Sterling quality of evidence is required to rely upon the sole testimony: Bombay High Court

 on 18 01 2021 on 30 01 A 115.2020(J) .odt 1 9 IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH NAGPUR.CRIMINAL APPEAL NO. 115 OF 2020Suraj S o Chandu KasarkarAged about 26 years Occ:Labour R o Parwa Jhopadpatti Near Mohan Verma’s House Yavatmal Tq. & Dist. Yavatmal …. APPELLANT VersusThe State of Maharashtra Through Police Station Yavatmal City District Yavatmal. …. RESPONDENT Shri T.M. Malnas Advocate for the appellant.Shri M.J. Khan APP for the respondent State.________________________________________________________________ CORAM : PUSPA V. GANEDIWALA J. JANUARY 15 2021.ORAL JUDGMENT : Heard Shri T.M. Malnas learned counsel for theappellant and Shri M.J. Khan learned Assistant Public Prosecutorfor the respondent State.2.This is an appeal against conviction of the appellant Suraj S o Chandu Kasarkar for the offence punishable underSections 376(1) and 451 of the Indian Penal Code passed by the on 18 01 2021 on 30 01 A 115.2020(J) .odt 2 9 Additional Sessions Judge 3 Yavatmal in SpecialCaseNo. 316 sentencing him to suffer rigorous imprisonment for10 years and to pay fine of Rs. 10 000 in default of payment offine to suffer simple imprisonment for one year and furthersentenced him to suffer rigorous imprisonment for two years and topay fine of Rs. 1 000 in default of payment of fine to suffersimple imprisonment for one month respectively.3.The prosecution case in brief is as under :On 26.07.2013 the prosecutrix lodged a report againstthe appellant for committing rape on her by criminal trespassinginto her house. The age of the prosecutrix is 15 years. On the basisof the report crime came to be registered against the appellantbearing Crime No. 4913 for the offence punishable underSections 376(2)(i)(j) and 451 of the Indian Penal Code and underSection 4 of the Protection of Children from Sexual Offences Act 2012 .odt 3 9 other formalities of investigation police filed the charge sheetbefore the Special POCSO Court Yavatmal.5.The Special Court framed charge against the appellantfor the offence punishable under Sections 376(2)(i)(j) and 451 ofthe Indian Penal Code and under Section 4 of the POCSO Act. Thecharge was explained and read over to the appellant in vernacularand he denied the same and pleaded not guilty and his plea wasrecorded.6.In order to substantiate the charge against theappellant the prosecution examined seven witnesses. PW 1 is theprosecutrix PW 2 is the mother of the victim PW 3 is Panch PW 4is the Medical Officer PW 5 is Scribe of the F.I.R. PW 6 isInvestigation Officer and PW 7 is the Radiologist Medical Officer.7. The learned Special Court recorded the statement ofthe appellant under Section 313 of the Code the CriminalProcedure. His defence is of total denial and false implication. Theappellant preferred not to examine any witness. on 18 01 2021 on 30 01 A 115.2020(J) .odt 4 9 8.After hearing both the sides the learned Special Courtfound that the prosecution could prove the charge of rape andcriminal trespass however the learned special Court found that theprosecution could not prove the age of the prosecutrix that at therelevant time she was below 18 years. This judgment of the SpecialCourt is impugned in this Criminal Appeal.9.I have heard Shri Malnas learned counsel for theappellant and Shri Khan learned Assistant Public Prosecutor onbehalf of the respondent State. I have also perused the record ofthe trial Court with the assistance of both the counsel.10.The learned counsel for the appellant read out thetestimonies of the material witnesses i.e. PW 1 PW 2 and PW 4 andsubmitted that the alleged act of forceful sexual intercourse asdeposed by the prosecutrix if read carefully is unbelievable to thenatural human conduct. Shri Malnas learned counsel for theappellant also read out the cross objection of the witnesses andsubmitted that at the relevant time the age of the prosecutrix wasabove 18 years and it was the consensual act and as her mother sawthe accused running from her house and she enquired with theprosecutrix she narrated the incident. At the instance of her mother the report came to be lodged. The learned counsel further submits on 18 01 2021 on 30 01 A 115.2020(J) .odt 5 9 that as per the medical evidence she was habitual to sexualintercourse. Lastly the learned counsel submits that the prosecutionhas failed to prove beyond reasonable doubt the alleged offenceagainst the appellant.11.Per contra the learned Assistant Public Prosecutorstrongly supported the judgment and order of the Trial Court andsubmitted that the First Information Report came to be lodgedimmediately after the incident. There is no reason for theprosecutrix to depose false against the appellant. The prosecutrixhas clearly described the violent incident against her in her house.The appellant criminally trespassed and entered into her house andcommitted rape on her. The sole testimony of the prosecutrix isworthy of reliance.12.Shri Khan learned Assistant Public Prosecutor furthersubmitted that all the witnesses withstood searching cross objectionand the prosecution could prove the offence against the appellantbeyond reasonable doubt. The learned Assistant Public Prosecutorurged to dismiss the appeal.13.This Court considered the submissions made on behalfof both sides. on 18 01 2021 on 30 01 A 115.2020(J) .odt 6 9 14.At the outset a perusal of the testimony of theprosecutrix her mother and the medical evidence coupled withbirth certificateas rightly held by the Trial Court doesnot establish the fact that at the relevant time the prosecutrix wasbelow 18 years of age. The prosecutrix herself in her cross objection admitted that at the relevant time her age was 18 yearsand she gave her age 15 years in First Information Report on the sayof her mother. Apart from this the birth certificate.odt 7 9 removed by clothes from my person. He removed myall clothes from my person. He spread my both legs.He inserted his penis in my vagina. After discharge ofwater he ran away by taking his clothes. Thereafter mymother came. I narrated the incident to my mother. Wecame to police station. I lodged the report.”16.A perusal of this portion of the testimony of theprosecutrix as rightly pointed out by the learned defence counsel does not inspire the confidence of the Court as the incident asnarrated does not appeal to the reason as it is against the naturalhuman conduct. Undisputedly the appellant is the neighbour of theprosecutrix. It seems highly impossible for a single man to gag themouth of the prosecutrix and remove her clothes and his clothesand to perform the forcible sexual act without any scuffle. TheMedical evidence also does not support the case of the prosecutrix. 17.Had it been a case of forcible intercourse there wouldhave been scuffle between the parties. In medical report noinjuries of scuffle could be seen. The defence of consensual physicalrelations does appear probable. In cross examination the defencecould bring on record the probable doubt with regard to consensualrelations. In her cross examination she has admitted that “it is truethat if my mother had not come I would not have lodged report”. on 18 01 2021 on 30 01 A 115.2020(J) .odt 8 9 18.The appellant is sentenced to 10 years rigorousimprisonment. As per settled law stricter the sentence stricter theproof is required. No doubt sole testimony of the prosecutrix inrape cases is sufficient to fix the criminal liability against theappellant however in the instant case considering the sub standardquality of testimony of the prosecutrix it would be a grave injusticeto send the appellant behind the bar for 10 years.19.Shri Malnas learned counsel for the appellant rightlyplaced reliance on the judgment of the Hon’ble Apex Court in thecase of Santosh Prasad @ Santosh Kumar vs. State of Bihar reported at3 SCC 443 wherein the Hon’ble Apex Court hasheld that if the conviction is to be recorded solely on the testimonyof the prosecutrix “sterling quality of evidence” is required.20.In the instant case in the opinion of this Court theprosecution has miserably failed to fix the criminal liability of rapeagainst the appellant by criminal trespassing in the house of theprosecutrix.21.For the reasons aforestated the appellant deserves tobe acquitted and he is acquitted. The judgment and order ofconviction dated 14.03.2019 passed by the Special Court in Special on 18 01 2021 on 30 01 A 115.2020(J) .odt 9 9 Case No. 316 is quashed and set aside. Theappellant is in jail he shall be set free forthwith if not required inany other case. The fine if any paid by him shall be refunded tothe appellant.22.Criminal Appeal is allowed and disposed of accordingly. JUDGEC.L.Dhakate 

Summary: In rape cases, the sole testimony of the victim is enough to prove the conviction of the accused, only if the proof is strong enough to prove the allegations against the accused. Bombay High Court bench by Justice Pushpa D. Ganediwala gave the judgment stating the above-cited reasons in the case of Suraj vs. State of Maharashtra [Criminal Appeal no. 115 of 2020. In the instant case, the prosecutrix had made allegations against the appellant for raping her. Prosecutrix stated that she was 15 years old at the time of the incident and the accused forcefully trespassed into her house and raped her. It was observed that the prosecutrix’s mother saw the accused running out of their house. Upon the allegations, the Trial court had held the accused of the offence u/s 376(1) and 451 of the IPC and under POCSO Act to sentencing for rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/-. During the investigation, police took the statements of the witnesses and the medical examination of the prosecutrix was also done to find out whether the rape was committed or not. However, the appellant refused all the charges against him and stated that the false allegations were made against him. It was found that the prosecutrix had no proof to prove that she was below 18 years of age. During the arguments, it was found out that the prosecutrix was above 18 years of age and she had agreed to the sexual intercourse with the appellant. And because her mother had seen the appellant running out of her house, the prosecutrix had to explain the incident and that’s when they decided to report the incident and go to the police. During the investigation, the prosecutrix agreed to the fact that she wouldn’t have reported the incident if her mother wouldn’t have asked her to. In the medical examination of the girl, it was found out that she was habitual to sexual intercourse and there were no signs of physical harm on her body because of the forceful intercourse. However, the prosecutrix’s counsel argued that she had no reason to make false allegations against the accused and whatever she told was true and the sole testimony of the prosecutrix is worthy of reliance. The Court found out that the prosecutrix herself in her cross-objection admitted that at the relevant time her age was 18 years and she gave her age 15 years in the FIR on the say of her mother. High Court contended that if it had been a case of forcible intercourse, there would have been a scuffle between the parties. In the medical report, no injuries of a scuffle could be seen. The defence of consensual physical relations appeared probable. While giving the judgment, the HC bench stated that “stricter the sentence, stricter the proof is required. No doubt, sole testimony of the prosecutrix in rape cases is sufficient to fix the criminal liability against the appellant, however, in the instant case, considering the sub-standard quality of testimony of the prosecutrix, it would be a grave injustice to send the appellant behind the bar for 10 years”.  Hence, while referring to the judgment in the case of Santosh Prasad vs. State of Bihar, High Court stated that if the conviction is to be recorded solely on the testimony of the prosecutrix “sterling quality of evidence” is required. And in the present case, the prosecutrix failed to give appropriate proofs to fix the criminal liability of rape against the appellant by criminal trespassing in the house of the prosecutrix. And therefore, HC decided to acquit the accused and to set aside all the charges against the accused under IPC and POCSO Act. Click here to read the judgement