ACCUSED CANNOT BE CONVICTED OF RAPE ON BASIS OF SOLE TESTIMONY OF PROSECUTRIX UNLESS HER TESTIMONY IS OF STERLING QUALITY: SC

Santosh Prasad @ Santosh Kumar v/s Bihar that the conviction of an accused in rape cases cannot be done on the basis of sole testimony of the prosecutrix unless she passes the test of Sterling Witness.

In a latest, landmark and extremely laudable judgment titled Santosh Prasad @ Santosh Kumar Vs State of Bihar in Criminal Appeal No. 264 of 2020 (Arising out of SLP (Criminal) No. 3780/2018) delivered just recently on February 14, 2020, the Supreme Court has held in no uncertain terms that the conviction of an accused in rape cases cannot be done on the basis of sole testimony of the prosecutrix unless she passes the test of Sterling Witness.

It has also sought to convey unambiguously that in order to convict an accused on the basis of solitary evidence of the prosecutrix, the evidence must be absolutely trustworthy. This was the crying need of the hour also because we keep hearing also many cases of false complaint being filed with a malafide intention to settle personal scores!

To start with, the ball is set rolling in para 1 of this noteworthy judgment authored by Justice MR Shah for himself and Justice Ashok Bhushan of the Apex Court Bench wherein it is first and foremost observed that, Feeling aggrieved and dissatisfied with the impugned judgment and order dated 7.2.2018 passed by the High Court of Judicature at Patna in Criminal Appeal No. 209 of 2015, by which the High Court has dismissed the said appeal preferred by the original accused and has confirmed the judgment and order of conviction passed by the learned Sessions Court convicting the accused for the offences punishable under Sections 376(1) and 450 of the IPC, the original accused has preferred the present appeal.

To recapitulate, the Bench then observes in para 2 that, That the appellant herein – original accused was tried by the learned Sessions Court for the offences punishable under Sections 376(1) and 450 of the IPC. A written complaint was filed by the prosecutrix – PW5 on 16.09.2011 before the local police station against the accused alleging, inter alia, that in the preceding night at about 11:00 p.m. she awaken after hearing some sound and whereupon in the light of the mobile phone she found the accused  brother of her husband whereupon she made query. Instead of giving any reply, he committed the rape upon her.

According to the prosecution and as per the prosecutrix, thereafter the accused ran away and after getting an opportunity she raised alarm and the neighbours came there including one Suman Devi, her cousin Gotini as well as Shanti Devi, her cousin mother-in-law. She disclosed the event/incident to them. According to the prosecutrix, she informed her mother-in-law and father-in-law who were at Gaya. At the time of incident, her husband was away from the village.

Thereafter on their arrival she came to the police station along with them and submitted written report. FIR was registered against the accused being P.S. Case No. 325/2011. Investigation was carried out by the officer in-charge of Makhdumpur Police Station. He recorded the statement of the concerned witnesses. The clothes/apparels of the prosecutrix were seized and were sent to FSL. He also collected the medical report from Dr. Renu Singh, PW7, who examined the victim.

Thereafter on conclusion of the investigation, the Investigating Officer filed the chargesheet against the accused for the offences punishable under Sections 376(1) and 450 of the IPC. As the case was triable by the Court of Sessions, the learned Magistrate committed the case to the Sessions Court which was transferred to the Court of learned Additional Sessions Judge, 1st, Jehanabad, which was numbered as Sessions Trial No. 456 of 2011/90/2012. The accused pleaded not guilty and therefore he came to be tried by the learned Sessions Court for the aforesaid offences.

Furthermore, the Bench then observes in para that, To prove the charge, the prosecution examined in all eight witnesses including the prosecutrix (PW5) and Dr. Renu Singh – Medical Officer (PW7). Out of the eight witnesses, PW2, PW3 and PW4 did not support the case of the prosecution and therefore were declared hostile. The prosecution also brought on record the FIR, Injury Report and FSL Report.

After closure of the evidence of the prosecution, further statement of the accused under Section 313, Cr.P.C. was recorded. The case of the accused was of total denial. Thereafter, on appreciation of evidence on record, the learned trial court held the accused guilty for the offences under Sections 376(1) and 450 of the IPC. The learned trial Court sentenced the accused to undergo 10 years R.I. for the offence under Section 376 of the IPC and 7 years R.I. for the offence under Section 450 of the IPC.

As a consequence, what we then see is that it is then observed in para  that, Feeling aggrieved and dissatisfied with the judgment and sentence passed by the learned trial Court, the accused preferred an appeal before the High Court. By the impugned judgment and order, the High Court has dismissed the said appeal. Hence, the accused has preferred the present appeal.

To put things in perspective, the Bench then observes in para 5 that, We have considered in detail the impugned judgments and orders passed by the High Court as well as that of the learned trial Court convicting the accused. We have also considered in detail the evidence on record, both oral as well as documentary.

More significantly, it is then held in para 5.1 that, From the impugned judgments and orders passed by both the courts below, it appears that the appellant has been convicted solely relying upon the deposition of the prosecutrix (PW5). Neither any independent witness nor even the medical evidence supports the case of the prosecution.

From the deposition of PW1, it has come on record that there was a land dispute going on between both the parties. Even in the cross-examination even the PW5 – prosecutrix had admitted that she had an enmity with Santosh (accused). The prosecutrix was called for medical examination by Dr. Renu Singh – Medical Officer and PW7 Dr. Renu Singh submitted injury report. In the injury report, no sperm as well as RBC and WBC were found. Dr. Renu Singh, PW7 “ Medical Officer in her deposition has specifically opined and stated that she did not find any violence marks on the body of the victim.

She has categorically stated that there is no physical or pathological evidence of rape. It is true that thereafter she has stated that possibility of rape cannot be ruled out (so stated in the examination-in-chief). However, in the cross-examination, she has stated that there was no physical or pathological evidence of rape.

No doubt, whatever Dr Renu Singh who is the Medical Officer has stated in her deposition cannot be dismissed lightly. She has clearly and categorically affirmed that there was no physical or pathological evidence of rape thus belying the claims made by PW5 – the prosecutrix! Not just this, she also affirmed that there was no violence marks on the body of the victim which could corroborate and confirm the claims made by the prosecutrix!

As if this was not enough, it is then further pointed out in para 5.3 that, As per the FSL report, the blood group on the petticoat and the semen on the petticoat are stated to be inconclusive. Even the witnesses did not depose in favour of the prosecutrix! How can all this be dismissed lightly? All these clinching facts went a long way in influencing this judgment!

As it turned out, the Bench then concedes in this same para while holding that, Therefore, the only evidence available on record would be the deposition of the prosecutrix. It cannot be disputed that there can be a conviction solely based on the evidence of the prosecutrix.

However, the evidence must be reliable and trustworthy. Therefore, now let us examine the evidence of the prosecutrix and consider whether in the facts and circumstances of the case is it safe to convict the accused solely based on the deposition of the prosecutrix, more particularly when neither the medical report/evidence supports nor other witnesses support and it has come on record that there was an enmity between both the parties.

While referring to the case of Raju and others v. State of Madhya Pradesh (2008) 15 SCC 133, it is that, In the case of Raju (supra), it is observed and held by this Court in paragraphs 11 and 12 as under:

11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved.

It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.

For the sake of brevity, para 12 has not been mentioned here.

Most significantly, it is then held in para 6 that, Having gone through and considered the deposition of the prosecutrix, we find that there are material contradictions. Not only there are material contradictions, but even the manner in which the alleged incident has taken place as per the version of the prosecutrix is not believable. In the examination-in-chief, the prosecutrix has stated that after jumping the fallen compound wall accused came inside and thereafter the accused committed rape. She has stated that she identified the accused from the light of the mobile. However, no mobile is recovered.

Even nothing is on record that there was a broken compound wall. She has further stated that, in the morning at 10 O' clock she went to the police station and gave oral complaint. However, according to the investigating officer a written complaint was given. It is also required to be noted that even the FIR is registered at 4:00 p.m. In her deposition, the prosecutrix has referred to the name of Shanti Devi, PW1 and others. However, Shanti Devi has not supported the case of the prosecution. Therefore, when we tested the version of PW5-prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests of sterling witness.

There is a variation in her version about giving the complaint. There is a delay in the FIR. The medical report does not support the case of the prosecution. FSL report also does not support the case of the prosecution. As admitted, there was an enmity/dispute between both the parties with respect to land.

The manner in which the occurrence is stated to have occurred is not believable. Therefore, in the facts and circumstances of the case, we find that the solitary version of the prosecutrix “ PW5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellant and accused is to be given the benefit of doubt.

Finally, it is then held in the last para 6 that, In view of the above and for the reasons stated above, the appeal is allowed. The impugned judgment and order of conviction and sentence passed by the learned trial Court and confirmed by the High Court are hereby quashed and set aside. The appellant is acquitted from all the charges levelled against him and he be set at liberty forthwith, if not required in any other case.

To sum up, this latest judgment sends out a simple and straight message: Accused cannot be convicted of rape on basis of sole testimony of prosecutrix unless her testimony is of sterling quality. What exactly constitutes sterling quality is elaborated in detail in Rai Sandeep alias Deepu v State (NCT of Delhi) (2012) 8 SCC 21. It is mentioned in this latest judgment also in para 5.4.2 which states that, In the case of Rai Sandeep alias Deepu (supra), this Court had an occasion to consider who can be said to be a sterling witness. In paragraph 22, it is observed and held as under:

22 In our considered opinion, the sterling witness should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness.

The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him.

Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a sterling witness whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.

On similar lines, it is then also held in next para that, In the case of Krishna Kumar Malik v. State of Haryana (2011) 7 SCC 130, it is observed and held by this Court that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. The prosecutrix version could not rise up to be of sterling quality. So it was but palpably natural that it was not accepted to convict the accused just on basis of her sole testimony! Very rightly so!