'Medical Evidence Shows Prior Sexual Experience, No Injury Marks': Patna High Court Sets Aside POCSO Conviction For Rape

The Patna High Court set aside the conviction under Sections 366A and 376D IPC and Section 4 of the POCSO Act, holding that material contradictions between the victim's Section 164 CrPC statement and her deposition, absence of medical evidence, and lack of independent corroboration rendered the prosecution case unreliable. The Court held that conviction cannot be sustained on such inconsistent and uncorroborated evidence. A Division Bench of Justice Bibek Chaudhari and Justice Dr. Anshuman was hearing a criminal appeal challenging the judgment of conviction dated 03.05.2018 and order of sentence dated 10.05.2018 passed by the Special Judge (POCSO Act), Aurangabad in GR Case No. 864 of 2015 arising out of Amba P.S. Case No. 40 of 2015. The appellants argued that the trial court had misappreciated evidence and relied heavily on interested witnesses. It was contended that there were material contradictions between the victim's statement under Section 164 CrPC and her testimony before the Court, particularly as the earlier statement did not contain any allegation of rape. They further argued that there was no independent corroboration, and no medical evidence supporting forcible sexual intercourse. The prosecution relied on the testimony of the victim, contending that in cases of sexual assault, the victim's evidence carries great weight and does not require corroboration as a matter of rule. It was argued that the victim had clearly deposed about kidnapping and repeated rape, and her testimony should be sufficient to sustain conviction. The High Court reiterated that it is well-settled that in cases of sexual assault, the testimony of the victim is of paramount importance and cannot be equated with that of an accomplice, as a victim would ordinarily not make false allegations at the cost of her dignity. However, applying this principle to the facts of the present case, the Court found serious inconsistencies in the prosecution version. It noted that the FIR was lodged by the victim's father only on the allegation of kidnapping when the victim was missing, and the allegation of sexual assault surfaced only after her recovery. Crucially, when the victim's statement was recorded under Section 164 CrPC shortly after her recovery, she did not make any allegation of rape and only spoke of kidnapping. The Court held that this omission, in contrast with her later deposition alleging gang rape, created significant contradictions going to the root of the prosecution case.Further, the Court found that the testimonies of other prosecution witnesses were purely hearsay and did not corroborate the alleged incident. None of them had witnessed the occurrence. The Court also noted the absence of medical evidence supporting forcible sexual assault, which weakened the prosecution case in the context of such serious allegations. The Court noted:“21. The victim herself stated that she was about 17 years old at the relevant point of time. The Medical Board, by way of an ossification test and dental examination, found her approximate age to be between 15 and 16 years. From the report of PW-9, Dr. Rina Kumari, we find that the victim was welloriented, therefore, when a girl aged about 15-17 years was kidnapped and she was raped repeatedly by three appellants for three days, it is natural and probable that she would at least resist the perpetrators of offence from committing such heinous act. In her evidence, she stated the appellants committed rape upon her against her will forcibly, if there is a forcible physical relationship upon a girl by three persons for three days, there must be some injury marks on different parts of her body. But the medical officer (PW-9) did not find any mark of violence on her body. On the other hand, she found old rupture of hymen and the vagina easily admitting one finger meaning thereby the victim had previous experience of sexual intercourse.”The High Court thus held that the victim's evidence was “not wholly reliable; rather, mostly unreliable,” particularly in the absence of any explanation as to why she remained silent about the alleged rape in her statement under Section 164 CrPC. The Court observed that this omission permitted an inference that the allegation of rape may have been subsequently introduced. It reiterated that where two views are possible on the evidence, the one favouring the innocence of the accused must be adopted. Accordingly, the appeal was allowed and the conviction and sentence were set aside.Case Title: Deepak Kumar @ Sunny and Anr v. State of Bihar.Case Number: Criminal Appeal (DB) No. 936 of 2018Appearance: Mr. Vishwanath Pd. Sinha, Sr. Advocate, assisted by Sri. Sanjay Kumar Singh, and Sri. Prabhash Ranjan Thakur appeared for the Appellant. Mr. Sujit Kumar Singh appeared for the Respondent.Click Here To Read/Download Order

'Medical Evidence Shows Prior Sexual Experience, No Injury Marks': Patna High Court Sets Aside POCSO Conviction For Rape

Rushil Batra

"Medical officer did not find any mark of violence on her body. On the other hand, she found old rupture of hymen and the vagina easily admitting one finger meaning thereby the victim had previous experience of sexual intercourse,” court said.

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