‘There Can’t Be Inconsistency Between Time Of Offence Recorded In FIR And Deposition To Court’: Gujarat High Court Upholds Acquittal In Rape Case

Upholding the acquittal of an accused in a rape case, the Gujarat High Court said there was a major discrepancy with regard to the time of the incident.

“If at all offence is committed at a particular time, there cannot be inconsistent time of offence in between the deposition and the contemporaneous record like First Information Report registered by the first-informant herself,” said the division bench of Justice Umesh A Trivedi and Justice MK Thakker.

The court said it finds no reason to interfere with "well reasoned order of acquittal", that too, when a "conscious decision" has been taken by the State not to prefer an appeal against it.

"Considering the depositions of each witnesses before the Court, we find no error in the reasons assigned by the learned Judge holding that prosecution has failed to prove the case against the accused beyond reasonable doubt," said the bench.

The appellant, a young woman, had accused her close third-generation cousin, the respondent, of entering her house and raping her at knifepoint, while also threatening of killing her parents. She said that fear and the accused's familial ties had prevented her from immediately filing an FIR, which was eventually lodged after a period of approximately 6-7 days. The accused was acquitted in the case by Additional Sessions Judge, Tharad – Banaskantha on July 01 last year.

The court at the outset said that a close scrutiny of the evidence was necessary, considering the familial dispute and strained relations between the two families.

The court noted that there were significant contradictions in the victim's statements. While she claimed in her deposition that the incident occurred at 10 a.m., the FIR stated that it took place at 2:00 p.m. when she was alone at home.

"Not only there is a major discrepancy with regard to the time of the incident, she appears to have not raised any shout if at all incident occurred during the day time, maybe she was afraid of accused when he entered the house with knife, but no witness staying nearby is examined by the prosecution to support her version, at least of the accused, entering into her house at about 10 a.m. or even at 2:00 p.m. with knife."

The court also highlighted discrepancies in the victim's history given to the doctor. In her deposition, she said the rape was committed once, "whereas in a history before the Doctor, she stated about rape being committed twice within a span of 15 minutes."

“Even if it is presumed to be an exaggeration, considering the strained relations between the two families and more particularly, knife having not been either recovered or discovered, belying the story of prosecution that accused committed an offence of rape at knife-point is in material contradiction with the medical evidence. As also that except the date of incident, she has no history of even physical relation with anyone else, whereas medical evidence reflects the contrary,” the court said.

While considering the explanation for the delayed filing of the FIR not believable, the court said that if the offence had occurred at knife-point, the weapon should have been discovered or recovered, and the absence of such evidence further creates doubt regarding the accused's use or possession of a knife during the offence.

The court noted that in the cross-examination, it was established that since years, there is a dispute between two families and despite the attempts being made by village people, the relations between the two have not improved. "It creates doubt in respect of the offence and the manner in which it is committed, as deposed to by the witnesses," it added.

It further said the victim was major at the time of incident, "coupled with the fact that even if the history given by the accused himself before the Court to be treated as an admission, there is no admission at all with regard to the offence of rape as on the date pleaded by the prosecution."

"If at all it is to be treated as an admission of physical relation with consent of each other, that too, once prior to one month of the incident. Therefore, even that factor also does not help the prosecution to prove the case against the accused. Though relation might appear to be an immoral one, between distant relatives or third-generation cousin, who is also married, unless and until it becomes an offence, the accused cannot be convicted,” the court observed.

Case Title: M Versus State Of Gujarat [R/Criminal Appeal No. 2253 Of 2022]

Case Citation: 2023 Livelaw (Guj) 121

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