Neighbour’s Testimony And No Semen In Samples: Madras HC Sets Aside Rape Conviction

The appellant was convicted by the Mahila Court, Pudukkottai, under Section 376(1) IPC and sentenced to ten years’ rigorous imprisonment and a fine.

The prosecution alleged that he sexually assaulted P.W.1 while she was grazing goats; the case principally rested on her testimony.

The High Court considered the appeal under Section 374(2) Cr.P.C.

A neighbour, cited as a prosecution witness but not called by the prosecution, testified for the defence as D.W.1 and denied that an assault had occurred.

Section 162 Cr.P.C. restricts the use of statements recorded under Section 161 Cr.P.C.; the Court held that the prosecution could use such a statement to contradict a witness only in the circumstances and manner permitted by the provision, including obtaining the Court’s permission where required.

Relying on Ammathayarammal v. Official Assignee, the Court stated that permission to cross-examine one’s own witness under Section 154 of the Indian Evidence Act must be expressly granted and cannot be inferred tacitly.

The Court also referred to Tort Singh v. State of U.P., AIR 1962 SC 399, concerning the possible application of Section 162 Cr.P.C. to an observation mahazar prepared on the basis of a witness’s statement.

It applied the criminal-law principle that where two views are reasonably possible, the view favourable to the accused should be adopted.

The Court found that D.W.1’s account differed from P.W.1’s version and that her testimony remained unshaken in cross-examination.

It held that the prosecution’s attempt to contradict P.W.1 using D.W.1’s Section 161 statement was procedurally unsustainable because D.W.1 had been examined for the defence and the required permission had not been sought.

The Court further considered the absence of semen or spermatozoa in the samples and clothing, the lack of injuries to P.W.1’s private parts, and the doctor’s evidence that the medical examination could not establish sexual intercourse; it treated these matters as raising doubt when considered alongside the other evidence.

It also noted the evidence of prior enmity and concluded that the prosecution had not excluded the possibility of false implication.

On the overall record, it found reasonable doubt as to the prosecution’s case.

It set aside the conviction and sentence, directed that the appellant be released forthwith unless required in another case, and ordered that any fine paid be refunded.