1

2026:CGHC:3194-DB

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

CRA No. 1226 of 2021

Mohd. Hussain @ Salim S/o Shri Mohd. Ali, Aged About 40 Years R/o

Santoshi Nagar, Taj Nagar, P.S. Tikrapara, Raipur, District Raipur

Chhattisgarh, District : Raipur, Chhattisgarh

... Appellant(s)

versus

State Of Chhattisgarh Through P.S. Tikrapara, Raipur, District Raipur

Chhattisgarh, District : Raipur, Chhattisgarh

... Respondent(s)

For Appellant(s) :Mr. Kashif Shakeel, Advocate

For Respondent(s) :Mr. Saurabh Sahu, Panel Lawyer

Hon'ble Shri Ramesh Sinha, Chief Justice

Hon'ble Shri Ravindra Kumar Agrawal , Judge

Judgment on Board

Per Ramesh Sinha , Chief Justice

20.01.2026

1.Heard Mr. Kashif Shakeel, learned counsel for the appellant. Also

heard Mr. Saurabh Sahu, learned Panel Lawyer, appearing for the

respondent/State.

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2.This criminal appeal is preferred under Section 374(2) of the Code

of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the

impugned judgment of conviction and order of sentence dated

30.09.2021, passed by the learned Additional District Judge, First Fast

Track Special Court, Raipur (C.G.), in Special Criminal Case No.

55/2019, by which the appellant has been convicted for the offences

punishable under Section 376 (AB) of the IPC and sentenced him to life

imprisonment (till remainder of natural life) and fine of Rs.50,000/-, in

default of payment of fine additional rigorous imprisonment for 01 year.

3.Case of the prosecution, in brief, is that the father of the victim

submitted a written report at Police Station Tikrapara stating that on

12.03.2019 at about 10:00 p.m., he was present at his residence. His

minor daughter had gone towards the bathroom and did not return for a

considerable time. Upon going to enquire, he noticed the accused

Hussain standing in the vacant space adjoining the bathroom and found

him committing an act constituting sexual assault upon the victim child.

On seeing the complainant, the accused fled from the spot. It is further

alleged that upon enquiry, the victim disclosed that the accused had

subjected her to similar acts on four to five occasions earlier. On the

basis of the said written report, FIR No. 194/2019 was registered at

Police Station Tikrapara for offences punishable under Section 376 of

the IPC and Sections 3 and 4 of the POCSO Act, 2012, and the matter

was taken up for investigation.

4.During investigation, the accused was arrested. Upon completion

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of investigation, sufficient material was found against the accused, and

consequently, a charge-sheet was filed before the Court of the then

Seventh Additional Sessions Judge (FTC), Raipur on 11.04.2019.

5.On 07.05.2019, charges under Section 376-AB of the Indian

Penal Code and Section 6 of the Protection of Children from Sexual

Offences Act, 2012 were framed against the accused. The charges

were read over and explained to him, to which he pleaded not guilty and

claimed trial.

6.In support of its case, the prosecution examined seven witnesses

and exhibited twenty-five documents. After completion of prosecution

evidence, the statement of the accused was recorded under Section

313 of the Code of Criminal Procedure, wherein he denied the

allegations and claimed false implication.

7.In defence, the accused examined one witness, namely Mrs.

Amina Bee (DW-1). Thereafter, the defence evidence was closed on

04.09.2021.

8.After appreciation of evidence available on record, the learned

trial Court has convicted the accused/appellant and sentenced him as

mentioned in paragraph-2 of the judgment. Hence, this appeal.

9.Mr. Kashif Shakeel, learned counsel for the accused/appellant

submits that the judgment of conviction and sentence dated 30.09.2021

passed by the Learned trial Court, is contrary from the facts available on

record and is liable to be set-aside. The learned Court below has

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convicted the appellant only on the ground of presumption and

suspicious. There is no sufficient evidence which shows that the

appellant has committed above mentioned offences. The prosecution

has not produced any reliable evidence which shows that the appellant

has committed sexual assault with the victim forcefully.

10.Learned counsel for the appellant submits that the impugned

judgment is contrary to the law as well as the facts and circumstances

of the case, inasmuch as the learned trial Court has grossly

misappreciated and misunderstood the evidence available on record. It

is contended that the prosecution has failed to establish its case beyond

reasonable doubt, yet the Court below has proceeded to record

conviction on surmises and conjectures. Particular emphasis is placed

on the testimony of the medical witness, PW-7 (Doctor), who

categorically deposed that upon internal examination the hymen of the

victim was found intact and that there were no signs of injury, swelling,

redness or bleeding in or around the genital area. She further stated

that the genitalia were normal and healthy and that there were no

indications of recent sexual intercourse. The doctor also opined that

since the hymen was intact, a final opinion could not be given and no

vaginal slide was prepared. According to learned counsel, this medical

evidence completely demolishes the prosecution version and renders

the allegation of rape highly doubtful. It is further submitted that the

learned trial Court failed to properly appreciate the material omissions

and contradictions in the statements of prosecution witnesses,

particularly the victim, who in her statement under Section 161 Cr.P.C.

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did not allege penetration but stated that the act was committed

between the thighs, thereby materially deviating from the prosecution

case. Learned counsel further argues that the alleged place of

occurrence is an open courtyard situated between the bathroom and the

residential room of the victim’s family, which is visible to nearby

residents, making the prosecution story inherently improbable. It is also

contended that there existed prior animosity between the victim’s father

and the appellant in relation to a dispute concerning rent and patta, and

that the criminal case was instituted with an ulterior motive to settle

scores and harass the appellant and his family, a fact which emerges

from the evidence of various witnesses. Lastly, it is urged that the

learned trial Court erred in discarding the testimony of Amina Bee (DW-

1), a material defence witness, merely by branding her as an interested

witness, without assigning any cogent or justifiable reasons, thereby

vitiating the findings recorded in the impugned judgment.

11.Per contra, learned State counsel opposes the appeal and

supports the impugned judgment, submitting that the learned trial Court

has correctly appreciated the oral and documentary evidence available

on record and has recorded findings strictly in accordance with law. It is

contended that the testimony of the victim child is natural, cogent and

trustworthy and inspires confidence, and that the conviction can safely

be based upon her sole testimony, particularly in view of the statutory

presumption under Sections 29 and 30 of the Protection of Children

from Sexual Offences Act, 2012. Learned State counsel further submits

that minor omissions or inconsistencies, if any, in the statements of the

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prosecution witnesses do not go to the root of the case and are bound

to occur in the testimony of a child witness. With regard to the medical

evidence, it is argued that absence of injuries or the finding of an intact

hymen does not rule out the commission of sexual assault, especially

when the ocular testimony of the victim remains consistent and credible.

It is further submitted that the place of occurrence has been duly proved

and the incident having taken place during night hours cannot be said to

be improbable merely because the location was accessible to others.

Learned State counsel also contends that the alleged previous enmity

relating to rent or property has not been conclusively established and, in

any event, cannot be a ground to discard the otherwise reliable

prosecution evidence. It is lastly urged that the learned trial Court has

rightly disbelieved the defence witness after due consideration, and no

perversity or illegality can be attributed to the findings recorded,

warranting interference by this Court.

12.We have heard learned counsel for the parties and considered

their rival submissions made herein-above and also went through the

original records of the learned trial Court with utmost circumspection

and carefully as well.

13.Now, the first question for consideration is whether the victim was

a minor girl being below the age of 12 or 18 years on the date of

incident.

14.In this regard, the prosecution has duly proved the age of the

victim through cogent documentary and oral evidence. The Investigating

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Officer, Salik Ram Sahu (PW-5), seized the Class-I progress report of

the victim vide seizure memo Exhibit P-12, which has been proved as

Article A-1, wherein the date of birth of the victim is recorded as

01.09.2011. The said document has been duly proved by the

Headmistress of the school, PW-2, who verified the same. Further, the

admission/mutation register of the school was seized vide Exhibit P-03,

and the certified copy of the said register has been exhibited as Exhibit

P-02 and Exhibit P-02C, which also record the date of birth of the victim

as 01.09.2011.

15.The oral testimony of the victim (PW-1) and her father (PW-3)

consistently establishes that the victim was about 8 years of age at the

time of the incident, and their evidence in this regard remained

unchallenged in cross-examination. The medical documents Exhibit P-

16 and Exhibit P-18, as well as the statement of the victim recorded

under Section 164 Cr.P.C. (Exhibit P-01), also mention the age of the

victim as 8 years. The defence has not disputed either the documentary

or oral evidence relating to the age of the victim.

16.Applying the principles laid down by the Hon’ble Supreme Court in

Jarnail Singh v. State of Haryana (2013) 7 SCC 263 and in

accordance with Section 94 of the Juvenile Justice (Care and Protection

of Children) Act, 2015, this Court holds that on the date of the incident,

i.e. 12.03.2019, the victim was approximately 7 years and 6 months old,

and thus a child below 12 years of age. Accordingly, the prosecution

has proved beyond reasonable doubt that the victim was a “child” within

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the meaning of Section 2(d) of the POCSO Act and below the age

contemplated under Section 376-AB IPC

17.So far as the allegation with regard to rape committed by the

appellant against the victim is concerned, in cases of sexual offences,

the victim is the primary witness, as the alleged offence is committed

directly against her, while other witnesses generally play a corroborative

or formal role. In the present case, the victim is an innocent girl of

approximately 7 years and 6 months. Given her age, direct independent

evidence may be limited, therefore, a careful and holistic analysis of her

testimony, supporting evidence, and documentary records is required to

reach a conclusion.

18.Being a child under the age of twelve, the victim (PW-01) was first

examined to determine her competence to testify. The trial Court posed

general questions to ensure she could understand and answer

appropriately. Her evidence was then recorded in camera, without oath,

in the presence of the accused and his counsel, while the accused was

not shown to her. The child witness was subsequently examined and

cross-examined in court.

19.The victim (PW-01) stated in her examination that she knows the

accused Mohd. Hussain alias Salim, as he lives in her neighbourhood.

In clause 3, the victim has stated that the accused's house is adjacent

to hers. Whenever she used to go to her bathroom to urinate, the

accused used to catch her from behind. Holding her, the accused used

to remove her panties and leggings. After this, the accused used to

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remove his underwear etc. and put his genitals on her urination place

and move his body and after some time, he used to release her. The

accused used to give her five rupees and told her not to tell anyone.

Due to fear, she did not tell anyone about this.

20.In Paragraph 4 of her examination, the victim stated that the

incident occurred approximately three/four/five months ago. At around

10:00 pm, while she was returning from the bathroom, the accused

removed her panties and underwear, removed his own underwear, and

inserted his genitals into her urinal. Seeing her father entering the

bathroom, he released her. Her father yelled at her, and she then went

to sleep. In Paragraph 5, the victim stated that her statement had been

recorded before a judicial magistrate.

21.The father of the victim (PW-03) in his court statement has stated

that he knew Mohammad Hussain alias Salim well because he was his

neighbor. On March 12, 2019, around 10:00 p.m., he returned from

work and was sitting on his bed in his room. When he did not see the

victim, he called his wife where the victim was, on which his wife told

him that the victim had gone to the bathroom. When she did not return

for a long time, he got up and went to look for the victim, where he saw

that in the courtyard, his daughter was removing the lowers worn by the

victim and removing his underwear, the accused Mohammad Hussain

was inserting his penis into the victim's private parts and was having

sexual relations with her and was doing wrong things.

22.The victim's father (PW-3) stated in paragraph 3 of his testimony

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in the chief examination that, upon seeing this, he yelled at the accused,

who then released the victim and told him that he was actually making

love to her. He then brought the victim home and questioned her, and

she told him and his wife that the accused, Mohammad Hussain alias

Salim, had already had sexual intercourse with her four or five times.

After intercourse, the accused would give her five rupees each time and

tell her not to tell her parents. In paragraph 4, the witness stated that it

was night at that time. Therefore, the incident was not reported that

night. The next day, on March 13, 2019, at 11:00 a.m., she informed her

acquaintances and relatives about the incident. She then went to

Tikrapara Police Station and submitted a written application, Exhibit P-5,

regarding the incident. It was presented, on the basis of which FIR of

the case Exhibit P-06 was registered by the police.

23.Thus, the father of the victim has also given a proper explanation

in his examination for not being able to lodge a report of the incident

immediately and has also clarified that on the night of 12-03-2019 at

around 10:00 pm, he himself saw the accused committing the crime

with the victim, then he took his daughter/victim to his home and

questioned her and as it was late in the night, on the very next day i.e.

13-03-2019, the father of the victim immediately went to the police

station and lodged a written complaint (Exhibit P-05) and FIR (Exhibit P-

06) against the accused, then the delay in lodging the FIR in the case

and his evidence regarding the sequence of events after the incident

becomes relevant.

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24.The father of the victim (PW-03) in the main examination itself

accepted the proceedings of the site map (Ex.P-7), consent taken from

him and his wife for medical examination of the victim (Ex.P-8 and P-9),

seizure memo (Ex.P-10, P-11 and P-12), surrender deed (Ex.P-13),

arrest memo (Ex.P-14), map of the spot prepared by the Patwari (Ex.P-

15) and his signature on them and related to the investigation, he has

supported all the proceedings. This witness has also stated that the

police interrogated him regarding the incident and recorded his

statement.

25.Thus, the victim (PW-1) and the victim's father (PW-3) have

supported the prosecution's case by clearly stating in their court

evidence that the accused had committed rape and aggravated

penetrative sexual assault on the victim. The victim's father (PW-3) has,

through his statements, proved the credibility of the written complaint

(Ex.P-05) and the FIR filed on its basis (Ex.P-06). Their statements

corroborate the fact that the accused committed the atrocity on the

victim. Considering the circumstances of the case, the victim's

statements are corroborated by the victim's father (PW-03).

26.Dr. Sudha Samuel (PW-07) examined the victim and issued a

medical report (Exhibit P-16). She observed no visible injuries or

abnormality and reported that a definite opinion regarding immediate

sexual intercourse could not be given due to the intact hymen. The

victim’s clothing was sent for chemical analysis (Ex.P-17).

27.Dr. P.K. Gupta (PW-04) examined the accused and sent his

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underwear for forensic analysis (Ex.P-17).

28.The Forensic Science Laboratory report (Ex.P-25) confirmed the

presence of semen and human sperm on both the victim’s lower

garment and the accused’s underwear, corroborating the victim’s

testimony. The defence argument that the intact hymen negates the

offence is legally untenable, as minimal penetration constitutes

penetrative sexual assault under Explanation 1 to Section 375 IPC.

29.The defence claimed the complaint arose from a tenancy dispute.

However, this was refuted by the victim’s father (PW-03) and partially by

defence witness Mrs. Amina Bee (DW-01). Evidence shows that the

accused and the victim’s family lived in separate portions of the same

house, sharing a courtyard and bathroom. The location of the incident is

confirmed by site maps (Exhibits P-07 & P-15) and corroborates the

victim’s and her father’s testimony.

30.The accused, in his Section 313 CrPC statement, claimed that he

only joked with the victim. However, the Court finds this explanation

implausible, given the timing and circumstances. The victim’s evidence,

corroborated by her father and forensic reports, is credible.

31.After considering the testimony of the victim (PW-01), her father

(PW-03), medical evidence (PW-07, PW-04), investigative evidence

(PW-05), site maps (PW-06), and the FSL report (Ex.P-25), the Court

finds that the offence of rape and aggravated penetrative sexual assault

on a girl under 12 years of age on 12-03-2019, around 10:00 p.m., is

proved beyond reasonable doubt.

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32.In view of above discussion, we also affirm finding recorded by the

trial Court that the appellant is the perpetrator of instant crime.

33.In the case of Ganesan vs. State, reported in (2020) 10 SCC

573, the Hon’ble Supreme Court observed and held that there can be a

conviction on the sole testimony of the victim/prosecutrix when the

deposition of the victim is found to be trustworthy, unblemished, credible

and her evidence is of sterling quality. In the aforesaid case, the Hon’ble

Supreme Court had an occasion to consider the series of judgments on

conviction on the sole evidence of the victim. In paragraphs 10.1 to

10.3, it was observed and held as under:

“10.1. Whether, in the case involving sexual

harassment, molestation, etc., can there be

conviction on the sole evidence of the prosecutrix, in

Vijay [Vijay vs. State of M.P., (2010) 8 SCC 191], it

is observed in paras 9 to 14 as under: (SCC pp. 195-

98)

“9. In State of Maharashtra vs. Chandraprakash

Kewalchand Jain [State of Maharashtra vs.

Chandraprakash Kewalchand Jain, reported in

(1990) 1 SCC 550] this Court held that a woman,

who is the victim of sexual assault, is not an

accomplice to the crime but is a victim of another

person's lust and, therefore, her evidence need not

be tested with the same amount of suspicion as that

of an accomplice. The Court observed as under:

(SCC p. 559, para 16)

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

a par with an accomplice. She is in fact a victim of

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the crime. The Evidence Act nowhere says that her

evidence cannot be accepted unless it is

corroborated in material particulars. She is

undoubtedly a competent witness under Section 118

and her evidence must receive the same weight as is

attached to an injured in cases of physical violence.

The same degree of care and caution must attach in

the evaluation of her evidence as in the case of an

injured complainant or witness and no more. What is

necessary is that the court must be alive to and

conscious of the fact that it is dealing with the

evidence of a person who is interested in the

outcome of the charge levelled by her. If the court

keeps this in mind and feels satisfied that it can act

on the evidence of the prosecutrix, there is no rule of

law or practice incorporated in the Evidence Act

similar to Illustration (b) to Section 114 which

requires it to look for corroboration. If for some

reason the court is hesitant to place implicit reliance

on the testimony of the prosecutrix it may look for

evidence which may lend assurance to her testimony

short of corroboration required in the case of an

accomplice. The nature of evidence required to lend

assurance to the testimony of the prosecutrix must

necessarily depend on the facts and circumstances

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

full understanding the court is entitled to base a

conviction on her evidence unless the same is

shown to be infirm and not trustworthy. If the totality

of the circumstances appearing on the record of the

case disclose that the prosecutrix does not have a

strong motive to falsely involve the person charged,

the court should ordinarily have no hesitation in

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accepting her evidence.’

10. In State of U.P. vs. Pappu [State of U.P. vs.

Pappu, reported in (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

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.’

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11. In State of Punjab vs. Gurmit Singh [State of

Punjab vs. Gurmit Singh, reported in (1996) 2 SCC

384], this Court held that in cases involving sexual

harassment, molestation, etc. the court is duty-bound

to deal with such cases with utmost sensitivity. Minor

contradictions or insignificant discrepancies in the

statement of a prosecutrix should not be a ground for

throwing out an otherwise reliable prosecution case.

Evidence of the victim of sexual assault is enough for

conviction and it does not require any corroboration

unless there are compelling reasons for seeking

corroboration. The court may look for some

assurances of her statement to satisfy judicial

conscience. The statement of the prosecutrix is more

reliable than that of an injured witness as she is not

an accomplice. The Court further held that the delay

in filing FIR for sexual offence may not be even

properly explained, but if found natural, the accused

cannot be given any benefit thereof. The Court

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

& 21)

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

poor helpless minor girl had found herself in the

company of three desperate young men who were

threatening her and preventing her from raising any

alarm. Again, if the investigating officer did not

conduct the investigation properly or was negligent in

not being able to trace out the driver or the car, how

can that become a ground to discredit the testimony

of the prosecutrix? The prosecutrix had no control

over the investigating agency and the negligence of

an investigating officer could not affect the credibility

of the statement of the prosecutrix. …The courts

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must, while evaluating evidence, remain alive to the

fact that in a case of rape, no self-respecting woman

would come forward in a court just to make a

humiliating statement against her honour such as is

involved in the commission of rape on her. In cases

involving sexual molestation, supposed

considerations which have no material effect on the

veracity of the prosecution case or even

discrepancies in the statement of the prosecutrix

should not, unless the discrepancies are such which

are of fatal nature, be allowed to throw out an

otherwise reliable prosecution case. …Seeking

corroboration of her statement before relying upon

the same, as a rule, in such cases amounts to

adding insult to injury. …Corroboration as a condition

for judicial reliance on the testimony of the

prosecutrix is not a requirement of law but a

guidance of prudence under given circumstances. …

***

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

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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 vs. Thakara Besra [State of

Orissa vs. Thakara Besra, reported in (2002) 9

SCC 86], this Court held that rape is not mere

physical assault, rather it often distracts (sic

destroys) the whole personality of the victim. The

rapist degrades the very soul of the helpless female

and, therefore, the testimony of the prosecutrix must

be appreciated in the background of the entire case

and in such cases, non-examination even of other

witnesses may not be a serious infirmity in the

prosecution case, particularly where the witnesses

had not seen the commission of the offence.

13. In State of H.P. vs. Raghubir Singh [State of

H.P. vs. Raghubir Singh, reported in (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 vs. State of M.P. [Wahid

Khan vs. State of M.P., reported in (2010) 2 SCC 9]

placing reliance on an earlier judgment in

Rameshwar vs. State of Rajasthan [Rameshwar

vs. State of Rajasthan, reported in AIR 1952 SC

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54].

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

effect that the statement of the prosecutrix, if found

to be worthy of credence and reliable, requires no

corroboration. The court may convict the accused on

the sole testimony of the prosecutrix.”

10.2. In Krishan Kumar Malik vs. State of Haryana

[Krishan Kumar Malik vs. State of Haryana,

reported in (2011) 7 SCC 130], it is observed and

held by this Court that to hold an accused guilty for

commission of an offence of rape, the solitary

evidence of the prosecutrix is sufficient, provided the

same inspires confidence and appears to be

absolutely trustworthy, unblemished and should be of

sterling quality.

10.3. Who can be said to be a “sterling witness”, has

been dealt with and considered by this Court in Rai

Sandeep vs. State (NCT of Delhi) [Rai Sandeep

vs. State (NCT of Delhi), reported in (2012) 8 SCC

21]. In para 22, it is observed and held as under:

(SCC p. 29)

“22. In our considered opinion, the “sterling witness”

should be of a very high quality and caliber whose

version should, therefore, be unassailable. The court

considering the version of such witness should be in

a position to accept it for its face value without any

hesitation. To test the quality of such a witness, the

status of the witness would be immaterial and what

would be relevant is the truthfulness of the statement

made by such a witness. What would be more

relevant would be the consistency of the statement

right from the starting point till the end, namely, at the

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time when the witness makes the initial statement

and ultimately before the court. It should be natural

and consistent with the case of the prosecution qua

the accused. There should not be any prevarication

in the version of such a witness. The witness should

be in a position to withstand the cross-examination of

any length and howsoever strenuous it may be and

under no circumstance should give room for any

doubt as to the factum of the occurrence, the

persons involved, as well as the sequence of it. Such

a version should have co-relation with each and

every one of other supporting material such as the

recoveries made, the weapons used, the manner of

offence committed, the scientific evidence and the

expert opinion. The said version should consistently

match with the version of every other witness. It can

even be stated that it should be akin to the test

applied in the case of circumstantial evidence where

there should not be any missing link in the chain of

circumstances to hold the accused guilty of the

offence alleged against him. Only if the version of

such a witness qualifies the above test as well as all

other such similar tests to be applied, can it be held

that such a witness can be called as a “sterling

witness” whose version can be accepted by the court

without any corroboration and based on which the

guilty can be punished. To be more precise, the

version of the said witness on the core spectrum of

the crime should remain intact while all other

attendant materials, namely, oral, documentary and

material objects should match the said version in

material particulars in order to enable the court trying

the offence to rely on the core version to sieve the

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other supporting materials for holding the offender

guilty of the charge alleged.”

34.In the case of State (NCT of Delhi) vs. Pankaj Chaudhary,

reported in (2019) 11 SCC 575, it was observed and held that as a

general rule, if credible, conviction of accused can be based on sole

testimony, without corroboration. It was further observed and held that

sole testimony of victim should not be doubted by Court merely on basis

of assumptions and surmises. In paragraph 29, it was observed and

held as under:

“29. It is now well-settled principle of law that

conviction can be sustained on the sole testimony of

the prosecutrix if it inspires confidence. [Vishnu vs.

State of Maharashtra [Vishnu vs. State of

Maharashtra, reported in (2006) 1 SCC 283]. It is

well-settled by a catena of decisions of this Court

that there is no rule of law or practice that the

evidence of the prosecutrix cannot be relied upon

without corroboration and as such it has been laid

down that corroboration is not a sine qua non for

conviction in a rape case. If the evidence of the

victim does not suffer from any basic infirmity and

the “probabilities factor” does not render it unworthy

of credence, as a general rule, there is no reason to

insist on corroboration except from medical

evidence, where, having regard to the circumstances

of the case, medical evidence can be expected to be

forthcoming. [State of Rajasthan vs. N.K. [State of

Rajasthan vs. N.K., reported in (2000) 5 SCC 30].”

35.Upon careful scrutiny of the evidence, this Court finds that the

22

prosecution has clearly established the guilt of the accused, Mohd.

Hussain @ Salim, beyond reasonable doubt for the offences punishable

under Section 376-AB of the Indian Penal Code. The victim (PW-01), a

girl of approximately 7 years and 6 months, is the principal witness in

the case. Her testimony is consistent, coherent, and reliable, detailing

the sequence of acts committed by the accused. Her statements were

corroborated by her father (PW-03), an eyewitness, whose account

confirms the occurrence of the incident, the circumstances immediately

following it, and the reporting of the matter the following day through a

written complaint (Exhibit P-05) and the FIR (Exhibit P-06).

36.The medical evidence provided by Dr. Sudha Samuel (PW-07)

and Dr. P.K. Gupta (PW-04) indicates that the victim’s hymen was intact

and no injuries were detected. However, as per Explanation 1 to Section

375 IPC, penetration of the labia majora constitutes penetrative sexual

assault. Further, the forensic report (Exhibit P-25) confirms the

presence of semen and human sperm on the victim’s lower garment

(Exhibit P-17) and the accused’s underwear (Exhibit P-17), thereby

scientifically corroborating the victim’s testimony.

37.The investigation conducted by Sub-Inspector Salik Ram Sahu

(PW-05) and others was meticulous. All procedural requirements,

including seizure memos (Exhibits P-10 to P-12), site maps (Exhibits P-

07 & P-15), and consents for medical examination (Exhibits P-08 & P-

09), were duly complied with. The defense has not been able to cast

doubt on the authenticity of these documents or the integrity of the

23

investigation.

38.The defense argued that the case arose out of a tenancy dispute.

However, evidence shows that the accused and the victim’s family

resided in separate portions of the same house, sharing only a

courtyard and common bathroom. The defense theory of false

accusation is unsupported and contradicted by the evidence, including

the statements of DW-01 and the victim’s father (PW-03).

39.Considering the totality of evidence, the oral testimony of the

victim and her father, the corroborative medical and forensic evidence,

and the investigative records, the Court finds that the accused

deliberately and knowingly committed aggravated penetrative sexual

assault on a girl under the age of twelve. The evidence is internally

consistent, credible, and unimpeached, and no contradictions or

omissions raised by the defense create reasonable doubt about the

commission of the offence.

40.Consequently, the conviction and sentence as awarded by the trial

court under Section 376-AB of the Indian Penal Code (IPC) is hereby

upheld. So far as the conviction under above mentioned Section is

concerned, the same is also upheld, however, this Court is of the view

that the sentence of life imprisonment (till remainder of natural life), is

too harsh and instead, the same is converted to rigorous imprisonment

for 20 years. The imposition of fine amount and the default sentence is

upheld.

41.The appellant is stated to be in jail. He is directed to serve out the

24

sentence as modified above.

42.The criminal appeal is partly allowed to the extent indicated

hereinabove.

43.Registry is directed to send a copy of this judgment to the

concerned Superintendent of Jail where the appellant is undergoing the

jail term, to serve the same on the appellant informing him that he is at

liberty to assail the present judgment passed by this Court by preferring

an appeal before the Hon’ble Supreme Court with the assistance of

High Court Legal Services Committee or the Supreme Court Legal

Services Committee.

44.Let a copy of this judgment and the original record be transmitted

to the trial Court concerned forthwith for necessary information and

compliance.

Sd/- Sd/-

(Ravindra Kumar Agrawal) (Ramesh Sinha)

Judge Chief Justice

Manpreet