Hello Friends,
Faced with a peculiar situation during cross examination, need your help and advice and if possible some citation.
"Prosecutrix in a case U/s 376 gave statement to police with regard to commission of rape. She specifically told the officials that accused removed his pant, her cloths and caused penetration. Later on she conceived and faced miscarriage."
The foetus is preserved and DNA is awaited.
Thereafter while recording her statement U/s 164 CrPC, prosecutrix did not mention the fact about removal of pant by the accused and only stated that her cloths were removed and accused committed rape" ( No Mentioning of Penetration)
Identical statement was given before the Court during Chief examination.
While conducting cross when the question regarding pant was asked, Court refused the question as she has not mentioned it in the chief.
In view of settled proposition of law, penetration slight, partial etc amounts to rape.
But what if the Prosecutrix has not stated a single word about penetration in her 164 or in chief and merely has stated that accused has committed rape without giving account of manner in which rape is committed.
More so when in her statement of 164 and in chief there is no mentioning of removal of pant.
Is court going to assume that because the word "rape" is used by prosecutrix in 164 and chief, it implies penetration and that too in the absence any statement by prosecutrix about removal of pant by accused.
To my understanding, the Court would be making presumption with regard to penetration as well as removal of pant and in view of criminal jurisprudence, presumption if any has to be made in favour of accused?
So am I right in my understanding that rape can not be proved in this circumstance.
A quick reply would be appriciated.
thanks
