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Bombay HC: Discrepancies In Statement by Victim In Cases of Sexual Assault Result In Unreliable Evidence

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It is the criminal appeal against judgment dated on 10.01.2019 by Additional Session Judge, Pune in Spl. S.C. No. 299 of 2016 for the conviction under Section 376(D) read with Section 107 of IPC, Section 506(II) r/w 34 of IPC and Section 11(i) punishable under Sections 12 of POCSO Act.

Brief Facts 

The accused no.2,Varsha Gaikwad is the sister in law of the complainant residing in Mundhwa, Pune and the complainant resides in Buldhana along with her husband and other family members. During vacation, the mother of the complainant along with the victim went into the complainant house on 13.04.2016 wherein her parents, brother and his wife (accused no.2) resides.

The victim disclosed that accused no.2 took her to Khardi, Pune to house of accused No. 4 – Prashant Gaikwad and accused no.1 in a flat. The accused no.2 instructed the victim to be in a physical relationship with accused no.1 and marry him.

Subsequently, accused no.2 took her to Gairan wherein accused no.1 and accused no.3 (applicant) had a physical relationship about which the victim was forced to remain quiet. Thus, FIR on 31.5.2016 does not mention the alleged incident of rape of victim. 

The complainant is the mother of the victim and on return to Mundhwa house on 25.05.2016, she came to know about the incident on 28.05.2016 after which the complainant and victim returned back to their house in Buldhana. The complainant registered the FIR in Mundhwa Police Station on 31.05.2016 for the offences punishable under Section 509 r/w 34 IPC and Sections 12 and 17 of POCSO Act.

Arguments of the Appellant 

The Counsel pleads before the court that the entire allegation against the applicant is based on false premises. The delay in lodging FIR was a necessary factor for construction of false story of rape between victim and complainant alongside rape accusation was absent on previous statements.

Furthermore, there is no mention of sexual assault by victim in the said FIR and in the statement of  victim and therefore it can be inferred that there was no involvement of applicant in the rape incident but only caught hold of her hands.

There was also no medical examination that supported her rape accusation through the statement that there was no injury on the body of the victim but hymen was completely torn and multiple tears were evident. The victim submits one incident of sexual assault and therefore, there is no connection with alleged incident.

It was further submitted by the counsel that complainant along with the victim admitted that she had visited the police station four times till 04.06.2016 but victim did not state any incident of sexual assault with her by accused even when asked by the police officers in the station.

Arguments of the respondent 

The Counsel submits before the court that the victim was a minor child under 12 years of age and was thus incapable of forming any ill intention to falsely charge the applicant with such heinous crime that all accused sexually assaulted her.

The medical report is in consonance with the alleged incident. Moreover, accused no.2 filed complaint under section 498A of IPC after alleged incident and registration of FIR. Therefore, accused had subjected the victim to such a serious offence of rape. 

Court’s observation 

It was observed by this Court that a supplementary statement of complainant and statement of victim was recorded on 09.06.2016. It was disclosed that on 14.05.2016, accused no.2 took the victim to the victim’s grandfather house where accused no.1, 3 and 4 were invited.

Thereafter, accused no.2 threw the victim on the floor and accused no.4 caught hold of her legs and accused no.1 of her hands. The accused no.1 committed sexual assault on the victim with the help of co-accused and threatened her that they would kill her family members if she informs anyone about the incident.

The Court while dealing with the decision of this case took into consideration the nature of offence and applicant grant of bail on basis of allegation in FIR, imprisonment sentence could be suspended. Thereafter, on additional charges of sexual assault were framed which lead to rearrest of accused.   

Court’s Decision 

The court concluded that because of contradiction and discrepancies in the statement of victims in FIR on 31.05.2016 and her statement on 09.06.2016 shows that various infirmities in the evidence of prosecution witness (P.W.4 as victim and P.W.1 as complainant).

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