Order
1. Leave granted.
2. Heard learned counsel for the parties.
3. This appeal by special leave is directed against the judgment and order dated 11-4-2007 passed by a learned Single Judge of the High Court of Kerala at Ernakulam in Crl. Appeal No. 1653 of 2003 whereby the conviction of the appellant-accused under Section 376 IPC has been upheld. However, the sentence of imprisonment has been reduced from five years' to three years' RI and the fine and default sentence imposed by the Addl. Sessions Court, Fast Track (Ad hoc I), Kozhikode has been maintained.
4. Brief facts necessary for the disposal of the present appeal are that PW 2, the prosecutrix, who was aged about 17 years was a neighbour of the appellant-accused. She belonged to Scheduled Caste community and her father was a coolie and her mother was also doing the work of coolie. PW 3 is the brother of PW 2 and was a coconut climber. PW 2 in her testimony stated that she was approached by the appellant-accused, when no one else was there in the house and asked for a cup of water. When the prosecutrix went to the kitchen for taking water, the appellant-accused also came inside and caught her hand and despite her opposition, removed her night dress and indulged in sexual intercourse. After that the appellant-accused told the prosecutrix that she need not worry as he will marry her. Since the appellant-accused held out a promise of marrying the prosecutrix, she did not make any complaint either to her parents or the police. However, when she was carrying a child of seven months she protested to the appellant-accused and requested him to marry her but the appellant-accused declined the request. Thereafter, a complaint was filed by the prosecutrix PW 2 before the police and the police registered a case under Section 376 IPC. After eight months the prosecutrix delivered a child in the hospital.
5. The present case wholly depends upon the testimony of the prosecutrix. The incident in the present case took place seven months prior to the date of lodging the complaint as a realisation dawned upon her that she has been subjected to rape by the appellant-accused. No complaint or grievance was made either to the police or the parents prior thereto. The explanation for delay in lodging the FIR is that the appellant-accused promised her to marry therefore the FIR was not filed. In cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing the FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it will be very hazardous to convict on such sole oral testimony. Moreover, no DNA test was conducted to find out whether the child was born out of the said incident of rape and that the appellant-accused was responsible for the said child. In the face of lack of any other evidence, it is unsafe to convict the accused. Therefore, we are of the opinion that the view taken by the trial court and the learned Single Judge of the High Court in convicting the appellant-accused under Section 376 IPC cannot be sustained. Consequently, we set aside the judgment and order of the trial court as also of the High Court and quash the conviction and sentence of the appellant-accused under Section 376 IPC. The accused may be released forthwith from custody if not required in any other case.
6. The appeal is allowed.