Inconsistent testimony on consent and identification by a prosecutrix precludes conviction for gang rape.

The Three appellants (A1, A2, A3) were convicted by the Trial Court under Section 376D (Gang Rape) of the IPC and sentenced to 20 years RI.

The prosecution alleged that on May 31, 2013, A1 abducted the victim (PW11) in a Santro car while A2 and A3 restrained her, subsequently committing gang rape in a godown.

During the trial, the victim's testimony underwent several shifts: in her examination-in-chief, she supported the prosecution.

In cross-examination, she admitted to a consensual friendship with A1 and stated the complaint was filed due to her father's fear.

In re-examination, she reverted to the rape allegation citing threats from the accused.

In final cross-examination, she admitted her re-examination testimony was false and given under pressure from her father.

The Trial Court acquitted them of abduction (Sec 366) but convicted them of rape based on the initial testimony and a DNA report.

1. Whether the conviction for gang rape under Section 376D IPC can be sustained given the victim's repeatedly conflicting versions and admissions of consent during trial.

2. Whether expert DNA evidence can form the sole basis for conviction when the ocular testimony regarding consent is unreliable.

The Court applied Section 376D of the IPC regarding gang rape and Section 374 of the Cr.P.C. for the appellate challenge.

It relied on *Kartar Singh v. State of Punjab* and *Jayendra Vishnu Thakur v. State of Maharashtra* to establish that cross-examination is the "acid test" of truth and a statutory right.

Regarding expert evidence, it cited *Ishwari Prasad Misra v. Mohammad Isa* and *Murari Lal v. State of M.P.*, holding that expert opinions are not conclusive and must be received with caution as human judgment is fallible.

It further clarified that statements under Section 161 and 164 Cr.P.C. are not substantive evidence and can only be used for corroboration or contradiction, not as a replacement for trial testimony.

The High Court found that the Trial Court erred by treating the victim's inconsistencies as "minor".

The Court noted that the victim's testimony was not of "sterling quality" because she admitted her allegations were made under her father's influence to protect the "family's honour".

Since the Trial Court had already doubted the abduction (Sec 366), the burden to prove lack of consent for the sexual acts became heavier.

The High Court rejected the prosecution's reliance on *Vinod Kumar v. State of Punjab* and *Harvinder v. State*, distinguishing them on the basis that in those cases, the witnesses remained overall consistent, whereas here, the victim explicitly admitted to lying in her re-examination.

Regarding the DNA report (Ex. PW18/PX1), the Court held that while it proved sexual contact, it could not prove a lack of consent, especially when the medical report showed no internal or external injuries consistent with a struggle.

The Court held that when two views are possible, the one favouring the accused must be adopted.

Consequently, the High Court allowed the appeals, set aside the judgment of conviction and order of sentence dated 18.07.2017, and acquitted all three appellants of the charge under Section 376D IPC.