Sessions Court, Dhindoshi (Mumbai)

Sessions Court, Dhindoshi (Mumbai): A Single-Judge Bench of Shrikant Y. Bhosale, J., acquitted the accused persons from charges under Sections 323, 342, 366, 376(D), 377 and 506(2) of Penal Code, 1860 (‘IPC’) on grounds that there were several inconsistencies in victim’s statement and there was room for doubt in the prosecution’s story regarding forcible sexual intercourse.

Factual Background

In the matter at hand, the victim was maid servant, and on the day of incident, was engaged in household work till late night. On her way back home, around 1:30 a.m. the victim took an auto-rickshaw, but after crossing half of the way, the driver refused to go ahead, and victim left the auto-rickshaw and started proceeding ahead by walking. Subsequently, one auto-rickshaw came from her backside and stopped her. When she was about to ask the auto-rickshaw driver, two persons came from her back side, caught her mouth and forcible made her sit in the auto-rickshaw. They took her to one room where she was forcefully raped by all the accused persons.

Whether the victim’s statement that she was sexually assaulted can be accepted or not?

The Court noted that the victim in her deposition narrated that the accused persons had forceful intercourse with her, they threatened to kill her, and the intercourse was in inhumane manner. However, her statement under Section 164 of Criminal Procedure Code, 1973 (‘CrPC’) indicates that she had just stated that they all made forcible sexual assault on her, except the said statement there is no other statement giving details how the force was used, which accused did which act, etc.

Further, the Court referred to the medical reports of the examination of the victim and said that there was no injury found on labia majora, labia minora or on clitoris. There was no bleeding in ledema, urethra intact, no evidence of injury on anus and oral cavity. It was noted that no external surface injury was present over the body of the victim and the report suggests that no evidence of injury suggestive of application of force on the victim was noticed. The Court stated that the medical officer’s observation says that “over all finding is consistent with old sexual intercourse”.

Thus, the Court said that the medical evidence is not supportive to the version of the victim that there was forcible intercourse or that there was any physical assault on her, especially in light of the contention of the victim that someone from the accused was beating her with hammer. The victim also claimed that knife was used to threaten to kill her, however, no knife was recovered from any of the accused.

Moreover, the Court noted several other discrepancies regarding the identification parade. The victim identified only two accused persons in the test identification parade (‘TIP’) and it was also noted that the accused were brought to the police station and the victim had already seen the accused persons before the TIP, and this fact is sufficient to discard the identification the identification of the accused.

Therefore, the Court said that the prosecution’s story suffers from several doubts and the victim does not appear to be trustworthy and reliable due to the inconsistencies in her statement. Thus, the Court ordered the accused persons to be acquitted.

[The State of Maharashtra v. Mehaboob Babu Malik Khan, 2023 SCC OnLine Dis Crt (Bom) 3, decided on 01-04-2023]

Judgment Authored by: Additional Sessions Judge Shrikant Y. Bhosale

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