1

Serial No. 01

Supplementary

List

HIGH COURT OF MEGHALAYA

AT SHILLONG

Crl.A. No. 2 of 2019

Date of Decision: 30.01.2020

Marbet Nongsiej Vs. State of Meghalaya

Coram:

Hon’ble Mr. Justice Mohammad Rafiq, Chief Justice

Hon’ble Mr. Justice W. Diengdoh, Judge

Appearance:

For the Petitioner/Appellant(s) : Mr. S. Wahlang, Adv.

For the Respondent(s) : Mr. N.D. Chullai, AAG. with

Mr. S. Sengupta, Addl. PP.

Mr. A. Kharwanlang, GA.

i) Whether approved for reporting in Yes/No

Law journals etc.:

ii) Whether approved for publication

in press: Yes/No

Per W. Diengdoh, ‘J’

1. On 15.11.2014 an F.I.R. was lodged by one Smt. Makdalin

Khardewsaw of Nongspung-Nongkynjoin before the Officer-in-charge

Nongstoin Police Station to the effect that a complaint was made against one

Marbet Nongsiej of Nongspung who had raped her daughter (hereinafter

known as victim) on 11.11.2014 at around 12.00 noon in the house of her

cousin sister.

2. Taking cognizance of the said F.I.R., the police have accordingly

registered a case being Nongstoin P.S. Case No. 163(11) 2014 under Section

3(a)/4 of the POCSO Act, 2012, and accordingly investigation was launched.

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3. The said Marbet Nongsiej was arrested by the police in connection

with the said case and was forwarded to the Court of the District & Sessions

Judge, West Khasi Hills District, Nongstoin.

4. The Investigating Officer after completion of the investigation has

filed the charge-sheet being C.S. No. 18/15 dated 16.03.2015 under Section

3(a)/4 of the POCSO Act, 2012.

5. Relating to the prosecution story in the charge-sheet, it is said that on

15.11.2014 a written report was received from the complainant alleging that

the victim was raped by the accused Marbet Nongsiej when she was all

alone in the house of the cousin sister where she was engaged for baby-

sitting.

6. It is also said that the delay in reporting the incident was due to the

fact that the victim was staying with her cousin sister and did not get the

time to go home and inform the matter to her parents and moreover, she was

threatened by the accused.

7. The I.O has further stated that the statement of the complainant and

the victim were recorded under Sections 161 and 164 Cr.P.C. and the

statement of available witnesses were also recorded under Section 161

Cr.P.C.

8. The victim, being a minor was also medically examined at Civil

Hospital, Nongstoin where the medical officer has opined that “Hymen

ruptured with irregular margin, no fresh injury”. “Signs of recent sexual

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activity cannot be elicited as there are no signs of fresh injuries, minor or

major on her private part or any part of her body”.

9. The I.O has again noted that the accused during interrogation has

admitted to have committed the offence though he stated that it was with the

consent of the victim.

10. Finding that there exists a prima facie case under Section 3(a)/4 of the

POCSO Act, 2012 against the accused, the I.O. has sent the above named

accused for trial before the Court.

11. Thereafter, on 09.09.2015 the learned Special Judge (POCSO)

Nongstoin had framed charges against the accused under Section 3(a)/4 of

the POCSO Act, 2012 and after the same being read out and explained to the

accused, he pleaded not guilty and claimed to be tried.

12. The prosecution then examined six witnesses including the victim as

P.W.1, the complainant/informant as P.W. 2, Relative of the minor victim as

P.W. 3, the Doctor as P.W.4 as well as Sub-Inspector as P.W. 5 and the I.O

as P.W.6. In course of examination of the witnesses, five documents were

exhibited and one paper-mark which is the proof of age of the minor victim

was produced.

13. The statement of the accused under Section 313 Cr.P.C. was also

recorded and no defence evidence was adduced by the accused.

14. The learned Special Judge, after hearing the argument of the

prosecution as well as the defence counsel and also relying on the written

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arguments filed before the Court have accordingly passed the impugned

judgment and order coming to a finding that the accused Shri. Marbet

Nongsiej had committed penetrative sexual assault on the victim and is,

therefore, guilty of committing an offence under Section 3(a) of the POCSO

Act, 2012 which is punishable under Section 4 of the said POCSO Act,

2012.

15. On 13.08.2018 the learned Special Judge, after hearing the submission

of the prosecution as well as the defence counsel has returned a sentence of

imprisonment for a period of 10 years and a fine of 20,000/- (Rupees

twenty thousand) only and in default of payment, to undergo an additional

one year imprisonment against the accused, Shri. Marbet Nongsiej.

16. Taking into account, the period of detention undergone by the said

accused, the Court has calculated the remaining period of detention to be 9

years 6 months and 16 days.

17. The appellant/accused has assailed the impugned judgment and order

dated 31.08.2018 by way of this instant appeal, inter-alia on the ground that

the learned Special Judge have erred in law as well as in facts in failing to

appreciate the facts and materials on record to come to a perverse finding

without any supporting cogent and trustworthy documents and evidence.

18. The delay in filing of the FIR by the complainant without satisfactory

explanation of the same of about 4 days or 90 hours after the occurrence of

the offence was also one of the grounds raised by the appellant, inasmuch as,

the fact that the victim after the alleged offence could not meet or inform the

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complainant due to her busy schedule and purportedly because of the threat

from the accused/appellant, even though it was evident from the statement of

the complainant (P.W. 2) that the distance from the place of occurrence to

her house is only about 15 minutes’ walk, the reason for the delay in filing

of the FIR was also not recorded by the Police in the FIR Form at Serial No.

8, was not noticed by the learned Special Judge.

19. Another ground raised by the appellant/accused is that the learned

Special Judge has failed to properly examine and appreciate the fact that the

medical report of the victim clearly indicates that there are no signs of recent

sexual activity as there are no signs of fresh injury, minor or major on the

private part or any part of the body of the victim. Further, the medical report

also suggests that there are no signs of penetrative sexual assault, but in spite

of the finding by medical examination as stated above, the learned Special

Judge had passed the impugned judgment without considering the evidence

and the contradictions thereto.

20. The learned counsel for the appellant, Mr. S. Wahlang in his oral

argument as well as written submission has submitted that the findings of the

learned Special Judge (POCSO) Nongstoin at paragraph-16 of the impugned

judgment, wherein the Court while appreciating the evidence of P.W-1

(minor victim girl) has noted that the P.W. 1 has stated “…the incident of

rape happened 3 or 4 days before I informed my mother…”, has failed to

take notice of the aforesaid belated F.I.R and has never mentioned in the

findings that the distance from the place of occurrence to the house of the

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complainant (P.W. 2) who is the mother of the victim is only about 15

minutes’ walking distance.

21. The learned counsel for the appellant has also sought to bring out the

contradiction in the findings of the learned Special Judge when it was

pointed out that in the impugned Judgment it is noted that “....the victim has

confirmed that the accused has already entered the house when she went

inside and the accused locked the door and caught hold of her…”, however,

the victim in her cross-examination has stated that “…during that time of

incident there was nobody at home except myself and the accused person. I

and the accused person were in different rooms and while I was collecting

clothes the accused closed the main door and suddenly entered my room and

raped me.”

22. Again, the learned counsel for the appellant has submitted that the

learned Special Judge has come to the conclusion that the appellant had

committed the offence only on the basis of the medical report, whereas in

the medical report, it was stated that signs of recent sexual activities cannot

be elicited as there are no signs of fresh injury minor or major on her private

part or any parts of the body. Even the Doctor in his evidence as P.W. 4 has

stated that “….if hymen rupture within four days, recent injury signs will

still be detected…”

23. The learned counsel for the appellant has further submitted that the

learned Court below relying on the evidence of the I.O. (P.W. 6) who, in her

evidence has stated that “….I filed the charge-sheet against the alleged

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accused person based on the statements of the alleged victim and the

medical report of the victim”, is contrary to the medical report as pointed out

above.

24. The fact that the Confessional Statement of the appellant/accused was

not recorded by the Court was also pointed out by the learned counsel for the

appellant in his argument as a denial of his right which has prejudiced his

case.

25. On the denial of the appellant/accused on the commission of the said

offence, the statement of the appellant/accused recorded under Section 313

Cr. P.C. wherein he has referred to the existence of the pigsty was also not

investigated into, has resulted in deprivation of the right to fair trial which is

against Article 21 of the Constitution of India, submits the learned counsel

for the appellant.

26. Finally, the learned counsel for the appellant has submitted that the

findings of the learned Court below when it was held that “… though it is

seen from the evidence that there are some discrepancies in the statement of

the witnesses, these discrepancies did not shake the basic version of the

prosecution in this case being the offence of penetrative sexual assault…”

would show that the learned Court below has not gone into the depth of the

evidence relating to the offence of penetrative sexual assault and the

materials on record, such observations and in the light of the evidence of

P.W. 4 (the Doctor), no reliable evidence exists and as such, the case is not

proved beyond reasonable doubt and therefore, is not tenable in the eye of

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law. Accordingly, he prays that the impugned judgment and order and

sentence dated 31.08.2018 is liable to be set aside.

27. In support of his submission, learned counsel for the appellant has

placed reliance on the following judgments:-

i) Prahlad v. State of Rajasthan: 2018 SCC Online SC 2548.

ii) Noor Aga v. State of Punjab & Anr: (2008) 16 SCC 417 Para

58 Page 450.

iii) Bhaiyamiyan Alias Jardar Khan & Anr v. State of Madhya

Pradesh: (2011) 6 SCC 394 Para 9 Page 395.

iv) Satnam Singh & Ors v. State of Uttaranchal (now State of

Uttarakhand) Para 14 in Criminal Appeal No 219 of 2003.

28. On the other hand, the written submission filed by the learned

counsel for the State respondent, would show that the respondent had

referred to the evidence of the P.W. 1 (minor victim) which was recorded on

08.10.2015 before the learned Trial Court. Mr. S. Sengupta, learned

Additional PP for the State respondent has submitted that the prosecutrix in

her deposition has stated that on 15

th

November, the year which she could

not remember, she had informed her mother (P.W. 2) that the accused Shri.

Marbet Nongsiej had raped her. The learned Additional PP has also

submitted that the prosecutrix have also deposed that on the date of

occurrence the accused (the appellant herein) had first asked if he could

kissed her, but she refused. After the incidence, the prosecutrix had informed

the wife of the accused (appellant) and thereafter had also informed her

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mother about the rape. He further submits that the evidence of the

prosecutrix could not be shaken in her cross-examination.

29. It is further submitted by the State respondent that the evidence of the

prosecutrix is worthy of credence and being a minor in age, her evidence

does not suffer from any infirmity.

30. The learned Additional PP has also submitted that the statement of the

prosecutrix under Section 164 Cr.P.C was recorded by the learned

Magistrate but in cross-examination, the defence had not made any reference

to the statement of the prosecutrix under Section 164 Cr.P.C. and, as such,

the defence has not tried to rebut the statement of the prosecutrix with regard

to the offence committed on her by the accused person, the statement of the

victim under Section 164 Cr.P.C as well as the evidence recorded during the

course of trial are consistent with regard to the factum of rape.

31. The State respondent through the learned Additional PP has

submitted that the law on the issue as far as the statement of the prosecutrix

is concerned is well-settled by the Hon’ble Supreme Court in several

decisions to the effect that the statement of the prosecutrix if it is cogent,

reliable, requires no corroboration and the accused person can be effected on

the sole testimony of the prosecutrix.

32. As regard the evidentiary value of the testimony of the sole

prosecutrix, the State respondent has referred to the case of Vijay @

Chineev. State of Madhya Pradesh: (2010) 8 SCC 191 at paragraphs

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9,10,11,12, 13 and 14 as well as the case of Raju & Ors. v. State of Madhya

Pradesh: (2008) 15 SCC 133 at paragraphs 9 and 10.

33. Another point raised by the learned Additional PP in his written

submission is that the accused/appellant is the brother-in-law of the

prosecutrix and, as such, nothing has been brought on record that there was

any enmity or dispute among the accused person and the family members of

the prosecutrix and, as such, there is no reason for the prosecutrix to make

any false allegation against the accused person.

34. As far as the evidence of the P.W. 2 (mother of the prosecutrix) is

concerned, the learned Additional PP has submitted that the P.W. 2 in her

evidence has proved the F.I.R as well as the age of the prosecutrix and her

evidence is also consistent with what has been stated in the F.I.R as well as

the statement under Section 164 Cr.P.C.

35. As to the medical evidence, the learned Additional PP quoting the

evidence of the Doctor (P.W. 4) has submitted that the P.W. 4 had conducted

the medical examination of the prosecutrix in presence of the family and

staff nurse. The general examination is normal and the opinion of the doctor

is that there are no signs of recent sexual activity as there are no signs of

fresh injury, minor or major, on her private part or any part of her body

(referring to the victim).

36. Again, pointing to Exhibit-5 which is the medical report, the learned

Additional PP has submitted that the Doctor (P.W. 4) in his cross-

examination has stated that “the rupture of the hymen cannot be ascertained

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whether this is due to the sexual intercourse or some other injury. In normal

sexual intercourse unusually there is no injury. Rupture with irregular

margin it can be caused by sexual intercourse, fingering, cycling etc. If the

hymen is ruptured within four days recent injury signs will still be detected.

For example bleeding point, tenderness etc. There is no external injury mark

on the body of the minor victim girl”, however in cross-examination P. W. 4

has stated that it cannot ascertained whether this is due to the sexual

intercourse or some other injury and that the ruptures with irregular margin

can be caused by sexual intercourse, fingering, cycling, etc. P.W. 4 has

further stated that in normal sexual intercourse usually there is no injury.

37. Therefore, the learned Additional PP has submitted that the contention

of the defence counsel that the medical evidence does not support the case of

the prosecution is of no consequence, inasmuch as, though the medical

evidence is a corroborative piece of evidence, but when the medical

evidence does not support the otherwise clinching and trustworthy ocular

evidence of any material witness, then the testimony of such ocular evidence

will prevail on the medical opinion and not the vice-versa.

38. In this regard, the case of Ranjit Hazarika v. State of Assam:

(1998)8 SCC 635 was referred to by the learned counsel for the State

respondent who has submitted that in the aforesaid decision, the Hon’ble

Supreme Court has held that “We are unable to agree with the learned

counsel for the appellant that in the absence of corroboration of the

statement of the prosecutrix by the medical opinion, the conviction of the

appellant is bad. The prosecutrix of a sex offence is a victim of a crime and

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there is no requirement of law which requires that her testimony cannot be

accepted unless corroborated”.

39. It is the contention of the learned counsel for the State respondent that

the prosecutrix was only 14 years’ old at the time of occurrence and records

will reveal that she is a disabled girl. The accused person being related to

her should be seen as the guardian or father, but taking advantage of the

helplessness of the victim girl, has committed an act of rape which on every

action and without exception is a crime of power, more than one of lust and

when committed on a child is brute and unrelentingly savage expression for

which, no clemency or mercy whatsoever can be shown to the perpetrator of

such act. The case of State of Himachal Pradesh v. Gian Chand: (2001) 6

SCC 71 where the Hon’ble Supreme Court dealing with the case involving

rape committed by the accused relative on the minor has awarded a sentence

of imprisonment of 10 years’ along with fine, was also cited by the State

respondent in this regard.

40. Coming to the statement of the accused (appellant) recorded under

Section 313 Cr.P.C where the accused person had completely set up a new

defence, the learned Additional PP has submitted that there is nothing on

record to suggest that the accused person had sought to defend himself on

what has been said by him in his statement under Section 313 Cr.P.C., and

since he has failed to come out with an explanation when the opportunity

was afford to him to explain his circumstances that are shown to exist

against him, therefore keeping silent without any expression would lead to

an adverse inference against him when the opportunity was accorded to him

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as a matter of right in cross-examination as well as in his statement under

Section 313 Cr.P.C. The case of Manu Sao v. State of Bihar: (2010) 12

SCC 310 was referred to in this regard by the learned counsel for the State

respondent.

41. As to the contention of the defence that there was a delay in filing of

the FIR, the learned Additional PP has submitted that the incident of rape

committed by the accused person on the minor victim on 11.11.2014 was

informed to the mother of the minor victim (P.W. 2) on 15.11.2014 and

when P.W. 2 came to know about the said incident, she discussed the same

with the wife of the accused person who told her to take necessary steps

against the accused person and accordingly, an F.I.R was lodged on

15.11.2014 and for a delay of three or four days in lodging of the F.I.R,

considering the facts and circumstances of the case, the same is not fatal.

42. Reference is placed on the decision of the Hon’ble Supreme Court in

the case of Tulshidas Kanolkarv. State of Goa: (2003) 8 SCC 590 and in

Satyapal v. State of Haryana: (2009) 6 SCC 635 to support the contention

of the learned counsel for the State respondent in this regard.

43. In conclusion, the learned counsel for the State respondent has

submitted that the learned Trial Court having considered the evidence and

materials adduced by the prosecution has rightly passed the impugned

judgment of conviction against the appellant which calls for no inference.

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44. Apart from the cases cited by the learned counsel for the appellant, the

learned counsel for the State respondent has furnished a list of cases to

support its case. The said list is reproduced as under:-

i) State of Himachal Pradesh v. Sanjay Kumar @ Sunny:

(2017) 2 SCC 51.

ii) Bharwada Bhoginbhai Hirgibhai v. State of Gujarat: (1983) 3

SCC 217.

iii) B.C. Deva v. State of Karnataka: (2007) 12 SCC 122.

iv) Narendra Kumar v. State (NCT of Delhi): (2012) 7 SCC 171.

45. We have carefully considered the submissions and contentions of the

rival parties as noted above. What can be understood is that the appellant has

assailed the impugned judgment and order mostly on the following counts:

(i) That the delay in filing the FIR has prejudiced the appellant,

inasmuch as, the learned Special Judge has not considered the

fact that the victim has stated that due to her busy schedule and

purported threat from the accused, she could not inform the

complainant (P.W. 2) about the incident and the same was

informed to the complainant only after 4 (four) days, inspite of

the fact that the place of occurrence and the house of the

complainant is only 15 minutes’ walk.

(ii) That the discrepancies in the evidence of the victim as to the

actual occurrence of the offence where she has stated that “the

accused had already entered the house when she went inside

15

and the accused locked the door and caught hold of her hands

and legs and committed rape on her,” and in another portion of

her evidence, where the victim has stated that “during the time

of incident, there was nobody at home except myself and the

accused person. I and the accused were in different rooms and

while I was collecting clothes the accused closed the main door

and suddenly entered my room and raped me,” and again when

the victim has stated in her evidence that “she went to collect

the dry clothes from outside the house,” are considered vital

discrepancies for which the learned Special Judge has ignored

the same and has come to the conclusion that “Though it is seen

from the evidence that there are some discrepancies in the

statement of the witnesses, however, these discrepancies did not

shake the basic version of the prosecution in this case being the

offence of penetrative sexual assault.”

(iii) That the medical evidence as related by Dr. K. Kharumnuid

(PW. 4) who has stated that “signs of recent sexual activity

cannot be elicited as there are no signs of fresh injuries, minor

or major, on her private part or any part on her body. “In his

cross-examination PW. 4 has also stated that “If the hymen is

ruptured within four days, recent injury signs will still be

detected, “would show that there is no medical evidence to

prove a case of penetrative sexual assault.

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46. What can be observed above is that the main consideration before this

Court would be whether the delay in lodging the FIR would be fatal to the

prosecution’s case and also whether the evidence of the minor victim, vis-à-

vis the medical report would afford the accused of the benefit of doubt.

47. The complainant (P.W.2) in her evidence has stated that her minor

daughter had informed her on 15.11.2014 that the accused/appellant had

raped her on 11.11.2014 at around 12:00 noon in the house of her

(complainant) cousin sister. The complainant had then went to the house of

her cousin sister and met the wife of the accused person where she discussed

the incident of rape with the wife of the accused person who told her (P.W.

2) to take necessary steps against the accused person following which an

FIR was lodged at Nongstoin Police Station.

48. In her cross-examination, this witness (P.W. 2) has stated that “It is

not a fact that I lodged the FIR on 15.11.2014 due to my busy schedule, but I

came to know of the incident on the very day itself”.

49. The victim in her deposition has stated that on “15

th

November, the

year however I could not remember, I informed my mother that the accused

Marbet Nongsiej had raped me. The incident of rape happen three or four

days before I informed my mother and at that point of time, I was staying in

the house of my relatives taking care of her baby.”

50. The victim has also stated that “After the date of incident, I first

informed about the rape of the accused on me to the accused’s wife and after

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that, I informed my mother after which my mother spoke to the accused’s

wife and later went to the Police Station and took me along with her”.

51. On the delay of filing of the FIR, the learned Special Judge in the

impugned judgment had observed that “It is also not uncommon especially

for simple and illiterate villagers especially children to hesitate or pause in

reporting a crime of rape as it leaves them initially in a state of dilemma”. It

is only after the victim could meet her mother on 15.11.2014 that she could

informed to her about the commission of rape on her.

52. In the case of Tulshidas Kanolkar v. State of Goa: (2003) 8 SCC 590

at paragraph 5 relied upon by the State respondent, the Hon’ble Supreme

Court in dealing with the issue of delay of filing of the FIR has observed as

follows:-

“5. We shall first deal with the question of delay. The

unusual circumstances satisfactorily explained the delay in

lodging of the first information report. In any event, delay per

se is not a mitigating circumstances for the accused when

accusations of rape are involved. Delay in lodging the first

information report cannot be used as a ritualistic formula for

discarding the prosecution case and doubting its authenticity. It

only puts the court on guard to search for and consider if any

explanation has been offered for the delay. Once it is offered,

the court is to only see whether it is satisfactory or not. In case

if the prosecution fails to satisfactorily explain the delay and

there is possibility of embellishment or exaggeration in the

prosecution version on account of such delay, it is a relevant

factor. On the other hand, satisfactory explanation of the delay

is weighty enough to reject the plea of false implication or

vulnerability of the prosecution case. As the factual scenario

shows, the victim was totally unaware of the catastrophe which

had befallen her. That being so, the mere delay in lodging of

the first information report does not in any way render the

prosecution version brittle.”

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53. Again in the case of State of Himachal Pradesh v. Sanjay Kumar

Alias Sunny: (2017) 2 SCC 51, the Hon’ble Supreme Court dealing with the

case of a minor victim of sexual assault who had withheld the disclosure of

the said incident for about three years and after the same was found out, the

mother (P.W. 1) after sharing the information with her husband had lodged a

complaint after three days on receipt of the said information. The Hon’ble

Supreme Court at paragraph 29 of the same has held that:

“29. Likewise, delay of three days in lodging the FIR by PW-

1, after eliciting the information from her daughter PW-2, is

inconsequential in the facts of this case. It is not to be forgotten

that the person accused by the prosecutrix was none else than

her uncle. It is not easy to lodge a complaint of this nature

exposing the prosecutrix to the risk of social stigma which

unfortunately still prevails in our society. A decision to lodge

FIR becomes more difficult and hard when accused happens to

be a family member. In fact, incestuous abuse is still regarded

as a taboo to be discussed in public. This reticence hurts the

victims or other family members who struggle to report. After

all, in such a situation, not only the honour of the family is at

stake, it may antagonise other relations as well, as in the first

blush, such other members of family would not take charge of

this nature very kindly. We also find that the so-called dispute

between the parties was so trivial in nature that it would not

have prompted PW-1 to lodge a false complaint, putting her

minor daughter of impressionable age to risks of serious kinds,

as pointed out above.”

54. On the issue of delay in filing the FIR, the learned counsel for the

appellant had referred to the case of Bhaiyamiyan Alias Jardar Khan &

Anr. v. State of Madhya Pradesh: (2011) 6 SCC 394 wherein at paragraph 9

of the same, the Hon’ble Supreme Court has observed that:

“9. We have examined the evidence in the light of the above

principle. We first see that the first information report had been

lodged after about 60 hours of the incident. The prosecution

case is that PW.1 accompanied by her parents had gone to

Police Post Pathriya attached to Police Station Unarasital

immediately after the incident but had found no police official

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present therein and had then gone to Police Station Sironj and

lodged a report at 12 noon the next day. We find that the

explanation for this delay is somewhat difficult to believe. A

police post may have a few police officials posted in it, but

Police Station Unarasital was a full-fledged police station

which would invariably be manned. Moreover, even if no one

was found in the police post on the first day at that particular

point of time, the effort of the prosecutrix ought to have been to

lodge a report later at Police Station Unarasital, but she chose

to go to Police Station Sironj and recorded her statement and

the investigation was thereafter referred to Police Station

Unarasital.”

55. From the materials on record and from what has been put forth by the

prosecution taking into account the evidence of the complainant (P.W. 2) as

well as the victim (P.W. 1) the fact that the victim is a minor girl of 14 years

at the time of the incident, it is, but natural that her reaction and response as

far as information of the said incident to her mother (P.W. 2) is concerned,

could not be reported immediately. However, it is also in the evidence of the

victim (P.W. 1) that she had first reported about the incident to the accused’s

wife. It cannot be contemplated that the victim would insist on reporting the

matter to the police and as such, the fact that she had reported the same to

her mother (P.W. 2) and the mother (P.W. 2) had immediately reported the

same to the police is a viable explanation as far as the delay in filing the FIR

is concerned.

56. The case cited by the learned counsel for the appellant i.e.

Bhaiyamiyan Alias Jardar Khan & Anr. v. State of Madhya Pradesh

(supra) would not help the appellant, inasmuch as, the facts and

circumstances and the reasons for delay in filing the FIR are not similar in

nature to the case in hand.

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57. We are therefore of the considered view that the delay in filing the

FIR would not materially affect the merits of the case of the prosecution.

58. Another contention raised by the learned counsel for the appellant is

with regard to the medical report and the evidence, as regard the factum of

rape committed on the victim.

59. The learned counsel for the appellant in the written submission has

assailed the observations and findings of the learned Special Judge by

contending that the reliance on the statement of the victim and the medical

report has led to the conclusion reached by the learned Special Judge, which

is based on casual observation and not supported by evidence and as such,

the guilt of the accused cannot be proved beyond reasonable doubt. This

case is therefore not tenable in the eye of law.

60. In support of his case on the issue of medical report, the learned

counsel for the appellant had cited the case of Prahlad v. State of

Rajasthan: 2018 SCC Online SC 2548, wherein at paragraph 13 of the

same, the Hon’ble Supreme Court has opined as follows:

“13. In the Examination­in­Chief itself, the doctor

PW10 who conducted the post­mortem examination has

deposed that the genital organs of the victim were normal.

The doctor further opined that the death of the deceased

was caused due to acute hemorrhage. Post­mortem

report is at Ex. P15. In the cross­examination, the

doctor has admitted that all the aforementioned five injuries are

simple in nature and they are likely to be caused by falling.

Fracture on the left rib nos. 10 and 11 mentioned in the

post­mortem report can be caused by falling on a

stone. PW10 further stated that the genital organs of the

deceased were healthy and no marks of any injury were present

on the private parts of the deceased.Signs of sperm ejaculation

were also not found on the external skin near the genital organs

21

of the deceased. No injury was present on the head of the

deceased. The doctor further deposed that when forcible sexual

intercourse is committed upon a tender girl, there is a

possibility of her vagina getting ruptured and bleeding

from her genitals. There is no such mention in the postmortem

report. The FSL report regarding vaginal swab which was sent

for examination is not helpful for the prosecution to prove the

offence under Sections 3 and 4 of the POCSO Act. Prosecution,

practically relies upon the doctor’s evidence only for proving

the offence under Section 4 of the POCSO Act. No other

material is placed on record by the prosecution to prove the

offence under Section 4 of the POCSO Act. However, the

evidence relating to penetration into the vagina, mouth,

urethra or anus of a child etc. or any part of the body is not

found. The Trial Court as well as the High Court have not gone

into the depth of the evidence relating to offence of

penetrative sexual assault, in detail. Certain casual

observations are made which are not supported by the evidence

led by the prosecution. In light of the aforementioned evidence

of PW10 doctor, and in view of the fact that no other reliable

evidence exists to prove the charge of penetrative sexual

assault, i.e. any of the acts as detailed in Section 3 of the

POCSO Act, it is our considered opinion that the Trial

Court and the High Court are not justified in convicting the

accused for the offence under Section 4 of the POCSO Act. We

find from the judgment of the High Court that

absolutely no reason, much less any valid reasons were

assigned for convicting the accused for the offence punishable

under the POCSO Act. Since no reliable material is available

against the accused for the aforementioned offence of the

POCSO Act, the benefit of doubt would go in the favour of the

accused. After scanning through the entire materials on record

in order to satisfy the conscience, and having regard to the

seriousness of the charge, we conclude that the accused needs

to be given the benefit of doubt in so far as the offence

punishable under Section 4 of the POCSO Act is concerned.”

61. In the case of Noor Aga v. State of Punjab & Anr: (2008) 16 SCC

417, in a case under the Narcotic Drugs and Psychotropic Substances Act,

1985, the Hon’ble Supreme Court at paragraph 58 while dealing with the

question of “standard of proof” has held that the “standard of proof”

required to prove the guilt of the accused on the prosecution is “beyond all

reasonable doubt, but it is “preponderance of probability” on the accused.

22

62. In this regard, the learned Special Judge in the impugned judgment

has discussed the evidence of the Doctor (P.W. 4) and has come to a finding

that “However PW. 4 has stated that in normal sexual intercourse usually

there is no injury. So what has been confirmed is that rupture of the Hymen

can be occurred due to sexual intercourse, fingering, cycling etc., but the

Defence had not brought out anything in the evidence of the victim that she

used to play and ride bicycle and considering the close proximity between

the evidence of the victim and witness about commission of rape by the

accused and the Medical Report which shows Ruptured Hymen, the ruptured

hymen can be attributed to past sexual activity which pinpointed towards the

accused as the one who had committed the offence.”

63. On going through the medical report issued by the Doctor (P.W. 4) as

regard the medical examination of the victim, the genital examination, more

particularly of the hymen would show that the same was ruptured with

irregular margin, no fresh injury.

64. It is also the opinion of the Doctor (P.W. 4) that the victim was

examined four days after the incident and the opinion reached after the said

examination is that “…..signs of recent sexual activity cannot be elicited as

there are no signs of fresh injuries, minor or major, on her private part or

any part on her body…….”

65. Notwithstanding the medical examination and opinion, it would be

prudent for this Court to examine the import of the evidence of a child

witness.

23

66. In the case of Prem Bahadur @ Bhoj Bahadur v. State passed in

Crl.A. No. 888 of 2017, the Hon’ble High Court of Delhi vide judgment

dated 22.07.2019 at paragraph 46 of the same had elaborately spelled out

and discussed the aspect of evidentiary value of a child witness. For ready

reference, paragraph 46 is reproduced herein below:-

“46. On the evidence of a child witness, and its value during

trial, this Court has, in Sanjay Kumar Valmiki v. State, 2018

SCC Online Del 9304, had occasion to observe thus:

―57. The child witness, like the child himself, has ever

remained, criminologically speaking, a jurisprudential

enigma. The judicial approach, to such evidence, has, at

times, advocated wholesome acceptance of such

evidence, subject to the usual precautions to be exercised

while evaluating any other evidence; however, the more

prevalent approach appears to prefer exercise of

cautious consideration by the Court, while dealing with

such evidence. The raison d' etre for advocating such an

approach, as is apparent from the various authorities on

the point, is that child witnesses are usually regarded as

susceptible to tutoring; consequently, Courts have

consistently held that, where the Trial Court is satisfied,

on its own analysis and appreciation, that the child

witness before it is unlikely to be tutored, and is deposing

of his own will and volition, it cannot treat such witness,

or the evidence of such witness, with any greater

circumspection, than would be accorded to any other

witness, or any other evidence. As has been often

emphasised by courts in this context, no express, or even

implied, embargo, on a child being a witness, is to be

found in Section 118 of the Indian Evidence Act, which

deals with the competency of persons to testify, and reads

as under:

―118. Who may testify. –

All persons shall be competent to testify unless the

Court considers that they are prevented from

understanding the questions put to them, or from

giving rational answers to those questions, by

tender years, extreme old age, disease, whether of

body or mind, or any other cause of the same kind.

24

Explanation. – A lunatic is not incompetent to

testify, unless he is prevented by his lunacy from

understanding the questions put to him and giving

rational answers to them.

58. Statutorily, therefore, it is clear that there is no

prohibition on children being witnesses, whether in civil

or criminal cases, irrespective of the nature of the

offence. The only circumstance in which the statute

proscribes reliance on such evidence, is where the child

is prevented from understanding the questions put to him,

or from giving rational answers to such questions, by

reason of his age. A duty is, therefore, cast, by the

statute, on the judge faced with the responsibility of

taking a decision on whether to allow, or disallow, the

testimony of the child witness, to arrive at an informed

decision as to whether the said evidence is vitiated on

account of the child having failed to understand the

questions put to him, or to provide rational responses

thereto. If the answer, to these two queries, is in the

negative, there is no justification, whatsoever, for

discarding, or even disregarding, the evidence of the

child witness.

59. This Court has, in a recent decision in Latif v. State,

2018 SCC OnLine Del 8832, observed as under, with

respect to the evidence of child witnesses:

―16. At this stage, it is necessary to recapitulate

the law regarding the appreciation of the evidence

of the child witness. In Dattu Ramrao Sakhare v.

State of Maharashtra, (1997) 5 SCC 341 the

Supreme Court explained:

―A child witness if found competent to

depose to the facts and reliable one such

evidence could be the basis of conviction. In

other words even in the absence of oath the

evidence of a child witness can be

considered under Section 118 of the

Evidence Act provided that such witness is

able to understand the questions and able to

give rational answers thereof. The evidence

of a child witness and credibility thereof

would depend upon the circumstances of

each case. The only precaution which the

court should bear in mind while assessing

the evidence of a child witness is that the

witness must be a reliable one and his/her

demeanour must be like any other competent

25

witness and there is no likelihood of being

tutored."

17. In Ranjeet Kumar Ram v. State of Bihar, 2015

(6) SCALE 529, it was observed:

―Evidence of the child witness and its

credibility would depend upon the

circumstances of each case. Only precaution

which the court has to bear in mind while

assessing the evidence of a child witness is that

the witness must be a reliable one."

18. In Nivrutti Pandurang Kokate v. The State of

Maharashtra, (2008) 12 SCC 565, the Supreme

Court highlighted the importance of the trial Judge

having to be satisfied that the child understands

the obligation of having to speak the truth and is

not under any influence to make a statement. The

Court explained:

"The decision on the question whether the

child witness has sufficient intelligence

primarily rests with the trial Judge who

notices his manners, his apparent possession

or lack of intelligence, and the said Judge may

resort to any examination which will tend to

disclose his capacity and intelligence as well

as his understanding of the obligation of an

oath. The decision of the trial court may,

however, be disturbed by the higher court if

from what is preserved in the records, it is

clear that his conclusion was erroneous. This

precaution is necessary because child

witnesses are amenable to tutoring and often

live in a world of make-believe. Though it is an

established principle that child witnesses are

dangerous witnesses as they are pliable and

liable to be influenced easily, shaken and

moulded, but it is also an accepted norm that if

after careful scrutiny of their evidence the

court comes to the conclusion that there is an

impress of truth in it, there is no obstacle in

the way of accepting the evidence of a child

witness.

(Emphasis supplied)

60. In Yogesh Singh v. Mahabeer Singh, (2017) 11 SCC

195, the Supreme Court held thus, with respect to the

evidence of child witnesses:

26

―22. It is well settled that the evidence of a child

witness must find adequate corroboration, before

it is relied upon as the rule of corroboration is of

practical wisdom than of law.

(See Prakash v. State of M.P., (1992) 4 SCC 225,

Baby Kandayanathil v. State of Kerala, 1993

Supp (3) SCC 667, Raja Ram Yadav v. State of

Bihar, (1996) 9 SCC 287, Dattu Ramrao Sakhare

v. State of Maharashtra, (1997) 5 SCC 341, State

of U.P. v. Ashok Dixit, (2000) 3 SCC 70 and

Suryanarayana v. State of Karnataka, (2001) 9

SCC 129.

23. However, it is not the law that if a witness is a

child, his evidence shall be rejected, even if it is

found reliable. The law is that evidence of a child

witness must be evaluated more carefully and with

greater circumspection because a child is

susceptible to be swayed by what others tell him

and thus a child witness is an easy prey to

tutoring. (vide Panchhi v. State of U.P., (1998) 7

SCC 177)

(Emphasis Supplied)

61. One of the cardinal principles to be borne in mind,

while assessing the acceptability of the evidence of a

child witness, is that due respect has to be accorded to

the sensibility and sensitivity of the Trial Court, on the

issue of reliability of the child, as a witness in the case,

as such decision essentially turns on the observation, by

the Trial Court itself, regarding the demeanour, carriage

and maturity of the concerned child witness. An appellate

court would interfere, on this issue, only where the

records make it apparent that the Trial Court erred in

regarding the child as a reliable witness. Where no such

indication is present, the appellate court would be loath

to disregard the evidence of the child witness, where the

Trial Court has found it to be credible, convincing and

reliable. [Ref. Satish v. State of Haryana, (2018) 11

SCC 300]

62. In State of Madhya Pradesh v. Ramesh, (2011) 4

SCC 786, the following principles, regarding assessment

of the evidence of child witnesses, have been enunciated:

―7. In Rameshwar v. State of Rajasthan, AIR 1952

SC 54 this Court examined the provisions of Section

5 of the Oaths Act, 1873 and Section 118 of the

Evidence Act, 1872 and held that (AIR p. 55, para 7)

every witness is competent to depose unless the court

27

considers that he is prevented from understanding

the question put to him, or from giving rational

answers by reason of tender age, extreme old age,

disease whether of body or mind or any other cause

of the same kind. There is always competency in fact

unless the court considers otherwise. The Court

further held as under: (AIR p. 56, para 11)

―11. ... it is desirable that Judges and

Magistrates should always record their opinion

that the child understands the duty of speaking

the truth and state why they think that, otherwise

the credibility of the witness may be seriously

affected, so much so, that in some cases it may

be necessary to reject the evidence altogether.

But whether the Magistrate or Judge really was

of that opinion can, I think, be gathered from the

circumstances when there is no formal

certificate.

8. In Mangoo v. State of M.P., AIR 1995 SC 959,

this Court while dealing with the evidence of a child

witness observed that there was always scope to

tutor the child, however, it cannot alone be a ground

to come to the conclusion that the child witness must

have been tutored. The court must determine as to

whether the child has been tutored or not. It can be

ascertained by examining the evidence and from the

contents thereof as to whether there are any traces

of tutoring.

9. In Panchhi v. State of U.P., (1998) 7 SCC 177,

this Court while placing reliance upon a large

number of its earlier judgments observed that the

testimony of a child witness must find adequate

corroboration before it is relied on. However, it is

more a rule of practical wisdom than of law. It

cannot be held that:

"the evidence of a child witness would always

stand irretrievably stigmatised. It is not the law

that if a witness is a child, his evidence shall be

rejected, even if it is found reliable. The law is

that evidence of a child witness must be evaluated

more carefully and with greater circumspection

because a child is susceptible to be swayed by

what others tell him and thus a child witness is an

easy prey to tutoring"

28

10. In Nivrutti Pandurang Kokate v. State of

Maharashtra, (2008) 12 SCC 565, this Court

dealing with the child witness has observed as

under: (SCC pp. 567-68, para 10)

―10. ‗... 7. ... The decision on the question

whether the child witness has sufficient

intelligence primarily rests with the trial Judge

who notices his manners, his apparent

possession or lack of intelligence, and the said

Judge may resort to any examination which will

tend to disclose his capacity and intelligence as

well as his understanding of the obligation of an

oath. The decision of the trial court may,

however, be disturbed by the higher court if

from what is preserved in the records, it is clear

that his conclusion was erroneous. This

precaution is necessary because child witnesses

are amenable to tutoring and often live in a

world of make-believe. Though it is an

established principle that child witnesses are

dangerous witnesses as they are pliable and

liable to be influenced easily, shaped and

moulded, but it is also an accepted norm that if

after careful scrutiny of their evidence the court

comes to the conclusion that there is an impress

of truth in it, there is no obstacle in the way of

accepting the evidence of a child witness.

11. The evidence of a child must reveal that he was

able to discern between right and wrong and the

court may find out from the cross-examination

whether the defence lawyer could bring anything to

indicate that the child could not differentiate between

right and wrong. The court may ascertain his

suitability as a witness by putting questions to him

and even if no such questions had been put, it may be

gathered from his evidence as to whether he fully

understood the implications of what he was saying

and whether he stood discredited in facing a stiff

cross-examination. A child witness must be able to

understand the sanctity of giving evidence on oath

and the import of the questions that were being put to

him. (vide Himmat Sukhadeo Wahurwagh v. State

of Maharashtra, (2009) 6 SCC 712)

12. In State of U.P. v. Krishna Master, (2010) 12

SCC 324, this Court held that there is no principle of

law that it is inconceivable that a child of tender age

would not be able to recapitulate the facts in his

29

memory. A child is always receptive to abnormal

events which take place in his life and would never

forget those events for the rest of his life. The child

may be able to recapitulate carefully and exactly

when asked about the same in the future. In case the

child explains the relevant events of the crime

without improvements or embellishments, and the

same inspire confidence of the court, his deposition

does not require any corroboration whatsoever. The

child at a tender age is incapable of having any

malice or ill will against any person. Therefore, there

must be something on record to satisfy the court that

something had gone wrong between the date of

incident and recording evidence of the child witness

due to which the witness wanted to implicate the

accused falsely in a case of a serious nature.

13. Part of the statement of a child witness, even if

tutored, can be relied upon, if the tutored part can be

separated from the untutored part, in case such

remaining untutored part inspires confidence. In

such an eventuality the untutored part can be

believed or at least taken into consideration for the

purpose of corroboration as in the case of a hostile

witness. (vide Gagan Kanojia v. State of Punjab,

(2006) 13 SCC 516.)

14. In view of the above, the law on the issue can be

summarised to the effect that the deposition of a child

witness may require corroboration, but in case his

deposition inspires the confidence of the court and

there is no embellishment or improvement therein,

the court may rely upon his evidence. The evidence of

a child witness must be evaluated more carefully with

greater circumspection because he is susceptible to

tutoring. Only in case there is evidence on record to

show that a child has been tutored, the court can

reject his statement partly or fully. However, an

inference as to whether child has been tutored or not,

can be drawn from the contents of his deposition.

(Emphasis supplied)

63. The following guiding principles, governing the

admissibility and reliability of the evidence of child

witnesses, are readily discernible from the above cited

judicial pronouncements:

(i) There is no absolute principle, to the effect that

the evidence of child witnesses cannot inspire

confidence, or be relied upon.

30

(ii) Section 118 of the Indian Evidence Act, 1872

discounts the competence, of persons of tender

age, to testify, only where they are prevented

from understanding the questions put to them,

or from giving rational answers to those

questions, on account of their age.

(iii) If, therefore, the child witness is found

competent to depose to the facts, and is

reliable, his evidence can be relied upon and

can constitute the basis of conviction.

(iv) The Court has to ascertain, for this purpose,

whether (a) the witness is able to understand

the questions put to him and give rational

answers thereto, (b) the demeanour of the

witness is similar to that of any other

competent witness, (c) the witness possesses

sufficient intelligence and comprehension, to

depose, (d) the witness was not tutored, (e) the

witness is in a position to discern between the

right and wrong, truth and untruth, and (f) the

witness fully understands the implications of

what he says, as well as the sanctity that would

attach to the evidence being given by him.

(v) The presumption is that every witness is

competent to depose, unless the court

considers that he is prevented from doing so,

for one of the reasons set out under Section

118 of the Indian Evidence Act, 1987. It is,

therefore, desirable that judges and

Magistrates should always record their

positive opinion that the child understands the

duty of speaking the truth, as, otherwise, the

credibility of the witness would be seriously

affected, and may become liable to rejection

altogether.

(vi) Inasmuch as the Trial Court would have the

child before it, and would be in a position to

accurately assess the competence of the child

to depose, the subjective decision of the Trial

Court, in this regard, deserves to be accorded

due respect. The appellate court would

interfere, therewith, only where the record

indicates, unambiguously, that the child was

not competent to depose as a witness, or that

his deposition was tutored. Twin, and to an

extent mutually conflicting, considerations,

31

have to be borne in mind, while ascertaining

the competency of a child witness to justify. On

the one hand, the evidence of the child witness

has to be assessed with caution and

circumspection, given the fact that children,

especially of tender years, are open to

influence and could possibly be tutored. On the

other hand, the evidence of a competent child

witness commands credibility, as children,

classically, are assumed to bear no ill-will and

malice against anyone, and it is, therefore,

much more likely that their evidence would be

unbiased and uninfluenced by any extraneous

considerations.

(vi) It is always prudent to search for

corroborative evidence, where conviction is

sought to be based, to a greater or lesser

extent, on the evidence of a child witness. The

availability of any such corroborative evidence

would lend additional credibility to the

testimony of the witness.”

67. It is also well settled that under the given facts and circumstances,

conviction on sole testimony 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.

68. Discussing this legal issue, the learned counsel for the State

respondent has placed reliance in the case of Vijay Alias Chinee v. State of

Madhya Pradesh: (2010) 8 SCC 191 at paragraph 9 to 14, wherein the

Hon’ble Supreme Court has observed as follows:

“9. In State of Maharashtra v. Chandraprakash Kewalchand

Jain AIR 1990 SC 658, this Court held that a woman, who is the

victim of sexual assault, is not an accomplice to the crime but is

a victim of another person's lust and, therefore, her evidence

need not be tested with the same amount of suspicion as that of

an accomplice. The Court observed as under:-

"16. A prosecutrix of a sex offence cannot be put on par

with an accomplice. She is in fact a victim of the crime.

The Evidence Act nowhere says that her evidence cannot

32

be accepted unless it is corroborated in material

particulars. She is undoubtedly a competent witness

under Section 118 and her evidence must receive the

same weight as is attached to an injured in cases of

physical violence. The same degree of care and caution

must attach in the evaluation of her evidence as in the

case of an injured complainant or witness and no more.

What is necessary is that the court must be alive to and

conscious of the fact that it is dealing with the evidence

of a person who is interested in the outcome of the

charge levelled by her. If the court keeps this in mind and

feels satisfied that it can act on the evidence of the

prosecutrix, there is no rule of law or practice

incorporated in the Evidence Act similar to illustration

(b) to Section 114 which requires it to look for

corroboration. If for some reason the court is hesitant to

place implicit reliance on the testimony of the prosecutrix

it may look for evidence which may lend assurance to her

testimony short of corroboration required in the case of

an accomplice. The nature of evidence required to lend

assurance to the testimony of the prosecutrix must

necessarily depend on the facts and circumstances of

each case. But if a prosecutrix is an adult and of full

understanding the court is entitled to base a conviction

on her evidence unless the same is shown to be infirm

and not trustworthy. If the totality of the circumstances

appearing on the record of the case disclose that the

prosecutrix does not have a strong motive to falsely

involve the person charged, the court should ordinarily

have no hesitation in accepting her evidence."

10. In State of U.P. v. Pappu,(2005) 3 SCC 594, this Court

held that even in a case where it is shown that the girl is a girl

of easy virtue or a girl habituated to sexual intercourse, it may

not be a ground to absolve the accused from the charge of rape.

It has to be established that there was consent by her for that

particular occasion. Absence of injury on the prosecutrix may

not be a factor that leads the court to absolve the accused. This

Court further held that there can be conviction on the sole

testimony of the prosecutrix and in case, the court is not

satisfied with the version of the prosecutrix, it can seek other

evidence, direct or circumstantial, by which it may get

assurance of her testimony. The Court held as under: (SCC p.

597, para 12)

“12. It is well settled that a prosecutrix complaining of

having been a victim of the offence of rape is not an

accomplice after the crime. There is no rule of law that

her testimony cannot be acted upon without

corroboration in material particulars. She stands at a

33

higher pedestal than an injured witness. In the latter

case, there is injury on the physical form, while in the

former it is both physical as well as psychological and

emotional. However, if the court of facts finds it difficult

to accept the version of the prosecutrix on its face value,

it may search for evidence, direct or circumstantial,

which would lend assurance to her testimony. Assurance,

short of corroboration as understood in the context of an

accomplice, would do."

11. In State of Punjab v. Gurmit Singh & Ors. AIR 1996 SC

1393, this Court held that in cases involving sexual harassment,

molestation etc. the court is duty-bound to deal with such cases

with utmost sensitivity. Minor contradictions or insignificant

discrepancies in the statement of a prosecutrix should not be a

ground for throwing out an otherwise reliable prosecution case.

Evidence of the victim of sexual assault is enough for

conviction and it does not require any corroboration unless

there are compelling reasons for seeking corroboration. The

court may look for some assurances of her statement to satisfy

judicial conscience. The statement of the prosecutrix is more

reliable than that of an injured witness as she is not an

accomplice. The Court further held that the delay in filing FIR

for sexual offence may not be even properly explained, but if

found natural, the accused cannot be given any benefit thereof.

The Court observed as under: (SCC pp. 394-96 & 403, paras 8

& 21)

"8. ……The court overlooked the situation in which a

poor helpless minor girl had found herself in the

company of three desperate young men who were

threatening her and preventing her from raising any

alarm. Again, if the investigating officer did not conduct

the investigation properly or was negligent in not being

able to trace out the driver or the car, how can that

become a ground to discredit the testimony of the

prosecutrix? The prosecutrix had no control over the

investigating agency and the negligence of an

investigating officer could not affect the credibility of the

statement of the prosecutrix. ......The courts must, while

evaluating evidence remain alive to the fact that in a case

of rape, no self-respecting woman would come forward

in a court just to make a humiliating statement against

her honour such as is involved in the commission of rape

on her. In cases involving sexual molestation, supposed

considerations which have no material effect on the

veracity of the prosecution case or even discrepancies in

the statement of the prosecutrix should not, unless the

discrepancies are such which are of fatal nature, be

allowed to throw out an otherwise reliable prosecution

34

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

prosecutrix is not a requirement of law but a guidance of

prudence under given circumstances…….

21. ……The courts should examine the broader

probabilities of a case and not get swayed by minor

contradictions or insignificant discrepancies in the

statement of the prosecutrix, which are not of a fatal

nature, to throw out an otherwise reliable prosecution

case. If evidence of the prosecutrix inspires confidence, it

must be relied upon without seeking corroboration of her

statement 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."

12. In State of Orissa v. Thakara Besra & Anr. (2002) 9 SCC

86, this 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.

13. In State of Himachal Pradesh v. Raghubir Singh (1993) 2

SCC 622, this Court held that there is no legal compulsion to

look for any other evidence to corroborate the evidence of the

prosecutrix before recording an order of conviction. Evidence

has to be weighed and not counted. Conviction can be recorded

on the sole testimony of the prosecutrix, if her evidence inspires

confidence and there is absence of circumstances which

militate against her veracity. A similar view has been reiterated

by this Court in Wahid Khan v. State of Madhya Pradesh

(2010) 2 SCC 9, placing reliance on earlier judgment in

Rameshwar v. State of Rajasthan AIR 1952 SC 54.

14. Thus, the law that emerges on the issue is to the effect

that statement of prosecutrix, if found to be worthy of credence

35

and reliable, requires no corroboration. The court may convict

the accused on the sole testimony of the prosecutrix.”

69. Again coming to the aspect the value of medical evidence in rape

cases, the Hon’ble Supreme Court in the case of Ranjit Hazarika v. State of

Assam: (1998) 8 SCC 635 at paragraph 5 has opined as follows:

“5. The argument of the learned counsel for the appellant

that the medical evidence belies that testimony of the

prosecutrix and her parents does not impress us. The mere fact

that no injury was found on the private parts of the prosecutrix

or her hymen was found to be intact does not belie the

statement of the prosecutrix as she nowhere stated that she bled

per vagina as a result of the penetration of the penis in her

vagina. She was subjected to sexual intercourse in a standing

posture and that itself indicates the absence of any injury on

her private parts. To constitute the offence of rape, penetration,

however slight, is sufficient. The prosecutrix deposed about the

performance of sexual intercourse by the appellant and her

statement has remained unchallenged in the cross-examination.

Neither the non-rupture of the hymen nor the absence of

injuries on her private parts, therefore, belies the testimony of

the prosecutrix particularly when we find that in the cross-

examination of the prosecutrix, nothing has been brought out to

doubt her veracity or to suggest as to why she would falsely

implicate the appellant and put her own reputation at stake.

The opinion of the doctor that no rape appeared to have been

committed was based only on the absence of rupture of the

hymen and injuries on the private parts of the prosecutrix. This

opinion cannot throw out an otherwise cogent and trustworthy

evidence of the prosecutrix. Besides, the opinion of the doctor

appears to be based on "no reasons".

70. This is similar to the facts and circumstances of this instant case as

regard the factum of rape vis-à-vis the non-rupture of the hymen nor the

absence of injuries on her private parts. Therefore, in the said case of Ranjit

Hazarika v. State of Assam (supra) the Hon’ble Supreme Court at

paragraph 6 has recorded it satisfaction that the evidence of the prosecutrix

inspires confidence. Paragraph 6 of the same is reproduced herein below:

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“6. The evidence of the prosecutrix in this case inspires

confidence. Nothing has been suggested by the defence as to

why she should not be believed or why she would falsely

implicate the appellant. We are unable to agree with the

learned counsel for the appellant that in the absence of

corroboration of the statement of the prosecutrix by the medical

opinion, the conviction of the appellant is bad. The prosecutrix

of a sex offence is a victim of a crime and there is no

requirement of law which requires that her testimony cannot be

accepted unless corroborated. In State of Punjab v. Gurmit

Singh (1996) 2 SCC 384, to which one of us (Anand, J.) was a

party, while dealing with this aspect observed: (SCC pp. 395-

96, para 8)

"The courts must, while evaluating evidence, remain

alive to the fact that in a case of rape, no self-respecting

woman would come forward in a court just to make a

humiliating statement against her honour such as is

involved in the commission of rape on her. In cases

involving sexual molestation, supposed considerations

which have no material effect on the veracity of the

prosecution case or even discrepancies in the statement

of the prosecutrix should not, unless the discrepancies

are such which are of fatal nature, be allowed to throw

out an otherwise reliable prosecution case. The inherent

bashfulness of the females and the tendency to conceal

outrage of sexual aggression are factors which the courts

should not overlook. The testimony of the victim in such

cases is vital and unless there are compelling reasons

which necessitate looking for corroboration of her

statement, the courts should find no difficulty to act on

the testimony of a victim of sexual assault alone to

convict an accused where her testimony inspires

confidence and is found to be reliable. Seeking

corroboration of her statement before relying upon the

same, as a rule, in such cases amounts to adding insult to

injury. Why should the evidence of a girl or a woman

who complains of rape or sexual molestation be viewed

with doubt, disbelief or suspicion? The court while

appreciating the evidence of a prosecutrix may look for

some assurance of her statement to satisfy its judicial

conscience, since she is a witness who is interested in the

outcome of the charge leveled by her, but there is no

requirement of law to insist upon corroboration of her

statement to base conviction of an accused. The evidence

of a victim of sexual assault stands almost on a par with

the evidence of an injured witness and to an extent is

even more reliable. Just as a witness who has sustained

some injury in the occurrence, which is not found to be

self-inflicted, is considered to be a good witness in the

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sense that he is least likely to shield the real culprit, the

evidence of a victim of a sexual offence is entitled to

great weight, absence of corroboration notwithstanding.

Corroborative evidence is not an imperative component

of judicial credence in every case of rape. Corroboration

as a condition for judicial reliance on the testimony of

the prosecutrix is not a requirement of law but a

guidance of prudence under given circumstances. It must

not be overlooked that a woman or a girl subjected to

sexual assault is not an accomplice to the crime but is a

victim of another person's lust and it is improper and

undesirable to test her evidence with a certain amount of

suspicion, treating her as if she were an accomplice.

Inferences have to be drawn from a given set of facts and

circumstances with realistic diversity and not dead

uniformity lest that type of rigidity in the shape of rule of

law is introduced through a new form of testimonial

tyranny making justice a casualty. Courts cannot cling to

a fossil formula and insist upon corroboration even if,

taken as a whole, the case spoken of by the victim of sex

crime strikes the judicial mind as probable."

71. In appreciation of the evidence of the prosecutrix in this instant case

and the response of the accused/appellant as far as cross-examination is

concerned, it is seen that the victim has been consistent in her assertion that

the accused/appellant had raped her as was held by the learned Special

Judge. Some discrepancies in the evidence may be there as far as the

presence of the accused/appellant in the room (place of occurrence) is

concerned, however, the factum of rape has not been proved to the contrary.

Therefore, applying the principles as culled out from the above, cited

judgments as far as testimony of the sole prosecutrix is concerned, we are

satisfied that the testimony of the victim (P.W. 1) is trustworthy and could

be relied upon as was done so by the learned Special Judge (POCSO)

Nongstoin.

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72. Again, with regard to the conflict of evidence as far as medical

evidence and ocular evidence is concerned, the case cited in this regard

would reinforce the belief of this Court in a case of sexual assault, especially

that of a minor victim, due weightage is to be given to the ocular evidence as

opposed to medical evidence.

73. On this count too, we find that the case of the prosecution is well

supported as far as the finding of the learned Special Judge is concerned.

74. Another contention raised by the learned counsel for the appellant is

that, the accused was not given the opportunity to have his statement

recorded under Section 164 Cr.P.C which has prejudiced his case.

75. It may be seen that this point was not raised before the learned Trial

Judge and as such, has not figured in the impugned judgment.

76. The appellant in his memo of appeal has simply made one averment

that his statement under Section 164 Cr.P.C has not been recorded.

However, nothing has been pointed out in the grounds of appeal as to how

the same has prejudiced the accused in this case.

77. A look at this Section 164 Cr.P.C. reveals that it is divided into two

parts, one with regard to “confession” which is found in sub-sections (1) to

(4) and the other is with regard to “statement” (other than confession), which

referred to in sub-section (5) thereof. Sub-section (6) of Section 164 Cr.P.C.

provides that the Magistrate recording a confession or statement under this

Section shall forward it to the Magistrate by whom the case is to be inquired

39

into or tried. While confession of the accused under Section 164 Cr.P.C. is

recorded when he has turned approver and is granted pardon in terms of

Section 306 Cr.P.C. which was not the case in the present matter. Thus

argument of the learned counsel for the accused/appellant is, therefore,

wholly without any substance.

78. In view of the detailed analysis of evidence and overall consideration

of the facts and circumstances of the case, this Court finds that the impugned

judgment and order does not suffer from any infirmity and the same is

hereby upheld.

79. This appeal is accordingly dismissed. However, no costs.

(W. Diengdoh) (Mohammad Rafiq)

Judge Chief Justice

Meghalaya

30.01.2020

“D. Nary, PS”