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A single bench judge Justice C Hari Shankar of the Delhi High Court in an appeal by one Shiva against his conviction for 30 years rigorous imprisonment has held that the presumption of truth attached to the testimony of a sexual assault victim is not irrebuttable. However, the evidence required in order to rebut such a presumption would be of an extremely high standard.
The victim gave her statement under Section 161 CrPC. She stated she was travelling from Kanpur to Raebareli when she was forcefully taken away by the appellant. Later she found herself in a room in Delhi. She alleged that the appellant trapped her in the house, administered intoxicating drugs to her, committed “wrong acts” with her and tortured her mentally and physically. She also alleged gang rape by two of the appellant’s friends. One day, she managed to leave the house and contacted the police.
The trial court had held the appellant guilty of commission of offences under Sections 344, 376, 376(D), 323 and 506 of the IPC on the basis of the victim's “consistent testimony” and forensic science reports. However, he was acquitted of the charges under Sections 328, 366 and 377 IPC.
The appellant argued before the High Court that cohabitation between the appellant and the victim was consensual. DNA profiling of the semen found proved the actual physical fact of sexual intercourse between the appellant and the victim. However, as per the forensic report, no semen of any other person was found on the victim, her salwar, or on the bed sheet seized from the room where the offence was alleged to have taken place.
Questions were also raised by the Court as to how and when a bag of used condoms was seized from the premises when in fact only one used condom formed part of the exhibit provided to the Forensic Science Laboratory on the basis of which conviction under Section 376D was made. Interestingly, the semen found in that one used condom did not match the DNA profile of the appellant, noted the Court. There was also a delay of two weeks in forwarding the seized bag of used condoms to the FSL from which the Court inferred that the bag of used condom was tampered with before it was forwarded to the FSL. The Court concluded that the facts were insufficient to justify a finding of gang rape having taken place and thus the conviction for gang rape was set aside.
On the question of the sexual intercourse being consensual, the Court opined that the case of the prosecutrix was ‘bristled with improbabilities and even impossibilities.’ No evidence of any injury on any part of her body was found to sustain allegations of physical torture or assault. The house where she was kept had ten to twelve other tenants yet none of the tenants was co-opted as a witness, or was aware of the incident.
The Court observed that the testimony of the assaulted prosecutrix held great weight and can form the sole basis for conviction but such testimony remains in the realm of presumption. Further the court remarked that irrebutable presumptions means that “the law would not allow the rebuttal of such presumptions, and not necessarily that the presumptions themselves are incapable of rebuttal.”
The Court added, that proving the presence or absence of consent requires psychoanalysis of the victim, and also requires examining the circumstances of the case and arriving at a conclusion in that regard. Section 114A of the Evidence Act read with Section 4 of the Evidence Act would allow a rebuttal of the presumption of lack of consent with adequate evidence and material.
It was thus concluded, that the case of the prosecutrix was embellished with ‘inconsistencies, improbabilities and imponderables’ and could not suffice to convict the appellant of having commited rape. The conviction was thus set aside.
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