'Her evidence cannot be treated as effaced,' SC upholds gang rape conviction, though victim turned hostile

New Delhi: The Supreme Court has said evidence of a witness cannot be treated as effaced or washed off the record altogether just because he or she resiled from the statement in the cross examination during the criminal trial.

A bench of Justices B R Gavai and Sandeep Mehta upheld the conviction and sentence of 10-year imprisonment imposed upon a man for the offence of gang rape, even after finding that the victim, her mother and aunt have not supported the prosecution in cross examination.

"It appears that, on account of a long gap between the examination-in-chief and cross examination, the witnesses were won over by the accused and they resiled from the version as deposed in the examination-in-chief which fully incriminates the accused," the court said.

The court dismissed the appeal by Selvamani against the concurrent findings by the Madras High Court and the trial court at Vellore.

Both the courts had convicted him and three others for offences punishable under Section 376(2)(g) and 506(1) of IPC and Section 4 of the Tamil Nadu Prevention of Women Harassment Act.

In his submission, the counsel for the appellant contended the victim as well as her mother and her aunt have not supported the prosecution case in their cross examination.

"No doubt that the prosecutrix and her mother and aunt in their cross-examination, which was recorded three and a half months after the recording of the examination-in-chief, have turned around and not supported the prosecution case," the bench said.

The court said, however, when the evidence of the victim as well as her mother and aunt is tested with the FIR, the statement recorded under Section 164 CrPC and the evidence of the medical expert, there is sufficient corroboration to the version given by the woman in her examination-in-chief.

In the FIR lodged on January 28, 2006, with police station Vaniyampadi Town, it is mentioned that the 22-year-old victim, working at a shoe company was raped by the Manager/ owner along with four other men.