The Supreme Court recently acquitted a rape accused of taking note of the evidence to the effect that the prosecutrix remained in the company of the accused for about 12 days until she was recovered.
The bench of Justice Ranjan Gogoi, Justice Navin Sinha and Justice KM Joseph also observed that the ‘material on record’ indicated that she had freely moved around with the accused in the course of which movement she had come across many people at different points of time, yet she did not complain of any criminal act.
The bench observed that evidence of the prosecutrix with regard to the incident of abduction and commission of rape stands contradicted by her previous statement in writing recorded under Section 161 of the Code of Criminal Procedure.
Interestingly, the very case of the prosecutrix, as deposed before the trial court, was that she was raped after being given intoxicants and that the accused had threatened her that she would be killed in case she narrates the incident to anybody. The High Court of Himachal Pradesh taking note of this had reversed the acquittal by the trial court in this case and convicted the accused under sections 363, 366 and 376 of the Indian Penal Code.
The Supreme Court judgment, apart from taking note of ‘freely moving with accused’ and ‘ no complaint made to people she had come across’, does not discuss much on the contradiction it found in the testimony of the accused. Instead, the judgment of the apex court focuses on the question of whether she was a major so as to give her consent. Taking note of the evidence of a radiologist, the bench observed that it ‘leaves room for ample doubt with regard to the correct age of the prosecutrix’ and the benefit of doubt must go in favour of the accused.
If that is so, based on the evidence on record, already referred to, we will further have to hold that the possibility of the prosecutrix being a consenting party cannot be altogether ruled out, the bench said acquitting the accused.
On the consent part, the high court had held that the consent of the prosecutrix was not voluntarily but was obtained after giving her intoxicated drugs and after threatening the prosecutrix that she would be killed in case she narrates the incident to anybody. It was observed: “We have carefully perused the testimony of prosecutrix. Prosecutrix has stated in positive manner that at about 9 PM co-accused Rajak Mohammad forcibly lifted the prosecutrix in a truck along with other co-accused Vinod @ Negi who could not be traced and thereafter co-accused Rajak Mohammad gagged the mouth of prosecutrix and kept knife on her neck and threatened her with death in case she would raise alarm. Prosecutrix has stated in positive, cogent and reliable manner that thereafter co-accused Rajak Mohammad took her to Kullu and on way to Kullu he committed rape upon prosecutrix. Prosecutrix has specifically stated in positive, cogent and reliable manner that thereafter the prosecutrix was kept for 3/4 days in the house and thereafter the prosecutrix was took to the house of the sister of the accused Rajak Mohammad and was kept for thirteen days. Prosecutrix has stated in positive manner that accused used to administer intoxicated drugs to her. Testimony of the prosecutrix is trust worthy, reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of the prosecutrix. There is no evidence on record that prosecutrix has hostile animus against accused Rajak Mohammad at any point of time. Testimony of prosecutrix is corroborated by PW1 Smt. Raj who has specifically stated in positive manner that on dated 13.8.2003 at 9 PM accused Rajak Mohamad lifted prosecutrix in truck No. HP-11-3361 and thereafter took truck towards Bilaspur side. Testimony of the prosecutrix is further corroborated by PW14 Ashok Kumar.”
The high court had also observed that the counsel for accused did not point out any material contradiction which goes to the root of the case when the statements of the prosecution witnesses were recorded after a gap of sufficient time as then minor contradictions are bound to come in criminal case.