Victim's Silence On Rape Before Doctor & Magistrate Casts Shadow Of Doubt On Prosecution : Allahabad High Court Sets Aside Conviction 

A bench of Justice Achal Sachdev noted that the victim's act of resiling (retracting) from her exculpatory statements given to the Magistrate during the trial casts a “shadow of doubt” over her integrity and the same had weakened the prosecution's case.

The Court also referred to the medical examination report and the vaginal smear report, which negated the prosecution's version that the victim had been abducted and was forcibly raped by the appellant.

The bench thus ALLOWED the appeal filed by the accused (Bhagwat Kushwaha) challenging a September 2019 judgment by the Special Judge (POCSO), Jhansi, convicting him under Section 366 (kidnapping, abducting or inducing a woman to compel her marriage) and Section 376 (Rape) of the IPC.

Case in brief

As per the prosecution's case, on May 28, 2015, the father of the girl made a written complaint before the police officials stating that his daughter had gone missing and that she had been kidnapped by Bhagwat.

The victim was recovered by the police the next day. Her statement was recorded by the police and a medical examination was conducted on May 30. Her statement was recorded before the Magistrate on June 4, where she did not make any complaint of rape or kidnapping. The accused was arrested on the same day.

Following the trial, the accused was found guilty and moved to the High Court, challenging his conviction. His counsel primarily argued that the victim was a minor (aged about 17-18 years) and had a consensual sexual relationship with him.

High Court's observations

In its 28-page order, the Court placed heavy reliance on the victim's statement recorded under Section 164 CrPC before the Magistrate, where she had admitted that she was in love with the appellant and went along with him of her own volition.

The victim later changed her stance before the Trial Court, claiming that she was kidnapped and raped by the appellant.

However, the HC found it suspicious that she resiled from her earlier sworn statement, noting that “resiling from statement before a Magistrate...casts shadow of doubt over integrity of witness”. The Court emphasised that a statement under Section 164 CrPC cannot be discarded on "flimsy grounds" or a mere assertion that the Magistrate recorded it incorrectly.

The Court also noted that, even in her statement to the doctor, the earliest in point of time, she did not mention the use of force and had simply stated that she went along with the appellant to Jhansi.

The Court found the victim's story logically weak. She claimed she was forcibly taken from her house at night and raised an alarm, but nobody listened despite her parents sleeping in the same house.

The HC found it “highly probable” that if she had actually raised an alarm while being abducted, her parents would not have kept sleeping.

The Court found faults with the Trial Court judgment where the accused was essentially made to justify his innocence despite the failure of the prosecution to discharge its initial burden of proof.

The HC noted that the conviction was based solely on the victim's testimony, which was full of contradictions. Even the medical report showed no signs of recent sexual activity or external injuries.

In fact, the court also criticised the trial court for rejecting counsel's argument that the medical examination and vaginal smear reports do not support the prosecution's case against the appellant. 

“(The finding) is perverse and condemnable and seems to be a deliberate attempt to conceal evidence favouring appellant in order to secure his conviction and is against the basic tenets of criminal law that the prosecution must discharge the burden before any opinion can be expressed on the merits of the case,” Justice Sachdev remarked.

Against this backdrop, the Court concluded that the victim and the appellant were in a relationship and the victim had left her father's house on her own volition. It noted that there was no evidence on record from which it could be concluded that the victim had been enticed to go away against her will.

Consequently, the judgment and order of the Trial Court were set aside, and the accused was acquitted of the charges.

Counsel for Appellant(s) : Abhishek Mayank, Abhishek Srivastava, Arbaz Danish, Vipin Kumar, Zia Naz Zaidi

Counsel for Respondent(s) : G.A., Rajesh Kumar Singh, Vinay Kumar Singh