Bombay High Court: In a criminal appeal challenging the conviction and sentence of 10 years’ rigorous imprisonment under Section 376, Penal Code, 1860 (IPC), a Single Judge Bench of Ashish S. Chavan, J., held that the prosecution failed to prove the offence of rape beyond reasonable doubt. The Court emphasised that contradictions in the victim’s statements, unexplained delay in lodging the FIR, absence of a Test Identification Parade (TIP), inconsistencies in medical evidence, and lapses in the investigation cumulatively rendered the prosecution case unreliable. The Court noted that DNA evidence failed to corroborate the prosecution’s case and, being neither conclusive nor sufficient on its own, could not sustain conviction. Accordingly, the appellant was acquitted and ordered to be set at liberty forthwith unless required in custody in any other proceeding.
Background
The prosecution alleged that on 30 July 2023, the appellant committed rape on the victim at a Holiday Home in Arpora. The victim, persuaded by her friend, accompanied her to the hotel where a room was booked. Later, the friend returned with the appellant, food and drinks were ordered, and all three slept on the same bed. The victim claimed that upon waking, she found herself disrobed with the appellant lying on top of her. She pushed him away, ran to the washroom, and later informed her sister before lodging a complaint on 1 August 2023.
The prosecution examined 12 witnesses, including the victim, her friend, the hotel owner, a waiter, forensic experts, and the investigating officer (IO). DNA evidence was relied upon to show semen stains on the bedsheet.
The defence argued that there was a delay of 48 hours in lodging the complaint, unexplained contradictions in the victim’s statements, absence of a TIP, and inconsistencies in medical evidence. It was also pointed out that the victim admitted to demanding ₹ 5 lakhs from the appellant’s wife to settle the matter. The defence further contended that the CCTV footage did not show the appellant entering the hotel reception or rooms, and that the DNA evidence was only corroborative and not conclusive.
The prosecution, on the other hand, maintained that minor discrepancies did not affect the credibility of the victim’s testimony, and that DNA evidence and witness depositions established the appellant’s presence at the scene.
Analysis
The Court emphasised that the FIR is silent on the reasons for the delay. Moreover, another aspect which assumes significance is the fact that the FIR was registered on the basis of the complaint by the victim which applies Section 376 IPC, however, the complaint clearly alleges attempt to commit rape. Further, the Court observed that at the time of registration of the offence the fact of intercourse was not even demonstrable. However, the IO applied Section 376 IPC without even waiting for the medical report, thereby registering an offence without prima facie examining whether the allegations in the complaint made out the ingredients of the said offence or not.
The Court highlighted that no doubt it is trite law that even the sole testimony of the prosecutrix can form the basis for conviction provided it is safe, reliable, and worthy of acceptance. However, the question whether the testimony of the prosecutrix is one which inspires confidence would be peculiar to the facts and circumstances of each case. The Court noted that in the present case the victim had changed the version of the allegations without any cogent explanation, as can be seen from the foregoing discussion, and the delay of more than 48 hours to lodge the complaint when seen from the perspective of the intervening altercation between the victim and her friend.
Further, the admission that she had demanded ₹ 5 lakhs from the wife of the appellant to settle the matter out of court, and in the wake of the medical evidence which opined that intercourse had taken place within 12 hours whereas the incident had taken place prior to 48 hours of the medical examination, cumulatively, does not inspire confidence in the testimony of the victim.
Dealing with the argument of the appellant regarding his identification and presence at the scene of offence, the Court observed that it is an admitted position that the appellant and the victim were strangers to each other prior to the incident. Hence, the absence of a TIP assumes significance. The Court noted that when an explanation was sought as to why the TIP was not conducted, the only explanation given was that the victim had provided the name of the appellant in the complaint. However, it is not disputed that the victim had not given any description of the assailant in her complaint, making it evident that the victim identified the appellant for the first time in court.
The Court referred to Malkhansingh v. State of M.P., (2003) 5 SCC 746 wherein it was held that the purpose of a prior TIP is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to look for corroboration of the testimony of the witness in court as to the identity of the accused who are strangers.
The Court noted that the check-in time in the entry of the register and the check-out time are contrary to the deposition of the victim, and the original register or extract bearing the entry was not seized by the IO. The Court also observed that even the photocopy that was exhibited as secondary evidence was not seized under any panchanama, and the photocopy produced was not certified or attested by the hotel management. It was further emphasised that no effort was taken by the IO to send the entry for handwriting analysis to confirm whether the appellant himself had written his name and to collect ID proof of the appellant, thereby probabilising the defence theory that the hotel register entry could have been manipulated to falsely implicate the appellant.
In the totality of the circumstances, the Court observed that, firstly, in the background of the discussion on the lapses on the part of the hotel staff and owner and the delay in seizure of the bedsheet, the defence of the appellant that the exhibits may have been manipulated to incriminate him is probabilised. Secondly, the mere presence of semen on the bedsheet will not be ipso facto conclusive proof of the offence of rape in the facts of the present case. Lastly, DNA evidence not being infallible, its probative value has to be corroborated with other cogent and reliable evidence to base a finding of guilt.
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Decision
The Court held that it was unable to agree with the reasoning given by the trial court, which had accepted the explanation for delay and relied upon the testimony of the victim, hotel witnesses, medical evidence and DNA findings to sustain conviction. The Court concluded that the prosecution failed to prove beyond reasonable doubt the offence punishable under Section 376 IPC.
Consequently, the appeal was allowed, the conviction was set aside, and the accused was directed to be released forthwith unless required in any other proceeding.
[Afzal Khan v. State of Goa, Criminal Appeal No. 691 of 2025(F), decided on 20-5-2026]
Advocates who appeared in this case:
For the Appellant: Rohan Desai with Esha Ghodekar, Advocates
For the Respondent/State: Pravin Faldessai, Additional Public Prosecutor
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