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Judgment
Bhupesh Sharma, Judge
This appeal has been filed by the State of Himachal Pradesh against the judgment of acquittal dated 30.10.2024, passed by the learned Additional Sessions Judge, Fast Track Special Court, (POCSO), Kangra at Dharamshala, District Kangra, H.P. in Sessions case No.42-B/VII/2022,(CIS Reg. No.202 of 2022), titled, ‘State of H.P. vs. Sohan Singh & Anr.’, whereby, the respondent Sohan Singh (hereinafter shall be referred to as ‘A-1) and respondent Balbir Kumar (hereinafter shall be referred to as ‘A-2’) have been acquitted of the charges for commission of offence(s) punishable under Sections 376, 342 read with Section 34 of Indian Penal Code and under Sections 4, 6 and 8 of the Prevention of Children from Sexual Offences Act, 2012.
The accused persons Sohan Singh (A-1) and Balbir Kumar (A-2) were sent to face trial for commission of offence(s) punishable under Sections 376, 342 read with Section 34 of Indian Penal Code and under Sections 4, 6 and 8 of the Prevention of Children from Sexual Offences Act, 2012, by the SHO, Police Station Baijnath, in case FIR No.144 of 2022 dated 16.09.2022. The accused persons were prosecuted for the said offence(s) and were subsequently acquitted by the learned Trial Court vide impugned judgment dated 30.10.2026 in Sessions case No. 42-B/VII/2022, titled, ‘State of H.P. vs. Sohan Singh & Anr.
Case of the prosecution, as set out against the accused persons, in brief, is as under:-
3(a). On 16.09.2022, during the day time, at Village Burli Kothi (Paprola) Tehsil Baijnath, District Kangra, H.P. the accused Sohan Singh (A-1) along with his co-accused Balbir Singh (A-2) in furtherance of their common intention, sexually assaulted (committed penetrative sexual assault) and abused the Victim Child/Prosecutrix ‘G’, minor, aged nine years (Date of Birth 01.11.2012), after wrongfully confining her in a room in her house. The accused Sohan Singh (A-1) after the offence was apprehended by the public at the spot, whereas, accused Balbir Kumar (A-2) fled away.
3(b). Information regarding the incident was conveyed to the mother of the Victim Child/Prosecutrix ‘G’, by her Landlord Surender Kumar when she was at Taragarh. She returned and met her daughter, who disclosed the incident in detail and thereafter, the matter was reported at Police Station Baijnath by filing a written complaint.
3(c). On the basis of disclosure of the facts enumerated in the complaint, case FIR No.144 of 2022 dated 16.09.2022 under Sections 376, 511 IPC and Sections 4, 6 and 8 of the Prevention of Children from Sexual Offences Act, 2012 was registered against the accused and his co-accused at Police Station Baijnath, District Kangra, H.P.
3(d). On the basis of the facts disclosed by the complainant ‘R’ (mother of the Victim Child/Prosecutrix ‘G’) in the complaint and pursuant to registration of case FIR No.144 of 2022 dated 16.09.2022, the statement of the Victim Child/Prosecutrix ‘G’, was recorded under Section 161 Cr.P.C. and thereafter, she was sent for medical examination to Civil Hospital, Baijnath.
3(e). On the basis of preliminary evidence collected by the Investigating Officer, the accused Sohan Singh (A-1) was arrested on 16.09.2022 at 05:00 P.M, at Police Station Baijnath.
3(f). On 17.09.2022, Victim Child/Prosecutrix ‘G’, also got her statement recorded under Section 164 Cr.P.C. before the learned Judicial Magistrate 1st Class, Baijnath, District Kangra, H.P.
3(g). Thereafter, Investigating Officer Inspector Pooja Kaundal conducted the spot inspection, took photographs of the spot and prepared the spot map. During the course of investigation, date of birth certificate of Victim Child/Prosecutrix ‘G’ was procured and she was also subjected to counselling by the Councellor, District Child Welfare Committee, Kangra, at Dharmashala. The samples of Victim Child/Prosecutrix ‘G’ preserved by the Medical Officer during her medical examination were sent for analysis to the Regional Forensic Science Laboratory, Dharamshala. She was also sent to gynecologist's opinion at Civil Hospital, Baijnath and she was also subjected to Psychiatric evaluation at Dr. Rajender Prasad Medical College and Hospital, Tanda.
3(h). On the receipt of the result from RFSL Dharamshala and on the basis of the final medical opinion, the accused Sohan Singh (A-1) and accused Balbir Kumar (A-2) were found to have committed the offence(s) under Sections 376 and 342 read with Section 34 of the IPC and Sections 4, 6 and 8 of the Prevention of Children from Sexual Offences Act, 2012. Accordingly, final report under Section 173(2) of the Cr.P.C. was filed against them before learned Special Judge, Kangra at Dharamshala.
The accused Sohan Singh (A-1) and his co-accused Balbir Kumar (A-2) were charged for the commission of offence(s) punishable under Sections 376, 342 read with Section 34 of IPC and Sections 4, 6 and 8 of the Prevention of Children from Sexual Offences Act, 2012, by the learned Additional Sessions Judge, Fast Track Special Court (POCSO), Kangra at Dharamshala, District Kangra, H.P. vide order dated 24.05.2023.
The prosecution in order to establish the allegations and accusations against the accused persons examined 17 witnesses. The Victim Child/Prosecutrix ‘G’ was examined as PW-2 and her mother/ complainant ‘R’ was examined as PW-1. Apart from this, the prosecution has also examined witness of fact namely Jugnu as PW-10, Surender Kumar (Landlord) as PW-11. Medical Officers associated during the course of investigation i.e. Dr. Indu, Medical Officer, Civil Hospital Baijnath as PW4, Dr. Abha Sharma, Gynecologist, Civil Hospital, Baijnath as PW-5 and Dr. Ankita Thakur, Senior Resident in the Department of Psychiatry, Dr. RPGMC, Tanda as PW-16.
The other witnesses examined by the prosecution are PW-3 Ms. Sanyogita Devi, Counsellor, District Child Protection Unit, Kangra at Dharamshala, Sanjeev Rana as PW-6, LC Tanu No.843 as PW-7, HHC Malkiyat Singh No.539 as PW8, C. Gulshan No.600 as PW-9, Inspector Surinder Thakur as PW-13, HC Vinod Kumar No.73 as PW-14, SI Jagdish Kumar as PW-15, ASI Kiran Kumar as PW-17, who are formal in nature. Investigating Officer, Inspector Pooja Kaundal has been examined as PW-12.
Prosecution apart from leading the aforesaid oral evidence has also heavily relied upon the documentary evidence placed on record, which was collected against the accused persons during the course of investigation. The material documents which are placed on record are the complaint/application for registration of case Ext.P-1/PW1, copy of FIR No.144 dated 16.09.2022 Ext.P-2/PW1, MLC of the Victim Child/Prosecutrix ‘G’ Ext.P-3/PW1, statement of the Victim Child/Prosecutrix ‘G’ recorded under Section 164 Cr.P.C. Ext.P-9/PW2, MLCs of the accused persons Ext.PB and Ext.PC, Regional Forensic Science Laboratory results Ext.P-31/PW13 and Ext.P-32/PW13.
The substratum of the prosecution case was put to the accused persons in their statements under Section 313 Cr.P.C. recorded by the learned Trial Court on 04.10.2024. The accused persons denied the prosecution case in its entirety by raising defence of denial simpliciter and false implication at the behest of the complainant ‘R’.
The learned trial Court after considering the material and evidence on record did not find the accused persons involved in the alleged incident. The learned trial Court did not find the statement of the Victim Child/Prosecutrix ‘G’, wholly reliable to secure the conviction of the accused persons. Apart from this, it was also found that the medical evidence failed to corroborate the prosecution case and the other hearsay evidence was also not reliable, accordingly, both the accused persons were acquitted vide impugned judgment of acquittal dated 30.10.2024 in Sessions Trial case No.42-B/VII/2022, titled, ‘State of H.P. vs. Sohan Singh & Anr.’
Feeling aggrieved and dissatisfied with the judgment of acquittal dated 30.10.2024, passed by learned Additional Sessions Judge, Fast Track Special Court, (POCSO), Kangra at Dharamshala, District Kangra, H.P. in Sessions case No.42-B/VII/2022, titled, ‘State of H.P. vs. Sohan Singh & Anr.’, the State of Himachal Pradesh is in appeal before this Court on various grounds:
Grounds of appeal:
That the impugned judgment passed by the learned trial Court is wrong on facts as well as on law, hence, liable to be set aside.
That the impugned judgment is based on hypothetical reasonings, surmises and conjectures, hence, liable to be set aside.
That the learned trial Court has appreciated the evidence in a slip-shod manner and acquitted the accused persons on the flimsy grounds.
That the learned trial Court has not only failed to view the prosecution evidence in its proper perspective, but at the same time has set unrealistic standards to evaluate the direct and cogent prosecution evidence. The reasoning of the learned trial Court is manifestly unreasonable and unsustainable as there was no warrant at all for the learned trial Court to discard the well reasoned and consistent testimonies of prosecution witnesses and no reason has been assigned for discarding the version of the official witnesses.
That the learned trial Court has wrongly held that the prosecution has failed to prove its case beyond reasonable doubts, in fact, by the statement of prosecution witnesses, the case of the prosecution stands proved beyond shadow of reasonable doubts.
That the learned trial Court has not appreciated the impugned judgment in its right perspective i.e. the statements of the victim and PW-10 Jugnu, who had seen the accused Sohan Singh on the spot who was caught by the persons of the locality and was trying to abscond, and has wrongly acquitted the accused persons, hence, the judgment passed by the learned trial Court deserves to be set aside.
That the mother of the victim has specifically stated that victim had disclosed to her that other person who came with the accused gave money to the brother of the victim and had sent him to bring cold-drink and the other accused had closed her mouth with his hands. Further, the learned trial Court has not appreciated that the mother of the victim has stated entire facts of the occurrence as disclosed to her by the child victim, but rather, has wrongly relied on the minor contradictions made by the mother of the victim at the time of deposition in the trial Court, hence, the impugned judgment is liable to be set aside.
That the learned trial Court has fell into error to hold that the statement of the victim is improvement on the content of application Ext.P-1/PW1 and also appears to be after thought version of the victim, but the learned trial Court has not appreciated that the victim in her statement recorded under section 164 Cr.P.C. has specifically stated the role of both the accused persons in the commission of offence. Learned trial Court has wrongly come to the conclusion that the victim has not stated in the examination in chief that the accused pressed her breast and further wrongly concluded that the same to be a contradiction in the Court as made before the learned Magistrate under section 164 Cr.P.C. Hence, the impugned judgment is liable to be set aside.
That the learned trial Court also fell into error in coming to the conclusion that the victim PW-2 during the cross-examination has stated that she did not know the accused persons prior to the alleged incident and the mother of the child victim PW-1 too has stated the same but the IP Pooja Kaundal has admitted that the accused persons were already known to the mother of the victim. Learned trial Court has wrongly concluded that this contradiction has been made the prosecution case doubtful. Learned trial Court has not appreciated that the accused No.1 Sohan Singh was caught by the persons of the locality after the incident and was handed over to the police, who thereafter was medically examined and the injuries on his person corroborate the version of the victi PW-2, witnesses PW-10 and PW-11. Learned trial Court has also not appreciated that Sohan Singh accused was identified by the victim from the photograph pasted on the conviction slip, hence, the impugned judgment is liable to be set aside.
That the learned trial Court has wrongly arrived at the conclusion that the statement made by the victim to the counselor PW3 is also improved version of the victim as there is nothing in the application Ext.P-1/PW-1 that the victim was being moved to the roof by both the accused persons. The trial Court has totally ignored the testimony of the victim and other witnesses, who had completely corroborated the prosecution case and also identified the accused persons.
That the learned trial Court has not appreciated the evidence in the right perspective and has wrongly acquitted the accused persons and wrongly concluded that the neighbour/ aunt to whom the incident was narrated by the victim have not been examined. Learned trial Court has not appreciated that the said neighbours were migrant and their presence could not be secured despite various attempts by the prosecution but has totally ignored the testimony of PW-10, who has totally corroborated the version of the victim. Hence, the impugned judgment is liable to be set aside.
That the learned trial Court has arrived wrongly at the conclusion that in the alleged history of medical officer has not mentioned that the accused was produced with the alleged history of penetrative sexual assault but rather has been mentioned as patient brought by the police for medical evidence.
That the learned trial Court has wrongly acquitted the accused persons without appreciating the cross examination of the victim child by the accused No.1, where specific admissions have been made regarding the incident, hence, the impugned judgment is liable to be set aside.
That the learned trial Court fell into error and has wrongly acquitted the accused persons and has not appreciatedthe admission made by the accused no.1, wherein, it has been admitted that both the accused persons were seen by the mother of the victim near to the public toilet at the distance of 500 meters from the house of the victim in the morning of alleged incident and admitted that the accused N o.1 was the employee of public toilet. Hence, the impugned judgment is liable to be set aside.
That learned trial Court has failed to appreciate the aim and objective behind the enactment of the Protection of Children From Sexual Offences Act, 2012. Learned trial Court has wrongly extended the benefit of doubt in favour of the accused persons despite the fact that the accused miserably failed to rebut the presumptions under sections 29 and 30 of the Act. Hence, the impugned judgment is bad in the eyes of law and liable to be set aside in the interest of justice.
That the learned trial Court has given much importance to the minor contradictions and insignificant discrepancies in the statement of the prosecutrix/victim and other witnesses, which are bound to occur after a lapse of time and lengthy cross examination. The offence of sexual assault is most morally and physically reprehensible crime in a civilized society. The learned trial Court was required to appreciate the evidence with great care and caution especially in offences of sexual assault. The learned trial Court failed to appreciate evidence as well as law in the light of the facts and circumstances of the present case, hence, the verdict of acquittal recorded by the learned trial Court is not sustainable in the eyes of law and is liable to be set aside.
That PW17 ASI Kiran Kumar moved an application Ext.P-29/PW12 to Registrar (Birth and Death) Primary Health Centre, Nauhjheel Bgangar, Mathura, UP to procure the birth certificate of the child victim and he produced the birth certificate Ext.,PE and extract of the register Ext.PF from medical officer, which clearly establish that the victim was minor on the date of incident and her date of birth is 01.11.2012, hence, the accused is liable to be convicted in accordance with the POCSO Act.
We have heard learned counsel for the parties and carefully gone through the material on record and the findings recorded by the learned trial Court while passing the impugned judgment dated 30.10.2024.
Learned Deputy Advocate General has strenuously argued that the learned trial Court failed to appreciate the oral and documentary evidence led by the prosecution leading to miscarriage of justice. The statement of the Victim Child/Prosecutrix ‘G’ (PW-2) and her mother being complainant ‘R’ (PW-1) fully corroborated the prosecution case and involvement of the accused persons in committing sexual assault (penetrative sexual assault) upon the Victim Child/Prosecutrix ‘G’ (PW-1) on 16.09.2022 during the day time at place Village Burli Kothi (Paprola), Tehsil Baijnath, District Kangra, H.P. There is sufficient oral and documentary evidence on record to convict the accused for the commission of offence(s) punishable under Sections 376 and 342 read with Section 34 IPC nd under Section 4, 6 and 8 of the POCSO Act, 2012.
Per contra, the learned counsel for the respondent Sohan Singh (A-1), defended the judgment of acquittal passed by the learned trial Court and submitted that the oral and documentary evidence led by the prosecution has been wholly appreciated and the reasons assigned for non acceptance thereof, warrants no interference.
Perusal of the record reveals that the learned Special Judge on considering and evaluating the material and evidence led by the prosecution, disbelieved the same and proceeded with acquitting the accused persons of the charges framed against them.
The present appeal has been filed against the judgment of acquittal, therefore, the scope of powers of the Appellate Court in the case of an appeal against acquittal needs to be considered before embarking upon the factual matrix.
The Privy Council of Hon’ble Supreme Court in Sheo Swarup v. King Emperor, 1934 SCC OnLine PC 42 has observed that the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.
The aforesaid principle of law has consistently been followed by the Hon’ble Supreme Court in Tulsiram Kanu v. State, 1954 Cri.LJ 225, Balbir Singh v. State of Punjab, AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200.
Furthermore, the scope of the powers of the Appellate Court in case of an appeal against acquittal were again reiterated by the Hon’ble Apex Court in Muralidhar alias Gidda & another vs. State of Karnatka reported in (2014) 5 SCC 730; Rajesh Prasad vs. State of Bihar & another reported in (2022) 3 SCC 471; H.D. Sundara & others vs. State of Karnataka reported in (2023) 9 SCC 581; Jafarudheen and others vs. State of Kerala reported in (2022) 8 SCC 440; Geeta Devi vs State of U.P. reported in (2023) 12 SCC 741 and Surendra Singh v. State of Uttarakhand reported in 2025 SCC OnLine SC 176: (2025) 5 SCC 433
Having considered the ratio of law laid down by Hon’ble Apex Court in judgments referred supra, it is now well settled that powers of Appellate Court while hearing the appeals against the acquittal are not unbridled. There is a clear caveat that in case the view arrived at by the trial Court is a possible one borne from the material on record, the same cannot be viewed differently, even if, there is a possibility of any other view.
Thus, the law on the issue can be summarized to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the Appellate Court can interfere with the order of acquittal. Further, if two views were possible on the basis of the evidence on record, the Appellant Court should not disturb the finding of acquittal recorded by the Trial Court, merely, because the Appellate Court could have arrived at a different conclusion than that of the Trial Court.
The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused.
Now coming to the facts of the case. As per the allegations, the accused Sohan Singh (A-1) and his co-accused Balbir Kumar (A-2) committed sexual assault (penetrative sexual assault) upon the Victim Child/ Prosecutrix ‘G’ on 22.09.2022 during the day time at village Burli Kothi (Paprola), Tehsil Bainath, District Kangra, H.P. in the absence of her mother ‘R’ (PW-1). On the date of occurrence, the mother of the Victim Child/Prosecutrix ‘G’ i.e. complainant ‘R’ had gone to Taragarh, where she received a telephone call of her landord Surender Kumar (PW-11) regarding the incident and on returning home, the entire incident was narrated to her by her daughter. As per the disclosure of facts, the accused persons came to her house and the accused Balbir Kumar (A-2) sent her brother to nearby shops to bring cold-drink/juice. The accused Sohan Singh (A-1) disrobed the Victim Child/Prosecutrix ‘G’, touched her body parts inappropriately and inserted finger in her private part. The accused Balbir Kumar (A-2) during the aforesaid period had caught hold the Victim Child/Prosecutrix ‘G’ and had gagged her mouth in order to prevent her from raising alarm. Later they tried to take her on the roof of the house, but she managed to rescue herself by biting one of the accused and later, met her aunt outside the house and narrated the incident and thereafter alarm was raised, villagers gathered and accused Sohan Singh (A-1) was apprehended at the spot.
Ext.P-1/PW1 is the application for registration of case filed by the complainant ‘R’, being the mother of the Victim Child /Prosecutrix ‘G’ (PW-2) before the SHO, Police Station, Baijnath, thereby putting on record material facts and sequence of events unfolding the incident on the basis of narration of facts contained therein, case FIR No.144 dated 16.09.2022 under Sections 376, 511 IPC and Sections 4, 6 and 8 of POCSO Act, 2012 was registered at Police Station Baijnath (Ext.P-2/PW1). Therefore, the aforesaid document(s) being the primary evidence put on record the material facts, needs to be considered minutely vis-a-vis oral evidence of the Victim Child/Prosecutrix ‘G’, examined as PW-2 and the evidence of her mother, being complainant ‘R’ examined as PW-1.
Before adverting to the evidence of the Victim Child / Prosecutrix ‘G’ (PW-2), and her mother complainant ‘R’ (PW-1), it may be fruitful to refer to the relevant case law, which is attracted to the facts and circumstances of the present case considering the nature of accusations against the accused persons.
The Hon'ble Supreme Court in Mohd. Imran Khan vs. State (Govt. of NCT of Delhi),(2011)10 Supreme Court Cases 192, has held as under:-
“15.It is a trite law 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. The Prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Indian Evidence Act, 1872 (hereinafter called 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 of Evidence Act 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. 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. 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. The court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it often distracts 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. (Vide: State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658; State of U.P. v. Pappu @Yunus & Anr. AIR 2005 SC 1248; and Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191).
Thus, the law that emerges on the issue is to the effect that statement of 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.
In State of Maharashtra Vs. Chandraprakash Kewalchand Jain AIR 1990 SC 658, the Hon'ble Supreme 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 :-
"A p rosecutrix 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 p rosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."
In State of U.P. Vs. Pappu @Yunus & Anr. AIR 2005 SC 1248, the Hon'ble Supreme 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. The Hon'ble Supreme 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 :-
"It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted 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."
In State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393, the Hon'ble Supreme 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 Hon'ble Supreme Court observed as under :-
"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 c onsiderations 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 replying 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 p rosecutrix is not a requirement of law but a guidance of prudence under given circumstances. ** ** ** 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 in material 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."
In State of Orissa Vs. Thakara Besra & Anr. AIR 2002 SC 1963, the Hon'ble Supreme Court held that rape is not mere a physical assault, rather it often distracts 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.
In State of Himachal Pradesh Vs. Raghubir Singh (1993) 2 SCC 622, the Hon'ble Supreme 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 the Hon'ble Supreme Court in Wahid Khan Vs. State of Madhya Pradesh (2010) 2 SCC 9, placing reliance on earlier judgment in Rameshwar Vs. State of Rajasthan AIR 1952 SC 54.
The Hon'ble Supreme Court in the case of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat [1983(3) SCC 217] has laid down the elaborate guidelines as to how the evidence of the prosecutrix in the crime of rape should be evaluated by the Court.
In Ved Parkash versus State of Himachal Pradesh (2005(1) SLC 395), the Hon'ble Supreme Court while dealing with the question of value of the statement of the Prosecutrix, held as under:-
"8.At may be pointed out at the very outset that by now it is well settled that conviction of a person accused of the commission of rape can be based on the sole testimony of the prosecutrix because she is not an accomplice but victim of the offence, hence, the injured person. Her evidence can also not be suspected for the reason that no self respecting woman would come forward to lower her dignity and self esteem by making false allegations of rape on her. Therefore, a conviction can be based on the statement of the prosecutrix when her statement is found cogent, reliable and confidence inspiring. In case for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look into other evidence which may lend assurance to her testimony.. In a case where the prosecutrix is adult and of full understanding the Court can base conviction on her evidence unless shown to be infirm or untrustworthy. In case the prosecutrix has no motive to falsely implicate the accused the Court should ordinarily have no hesitation in accepting her evidence."
The Hon'ble Supreme Court in Aman Kumar and another vs. State of Haryana, (2004)4 SCC 379 held as under:-
“5.It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted 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 suffice.
7.Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little (See Joseph Lines IC & K 893). It is well-known in the medical world that the examination of smegma loses all importance after twenty four hours of the performance of the sexual intercourse. (See Dr. S.P. Kholi, Civil Surgeon, Ferozepur v. High Court of Punjab and Haryana thr. Registrar (1979) 1 SCC 212). In rape cases, if the gland of the male organ is covered by smegma, it negatives the possibility of recent complete penetration. If the accused is not circumcised, the existence of smegma round the corona gland is proof against penetration, since it is rubbed off during the act. The smegma accumulates if no bath is taken within twenty four hours. The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and,therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majora. These,viz. Labia majora are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. Further,examination of the females for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC.”
The Hon'ble Supreme Court in Tarkeshwar Sahu vs. State of Bihar (now Jharkhand, (2006)8 SCC 560, held as under:-
10.Under Section 375 IPC, six categories indicated above are the basic ingredients of the offence. In the facts and circumstances of this case, the prosecutrix was about 12 years of age, therefore, her consent was irrelevant. The appellant had forcibly taken her to his Gumti with the intention of committing sexual intercourse with her. The important ingredient of the offence under Section 375 punishable under Section 376 IPC is penetration which is altogether missing in the instant case. No offence under Section 376 IPC can be made out unless there was penetration to some extent. In absence of penetration to any extent would not bring the offence of the appellant within the four corners of Section 375 of the Indian Penal Code. Therefore, the basic ingredients for proving a charge of rape are the accomplishment of the act with force. The other important ingredient is penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim completely, partially or slightly would be enough for the purpose of Sections 375 and 376 IPC. This Court had an occasion to deal with the basic ingredients of this offence in the case of State of U.P. v. Babul Nath. In this case, this Court dealt with the basic ingredients of the offence under Section 375 in the following words:- "8. It may here be noticed that Section 375 of the IPC defines rape and the Explanation to Section 375 reads as follows:
"Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape." From the Explanation reproduced above it is distinctly clear that ingredients which are essential for proving a charge of rape are the accomplishment of the act with force and resistance. To constitute the offence of rape neither Section 375 of IPC nor the Explanation attached thereto require that there should necessarily be complete penetration of the penis into the private part of the victim/prosecutrix. In other words to constitute the offence of rape it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen. Even partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purpose of Sections 375 and 376 of IPC. That being so it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains. But in the present case before us as noticed above there is more than enough evidence positively showing that there was sexual activity on the victim and she was subjected to sexual assault without which she would not have sustained injuries of the nature found on her private part by the doctor who examined her."
The Hon'ble Supreme Court in Narender Kumar vs. State (NCT of Delhi), (2012)7 SCC 171 held as under:-
“29.However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide: Tukaram & Anr. v. The State of Maharashtra,, AIR 1979 SC 185; and Uday v. State of Karnataka, AIR 2003 SC 1639).
30 . Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected.”
The Hon'ble Supreme Court in Munna vs. State of Madhya Pradesh, (2014) 10 SCC 254, has reiterated the principle that testimony of p rosecutrix is almost at par with an immediate witness and can be acted upon without corroboration.
Reiterating its earlier view in Mohd. Iqbal v. State of Jharkhand,(2013) 14 SCC, 481, Narender Kumar v. State (NCT of Delhi), (2012) 7SCC 171, the Hon'ble Supreme Court in Mukesh v. State of Chhattisgarh, (2014) 10 SC 327, has held that sole testimony of prosecutrix is sufficient to establish commission of rape, even in the absence of any corroborative evidence.
Reiterating the earlier view, the Hon’ble Supreme Court in Sham Singh vs. State of Haryana (2018) 10 SCC 34, State (NCT of Delhi) vs. Pankaj Chaudhary (2019) 11SCC 575 and Ganesan vs. State (2020) 10 SCC 573 held that sole testimony of the prosecutrix is sufficient to establish commission of rape if ‘duly corroborated’.
The testimony of the Victim Child/Prosecutrix ‘G’ examined as PW2 is to be assessed keeping in view the law laid down by the Hon’ble Supreme Court in cases referred supra.
Victim Child/Prosecutrix ‘G’ stepped into the witness box as PW-2 and as per her evidence, in the last year, she along with her brother were at home and her mother had gone for work. Two persons came to her house and sent her brother to bring cold-drink/juice from the market. One person put off her clothes, touched her body parts and inserted finger into her private part. The other person gagged her mouth and they tried to take her on the roof of her house, but she ran away after biting one person, she came out of the house and met with an aunt, who was outside the house and narrated the incident to her. Those persons went away and one of them again came there after changing his clothes. Many persons had gathered there and they caught one of the accused i.e. Sohan Singh (A-1).
The complainant ‘R’, the mother of the Victim Child/Prosecutrix ‘G’ has stepped into the witness box as PW-1 and has testified that the age of her daughter is 10 years and she is youngest amongst the siblings. On 16.09.2022, she had gone to Taragarh to buy medicines, where she received a call from her landlord, who disclosed that someone had committed wrong acts with her daughter and asked her to return as soon as possible. She returned and reached back at about 11:00 A.M. and met her daughter, who disclosed the incident. As per the facts disclosed to her, the accused Sohan Singh (A-1) came to her room, put off her clothes and touched her body parts. He also put his finger in her private part and thereafter, tried to take her on the roof of her house. Her daughter rescued herself and ran away and later met with an aunt (neighbour) and narrated the incident. Later, the accused Sohan Singh was apprehended by the villagers and was beaten up. Her daughter also disclosed regarding the involvement of the other person, who had come with the accused Sohan Singh (A-1) and had given money to her son to buy cold-drink/ juice from the market. As per her evidence, later she filed an application Ext.P-1/PW1 with the SHO, Police Station Baijnath for taking action against the accused persons.
Ext.P-9/PW2 is the statement of the Victim Child/ Prosecutrix ‘G’ recorded under section 164 of Cr.P.C. by learned Judicial Magistrate 1st Class, Baijnath, District Kangra on 17.09.2022. As per the aforesaid documents, on the date of incident, the Victim Child/Prosecutrix ‘G’ was cleaning utensils when the accused Sohan Singh (A-1) came to her house and took her in a room, where he removed her clothes, pressed her breasts and inserted his hand in her private part. Thereafter, he tried to take her on the roof-top, but she managed to rescue herself and ran out of the house and later she disclosed the incident to her aunt (neighbour). There was another boy with the accused, who had gagged her mouth.
The aforesaid oral and documentary evidence refers to the sequel of events and the involvement of the accused persons in allegedly sexually assaulting (penetrative sexual assault) the Victim Child/Prosecutrix ‘G’ (PW-2). Although, the aforesaid evidence points towards the involvement of the accused persons in the said incident, however, close scrutiny thereof renders the version improbable and unacceptable. Apparently, there are material contradictions and improvements in the statements of principal prosecution witnesses regarding the actual occurrence of the incident.
We have carefully considered the aforesaid evidence and found the same to be unworthy of credence for the reasons discussed herein below.
As per the evidence of the Victim Child/Prosecutrix ‘G’ (PW-2) and her mother, complainant ‘R’ (PW-1),the accused persons were not known to them prior to the incident, however, the aforesaid fact has been explicitly contradicted by Inspector Pooja Kaundal (PW-12), being the Investigating Officer, who disclosed that accused persons were known to the mother of the Victim Child/Prosecutrix ‘G’ prior to the incident.
Apart from this, there is also material contradiction to the effect that whether the brother of the Victim Child/Prosecutrix “G’ (PW-2), was present in the house when the accused persons made entry therein or during the course of incident. As per the evidence of the Victim Child/Prosecutrix ‘G’ (PW-2), the accused Balbir Kumar (A-2) had given money to her brother to buy juice/cold-drink from the market. However, the aforesaid fact is conspicuously missing from her statement recorded under section 164 Cr.P.C. (Ext.P-9/PW2). The evidence of complainant ‘R’ (PW-1) on this aspect is also hearsay in nature, therefore, the same cannot be considered.
It has also come in the statement of the Victim Child/ Prosecutrix ‘G’ that her brother made hue and cry. The aforesaid fact is completely new and does not find mention in the evidence collected during the course of investigation. Since, the prosecution has not examined the brother of the Victim Child/Prosecutrix ‘G’ (PW-2), in absence thereof, the evidence put on record in this regard cannot be accepted.
It has consistently come in the prosecution evidence that the Victim Child/Prosecutrix (PW-2) rescued herself by biting the accused Balbir Kumar (A-2) and ran away from the room and met her aunt (neighbour), to whom, she disclosed the entire incident. Therefore, the person, who immediately met the Victim Child/Prosecutrix ‘G’ was her aunt (neighbour), named Chandni, but despite this fact, the prosecution did not examine her during the course of investigation. The name of said aunt find mentions in the statement of Surender Kumar, Landlord (PW-11) and as per his evidence, she is also tenant in the same building, where the incident took place. It has also come in the evidence of Surender Kumar (PW-11) that she was the first person who disclosed the incident to him, which he communicated to the complainant ‘R’ (PW-1). Apparently, Ms. Chandni was the material witness to ascertain the post-incident events and the involvement of the accused persons. Apparently, there is no direct evidence regarding the incident save and except the evidence of the Victim Child/Prosecutrix ‘G’ (PW-2). No one from the locality saw the accused persons entering inside the house of the Victim Child/Prosecutrix ‘G’ (PW-2), however, their presence has been confirmed by all the witnesses after the alleged incident. It is emerging on record that the accused Sohan Singh (A-1) was caught by the villagers and was beaten up subsequently.
The statement of the Victim Child/Prosecutrix ‘G’ examined as PW-2, does not inspire confidence in view of inconsistent facts disclosed by her while making statement before the learned trial Court as PW-2 and during the course of investigation as well as while making statement under section 164 Cr.P.C. before learned Judicial Magistrate 1st Class (Ext.P-9/PW2).
The medical evidence brought on record by the prosecution i.e. the MLC of the Victim Child/Prosecutrix ‘G’ (Ext.P3/PW1) and the opinion given by Dr. Indu (PW-4) do not suggest penetration of finger into the vagina of the Victim Child/Prosecutrix ‘G’. As per the evidence of Dr. Indu (PW-4), there was no injury on any part of the body. There was no bleeding in vaginum and no injury was seen over external genitalia. Similarly, Dr. Abha Sharma (PW-5) Gynecologist also examined the Victim Child/Prosecutrix ‘G’ (PW-2) and found no external injury on Victim Child/Prosecutrix and there was no gross abnormality. She has also admitted in her statement that there was no abrasion or tenderness outside the private part of the Victim Child/Prosecutrix ‘G’ at the time of her examination.
Having considered the evidence of Dr. Indu (PW4), Dr. Abha Sharma (PW-5) as well as opinion Ext.P-14/PW4 and opinion Ext.P-16/PW5 given on the MLC Ext.P-3/PW1, the facts alleged by the prosecution against the accused persons are not corroborated. Similarly, the Regional Forensic Science Laboratory Reports Ext.P-31/PW13 and Ext.P-32/PW13 are also inconsequential to ascertain the factum of sexual assault upon the Victim Child/Prosecutrix ‘G’ (PW-2).
The presence of the accused Balbir Kumar (A-2) and his involvement is also not well substantiated having considered the fact that he did not figure during the course of initial investigation. His name was neither referred nor mentioned in the complaint Ext.P-1/PW1. His involvement was introduced at later point in time, therefore, the prosecution case qua his involvement along with accused Sohan Singh (A-1) is also under suspicion.
After carefully analyzing the material and documentary evidence led by the prosecution, this Court finds that sole evidence of the Victim Child/Prosecutrix ‘G’ examined as PW-2, is neither consistent nor credible to infer the involvement of the accused persons for the reasons referred and discussed hereinabove. There are material omissions in her evidence on material facts, which renders her version vulnerable and suspicious. Her evidence recorded before the learned trial Court as PW-2 and again under section 164 Cr.P.C. Ext.P-9/PW2 lack consistency and uniformity on the material aspects and therefore, the same is to be considered with pinch of salt.
Learned trial Court appears to have considered the material evidence in its right perspective and for the reasons therein, he did not find involvement of the accused persons beyond reasonable doubt.
Findings recorded by the learned trial Court do not suffer from any material irregularities or perversity, warranting interference and indulgence by this Court.
In view of the above, the present appeal fails and it is dismissed.
The accused Sohan Singh (A-1) is in custody. He be set free forthwith, if not required, in any other process of law.
A copy of this judgment along with the record of the learned Trial Court be sent back forthwith.
The appeal is, accordingly, disposed of, so also the pending miscellaneous application(s), if any.