Case Note & Summary
The case involves three criminal appeals arising from a judgment of the Additional Sessions Judge, Kolhapur, convicting Suresh @ Tatya Parshuram Powar (Accused No.1) and Vishwanath Ramesh Shetti (Accused No.2) under Section 376(2)(g) of the Indian Penal Code for gang rape of a minor girl. The State also appealed against the acquittal of Accused No.3 (Kishor @ Bapu Jagannath Sathe), whose appeal abated due to his death. The prosecution case was that on 28th August 2008, the prosecutrix, a 14-year-old girl, was taken by Accused No.1 to a secluded place where Accused No.2 and Accused No.3 joined and they allegedly raped her. The trial court convicted Accused No.1 and Accused No.2, sentencing them to 10 years rigorous imprisonment and fine. The appellants challenged their conviction on grounds of unreliable testimony, lack of corroboration, and contradictions in the prosecution evidence. The High Court re-appreciated the evidence and found that the prosecutrix's testimony was inconsistent, she failed to identify the accused in court, and her version was contradicted by medical evidence which showed no signs of rape. The court also noted that the prosecutrix had made improvements and there were material contradictions. The court held that the prosecution failed to prove the case beyond reasonable doubt. Consequently, the appeals of the accused were allowed, their conviction and sentence were set aside, and they were acquitted. The State's appeal against acquittal of Accused No.3 was dismissed as abated.
Headnote
A) Criminal Law - Gang Rape - Section 376(2)(g) Indian Penal Code, 1860 - Conviction set aside - The prosecutrix's testimony was inconsistent and unreliable; she failed to identify the accused in court and her version contradicted medical evidence. The court held that the prosecution failed to prove the case beyond reasonable doubt. (Paras 1-20) B) Evidence Law - Testimony of Prosecutrix - Corroboration - The evidence of the prosecutrix must be scrutinized with care; in the absence of corroboration, conviction cannot be sustained. The court found the prosecutrix's evidence to be full of contradictions and improvements. (Paras 10-15) C) Criminal Procedure - Appeal against Conviction - Acquittal - The High Court, in appeal, can re-appreciate evidence and set aside conviction if it is perverse or based on no evidence. The court allowed the appeals and acquitted the accused. (Paras 18-20)
Issue of Consideration
Whether the conviction of the appellants under Section 376(2)(g) of the Indian Penal Code is sustainable based on the evidence on record
Final Decision
The appeals of the accused (Criminal Appeal No.533/2012 and Criminal Appeal No.556/2012) are allowed. The conviction and sentence of the appellants under Section 376(2)(g) IPC are set aside. They are acquitted. The State's appeal (Criminal Appeal No.672/2012) against acquittal of Accused No.3 is dismissed as abated.
Law Points
- Conviction under Section 376(2)(g) IPC requires reliable and consistent testimony of prosecutrix
- corroboration by medical evidence
- and proof of gang rape beyond reasonable doubt
