Sunday, 10 January 2016

How to appreciate Evidence of sterling Witness?


In Rai Sandeep @ Deepu vs. State of NCT of Delhi, (2012) 8
SCC 21, the Supreme Court commented about the quality of the sole
testimony of the prosecutrix which could be made basis to convict the
accused. It held :-
“In our considered opinion, the 'sterling witness' should
be of a very high quality and caliber 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. To test
the quality of such a witness, the status of the witness
would be immaterial and 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,
namely, at the time when the witness makes the initial
statement and ultimately before the Court. 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 withstand the cross- examination of any
length and strenuous it may be and under no
circumstance should give room for any doubt as to the
factum of the occurrence, the persons involved, as well 
as, the sequence of it. Such a version should have corelation
with each and everyone of other supporting
material such as the recoveries made, the weapons used,
the manner of offence committed, the scientific evidence
and the expert opinion. The said version should
consistently match with the version of every other witness.
It can even be stated that it should be akin to the test
applied in the case of circumstantial evidence where
there should not be any missing link in the chain of
circumstances to hold the accused guilty of the offence
alleged against him. Only if the version of such a witness
qualifies the above test as well as all other similar such
tests to be applied, it can be held that such a witness can
be called as a 'sterling witness' whose version can be
accepted by the Court without any corroboration and
based on which the guilty can be punished. To be more
precise, the version of the said witness on the core
spectrum of the crime should remain intact while all other
attendant materials, namely, oral, documentary and
material objects should match the said version in
material particulars in order to enable the Court trying
the offence to rely on the core version to sieve the other
supporting materials for holding the offender guilty of the
charge alleged.”
 In Tameezuddin @ Tammu v. State (NCT of Delhi), (2009)
15 SCC 566, 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.'
 IN THE HIGH COURT OF DELHI AT NEW DELHI

 DECIDED ON : 29th MAY, 2015

CRL.A.No.369/2014
GAURAV MAGGO ..... Appellant

versus
THE STATE OF NCT, DELHI ..... Respondent

CORAM:
HON'BLE MR. JUSTICE S.P.GARG



1. Challenge in this appeal is to a judgment dated 22.02.2014 of
learned Addl. Sessions Judge, Delhi in Sessions Case No. 09/13 arising
out of FIR No. 111/12 PS Timarpur by which the appellant Gaurav
Maggo was convicted for committing offence under Section 376 IPC. By
an order dated 25.02.2014, he was sentenced to undergo RI for seven
years with fine ` 5,000/-.Crl.A.No.369/2014 Page 2 of 13
2. Briefly stated, the prosecution case as set up in the chargesheet
was that from 14.10.2011 to 25.05.2012, the appellant committed
rape upon „X‟ (assumed name) on the pretext of marrying her and also
criminally intimidated her. Written complaint (Ex.PW-1/A) lodged by „X‟
on 25.05.2012 formed the basis of First Information Report registered on
26.05.2012. „X‟ was medically examined; she recorded her statement
under Section 164 Cr.P.C. Statements of the witnesses conversant with the
facts were recorded. Exhibits were sent to Forensic Science Laboratory
for examination. After completion of investigation, a charge-sheet was
filed against the appellant for commission of offences under Sections
376/506(II) IPC. The prosecution examined eight witnesses to substantiate
its case. In 313 statement, the appellant denied his involvement in the
crime and pleaded false implication. DW-1 (Rita @ Pinki) appeared in
defence. The Trial resulted in conviction as aforesaid. It is pertinent to
note that appellant‟s acquittal under Section 506(II) IPC remained
unchallenged by the State. Being aggrieved and dissatisfied, the appellant
has filed the instant appeal.
3. I have heard the learned counsel for the parties and have
examined the file. Appellant‟s conviction is primarily based upon the
testimonies of „X‟ and her sisters - PW-5 (Annu) & PW-6 (Usha). The 
said evidence, however, was not considered sufficient to record conviction
under Section 506 (II) IPC. Admitted position is that the appellant aged
around 23 years, an unmarried boy, was acquainted with „X‟ and her
family members much prior to the incident. He had visiting terms to X‟s
house. He used to render assistance to „X‟ and her family. X‟s husband
was suffering from jaundice and the appellant used to take him to hospital
in his taxi. X‟s husband expired on 14.10.2011 after prolonged illness
leaving behind „X‟ and three children. It is alleged that after his demise,
the appellant started frequently visiting „X‟ and developed intimacy with
her children. In her Court statement, „X‟ disclosed that in December, 2011
when she, her children, elder sister with her elder daughter had gone to
Mathura in the appellant‟s taxi, he put „sindoor‟ on her „maang‟ in a
temple. They went to Agra from Mathura and returned to Delhi next day.
On inquiry by her sister as to why he had put „sindoor‟ in her „maang‟, the
accused expressed desire to marry her (X). PW-1 further stated that
thereafter accused started visiting her occasionally. He promised to talk to
his parents about their marriage. On 02.01.2012 taking advantage of
absence of her mother-in-law who had gone to Punjab, the accused
established physical relations with her. He assured that he would inform
his parents about their marriage at a suitable time. The accused thereafter 
forcibly established physical relations with her several times without her
consent in her house on the assurance to talk with his parents about their
relation. In April, 2012 when he started keeping distance and avoided her
telephone calls, she met him at Smile Dental Clinic at Nehru Vihar. The
accused threatened to kill her and her children if she disclosed about their
relations to anyone. When she contacted accused‟s parents they also
criminally intimidated her. PW-5 (Annu), X‟s sister though has
corroborated her version, but her knowledge is based upon the
information given to her by her other sister – Usha who had accompanied
„X‟ to Mathura. PW-6 (Usha), X‟s other sister also deposed that the
accused had filled X‟s „maang‟ with „sindoor‟ in her presence in a temple
at Mathura. When she enquired about it, the accused expressed his
willingness to accept „X‟ and her children.
4. Admitted position is that in December, 2011, „X‟ and her
family members including sister Usha had gone to Mathura in the
accused‟s taxi driven by him. There is, however, no cogent and clinching
evidence on record to prove if on any specific date or time, the appellant
put „sindoor‟ on X‟s „maang‟. „X‟ did not reveal the name of the temple
where „sindoor‟ was allegedly put in her „maang‟. In the crossexamination,
„X‟ informed that as she used to remain depressed, due to 
her husband‟s death, her sister took her to Mathura to visit Guruji.
However, no detailed particulars have been given whether „X‟ and her
family members had visited Guruji and at which place. No individual
from the said place has been examined. It is also not clear if „X‟ had
objected to the alleged filling of „sindoor‟ in her „maang‟. In the crossexamination,
she claimed that she had objected to the filling of „sindoor‟
in her „maang‟ and had attempted to remove it with her hand. She,
however, did not lodge complaint against the appellant about it. She
continued to accompany the appellant along with her other family
members to Agra and photographed together. It is unbelievable that the
accused, a young boy of 23 / 24 years, would dare to fill „sindoor‟ in X‟s
„maang‟ aged about 32 years, mother of three children, against her wishes
in the presence of her family members. In her complaint (Ex.PW-1/A),
„X‟ did not reveal if the appellant had filled her „maang‟ with „sindoor‟ at
Mathura. Initially, „X‟ claimed to be in possession of audio and video
recording and her examination was deferred on 18.02.2013 to enable her
to produce it. However, on 12.04.2013 on re-appearance, she could not
produce any audio and video CD alleging that its contents were corrupted.
„X‟ relied upon certain photographs Ex.PW-1/P1 to Ex.PW-1/P7 to
buttress her claim. I have examined the photographs Ex.PW-1/P1 to 
Ex.PW-/P3. Apparently these were taken at Agra during the trip in
December, 2011. There is nothing objectionable in these photographs. It is
not unusual for a family friend to be photographed along with other family
members. These photographs do not depict any „sindoor‟ in X‟s „maang‟.
Photographs (Ex.PW-1/P4 to Ex.PW-1/P7) obviously were not taken at
Mathura or Agra along with Ex.PW-1/P1 to Ex.PW-1/P3. These
photographs are in different context; the appellant and „X‟ are in different
clothes. Again, there is nothing much objectionable in these photographs
to infer that the appellant and „X‟ were closely intimidated to each other.
It is unclear as to when, at which place and in what context, these photos
were taken, and if so, by whom. No negatives of these photographs have
been brought on record. Merely because X‟s „maang‟ is filled with
„sindoor‟ in one or two photographs, it cannot be inferred with certainty
that it was done by the appellant at Mathura as alleged. These photographs
do not depict appellant filling X‟s „maang‟. Besides this, filling of
„maang‟ with a „sindoor‟ ipso facto does not create any relationship akin
to promise to marry.
5. „X‟ has not divulged with certainty and clarity if physical
relations with the appellant were consensual on his promise to marry or it
were against her wishes forcibly. This relationship continued for sufficient 
duration and at no stage, she raised alarm / hue and cry or lodged report
with the police against alleged forcible sex. Even after the initial incident
on 02.01.2012, she continued to have sexual relations with him on several
occasions without demur and at no stage „X‟ lodged report about his
behaviour and conduct. Only in April, 2012 when the appellant started
avoiding her and stopped attending her telephone calls, she approached
him to enquire about his changed attitude. When she did not get positive
response, she lodged the complaint after a considerable unexplained delay
on 25.05.2012 with the police. In her medical examination vide MLC
Ex.PW-2/A, no visible injuries were found on her body. DNA
Fingerprinting report (Ex.PW-8/E) did not implicate the appellant. Vital
discrepancies have emerged in the statement (Ex.PW-1/A) lodged at first
instance and the one recorded under Section 164 Cr.PC. (Ex.PW-1/B).
6. Indisputably, the appellant and his family lived in the same
vicinity. At no stage, „X‟ or her sisters approached the family members of
the appellant for marriage. It is unclear as to why „X‟ concealed the
factum of filling of „sindoor‟ by the appellant in her „maang‟ from his
family members and did not make it public. Where was the compulsion
for her to establish physical relations first without ensuring that the
appellant and his family members were willing to perform marriage with
her? She was mature enough to fully understand as to what was happening
between the two. There is nothing in her evidence to demonstrate that she
was incapable of understanding the nature and implications of the act
which she consented to. Her consent for physical relations (if any) was an
act of conscious reason. If a fully grown up lady consents to the act of
sexual intercourse on a promise to marry and continues to indulge in such
activity for long, it is an act of promiscuity on her part and not an act
induced by misconception of fact. At no stage, „X‟ approached the
appellant‟s family members to apprise them his intention to marry her.
7. „X‟ is not believed to allow the appellant to have physical
relations without first ensuring authenticity of the alleged promise to
marriage particularly when she had lost her husband about three months
before. She had three grown-up children. There was least possibility a
young boy aged 22 years to marry „X‟ having three grownup children. In
complaint (Ex.PW-1/A), „X‟ omitted to disclose if the accused had
established physical relations with her „forcibly‟. No independent public
witness was associated at any stage of the investigation. X‟s sisters - PW-
5 (Annu) & PW-6 (Usha) are interested witnesses.
8. Settled legal position is that conviction can be based upon the
sole testimony of the prosecutrix provided it is reliable and is of sterling
quality.
9. In Abbas Ahmed Choudhury v. State of Assam (2010) 12
SCC 115, observing that a case of sexual assault has to be proved beyond
reasonable doubt as any other case and that there is no presumption that a
prosecutrix would always tell the entire story truthfully, the Hon'ble
Supreme Court held:-
“Though the statement of proseuctrix must be given
prime consideration, at the same time, broad principle
that the prosecution has to prove its case beyond
reasonable doubt applies equally to a case of rape and
there could be no presumption that a prosecutrix would
alway tell the entire story truthfully. In the instant case,
not only the testimony of the victim woman is highly
disputed and unreliable, her testimony has been
thoroughly demolished by the deposition of DW-1.
10. In another case Raju v. State of Madhya Pradesh (2008) 15
SCC 133, the Supreme Court stated that the testimony of a victim of rape
has to be tested as if she is an injured witness but cannot be presumed to
be a gospel truth.
“It cannot be lost sight of that rape causes the greatest
distress and humiliation to the victim but at the same time
a false allegation of rape can cause equal distress,
humiliation and damage to the accused as well. The 
accused must also be protected against the possibility of
false implication, particularly where a large number of
accused are involved. It must, further, be borne in mind
that the broad principle is that an injured witness was
present at the time when the incident happened and that
ordinarily such a witness would not tell a lie as to the
actual assailants, but there is no presumption or any
basis for assuming that the statement of such a witness is
always correct or without any embellishment or
exaggeration.”
11. In Rai Sandeep @ Deepu vs. State of NCT of Delhi, (2012) 8
SCC 21, the Supreme Court commented about the quality of the sole
testimony of the prosecutrix which could be made basis to convict the
accused. It held :-
“In our considered opinion, the 'sterling witness' should
be of a very high quality and caliber 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. To test
the quality of such a witness, the status of the witness
would be immaterial and 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,
namely, at the time when the witness makes the initial
statement and ultimately before the Court. 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 withstand the cross- examination of any
length and strenuous it may be and under no
circumstance should give room for any doubt as to the
factum of the occurrence, the persons involved, as well 
as, the sequence of it. Such a version should have corelation
with each and everyone of other supporting
material such as the recoveries made, the weapons used,
the manner of offence committed, the scientific evidence
and the expert opinion. The said version should
consistently match with the version of every other witness.
It can even be stated that it should be akin to the test
applied in the case of circumstantial evidence where
there should not be any missing link in the chain of
circumstances to hold the accused guilty of the offence
alleged against him. Only if the version of such a witness
qualifies the above test as well as all other similar such
tests to be applied, it can be held that such a witness can
be called as a 'sterling witness' whose version can be
accepted by the Court without any corroboration and
based on which the guilty can be punished. To be more
precise, the version of the said witness on the core
spectrum of the crime should remain intact while all other
attendant materials, namely, oral, documentary and
material objects should match the said version in
material particulars in order to enable the Court trying
the offence to rely on the core version to sieve the other
supporting materials for holding the offender guilty of the
charge alleged.”
12. In Tameezuddin @ Tammu v. State (NCT of Delhi), (2009)
15 SCC 566, 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.'
13. X‟s testimony tested on the above settled principles, is
wholly unreliable due to inherent infirmities therein. In the instant case,
no cogent and clinching evidence has been brought to prove valid
marriage between the two in Mathura on any particular date at a specific
place. The appellant‟s conduct in the episode is, however, unfair /
unreasonable. He knowingly that „X‟ was a widow having three grown-up
children, indulged in consensual sex with her. Observations of Hon‟ble
Supreme Court in similar circumstances in „Vinod Kumar vs. State of
Kerala‟, 2014 (5) SCC 678 are worth-noting :
“The Appellant is not an innocent man inasmuch as he
had willy-nilly entered into a relationship with the
prosecutrix, in violation of his matrimonial vows and his
paternal duties and responsibilities. If he has suffered
incarceration for an offence for which he is not culpable,
he should realize that retribution in another form has
duly visited him. It can only be hoped that his wife
Chitralekha will find in herself the fortitude to forgive so
that their family may be united again and may rediscover
happiness, as avowedly the prosecutrix has found.”
14. The prosecution has miserably failed to establish that
physical relations with the prosecutrix were on the false promise to marry.
The apeal filed by the appellant is accordingly allowed. Conviction and 
sentence of the appellant are set aside. The appellant shall be released
forthwith if not required to be detained in any other criminal case.
15. Trial Court record be sent back forthwith with the copy of the
order. A copy of the order be sent to the Superintendent Jail for
compliance.
 (S.P.GARG)
 JUDGE
MAY 29, 2015 
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