The Allahabad High Court recently set aside the conviction order passed against a rape accused as it found each and every part of the testimony of the prosecutrix to be 'infirm', 'doubtful', and 'contradictory'.
Significantly, the accused has already been released after serving a full sentence after getting the benefit of a remission period.
The bench of Justice Karunesh Singh Pawar found that in support of the testimony of the prosecutrix no corroborative evidence was presented before the Court and that the prosecution had not been able to prove the place of occurrence, the time of occurrence, and the manner of occurrence.
The case in brief
Essentially, one Amar Singh (released on remission) preferred against the judgment and order of 2011 passed by Additional Sessions Judge, Kanpur Nagar convicting him under section 366 I.P.C. to undergo five years rigorous imprisonment and under section 376 I.P.C. for seven years R.I.
Complainant Bablu (P.W. 1) alleged that her daughter aged about 16-17 years was enticed away from her home by Amar Singh/Accused. He agreed with her to marry. The complainant apprehended both, the accused Amar Singh and his daughter and gave them in the custody of the police.
The prosecutrix in her statement under section 164 CrPC stated that she went with the accused to Arya Nagar Karkhana wherein she was forcibly raped there and was threatened.
She further said that she was subjected to rape thrice, became unconscious and in the morning, she came home and told about the incident to her mother, and then her parents and brother Deepu went to karkhana and caught the accused from there and gave him to the police
Having heard amicus curiae, appearing for the appellant, and A.G.A. as well as a perusal of the record, the Court found that as regards the date of occurrence, in the written report, there was no mention of the date of occurrence.
In the chick F.I.R. also, the date of occurrence was not mentioned. P.W.1/Complainant in his statement stated that the occurrence is of March 2010, however, in the cross-examination, he changed the time of occurrence and stated that the incident is of November month, thereafter, he said that the incident is of December.
Regarding the evidence of P.W.2/victim, the Court noted that in her examination-in-chief, she had not stated the exact date of the incident. Further, at one place, she said that she was enticed away by the appellant and was subjected to rape at karkhana, and also was threatened by the accused-appellant. Then, in her cross-examination, she said that she went to karkhana of her own accord.
The Court further took into account the entire testimony of the victim and observed that her statements of the prosecutrix varied at each and every stage and does not inspire confidence
On a collective reading of the statements of P.W.1/Complainant, P.W.2/Victim, and the statement of P.W.4/Investigating officer as also the site plan, the Court noted that the same did not show whether the place of occurrence is karkhana or the house of the accused-appellant and thus, exact place of occurrence is doubtful.
Thus, the Court held that the prosecution had failed to prove its case beyond a reasonable doubt and that each and every part of the testimony of the prosecutrix was infirm, doubtful and contradictory which does not pose confidence.
"The exact place of occurrence has not been established and there is variation in the evidence about place of occurrence as per the evidence of the investigating officer and the witnesses. The court below has not taken note of this contradiction which was a material contradiction and therefore there has been a total wrong appreciation of evidence on record which has resulted in miscarriage of justice. There appears to be suppression of material facts relating to occurrence because of the contradiction as indicated. Unusual manner of shifting the place of occurrence and the fact of the prosecutrix having a company of the accused appellant at her free will and accord while going to temple and then to karkhana as also they having been acquainted with each other leaves doubt on the veracity of the incident," the Court further remarked.
Consequently, the jail appeal was allowed and the judgment and order of conviction and sentence was set aside.
Case title - Amar Singh v. State [JAIL APPEAL No. - 5100 of 2011]
Citation: 2022 LiveLaw (AB) 370