Sole testimony in rape cases. What is the test?

Sole testimony not of sterling quality, it cannot be relied upon: Avinash Kr. Sharma v. State of Haryana, Case Analysis

Decision of Trial Court challenged

‘X’ is aggrieved by the order of conviction passed against him by the learned Addl. Sessions Judge, Jind in FIR No.738 dated 10.09.2013 under Sections 376 (2) (f) (i) IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) filed an appeal before the Punjab and Haryana High Court. The sentence awarded to ‘X’ was 14 years of rigorous imprisonment and Rs.20,000/- as acceptable and in default, two years of rigorous imprisonment under Section 376(2)(f)(i) and Section 6 of the POCSO Act.

Brief back ground of case

In the instant case, the victim is a child in the school who was a student in class 11th, where ‘X’ was teaching as a math teacher. The Trial Court found that there was medical evidence in support of the prosecution’s case. The victim was less than 16 years old and a minor at the time of the registration of the FIR, and since she had supported the case in the affirmative about the sexual exploitation under threat by the ‘X’ and the medical evidence corroborated the same, weighed with the Trial Court.

Issue before the court

Would the minor’s sole testimony be sufficient to implicate the appellant in the crime that he is alleged to have committed and for which there is a six-month delay?

Delay in lodging FIR: plea before Trial Court

There was a delay of 6 months in lodging the FIR. The Trial Court brushed aside the same on the ground that ‘X’ was a Class Charge of the victim at the time of lodging of the FIR and that he was threatening her that he would get her brother killed, and her uncle removed from the school and fail her in the subject of Maths. He had also tried to spread rumours against her in school, and it was only on that account that the incident came to light and the present case was registered.

Contradiction in the statements

The counsel of ‘X’ contended that the victim’s testimony is not reliable as there are contradictions in her statements, to the extent that neither the appellant was her teacher or directly in Charge of her or her class, neither was teaching her Maths, and neither was the Examination-in-charge. Therefore, the reasoning adopted by the Trial Court was not justified.

There was a discrepancy in the date and time of the occurrence, a delay of 6 months in lodging the FIR, and no reasonable explanation was given if such an incident had taken place.

Medical report not conclusive proof

The medical report was not conclusive proof of rape since, admittedly, the incident had taken place six months earlier, and it was extraordinary that, as per the MLR, human semen was detected on the underwear of the victim, but no DNA profile had been done.

The victim’s conduct was held to be strange to the extent that she had never confided in anyone, not even her uncle, who was teaching in the same school and residing with the victim, nor her friends and parents for six months.

Observations of the Court

1. There is an unexplained delay of 6 months regarding the incident, which is stated to have happened on 13.03.2013, till the lodging of the FIR on 10.09.2013. No plausible explanation has been given regarding this aspect.
2. It is highly improbable that the minor girl whom her teacher has sexually abused on more than one occasion would not disclose this factum either to her parents, her teacher, or any of her class fellows.
3. It has already been noticed in her cross-examination that it was not a case of solitary abuse on a particular day when she was called. Instead, it was her case that it happened on 2-3 occasions when she was named to the house where she had voluntarily gone and returned on an auto. The factum of being disturbed by such an incident never showed up at any point, which is highly strange.
4. The trigger point was only in September 2013, when there seemed to be some issue regarding her conduct or absence. The appellant was also embroiled in being the Vice-Principal and present as per the statement under Section 164 Cr. P.C
5. The jealousy factor of the impending promotions could have been the cause for falsely implicating the appellant apart from the lack of medical evidence we have been confronted with for which the benefit of the doubt would necessarily go to him.
6. The medical examination report shows that the hymen is ruptured. Still, there is no connection with the accused, and it could not be said whether it had happened on account of sexual interaction with the appellant due to the time lag, which has occurred for six months.
7. It is extraordinary that the minor girl’s underwear would contain semen strains after the expiry of said period, which were also not connected by the prosecution through the forensic lab as it admittedly had dried.
8. The report of the FSL shows that though there was human semen exhibited, it could not be detected in the rest of the exhibits, and neither was there any comparison made that the same could be correlated from the samples taken from the appellant. In such circumstances, there is nothing on record in the form of medical evidence that the appellant could be connected with sexual assault upon the victim.
9. It is to be noticed that the victim has not specified the date and time of the occurrence in the month of March, and the allurement is only to show the examination paper, of which it has come on record that he was not her teacher in the 11th class. Therefore, the allurement also seems to be without any basis.
10. Although the victim’s age has not been proven to be below 18, it is also one to be taken into consideration, admittedly.

The High Court further observed that such aspects had not been appropriately examined by the Trial Court and cast doubt upon the whole case in the manner in which the appellant had been implicated.

Decision of the High Court

The Court stated that it is a settled principle that the victim’s statement could be the sole basis of conviction. Still, if there is some doubt, then corroboration is required, and if the statement is not of sterling quality, which, in the present case, does not inspire as much confidence as it should have.

There is a delay of 6 months in lodging the complaint, which led to the absence of medical evidence to connect the appellant with the crime beyond a shadow of a doubt. The delay in lodging the FIR has wiped out all the evidence.

It was concluded by the court that merely because the medical of the prosecutrix goes on to show that her hymen was absent would not conclusively lead to the presumption that she had undergone sexual intercourse and that also with the appellant.

Conviction on sole testimony that is weak

In rare 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. The Court held it in the case of Suraj vs. the State of Maharashtra [Criminal Appeal no. 115 of 2020.

In similar circumstances, in Santosh Prasad @ Santosh Kumar Vs. State of Bihar, AIR 2020 SC 985, there was a dispute going on between the parties who were closely related, allegations of rape were levelled against the brother-in-law. The Apex Court interfered with the concurrent orders of conviction passed by the Courts below by noting that except for the deposition of the prosecutrix, which had to be corroborated by the medical evidence, how the occurrence had taken place was held not to be believable. Resultantly, the solitary version of the prosecutrix was held not to be taken as gospel truth in the absence of any substantive evidence, and the conviction, which has been recorded solely on account of the evidence of the victim, was set aside.

Conclusion

The High Court concluded various discrepancies in the victim’s statement. Hence, the sole deposition of the prosecution would not be of sterling quality that could be safely relied upon. Since the conviction is based solely on her statement and the medical evidence is not available to corroborate the same, we cannot confirm the judgment of the learned Trial Court in such circumstances.

‘X’ has already undergone eight years, four months and 25 days of sentence as per the custody certificate and is entitled to the benefit of the doubt as the prosecution has not been able to prove its case beyond the shadow of a doubt. While accepting the appeal, the Court acquitted ‘X’ of the charges.