Rekha vs State on 25 May, 2016

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 & 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

CRL.A. Nos.663/2015 & 935/2015 Page 2 of 11
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.

Source: Indian Kanoon

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