her version about giving the complaint. There is a delay in the FIR. The medical report does not support the case of the prosecution. FSL report also does not support the case of the prosecution. Further held, as admitted, there was an enmity/dispute between both the parties with respect to land. The manner in which the occurrence is stated to have occurred is not believable. Therefore, in the facts and circumstances of the case, it was held that the solitary version of the prosecutrix – PW5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellant and accused is to be given the benefit of doubt.

It was held that reference has been made in Gurmit Singh case [(1996) 2 SCC 384 : 1996 SCC (Cri) 316] to the amendments in 1983 to Sections 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, and also to Section 114-A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113-A and 113-B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualised as the presumption under Section 114-A is extremely restricted in its applicability. This clearly shows that insofar as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. 

In the present case, the High Court has dismissed the appeal preferred by the  accused and has confirmed the judgment and order of conviction passed by the learned Sessions Court convicting the accused for the offences punishable under Sections 376(1) and 450 of the IPC, the accused has preferred the present appeal before the SC. The SC allowing the appeal set aside the conviction and set free the accused.