The Supreme Court acquitted a rape accused on the ground that it would be unsafe to convict the accused solely on the testimony of the victim.

A court held,

“We would think in the circumstances of this case that the appellant cannot be convicted for the offence under Section 376. It would indeed be unsafe to convict him based on the testimony of the prosecutrix. He would certainly be entitled to the benefit of doubt created by the circumstances.”

What makes the judgment interesting is that it refers to a medico-legal report which states that the prosecutrix is habituated to sexual intercourse.

The judgment, however, does not make any further comment on the said report, nor does it place reliance upon the same. It has simply extracted the report in its judgment.

This case was a criminal appeal challenging an order passed by the High Court of Himachal Pradesh in affirming the conviction of the appellant under Sections 376 and 506 of the Indian Penal Code.

The facts of the case are as follows.

In December 1999, the appellant allegedly committed rape upon Prosecution Witness 2 (PW 2). PW 2 was intimidated by the appellant and another co-accused. The appellant was charged under Sections 376 and 506, read with Section 34 IPC, and the co-accused was charged under Section 506 read with Section 34.

The trial court found the case in favour of the prosecution, and after convicting the appellant and co-accused, sentenced the former to simple imprisonment for 7 years and a fine of Rs. 10,000. He was also sentenced to 2 years for the offence punishable under Section 506 IPC. Both the sentences were to run concurrently. The co-accused stood acquitted by the High Court. The appeal filed by the appellant was unsuccessful.

This led to the appeal in the Supreme Court.

The Court noted that there was a delay of seven months in filing of the complaint by the prosecutrix. The appellant relied upon the judgment of the Supreme Court in the case of Vijayan v. State of Kerala, which dealt with the impact of delay in filing of complaint on rape cases.

In that case, the explanation given for delay in lodging the FIR was that the accused promised to marry her. The Court in Vijayan, therefore, held that if the prosecutrix had willingly submitted herself to sexual intercourse and waited for seven months to file the FIR, it will be very hazardous to convict the accused on such sole oral testimony.

The Court then proceeded to dissect the facts of the current case.

In this case, the victim was coming back to her house at about 5-6 pm. The appellant, who was also a resident of the same village, caught hold of her, dragged her towards a lonely place, and committed rape.

She raised a hue and cry, but nobody was there at the place of occurrence. The appellant threatened her with a knife if she disclosed the incident to anybody. She stated that she was so frightened and ashamed, due to which she did not disclose the incident to anyone.

After becoming pregnant, she was initially taken in by the appellant but turned out of the house after one day and two nights. Thereafter, she lodged the complaint.

The Court then proceeded to note the evidence given by two prosecution witnesses, PW 4 and PW 5. It went on to note the various discrepancies in their testimonies and discarded them. This meant that the case would then hinge on the testimony of the prosecutrix herself.

“If we do not place confidence in the deposition of PW4 and PW5 then the case would depend upon the credibility of PW2, the prosecutrix.”

The Court noted that the incident was alleged to have taken place near a path which had been admitted by the prosecutrix and her aunt PW3 as a “common path”. If the prosecutrix had raised a hue and cry as claimed, it is very unlikely that the labourers who are supposed to haunt the common path could not hear it, the Court said.

The Court also referred to the contention of the accused that it was consensual sex and stated the following with regard to the same:

“There is a case of the appellant that the evidence would make out a case of consensual sex. It is true that in the High Court, it is recorded that there is no case of consensual sexual intercourse as such argued but we have to decide the case on the basis of evidence.”

In the instant case, the Court said that there no evidence to convict the appellant and it would be unsafe to render a conviction based solely on the testimony of the prosecutrix.

“We would think in the circumstances of this case that the appellant cannot be convicted for the offence under Section 376. It would indeed be unsafe to convict him based on the testimony of the prosecutrix. He would certainly be entitled to the benefit of doubt which is created by the very circumstances which we have referred.”

The Court in its judgment also referred to a medico-legal report as per which prosecutrix was “used to habitual sexual intercourse”.

The Court did not make any further statement regarding the same, nor did its judgment divulge that it is placing reliance upon the same. The following has been stated in the judgment with regard to the said report.

“However, we find in Exhibit PE which is the MLC dated 18/08/2000, it is clearly stated under the head ‘opinion’ as follows:

“The pt. is used to habitual sexual intercourse.”

The Court allowed the appeal and acquitted the accused.