Voice recognition by survivor in rape case, not basis to convict: HC

Panaji: The Bombay high court on Tuesday acquitted a 28-year-old man from a northeastern state of alleged rape of a 63-year-old businesswoman and resort owner in Goa. The court held that conviction can’t be based on the voice of the accused identified by the survivor. Castigating the prosecution, the court noted that there is no conclusive DNA evidence linking the accused to the semen detected in vaginal smears.

The case of the prosecution was that the survivor, a 63-year-old businesswoman and proprietress of a resort in Goa, arrived at the resort on Dec 16, 2019, and was staying in a room. On the intervening night of Dec 17 and 18, while she was asleep in her bedroom, an unknown male allegedly entered the room and attempted to smother her by placing a pillow over her face.

On waking up, she started screaming and tried to resist and escape. The man allegedly threatened to kill her and demanded sexual favours. He allegedly forcibly overpowered her, removed her clothes, restrained her hands, and committed sexual assault upon her.

He then allegedly fled through the sliding window of the bedroom, whose lock was subsequently found to be broken. The survivor, resisting the man, allegedly scratched his face with her nails.

After she called the front office staff for help, they came to the room. It is alleged that the man also came along with them and stated that some unknown person had come to his room and assaulted him. The woman then filed a written complaint at the Anjuna police station.

The trial court held the man guilty and sentenced him to ten years imprisonment.

Stressing on the threshold to be crossed by the prosecution for identification of the accused in such cases , the high court noted that forensic analysis of the nail clippings of the survivor do not establish any connection with the appellant, thereby demolishing the case set up by the prosecution that the scratch marks on the face of the appellant were inflicted by the victim.

The case exposed glaring defects in the prosecution evidence, as no test identification parade was conducted to ascertain the identity of the accused. Instead, the prosecution relied on the survivor’s testimony that she recognised the accused based on his voice. His lawyer said that many northeast Indians have a similar accent, and it would not be safe to convict his client only based on voice identification. It was further argued that no voice sample of the appellant was taken during the course of investigation nor was the victim made to identify the voice of the appellant in any manner.

“Such form of identification is highly unreliable, subjective and insufficient,” observed Justice Ashish Chavan. “It would be relevant to note that the evidence of voice identification is also an inherently weak piece of evidence and this court will have to be extremely circumspect in basing a conviction purely on the basis of voice identification, particularly in the peculiar facts of the present case, where the appellant is admittedly one of the many employees of the said resort, who hails from the state of Mizoram, a northeastern state of India.”

The court further stated, “Although the defence has brought on record certain omissions and contradictions in the testimony of the survivor, one fact that emerges clearly from the evidence of the survivor is that the assailant was not known to the survivor prior to the incident. She has identified the appellant to be her assailant on the basis of his voice and the fact that she noticed scratch marks on his face. Admittedly, the prosecution has not conducted test identification parade and the first time that the survivor identifies the appellant after the incident is in the court during her evidence.”

Additional public prosecutor Pravin Faldessai relied upon the finding of the doctor in his medico-legal opinion that there is evidence of vaginal penetration and the evidence of the serological expert that semen was detected on the vaginal smears and vaginal swab of the victim. The court, however, said that the failure of the prosecution to conduct a DNA test on the semen traced is a critical lapse on the part of the investigating officer. “The prosecution has failed in proving beyond reasonable doubt the offence punishable under Section 376 of IPC against the appellant. Resultantly, the appellant is acquitted of all charges against him,” the court stated.