REKHA Vs. STATE

JUDGEMENT

(1.) Rekha and Sanjay, both have been convicted for the offences punishable under Section 376 (2) (g) read with Section 114 IPC besides Section 506/34 IPC and directed to undergo Rigorous Imprisonment for a period of ten years vide impugned judgment of conviction dated May 07, 2015 and order on sentence dated May 14, 2015 respectively.

(2.) Learned Amicus Curiae contends that the prosecution case as set up by the prosecutrix is wholly unreliable. Though immediately after the alleged incident, the prosecutrix called up the police and was medically examined however, the various swabs taken and sent for analysis to the FSL do not support her case that she was raped by two persons, that is, Sanjay and Bittu. The prosecutrix has admitted that on the complaint of Rekha her husband was in custody and earlier a complaint was lodged by Sanjay against the husband of prosecutrix, however even as per the prosecutrix Rekha and the husband of the prosecutrix were earlier doing liquor business and had fallen apart. Thus these were the reason both Rekha and her husband have been falsely implicated. Due to the falsity of the case, the third unknown person has not been arrested till date and not even declared a proclaimed offender. It is highly improbable that the prosecutrix will accompany Rekha on whose complaint her husband is in custody to go to a lawyer to get her husband released. Referring to the decisions of the Supreme Court reported as AIR 2006 SC 2639 Priya Patel vs. State of Madhya Pradesh & Anr. and 2009 (12) SCC 403 State of Rajasthan vs. Hemraj and Anr. it is contended that a woman cannot be said to have an intention to commit rape and thus no charge of gang rape can be foisted on Rekha and Sanjay. Mense rea is an important ingredient of an offence and if a woman can have no intention to commit rape then she could not have abetted the same. Reliance is placed on the decision of the Constitution Bench reported as 1994 (3) SCC 569 Kartar Singh vs. State of Punjab. The learned Trial Court failed to consider that Rekha and Sanjay have not only probablised but also proved beyond reasonable doubt that Rekha was admitted in hospital when the alleged incident took place and Sanjay was going to meet her when he was called by the police. Thus both Rekha and Sanjay are entitled to be acquitted.

(3.) Learned APP for the State referring to the definition of abetment states that even if a woman can have no intention to commit rape she can abet the offence as was held in the decision reported as 194 Crl.LJ 569 Prabha @ Swayamprabha and Ors. vs. State of Kerala. The MLC of the prosecutrix proves that rape was committed on her. At least one injury on the prosecutrix could not be self inflicted. The defence has taken different pleas in the suggestions to the witness, in statement under Section 313 Cr.P.C. and the defence evidence led. The defence has also not proved that it was appellant Rekha on whose complaint the husband of the prosecutrix was in custody by producing the FIR and the other documents. The plea of alibi of Rekha is not substantiated as no time of admission is noted in the hospital record. Further Rekha was admitted for gastroenteritis problem, but her mother stated that she had suffered a heart attack.