Victim’s Testimony Fails Sterling Witness Test | Sikkim High Court Acquits Man Of Rape Charges | Says Prosecution Failed To Prove Non-Consensual Act Or Minor’s Age
Sanchayita Lahkar
The High Court of Sikkim Division Bench of Justice Meenakshi Madan Rai and Justice Bhaskar Raj Pradhan allowed an appeal challenging a conviction under Section 376(1) of the Indian Penal Code. The Court concluded that the prosecution failed to establish forceful penetrative sexual assault, holding that the evidence of the victim "does not inspire the confidence of this Court." The conviction and sentence were set aside, and the appellant was acquitted and ordered to be released forthwith.
The matter arose from an FIR lodged on February 7, 2022, by PW-1, the uncle of the victim, reporting that the victim, his niece, had not returned home after attending tuition. The next day, she was found near the town butcher's shop and alleged that she had been raped by the appellant in an abandoned building. Based on the complaint, charges were framed under Section 376 of the IPC and Section 4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.
The trial court convicted the appellant under Section 376(1) of the IPC and sentenced him to rigorous imprisonment for ten years and a fine of Rs. 2,000. The appellant pleaded not guilty, and ten prosecution witnesses were examined during the trial.
The appellant's counsel submitted that the victim's version was improbable. He pointed out that dragging a grown girl through crowded streets without anyone noticing or her seeking help was implausible. The narrative also lacked clarity on why the victim remained in the abandoned building until the next afternoon.
The defense contended that contradictions existed between the testimonies of the victim (PW-2) and her friend (PW-6). Additionally, the victim's cousin (PW-7) stated that the victim had gone willingly with the appellant. The defense also stated that the medical examination revealed no injuries.
The prosecution argued that the allegation of rape remained unchallenged during cross-examination and that the absence of age proof was acknowledged by the trial court.
The trial court framed two primary issues: whether the appellant committed penetrative sexual assault in an abandoned building, and whether the victim was a minor. The court concluded that though it seemed the victim went voluntarily, the appellant forced himself upon her. It rejected the minor status of the victim due to lack of age-proof documentation.
"This being a case of sexual assault, there is no eye-witness to the incident, all that this Court can rely on is the evidence of the victim, which therefore has to qualify as being of 'sterling quality', for which purpose it is to be weighed and assessed by the Court."
The Court examined the inconsistencies in the victim's statements given during the trial and under Sections 161 and 164 CrPC.
"It is seen that PW-2 deposed that when she was waiting for a vehicle the Appellant came to where she was and offered to drop her home. When he forcibly pulled her, she screamed but no one heard her as everyone had left by then. In her Section 164 Cr.P.C. statement she made no statement of having screamed for help."
The Court juxtaposed her contradictory versions regarding when she left the abandoned building, who found her, and the sequence of reporting the incident.
"She managed to push him away and fled from the spot and hid in a room in the building... She remained there the whole night and she could hear him in another room in the same building... The incongruity of the statement is apparent, since what the darkness had to do with her capacity to scream and seek help is a facet that needs to be mulled over."
The bench noted that the testimony did not meet the criteria laid out by the Supreme Court for a "sterling witness" in cases like Ganesan vs. State and Krishan Kumar Malik vs. State of Haryana.
"The evidence of PW-2 in light of the foregoing vacillations does not inspire the confidence of this Court and consequently we find that she does not meet the parameters set out for a 'sterling witness'."
The Court also found no conclusive proof of the victim’s minority. The investigating officer admitted to not collecting a birth certificate or official verification. The school records were deemed unreliable without corroboration.
"In the absence of unimpeachable documents to establish the victim’s age, we are in agreement with the Trial Court that the Prosecution has failed to prove that the victim was a child in terms of Section 2(d) of the POCSO Act."
Ultimately, the Court found that the prosecution failed to prove forcible sexual assault and noted that the circumstances pointed to consensual intercourse.
"After sifting the chaff from the grain of evidence, we are of the considered view that the sexual intercourse was consensual."
The Court directed that the impugned judgment and sentence be set aside.
"The impugned Judgment of the Trial Court is set aside so far as the finding on penetrative sexual assault is concerned. The impugned Order on Sentence is also set aside."
It further ordered: "The Appellant is acquitted of the offence under Section 376(1) of the IPC."
"The Appeal is allowed."
"The Appellant be set at liberty forthwith, if not required in any other matter."
"Fine, if any, deposited by the Appellant in terms of the impugned Order on sentence, be reimbursed to him."
"Copy of this Judgment be forwarded forthwith to the Learned Trial Court along with its records."
"A copy of this Judgment also be made over to the Appellant through the Jail Superintendent, Central Prison, Rongyek and also to the Jail Authority at the Central Prison, Rongyek, for information and appropriate steps."
Advocates Representing the Parties
For the Appellant: Mr. Bhusan Nepal, Advocate (Legal Aid Counsel)
For the Respondents: Mr. S. K. Chettri, Additional Public Prosecutor
Case Title: XXX vs. State of Sikkim
Case Number: Crl.A. No.17 of 2024
Bench: Justice Meenakshi Madan Rai, Justice Bhaskar Raj Pradhan
[Read/Download order]
