Benefit of doubt to accused when prosecutrix's testimony is doubted.

Order

In wake of instant surge in COVID-19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.

2. These are two appeals, one being Appeal No.03/1992 and another 169/1992, are preferred on behalf of same accused Raghunath, both against judgment dated 18.12.1991 passed by learned Additional Sessions Judge, Bhilwara in Sessions Case No.67/1990 convicting appellant for offence under Sections 366 & 376 IPC thereby sentencing him to five years’ and seven years’ rigorous imprisonment with fine stipulation.

3. The appellant herein has preferred these appeals for the following reliefs :-

“It is, therefore, prayed that this appeal be allowed. Impugned judgment be set aside and the appellant be acquitted or in the alternative he may be released on probation or in any case the sentences awarded be already reduced to the one already undergone by him as he has already remain in custody for more than one year.”

4. Counsel for the appellant has drawn attention of Court to the statement of PW-1 prosecutrix, who is a major lady aged about 20 years. The prosecutrix deposed that she and accused met each other while working as labourer at Bandarmata. The accused proposed to marry prosecutrix. The prosecutrix further deposed that the accused forcibly took her in train to Kota. Therefrom he took her to Tamlau, a place ahead of Rawat Bhata and he continuously maintained sexual relationship with her.

5. The prosecutrix submitted in her cross-examination that she was taken away initially in train in front of public at large. She admitted that there were other passengers in train and on platform. The prosecutrix admitted that she did not raise any alarm. The prosecutrix further stated that from Kota station they went to Rawat Bhata and stayed at Tamblau for about two months. The prosecutrix deposed that the accused used to go for work about 10 to 12 kms from the place of residence and she used to cook meals for him.

6. The incident is of 1990 and the present appeal has been pending since the year 1992.

7. Benefit of doubt created out of deposition of prosecutrix has to go to the accused.

8. In arriving at this conclusion, this Court derives strength from the judgment rendered by the Hon’ble Apex Court in the matter of Md. Ali @ Guddu Vs. State of U.P. (Criminal Appeal No.2238 of 2010) decided on 10.03.2015. Relevant para of which reads as follows:-

“21. Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned trial Judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be inappropriate to say that whatever the analysis in the impugned judgment, it would only indicate an impropriety of approach. The prosecutrix has deposed that she was taken from one place to the other and remained at various houses for almost two months. The only explanation given by her is that she was threatened by the accused persons. It is not in her testimony that she was confined to one place. In fact, it has been borne out from the material on record that she had travelled from place to place and she was ravished number of times. Under these circumstances, the medical evidence gains significance, for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non- examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon. True it is, the g