The benefit of doubt must be given to the accused when charges are not proven beyond reasonable doubt, especially in cases with significant discrepancies in witness statements.

ORDER

1. 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.

S.B. Criminal Appeal No.275/1993 :

2. This criminal appeal has been preferred claiming for the following relief:-

'It is, therefore, humbly and respectfully prayed that this appeal of the appellant may kindly be allowed and the judgment dated 27.7.93 passed by the additional District and Sessions Judge, Barmer may kindly be quashed and set aside and the appellant may kindly be acquitted from the charges levelled against him.'

3. The FIR in the present case was lodged on 25.02.1993 at P.S. Sadar, Barmer. The allegations were to the effect that the appellant committed rape upon wife of Khushalaram. Counsel for the appellant submits that the prosecution story indicates that there were relationship between prosecturix and accused and as they were caught red-handed, the incident in-question was reported.

4. Counsel for the appellant submits that the core allegation by prosecutrix is that while she was being raped, her husband came and caught the appellant on the spot.

5. Counsel for the appellant has drawn attention of this Court to statement of husband i.e. PW-2, who was an eye witness to the incident in-question, which suffers from gross discrepancies.

6. The allegation of PW-2 i.e. husband begins with the statement that while he was attending a marriage ceremony, the appellant raped his wife, and that when he came back, they entered into an altercation. And that, when he narrated the incident to his brother Manga, a report was lodged with the police authorities. The husband, however, deposed that he did not hear any hue and cry when he arrived at his house, where the alleged incident in-question occurred. He stated categorically that even when he went near the kitchen at his house, he did not hear any shouting or any noise. This witness, PW-2 in the last line of his deposition said that no rape was committed by appellant against his wife and there are no signs of any aggravated sexual assault.

7. Learned Public Prosecutor opposes.

8. This Court after going through the submissions made, particularly, statement of PW-2, finds that there is gross discrepancy in statement of husband Khushalaram, who has denied the rape of his wife, by the appellant at one stage, and said that there was no commotion or shout or protest which he could hear in the house when he came back, on the date of the alleged incident in-question.

9. Since learned trial court failed to prove charges against the appellant beyond reasonable doubt, thus, the benefit of doubt has to be given to the accused.

10. Accordingly, the present appeal, thus, is allowed. The judgment dated 23.7.1993 passed by learned Additional District and Sessions Judge, Barmer in Sessions Case No.15/93 convicting the accused-appellant for offence under Section 451 & 376 IPC is set aside. As sentence has already been suspended by this Court vide order dated 16.09.1993 and the accused is on bail, thus, he need not to surrender. His bail-bonds are discharged.

S.B. Criminal Jail Appeal No.317/1993 :

11. In view of detailed order passed hereinabove in appeal No.275/1993, the present jail appeal stands disposed of accordingly.