2001 Supreme(SC) 1398

2001(4) Supreme 468
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
R.C. Lahoti and Ashok Bhan, JJ.
Dilip & Anr. -Appellants
versus
State of M.P. -Respondent
Criminal Appeal Nos. 858-859 of 2000
Decided on 9-10-2001
Counsel for the Parties :
For the Appellants : Mr. Anip Sachthey (A.C.) and Ms. Sandhya Rajpal, Advocates.
For the Respondent : Mr. Rudreshwar Singh, Mr. Shishir Pinaki and Mr. Prakash Srivastava, Advocates.

IMPORTANT POINT
Although prosecutrix may not be a consenting party to rape but the evidence is such that Apex Court is not satisfied generally of the correctness of story as told by the prosecutrix being contradicted by her own aunt, medical evidence and report of forensic science laboratory compelling them to set aside concurrent orders of conviction of appellants u/s.376(2)(g) of IPC.

Headnote:Indian Penal Code, 1860-Section 376(2)(g)-Trial of a charge under committed by two appellants on a girl of aged about 16-Their conviction affirmed by High Court-Appeal to Supreme Court only evidence of prosecutrix-Court finding it difficult to accept the truthfulness of the version of prosecutrix of any rape as alleged-Being contradicted by the statement of her own aunt and medical evidence and the report of forensic science laboratory-Evidence of victim suffering from infirmity-Whether it is rape to convict appellants on the evidence of prosecutrix? (No)-Case Law referred-Evidence Act, 1872-Section 114-A-Presumption of no consent taken into account-Result-Acquittal-Appeals are allowed.

       Held (After referring case law) : The age of the prosecutrix was around 16 years, may be a little more. The fact remains that she was not just a child who would have surrendered herself to a forced sexual assault without offering any resistance whatsoever. Without going into testing truthfulness of the explanation offered by the prosecutrix that because of being over-awed by the two accused persons she was not able to resist, the fact remains that the probabilities factor operates against the prosecutrix. The gang rape is alleged to have been committed at about 2 p.m., in her own house, situated in a populated village by the side of the main road where people were moving on account of Holi festival. The prosecutirx did raise hue and cry to the extent she could and yet none was attracted to the place of the incident. The prosecutrix is said to have sustained injuries, also bleeded from her private parts staining her body as also the clothes which she was wearing. This part of the story, is not only not corroborated by the medical evidence, is rather belied thereby. The presence of blood-stains is not confirmed by forensic science laboratory or by the doctors who examined the prosecutrix. Her own maternal aunt to whom the story of sexual assault has been narrated by the prosecutrix gives a version which does not tally with the version of the prosecutrix as given in the court. The learned counsel for the State relied on Section 114A of Evidence Act, 1872 which provides that in a trial on a charge under Section 376(2)(g) of IPC on the prosecutrix stating that she was not a consenting party, the Court shall presume absence of consent of the woman alleged to have been raped. Suffice it to observe that we should not misunderstood as recording a finding that the prosecutrix was a willing party to sexual intercourse by the accused persons. The court is finding it difficult to accept the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her in view of the fact that her narration of the incident becomes basically infirm on account of being contradicted by the statement of her own aunt and medical evidence and the report of forensic science laboratory. The defence has given suggestion in cross-examination for false implication of the accused persons which however have not gone beyond being suggestions merely. It is not necessary for us to dwell upon further to find out the probability of truth contained in the suggestions because we are not satisfied generally of the correctness of story as told by the prosecutrix. We find it difficult to hold the prosecutrix in the case as one on whose testimony an implicit reliance can be placed. For the foregoing reasons the appeals are allowed. The conviction of accused appellants as recorded by the trial court and upheld by the High Court is set aside. The accused appellants are acquitted of the charges framed against them. They shall be set at liberty forthwith if not required to be detained in connection with any other offence. (Paras 14 & 15)