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2026:CGHC:9424-DB

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

Judgment reserved on: 10.02.2026

Judgment delivered on: 24.02.2026

ACQA No. 227 of 2018

State Of Chhattisgarh Through The Station House Officer, Police

Station Podi, District Korea Chhattisgarh

... Appellant

versus

1 - Philomina Kerketta D/o Guruwaro Kerketta Aged About 23 Years R/o

Chuipani, Narayanpur, Police Station Jhagrakhand, Present Address

Jyoti Mission School, Sarbhoka, Police Station Podi, District Korea

Chhattisgarh

2 - Joseph Dhanna Swami S/o Tambu Swami Aged About 50 Years Vest

Tejour Tamilnadu, Present Address Jyoti Mission School, Sarbhoka,

Police Station Podi, District Korea Chhattisgarh

3 - Kishariya D/o T.J. Chako Aged About 36 Years Pittarika, District

Kasalgod, Keral, Present Address Jyoti Mission School, Sarbhoka,

Police Station Podi, District Korea Chhattisgarh

... Respondent(s)

For Appellant :Mr.Priyank Rathi, Government Advocate

For Respondent(s) :Mr.Aishwarya Kumar Dubey, Advocate

Hon'ble Shri Ramesh Sinha, Chief Justice and

Hon'ble Shri Ravindra Kumar Agrawal, Judge

C.A.V. Judgment

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Per Ramesh Sinha, C.J.

1.The appellant-State has filed this acquittal appeal under Section

378(1) of the CrPC against the impugned judgment of acquittal

dated 9.1.2017 passed by the Additional Sessions Judge (Fast

Track Court), Baikunthpur, District Korea in Special S.T. No.03/16,

whereby the trial Court has acquitted respondent No.1 from

charges punishable under Sections 202, 119, 376(2)(d)(f)(i)(k) of

the Indian Penal Code (hereinafter called as “IPC”) and under

Section 21 of the Protection of Children from Sexual Offences Act,

2012 (hereinafter called as “POCSO Act”), respondent No.2 from

charges under sections 376(2) (d)(f)(i)(k) and 377 of the IPC and

Section 6 of the POCSO Act and respondent No.3 from charges

under Sections 202, 119 and 323 of the IPC and Section 21 of the

POCSO Act.

2.The case of the prosecution in brief is that complainant Laxmaniya

(mother of the victim) (PW-1) made a written report (Ex.P-1) at

Podi Police Station on 9.9.2015 stating that she lives in Tina

Dafaai, Ward No.19, Haldibadi, Chirmiri and works as a maid. Her

daughter, the victim, aged 9, studies in Class 4 at Jyoti Mission

School, Sarbhoka and lives in the hostel. On 9.9.2015 at 9 A.M.

security guard Abdul Wasim informed her via mobile phone that

her daughter, the victim, was unwell. She then went to Mission

School, Sarbhoka, with her neighbour, Sanjay and reported that

she was bleeding when she went to the bathroom and

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experiencing stomach pain. On Monday night, an unknown person

had allegedly assaulted her urinary tract. She reported this to

Madam Kismariya, who beat her with a stick and threatened her

not to tell anyone.

3.On the basis of complaint made by complainant Laxmaniya

(mother of the victim), the Police of Police Station Chirmiri,

District-Korea (CG) has lodged an F.I.R. in Crime No. 105/2015

for offence punishable under Section 376(2)(f) of the IPC and

under Section 4 of the POCSO Act against unknown persons on

10.09.2015 vide Ex.P-2. Consent for medical examination was

obtained from the victim and her mother vide Ex.P-3. One

prescription was seized vide Ex.P-4. Certified copy of birth

certificate of the victim in which her date of birth has been

mentioned as 29.05.2007 was seized vide Ex.P-5. Birth certificate

of the victim was seized vide Ex.P-6 ‘C’. Photocopy of Aadhar

Card of the victim was seized vide Ex.P-7’C’. Spot map was

prepared by the patwari vide Ex.P-8. Spot panchnama was

prepared vide Ex.P-9. Statements of the victim and her mother

under Section 164 CrPC were recorded vide Ex.P-10. Test

identification parade was conducted by the Tahsildar and

Executive Magistrate, Manendragarh vide Ex.P-11 in which she

identified accused / respondent No.2-Joseph Dhanna Swami by

touching. MLC of the victim was conducted by Dr.Smt.Kalawati

Patel (PW-7) vide Ex.P-15 on 10.09.2015 and found following

injuries/symptoms:

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1. The victim had swelling and injury on her left wrist

measuring 1 x 1.4 inches and causing pain. This injury

was on the upper part of the wrist.

2. There were no injury on face, nor on the chest or

abdomen.

3. The victim had an injury on the right side of her

vagina, the length of the injury was half an inch by one

inch.

4. Below this injury was another injury which was ¼

inch by ½ inch. The victim also had a bruise on the left

side of her vagina, measuring ½ inch by 2 inch. Below

this bruise was a second bruise measuring ¼ inch by

½ inch. Vaginal vulva was swollen and red with

bleeding and some of the blood was stuck in clots.

5. The victim was saying that all the above injuries

were painful to touch.

6. The child is reporting pain in the thighs when her

legs are stretched out while lying down.

7. The victim had a total 24 teeth.

According to her, many injuries were found in the private parts of

the victim and there were injuries in the wrist joint of the left hand

and she had complained of pain. The victim was again examined

by Dr.Madhurima Painkra (PW-4) on 16.09.2015 vide Ex.P-13 and

found following symptoms:-

1. The victim had 24 teeth.

2. The victim was physically and mentally healthy.

3. The victim’s gait was normal.

4. The victim’s had not developed secondary sexual

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characteristics.

5. No external or internal injury was found on the body

of the victim.

6. There is no mark of injury on private part, hymen

intact, hymen membrane seen. Vagina would not enter

tip of little finger.

4.The accused / respondent No.2-Joseph Dhanna Swami was also

sent for medical examination to Community Health Center,

Manendragarh where Dr.Surendra Singh (PW-10) examined him

and found competent of doing intercourse. However, semen slides

could not be prepared due to non-cooperation of the person.

Slides of the victim were seized vide Ex.P-20. The victim’s

statement was recorded before the Child Welfare Committee,

Baikunthpur vide Ex.P-21. Investigating officer also prepared the

spot map vide Ex.P-24. Respondent No.1-Philomina was arrested

on 11.09.2015 vide arrest memo Ex.P-27, respondent No.2-

Joseph Dhanna Swami was arrested on 11.09.2015 vide Ex.P-28

and respondent No.3-Krismariya was arrested on 11.09.2015 vide

arrest memo Ex.P-29. Seized articles were sent to FSL for

chemical examination and as per FSL report (Ex.P-34), semen

stains and human sperm were found in Article “B” underwear

seized from the victim.

5.Upon completion of investigation, a charge-sheet was filed before

the competent criminal Court in accordance with law. Charges

were framed against the accused / respondents, which were read

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over and explained to them. The accused denied the charges.

Their statements under Section 313 of the Code of Criminal

Procedure were recorded, wherein they claimed to be innocent

and alleged false implication.

6. In order to bring home the offence, the prosecution examined as

many as 19 witnesses and exhibited 36 documents. The accused-

respondents examined none in their defence nor any document

has been exhibited in support of their case.

7.The trial Court upon appreciation of oral and documentary

evidence available on record, by its judgment dated 9.1.2017,

acquitted respondent No.1 from charges punishable under

Sections 202, 119, 376(2)(d)(f)(i)(k) of the IPC and under Section

21 of the POCSO Act, respondent No.2 from charges under

Sections 376(2) (d)(f)(i)(k) and 377 of the IPC and Section 6 of the

POCSO Act and respondent No.3 from charges under Sections

202, 119 and 323 of the IPC and Section 21 of the POCSO Act.

Hence, this acquittal appeal.

8.Mr.Priyank Rathi, learned Government Advocate appearing for the

appellant / State submits that learned trial Court has passed the

impugned judgment in a cryptic and laconic manner without

appreciating the material available on record. The impugned

judgment is absolutely bad in law as the same has been passed

without appreciating the material available on record. He further

submits that the trial Court ought to have seen that the

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prosecution witnesses are natural and truthful and they have

given the true version of the occurrence. Learned trial Court

overlooked the case of the prosecution and evidence available

against the respondents by which the case of the prosecution is

fully established against them beyond any reasonable doubt, but

the learned Trial Court overlooked this aspect and passed the

impugneed judgment in mechanical manner which is bad in law

and liable to be set aside. He also submits that learned Trial Court

has failed to appreciate the testimony of the victim (PW-2). In her

statement recorded before the Trial court as well as under Section

164 CrPC, she has fully supported the case of the prosecution.

However, the Trial Court has not appreciated the same in

appropriate manner. The trial Court has given weightage to minor

omission and contradiction and disbelieve the statement of

witness of the case, which is bad in law and liable to be set-aside.

He contended that learned trial Court has failed to look into the

gravity of the offence, whereby present respondent No. 2 being

father of the Mission, has committed sexual assault with the

victim, who is a minor girl and respondents No. 1 and 3 have tried

to hide the said heinous and serious misconduct of respondent

No. 2, thus, there is common motive of the respondents/accused

behind the said crime. He further contended that learned trial

Court while passing the impugned judgment overlooked the case

of the prosecution and evidence collected against the

respondents/accused and passed the judgment in a mechanical

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manner which is bad in law and liable to be set-aside.

9.On the other hand, Mr.Aishwarya Kumar Dubey, learned counsel

appearing for the respondents opposes the submissions made by

learned counsel for the appellant/State and submits that learned

trial Court has properly appreciated the oral and documentary

evidence available on record and rightly ruled that the prosecution

failed to prove the respondent’s role in the crime beyond a doubt.

He further submits that the test identification parade conducted in

the present case is illegal and unreliable and based on the

police’s illegal tampering with the witnesses and learned trial

Court has rightly discredited the said test identification parade in

para 18 and 19 of the impugned judgment. He also submits that

the victim (PW-2) herself admitted in para 17 of her deposition

that she identified the principal i.e. respondent No.2 only as per

the instructions of police personnel. Two independent witnesses

namely Ravi Kumar and Jai Kishor Singh were not examined by

the prosecution and no explanation has been offered for their non-

examination. Henceforth, the learned trial Court rightly discredited

the TIP. Therefore, there is nothing to link respondent No.2 to the

crime. He contended that the victim nowhere in her deposition

alleged that the Principal, with whom she interacted daily,

committed any offence upon her and the only allegation was that

the offender looked like the Principal. There are material

contradictions in the statements of the victim before the police

161’s statement (Ex.D-2), Courts 164’s statement (Ex.P-10) and

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Child Welfare Committee, Baikunthpur (Ex.P-21). These

contradictions go to the root of the case and demolish the

credibility of the prosecution story and the learned trial Court has

rightly appreciated these contradictions in para 13 of its judgment.

He further contended that the only allegation against respondents

No.1 and 3 is that they failed to report the incident and asked the

victim to put medicinal oil on her vagina. The victim was also

suffering from urinary tract infection and was undergoing

treatment for the same and hence the same conduct of the victim

can only be at the most considered as negligence but not

involvement in the crime. Ku.Kavita Kol (PW-5) was the guard on

duty on the night of the incident and has categorically denied any

knowledge of the alleged incident. She categorically deposed that

the main gate which is a channeling gate and the only one

remains locked from 6 P.M. to 6 A.M. and no person male or

female is permitted to open the gate at their own will and her

testimony completely falsifies the prosecution story and breaks

the chain of events. PW-3 and PW-6 who were the victim’s

roommates and students denied any such incident and also

denied anyone coming to their room that night. They did not notice

any abnormal conduct of the victim on the alleged date and as

such, their statements further weaken the prosecution case. He

also contended that the victim had a prior history of Urinary Tract

Infection (UTI) and she was undergoing medical treatment and

had older scratch on her private parts because of itching. The

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medical evidence is only suggestive in nature and in the case at

hand there is massive contradictions creating serious doubt in

prosecution case. It is a settled principle of law that mere

suspicion, however strong, cannot take the place of proof. In the

present case, there is no direct, reliable and trustworthy evidence

connecting respondent No.2 with the alleged offence and entire

case of the prosecution is based only on assumptions and

suspicion and as such, the trial Court has rightly extended the

benefit of doubt to the respondents. He lastly contended that the

scope of interference in appeal against acquittal is very limited

and unless the findings are perverse, interference is not

warranted. As the complete prosecution case is based on mere

suspicion and instances where two or more versions can be

deduced, hence, the reversal of the impugned judgment at the

appellate stage to take the non liberal view would cause grave

travesty to the respondents. As such, he prays that the present

acquittal appeal deserves to be dismissed upholding the judgment

of acquittal passed by the learned trial Court. He relied upon the

judgments of the Supreme Court in the matters of Sharad

Birdhichand Sarda v. State of Maharasthra, (1984) 4 SCC 116,

Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808,

Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC

343, Vijayee Singh v. State of U.P., (1990) 3 SCC 190, State of

Rajasthan v. Shera Ram, (2012) 1 SCC 602 and Chandrappa &

Ors. v. State of Karnataka, (2007) 4 SCC 415.

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10.We have heard learned counsel appearing for the parties,

perused the impugned judgment of acquittal and record of the trial

Court.

11.The question for consideration is whether learned trial Court has

rightly acquitted the respondents despite the presence of the

testimony of victim (PW-2) along with other material evidence

available on record.

12.This is the appeal against the judgment of acquittal filed by the

State under Section 378(1) of the Cr.P.C. The appellate Courts

are required to keep in mind that the trial Court had the advantage

of looking at the demeanour of witnesses and observing their

conduct in the Court especially in the witness-box and also

required to keep in mind that even at that stage, the accused was

entitled to benefit of doubt. The doubt should be such as a

reasonably person would honestly and conscientiously entertain

as to the guilt of the accused.

13.The Supreme Court in C.Antony v. Raghavan Nair, AIR 2003 SC

182 has held that unless the High Court arrives at definite

conclusion that the findings recorded by trial Court are perverse, it

would not substitute its own view on a totally different perspective.

14.The Supreme Court in Ramanand Yadav v. Prabhunath Jha,

AIR 2004 SC 1053 has held that the appellate Court in

considering the appeal against judgment of acquittal is to interfere

only when there are compelling and substantial reasons for doing

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so. If the impugned judgment is clearly unreasonable and relevant

and convincing materials have been unjustifiably eliminated in the

process, it is a compelling reason for interference.

15.The scope of interference in appeal against the judgment of

acquittal is well settled. In Tota Singh and another v. State of

Punjab, AIR 1987 SC 1083 the Supreme Court has held in para 6

as under:-

“6.……….the mere fact that the Appellate Court is inclined

on a reappreciation of the evidence to reach a conclusion

which is at variance with the one recorded in the order of

acquittal passed by the Court below will not constitute a

valid and sufficient ground for setting aside the acquittal.

The jurisdiction of the appellate Court in dealing with an

appeal against an order of acquittal is circumscribed by

the limitation that no interference is to be made with the

order of acquittal unless the approach made by the lower

Court to the consideration of the evidence in the case is

vitiated by some manifest illegality or the conclusion

recorded by the Court below is such which could not have

been possibly arrived at by any Court acting reasonably

and judiciously and is, therefore, liable to be characterised

as perverse. Where two views are possible on an

appraisal of the evidence adduced in the case and the

Court below has taken a view which is a plausible one,

the Appellate Court cannot legally interfere within an order

of acquittal even if it is of the opinion that the view taken

by the Court below on its consideration of the evidence is

erroneous.”

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16.While exercising the appellate jurisdiction against judgment of

acquittal the High Courts or the appellate Courts are fully

empowered to appreciate and reappreciate the evidence adduced

on behalf of the parties while reversing the judgment of the trial

Court. The appellate Court is required to discuss the grounds

given by the trial Court to acquit the accused and then to dispel

those reasons.

17.When a person is charged for offence punishable under the

POCSO Act, or for rape punishable in the Indian Penal Code, the

age of the victim is significant and essential ingredients to prove

such charge and the gravity of the offence gets changed when the

child is below 18 years, 12 years and more than 18 years. Section

2(d) of the POCSO Act defines the “child” which means any

person below the age of eighteen years.

18.In the present case, the prosecution has seized birth certificate of

the victim (Ex.P-6’C’), in which her date of birth has been

mentioned as 29.05.2007 and since defence has not challenged

the documentary and oral evidence presented by the prosecution

regarding the victim's date of birth being 29.05.2007, it is

established that the age of the victim on the date of incident i.e.

9.9.2015 is 8 years, 3 months, 11 days. Thus, at the time of the

incident, the victim is a minor girl below 18 years of age.

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19.The next question for consideration before us is whether

respondent No.2-Joseph Dhanna Swami has committed rape on

minor victim ?

20.Rape has been defined in Section 375 of the IPC as follows :

“375. Rape.-- A man is said to commit "rape" if he--

(a) penetrates his penis, to any extent, into the vagina,

mouth, urethra or anus of a woman or makes her to do

so with him or any other person; or

(b) inserts, to any extent, any object or a part of the

body, not being the penis, into the vagina, the urethra

or anus of a woman or makes her to do so with him or

any other person; or

(c) manipulates any part of the body of a woman so

as to cause penetration into the vagina, urethra, anus

or any part of body of such woman or makes her to do

so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a

woman or makes her to do so with him or any other

person,

under the circumstances falling under any of the

following seven descriptions:

First. Against her will.

Secondly. Without her consent.

Thirdly. With her consent, when her consent has been

obtained by putting her or any person in whom she is

interested, in fear of death or of hurt.

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Fourthly. With her consent, when the man knows that

he is not her husband and that her consent is given

because she believes that he is another man to whom

she is or believes herself to be lawfully married.

Fifthly. With her consent when, at the time of giving

such consent, by reason of unsoundness of mind or

intoxication or the administration by him personally or

through another of any stupefying or unwholesome

substance, she is unable to understand the nature and

consequences of that to which she gives consent.

Sixthly. With or without her consent, when she is

under eighteen years of age.

Seventhly. When she is unable to communicate

consent.

Explanation 1. For the purposes of this section,

"vagina" shall also include labia majora.

Explanation 2. Consent means an unequivocal

voluntary agreement when the woman by words,

gestures or any form of verbal or non-verbal

communication, communicates willingness to

participate in the specific sexual act:

Provided that a woman who does not physically

resist to the act of penetration shall not by the reason

only of that fact, be regarded as consenting to the

sexual activity.

Exception 1. A medical procedure or intervention shall

not constitute rape.

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Exception 2. Sexual intercourse or sexual acts by a

man with his own wife, the wife not being under fifteen

years of age, is not rape.”

21.In the light of aforesaid dictum and proposition of law, we have

examined the evidence adduced on behalf of the prosecution.

22.The victim has been examined as PW-2. In para 1 of her

deposition the victim has stated that she know Father Joseph.

She also know Kismariya and Philomina Didi. She was studying in

fourth grade at Sarbhoka School, living in village Sarbhoka hostel.

She went to the boys' bathroom. There was powder sprinkled

there, and she could smell it. She went to the bathroom and

rinsed herself with water. After that, her head started roaming.

She went to her bed and sat down. After that, she was sleeping in

her bed. Half an hour later, she felt something being inserted into

her urinary tract, which caused pain. She then screamed. She

heard the sound of slippers, similar to Father Joseph's slippers.

When that man left her room, she saw that he was wearing black

clothes and white pant. She saw that man's head. She could not

see his face. He had a little hair on his head. In para 2 of her

deposition, she deposed that when she woke up in the morning,

she was bleeding from her urethra. A girl heard her screaming and

asked her why she was screaming, but she did not tell her

anything. She told Sister Philomina about the bleeding, and she

told her to go and tell Sister. She then told Sister Kismariya about

the incident, and she hit her on the hand with a stick and told her

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not to tell anyone. On the second or third day, Sister Kismariya

told her to apply mustard oil to her vagina. She applied mustard

oil to her vagina, which caused severe pain in the swollen vagina.

In para 4 of her deposition, she deposed that she even showed

her penis injuries to her teacher. The teacher who taught her

English also beat her for telling her about it. The one who beats

Miss is white. She also told her not to tell anyone about it. In para

5 of her deposition, she deposed that she used the guard's phone

to call her mother and tell her she was unwell. Her mother came

to pick her up from the hostel. After speaking with the nurses, her

mother took her from the hostel to the hospital. At the hospital, a

female doctor examined her urinary tract.

23.Smt.Kalawati Patel (PW-7) has deposed that she was examined

the victim on 10.09.2015 and found following symptoms:-

“1. The victim's identification mark was a black mole

on the left side of the back of the neck.

2. The victim was a 9-year-old girl. Her secondary

sexual characteristics had not developed. She was

conscious and normal.

3. The victim had swelling and injury on the wrist of

her left hand, which was 1 x 1.4 inches long and was

painful. This injury was on the upper part of the wrist.

4. There were no injuries on the face, nor on the chest

or abdomen.

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5. The victim had an injury on the right side of her

vagina. The length of the injury was half an inch by

one inch.

6. Below this injury was another injury which was 1/4

inch by 1/2 inch.

7. The victim also had a bruise on the left side of her

vagina, measuring ½ inch by 2 inches. Below this

bruise was a second bruise measuring ¼ inch by ½

inch.

8. The vaginal bulb was swollen and red with bleeding

and some of the blood was stuck in clots.

9. The victim was saying that all the above injuries

were painful to touch.

10. The girl reported pain when her breasts were

stretched while lying down.

11. The victim had a total of 24 teeth.

12. Opinion: According to her, many wounds were

found in the private parts of the victim and there were

injuries in the wrist of the left hand and she had

complained of pain.”

In para 14 of her cross-examination, she admitted that during her

internal examination of the victim, she reported the injuries after

examining her vagina. Since she observed redness in the private

parts, she reported redness. She admitted that injures were not

cuts. She denied the suggestion that the victim’s injuries could

have been caused by infection. In para 17 of her cross-

examination, she denied that vulva is normally red. The witness

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herself stated that normal redness is different from redness

caused by an injury. She denied that the victim did not have

internal or external injuries. When the Court asked the doctor

whether she found small pimples on the private parts of the victim

girl, the doctor replied that no pimples found on the victim’s

private parts. Those were injuries.

24.Dr.Smt.S.Minj (PW-8) has stated in para 1 of her deposition that

Ritika’s mother Lakshmania brought her to the hospital for

treatment. Lakshmania told her that Ritika’s private parts were

bleeding. She examined Ritika’s private parts. At that time, there

was no bleeding, but the private parts were swollen and red. She

prescribed medicines. The prescription for prescribing the

medicines was marked as Ex.P-17, in which the witness admitted

to signing from A to A. During treatment of the victim, she had

prescribed Moxikind Supramycil ointment and Prexan syrup for

oral administration. In para 2 of her deposition, she deposed that

she had told Laxmaniya to talk to the school management and get

her treated at a bigger hospital as she did not have the equipment

to do an internal examination. In para 6 of her cross-examination,

she deposed that U.T.I. (urinary tract infection) causes intermittent

urination, burning and itching. A UTI infection may cause redness,

but not swelling. There was no bleeding from Ritika’s genitals and

there was no other injury to Ritika’s internal organs. Scratching

cannot cause swelling.

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25.The victim was further examined by Dr.Madhurima Paikra (PW-4)

on 16.09.2015 i.e. after seven days of the incident and on internal

examination she opined that there is no mark of injury on private

part, hymen intact, hymen membrane seen. Vaginal would not

enter tip of little finger.

26.In the present case, the prosecution has proved the test

identification parade vide Ex.P-11, which was conducted by the

Tahsildar and Executive Magistrate, Manendragarh. Test

identification parade was conducted in Sub-Jail Manendragarh in

which the victim (PW-2) touched the accused and identified him

as Dhanna Swami Joseph.

27.Tahsildar A.K.Bhoi (PW-11) in para 1 of his deposition has stated

that he is posted as Tahsildar in the Tehsil Office, Manendragarh

since March 2015. He received a letter dated 10.10.2015 (Ex.P-

19) from the Station House Officer, Police Station Podi, to go to

the jail and identify the accused. He then went to the Sub Jail,

Manendragarh and initiated the process of identifying the

accused. In para 2 of his deposition, he deposed that on

11.10.2015, he had the victim, Reetika Sahu, identify the accused

in Crime No.105/15 of Police Station Podi, in sub-jail of

Manendragarh. Reetika Sahu is 9 years old. He introduced the

accused to nine individuals of similar stature. The victim, Reetika

Sahu, identified the accused by touching him. The proceedings of

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the identification parade conducted by him are Ex. P-11, with his

signatures on parts B to B.

28.The Supreme Court in the matter of Malkhansingh and others v.

State of M.P., (2003) 5 SCC 746 held as under:-

“7. It is trite to say that the substantive evidence is the

evidence of identification in court. Apart from the clear

provisions of section 9 of the Evidence Act, the

position in law is well settled by a catena of decisions

of this Court. The facts, which establish the identity of

the accused persons, are relevant under section 9 of

the Evidence Act. As a general rule, the substantive

evidence of a witness is the statement made in court.

The evidence of mere identification of the accused

person at the trial for the first time is from its very

nature inherently of a weak character. The purpose of

a prior test identification, therefore, is to test and

strengthen the trustworthiness of that evidence. It is

accordingly considered a safe rule of prudence to

generally look for corroboration of the sworn

testimony of witnesses in court as to the identity of

the accused who are strangers to them, in the form of

earlier identification proceedings. This rule of

prudence, however, is subject to exceptions, when,

for example, the court is impressed by a particular

witness on whose testimony it can safely rely, without

such or other corroboration. The identification

parades belong to the stage of investigation, and

there is no provision in the Code of Criminal

Procedure, which obliges the investigating agency to

hold, or confers a right upon the accused to claim, a

test identification parade. They do not constitute

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substantive evidence and these parades are

essentially governed by section 162 of the Code of

Criminal Procedure. Failure to hold a test

identification parade would not make inadmissible the

evidence of identification in court. The weight to be

attached to such identification should be a matter for

the courts of fact. In appropriate cases it may accept

the evidence of identification even without insisting on

corroboration.

(Emphasis supplied).”

29.The victim (PW-2) in her 164 CrPC statement (Ex.P-10) before

the Judicial Magistrate First Class, Chirmiri has stated that she

study in the fourth grade at Mission School, Sarbhoka, and live in

a hostel. About six days ago, she was sleeping after dinner. She

got up and went to the bathroom. Their bathroom was locked, so

she went to the boys' bathroom, where powder had been

sprinkled. She went back to sleep. Half an hour later, she saw a

bald man, wearing pants, a shirt, and slippers, come into her room

and put something on her urine. It was irritating. She screamed,

and he ran away. She could not see his face. The room was dark

and there was no light. She heard the sound of slippers as he ran

away. The next day, she felt a burning sensation in her penis. On

the third day, she started urinating blood. She told Sister Sudeepa

that she was bleeding from her urine. She then told Sister

Philomena, who then told Kishmaria. Kishmaria had asked her to

apply oil on the area where she urinate, so she applied oil and it

started burning. In para 2 she has stated that Kishmaria Didi told

23

her to tell her mother about this. She also hit her on the left wrist

with a stick and had her bed moved upside down.

30.Mother of the victim (PW-1) in para 5 of her deposition before the

trial Court has stated that after this, the doctor told Ritika that

there was a severe wound in her vagina. How did this happen?

The doctor asked Ritika how the wound came about, but Ritika

was unable to explain it clearly. But she did say that Philomina

didi had rubbed her with a handkerchief and bathed her. Then the

doctor said that such an injury would not occur if she rubbed her

with a handkerchief and bathed her. Tell her exactly how the injury

happened, but Ritika could not explain. In para 6 of her

deposition, she deposed that the doctor replied that her

daughter's vagina is torn, something bad has happened to her.

The doctor told her to throw away her panties and put on new

ones. She took off Ritika's panties and threw them away and put

on new ones at home. The doctor had prescribed treatment for

her daughter and told her that she is her mother and asked her to

find out what really happened. When she asked, Ritika said that

she had accidentally gone into the boys' bathroom. The girls' toilet

was locked. Ritika also said that powder had been sprinkled in the

boys' bathroom and she was feeling nauseous. After urinating,

she poured water. After that, she started feeling dizzy, but still

somehow managed to come back to the room and sit down. Ritika

also said that Philomena Didi told her to go to sleep and said she

24

was going to eat. Ritika said that Philomena Didi had told her not

to be afraid, so she fell asleep.

31.In the Indian society refusal to act on the testimony of the victim of

sexual assault in the absence of corroboration as a rule, is adding

insult to injury. A girl or a woman in the tradition bound non-

permissive society of India would be extremely reluctant even to

admit that any incident which is likely to reflect on her chastity had

ever occurred. She would be conscious of the danger of being

ostracized by the society and when in the face of these factors the

crime is brought to light, there is inbuilt assurance that the charge

is genuine rather than fabricated. Just as a witness who has

sustained an injury, which is not shown or believed to be self-

inflicted, is the best witness in the sense that he is least likely to

exculpate the real offender, the evidence of a victim of sex offence

is entitled to great weight, absence of corroboration

notwithstanding. A woman or a girl who is raped is not an

accomplice. Corroboration is not the sine qua non for conviction in

a rape case. The observations of Vivian Bose, J. in Rameshwar

v. The State of Rajasthan, AIR 1952 SC 54 were:

“The rule, which according to the cases has hardened

into one of law, is not that corroboration is essential

before there can be a conviction but that the

necessity of corroboration, as a matter of prudence,

except where the circumstances make it safe to

dispense with it, must be present to the mind of the

judge...”.

25

32.A victim of a sex-offence cannot be put on par with an accomplice.

She is in fact a victim of the crime. The Evidence Act nowhere

says that her evidence cannot be accepted unless it is

corroborated in material particulars. She is undoubtedly a

competent witness under Section 118 and her evidence must

receive the same weight as is attached to an injured in cases of

physical violence. The same degree of care and caution must

attach in the evaluation of her evidence as in the case of an

injured complainant or witness and no more. What is necessary is

that the Court must be 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 victim. There is no

rule of law or practice incorporated in the Indian Evidence Act,

1872 (in short ‘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 victim 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 victim must necessarily depend on the facts

and circumstances of each case. But if a victim is an adult and of

full understanding the Court is entitled to base a conviction on her

evidence unless the same is own to be infirm and not trustworthy.

If the totality of the circumstances appearing on the record of the

26

case discloses that the victim does not have a strong motive to

falsely involve the person charged, the Court should ordinarily

have no hesitation in accepting her evidence.

33.The Supreme Court in the matter of Ranjit Hazarika v. State of

Assam, AIR 1998 SC 635 has held that 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. 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.

34.The Supreme Court in the matter of Rai Sandeep @ Deenu v.

State of NCT of Delhi, 2012 (8) SCC 21 held as under:-

“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

time when the witness makes the initial statement and

ultimately before the Court. It should be natural and

27

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 everyone 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 similar such tests to be

applied, it can 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 other supporting materials for holding the

offender guilty of the charge alleged.”

28

35.The Supreme Court in the matter of Nawabuddin v. State of

Uttarakhand, (2022) 5 SCC 419 has held as under:-

“17. Keeping in mind the aforesaid objects and to

achieve what has been provided under Article 15 and

39 of the Constitution to protect children from the

offences of sexual assault, sexual harassment, the

POCSO Act, 2012 has been enacted. Any act of

sexual assault or sexual harassment to the children

should be viewed very seriously and all such offences

of sexual assault, sexual harassment on the children

have to be dealt with in a stringent manner and no

leniency should be shown to a person who has

committed the offence under the POCSO Act. By

awarding a suitable punishment commensurate with

the act of sexual assault, sexual harassment, a

message must be conveyed to the society at large

that, if anybody commits any offence under the

POCSO Act of sexual assault, sexual harassment or

use of children for pornographic purposes they shall

be punished suitably and no leniency shall be shown

to them. Cases of sexual assault or sexual

harassment on the children are instances of perverse

lust for sex where even innocent children are not

spared in pursuit of such debased sexual pleasure.

18. Children are precious human resources of our

country; they are the country’s future. The hope of

tomorrow rests on them. But unfortunately, in our

country, a girl child is in a very vulnerable position.

There are different modes of her exploitation,

including sexual assault and/or sexual abuse. In our

view, exploitation of children in such a manner is a

crime against humanity and the society. Therefore,

29

the children and more particularly the girl child

deserve full protection and need greater care and

protection whether in the urban or rural areas.

19. As observed and held by this Court in State of

Rajasthan v. Om Prakash, (2002) 5 SCC 745 ,

children need special care and protection and, in such

cases, responsibility on the shoulders of the Courts is

more onerous so as to provide proper legal protection

to these children. In Nipun Saxena v. Union of India,

(2019) 2 SCC 703, it is observed by this Court that a

minor who is subjected to sexual abuse needs to be

protected even more than a major victim because a

major victim being an adult may still be able to

withstand the social ostracization and mental

harassment meted out by society, but a minor victim

will find it difficult to do so. Most crimes against minor

victims are not even reported as very often, the

perpetrator of the crime is a member of the family of

the victim or a close friend. Therefore, the child needs

extra protection. Therefore, no leniency can be shown

to an accused who has committed the offences under

the POCSO Act, 2012 and particularly when the same

is proved by adequate evidence before a court of

law.”

36.In the present case, the prosecution has examined Smt.Kalawati

Patel (PW-7) who conducted the medical examination of the

victim. The doctor has categorically proved the injury report and

has deposed that the injuries found on the person of the victim

were consistent with sexual assault. The medical evidence clearly

establishes the presence of injuries on the private parts and other

30

relevant portions of the body of the victim. Nothing material has

been elicited to discredit the medical findings. The injury report

corroborates the ocular testimony of the victim and lends

substantial assurance to the prosecution case. It is well settled

that where the medical evidence supports the version of the

victim, it strengthens the reliability of her testimony. In the present

case, the medical evidence fully supports the prosecution version

and rules out the possibility of false implication.

37.The prosecution has further proved that a Test Identification

Parade was conducted during the course of investigation. The

accused / respondent No.2-Joseph Dhanna Swami was properly

identified by the victim in the Test Identification Parade conducted

by the competent Magistrate in accordance with law. The purpose

of a Test Identification Parade is to test the memory and veracity

of the witness and to establish the identity of the accused as the

perpetrator of the offence. In the present case, the identification

was made promptly and without any ambiguity. There is no

material on record to suggest that the TIP was conducted in an

improper or suggestive manner. The identification of the accused

by the victim in the Test Identification Parade, coupled with her

consistent deposition before the Court, establishes beyond

reasonable doubt that the accused / respondent No.2 was the

author of the crime.

31

38.The prosecution has also relied upon the Forensic Science

Laboratory (FSL) report, which has been duly exhibited and

proved in accordance with law. The FSL report is found to be

positive and corroborates the prosecution case. The scientific

evidence establishes the presence of biological material

connecting the accused with the crime. Scientific evidence, when

properly collected and analyzed, carries significant probative

value. In the present case, the FSL report provides independent

corroboration of the victim’s testimony and the medical findings.

There is no material contradiction or procedural lapse brought on

record that would render the FSL findings doubtful.

39.The medical evidence on record requires to be appreciated in its

proper perspective. The victim was first examined on 10.09.2015

by Dr.Smt.Kalawati Patel (PW-7), who noted swelling and

tenderness on the left wrist and multiple injuries over the genital

region, including swelling, redness, bruising and bleeding, all of

which were found to be painful on touch. These findings clearly

indicate recent trauma at the time of examination. The victim was

subsequently examined on 16.09.2015 by Dr. Madhurima Painkra

(PW-4), who did not notice any external or internal injuries and

found the hymen intact. However, it is significant that more than

six days had elapsed between the two examinations. Minor

soft-tissue injuries, particularly swelling, bruises and superficial

lacerations are capable of healing substantially within a short

span of time, especially in a child. Therefore, the absence of

32

visible injuries on 16.09.2015 does not negate or contradict the

earlier medical findings recorded on 10.09.2015. The first medical

examination, being proximate to the date of the incident, carries

greater evidentiary value, and the subsequent absence of injuries

after a lapse of several days is consistent with natural healing

rather than indicative of absence of assault.

40.The testimony of the victim is cogent, consistent, and trustworthy.

It is settled law that the sole testimony of the victim, if found

reliable and credible, is sufficient to base conviction even in the

absence of further corroboration. In the present case, her

testimony stands corroborated by medical evidence as well as

scientific evidence. The minor discrepancies, if any, do not go to

the root of the matter and are natural in cases of this nature. Such

minor inconsistencies do not discredit an otherwise reliable

prosecution case. The chain of circumstances is complete. The

medical evidence proves the injuries. The accused has been duly

identified in the Test Identification Parade. The FSL report

provides scientific corroboration. The oral, medical, and scientific

evidence, when read together, establish the guilt of the accused /

respondents beyond reasonable doubt.

41.This Court has carefully examined the testimony of the victim in

light of the settled principles governing appreciation of evidence in

cases of sexual offences. The victim has deposed in a clear,

cogent, and consistent manner. Her testimony inspires confidence

33

and bears the ring of truth. The core of her version regarding the

commission of the offence has remained intact and unshaken.

The testimony of the victim is of sterling quality. It is natural,

trustworthy, and free from embellishment. There is no evidence on

record to suggest any motive for false implication. On the

contrary, her conduct appears natural and consistent with the

trauma suffered.

42. It is a well-settled principle of criminal jurisprudence that the sole

testimony of the victim, if found reliable and of sterling quality, is

sufficient to base a conviction and does not require corroboration

as a matter of rule. Corroboration is only a rule of prudence and

not of law. In the present case, even though the testimony of the

victim is independently sufficient to sustain conviction, it stands

further corroborated by medical evidence, scientific evidence in

the form of the FSL report, and the identification of the accused in

the Test Identification Parade.

43.The defence has failed to demonstrate any inherent improbability

or material inconsistency in her evidence. Minor discrepancies, if

any, are bound to occur in truthful testimony and, in fact, lend

assurance to its genuineness rather than detract from it.

44.In view of the aforesaid discussion, this Court finds that the

evidence of the victim is wholly reliable and of sterling quality. Her

sole testimony, being trustworthy and confidence-inspiring, is

sufficient to hold the respondents/accused guilty. Accordingly, this

34

Court places full reliance upon her deposition while recording the

conviction of the respondents.

45.The view taken by the trial Court is neither plausible nor

reasonable. It is contrary to the evidence on record and suffers

from manifest illegalities, resulting in a perverse acquittal. As held

in Ramanand Yadav (supra) and Tota Singh (supra), interference

is warranted when the acquittal is perverse and based on

misappreciation of the evidence. The present case is a clear

example where compelling and substantial reasons exist for

reversing the acquittal.

46.Having re-appreciated the entire evidence on record and for the

reasons recorded hereinabove, this Court is of the considered

opinion that the judgment of acquittal passed by the learned

Additional Sessions Judge (Fast Track Court), Baikunthpur,

District Korea in Special S.T. No. 03/2016 dated 9.1.2017 is

manifestly erroneous, contrary to the evidence available on record

and suffers from misappreciation of material evidence. The

conclusions drawn by the trial Court are neither plausible nor

reasonable and have resulted in miscarriage of justice. The said

judgment is therefore liable to be set aside.

47.The prosecution has successfully established beyond reasonable

doubt that respondent No. 2–Joseph Dhanna Swami committed

aggravated penetrative sexual assault upon the minor victim. The

testimony of the victim, duly corroborated by medical and other

35

circumstantial evidence, inspires full confidence and establishes

the ingredients of the offences alleged.

48.Accordingly, respondent No. 2–Joseph Dhanna Swami is held

guilty and convicted for offences punishable under Section 6 of

the POCSO Act (as it stood at the time of commission of the

offence in 2015) and Section 376(2)(d)(f)(i)(k) IPC. However, in

view of conviction under Section 6 of the POCSO Act, which

prescribes a more stringent punishment, no separate sentence is

awarded under Section 376(2)(d)(f)(i)(k) IPC.

49.Insofar as respondent No. 1-Philomina Kerketta and respondent

No.3-Kismariya are concerned, the trial Court had framed a

specific charge against them under Section 119 IPC along with

other charges. The evidence on record clearly establishes that

they were public servants at the relevant time and were legally

bound to prevent the commission of the offence. Despite having

knowledge of the design and likelihood of the offence being

committed by respondent No. 2, they intentionally concealed the

same and failed to discharge their statutory duty to prevent its

commission. The omission on their part was not a mere lapse or

negligence, but a conscious and deliberate concealment which

facilitated the commission of a grave offence against a minor

child. The essential ingredients of Section 119 IPC stand proved

beyond reasonable doubt. The finding of acquittal recorded by the

trial Court in their favour is therefore unsustainable. Consequently,

36

respondents No. 1 and 3 are held guilty and convicted under

Section 119 IPC.

50.As a result, the acquittal appeal filed by the State under Section

378(1) CrPC stands allowed. The impugned judgment of acquittal

dated 9.1.2017 passed by learned Additional Sessions Judge

(Fast Track Court), Baikunthpur, District Korea in Special S.T. No.

03/2016 is hereby set aside.

51.Respondent No. 2-Joseph Dhanna Swami is sentenced to

rigorous imprisonment for life for offence punishable under

Section 6 of the POCSO Act (as applicable in 2015) and fine of

₹10,000/-, in default of payment of fine, to undergo simple

imprisonment for one year. No separate sentence is awarded

under Section 376(2)(d)(f)(i)(k) IPC.

52.Considering that the principal offence concealed was punishable

with imprisonment for life, and bearing in mind the seriousness of

their conduct as public servants entrusted with the duty to prevent

such offence, respondent No. 1–Philomina Kerketta and

respondent No. 3–Kismariya are sentenced to rigorous

imprisonment for seven years and a fine of ₹5,000/- each, in

default of payment of fine, they shall undergo simple imprisonment

for six months.

53.The accused/respondents are directed to surrender before the

concerned trial Court within a period of two weeks from today for

serving sentence imposed upon them by this Court, failing which,

37

they shall be taken into custody by the trial Court for serving the

sentence imposed by this Court and compliance report be

submitted to this Court.

54.Let a copy of this judgment and the original records be

transmitted to the trial Court concerned forthwith for necessary

information and compliance.

Sd/- Sd/-

(Ravindra Kumar Agrawal) (Ramesh Sinha)

Judge Chief Justice

Bablu

38

HEAD-NOTE

A victim of rape or sexual assault is not an accomplice, and her

evidence does not require corroboration as a matter of law. Corroboration

is only a matter of prudence, not a condition for conviction. If the victim’s

testimony is credible, natural, consistent, and trustworthy, and free from

material infirmities, the Court may act upon it even without independent

corroboration.