Bombay High Court: Anuja Prabhudessai, J., while addressing a matter of a daughter alleging rape by her father expressed the significance of ‘sterling witness’.
Instant appeal was directed against the decision by which the appellant was convicted for offences under Section 376(2)(f) and 506 of the Penal Code, 1860 and under Section 5(n) read with Section 6 of Protection of Children from Sexual Offences Act (POCSO).
Father (accused) of the prosecutrix (PW2). PW 2 informed the Child Welfare Committee that the accused had subjected her to sexual abuse, hence police was directed to record the statement of PW 2, pursuant to which an FIR was registered for offences under Section 376 (1)(ii), 506 of IPC and Section 6 of POCSO Act.
Additional Sessions Judge held that the evidence of the prosecutrix amply proved that the accused had subjected her to rape. Therefore, relying upon the sole testimony of the prosecutrix, Judge held the accused guilty of the above-stated offences.
Analysis, Law and Decision
High Court expressed that the conviction can be based on the sole testimony of the prosecutrix provided the evidence of the prosecutrix is found to be worthy of credence and reliable and is of sterling quality.
In the Supreme Court’s decision of Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21, it was held that
the “sterling witness” should be of a very high quality and calibre whose version should be unassailable. The Court considering the version of such witness should be in a positing to accept it for its face value without any hesitation. To test the quality of such witness, 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. 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 with stand the cross examination of any length and howsoever strenuous it may be, and under no circumstance should be roomed for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it.
What led to the prosecutrix stating that she was raped by her father?
The evidence of PW2 revealed that she was housed in Bal Sudhar Griha for theft of a laptop. About a month later, the accused brought her home. She had deposed that the accused did not allow her to leave the house and used to beat her. She, therefore, ran away from the house, but the accused brought her back and assaulted her and cut her hair.
One day under the influence of alcohol, the accused touched PW2 inappropriately and when she resisted, he offered her money. Thereafter, he removed her clothes and had forcible sexual intercourse with her. She could not inform earlier about the said incident, since the accused used to threaten her.
High Court observed that this witness had not stated in her statement under 161 of CrPC that the accused had touched various parts of her body and offered her money and tried to have forcible sexual intercourse with her. This was a material omission that casts a doubt on the credibility of this witness.
It was noted that the room in which PW 2 used to sleep several other family members also used to sleep in the said room and accused used to sleep in the vehicle outside for want of sufficient space in the room. Hence, in such circumstances, it is highly improbable that the accused would rape his daughter without any of his family members coming to know about the incident.
The Bench stated that PW2 had admitted that after the accused had brought her back from Bal Sudhar Griha, he prevented her from leaving the house and whenever she did not listen to him, he would beat her and that he had even cut her hair. Her evidence also indicated that she was annoyed with the accused of beating her and putting several restrictions on her.
The Court opined that in the above-stated circumstances, the possibility of PW2 falsely implicating the accused in the rape case could not be ruled out and the evidence of PW. 2 was not reliable and trustworthy.
Bench added that PW 2 did not pass the test of a ‘sterling witness’ and hence no conviction could be based on the uncorroborated testimony of PW 2.
Therefore, the appeal was allowed, and the accused was acquitted of offences under Section 376(2)(f) and 506 of IPC under Section 5(n) read with Section 6 of POCSO Act. [X v. State of Maharashtra, Criminal Appeal No. 1704 of 2019, decided on 1-12-2021]
Advocates before the Court:
Mr. Aniket Vagal for the Appellant.
Mr. S.V. Gavand APP for the Respondent-State.
Mr. S. R. Nargolkar a/w. Arjun Kadam for the Respondent No.2.