Case Note & Summary
The appellant, Shankar Thakre, was convicted by the Ad hoc Assistant Sessions Judge, Nagpur, in Sessions Trial 33/2002 for offences under Section 363 and Section 376 read with Section 511 of the Indian Penal Code (IPC). He was sentenced to rigorous imprisonment for one year for kidnapping and two years for attempt to rape, with fines. The victim was a four-and-a-half-year-old girl. The prosecution case, based on the FIR lodged by the victim's maternal aunt Ushabai Patle (PW1), alleged that on 20 October 2001, the accused lured the victim to his house by promising sabudana (tapioca) and attempted to rape her. The victim complained of pain the next day. The trial court convicted the accused. On appeal, the Bombay High Court at Nagpur heard arguments. The appellant's counsel argued that the evidence was insufficient and inconsistent with medical evidence, and that at most an offence under Section 354 IPC was made out. The state argued that the child's testimony was reliable. The High Court examined the evidence, noting that the victim's testimony was inconsistent with the medical evidence which showed no signs of attempt or injury. The court also found that the victim went voluntarily, negating kidnapping. The court held that the prosecution failed to prove the offences beyond reasonable doubt, allowed the appeal, set aside the conviction, and acquitted the appellant.
Headnote
A) Criminal Law - Rape - Attempt to Commit Rape - Section 376 read with Section 511 IPC - Inconsistency between victim's testimony and medical evidence - The child victim's testimony that the accused attempted to commit rape was inconsistent with the medical evidence which showed no signs of attempt or injury - Held that the prosecution failed to prove the offence beyond reasonable doubt (Paras 5-8). B) Criminal Law - Kidnapping - Section 363 IPC - Lack of evidence of taking away - The prosecution alleged that the accused took the victim to his house, but the victim's own testimony indicated she went voluntarily on promise of food - Held that the essential ingredient of 'taking' was not established (Paras 5-8). C) Evidence Law - Child Witness - Corroboration - Reliability - The testimony of a child witness must be scrutinized with care and if inconsistent with medical evidence, cannot form the sole basis for conviction - Held that the conviction was unsafe (Paras 5-8).
Issue of Consideration
Whether the conviction of the appellant under Sections 363 and 376 read with 511 of the Indian Penal Code is sustainable on the basis of the evidence on record.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellant acquitted of all charges. Fine, if paid, to be refunded.
Law Points
- Evidence of child victim must be corroborated if inconsistent with medical evidence
- Section 376 read with 511 IPC requires proof of attempt to commit rape
- Section 363 IPC requires proof of kidnapping
