Kanwar Singh Vs State of Hp

1 Neutral Citation No. ( 2025:HHC:42550 )

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. Appeal No.140 of 2022 Reserved on: 12.11.2025 Decided on: 09.12.2025 __________________________________________________ Kanwar Singh …..Appellant. Versus State of Himachal Pradesh ……Respondent. _________________________________________________ Coram_ The Hon'ble Mr. Justice Sushil Kukreja, Judge. The Hon'ble Mr. Justice Virender Singh, Judge. 1 Whether approved for reporting? Yes.

¶4

____________________________________________________ For the appellant: Mr. Naveen Awasthi, Legal Aid Counsel. For the respondent: Mr. Ankush Thakur, Advocate. Sushil Kukreja, Judge.

¶5

The instant appeal has been preferred by the appellant/accused/convict under Section 374(2) of the Code of Criminal Procedure against the impugned judgment of conviction and order of sentence, dated 19.04.2022, passed by learned Additional Sessions Judge, Fast Track Special Court (Rape/POCSO), Shimla, H.P., in Case No. RBT 53-S/7 of 2019/21, whereby the accused-Kanwar Singh (appellant herein) was convicted for the commission of the offences punishable

¶6

1 Whether reporters of Local Papers may be allowed to see the judgment?

¶7

2 Neutral Citation No. ( 2025:HHC:42550 )

¶8

under Sections 376(3), 506(II) of the Indian Penal Code (for short ‘IPC’) read with Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”).

¶9

The facts giving rise to the present appeal, as per the prosecution story, can be summarized as under:

¶10

2(a). On 06.12.2018, around 2/3 p.m., the child victim (name withheld and hereinafter referred to as “the victim”) went to the house of the accused, who was her grand-father, which was adjacent to her house. At that time one Krishan Kumar, maternal uncle of the victim, had also come there, but he left the house after some time. Thereafter, the victim went to the kitchen of the house of the accused for taking water and the accused followed her. The accused asked the victim to accompany her to the room, but she refused. However, the accused forcibly took the victim to a room, where he laid her on a bed. The victim screamed, but no one could hear her screams. At that time, the father of the victim had gone with mules and her mother had gone to Chirgaon bazaar. The accused forcibly removed the trousers of the victim and committed sexual intercourse with her. Prior to this incident also, the accused had committed sexual intercourse with the victim on 2-3 occasions, but the victim, apprehending damage to

¶11

3 Neutral Citation No. ( 2025:HHC:42550 )

¶12

her modesty, did not disclose those incidents to anyone.

¶13

2(b). It has further come in the prosecution story that on 22.12.2018 the accused went to attend Satsang and he left his mobile phone with the victim for charging the same. On 25.12.2018 when the accused returned home, the victim had disclosed the entire occurrence to her mother, therefore, the accused did not come back to take his mobile phone from the victim. On 27.12.2018, the victim alongwith her father went to the local police station and lodged a complaint, whereupon her medical was got conducted by the police and FIR under the apt sections was registered. During the medical examination of the victim, scientific samples were collected, which were sent to FSL for analysis. Police visited the place of occurrence, prepared the spot map, recorded the statements of the witnesses, clicked photographs, statement of the victim was also recorded under Section 161 Cr.P.C. and the accused was arrested and got medically examined. Statement of the victim was also recorded under Section 164 Cr.P.C. After completion of the investigation, police presented the chargesheet before the learned Trial Court. 3. The prosecution, in order to prove its case, examined seventeen witnesses. Statement of the accused under Section

¶14

4 Neutral Citation No. ( 2025:HHC:42550 )

¶15

313 Cr.P.C. was recorded, wherein he claimed innocence and denied the prosecution case, however, in defence he had not led any evidence.

¶16

The learned Trial Court, vide impugned judgment dated 19.04.2022 convicted the accused for the offence punishable under Section 376(3) IPC and sentenced him to undergo rigorous imprisonment for twenty years and to pay a fine of Rs.20,000/- and in default of payment of fine to undergo simple imprisonment for a period of twelve months. The accused was also convicted under Section 506(II) IPC and sentenced to simple imprisonment for a period of three years and to pay fine of Rs.3,000/- and in default of payment of fine to undergo simple imprisonment for 45 days. The accused was also convicted under Section 4 read with Section 3 of the POCSO Act, but since the punishment provided under Section 376(3) IPC was rigorous imprisonment not less than 20 years, whereas punishment under Section 4 of the POCSO Act was minimum imprisonment upto 7 years, at the time of commission of offence, hence, the sentence under Section 376(3) was imposed in view of mandate of Section 42 of the POCSO Act, and no sentence imposed under Section 4 of the POCSO Act,, hence the instant appeal preferred by the

¶17

5 Neutral Citation No. ( 2025:HHC:42550 )

¶18

accused/ convict.

¶19

The learned Legal Aid Counsel for the appellant contended that the impugned judgment is against the law and facts, based upon mis-appreciation of evidence, which ultimately resulted into miscarriage of justice, as such the same is liable to set-aside. He has further contended that the learned Trial Court has failed to appreciate the evidence in its right and true perspective as there are major contradictions in the statements of the prosecution witnesses. Lastly, he submitted that the impugned judgment of conviction and the order of sentence passed by the learned Trial Court may be quashed and set-aside by allowing the instant appeal and the accused may be acquitted.

¶20

Conversely, the learned Deputy Advocate General contended that the judgment passed by the learned Trial Court is the result of proper appreciation of the material on record and the same was passed after appreciating the evidence and law in its right and true perspective. He has further contended that there is more than sufficient material against the accused for his conviction and the learned Trial Court has passed a well reasoned judgment, which does not require any interference, thus the instant appeal, which sans merits, be dismissed.

¶21

6 Neutral Citation No. ( 2025:HHC:42550 )

¶22

The Nitty-gritty of the matter is whether, while recording the judgment of conviction and sentence, the prosecution evidence has been scanned, evaluated and appreciated in the right perspective by the trial court.

¶23

We have heard the learned Legal Aid Counsel for the accused, learned Deputy Advocate General for the respondent/ State, and carefully examined the entire records.

¶24

The prosecution, in order to prove its case, examined seventeen witnesses. However the case mainly rests upon the statements of the child victim, who appeared in the witness-box as PW-2, father of the child victim PW-3, mother of the child victim PW-5 and PW-1 Dr. Priyanka, who medically examined the child victim.

¶25

The child victim appeared in the witness-box as PW-2 and deposed that she was studying in 9^th class and her date of birth was 11.11.2006. She deposed that she had two sisters, elder one was married, other sister was studying in 10^th class and she was youngest. On 06.12.2018, around 2/3 p.m., she was in the house of her grand-father (accused). At that time the accused was with her maternal uncle-Krishan Kumar (PW-4) and after some time he went away. She further deposed that she went to

¶26

7 Neutral Citation No. ( 2025:HHC:42550 )

¶27

kitchen to have water and the accused came there and asked her to come to the room and on her refusal, he forcibly took her to the room, made her lie on the bed and removed her trousers. She started screaming, but nobody was there. The accused committed forcible sexual intercourse with her and prior to this incident, the accused had committed forcible sexual intercourse with her 2-3 times. This witness also deposed that on the aforesaid date of incident, her father had gone with mules and her mother went to Chirgaon. She did not narrate the incidents to anyone, as the accused had threatened to kill her. On 22.12.2018 the accused gave his mobile for charging to her and told that he would take the same back later on, as he was going to Satsang. On 25.12.2018 the accused returned home and on the same day she had narrated everything to her mother. The accused came to take his mobile and when her mother confronted him, he ran away. On 27.12.2018 she alongwith her father (PW-3) went to the police station and lodged a report. As per this witness, her medical examination was conducted at PHC Sandasu. Her statement was recorded in the Court. On 29.12.2018 police visited her village and she got identified the room, in presence of her mother, father and Rajesh where the accused allegedly

¶28

8 Neutral Citation No. ( 2025:HHC:42550 )

¶29

committed rape upon her. She deposed qua the relevant recoveries effected by the police, police proceedings and sealing of recovered articles etc. This witness, in her cross-examination, admitted that houses of Roshan Lal and Bhagat Chand were adjacent to the house of the accused and both Roshan Lal and Bhagat Chand used to live in their houses alongwith their family members. She also admitted that both sons of Bhagat Chand were married. This witness admitted that houses of Bhau Ram and Gyan Singh were also situated nearby and they used to live alongwith their families. She admitted that the house of the accused was three storeyed, ground floor was being used for tethering cattle, first floor was vacant and second floor was used for residential purpose. She also admitted that the kitchen of the accused was separate from the above building and it was single storey. Accused used to reside in second floor of the building and this floor was visible from the houses of Roshan Lal, Bhau Ram and Bhagat Chand. The child victim admitted it to be correct that there was a passage in between the house of her father and the accused and it was being used by the villagers. The houses of the accused and Roshan Lal were attached to each other. Her school was two hours walk away from her home and her school

¶30

9 Neutral Citation No. ( 2025:HHC:42550 )

¶31

used to start at 10:00 a.m. till 04:00 p.m.. As per the version of this witness on 06.12.2018 her parents returned home in the evening and she told her parents that the accused had committed rape with her prior to 06.12.2018, but she did not tell this fact to the police. She did not state qua the threatening given by the accused to her in her statement under Section 164 Cr.P.C. and volunteered that she forgot this fact when her statement was being recorded. She further deposed in her cross-examination that when the incident occurred, she was wearing top and sweater, which were not demanded by the police. The trousers had string, but when her statement was being recorded in the Court the trousers had no string. She admitted it to be correct that the trousers were not torn and no blood oozed out.

¶32

PW-3 father of the child victim deposed that he was agriculturist and had mules. He had three daughters, eldest was married, second one was studying in10th class and child victim was studying in 9^th class. As per this witness, the date of birth of child victim was 11.11.2006. He further deposed that Kanwar Singh (PW-4) was the younger brother of the accused and his house was adjoining to his house. On 06.12.2018 he went with his mules and his wife (mother of the child victim) also went to

¶33

10 Neutral Citation No. ( 2025:HHC:42550 )

¶34

Chirgaon and he returned back in the evening. He also deposed

¶35

that on 25.12.2018 when he reached home, his wife disclosed the entire story to him and as to what had happened with the child victim. On 26.12.2018 he could not go to the police station due to pruning of the apple trees and on 27.12.2018 he went to the police station and lodged the FIR. When the accused came to take his mobile phone, he confronted him and he fled away. The medical examination of the child victim was got conducted and her statement under Section 164 Cr.P.C. was also recorded. This witness also deposed qua the police proceedings, sample, sealing etc. He, in his cross-examination admitted it to be correct that the marriage of her daughter took place after the incident. As per this witness, from the house of the accused, it takes 2-3 minutes to reach the kitchen. There was one window in the room where the rape was committed and there was no house towards that window. He also admitted it to be correct that there was common verandah of Roshan Lal and the accused, but it was closed with partition. He further admitted that noise from the house of the accused could be heard in the adjoining building of Roshan Lal. He further stated that his wife told about the incident on the evening of 06.12.2018 and on the subsequent day all his

¶36

11 Neutral Citation No. ( 2025:HHC:42550 )

¶37

daughters went to school. He admitted it to be correct that from 06.12.2018 to 22.12.2018 the accused was in his house.

¶38

The mother of the child victim appeared in the witness-box as PW-5 and deposed that they had three daughters and date of birth of the child victim was 11.11.2006. On 6^th of Manger (month, as per the Hindu Calendar) 2018, her husband went early in the morning with mules and she went to Chirgaon with Reenakashi. She further deposed that there was a passage in between her house and the house of the accused. On that day she returned home at 04:00 p.m. and when she reached home the child victim was already there. The child victim had gone in the morning to attend the school. On 7^th of the said month, she went to the house of her sister, as she was ill and returned on 21^st . On 22^nd she saw mobile handset with the child victim and on being inquired about the mobile handset, the child victim disclosed the entire thing that the accused had raped her on 6^th of the said month and also threatened to kill her, in case she disclosed the incident to anyone. Thereafter, this witness narrated the incident to her husband and daughter-in-law of the accused. When she confronted the accused, he told her to do whatever she felt and he went away. On 27^th the complaint was

¶39

12 Neutral Citation No. ( 2025:HHC:42550 )

¶40

lodged and medical examination of the child victim was conducted at CHC, Chirgaon. This witness deposed about the police proceedings, viz., recoveries, sealing, signing of various memos etc.. This witness, in her cross-examination, deposed that she did not disclose to the police that from 7^th to 21^st she remained in the house of her sister, as she was ill. She stated that she disclosed to the police that her daughter (child victim) disclosed on 22.12.2018 that she was raped by the accused and this thing was told to her husband on the next date, when he returned.

¶41

PW-1 Dr. Priyanka, who medically examined the child victim, deposed that vide letter, Ex. PW-1/A, a request was made by the police for the medical examination of the child victim. On 27.12.2018, around 04:35 p.m., she examined the child victim. The patient had alleged history of assault since 22 days and on examination, no external injury was present on vagina, perineum and anal region. No other external injury was present over her body and she had not achieved menarche yet. She took relevant samples from the body of the child victim. After perusal of the SFSL report, she gave her final opinion and as per her opinion, there was no evidence of sexual intercourse.

¶42

13 Neutral Citation No. ( 2025:HHC:42550 )

¶43

So far as the question qua determination of age of a female child victim in sexual offences is concerned, in a catena of

¶44

judgments of the Hon’ble Apex Court, the principle has been accepted that the methods for determining the age of a child offender under the Juvenile Justice (Care and Protection of the Children) Act shall be applied for determination of the age of the victims of sexual offences.

¶45

For ready reference Section 94 of the Juvenile Justice (Care and Protection of the Children) Act, 2015, is extracted

¶46

hereunder:

¶47

“94. Presumption and determination of age.

¶48

(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

¶49

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining —

¶50

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

¶51

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

¶52

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

¶53

14 Neutral Citation No. ( 2025:HHC:42550 )

¶54

In Jarnail Singh vs. State of Haryana, 2013 (7) SCC

¶55

263, it has been held by the Hon’ble Apex Court that Rule 12 of

¶56

the Juvenile Justice (Care and Protection of Children) Rules, 2007 is applicable for ascertaining the age of the child who is a victim of a crime. The relevant portions read as under:

¶57

"22.On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). ……………

¶58

23.Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime……………”

¶59

17. In Ram Vijay Singh vs. State of U.P., 2021 (3)

¶60

SCALE 283 (SC), the Hon’ble Supreme Court held as under:

¶61

“14. We find that the procedure prescribed in Rule 12 is not materially different than the provisions of Section 94 of the Act to determine the age of the person. There are minor variations as the Rule 12(3) (a)(i) and (ii) have been clubbed together with slight change in the language. Section 94 of the Act does not contain the provisions regarding benefit of margin of age to be given to the child or juvenile as was provided in Rule 12(3)(b) of the Rules. The importance of ossification test has not undergone change with the enactment of Section 94 of the Act. The reliability of the ossification test remains vulnerable as was under Rule 12 of the Rules.

¶62

15. As per the Scheme of the Act, when it is obvious to the Committee or the Board, based on the appearance of the person, that the said person is a child, the Board or Committee shall record observations stating the age of the Child as nearly as may be without waiting for further confirmation of the age. Therefore, the first attempt to determine the age is by assessing the physical appearance of the person when brought

¶63

15 Neutral Citation No. ( 2025:HHC:42550 )

¶64

before the Board or the Committee. It is only in case of doubt, the process of age determination by seeking evidence becomes necessary. At that stage, when a person is around 18 years of age, the ossification test can be said to be relevant for determining the approximate age of a person in conflict with law. However, when the person is around 40-55 years of age, the structure of bones cannot be helpful in determining the age. This Court in Arjun Panditrao 12 Khotkar v. Kailash Kushanrao Gorantyal and Ors. held, in the context of certificate required under Section 65B of the Evidence Act, 1872, that as per the Latin maxim, lex non cogit ad impossibilia, law does not demand the impossible. Thus, when the ossification test cannot yield trustworthy and reliable results, such test cannot be made a basis to determine the age of the person concerned on the date of incident.”

¶65

18. In Rishi Pal Solanki vs. State of Uttar Pradesh &

¶66

ors, 2022 (8) SCC 602 the Hon’ble Supreme Court, while referring to various decisions on the subject of determination of the age of the child in conflict with law, culled out various principles for determining the age. The relevant paras of the aforesaid judgment reads as under:

¶67

“33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:

¶68

33.1 …………

¶69

33.2 …………

¶70

33.2.1 When the issue of juvenility arises before a Court, it would be under sub-section (2) and (3) of section 9 of the JJ Act, 2015 but when a person is brought before a Committee or JJ Board, section 94 of the JJ Act, 2015 applies.

¶71

33.2.2 If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.

¶72

33.2.3 When an application claiming juvenility is made under section 94 of the JJ Act, 2015 before the JJ Board

¶73

16 Neutral Citation No. ( 2025:HHC:42550 )

¶74

when the matter regarding the alleged commission of offence is pending before a Court, then the procedure contemplated under section 94 of the JJ Act, 2015 would apply. Under the said provision if the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Board shall undertake the process of age determination by seeking evidence and the age recorded by the JJ Board to be the age of the person so brought before it shall, for the purpose of the JJ Act, 2015, be deemed to be true age of that person. Hence the degree of proof required in such a proceeding before the JJ Board, when an application is filed seeking a claim of juvenility when the trial is before the concerned criminal court, is higher than when an inquiry is made by a court before which the case regarding the commission of the offence is pending (vide section 9 of the JJ Act, 2015).

¶75

33.3 That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised.

¶76

33.4 The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side.

¶77

33.5 That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinized and accepted only if worthy of such acceptance.

¶78

33.6 That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case.

¶79

33.7 This Court has observed that a hyper-technical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile.

¶80

17 Neutral Citation No. ( 2025:HHC:42550 )

¶81

33.8 …………

¶82

33.9 That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.

¶83

33.10 Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions.

¶84

33.11 ………..

¶85

51. Section 94 of the JJ Act, 2015 raises a presumption regarding juvenility of the age of the child brought before the JJ board or the Committee. But in case the Board or Committee has reasonable grounds for doubt about the person brought before it is a child or not, it can undertake the process of determination of age by seeking evidence. Thus, in the initial stage a presumption that the child brought before the Committee or the JJ Board is a juvenile has to be drawn by the said authorities. The said presumption has to be drawn on observation of the child. However, the said presumption may not be drawn when the Committee or the Board has reasonable grounds for doubt regarding the person brought before it is a child or not. In such a case, it can undertake the process of age determination by the evidence which can be in the form of:

¶86

(i) Date of birth certificate from the school or the matriculation certificate from the concerned board, if available or in the absence thereof;

¶87

(ii) The birth certificate given by a corporation or by a municipal authority or a panchayat and in the absence of the above;

¶88

(iii) Age has to be determined by an ossification test or any other medical age determination test conducted on the orders of the committee or the board.”

¶89

In Rishi Pal Singh’s case (supra) the Hon’ble Supreme

¶90

Court has held that for determining the age of the child in conflict

¶91

with law, the date of birth certificate from the school or the matriculation certificate from the board concerned, if available, is

¶92

18 Neutral Citation No. ( 2025:HHC:42550 )

¶93

to be seen first and in the absence thereof the birth certificate from Municipal Corporation or Panchayat is to be seen. As per the ratio decidendi of Rishipal Singh’s case (supra), it is clear that it is neither proper nor justifiable to apply any strict or abstract formula for determination of age of a person. The Court must examine the material available before it and on appreciation of evidence adduced by the parties in each case, should determine the age of victim/accused.

¶94

In the case on hand, the child victim (PW-2) deposed before the Trial Court that she was studying in 9th class and her date of birth was 11.11.2006. PW-3, father and PW-4, mother of the child victim, stated that the date of birth of the child victim was 11.11.2006. PW-8 Shri Satish Kumar, Panchayat Secretary, deposed that as per the copy of pariwar register, Ex. PW-8/A, the date of birth of the child victim was recorded as 28.02.2006 and he prepared the age certificate of the child victim, Ex. PW-8/B. This witness, in his cross-examination, admitted it to be correct that there was overwriting on the date of birth of the child victim. PW-10 Shri Raj Kumar, Clerk, Senior Secondary School deposed that the date of birth certificate, Ex PW-10/B, of the child victim was issued wherein, the date of birth of the female child victim

¶95

19 Neutral Citation No. ( 2025:HHC:42550 )

¶96

was entered as 29.02.2006. He further deposed that entry about the date of birth of child victim as 29.02.2006 was made on the basis of the school leaving certificate of Primary School. In crossexamination, he stated that he was unaware as to who got the date of birth of the victim registered in the record of Primary School. He further admitted it to be correct that the date of birth was corrected after the registration of the case.Thus his statement clearly shows that someone had manipulated the entry recorded in the birth certificate, Ex. PW-10/B with respect to the date of birth of the female child victim after the registration of the case. Admittedly, certificate, Ex. PW-10/B, was prepared and entry about the date of birth of the child victim was made on the basis of the school leaving certificate of the Primary School. However, no witness from the Primary School was examined to prove the date of birth of the child victim.

¶97

Thus, the evidence which has been produced by the prosecution is neither a matriculation certificate nor a date of birth certificate from school first attended. As observed earlier, the date of birth entry recorded in the birth certificate, Ex. PW-10/B prepared from the record of Senior Secondary School, has been manipulated after the registration of the case, as such, the same

¶98

20 Neutral Citation No. ( 2025:HHC:42550 )

¶99

cannot be relied upon. Moreover, there is discrepancy in the oral

¶100

depositions of the child victim, her father, her mother as well as in the documents placed on record. As per the statements of child victim, her father as well as her mother, the date of birth of the victim is 11.11.2006, whereas as per copy of pariwar register, Ex. PW-8/A, and certificate, Ex. PW-8/B, the date of birth of the child victim has been recorded as 28.02.2006 and as per the deposition of PW-10, the witness from the Senior Secondary School, the entry dated 29.02.2006 about the date of birth of the child victim was made on the basis of the school leaving certificate of Primary School (name withheld) and it was corrected after the registration of the case as 28.02.2006. Therefore, the aforesaid discrepancies raise a question about the veracity of the prosecution case regarding the date of birth of the child victim. Accordingly, the evidence of the prosecution cannot be relied upon to assume that the age of the child victim was less than 18 years on the date of the commission of the alleged offence.

¶101

Now, we proceed to analyze whether the testimony of the victim could be made the sole basis of conviction. The Rule of appreciation of evidence of prosecutrix in cases relating to sexual assault has been considered and reiterated by the Courts time

¶102

21 Neutral Citation No. ( 2025:HHC:42550 )

¶103

and again. Testimony of a victim of such an offence, if found cogent and credible, by itself, is sufficient to nail the accused. No other supportive evidence is required. A prosecutrix of a sex related offence cannot be treated at par with an accomplice. She is in fact, a victim of the crime. She is undoubtedly, a competent witness 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. 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 that her statement requires corroboration.

¶104

In Dilip and another vs. State of M.P., (2001) 9 SCC 452 , the Hon’ble Apex Court has held that prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made basis of conviction unless corroborated in material particulars. The relevant portion of the aforesaid judgment reads as under:

¶105

“12. The law is well-settled that prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the Judge. In State of H.P. Vs. Gian Chand, on a review of

¶106

22 Neutral Citation No. ( 2025:HHC:42550 )

¶107

decisions of this Court, it was held that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc., if the same is found to be natural, trustworthy and worth being relied on…....”

¶108

24. In Jugendra Singh Vs. State of UP, (2012) 6 SCC

¶109

297, Hon'ble Apex Court has held that rape or an attempt to rape is a crime not against an individual, but a crime which destroys the basic equilibrium of the social atmosphere. The relevant

¶110

portion of the judgment reads as under:

¶111

“49. Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one's physical frame is his or her temple. So, the courts should deal with such cases sternly and severely. No one has any right of encroachment………...."

¶112

In Lillu @ Rajesh & another vs. State of Haryana,

¶113

(2013) 14 SCC 643 , the Hon'ble Apex Court has observed that rape is violative of victim's fundamental right under Article 21 of the Constitution, therefore, the courts should deal with such cases sternly and severely. The relevant portion of the judgment is

¶114

reproduced as under:

¶115

"12. In State of Punjab v. Ramdev Singh: AIR 2004 SC 1290, this Court dealt with the issue and held that rape is violative of victim's fundamental right under Article 21 of the Constitution. So, the courts should deal with such cases sternly and severely. Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a

¶116

23 Neutral Citation No. ( 2025:HHC:42550 )

¶117

woman. It is a serious blow to her supreme honour and offends her self-esteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity. Rape is not only an offence against the person of a woman, rather a crime against the entire society. It is a crime against basic human rights and also violates the most cherished fundamental right guaranteed under Article 21 of the Constitution."

¶118

In State of Himachal Pradesh vs. Sanjay Kumar alias Sunny, (2017) 2 Supreme Court Cases 51 , the Hon’ble Supreme Court held that the Courts should find no difficulty to act on the testimony of the victim of a sexual assault, if it inspires confidence and seeking corroboration to her statement before relying upon the same would literally amount to adding insult to injury. The relevant portion of the judgment is reproduced as under:

¶119

“31..............By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of

¶120

24 Neutral Citation No. ( 2025:HHC:42550 )

¶121

another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance…...”

¶122

There cannot be any dispute with the proposition of law

¶123

laid down by the Hon'ble Apex Court in catena of pronouncements that in case of rape, evidence of prosecutrix must be given predominant consideration, and finding of guilt in case of rape can be based upon the uncorroborated evidence of the prosecutrix, but apart from above, Hon'ble Apex court has also held that if the story put forth by the prosecutrix is improbable and belies logic, placing sole reliance upon her statement would be violence to the very principles which govern the appreciation of evidence in a criminal matter. In this regard, reliance is placed on judgment rendered by the Hon'ble Apex Court in Tameezduddin alias Tammu Vs. State of NCT of Delhi, (2009) 15 SCC 566, wherein

¶124

it has been held as under:-

¶125

"9.It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that story is indeed improbable."

¶126

25 Neutral Citation No. ( 2025:HHC:42550 )

¶127

Therefore, the testimony of the child victim is required to be considered, keeping in mind these principles of appreciation of evidence of the rape victim. We have minutely gone through the statement of the child victim and found that the same does not inspire confidence. In the FIR, which was registered on the basis of the statement of the child victim, it has been stated by the victim that on 06.12.2018, at about 2/3 p.m., she was present in the house of her grandfather and at that time her maternal uncle was also present, who left after some time and thereafter she went to the kitchen to get water and in the meantime her grandfather also came in the kitchen and told her to go to the room whereas in her statement under Section 164 Cr.P.C. she narrated different version, wherein she stated that when her maternal uncle left, she went to the kitchen of her grandfather’s house and thereafter her grandfather came there and bolted the kitchen from inside. Thereafter, after unbolting the door, he asked her to go to the room and opened her trousers and committed rape with her. Before the Court, during the trial, the victim deposed that on 06.12.2018, at about 2-3 p.m., she was in the house of her grandfather (accused). She further deposed that the house of her grandfather was nearby to her house and at that

¶128

26 Neutral Citation No. ( 2025:HHC:42550 )

¶129

time her grandfather was with her maternal uncle. After sometime, her uncle went away and she went to kitchen to have water. She also stated that in the interregnum, her grandfather came there and asked her to come to room. She refused, but he forcibly took her to the room and made her lie on the bed and removed her trousers. She started screaming, but nobody was nearby to her, then he (accused) committed rape with her. She deposed that prior to this, the accused had committed forcible sexual intercourse with her on 2-3 occasions. On the date of the above incident, her father was away in connection with work alongwith mules and her mother had gone to Chirgaon. She did not tell these episodes to anybody, as her grandfather had threatened to kill her. She further deposed that on 22.12.2018 her grandfather gave his mobile phone for charging to her and he said that he would take the same back later on, as he was going to Satsang. On 25.12.2018 the accused returned home and on that day she told the entire things to her mother. Accused came to take his mobile phone and when her mother confronted him, he ran away. In her cross-examination, she admitted that the house of Roshal Lal was adjacent to the house of the accused and the verandah of Roshal Lal and the accused were also adjacent to

¶130

27 Neutral Citation No. ( 2025:HHC:42550 )

¶131

each other. She further admitted that Roshal Lal also was living with his family having two children, i.e., one son and one daughter. She admitted it to be correct that the house of Bhagat Chand was also nearby to the house of the accused and Bhagat Chand also lived there. The family of Bhagat Chand consisted of two sons and three daughters and both his sons were married. She also admitted it to be correct that the houses of Bhau Ram and Gyan Singh were also situated nearby and they used to reside with their family.

¶132

Thus, from the entire gamut of the cross-examination of the child victim, it is clear that there were many houses situated near the house of the accused and there was a passage between the houses of her father and the accused, which was being used by all the villagers. The father of the victim admitted in his cross examination that noise from the house of the accused could be heard in the adjoining building of Roshan Lal.Therefore, the conduct of the child victim is quite unnatural in not raising any alarm when she was allegedly being raped by her grandfather. She had ample opportunity to raise alarm and had she raised hue and cry, the neighbors from the adjoining houses would definitely have come to rescue her. Though she deposed that she

¶133

28 Neutral Citation No. ( 2025:HHC:42550 )

¶134

started screaming but nobody was there,however, it appears quite improbable that the people of adjoining houses did not hear her alarm especially in view of the cross examination of the father of the victim wherein he admitted that screams from the house of the accused could be heard in the house of Bhagat Chand and his house. It is true that the child victim, in her deposition before the Court, stated that she was threatened by the accused not to disclose the incident to anyone. However, she has made improvement in her Court statement as she had not disclosed this fact in her statement under Section 164 Cr.P.C, Ex PW-2/B. She also admitted that she did not disclose about the threatening given by the accused, when she visited the police station. This improvement, in our opinion, is significant in the context of this case. There is another discrepancy in her deposition as she admitted that when rape was committed with her she was wearing the trousers having one string, but when the trousers was opened in the Court it was not having any string. Thus, the evidence of victim in deposition before the Court suffers from material improvement. The law in this regard is settled that on sole testimony of the victim, conviction can be based and there is no need for any corroborative material provided the testimony of the

¶135

29 Neutral Citation No. ( 2025:HHC:42550 )

¶136

victim is worthy of credence. Here in this case, the statement of victim is highly improbable and inconsistent.

¶137

Even the medical evidence does not corroborate the testimony of the victim. PW-1 Dr. Priyanka, who medically examined the child victim, categorically deposed that on examination, no external injury was present on vagina, perineum and anal region and no other external injury was present over her body. After perusal of the SFSL report, she gave her opinion and as per her final opinion, there was no evidence of sexual intercourse. She also deposed that the patient had alleged history of assault since 22 days but she never deposed that the patient had alleged history of sexual assault. The medical evidence adduced on record by the prosecution otherwise nowhere indicates towards sexual intercourse committed by the accused. According to the victim, prior to this incident also, the accused had committed forcible sexual intercourse with her 2-3 times. In that eventuality, some injuries on the private parts of the prosecutrix were bound to be there. However, the doctor did not notice any injury on any part of her body which fact also raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and

¶138

30 Neutral Citation No. ( 2025:HHC:42550 )

¶139

renders it unsafe to base any conviction. To conclude, the sole testimony of the child victim cannot be relied upon to convict the accused as her testimony failed to dispel the shadow of doubt.

¶140

Learned counsel for the appellant has next submitted that there is a delay in lodging the FIR as the alleged rape relates to 6.12.2018 whereas the FIR was recorded on 27.12.2018 and no plausible explanation has been given by the prosecution for delay in lodging FIR. He further submits that the whole story narrated by the prosecution appears to be false and in these circumstances, it is highly unsafe to rely upon the testimony of the prosecutrix and her parents.

¶141

F.I.R., although is not a substantive piece of evidence, but generally, if it is free from any infirmity, forms basis of prosecution case. It is settled principle of law that there is no time limit for lodging F.I.R., but if it is lodged after unexplained delay and after counselling and consultation, it demolishes the plinth of prosecution's castle. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. In Thulia Kali vs. State

¶142

31 Neutral Citation No. ( 2025:HHC:42550 )

¶143

of Tamil Nadu 1972 SCC (Cri.) 393, where delay in lodging F.I.R., was of 20 hours without any proper justification, Court,

¶144

setting aside conviction of appellant, held:

¶145

"12…..First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of after-thought. On account of delay, the report not only get bereft of the advantage of spontaneity, danger, creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging the first information report should be satisfactorily explained…..."

¶146

In the case reported as Tulshidas Kanolkar v. The

¶147

State of Goa, (2003) 8 SCC 590, it was held by the Supreme Court that in a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. The relevant portion is as follows:

¶148

"5……...The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a

¶149

32 Neutral Citation No. ( 2025:HHC:42550 )

¶150

case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle.”

¶151

We are conscious of the fact that unlike in other

¶152

cases, in rape cases, delay in lodging the First Information Report cannot be urged as a point for doubting the prosecution case and discarding the same on the ground of delay, yet in the facts and circumstances of the present case, the delay does assume importance. In the instant case, after going through the record, it is clear that there is a delay of about 21 days in lodging the FIR. As per the case of the prosecution, the victim was raped by the accused on 06.12.2018 when no one else was there in his house. Surprisingly, the victim did not make any complaint either to her parents or to any other person, much less to the police on 06.12.2018 when she was allegedly raped. The only explanation for delay in lodging the FIR is that the she was threatened by the accused not to disclose the incident to anyone, therefore the FIR was not lodged. However, this fact is missing in FIR as well as in her statement recorded under section 164 Cr.P.C. As observed earlier, she had not disclosed about the threatening given by the

¶153

33 Neutral Citation No. ( 2025:HHC:42550 )

¶154

accused in her statement under Section 164 Cr.P.C., Ex PW-2/B and also at the time of registration of FIR, when she visited the police station. There is total contradiction in the statements of child victim, her father and her mother before the Court regarding the date of disclosure of the incident. The victim deposed before the Court that she had disclosed the incident to her mother on 25.12.2018, whereas, mother of the victim (PW-5) deposed before the Court that her daughter disclosed the incident on 22.12.2018. However, father of the victim admitted in his crossexamination that his wife (mother of the victim) told him about the incident in the evening of 06.12.2018. It has also come in the cross-examination of father of the victim that the appellant stayed in the house of the victim from 06.12.2018 to 22.12.2018. It is also clear that after the alleged incident of rape,on the next day, the victim went to her school and might have met her friends and teachers with whom she was in contact. Even then, she preferred not to make any complaint of rape against the accused. No explanation is coming forth from the prosecution as to why she did not tell her friends, teachers and family about the alleged rape. As per statement of the victim, no complaint or grievance was made by her either to the police or the parents prior to

¶155

34 Neutral Citation No. ( 2025:HHC:42550 )

¶156

25.12.2018. It has not been properly explained as to why the victim venture to wait for 19 days and did not inform her parents or any of her family members. Had the victim lodged the complaint soon after the incident, there was a possibility of medical report or any other injury report on the body of the victim so as to show the sign of rape. Thus non-disclosure of offence to any person or authority for 19 days has made the conduct and behaviour of victim unnatural which render prosecution version highly doubtful. Even information to police was not given when victim (PW-1) allegedly narrated story of rape to her mother on 25.12.2018. The FIR was lodged only on 27.12.2018.. In such situation, we are of the opinion that delay in lodging F.I.R., without any plausible explanation, has created a serious doubt on the genuineness of prosecution case.

¶157

Thus, in view of the facts and circumstances, the evidence of victim cannot be kept in the category of wholly reliable witness. The alleged occurrence of rape had taken place in the day light at about 2.00/3.00 pm and the place is surrounded by many houses. In such circumstances the story of the prosecution is not acceptable. Hon'ble apex Court in the case of Rajoo v/s State of M.P. AIR 2009 SC 858 held that although the

¶158

35 Neutral Citation No. ( 2025:HHC:42550 )

¶159

evidence of the prosecutrix is at par with injured witnesses, her evidence cannot always be accepted as truth. The accused must also be protected against the possibility of false implication when there is no corroborating evidence oral as well as circumstantial.

¶160

In the case of Ashish Batham v/s State of M.P. (2002) 7 SCC 317 Hon'ble apex Court held that in the administration of criminal law and justice delivery system the innocence of the accused is of prime importance and is to be presumed unless the charge is proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeccable evidence and hence mere suspicion, however, strong or probable cannot take place of proof and, therefore, it would be crucial to convict the appellant of the aforesaid offences under these circumstances.

¶161

From perusal of impugned judgment passed by learned Trial Judge, it transpires that learned Judge has neither discussed the evidence available on record nor properly discussed the submission made by defence counsel, particularly regarding delay in lodging F.I.R. and also on trustworthiness of statement of PW-1 victim, nor has appreciated the same correctly. 38. Consequently, in view of the detailed discussion made

¶162

36 Neutral Citation No. ( 2025:HHC:42550 )

¶163

hereinabove, we are of the firm opinion that the prosecution has failed to prove the charge against the appellant beyond reasonable doubt. Hence, the impugned judgment of conviction and order of sentence, dated 30.09.2019, passed by the learned Trial Court is set aside. The appellant is acquitted from the aforesaid charge. His bail bonds are discharged. Release warrants be prepared forthwith. He shall be set at liberty forthwith, if not required in any other case.

¶164

The appellant is directed to furnish personal bond in the sum of Rs.50,000/- with one surety bond in the like amount to the satisfaction of the learned Trial Court, strictly in terms of provisions of Section 481 of BNSS within a period of four weeks.

¶165

In view of the above, the appeal is disposed of, so also pending application(s), if any.

¶166

( Sushil Kukreja ) Judge

¶167

( Virender Singh )

¶168

Judge

¶169

9^th December, 2025

¶170

(virender)