New Delhi: The Delhi High Court has acquitted three men who had been sentenced to 20 years’ rigorous imprisonment for gang-rape, holding that the testimony of the prosecutrix was inconsistent on material aspects and the prosecution had failed to prove the charge beyond reasonable doubt.
A single-judge Bench of Justice Chandrasekharan Sudha allowed the appeals filed by Anwar, Sandeep and Anish Kumar against a 2017 order of the trial court which had convicted them under Section 376D (gang-rape) of the Indian Penal Code (IPC).
“In criminal jurisprudence, if two views are possible, the one favouring the accused must be adopted. In the present case, the evidence does not exclude the possibility of consensual intercourse. The prosecution has failed to establish, beyond reasonable doubt, the offence punishable under Section 376D IPC,” Justice Sudha said.
According to the prosecution, the incident occurred on May 31, 2013 when the victim stepped out of her house to use a washroom located outside. One of the accused allegedly forced her into a car, after which the three men took her to a warehouse where they sexually assaulted her.
After trial, the Additional Sessions Judge (Fast Track Court) at Tis Hazari in July 2017 convicted the three men under Section 376D IPC and sentenced them to rigorous imprisonment for 20 years along with a fine of Rs 25,000 each. They were, however, acquitted of the charge under Section 366 IPC.
Challenging the conviction, the accused approached the Delhi High Court under Section 374 of the Code of Criminal Procedure (CrPC).
In its detailed judgment, the Delhi High Court found that the prosecutrix had given multiple and inconsistent versions at different stages – including in the FIR, her statement under Section 164 CrPC, examination-in-chief, cross-examination, and re-examination before the trial court.
“A reading of the various statements of PW11, beginning from the earliest version, that is, the FIS/FIR till her testimony before the Court reveals progressive and material alterations at successive stages,” Justice Sudha observed, adding that these were not “mere minor discrepancies but substantive oscillation on material particulars touching the credibility of the witness and, more importantly, the core issue of consent”.
The judgment noted that during cross-examination the prosecutrix admitted that she had friendship with one of the accused and had earlier engaged in consensual relations with him, and further stated that the complaint had been lodged due to fear of her father.
The Delhi High Court also examined the medical and forensic evidence in the case.
While the forensic report indicated the presence of DNA of the accused persons on the underwear of the prosecutrix, Justice Sudha held that expert opinion alone cannot conclusively establish guilt.
“Evidence given by expert can never be conclusive, because after all it is opinion evidence,” the Delhi High Court observed, adding that even scientific evidence cannot substitute proof of absence of consent when the prosecutrix was a major.
The medical examination had also recorded no external or internal injuries suggestive of force, which Justice Sudha said assumes relevance in a case alleging gang rape by multiple persons when the testimony itself was inconsistent.
Setting aside the conviction and sentence, the Delhi High Court acquitted all three accused of the charge under Section 376D IPC and ordered their release.
“The appeals are allowed and the impugned judgment of conviction and order on sentence are set aside. The appellants are acquitted under Section 235(1) Cr.P.C. of the charge under Section 376D IPC,” it said.
(IANS)
