Improvisation of story by witnesses raises serious doubt on prosecution case; conviction of rape modified; sentence reduced for young first time offender
Dipankar Sarkar vs State of Tripura
Crl. A (J) No. 42 of 2017
About/from the judgment:
The High Court partly allowed a criminal appeal filed against the judgment of the trial court whereby the appellant was convicted under the provision of IPC and Protection of Children from Sexual Offences Act, 2012.
The appellant was neighbor of the complainant – father of the victim. It was alleged that the appellant had taken the victim girl, aged six and half years, from her house by saying that she was being called by his mother. It was alleged that on their way, the appellant took the victim in a jungle and did ill act against her. She was found crying in the jungle and she narrated the incident to her parents after which the complaint was filed. The appellant was tried and convicted by the trial court under Section 376 (2) (i) and 511 IPC along with Section 10 POCSO Act. Aggrieved thereby, the instant appeal was filed.
The High Court perused the record and note that statements made by the victim that the appellant touched her private part were not substantiated by any scrape of evidence, rather in her cross she categorically denied the story which she narrated in her examination-in-chief. The doctor also found no injury on any part of her body. It was observed as a settled principle that to substantiate the allegation of rape, there has to be penetration even in the slightest form to the vagina of the female which was absent in the present case. The doctor in his evidence never stated that there was any penetration to the vagina of the victim. Further, to substantiate the charge under Section 511 IPC and Section 10 POCSO Act, the attempt of rape as well as the story of aggravated sexual assault is necessary to be proved beyond reasonable doubt. It was the view of the Court that the witnesses had tried to improvise the story which was not stated before the Magistrate. This raised serious doubts about the genuinity of the prosecution case in respect of rape or sexual assault. Thus, the accused was entitled to get the benefit of doubt. In the circumstances of the case, according to the Court, the appellant at best could be convicted under Section 354 of IPC. On consideration of the facts that the appellant was 21 years of age and was first time offender at the time of commission of the offence, the sentence of the appellant was reduced to the period already undergone by him. The appeal was disposed of in the terms of above.
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