Vikash Kumar vs The State Of Bihar & Anr.

(Per: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA)

Heard learned counsel for the appellant, learned counsel for the respondent no.2 and learned A.P.P. for the State.

The present criminal appeal has been preferred against the judgment of conviction dated 17.06.2023 (hereinafter referred to as ‘impugned judgment’) and order of sentence dated 20.06.2023 (hereinafter referred to as ‘impugned order’) passed by the Court of learned Additional Sessions Judge-VI-cum-Special Judge (POCSO), Rohtas at Sasaram (hereinafter referred to as ‘Trial Court’) in connection with POCSO Case No.85 of 2018, arising out of Dehri Mahila P.S. Case No.101 of 2018, wherein the learned Trial Court, vide the impugned judgment, has convicted the appellant under Section 376-D of the Indian Penal Code, 1860 (in short ‘IPC’) and Section 4 & 6 of the Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’) and sentenced him to undergo imprisonment for life and to pay fine of Rs.30,000/- out of which Rs.20,000/- shall be payable to the victim.

The learned Trial Court also awarded a compensation of Rs.4,00,000/- (Rupees Four Lakh) in favour of the victim of rape under the Victim Compensation Scheme, to be paid by Secretary, District Legal Services Authority, Rohtas at Sasaram in accordance with Section 357-A of the Criminal Procedure Code, 1973 (in short ‘Cr.P.C.’) and sub-section (8) of Section 33 of the POCSO Act.

The name of the victim and her parents has been concealed in the present judgment for maintaining privacy of victim’s identity to protect her dignity.

The prosecution case, in brief, is that the informant/victim, aged about 12 years, submitted a written report before the Officer-in-Charge of Dehri Mahila P.S. alleging that on 25.02.2018 at about 7:00 A.M., while she was proceeding to a place near Kali Mandir for defecation, the accused persons, namely, Vikash Kumar (appellant herein), Rinkal Kumar and Amit Kumar, forcibly took her to the godown of the appellant, gagged her mouth with a cloth and committed rape upon her. It is further alleged that the accused persons threatened her with dire consequences and warned her not to disclose the occurrence to anyone, including her parents. According to the informant (respondent no.2 herein), her father was residing at Mumbai and her mother was mentally ill, she could not disclose the occurrence to her mother. Again, the aforesaid three persons, in July 2018, when she went to bring ration from the godown of the appellant, took her inside the godown, a cloth was put in her mouth and they committed rape with her, and due to fear, she had not disclosed the said occurrence to her guardian. She further alleged that about one week earlier from her written report, when she experienced abdominal pain, she told about the pain to her father, who brought medicine from a shop but her pain was not subsided and subsequently, bleeding started, then she came to know that she was pregnant and miscarriage of her pregnancy happened. Thereafter, her father brought her to Dehri (Mahila) P.S. for lodging the case. On the basis of the aforesaid written report, Dehri Mahila P.S. Case No.101 of 2018 was registered on 23.11.2018 for the offences punishable under Section 376-DA of the IPC and Section 4 of the POCSO Act.

After registration of the F.I.R., the investigation was taken up and, upon completion thereof, the Investigating Officer submitted charge-sheet dated 27.01.2019 bearing C.S. No.02 of 2019 against the accused persons under Section 376-D of the IPC read with Sections 4 & 6 of the POCSO Act. Subsequently, learned Additional District & Sessions Judge-I, Rohtas took cognizance for the offence vide order dated 20.02.2019. Thereafter, learned Additional District & Sessions Judge-I, Rohtas framed charges against the appellant on 01.06.2019 under Section 376-D of the IPC and Sections 4 & 6 of the POCSO Act. The charges were explained to the appellant in Hindi who pleaded not guilty and claimed to be tried. Moreover, the other two accused persons were juveniles, so, their cases were placed before competent Juvenile Justice Board for appropriate proceedings in accordance with law.

To substantiate the charges levelled against the accused (appellant herein), the prosecution has examined altogether seven witnesses. The complete description of the prosecution witnesses whose oral testimonies have been recorded by the learned Trial Court and the documentary evidences proved on the behalf of the prosecution are provided hereunder in tabular form for ready reference:

After recording of the prosecution evidences, statements of the accused (appellant herein) were recorded under Section 313 of the Cr.P.C. The appellant denied the correctness of the incriminating circumstances against him and came out with a plea that he is innocent.

The defence has also examined three oral witnesses in his defence. Details of the oral testimonies and documentary evidence on behalf of the defence are as hereinunder:

Defence has exhibited documentary evidence marked as Exhibit A and B which is Signature of Sudarshan Singh and Aman Kumar on food distribution register.

Apart from the aforementioned oral and documentary evidences, C.W.-1, Nilam Kumari has been examined as Court Witness and Signature of headmaster on admission register has been marked as Exhibit C-1.

The learned Trial Court, upon appreciation of the oral and documentary evidence, recorded a finding that the informant/victim (P.W.-1) had consistently stated that the appellant, along with the other two accused, had committed gang rape upon her in the ration godown, resulting in her pregnancy and subsequent miscarriage. The medical evidence of P.W.-6 was also found to corroborate the prosecution case. The learned Trial Court further held that at the time of both occurrences, it is proved that the age of victim was 12 years 1 month 21 days and 12 years 5 months 27 days respectively and accordingly, she was a minor girl at the time of both the occurrences. The learned Trial Court further held that prosecution has proved that the appellant herein alongwith the other co-accused persons had committed gang rape of the minor victim. There is no substantial contradiction on record with respect to the point of place and manner of the aforesaid occurrence. Accordingly, relying upon the evidence of the informant/victim, other prosecution witnesses and the medical evidence, the learned Trial Court concluded that the prosecution had proved the charges under Sections 376-D of the IPC and Sections 4 & 6 of the POCSO Act beyond reasonable doubt and, consequently, convicted the appellant for the said offence and sentenced him as aforesaid.

Being aggrieved by the impugned judgment of conviction and order of sentence, the present criminal appeal has been preferred by the appellant.

Learned counsel appearing on behalf of the appellant submits that the impugned judgment and order are unsustainable in law and on facts, as the learned Trial Court has failed to properly appreciate the evidence available on record and has convicted the appellant on the basis of conjectures and surmises. It is submitted that the prosecution has failed to bring home the charge under Section 376-D of the IPC beyond reasonable doubt and that the evidence of the prosecution witnesses suffers from material inconsistencies and does not inspire confidence. Learned counsel particularly submits that the testimony of P.W.-1, the informant/victim, itself contains material discrepancies, inasmuch as she admitted in her cross-examination that the written application was prepared at the police station and further stated in her examination-in-chief that she had not disclosed the alleged occurrence to anyone for a considerable period.

Learned counsel for the appellant further submits that the medical evidence does not corroborate the prosecution version. Referring to the evidence of P.W.6, the doctor who examined the victim, it is submitted that no injury was found on her private parts and the doctor did not give any definite opinion that sexual intercourse had taken place. It is submitted that the medical evidence, therefore, does not lend support to the allegation of forcible sexual assault and the learned Trial Court failed to properly appreciate this important aspect of the case. It is also submitted that the prosecution failed to produce cogent and reliable material regarding determination of the age of the victim, which was particularly relevant in view of the provisions of the POCSO Act.

He next submits that the investigation conducted by the police was neither fair nor thorough and several material aspects of the prosecution case were left unexplained. It is submitted that the prosecution failed to establish the place and time of occurrence by reliable evidence and that the evidence of the Investigating Officers does not satisfactorily connect the appellant with the alleged occurrence. Learned counsel further submits that the defence evidence led on behalf of the appellant was discarded by the learned Trial Court without assigning proper and cogent reasons, whereas the evidence brought on record by the prosecution was accepted despite the material contradictions and deficiencies therein. He thus submits that the cumulative effect of the infirmities in the prosecution case creates serious doubt regarding the involvement of the appellant.

Lastly, learned counsel submits that the prosecution has failed to prove the essential ingredients of the offence beyond the standard of reasonable doubt and, therefore, the appellant is entitled to the benefit of doubt. On these grounds, learned counsel submits that the impugned judgment and order are liable to be set aside and the appellant deserves to be acquitted of the charges.

Learned counsel appearing on behalf of respondent no.2 (informant/victim) opposes the prayer made on behalf of the appellant and submits that the impugned judgment and order passed by the learned Trial Court are based upon a proper appreciation of the evidence available on record. It is submitted that the testimony of the P.W.-1 (informant/victim) is clear, consistent and cogent on the material particulars of the occurrence and she has specifically attributed the commission of rape to the appellant along with the other accused persons. Learned counsel submits that the evidence of the victim cannot be discarded merely on account of the fact that the occurrence was disclosed after some delay, particularly when she has furnished a plausible explanation for the same, namely, the threat extended by the accused persons and her family circumstances. It is further submitted that the minor discrepancies or omissions pointed out by the appellant do not go to the root of the prosecution case and cannot outweigh the substantive and trustworthy testimony of the victim. He submits that the learned Trial Court has duly considered the defence version as well as the medical and documentary evidence and has rightly arrived at the conclusion of guilt. It is, therefore, submitted that the evidence of the informant/victim is of sterling quality and inspires complete confidence and that no ground is made out for interference with the impugned judgment.

Learned A.P.P. appearing for the State, while opposing the appeal, submits that the prosecution has successfully established the charge against the appellant beyond reasonable doubt by leading consistent and reliable oral as well as documentary evidence. Supporting the submission of the learned counsel for respondent no.2, he submits that the evidence of P.W.1, the informant/victim, is natural, coherent and trustworthy and contains a direct account of the occurrence, which stands substantially corroborated by the surrounding circumstances and the evidence of the other prosecution witnesses. Learned A.P.P. submits that absence of external injuries or an inconclusive medical opinion regarding the factum of intercourse, by itself, cannot demolish an otherwise credible testimony of the prosecution, particularly where the occurrence relates to sexual assault and the medical examination was conducted after considerable lapse of time. The medical evidence shows that due to gang rape committed on the informant/victim by the appellant and other accused persons, the minor became pregnant and during her treatment miscarriage took place. It is further submitted that the delay in lodging the F.I.R., in the facts and circumstances, has been satisfactorily explained by the victim and, therefore, cannot be treated as fatal to the prosecution case. He further submits that the learned Trial Court has meticulously appreciated the entire evidence on record and has recorded a well-reasoned finding of guilt. Hence, the appellant has failed to demonstrate any perversity, illegality or misappreciation of evidence warranting interference by this Court, and the appeal deserves to be dismissed.

We have perused the impugned judgment and the materials available on record, including the Trial Court Records and given thoughtful consideration to the rival contentions made on behalf of the parties.

From perusal of the impugned judgment, it is explicit that the learned Trial Court convicted the appellant holding that the informant/victim is a minor i.e., below the age of 18 years at the time of occurrence, who has supported the factum of rape/penetrative sexual assault committed by the appellant and other accused persons in the godown of the appellant on 25.02.2018 at about 7:00 A.M. and thereafter in July, 2018, and the defence witnesses failed to disprove the prosecution’s case.

To examine the correctness of the finding, we will first assess the testimonies adduced by the parties.

P.W.-1 is the informant/victim and P.W.-2, P.W.-3 & P.W.-4 are the father, brother and elder uncle of the informant/victim respectively. P.W.-5 & P.W.-7 are the Investigating Officers of the case. P.W.-6 is the Medical Officer at the Sub-Divisional Hospital, Dehri, who had examined the informant/victim.

Firstly, we would like to consider the evidence of P.W.-1, who is the informant/victim of this case. She has deposed in her examination-in-chief that the occurrence was about 8-9 months prior to her deposition and that the first incident took place on 25.02.2018 at about 7:00 A.M. when she was proceeding to answer the call of nature. According to her, the three accused, namely, Vikas Kumar (appellant), Rinkal Kumar and Amit Kumar, dragged her to the godown and committed rape upon her and threatened her with dire consequences if she disclosed the incident to anyone. She stated that, out of fear, she did not disclose the incident to anyone. She further deposed that in July, 2018, when she had gone alone to the ration godown to collect ration from the dealer, Sudarshan Singh, all the three accused were present there and, on the pretext of giving her ration, took her inside the room of the godown and committed rape upon her again and threatened her not to disclose the occurrence. She further stated that thereafter she developed pain in her abdomen, whereupon her father brought medicines for her and, after taking the same, she started bleeding and subsequently suffered miscarriage at Hospital. She deposed that she thereafter went to the Mahila Police Station, accompanied by her father, and lodged the written report. She identified her signature on the written report, which was marked as Exhibit P-1. She further stated that her statement was recorded before the Court and identified her signature thereon, which was marked as Exhibit P-1/1. She also stated that she was medically examined and that she had not disclosed the occurrence to anyone prior thereto.

In her cross-examination, P.W.-1 stated that her house is situated in a lane away from the main road and is surrounded by houses. She stated that she was studying in Class VII at the time of the occurrence and had three elder brothers, who were also residing and studying in the village. With regard to the July, 2018 occurrence, she stated that she had gone alone to the godown to collect ration and had previously also gone there alone for the same purpose. She stated that she had received ration in July, 2018 and had entered her name in the register, though she did not remember how many times she had earlier collected ration. She further stated that the godown was situated in the village and that other persons also used to come there to collect ration, although no other person was present at the relevant time of occurrence. She stated that her father had been residing in the village since April, 2018, prior to which he was residing in Mumbai. She further stated that her miscarriage happened in a private clinic at Nokha. She further stated that the application was written at the police station and thereafter she returned to her village. She stated that she again went to Dehri after three days and thereafter came to Sasaram for recording of her statement before the Court. At the time of going to Dehri, she was accompanied by her father and her elder uncle. In the concluding part of her cross-examination, she denied the suggestion that no such occurrence had taken place and that she was falsely deposing before the Court.

Before proceeding further, the statement of the victim under Section 164 of the Cr.P.C requires to be taken into consideration. It is pertinent to note that during the course of investigation, the police took the informant/victim before the learned Magistrate where her statement under Section 164 of the Cr.P.C. was recorded. The learned Magistrate tested her competence to depose and on being satisfied, he recorded her statement in which she claimed that on 25.02.2018, Vikas (appellant), Amit and Rinkal forcibly took her to the godown after putting a cloth in her mouth, where all three of them committed rape upon her one after another and threatened that, if she disclosed the incident to her family, they would kill her parents and brother. She further stated that in July, 2018, when she had gone to collect ration, all the three accused again took her inside the godown and forcibly committed rape upon her and thereafter threatened her not to disclose the occurrence, due to which she remained silent. She further stated that on 16.11.2018, when she developed pain in her abdomen, her father brought medicines for her, following which she suffered miscarriage. Her statement was brought in evidence wherein she had identified her signature (Exhibit P-1/1). The comparison of her deposition before the learned Trial Court and her statement under Section 164 of the Cr.P.C. before the learned Magistrate are materially same, although they were recorded after length of time.

P.W.-2, the father of the victim, has supported the prosecution story and deposed that on the date of occurrence, i.e., 23.02.2018 at about 7:00 A.M., he was not present in the village and was residing in Mumbai. He returned to his village on 19.04.2018 on the occasion of his niece’s marriage, but no information regarding the occurrence was given to him at that time. He stated that subsequently, when the informant/victim (P.W.-1) complained of abdominal pain, he gave her medicines, but when the pain did not subside, he again gave her medicines, whereafter she started bleeding and disclosed to him that Vikas, Deepak and Amit had committed rape upon her. He further stated that the victim (P.W.-1) told him that she had been taken to the ration godown and raped on two occasions and that, during one such occurrence, a cloth had been put in her mouth. He stated that the victim had become pregnant and thereafter he took her to the Mahila Police Station, where the case was instituted, and she was medically examined. He further deposed that the victim herself had instituted the case, that he had disclosed the facts to the police, and that her statement was recorded before the Court. He identified accused Vikas Kumar, who was present in Court, as well as the other accused persons who were not present, and stated that he had also identified them.

In his cross-examination, P.W.-2 stated that he had been residing away from his village for about six months and that he had earlier been residing at his village. He stated that he reached the Mahila Police Station at Dehri at about 7:30 A.M., where his daughter gave a written report. According to him, the then Station House Officer, Shweta Swaraj, rewrote the application as the handwriting of his daughter was not clear, and the rewritten application bore the signatures of both himself and the informant/victim. He stated that thereafter he took the victim back to village. He further stated that after about two days he again went to the Mahila Police Station at Dehri, where the Station House Officer gave him a paper and directed him to take the victim to the Sub-Divisional Hospital, which he accordingly did. He denied the suggestion that he had not informed the police about his having taken the victim to the hospital, about his return to the village on 19.04.2018, or about the victim having suffered abdominal pain on 16.11.2018. He further stated that he went to Dehri for the third time and, after two or three days, got an ultrasound conducted at a private facility. He admitted that he had not disclosed the occurrence to anyone.

The brother of the informant/victim i.e., P.W.-3 has deposed that the occurrence took place on 25.02.2018 at about 7:00 A.M. when the victim had gone to answer the call of nature. He stated that Vikas Kumar, Rinkal and Amit took her to the godown of Vikas Kumar and committed rape upon her one after another and threatened her that, if she disclosed the occurrence to anyone, they would kill her family members. He further stated that again in June, 2018, when the victim was going to answer the call of nature, all the three accused took her to the godown of Vikas Kumar and committed rape upon her. He stated that in November, 2018, the victim developed severe pain in her abdomen and informed her father, who gave her medicine, but when the pain did not subside, she was taken to the hospital where she suffered miscarriage. He stated that the victim had not disclosed the occurrence earlier and that after the miscarriage she disclosed that Vikas Kumar, Rinkal and Amit had committed rape upon her. He further stated that his father went to Dehri Police Station on 23.11.2018 for instituting the case. Initially, he stated that his statement was not recorded by the police, but thereafter stated that the police had recorded his statement. He identified accused Vikas Kumar, who was present in Court, and stated that he could also identify the other accused persons who were not present in Court.

In his cross-examination, P.W.-3 stated that he had not seen the occurrence with his own eyes and that the victim had not disclosed the occurrence to him. He stated that his father had gone with the victim for instituting the case, but he had not accompanied them. He further stated that the police officer came to his village two or three days after institution of the case, though he did not remember the date. He stated that on 23.11.2018 his father and sister had gone to Dehri for instituting the case. He stated that he met the police at his house as well as at the godown of Vikas Kumar and that he disclosed about the occurrence to the police at the godown of Vikas Kumar, in the presence of his father and other villagers. He further stated that he used to sometimes go to the ration shop to collect ration, though he had never gone there with his sister. He stated that whenever he went to collect ration, he used to put his signature in the register.

P.W.-4, uncle of the victim, also supported the prosecution’s case and deposed that the occurrence took place on 25.02.2018 at about 7:00–8:00 A.M. with the daughter of his brother. He stated that when the victim was going to answer the call of nature in the morning, Rinkal, Vikas and Amit caught hold of her, took her to the ration godown and committed rape upon her. He further stated that after the occurrence, the victim narrated the entire incident to her father, who thereafter informed him about the same. He stated that he was interrogated by the police at the police station and identified accused Vikas, who was present in Court.

In his cross-examination, P.W.-4 stated that the occurrence had taken place on 25.02.2018 and that he was informed about the occurrence on 26.02.2018. He stated that he did not know whether, after the occurrence, his brother had given any information regarding the incident to any police officer, nor did he know whether his brother had instituted any case in the month of February. He specifically stated that he had come to know about the occurrence from his brother (P.W.-2).

On the value of the evidence of victim, the Hon’ble Supreme Court in case of, Manak Chand alias Mani v. State of Haryana, reported in (2024) 20 SCC 561 held that the evidence of a victim in a case of rape is of the same value as that of an injured witness. It is now well settled that if the evidence of a victim is reliable, no corroboration is necessary. The broad principle is that an injured witness was present when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants. The Court can rely on the victim as a sterling witness without further corroboration, but the quality and credibility must be exceptionally high. However, the statement of the victim ought to be consistent from the beginning to end (except minor inconsistencies) i.e., from the initial statement to the oral testimony, without creating any doubt qua the prosecution case.

In the present case, the deposition of the victim (P.W.-1), recorded before the learned Trial Court, substantially corroborates her fardbeyan as well as her statement recorded under Section 164 of the Cr.P.C., save and except certain minor inconsistencies which do not affect the core of the prosecution case. It is well settled that minor contradictions, variations or insignificant discrepancies, which do not go to the root of the prosecution version, cannot be made the basis for discarding otherwise credible and trustworthy evidence. The victim of a sexual offence is not to be treated as an accomplice after the crime, and her testimony, if found reliable and cogent, can by itself form the basis of conviction. On a careful and holistic appraisal of the testimony of the victim (P.W.-1), in the present case, this Court finds that the discrepancies pointed out in her evidence do not strike at the substratum of the prosecution case or undermine its fundamental version. Her testimony is consistent on the material particulars concerning the occurrence, the identity of the accused and the manner in which the offence was committed. Accordingly, the evidence of the victim inspires confidence and is found to be wholly reliable, trustworthy and of sterling quality.

The father of the victim (P.W.-2), her brother (P.W.-3) and her uncle (P.W.-4) have also corroborated the testimony of the victim (P.W.-1) on the material particulars of the prosecution case. Though certain contradictions and omissions are discernible in the depositions of P.W.-2, P.W.-3 and P.W.-4, the same are minor in nature and do not affect the substratum of the prosecution case. On the material aspects, the evidence of these witnesses remains consistent and lends assurance to the testimony of the victim (P.W.-1). It is also well settled that some variation in the observation, recollection and narration of a sequence of events is natural, particularly when the witnesses are deposing after a considerable lapse of time, and such minor discrepancies cannot, by themselves, be treated as sufficient to discredit otherwise consistent and corroborative evidence.

Both the Investigating Officers, namely, P.W.-5 and P.W.-7 have been examined on behalf of the prosecution. P.W.-7, Sweta Swaraj, the first Investigating Officer of the case, deposed that on 10.11.2018 she was posted as Station House Officer of Dehri Mahila Police Station and, on the basis of the written statement of the informant/victim (P.W.-1), she instituted the police case and took up the investigation herself. She identified the formal F.I.R., bearing her handwriting and signature, which was marked as Exhibit P-4. After taking up investigation, she recorded the detailed statement of the informant/victim and the statement of her father as a witness. It is further deposed that she sent the victim for medical examination and thereafter proceeded to the place of occurrence. According to her, the place of occurrence was the godown of Sudarshan Singh, situated at the outskirts of the village under Nokha Police Station, where government ration articles were stored. She deposded that the godown was a one-storied pucca building having a large iron gate at its main entrance, consisting of five rooms and one hall-like room in which a flour mill was installed. She stated that the occurrence was disclosed to have taken place with the victim in the western room situated at the south-western corner of the godown, where rice meant for ration and empty bags were lying. She further stated that she recorded the statements of witnesses namely, D.W.-1, P.W.-3 and one another person at the place of occurrence. Thereafter, she conducted raids at the houses of the accused persons, arrested Vikash (appellant herein) and Amit and forwarded them to the Court. She further stated that the statement of the victim under Section 164 of the Cr.P.C. was recorded, her medical report was received and incorporated in the case diary, and the victim produced a certificate relating to her age, namely, an identity card showing her to be a student of Class VII of the Government Middle School, which she received. Subsequently, on account of her transfer, she handed over the investigation to the then Officer-in-Charge, Shobha Rani (P.W.-5).

In her cross-examination, P.W.-7 stated that she had read the written application of the informant/victim. She admitted that, although according to the F.I.R. the mother of the victim was mentally disturbed and her father was residing in Mumbai, she did not specifically investigate these aspects. She also did not investigate as to from which shop the father of the victim had procured the medicines given to the victim, or on whose advice the medicines were given. She stated that she did not consider it proper to verify the age of the victim on the basis of the school identity card. She further stated that she had mentioned in paragraph 16 of the case diary that she had made inquiries from other persons at the place of occurrence, but they were not ready to give evidence. She admitted that she had not conducted any investigation regarding the ration shop or as to whether the victim had ever obtained any ration article from the concerned P.D.S. shop. She further stated that no criminal antecedent of accused Vikash Kumar was found. She denied the suggestion that the report given by the victim and her father had been changed and that she herself written another report. She also denied the suggestion that the investigation conducted by her was defective and that accused Vikash Kumar was a person of good character.

Another Investigating Officer, P.W.-5, Shobha Rani, stated in her examination-in-chief that on 15.01.2019 she was posted as the Station House Officer of Dehri Mahila Police Station and on the same date the investigation of the case was handed over to her by Sub-Inspector Sweta Swaraj. She stated that the investigation had already been completed and, thereafter, charge-sheet nearing C.S. No. 02 of 2019 dated 27.01.2019 was submitted against accused Vikash Kumar (appellant), Rinkal Kumar and Amit Kumar for the offences punishable under Section 376-D of the IPC and Sections 4 & 6 of the POCSO Act. She identified the charge-sheet as being in her handwriting and bearing her signature, which was marked as Exhibit P-2.

In her cross-examination, P.W.-5 stated that she had not collected any evidence in the course of the investigation and had submitted the charge-sheet in accordance with the directions of her superior officer.

On a careful scrutiny of the evidence of the Investigating Officers, this Court noticed that the investigation, in the facts and circumstances of the present case, was duly carried out. The written report of the victim was taken on record and the formal F.I.R. was instituted. The first Investigating Officer (P.W.-7) recorded the statement of the informant/victim and her father, visited the place of occurrence, inspected the godown where the occurrence was alleged to have taken place and recorded the statements of the witnesses present there. The victim was sent for medical examination and her statement under Section 164 of the Cr.P.C. was recorded before the learned Magistrate. The Investigating Officer also obtained the school identity card of the victim showing her to be a student of Class VII in support of her age. The medical report was received and incorporated in the case diary. Thereafter, raids were conducted at the houses of the accused, pursuant to which accused Vikash Kumar (appellant) and Amit Kumar were arrested and forwarded to the Court. Subsequently, after completion of the investigation, charge-sheet was submitted against Vikash Kumar (appellant), Rinkal Kumar and Amit Kumar under Section 376-D of the IPC and Sections 4 & 6 of the POCSO Act. Thus, the evidence of the Investigating Officers, read as a whole, does not indicate any material lapse in the investigation so as to discredit the otherwise consistent and trustworthy testimony of the informant/victim.

The evidence of Dr. Kanchan Singh (P.W.-6) is to the effect that on 23.11.2018 she was posted at Sub-Divisional Hospital, Dehri. On that day, at about 04:40 P.M., she examined the victim and prepared the medical report which is marked as Exhibit P-3. Observations of the P.W.-6 are recorded herein below:

In her cross-examination. P.W.-6 stated that it is difficult to say that rape is committed or not and she did not find any sign of rape. However, on the Court question, she explained that the victim was four months pregnant and had got her pregnancy terminated a few days prior to the examination. She further stated that no injury was found on any part of the body of the victim and stated that the blood stain was found due to recent abortion. She affirmed that her medical report was correct.

Furthermore, it is pertinent to analyse the statement of the sole Court Witness, who was In-charge Headmistress of the school where the informant/victim was studying at the time of occurrence. C.W.-1, Nilam Kumari, deposed that in compliance with the direction of the Court, she produced before the Court the admission register of the school of the victim. She stated that the said admission register was prepared in the year 2004-05 and contained 192 pages. At serial no. 07 on page no. 57 of the admission register, the victim was admitted in the said school for the first time on 20.04.2011 in Class-I, wherein her date of birth was recorded as 04.01.2006. The admission was made by the then Headmaster, late Jagdish Singh, who had also put his signature thereon, which she identified. On the basis of such identification, the relevant document was marked as Exhibit-C/1.

In her cross-examination, C.W.-1 stated that she had joined that Secondary School in the year 2007 and that the admission register was not in her handwriting. She further stated that she could not say on what basis the date of birth of the victim had been entered in the admission register, as she was not posted there at the relevant time. She clarified that she was deposing only on the basis of the entries contained in the admission register.

The medical and ocular evidence, when appreciated conjointly with the documentary evidence on record, lends substantial assurance to the prosecution case. The testimony of the informant/victim (P.W.-1), a minor girl, is clear, cogent and consistent on the material particulars of the occurrence and the identity of the accused persons. Her version is duly supported by the contemporaneous circumstances, her statement recorded under Section 164 of the Cr.P.C., the evidence of the prosecution witnesses and the medical evidence, particularly the factum of her pregnancy and subsequent abortion. The absence of external injuries or definite signs of rape, as noticed by P.W.-6, by itself does not discredit the testimony of the victim, particularly when the occurrence is otherwise established through her reliable and trustworthy evidence. The cumulative appreciation of the ocular, medical and documentary evidence has fully corroborated the prosecution’s version and that the testimony of the victim is clear, cogent, consistent and inspires confidence.

During the course of trial, the defence has examined altogether three witnesses. D.W.-1, Birendra Kumar Singh, deposed that the father of the victim and accused Vikash Kumar (appellant) belonged to his village and that the PDS shop was in the name of the grandfather of Vikash Kumar. He further deposed that the father of the victim had gone to the said shop to collect ration and demanded more ration, which was refused, resulting in an altercation and dispute. He stated that Vikash Kumar (appellant) was a person of good character and that, on account of the said dispute, the father of the victim had threatened to implicate them in a false case and had thereafter falsely implicated Vikash Kumar. He stated that, to his knowledge, no incident of any kind had taken place with the victim.

In his cross-examination, D.W.-1 stated that in connection with the present case he had given evidence before the police that the accused had been falsely implicated.

D.W.-2, Dinesh Singh, deposed that he knew both the victim and the accused Vikash in the present case. He stated that no incident had taken place with the victim either on 25.02.2018 or in July, 2018. He further deposed that he had disclosed to the police in his statement that the grandfather of Vikash Kumar was running the PDS shop and that the father of the victim used to obtain ration from the said shop. According to him, there had been a dispute regarding ration between them and the present case had been instituted on account of the said dispute.

D.W.-3 had proved Exhibit- A & B i.e., signature of Sudarshan Singh on written food distributor register.

The accused (appellant herein), in his statement recorded under Section 313 of the Cr.P.C., has not taken any specific or substantive defence that the father of the victim had any dispute with him or his family in relation to the supply of ration from the PDS shop, or that the present case was instituted on account of any such dispute. Although the defence witnesses, particularly D.W.-1 and D.W.-2, have attempted to set up a case that an altercation had taken place between the father of the victim and the PDS dealer on account of a demand for excess ration and that, due to the said dispute, the accused was falsely implicated, no such defence has been brought out in the statement of the accused under Section 313 of the Cr.P.C. Moreover, the defence version has not been shown to have been supported by any contemporaneous material or by any reliable independent evidence. The testimony of the defence witnesses, therefore, does not furnish a credible explanation for the consistent and cogent testimony of the victim and the other prosecution witnesses. The learned Trial Court has thus rightly declined to accept the defence version, which appears to be an afterthought and lacks sufficient evidentiary foundation.

As the appellant has also been convicted under the provisions of the POCSO Act, it would be apposite to consider the statutory presumptions contained in Sections 29 and 30 thereof. Section 29 raises a presumption as to the commission of the offences contemplated under the POCSO Act once the foundational facts are established by the prosecution, whereas Section 30 provides for a presumption regarding the requisite culpable mental state of the accused, where such mental state is required for the offence. These provisions constitute a statutory departure from the general rule of presumption of innocence and cast a reverse burden upon the accused, while at the same time preserving his right to rebut the presumptions by bringing on record a probable defence.

It is, however, equally well settled that the presumption under Section 29 of the POCSO Act does not arise in vacuum and operates only after the prosecution has established the foundational facts necessary to attract the provision. In the present case, the prosecution was required, in the first instance, to establish that the victim was a child within the meaning of the POCSO Act and that she had been subjected to the alleged sexual assault by the appellant. Once the foundational facts are established, the statutory presumption under Section 29 comes into operation and the burden shifts upon the accused to rebut the same. Such rebuttal may be made either by eliciting material during the cross-examination of the prosecution witnesses or by adducing defence evidence, and the standard applicable to such rebuttal is that of preponderance of probabilities. The prosecution, however, is not required to establish its case with mathematical precision; what is required is such degree of probability as would enable a prudent person to believe in the existence of the facts in issue. The accused is entitled to the benefit of reasonable doubt, but not to every fanciful, speculative or imaginary doubt.

In the facts of the present case, the foundational facts necessary for attracting the statutory presumption stand established from the evidence on record. The prosecution has led evidence regarding the age of the victim through the school records produced before the learned Trial Court by C.W.-1, Nilam Kumari, the In-charge Headmistress, which records the date of birth of the victim as 04.01.2006. The victim was admitted in Class-I on 20.04.2011, and the relevant entry in the admission register was duly proved and exhibited. The victim (P.W.-1) herself consistently stated about the sexual assault committed upon her by the appellant and the other accused persons, and her testimony is corroborated on material particulars by her statement under Section 164 of the Cr.P.C., the evidence of her father (P.W.-2), brother (P.W.-3) and uncle (P.W.-4), as well as the surrounding circumstances and medical evidence regarding her pregnancy and subsequent abortion. Thus, the prosecution has established the essential foundational facts, namely, that the victim was a child and that the alleged sexual assault was committed upon her.

Once the aforesaid foundational facts are established, the presumption under Section 29 of the POCSO Act operates against the appellant. The appellant had the opportunity to rebut the said presumption either through effective cross-examination of the prosecution witnesses or by adducing a probable defence. However, the defence evidence led by the appellant, suggesting a dispute relating to the PDS shop and consequent false implication, does not inspire confidence and does not probabilise the defence version. The appellant has, therefore, failed to rebut the statutory presumption on the touchstone of preponderance of probabilities. Consequently, the presumptions contemplated under Sections 29 and 30 of the POCSO Act operate against the appellant in the facts and circumstances of the present case.

It is, therefore, necessary to examine whether the prosecution has conclusively established the foundational fact regarding the age of the victim, since the age of the victim assumes crucial significance for attracting the provisions of the POCSO Act. On a consideration of the testimony of C.W.-1 and the school admission register produced from the custody of the school, duly exhibited as Exhibit C-1, coupled with the other evidence on record, this Court finds that the prosecution has successfully established that the victim was below eighteen years of age at the relevant time. The statutory protection afforded to a child under the POCSO Act is, therefore, clearly attracted in the present case.

On the question of delay in lodging the F.I.R., it is well settled that mere delay in setting the criminal law in motion, by itself, cannot be treated as a ground to discard an otherwise trustworthy prosecution case. The Court is required to examine the circumstances in which the delay occurred. In cases involving sexual assault upon a minor, the conduct of the victim and her family cannot be judged by applying an abstract or mechanical rule requiring immediate disclosure. In the present case, the victim was a minor girl studying in Class VII and, according to her consistent version, she was threatened by the accused persons with dire consequences to herself and her family if she disclosed the occurrence. She specifically stated that, out of fear, she did not disclose the occurrence to anyone. Her father (P.W.-2) was also not present in the village at the time of the first occurrence and returned only on 19.04.2018. Subsequently, when the victim developed abdominal pain and bleeding, the matter was disclosed to her father, following which she was taken for medical treatment and ultimately suffered miscarriage. Thereafter, the victim was taken to the Mahila Police Station and the case was instituted. Thus, having regard to the age of the victim, the threats allegedly extended to her, the fact that her father was away from the village and her mother being mentally ill, and the subsequent medical complications, the delay in lodging the F.I.R. cannot, in the facts of the present case, be treated as fatal to the prosecution. The F.I.R. is essentially a corroborative piece of evidence and the delay in its registration, when otherwise satisfactorily explained by the circumstances emerging from the evidence, cannot outweigh the substantive and reliable testimony of the victim.

As discussed hereinabove, we have carefully scrutinized the oral as well as documentary evidence available on record, particularly the deposition of the victim (P.W.-1), her statement recorded under Section 164 of the Cr.P.C., the evidence of P.W.-2, P.W.-3 and P.W.-4 and the evidence of the Investigating Officers (P.W.-5 and P.W.-7). The victim has consistently supported the occurrence and attributed specific acts to the accused persons. Her testimony with regard to the material particulars of the occurrence and the identity of the accused persons finds substantial corroboration from her statement under Section 164 of the Cr.P.C. and the evidence of her father, brother and uncle (P.W.-2, P.W.-3 and P.W.-4, respectively). The medical evidence (Exhibit P-3) also establishes that the victim was four months pregnant and had undergone termination of pregnancy a few days prior to her medical examination, with the doctor noticing blood stains attributable to recent abortion. Merely because no external injury or definite sign of rape was found on her person, the otherwise reliable testimony of the victim (P.W.-1) cannot be discarded. The absence of physical injuries, particularly in a case of sexual assault upon a minor, is not by itself inconsistent with the occurrence alleged by the prosecution. The evidence on record, when considered cumulatively, lends assurance to the testimony of the victim.

On an overall appraisal of the evidence, we find that the learned Trial Court has committed no error in appreciating the prosecution evidence and in recording the finding of guilt against the appellant. The testimony of the victim is consistent on the material particulars and inspires confidence. The minor discrepancies and omissions pointed out by learned counsel for the appellant do not touch the substratum of the prosecution case and are insufficient to discredit the otherwise cogent and trustworthy evidence. Also, the foundational facts necessary for attracting the provisions of the POCSO Act having been established beyond reasonable doubt, the statutory presumptions under Sections 29 and 30 of the POCSO Act are attracted. The appellant has failed to rebut the said presumptions even on the touchstone of preponderance of probabilities. The defence version regarding the alleged dispute relating to the PDS shop also does not inspire confidence and does not furnish any plausible explanation for the consistent testimony of the victim and the corroborative evidence on record.

In view of the foregoing discussion we are of the considered opinion that the prosecution has succeeded in establishing the guilt of the appellant beyond reasonable doubt. The testimony of the victim is found to be reliable, cogent and of sterling quality, and the discrepancies sought to be relied upon by the defence are minor and do not affect the core of the prosecution case. The learned Trial Court has correctly recorded the conviction of the appellant. No ground has been made out for interference with the impugned judgment and order of conviction and sentence.

In the result, the present appeal, being devoid of merit, is dismissed.

Let a copy of this judgment, along with the Trial Court Records, be transmitted to the learned Trial Court forthwith.