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Judgment
Biraja Prasanna Satapathy, J.
Since all these appeals have been filed against a common judgment passed by the learned Addl. Sessions Judge, Kendujhar on 10.09.2019 in Special Case No. 272/108 of 2016-15, arising out of G.R. Case No. 705 of 2015 in the file of learned JMFC, Badabil, further corresponding to Badabil P.S. Case No. 217 of 2015, all the appeals were heard analogously and disposed of by the present common order.
The Appellants herein vide the impugned judgment have been convicted and sentenced to undergo R.I. for 20 years and to pay a fine of Rs.50,000/- each in default to undergo R.I. for one year each for the offence under Sec. 376-D of the I.P.C.. The Appellants have been further sentenced to undergo R.I. for one year and to pay a fine of Rs.1,000/- each, in default to undergo R.I. for one month for the offence under Sec. 506 of the I.P.C. No separate sentence has been imposed for the offence u/s. 6 of the POCSO Act, taking into account the sentence imposed for the offence u/s. 376-D of the I.P.C..
In addition to the aforesaid order of conviction and sentence so passed against each of the Appellants, the Appellant Sani Mahakud, Appellant in JCRLA No. 85 of 2019 has been sentenced to undergo R.I. for one year and to pay a fine of Rs.5,000/- in default to undergo R.I. for 2 months for the offence under Sec. 3(1)(xi) of the SC & ST (POA) Act. Learned trial court directed that all the sentences shall run concurrently.
It is the case of the Appellants that the prosecution was set into motion, taking into account the F.I.R. lodged by the victim on 07.11.2015 giving rise to Badabil P.S. Case No. 217/2015.The prosecution story as narrated in the F.I.R. reads as follows:-
“That on 07.11.2015 at about 8.45 a.m. the victim/informant, who belongs to scheduled tribe (S.T.) category, presented a written report before the I.I.C. Barbil P.S. to the effect that on 06.11.2015 at about 7.30 p.m., she along with two girls namely Sindhu Minz and Sunita Dang were returning to their houses from their work place and on the way Sindhu Minz went ahead in her cycle and the victim along with Sunita Dang were proceeding to their house. The allegation is that two culprits came chased them and tried to restrain them. However, Sunita Dang could manage to escape but the victim fell down in a ditch. Further allegation is that in the meantime some other culprits reached there and all of them removed her wearing clothes and committed rape on her forcibly one after another. Further the culprits threatened her to commit her murder and also threatened her to make viral of the video of nude scene in internet in case she would disclose the incident before any one. Then the culprits fled away while the light from the vehicles passing on the road fell down on them. As per the victim about 8 to 9 culprits had committed rape on her and out of them she had acquainted with the accused Ghasi Munda, Duttu Hessa, Bulu Patra and Manoj Naik. According to the victim she can identify the rest of the culprits. On receipt of the report I.I.C. Barbil P.S. registered Barbil P.S. Case No.217 of 2015 and corresponding to which G.R. Case No.705 of 2015 was registered in the court of the learned J.M.F.C. Barbil, for the alleged commission of the offence under Section 6 of POCSO Act, read with Section 376-D and 506/34 of the IPC and under Section 3(1) (xi) of the SC/ST (PA) Act and during investigation of the case it is found that it is a special case. So the Special Case No.272/108 of 2016-15 was registered in the court of the learned Additional Sessions Judge, Keonjhar. And after completion of investigation police submitted charge-sheet on the aforesaid offences against the present appellant and five others namely Bharat Hessa @ Duttu, Bulu Patra, Sriram Oram @ Lagda, Jhanda Munda and Sani Mahakud.”
It is the main contention of the learned counsels appearing for the Appellants that since in the F.I.R. so filed by the victim herself, all the Appellants were not named individually, save and except disclosure of the name of Ghasi Munda, Duttu Hesa, Bulu Patra and Manoj Nayak, on the face of such F.I.R. being lodged by the victim herself, all the Appellants could not have been tried for the offence under Sec. 376-D /506/34 of the I.P.C. and Sec. 6 of the POCSO Act.
While assailing the impugned order of conviction and sentence, it is contended that since it is the case of the prosecution that the victim was raped by 8 to 9 miscreants, but since no injury has been sustained by the victim in her body or in her private part, the same castes a doubt on the prosecution allegation. It is also contended that since the T.I. Parade was conducted much after the arrest of the accused persons and the victim P.W. 9 in her cross-examination admits that she had prior knowledge about the names of four (4) accused persons, conduct of the T.I. Parade and the report thereof stands vitiated.
It is also contended that since in the chemical examination report, the Scientific Officer could not give a definite opinion with regard to matching of the semen stains found on the genital of the victim and in her wearing apparels, on the face of such chemical examination report, the Appellants should not have been held guilty of the charges for the offence u/s.376-D of IPC. It is further contended that testimony of P.W. 9-Victim since is not supported by the medical evidence and the chemical examination report, the Appellants are liable to the acquitted, with quashing of the impugned judgment dt.10.09.2019.
It is also contended that since age of the victim has not been proved showing the victim to be a minor, the Appellants in absence of such proof of age of the victim being a minor, could not have been charge-sheeted and put to trial for the offence under Sec. 6 of the POCSO Act. It is also contended that since the victim never sustained any bodily injury nor any injury on her private part, consent of the victim cannot be ruled out.
Making all these submissions, learned counsel appearing for the Appellants contended that the impugned order of conviction and sentence so passed by the learned trial court vide its judgment dt.10.09.2019 requires interference of this Court and the Appellants be acquitted of the charges and be set at liberty.
Mr. P.K. Panda, learned Addl. Standing Counsel on the other hand while supporting the impugned order of conviction and sentence, contended that even though in the F.I.R. so lodged by the Victim-P.W. 9 on 07.11.2015, the victim did not indicate the names of all the Appellants, but the Victim in her 164 statement so exhibited as Ext. 4 and in her deposition as P.W. 9, since has clearly proved the allegation of forcible rape on the victim by all the accused persons/Appellants, no illegality or irregularity can be found with the impugned order of conviction and sentence. Statement of P.W. 9 reads a s follows:-
“1.I am the informant-victim. I know the accused persons found in the video screen. The occurrence took place on 6-11-2015 while at 7.30 pm near Rajib Bihar. On that day, while I along with Sindhu and Sunita was working at Rajib Bihar and at that time Sindhu requested us to go to the house of her in-laws to see her child and we went to her in-laws house. While we three were returning Sindhu took my cycle and went ahead and I along with Sunita was going behind Sindhu by walk and on our way near a culvert of Rajib Bihar two boys namely Ghasi and Bulu appeared before us and out of fear I was trying to run but during running I fell down and Sunita ran away from the spot. The accused Ghasi and Bulu caught hold of me. Thereafter the other accused persons namely Dutu, Raoyal, Jhanda and Sani came to that spot and pushed and pulled me. They forcibly removed my undergarments made me lie on the grounds and caught hold of my hands and legs. The accused Ghasi intercourse his penis into my vagina. Thereafter the other accused persons had also squeezed my breast and committed sexual intercourse on me one after other forcibly. When I tried to raise hullaha they gagged my mouth by means of their hands. Some of the boys were taking any naked photograph and obscene scene in their mobile phone and they threatened to take away my life if I would disclose the same before others and to viral the videos. Dutu, Sani and Jhanda remain present at the spot and other accused persons left the spot. The said three accused dragged me to nearby bushes and one old man was present at that spot and on being asked by him the accused persons disclosed that there act was going on. The accused Jhanda had committed sexual intercourse on me under Kusuma tree.
3.Then they took me to Madrasa School and the accused Royal had committed sexual intercourse on me near that school. By that time light of the police vehicle fall on the spot and out of fear they left the spot. Then I came to my house slowly. My mother was absent in the house and my aunt was present(kaki) and I narrated the incident before my aunt. At the spot 8 to 9 boys were present, but, I could recognize four persons by name but I know other persons by face but I did not know their names.
4.On the same day night police came to our house and on the next day I lodged F.I.R. at P.S. This is the F.IR. lodged by me already marked as Ext.1 and this is my signature marked as Ext.1/2.
5.Police send me to Government Medical, Barbil for my examination. The medical officer obtained my signature. This is my signature marked as Ext.3. I was produced before the Magistrate and Magistrate has recorded my statement. My mother accompanied with me at the time of recording my statement by Magistrate. This is my statement recorded by Magistrate marked as Ext.4 and these are my signatures marked as Ext.4/1, 4/2 and 4/3.
6.Police had seized my wearing apparels on production by me and prepared seizure list. This is the said seizure list marked as Ext.5 and this is my signature marked as Ext.5/1.
7.I had also gone to Keonjhar Jail and identified four accused persons inside the jail and the said persons are present in the video screen. The Magistrate has obtained my signature in a report after identification of the accused persons. This is my signature marked as Ext.6. I was examined by the police. I belong to S.C. Category. Accused Sani Mahakud belongs to General caste.
Cross-examination for accused persons Manoj Naik and Bharat Hessa:
8.There is one type shop near to the spot of occurrence. The spot was dark but the spot was lighted to some extent by moon light.
9.One of the accused was focusing the torch of mobile and another accused shooting video in another mobile phone.10. It is not a fact that the accused Bharat and Manoj had never committed any sexual intercourse on me. I could recognize the accused persons from their voice. I had prior acquaintance with all the accused persons from their face.
11.It is not a fact that as I had previous dispute with the wife of Bharat Hesa I had falsely foisted this case against him.
12.I arrived in my house at 10 pm and my aunt(kaki) was present only. I do not remember the name of my aunt(kaki). My mother came to house at about 12 night but I have not seen the watch. My lip was swollen. I felt severe pain in my vagina. Police came in the night at 1 a.m.
Cross-examination for accused persons Sriram Oram, Jhanda Munda and Bulu Patra:
13.Previously I had disclosed about the incident before the Police and Magistrate. I know the name of four accused persons prior to the occurrence, but, subsequently I came to know the name of other accused persons from police.
14.After seeing the photograph shown by the police I identified the said accused persons in the jail. Prior to that I had no acquaintance with the accused persons except the four.
15.The shape of the moon was one fourth.
16.It is not a fact that I have neither stated before the 1.0. nor mentioned in the F.I.R. or stated before the Magistrate that accused Jhanda has committed sexual intercourse on me.
17.It is a fact that I have stated before the Magistrate that five to six persons have committed sexual intercourse on me.
18.It is not a fact that I have neither stated before the 1.0. nor mentioned in the F.I.R or stated before the magistrate that the accused persons Jhanda present at the spot.”
It is contended that in Ext. 4, the victim while recording her statement before the Magistrate under Sec. 164 of the Cr.P.C., clearly indicated the names of all the accused persons. Not only that while deposing as P.W. 9, the victim in her deposition clearly implicated all the accused persons for having committed forcible rape on her on the alleged date. It is accordingly contended that since the victim not only in her 164 statement under Ext. 4 and in her deposition before the learned court below as P.W. 9, in no uncertain term, implicated all the Appellants for having committed the offence of forcible rape, in view of the decision of the Hon’ble Apex Court so reported in the case of Rajendra & Ors. vs. State of Uttarakhand (2026 LiveLaw (SC) 243), basing on such solitary statement of the victim, order of conviction and sentence can be passed. Hon’ble Apex Court in the said reported decision in Para 15 has held as follows:-
“15.It is the trite in law that the conviction can rest on the solitary version of the prosecutrix, provided it inspires confidence of the Court. In the present case, the version of the prosecutrix utterly fails to inspire confidence of this Court."
Reliance was also placed to a decision of the Hon’ble Apex Court in the case of Ganesan vs. State represented by its Inspector of Police (Criminal Appeal No. 680 of 2020 disposed of on 14.10.2020). Hon’ble Apex Court in Para 9.1 of the said Judgement has held as follows:-
“9.1Whether, in the case involving sexual harassment, molestation etc., can there be conviction on the sole evidence of the prosecutrix, in the case of Vijay alias Chinee (supra), it is observed in paragraphs 9 to 14 as under:
“9.In State of Maharashtra v. Chandraprakash
Kewalchand Jain, (1990) 1 SCC 550 this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under: (SCC p. 559, para 16)
"16.A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."
10.In State of U.P. v. Pappu, (2005) 3 SCC 594 this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: (SCC p. 597, para 12)
"12.It is well settled that a prosecutrix complaining of having been a victim of the ffence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do."
11.In State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, this Court held that in cases involving sexual harassment, molestation, etc. the court is duty−bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under: (SCC pp. 394−96 & 403, paras 8 & 21)
"8.... The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. ... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self− respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. ... Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. ... Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. ...
xxx xxx xxx
21.... The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement inmaterial particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
(emphasis in original)
12.In State of Orissa v. Thakara Besra, (2002) 9 SCC 86, this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non−examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.
13.In State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. (2010) 2 SCC 9 placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan, AIR 1952 SC 54.
14.Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix. (Emphasis Supplied)"
Reliance was also placed to a decision of the Hon’ble Apex Court in the case of Deepak Kumar Sahu vs. State of Chhatisgarh reported in 2025 LiveLaw (SC) 776. Hon’ble Apex Court in Para 5.6 of the said Judgement has held as follows:-
“5.6It is an opt-reiterated dictum of law that in cases of rape, the testimony of the prosecutrix alone may be sufficient and sole evidence of the victim, when cogent and consistent, could be properly used to arrive at a finding of the guilt. In the State of Himachal Pradesh vs. Manga Singh, (2019) 16 SCC 759, this Court in terms stated that conviction can be rested on the testimony of the prosecutrix alone.
The conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence. The conviction can be based solely on the solitary evidence of the prosecutrix and no corroboration be required unless there are compelling reasons which necessitate the courts to insist for corroboration of her statement. Corroboration of the testimony of the prosecutrix is not a requirement of law, but a guidance of prudence under the given facts and circumstances. Minor contractions or small discrepancies should not be a ground for throwing the evidence of the prosecutrix."”
It is also contended that even though the victim has not disclosed the names of all the Appellants in the F.I.R. so lodged by her, but that is not fatal for the prosecution, as it is the settled law that F.I.R. need not be an encyclopedia. In support of such submission, reliance was placed to a decision of the Hon’ble Apex Court in the case of Ashish Dave vs. The State of Rajasthan & Anr. (SLP (Crl.) No. 19369 of 2025). Hon’ble Apex Court in Para 16 of the said decision has held as follows:-
“16.We feel that the pertinent plea raised by the appellant in the quashing petition regarding the FIR being bereft of particulars and based on vague and uncertain allegations merited consideration by the High Court. The law is well settled that even though an FIR need not be an encyclopaedia, it must undoubtedly contain the basic facts and allegations constituting the commission of cognizable offence(s). In the present case, since the complainant-company was a reputed media house, the onus was greater upon it to clearly set out the relevant details and material particulars prima facie establishing the alleged criminal acts attributed to the appellant.”
Reliance was also placed to a decision of the Hon’ble Apex Court in the case of B.N. John vs. State of U.P. & Anr. (SLP (CRL.) No. 2184 of 2024 disposed of on 02.01.2025). Hon’ble Apex Court in Para 25 of the said decision has held as follows:-
“25.In the FIR there is no allegation of use of criminal force or assault by the appellant so as to invoke the provision of Section 353 of the IPC. It is to be remembered that a criminal process is initiated only with the lodging of an FIR. Though FIR is not supposed to be an encyclopedia containing all the detailed facts of the incident and it is merely a document that triggers and sets into motion the criminal legal process, yet it must disclose the nature of the offence alleged to have been committed as otherwise, it would be susceptible to being quashed as held in Bhajan Lal's case (supra) (vide clause 1 of Para 102 of the decision).
This Court in CBI v. Tapan Kumar Singh, (2003) 6 SCC 175 observed as follows:
"20.It is well settled that a first information report is not an encyclopaedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eyewitness so as to be able to disclose in great detail all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information... (emphasis added)”
Reliance was also placed to a decision of the Hon’ble Apex Court in the case of Amish Devgan vs. Union of India & Ors. reported in (2021) 1 SCC 1. Hon’ble Apex Court in Para 114 of the said decision has held as follows:-
“114.In Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] , a Constitution Bench of five Judges of this Court, has held that Section 154 of the Criminal Procedure Code, in unequivocal terms, mandates registration of FIR on receipt of all cognizable offences, subject to exceptions in which case a preliminary inquiry is required. The petitioner has not contended that the present case falls under any of such exceptions. Conspicuously, there is a distinction between arrest of an accused person under Section 41 of the Criminal Procedure Code and registration of the FIR, which helps maintain delicate balance between interest of the society manifest in Section 154 of the Criminal Procedure Code, which directs registration of FIR in case of cognizable offences, and protection of individual liberty of those persons who have been named in the complaint. The Constitution Bench referring to the decision of this Court in Tapan Kumar Singh [CBI v. Tapan Kumar Singh, (2003) 6 SCC 175 : 2003 SCC (Cri) 1305] reiterated that the FIR is not an encyclopaedia disclosing all facts and details relating to the offence. The informant who lodges the report of the offence may not even know the name of the victim or the assailant or how the offence took place. He need not necessarily be an eyewitness. What is essential is that the information must disclose the commission of a cognizable offence and the information must provide basis for the police officer to suspect commission of the offence. Thus, at this stage, it is enough if the police officer on the information given suspects—though he may not be convinced or satisfied—that a cognizable offence has been committed. Truthfulness of the information would be a matter of investigation and only thereupon the police will be able to report on the truthfulness or otherwise. Importantly, in Tapan Kumar Singh [CBI v. Tapan Kumar Singh, (2003) 6 SCC 175 : 2003 SCC (Cri) 1305] , it was held that even if information does not furnish all details, it is for the investigating officer to find out those details during the course of investigation and collect necessary evidence. Thus, the information disclosing commission of a cognizable offence only sets in motion the investigating machinery with a view to collect necessary evidence, and thereafter, taking action in accordance with law.”
Learned ASC further contended that since P.W. 10 who examined the victim-P.W. 9, while being examined by the learned trial court in his cross-examination clearly deposed that the injuries found on the victim so exhibited vide Ext. 3/1, is because of forcible sexual intercourse and in her cross-examination P.W. 10 also deposed that injury on the body of the victim, can only be found, if the sexual intercourse is done on a stony and rough surface, stand of the Appellants that since the victim has not sustained any bodily injury on her body, the alleged occurrence has not taken place or it is with consent of the victim cannot be believed. P.W. 10 in her cross-examination in para 3 & 4 has held as follows:-
“3.I have not mentioned the dimension of the bruises found on the body of the victim. I have not mentioned the word 'forcibly' in my opinion. However from the injuries found on the victim, it shows forcible sexual intercourse. The victim has not stated before me the name of the accused persons. I collected the sample, sealed it, levelled it and put my signature on the sealed envelope. I have not found any recent tear in the hymen of the victim. The possibility of penetration cannot be ruled out in this case. On 5th day of the menstrual cycle of the victim, the occurrence took place. I have not inspected the cervix of the victim as there was no indication. It is not a fact that I have mentioned in my report that labia minor was intact and normal.
Cross-examination for accused persons Sriram Oram,
Jhanda Munda, Bulu Patra and Sani Mahakud:
4.The injury may be possible on the body of the victim if the forcible sexual intercourse is done on a stony and rough surface. The victim has not stated the name of the accused persons before me who had committed rape on her. The I.O. has not sent the wearing apparels of the victim to me for examination. Old tear means more than seven days old. It is not a fact that the bruise is possible while a person runs in a bush area by colliding with the plants and trees. From my examination I found there was repeated sexual intercourse on the victim. But I-cannot say if it was done by one person or by more persons. It is not a fact that I have prepared the report without examining the victim.”
It is also contended that taking into account the statement of P.W. 9 r.w. the statement of P.W. 8 and P.W. 10, there is no iota of doubt that the victim was a minor at the relevant point of time. No contrary material has been brought out by the defence during trial showing the victim not to be a minor. It is accordingly contended that the appellants have been rightly tried for the offence u/s. 6 of the POCSO Act and consequential conviction and sentence for the said offence.
It is further contended that P.W. 12 who examined the accused persons/Appellants in his deposition also clearly opined that recent sexual inter course by the Appellants cannot be ruled out.
Making all these submissions, learned ASC contended that since the victim in her 164 statement under Ext. 4 and in her deposition as P.W. 9, has clearly implicated all the Appellants for having committed the offence of rape on her forcibly on 06.11.2015, in view of the decision of the Hon’ble Apex Court so rendered in the case of Rajendra & Ors., Ganesan and Deepak Kumar Sahu so cited (supra), the order of conviction and sentence has been rightly passed by the learned trial court vide the impugned judgment and it requires no interference.
Having heard learned counsels appearing for the Appellants and learned Addl. Standing Counsel, this Court finds that the prosecution was set into motion with lodging of the F.I.R. by the victim on 07.11.2015 before the I.I.C., Badabil P.S.. Basing on such F.I.R. lodged by the victim, all the accused persons were apprehended and after being charge-sheeted by the I.O., the Appellants faced the trial for the offence under Sec. 376-D of the I.P.C. r.w. 506/34 of the I.P.C. and Sec. 6 of the POCSO Act. This Court in view of the decision of the Hon’ble Apex Court in the case of Ashish Dave, B.N. John and Amish Devgan so cited (supra), is unable to accept the contention of the learned counsel appearing for the Appellants that since all the Appellants have not been specifically named in the FIR, the order of conviction and sentence is unsustainable in the eye of law.
As found, the prosecution in order to prove its allegation against the accused persons/Appellants, examined 15 witnesses and out of those P.Ws., the victim was examined as P.W. 9 and the Doctor who examined the victim was examined as P.W. 10; P.W. 12 is the doctor who examined all the Appellants.
This Court taking into account the statement of the victim so recorded in her 164 statement under Ext. 4 and the deposition made by her as P.W. 9 and the statement of the Doctor-P.W. 10 and P.W. 12, is of the prima facie view that the prosecution has proved the allegation of forcible gang rape on the victim beyond all reasonable doubt. Not only that from the materials available on record, this Court is also of the view that the victim was a minor on the date of occurrence and accordingly the Appellants have been rightly tried for the offence u/s. 6 of the POCSO Act.
Since the statement of the victim in her 164 statement and deposition as P.W. 9 is very much clear with regard to the forcible rape committed on her by the Appellants, and it inspires the confidence of this court, this Court placing reliance on the decisions in the case of Rajendra, Ganesan and Deepak Kumar Sahu so cited (supra), is of the view that basing on such solitary testimony of the victim, the Appellants have been rightly convicted and sentenced. Accordingly, this Court is not inclined to interfere with the impugned order of conviction and sentence so passed by the learned court below vide its judgment dt.10.09.2019. While not inclined to interfere with the impugned judgment, all the appeals stand dismissed.
All the appeals accordingly stand dismissed.
Photo copy of the order be placed in the connected case records.