Case Note & Summary
The case involves an appeal against the conviction of Kishore Vitthalrao Shendre for offences under Sections 376(2)(i) and 452 of the Indian Penal Code, 1860 and Section 4 of the Protection of Children from Sexual Offences Act, 2012. The victim, a 16-year-old girl, alleged that on 20th June 2016, while she was alone at home, the accused entered, drove out an elderly neighbour Shakunabai, and raped her for about one hour. The victim reported the incident to her family and the police the same day. The trial court convicted the accused based primarily on the victim's testimony and medical evidence. On appeal, the Bombay High Court scrutinized the evidence and found several inconsistencies. The victim's statement that Shakunabai raised an alarm and people gathered but did not intervene for an hour was deemed improbable. The medical examination of the victim was conducted after 20 days and the doctor's opinion was not conclusive of sexual assault. The independent witness Jijabai did not support the prosecution. The court held that the victim's testimony was not trustworthy and lacked corroboration. The presumption under Section 29 of the POCSO Act was wrongly invoked as foundational facts were not established. Consequently, the High Court allowed the appeal, set aside the conviction, and acquitted the accused.
Headnote
A) Criminal Law - Rape - Conviction based on victim's testimony - Inconsistencies and lack of corroboration - Victim's testimony found inconsistent and improbable; medical evidence inconclusive; independent witnesses not supporting prosecution - Held that conviction cannot be sustained in absence of trustworthy evidence (Paras 8-15) B) Evidence Law - Presumption under POCSO Act - Section 29 of Protection of Children from Sexual Offences Act, 2012 - Presumption cannot be invoked unless foundational facts are established by prosecution - Held that prosecution failed to establish foundational facts, hence presumption wrongly applied (Para 6) C) Medical Jurisprudence - Delayed Medical Examination - Effect on probative value - Medical examination conducted after 20 days of incident; doctor's opinion not conclusive of sexual assault - Held that delayed and inconclusive medical evidence cannot corroborate prosecution case (Paras 6, 11) D) Criminal Procedure - Appeal against conviction - Appellate court's power to re-appreciate evidence - High Court re-appreciated evidence and found material inconsistencies - Held that conviction liable to be set aside (Paras 8-15)
Issue of Consideration
Whether the conviction of the appellant under Sections 376(2)(i) and 452 of the Indian Penal Code, 1860 and Section 4 of the Protection of Children from Sexual Offences Act, 2012 is sustainable based on the evidence on record.
Final Decision
Appeal allowed. The judgment and order dated 30.07.2018 passed by the Special Judge (POCSO), Wardha is set aside. The appellant is acquitted of all charges. His bail bonds stand discharged.
Law Points
- Presumption under Section 29 POCSO Act cannot be invoked without foundational facts
- Medical evidence must corroborate prosecution case
- Delay in medical examination weakens prosecution case
- Inconsistencies in victim's testimony create reasonable doubt
- Independent corroboration required in sexual assault cases
