Following media reports about the complainant who accused actor Shiney Ahuja of raping her turning hostile, lawyers say she is liable to be prosecuted for perjury.
The victim has made a statement before the magistrate under section 164 of the Criminal Procedure Code (CrPC), which is admissible in court unless proven involuntary.
The trial is being conducted in-camera before the Sewri fast track court.
In-camera trial refers to a case where the court bars the media from reporting about the case as per section 327 of the CrPC, applicable in sensitive cases like rape.
Advocate Majeed Memon said: “The victim’s statement under oath has been recorded under section 164 of the CrPC at the investigation stage. That would mean two versions on oath from the same witness diagonally opposite. Both can never be true. One is bound to be false. Hence, she is liable for prosecution under perjury.”
In the Best Bakery case related to the 2002 Gujarat communal riots, a fast track court convicted and sentenced eyewitness Zaheera Sheikh and her sister in 2006 for perjury. In this case, she had told the Supreme Court that she was threatened by local politicians and wanted the case to be transferred outside Gujarat. However, before a Mumbai court, she changed her statement and was declared hostile.
While leading defence advocate Sudeep Pasbola agreed that the hostile complainant can be prosecuted, he said it completely depends on her deposition. “She can be prosecuted if there are two divergent statements on oath. But it depends on what she said before the court and how far she has strayed from her section 164 statement. If she can give an explanation for her turnaround, the court could consider her point.”
Police officers, however, claim that their case against Ahuja is watertight, despite the complainant’s alleged retraction from her earlier statement. Deputy commissioner of police (zone IX) KMM Prasanna said the victim’s statement was recorded under section 164 of the CrPC, along with at least four other witnesses.
The officials said that the 20-year-old victim told the witnesses that Ahuja had raped her inside his Oshiwara flat.
The witnesses then reportedly encouraged her to lodge a complaint with the police.
“Apart from this, we also have strong medical evidence against the accused,” Prasanna said. On being asked whether the complainant can be tried under perjury for giving a false complaint, Prassana replied: “The court will decide on it.”
Lawyers, however, are more cynical. Memon said the victim’s deposition before the court will hold more weight than the one before the magistrate. “If there is other satisfactory corroborative evidence before the court, the court could still proceed to hold the accused guilty.”
Pasbola said: “The case might result in an acquittal. The section 164 statement can only be used as substantive evidence and can only be used to contradict her earlier statement.”
