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Synopsis

The Supreme Court recently upheld the acquittal of a man in a case of rape of a 19-year-old girl after noting the victim and her family never cooperated with the medical examination, leading to negative inference.

A bench of Justices Surya Kant and N Kotiswar Singh dismissed a criminal appeal filed by the Himachal Pradesh government against March 1, 2012 judgment by the division bench of the high court, which set aside the judgment and order of the trial court of January 02, 2009, holding the respondent, Rajesh Kumar alias Munnu guilty of the offences under Sections 376 and 452 of the IPC with a sentence of 10 years of rigorous imprisonment.

"We are cognisant of the jurisdictional limitations that normally restrict interference in settled criminal appeals, especially wherein the High Court has acquitted the accused. It is equally well-established that save and except where this Court finds that the conclusion drawn by the High Court is based upon a complete misreading of the evidence on record, or where its conclusions are so perverse that the same cannot be sustained, then only might a judgment of acquittal warrant interference," the bench said.

The prosecution claimed that on August 13, 2007, the prosecutrix through her father lodged the FIR at Police Station Sadar Hamirpur against the accused-respondent. It was alleged that when her parents had gone to the hospital for purchasing medicines around noon, the respondent came to the varandah of her house and asked for a match box.

Finding her alone, the accused allegedly caught her from the arm and took her inside the room. Thereafter, he forcibly committed sexually intercourse with her. This incident was apparently narrated by the prosecutrix to her parents when they returned, who subsequently lodged the FIR.

The prosecutrix was medically examined at Regional Hospital, Hamirpur, where she was found to be of unsound mind as she did not cooperate in her medical examination.

As the factum of sexual intercourse could not be ascertained, she was further referred to the RPMC Hospital at Tanda (Dharamshala) for the opinion of their Gynecologist and Psychiatrist. However, the father of the prosecutrix did not allow for any medical examination to happen. Nevertheless, the initial vaginal swab collected by the police was sent to Forensic Science Laboratory for medical analysis.

The court noted the high court had succinctly demonstrated some of the glaring lacunae in the prosecution case, which even the State counsel was unable to satisfactorily justify.

It pointed out the girl's mother unfortunately did not support prosecution case, as she completely denied that any occurrence, similar to the one described in the FIR, ever took place. She was, accordingly, declared hostile and cross-examined by the Public Prosecutor but nothing material could be extracted from her cross-examination.

Her father, however, made evasive statements, which failed to explain the delay in reporting the matter, and the lodging of the FIR. While he submitted that he reported the alleged incident to the police as soon as he was apprised of the same, the bench said, "We are constrained to note that such assertion does not inspire much confidence".

The court referred to a statement made by Nirmala Devi, Pradhan of Gram Panchayat (PW-1), who simply deposed that the father of the prosecutrix came to her house after three days of the incident, i.e. on August 13, 2007, and informed her about the occurrence. She then advised him to report the matter to the police, and he finally went and lodged the police report.

"While it is trite law that unexplained delay in lodging FIRs is commonly considered fatal to the prosecution’s case, we observe that in the instant case the delay was never even acknowledged – much less explained. Thus, it is our considered opinion that the necessary benefit of such an omission must accrue to the accused-respondent," the bench said.

The court also pointed out the doctor's statement made it amply clear that the prosecutrix and her parents themselves never fully co-operated with the medical staff, thereby adversely impacting the credibility of their version of events.

It is a well-settled proposition of law that non allowance of medical examination by an alleged rape victim raises negative inferences against them, the court said.

"We cannot ascribe any good reason to the complete lack of assistance that the complainants tendered to the.authorities, apart from their contradictory stances before the Court," the bench pointed out.

"We are further doubtless in this regard as the High Court, while discussing the prosecutrix’s testimony, has come to the invariable conclusion that she was not mentally unsound – given that she was able to clearly comprehend the question and answer during the cross-examination," the bench said.

With regard to the age of the prosecutrix, the court said, she had categorically admitted as had been otherwise proved that she was 19 years old at the time of the alleged occurrence. The prosecution had not opposed this factum as well.

On the contrary, in the instant case the high court has microscopically examined the entire evidence before firmly opining that the present accused-respondent deserves the benefit of the doubt, the court pointed out.

The bench thus refused to interfere with the judgment of acquittal passed by the high court.

The high court had noted that the doctor found the prosecutrix to have a normal gait. There were no marks of injury on any part of her body. The clothes she was wearing had been washed and changed. However, when it came to the physical examination of her private parts, the prosecutrix did not cooperate.

It was also found that no blood or semen was present on her private parts or the vaginal swab. Since the prosecutrix resisted the physical examination, including that of her hymen, the doctor could not give any final opinion about the commission of sexual intercourse. The report from the Forensic Science Laboratory also did not link the accused to the alleged crime. Semen was not found on the clothes of the prosecutrix or the vaginal swab.

Case Title: The State of Himachal Pradesh Vs Rajesh Kumar @ Munnu