This article is written by Urshita Saxena, a student of BA. LLB (Hons) at IMS Law College Noida.
It is a rule of evidence that testimony of a witness should be corroborated with the former statements made by such witness and/or with other independent witnesses/evidence available. This is so because if there is found any loopholes in the veracity on the part of the prosecution, on the ground of reasonable doubt the accused may be set free. However, in rape cases, this might seem to throttle the justice needed to be served if the said principle is followed too rigidly. In other words, too much reliance on rules of corroboration would be problematic in cases where the woman is the sole eye-witness is reluctant to report rape cases or where there are other witnesses but have turned hostile, or if due to the peculiar nature of the crime committed there are no eye-witnesses available. The Courts have thus relied on the principle that conviction can be made on the sole uncorroborated testimony of the prosecutrix(victim) alone. However, it comes with a rider, or rather a piece of caution, that such uncorroborated testimony of the prosecutrix should be of a ‘sterling quality’.
The case of State of Punjab v. Gurmit Singh holds significance here in which the Apex Court held that it is no more res Integra that conviction for an offence under Section 376 of IPC can be based on the sole testimony of a victim. However, in another case, the Court observed a caution. Such a testimony should be consistent and of the highest integral value. The court held in the following words in Kewal Chand case as thus:
‘However, the testimony of the victim in such cases is very vital and should be without inconsistencies and should not be improbable, unless there are compelling reasons which necessitate looking for corroboration of her statement and the Court finds it difficult to act on the sole testimony of a victim of sexual assault to convict an accused.’
What if there are other independent witnesses available, yet they are not examined? Is an examination of each witness necessary and only then the testimony can be believed? The Court answered in the negative. The Court observed that such testimony has to be accepted and acted upon though there may be other witnesses available who could have been examined but were not examined, provided the evidence adduced is worthy of being relied on.
What is sterling quality?
The Division Bench in Rai Sandeep @ Deepu vs. State of NCT of Delhi, observed a sterling witness be a witness of very high quality and calibre 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.
In another case, a very relevant witness was not examined by the prosecution. Moreover, there were inherent contradictions in the testimony of the victim and her parents. It would thus be unjust to inculpate the accused where there are such gross irregularities on the sole uncorroborated testimony of the victim. The High Court of Delhi thus set aside the conviction as the uncorroborated testimony of the prosecutrix could not pass the ‘sterling test’.
The recent case of Santosh Prasad (infra) is noteworthy. Before proceeding further, let’s draw our attention to this observation: ‘Neither any independent witness nor even the medical evidence supports the case of the prosecution.’
To understand better about what sterling quality of testimony means, let’s get straight to what happened in the case. The facts and circumstances of the case suggest and even the prosecutrix herself admitted the fact that there was an ongoing land tussle between their family and the family of the accused. Moreover, there were discrepancies as to the manner of a complaint and the time of FIR registered. The version of the Investigating Officer in this regard was inconsistent with that of the prosecutrix. Also, the manner in which the said accused was alleged to have crossed over the compound wall and committed the offence as alleged by the prosecutrix seemed to be unreliable. Then, the prosecutrix apparently said to have identified the alleged accused with the torch of a mobile phone yet the forensic could not trace out any such device from the spot. The forensic team and the medical officer concluded there were no traces of sexual assault or force or injuries present, neither the semen nor sperm found on the clothes of the prosecutrix were found to be conclusively matched with that of the accused.
Thus, the medical evidence, the supporting evidence and the versions of the relevant plaintiff witness, and Investigating Officer were not found to be in consonance with the testimony of the prosecutrix. The fact that the prosecutrix was the sole witness whose testimony was found to be unreliable in the light of the facts mentioned above, it was rightly considered safe to not convict the accused.
It would be interesting to know what the principle would be in Section 376(2) cases. The author holds the view that the said ratio developed by Courts does not disturb the law of evidence in Section 376(2) cases. We have the safeguard in terms of Section 114A of the Evidence Act which presumes the absence of consent in certain prosecution for rape cases. Though the Court has not been appraised in the above case to determine whether or not the same principle of not sustaining conviction unless the testimony of the sole prosecutrix is of sterling quality applies in Section 376(2) cases or not, yet as far as sustaining conviction is concerned it would not be wrong to hold uphold the same. This is so because what is presumed in the absence of consent. It is nothing but the presumption with which the investigation starts. The burden of proof that the woman consented is on the accused. Thereafter as far as convicting the accused is concerned, it would be on the same principles as held in Santosh Prasad (supra) and ratio developed by the Court in this judgment. Section 114A, which is a law of evidence, is stated for convenience herewith:
114A. Presumption as to the absence of consent in certain prosecutions for rape.— In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of the Indian Penal Code, (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.
Is the sterling quality test constitutionally valid?
It is submitted that the sterling quality test passes of constitutionality. Article 14 guarantees all equality before the law and equal protection of laws. This does not meet our differential treatment with the victim in any way. Criminal law is a matter of procedure, which is meant for the furtherance of justice. Thus the sterling quality test is a rule of caution to prevent unwarranted conviction in false rape allegations.
Moreover, it does not mean that the prosecutrix should be unnecessarily harassed. The prosecutrix is not be harassed in any kind at any stage of investigation or proceeding, yet there has to be no presumption or basis for assuming that the version or testimony of such sole injured witness (prosecutrix) as the gospel truth. This is because if it is so believed, it might cause double the harassment and mental anguish to the accused in innocent cases where all the other independent witnesses available simply run counter to the version of the sole testimony of the prosecutrix. The authority of Tameezuddin suffices in this regard. The Supreme Court held:
‘It is true that in a case of rape the evidence of the Prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.’
Ingredients of a sterling quality test
- The testimony should not be prevaricated version.
- The witness should not object to being cross-examined for a long time. The arduous trial can not form the basis of different versions of testimony by the witness at the beginning and at the end of the trial. Due consideration, however, shall always be given to the psychological trauma the victim undergoes. This should however not affect to determine the credibility and veracity of the testimony of the witness.
- The witness should maintain uniformity in deposing statements even if strenuous cross-examination takes place. It should be of such nature that the Court must in unequivocal terms accept the version of the witness as it is without any hesitation.
- The sequence of events and the persons involved should be informed in a truthful manner which does not belie logic.
- Even if the Court does away with corroboration with other independent witnesses, it should still have a correlation with other supporting evidence such as medical evidence, the evidence relied on by the prosecutrix should be credible to identify it was no one but the accused who committed the crime. Meaning thereby the uncorroborated testimony must not be inconsistent with other independent evidence available which makes the commitment of the alleged crime itself unlikely.
The growing tendency of false allegations under Section 375- Why is it not safe to convict accused unless the sterling quality test is passed?
The Courts have been cautious in sustaining conviction based on the sole testimony of prosecutrix because of the growing number of false allegations stemming out of personal rivalry, ongoing disputes mostly relating to a property, or the most common one being false promise to marry, better if it is termed as ‘breach of promise’ in suitable cases.
In a significant judgment The Bench comprising Hon’ble DY Chandrachud,J. and Hon’ble Indira Banerjee, J. differentiated between false promise and breach of promise. When a promise is given with the fact of knowing that it cannot be performed or with the knowledge to not perform it, it is a false promise. In a case of false promise to marry, the person from the very beginning very consciously induces another to obtain the ‘consent’ and it is thus no less of a misconception of the fact that falls under vitiation of consent required to perform a consensual sexual act and is thus deceiving the woman to perform sexual acts which may squarely fall within the act of rape.
Whereas a breach of promise doesn’t entail the same meaning. As in the law of contracts, we see that the breach is done later. Two consenting adults can walk out of a promise to marry. The maker of the promise had in good faith promised the woman to marry and the very consent of the woman was not under any misconception as at that very moment the intention of the maker was to perform the promise.
Thus, if later the male walks out the promise, the past sexual activities that have been performed do not presume the absence of consent under a misconception as a matter of fact. This is because the maker still had the intention to fulfil the contract, and it is only because of the change in circumstances that happened later (which might as well mean change of mind), the partner breached the promise. Mere refusal to marry (which happens later) does not make consensual sex under a misconception of consent. Refusal to marry should not be present since the beginning as that would mean consent is vitiated by a misconception of fact arising out of a promise to marry, which shall alternatively mean no consent in appropriate cases. Sex on the promise of marriage thus cannot always be treated as rape. If a man is punished on account of this, it might also run counter to the fundamental right under Article 21. Right to marry a person of one’s own choice is a part of the right to life.
Thus sole testimony in case of a private consensual affair of a man with a woman where the woman is the sole witness in the Section 376 proceedings has to be taken with utmost care keeping in mind the element of consent and what role it played while the duo entered into the promise, and at the time of sexual act so performed. The Court has also taken into account in such cases the active participation of the woman in the sexual act even after the alleged accused showed his unwillingness to marry.
Convicting the accused in such cases would disturb the very purpose of punishing those actually guilty of heinous acts of rape for which the Legislature had in fact intended to make rape a penal provision. Many frivolous complaints of rape to fulfil personal vendetta used to be filed. In order to prevent the conviction of innocent accused in such cases, the sterling quality test is justified.
The following points can be inferred with reference to uncorroborated testimony of a witness when such witness is the prosecutrix:
- Accused can be acquitted in light of uncorroborated testimony of the prosecutrix if the statement of the prosecutrix does not inspire confidence.
- On the other hand, the conviction can be based on sole testimony of the prosecutrix alone, provided it passes the test of sterling witness.
- ‘Sterling quality’ of testimony would mean that the version of the prosecutrix is safe to be relied on and is absolutely trustworthy. The Court may even dispense with an examination of other witnesses if the unequivocal testimony of the prosecutrix is found to be reliable.
- Even if other independent evidence is not corroborated, they should still be in consonance with her testimony, for example, the medical evidence, the statement of the investigating officer, and/or other supporting evidence. It is so because, in order to sustain a conviction if other independent evidence does not prove the guilt of the accused, it makes the incidence of the alleged act itself unlikely.
- The sterling witness test came in the backdrop of a rising number of false rape allegations founded on personal vendetta or vengeance. It is constitutionally valid and it also does not put the onus on the prosecutrix. It is simply intended to safeguard conviction in false rape allegations.
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