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Rape - There should be Sterling Quality of Statement of Victim for basing Conviction on her Sole Testimony
Mohd Afzal Naik vs State of J&K
Jammu & Kashmir HC
CRA No. 06/2006
About/from the judgment:
Penal Code - S.376 - Rape - There should be sterling quality of statement of victim for basing conviction on her sole testimony.
In present case, story of forcible sexual intercourse has been belied by doctor, who finds no injury on private parts of victim and found victim pregnant at the time of examination. Evidence of victim is not found to be cogent, reliable and trustworthy, not to speak of sterling quality inspiring the confidence of the court and to base the conviction and sentence on such evidence. The prosecution has, thus, failed to prove charge against appellant beyond reasonable doubts. Hence, appeal is allowed; judgement of conviction and order of sentence passed by court below passed are set aside. Accused/ appellant is acquitted; he is discharged from bail bonds.
Evidence Act, 1872 - S.114B - Rape - Consent - If the prosecutrix deposes that she did not give her consent, then the Court shall presume that she did not, in fact, give such consent. This presumption is always a rebuttable presumption. The fact of rebuttable presumption can be gathered from facts of each case and other attending circumstances of the case. Consent may be express or implied. This consent can also be inferred from facts of the case.
The facts of the instant case do not warrant that the provisions of Section 114-B of the Evidence Act be pressed into service. Because as already held victim has gone from Ramban to Moga Punjab, lived there for quite some time, then came back to Batote, lived with accused for one and half month and became pregnant. So impliedly it can be inferred that she was consenting party. She was having sufficient opportunity to disclose about her abduction while going from Ranban to Moga Punjab and then back to Batote; she has also stated that accused used to go out of house to bring food at Batote, even then she did not run away. In cross examination, she has deposed that she has not reported that the accused had threatened her.
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