IN THE HIGH COURT AT CALCUTTA

Criminal Appellate Jurisdiction

(APPELLATE SIDE)

Present:

The Hon’ble Justice Rajasekhar Mantha

And

The Hon’ble Justice Smita Das De

CRA 281 of 2019

Maharaj Halder

Vs.

The State of West Bengal & Anr.

For the Appellant : Mr. Rajat Sinha Roy,

: Mr. Surajit Basu

For the State

: Mr. Subrata Karmakar, Ld. Amicus

Curiae,

Hearing Concluded on : 03/07/2026

Judgment on : 08/07/2026

Smita Das De, J.:-

1. The appellant/convict has challenged in the instant appeal a judgment

and order of conviction dated 18

th

February, 2019, of the Additional

District and Sessions 1

st

Court-cum-Special Judge under the POCSO

Act, 2012, at Sealdah, 24 Parganas (South), in Special Case No. 52 of

2018, thereby convicting the appellant under Section 6 of the POCSO

Act, 2012.

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2. Before entering into the arguments by the parties on the merits and

demerits of the impugned judgment, it is required that the FIR, evidence

and other relevant materials on record be looked into.

3. The FIR has been lodged by one, Lakhhmi Halder on 12

th

October 2018

being registered as Tala Police station Case No. 98 of 2018 dated

12.10.2018 under Section 4 and 6 of the POCSO Act, 2012 and 376 (n)(i)

of the IPC. The FIR narrates the incident as follows:-

i) The complainant has stated therein that she along with the

appellant / her husband and two daughters reside at the

address 20/1/1, Belgachia Road, Kolkata 700037 within the

jurisdiction of Tala Police Station. Her younger daughter/ victim

is a 16 year old girl. The victim suddenly felt indisposed on 10

th

October, 2018 and had been brought to the R. G. Kar Hospital

with complaints of severe stomach pain. On Doctor’s advice she

has been immediately admitted therein. After several medical

examinations the victim has been found to be three months

pregnant. The complainant has further stated that due to foetus

developing in the fallopian tube she suffered profuse bleeding,

which rendered her condition critical. The Doctor advised

immediate termination of pregnancy. Accordingly, as per

medical advice the abortion has been carried out and the

patient has been shifted to the Intensive Care Unit. It has been

further stated in the FIR, that after regaining consciousness,

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the victim stated that, “My father Maharaj Halder is responsible

for this. He had physical relationship with me for past three-four

months. On the day before last Mahalaya, he forcefully made

physical relationship with me. My father told me that if I disclose

this to any one he would kill me and my mother.” The

complainant has stated in the FIR, that her husband, i.e. the

present appellant, is responsible for the incident and has

sought his punishment.

4. Charges have been framed against the appellant on 12

th

December,

2018, under Section 4 and 6 of the POCSO Act, 2012 and 376(2) (i) of the

IPC.

5. During the trial the prosecution examined 11 witnesses including the

Investigating Officer. The appellant has been examined under Section

313 of CrPC and the Trial court has passed the judgment of conviction

and an Order of sentence, which is impugned in the instant appeal.

6. From amongst the 11 witnesses cited by the prosecution, the PW11 is

the Investigating Officer, PWs 5, 6, 7 and 8 are the Doctors, PWs 2 and 9

are the complainants mother of the victim and her elder sister

respectively and close relatives of the victim PW4, Suman Singh being

the son from the first wife of the present appellant and a close

acquaintance of the family, PW10 is the friend of the elder sister of the

victim, PW3 is a record keeper of the hospital and is a formal witness and

finally PW1 is the victim girl herself.

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7. The victim girl, and her elder sister with the complainant mother (PWs 1,

9 and 2 respectively) have supported the prosecution case in their

depositions.

8. On 2

nd

January, 2018, the victim deposed that her father has sexually

assaulted over the preceding previous three months. She has been

hospitalized on account of abdominal complications and upon

examination found to be pregnant. She further deposed that she has

already narrated the incident to the Magistrate who recorded her

statement under 164 CrPC, and also to the Doctor who has been treating

her. The victim identified her statement recorded by the Magistrate,

doctor as well as the appellant, who has been present in the Doc. The

complainant / PW2 corroborated the evidence of the victim / PW1 and

stated in her examination in chief that the victim has disclosed the

appellant’s involvement in the said incident. The victim’s elder sister /

PW9 have deposed that she came to know about the incident two days

after Mahalaya during the night. She stated that she learnt from the

Doctor that her sister has been suffering from ECTOPSI pregnancy with

clotted blood in her abdomen. She further stated that she has been

informed by her sister that the appellant has been responsible for the

same. The PW9 is the scribe of the FIR and has deposed that she drafted

it at the instance of her mother.

9. Two other witnesses have been cited by the prosecution, as independent

witnesses namely, PWs 4 and 10. Amongst them Suman Singh / PW4 is

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the son from the first wife of the present appellant. He has not disclosed

the said fact in his evidence. He deposed that upon reaching the hospital

he came to learn about the victim’s pregnancy of which he did not have

any prior knowledge. He further deposed that he has been informed by

the victim’s sister. Similarly PW10 has stated in her evidence that she

reached the hospital after being informed by PW9 about the victim’s

pregnancy.

10. Upon examining the evidence of the medical witnesses i.e. PWs 5,

6, 7 and 8, the following facts have emerged. PW5 has examined the

victim on 26

th

October, 2018 and upon examination she opined that

there has been evidence of ruptured hymen, which is suggestive of

sexual intercourse in the past. Evidence of recent pregnancy has also

been noted. She further noted, a partly healed surgical scar on the lower

and anterior abdominal wall, indicating intervention 7 – 10 days prior.

The Doctor also recorded the history given by the victim, namely

repeated sexual abuse by her father /the present appellant over the past

few months and her sudden illness on 8

th

October 2018 which resulted

in unconsciousness and necessitated immediate hospitalization. The

findings recorded in the medical examination report as an exhibit in the

case are quoted below:-

“1. abdomen flabby, linea ligra (faint) detected, a partly healing

surgical scar of 5 and ½ length 9 stich marks placed 4 inches

below umbilicus, 3.5 inches to the right of anterior mid line of the

right side and 2 inches on the left side, 3 inches below the right

anterior superior iliac spine (right end) and similarly left end; scar

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is transparently placed over the lower part of the anterior

abdominal wall mildly pigmented at places. No. 2. General

examination---- No. 1 labia majora darkened slightly flattened, no

injuries presence, No. 2. labia minora thickened, darkened, mildly

protruding to labia majora on full abduction of the thighs. No

injuries presence. No. 3 hymen – faibriated, an old heal tear at 3 O’

Clock position. No. 4 vagina one finger loosly moving in all

direction, Mildly blood stained serous discharged. No injuries

detected.”

11. On 12

th

October 2018 the PW6 examined the victim and it has

been noted by the Doctor with regard to the history of the alleged

commission of rape by the present appellant. The element of commission

of rape found by the Doctor is quoted below:-

“1. Labia Majora pigmented, no injury, nipple black – hymen

raptured --- old raptured. Per vaginal examination I found no active

bleeding.”

12. PW7 has deposed that he has been present at the time of

examination of the victim by PW6 on 13

th

October 2018 and witnessed

the entire process including the preparation of the reports which he

signed. PW8 has examined the appellant and prepared the Potency

Report, which has accordingly been exhibited during the trial. The

finding of PW8 has been that the appellant is potent and capable of

performing sexual intercourse. However, in cross examination he stated

that the sperm count of the person has not been determined during the

examination.

13. On the basis of the evidence, the trial Court held that the guilt of

the appellant has been proved beyond reasonable doubt. Accordingly, the

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appellant has been convicted and sentenced vide the impugned judgment

dated 18

th

February 2019.

14. Mr. Rajat Sinha Roy, the Learned Counsel appearing for the

appellant has argued that the entire prosecution case has been

fabricated to unjustifiably implicate the appellant. He contends that the

prosecution materials are unfounded and baseless. It is further

submitted that the deposition of PW4 regarding regular visits to the

victim’s house constitutes a material fact that raises doubt about the

credibility of the case. Furthermore, a conviction cannot rest solely on

the evidence of the victim and her mother.

15. The Learned Counsel for the appellant refers to the FIR to submit

that the victim has stated to have been hospitalized and operated on 10

th

October 2018 while FIR has been lodged on 12

th

October 2018. The

mother, PW1 has not deposed on this fact in her evidence. Though

according to him she should have deposed on the said issue which

thereby amounts to deliberate suppression of the relevant and material

facts in evidence by the said witness, which raises serious doubts as to

the truthfulness of her testimony. It is further submitted that the delayed

lodging of the FIR suggests an afterthought and tutored version on the

part of the complainant. He also pointed out that during the cross-

examination of the said witness it has been revealed that since the

witness is an illiterate person, the FIR could not have been written by

them. In defense, it has been submitted that the admission of the

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witness regarding their close acquaintance with and the regular visit by

PW4 / Suman Singh to the house of the victim, raises substantial doubt

regarding the alleged involvement of the present appellant in the offence

and is only indicative of his innocence. It is submitted that since the

evidence provided by the victim and her mother is not trustworthy, a

judgment of conviction and sentence cannot be sustained solely on the

basis of the same. He has therefore, pressed for setting aside the

impugned judgment and order and for the release of the appellant on a

finding of not being guilty of the offence alleged.

16. The State is represented by Mr. Subrata Karmakar, the Learned

AMICUS, CURIAE. According to the State the evidence of PW2 and in

particular, that of the victim, is unimpeachable in nature. According to

the State on the basis of the evidence of atleast these two witnesses, the

conviction and the sentence of the present appellant are fully

substantiated. Additionally the Potency report of the appellant as well as

the Medical evidence lends strong support to the prosecution case. It is

submitted that any discrepancies, being minor in nature, would not

disprove the case established on record through evidence beyond

reasonable doubt. Hence, it has been submitted that the impugned

judgment calls for no interference by this court and the instant appeal

may be dismissed for the reasons as stated above.

17. In this context it is pertinent to observe that the law is now well

settled that corroboration, by its nature is only a rule of prudence and

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not a statutory requirement. For an offence of aggravated penetrative

sexual assault does not depend upon the number of witnesses examined

by the prosecution. The testimony of a solitary witness, including that of

the victim herself, if found wholly reliable, trustworthy and of sterling

quality, is sufficient to sustain a conviction without any independent

corroboration. It is equally settled that where the testimony of such a

witness suffers from inherent improbabilities, material inconsistencies,

unreasonable conduct or circumstances raising reasonable doubt

regarding its truthfulness, the court would be justified in seeking

assurance from other evidence and in absence thereof extend the benefit

of doubt to the accused. Thus, in the present case if the evidence of the

victim stood unimpeached, unshaken, and of Stirling quality the

conviction of the appellant could have been sustained solely on the

strength thereof.

18. The legal position governing appreciation of the testimony of a

prosecutrix is now well settled. In State of Punjab versus Gurmit

Singh reported in (1996) 2 SCC 384, the Supreme Court held that the

testimony of a victim of sexual assault stands on a footing higher than

that of an injured witness and ordinarily does not require corroboration.

However, the Court simultaneously emphasized that such testimony

must inspire confidence and must be free from circumstances giving rise

to doubt regarding its truthfulness. Thus, while corroboration is not a

rule of law, credibility remains the indispensable foundation of

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conviction. The aforesaid principle has been further explained in

Narender Kumar versus State (NCT of Delhi) reported in (2012) 7 SCC

171, wherein it has been held that though conviction may rest upon the

sole testimony of the prosecutrix, such testimony must be of such quality

that the Court can safely place implicit reliance thereon. The Court

further held that where the evidence suffers from infirmities or creates

suspicion regarding its veracity, the Court would be justified in seeking

corroboration before recording a conviction.

19. The doctrine of a "sterling witness" has been authoritatively

formulated in Rai Sandeep @ Deepu versus State (NCT of Delhi)

reported in (2012) 8 SCC 21. The Supreme Court held that a sterling

witness is one whose version is of such quality that it remains consistent

throughout, withstands cross-examination, accords with surrounding

circumstances and can be accepted without hesitation. Such testimony

should be natural, probable and free from embellishment. Tested on the

touchstone of the said doctrine, the evidence of PW.1 in the present case

does not satisfy the characteristics of a sterling witness. The prolonged

silence of the victim, the emergence of the accusation only after detection

of pregnancy and the absence of any contemporaneous disclosure create

circumstances rendering the testimony susceptible to doubt and

therefore incapable of being accepted without careful scrutiny. Upon a

careful scrutiny of the evidence on record, this Court finds several

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circumstances which prevent the testimony of the victim and her mother

from attaining the status of wholly reliable evidence.

20. The prosecution case proceeds on the allegation that the appellant,

being the father of the victim, has repeatedly subjected her to sexual

intercourse for a period of approximately three months. Significantly,

during the entire period of such alleged repeated acts, the victim

admittedly did not disclose the matter to any person whatsoever. She did

not disclose the same to her mother, who has been residing in the same

household; she did not disclose the same to her elder sister; nor did she

disclose the same to any relative, friend or neighbour. More importantly,

even when she became seriously ill and suffered severe abdominal

complications requiring urgent hospitalization, no allegation against the

appellant surfaced. It is only after the medical examination at the

hospital revealed that the victim has been pregnant that the allegation

implicating the appellant came to be disclosed.

21. The chronology of events assumes considerable importance. The

FIR itself records that on 10

th

October 2018 the victim has been admitted

to the hospital with severe abdominal pain. Medical examinations

revealed pregnancy. The pregnancy has been found to be ectopic in

nature, requiring immediate medical intervention. The pregnancy has

been terminated vide surgical procedure following which immediate

medical attention has been provided.

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22. The abortion proceedings and subsequent statements reveal that

the allegations against the appellant has been disclosed only after the

event. Consequently, the FIR has been registered on 12

th

October 2018.

Thus, the accusation against the appellant emerged only after the

pregnancy has been medically detected and the abortion has been taken

place. Such chronology constitutes a relevant circumstance in assessing

the credibility of the prosecution version.

23. This Court is conscious of the settled principle that delay in

disclosure of sexual offences is not necessarily fatal and cannot be

viewed with the same rigidity as in ordinary criminal cases. Victims may

remain silent due to fear, trauma, shame or coercion. Nevertheless,

where prolonged silence is sought to be explained on the ground of threat

or intimidation, the explanation must appear reasonably probable in the

backdrop of the proved facts and circumstances. In State of Himachal

Pradesh versus Sanjay Kumar reported in (2017) 2 SCC 51 and

several earlier decisions, it has been recognised that victims often remain

silent due to fear, shame, social stigma or psychological trauma.

However, the principle does not imply that every delayed disclosure must

automatically be accepted irrespective of surrounding circumstances.

The Court must still examine whether the explanation for silence appears

probable in the factual backdrop of the particular case.

24. In the considered view of this court having regard to the totality of

the circumstances, the conduct of the victim appears unnatural and

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inconsistent with normal human behaviour. She remained silent during

the entire period of the alleged repeated acts, during her illness, during

her admission to hospital and even when examined by the Medical

Professional. The accusation surfaced only after medical examination

revealed pregnancy and after the abortion procedure has already been

performed. Such conduct does not appear consistent with the ordinary

course of human behaviour and therefore constitutes a relevant

circumstance affecting the weight to be attached to her testimony. The

conduct attributed to the victim, viewed in the totality of the

circumstances, appears unnatural and casts serious shadow upon the

reliability of the prosecution version.

25. The testimony PW1 is not a “sterling quality”. There has been

complete silence during the alleged repeated acts denying illness,

hospitalisation and medical examination. The accusation emerged only

after the pregnancy has been detected and abortion performed. In the

present case no DNA, Forensic evidence connects the appellant to the

pregnancy. Potency alone is not a proof of commission. Suspicion cannot

replace proof of and that the benefit of doubt must be granted.

26. Another circumstance which considerably affects the credibility of

the prosecution case is the evidence of PW.2, the complainant and

mother of the victim. The FIR gives a detailed account of the

hospitalization of the victim, the discovery of pregnancy, the medical

complications arising therefrom and the abortion which has been carried

14

out before the FIR has been lodged. Surprisingly, while deposing before

the Court, PW.2 did not disclose the material facts relating to the

hospitalization and abortion of the victim prior to the lodging of the FIR.

Such omission pertains not to a peripheral aspect but to the very genesis

of the prosecution case. The law is well settled that omissions touching

the core of the prosecution case constitute material omissions affecting

the credibility of the witness. Suppression of a material circumstance by

a key witness renders the testimony vulnerable and prevents the Court

from treating such evidence as wholly trustworthy. In this regard,

reference may be made to the principle laid down by the Supreme Court

in State of Rajasthan versus Kalki reported in (1981) 2 SCC 752,

where a distinction has been drawn between minor discrepancies arising

from errors of observation and material omissions affecting the

substratum of the prosecution case. Where an omission touches the

genesis of the occurrence or the very foundation of the prosecution story,

it ceases to be a mere discrepancy and assumes substantial significance.

The omission of PW.2 regarding the hospitalization and abortion prior to

lodging of the FIR pertains directly to the genesis of the prosecution case

and therefore materially affects her credibility.

27. The evidence of the remaining witnesses also does not provide

independent corroboration of the prosecution case. PW.9, the elder sister

of the victim, admittedly derived knowledge regarding the alleged

involvement of the appellant from the victim herself. PW.10 similarly

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came to know about the incident through PW.9. PW.4 also possesses no

direct knowledge regarding the alleged acts and merely came to know of

the pregnancy after reaching the hospital. Thus, the evidence of these

witnesses is substantially hearsay in nature and cannot constitute

substantive proof of the alleged offence. The settled rule of evidence is

that hearsay evidence is ordinarily inadmissible to prove the truth of the

facts asserted and carries little probative value unless it falls within

recognised exceptions. The rule against hearsay constitutes one of the

fundamental principles of the law of evidence. The rationale underlying

the rule is that the person who originally made the statement is not

subjected to oath, cross-examination or judicial scrutiny. Consequently,

hearsay evidence ordinarily carries limited evidentiary value and cannot

substitute direct evidence of the occurrence. The evidence of these

witnesses, therefore, furnishes no independent assurance regarding the

truthfulness of the accusation. Consequently, the testimony of these

witnesses does not materially strengthen the prosecution case.

28. The medical evidence adduced through PWs.5, 6, 7 and 8

establishes certain medical facts beyond doubt. It establishes that the

victim had conceived, the pregnancy is abnormal and ectopic in nature,

consequently, surgical intervention became necessary and there has

been signs indicative of prior sexual intercourse. Thus, the medical

evidence clearly proves the factum of pregnancy and prior sexual activity.

However, it is equally settled that medical evidence can corroborate the

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occurrence of sexual intercourse but ordinarily cannot identify the

perpetrator thereof. None of the doctors had any personal knowledge

regarding the identity of the person responsible for the pregnancy.

29. The case history recorded by the doctors implicating the appellant

has been based exclusively upon the statements allegedly made by the

victim. Such history recorded in medical documents is not substantive

evidence of the truth of its contents. The doctor merely records what is

narrated by the patient. If the source narration itself is doubtful, the

repetition of that narration in medical records cannot elevate it into proof

of the fact asserted. Therefore, while the medical evidence establishes

pregnancy, it does not independently establish the culpability of the

appellant.

30. It is further noteworthy that no scientific evidence has been

produced to connect the appellant with the pregnancy. No DNA profiling

or comparable forensic examination has been brought on record. The

potency report merely indicates that the appellant has been capable of

sexual intercourse. Potency is merely evidence of capability and not

evidence of commission. Such evidence does not advance the prosecution

case in any significant manner.

31. The jurisprudential foundation of criminal law requires the

prosecution to establish its case beyond reasonable doubt. The

presumption of innocence continues throughout the trial and remains

available to the accused unless displaced by cogent, reliable and

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convincing evidence. Suspicion, however grave, cannot substitute proof.

In Kali Ram versus State of Himachal Pradesh reported in (1973) 2

SCC 808, the Supreme Court described the presumption of innocence as

a golden thread running through the web of criminal jurisprudence. The

Court held that if two views are reasonably possible on the evidence, the

one favourable to the accused must necessarily be adopted. Similarly, in

Sharad Birdhichand Sarda versus State of Maharashtra reported in

(1984) 4 SCC 116 , the Supreme Court reiterated that suspicion,

however grave, cannot take the place of proof and that every

incriminating circumstance must be established with certainty before a

conviction can be recorded. Equally, moral conviction cannot replace

legal proof. The Court must distinguish between proof that the victim has

been pregnant and proof that the appellant has been responsible for the

pregnancy. While the former stands established by medical evidence, the

latter remains dependent entirely upon the credibility of the victim's

subsequent accusation.

32. The motive and conduct of victim create a probable alternate

hypothesis and contribute to reasonable doubt. There is evidence on

record of discord between the appellant and the second wife. It is also in

evidence that the appellant has been paying the first wife from the funds

generated from the hotel run outside the KMC office. This financial

dispute and domestic discord furnishes a probable motive for false

implication and cannot be ignored in assessing the belated allegation.

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33. The record further indicates visit and intimacy between the victim

and her step brother. Further the age of the victim, stated to be 15-16

years indicates a level of maturity.

34. This circumstance is relevant while assessing whether the victim

has been in a position to resist on to inform her mother and sister of

alleged acts, by her father or to exercise independent volition in her

association including with Suman Singh. The cumulative effect of the

circumstances does not accord with the prosecution version of

continuous coercion without any disclosure.

35. The cumulative effect of the circumstances discussed above,

namely, the complete absence of any prior disclosure by the victim; the

emergence of the accusation only after detection of pregnancy and

abortion; the material omission by PW.2 regarding hospitalization and

abortion prior to lodging of the FIR; the largely hearsay nature of the

evidence of supporting witnesses; the absence of independent

corroborative evidence; the absence of scientific evidence linking the

appellant to the pregnancy; and the inability of the medical evidence to

identify the perpetrator, creates substantial and reasonable doubt

regarding the prosecution case. In criminal jurisprudence, whenever two

views are reasonably possible from the evidence on record, the view

favourable to the accused must prevail. The evidence of the victim and

PW.2, when tested on the anvil of the principles governing appreciation of

testimony of key witnesses, does not inspire the degree of confidence

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required for sustaining a conviction under a penal statute carrying severe

consequences. Their testimony cannot be classified as wholly reliable or

of sterling quality so as to exclude every reasonable hypothesis

consistent with innocence. The evidence of the victim and her mother

does not attain the standard of complete reliability contemplated in

Gurmit Singh (supra), Narender Kumar (supra) and Rai Sandeep

(supra). The material omissions, unexplained conduct, delayed

disclosure, hearsay nature of supporting evidence and absence of

scientific corroboration collectively generate reasonable doubt regarding

the prosecution case.

36. Applying the aforesaid principles, this Court finds that while the

prosecution has successfully established that the victim has been

pregnant and has undergone abortion, it has failed to establish beyond

reasonable doubt that the appellant has been responsible for such

pregnancy. Consequently, this Court is of the considered opinion that the

prosecution has failed to establish the guilt of the appellant beyond all

reasonable doubt. The appellant is therefore entitled to the benefit of

doubt.

37. The appeal accordingly succeeds. The judgment of conviction and

order of sentence impugned dated 18

th

February, 2019, are set aside.

The appellant is acquitted of all the charges levelled against him. He

shall be released forthwith from custody, if his detention is not required

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in connection with any other case. The bail bonds, if any, shall stand

discharged.

38. Let the TCR along with a copy of this judgment be returned back to

the trial Court for necessary action.

39. All parties shall act on the server copy of this order downloaded

from the official website of this Court.

I Agree.

(Rajasekhar Mantha, J.) (Smita Das De, J.)