Vague Accusations of "Bad Act" Clarified as Non-Penetrative Touching Cannot Sustain a Rape Conviction

In brief

The question

1. Whether the term "bad act" used by the victim in her Section 164 Cr.PC statement can be interpreted as "sexual intercourse" to sustain a conviction under Section 376(3) IPC.

The court held

The Court answered Issue 1 in the negative, ruling that the shifted testimony from "bad acts" (clarified as digital penetration) to "sexual intercourse" appeared to be a result of "bettering the case" by afterthought.

It also directed

The Court held the prosecution failed to prove the case beyond reasonable doubt due to the alibi-related discrepancies and lack of corroboration.

The appeal was allowed, the conviction and sentence were set aside, and the appellant was ordered to be set at liberty forthwith.

01Facts

The appellant was convicted by the Special Judge, Bongaigaon, under Section 376(3) IPC read with Section 4 of the POCSO Act and sentenced to 20 years of rigorous imprisonment.

p. 2

The prosecution alleged that the appellant, who had an illicit relationship with the victim’s mother and resided in their house, committed sexual intercourse with the 13-year-old victim (PW-3) on December 25, 2019, and on previous occasions.

pp. 4-5

The appellant challenged the conviction, citing material contradictions between the victim's testimony and her prior statement under Section 164 Cr.PC.

p. 2

02Issues

i.1. Whether the term "bad act" used by the victim in her Section 164 Cr.PC statement can be interpreted as "sexual intercourse" to sustain a conviction under Section 376(3) IPC.

p. 3, 7

ii.2. Whether the prosecution proved the guilt of the appellant beyond reasonable doubt given the discrepancies regarding the victim's location on the date of the alleged incident.

p. 11, 14

03Law Applied

Section 376(3) of the IPC and Section 4 of the POCSO Act regarding aggravated penetrative sexual assault.

p. 2

Section 164 Cr.PC, noting that such statements can be used for corroboration or contradiction.

p. 15

The "sterling witness" principle and the precedent from Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, which mandates a sensitive approach to victim testimony.

pp. 3-4

Distinction of Basir Uddin v. State of Assam and State of Haryana v. Anil Kumar, noting that while "bad acts" may imply rape, it must be supported by specific clarifications or attending circumstances.

pp. 7-8

Provisions in the judgment · 8 · Linked ones open on LawLens

Indian Penal Code, 1860 Section 376

Protection of Children from Sexual Offences Act, 2012 Section 3 Section 4 Section 6 Section 42

Code of Criminal Procedure, 1973 Section 161 Section 164 Section 313

04Reasoning

The Court found a major contradiction: in her Section 164 Cr.PC statement, the victim defined "bad act" specifically as the appellant touching her chest/vagina and inserting a finger, whereas in her trial testimony, she alleged "sexual intercourse" for the first time without mentioning the finger insertion.

p. 4, 6, 10

The Court held that "bad act" is not automatically synonymous with intercourse and requires clarification.

pp. 8-9

Internal contradictions in the prosecution's evidence (PW-1 and PW-3) suggested the victim was at her sister’s house in Barpeta on the date of the alleged crime (Dec 25), making the occurrence at her mother's house improbable.

p. 11

The Court found it "quite unbelievable" that the appellant could rape the victim on a bed shared with her mother without the mother's knowledge.

p. 10

Consequently, the victim failed to meet the standard of a "sterling witness".

p. 15