Kumara Vs State of Karnataka

SMT. MEENAKSHI W/O LATE GOPALA GOWDA AGED ABOUT 43 YEARS R/AT DEVAKUDRU MANE THENKAMIJARU VILLAGE ASHWATHPURA POST MUDABIDRE TALUK D K DISTRICT -560 056.

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…RESPONDENTS

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(BY SRI. VINAY MAHADEVAIAH., HCGP FOR R1; SMT. G.M. SUMITHRA., ADVOCATE FOR R2)

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THIS CRIMINAL APPEAL IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 26.12.2022 ON THE FILE OF THE ADDL.DISTRICT AND SESSIONS JUDGE, / FTSC II (POCSO) D.K., MANGALURU IN SPL.C.NO.176/2021, CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 4 OF THE POCSO ACT R/W SEC.341,506 OF THE IPC.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL JUDGMENT

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This appeal is by the accused/appellant being aggrieved by the judgment and order dated 26.12.2022 passed in Special Case No.176/2021, on the file of Additional District and Sessions Judge/ FTSC-II (POCSO), D.K., Mangaluru, by which he has been convicted and sentenced for the offences punishable under Section 341, 376, 506 of IPC read with Sections 4 and 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 (hereinafter referred to as 'the POCSO Act').

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A complaint dated 09.08.2021 came to be filed at 05.15 p.m. by the victim before the Moodabidre Police Station contents of which are as under:

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'' �ಾನು ಈ�ೕ�ನ��ಾಸದ��ನನ� �ಾ��ೕಮ��ೕ�ಾ� . �ಾನು , ತಮ� �ಾ��ೊಂ!"ೆ #ಾಸ#ಾ$ದು% �ಾ� ಕೂ� �ೆಲಸ (ಾಡು�*ದು% �ಾನು +ೕ�ೆ�,ೆ ಸರ�ಾ. /ೌ�ಢ 2ಾ3ೆಯ�� 10 �ೇ ತರಗ�ಯ�� ಕ�ಯು�*6ೆ%ೕ�ೆ . ನನ� ತಮ� +ೕ�ೆ�,ೆ 2ಾ3ೆಯ�� 5 �ೇ ತರಗ�ಯ�� ಕ�ಯು�6ಾ%�ೆ . ನನ� ತಂ6ೆ ಸು(ಾರು 4 ವಷ�ಗಳ:ಂ6ೆ ಮೃತಪ=>ರು�ಾ,ೆ .

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�ಾನು ಈ !ನ !�ಾಂಕ 09.08.2021 ರಂದು ?ೆಳ"ೆ@ ನಮ� ಆB3ೈB 2ಾ3ಾ ವ��ೕಟನು� +ೕಡುವ,ೇ ನನ� "ೆಳ��ೆ,ೆಮ�ೆಯ!ೕEಾ�ೆFಂ!"ೆ ?ೆಳ"ೆ@ 09.30 ಗಂGೆ"ೆ ನHೆದು�ೊಂಡು 2ಾ3ೆ"ೆ Iೋ$6ೆ%ನು . ನಮ� ವಕ��ೕಟನು� 2ಾ3ೆಯ��+ೕJಮKಾLಹ� 12.45 ಗಂGೆ"ೆ 2ಾ3ೆ�ಂದIೊರಟು #ಾ/ಾಸುN ಮ�ೆ ಕHೆ"ೆ ನHೆದು�ೊಂಡು ಬರು�ರು#ಾಗ ಅ3ೆ�ೕ ಇದ% ಬಸುN ತಂಗು6ಾಣದ�� ನನ� SಕTಪU ಕು(ಾV ರವರು ಕುW�ದ%ರು . �ಾನು ನನ� "ೆಳ� !ೕEಾ�ೆFಂ!"ೆ ನನ"ೆ �ೆಲವX ಬ,ೆಯುವ ಪXಸಕಗಳY ?ೇ�ಾ$ದು%ದ.ಂದ ಅ3ೆ�ೕ ಇದ% ಅಂಗJ"ೆ Iೋ6ೆವX . ಆಗ ನನ� SಕTZಪ ಕು(ಾVರವರು ನಮ�ನು� :ಂ?ಾ�ಸು�ಾ* ಬಂದರು . �ಾವX ಅಂಗJ�ಂದ ಪXಸಕಗಳನು� ಪHೆದು�ೊಂಡು ಮ�ೆ ಕHೆ"ೆ Iೋಗು�ರು#ಾಗ ಅ��ಯೂ ನನ� SಕTಪU ನಮ�ನು� :ಂ?ಾ�[�ೊಂಡು ಬಂದು +ನ�� ಾನು Iೇಳ�ಲ�#ೇ ಅವಳ\ೊ�ೆ Iೋಗ?ೇಡ#ೆಂದು ಎಷು> ಸಲ IೇಳYವXದು ಎಂದು IೇW ನನ� "ೆಳ�!ೕEಾಳ�� " +ನ"ೆ ಎಷು> �ೆಲಸಇ6ೆ ಅಷು> (ಾಡು +ೕನು [ೕ6ಾ +ನ� ಮ�ೆ"ೆ Iೋಗು �ಾನು ಅವಳSಕTಪU " ಎಂದು\ೋರು(ಾJದನು . ಇದನು� �ೇWದ !ೕEಾಳY Iೆದ. #ೇಗ#ಾ$ ಅ��ಂದ ಓJ IೋದಳY . ಅಷ>ರ�� ನನ� SಕTಪU ಅ3ೆ�ೕ ಇದ% ಓ_`ಂದರ ಪಕTದ�� ನನ�ನು� ತHೆದು +��[ ನನ� aೕB ನಂಬ� �ೊಡ?ೇ�ೆಂದು ಒ�ಾ�[ದನು . �ಾನು �ೊಡ!6ಾ%ಗ ನನ� �ೈಯನು� :Jದು ಎ�ೆದು +ೕ�ೆ�,ೆ ಮುಖL ರdೆ�ಂದಸು(ಾರು 150 �ೕಟVಬಲeಾಗದ��ದ%ಇದ% �ಾಡು ಮರಗWರುವ ಗುಡfದ ಕHೆ"ೆ ಎ�ೆದು�ೊಂಡು Iೋದನು . �ಾನು ಅವ.ಂದ gJ[�ೊಳhಲು ಪ�ಯ��[6ಾಗ ನನ� SಕTಪU ನನ� ಕು�"ೆಯನು� :Jದು ಎ�ೆದು�ೊಂಡು Iೋ$ ನನ�ನು� �ೆಲದ�� gW[ದು% �ಾನು iರುS6ಾಗ " ?ೊ?ೆj Iಾiದ,ೆ +ನ�ನು� �ೊಂದು Iಾಕು�ೇ�ೆ ?ೊ?ೆj Iಾಕ?ೇಡ ಸುಮ�+ರು " ಎಂದು Iೆದ.[ ನನ� ಚೂJ6ಾರದ /ಾLಂಟನು� ಮತು* ಒಳ ಚJfಯನು� ಬಲವಂತ#ಾ$ �ೆಳ�ೆT \ಾ.[ದ%ನು . ನನ� SಕTಪU ಕೂಡಅವರ/ಾLಂಟನು� \ಾ.[ನನ� ಎ6ೆ"ೆ �ೈ Iಾi\ೋ,ಾ$:ಚುiದರು . �ಾನು?ೇಡ?ೇಡಎಂದು?ೊ?ೆj Iಾiದರೂ�ೇಳ6ೇ ನನ� �ೕ3ೆ ಮಲ$ ನನ� ಮೂತ� (ಾಡುವ \ಾಗ�ೆT ಅವರ ಮೂತ� (ಾಡುವ dಾಧನವನು� ಇಟು> ಒಳ"ೆ Iಾi �ೕ3ೆ �ೆಳ"ೆ (ಾJದರು . ಆಗ ಅವರ ಮೂತ� (ಾಡುವ \ಾಗದ�� gW ದ�ವ ಬಂದಂ�ಾ$ ನಂತರ ನನ� SಕTಪU ನನ�ನು� gಟು> ಎದು% +ಂತು " +ೕನು ಈ �mಾರವನು� nಾ."ಾದರೂ IೇWದ,ೆ +ನ�ನು� �ೊಲ�6ೆ

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gಡುವX!ಲ� ಎಂದು Iೆದ.[ದರು . ನನ� SಕTಪU ಅವರು Iಾiರುವ /ಾLಂo ಸ. (ಾಡು�6ಾ%ಗ�ಾನು ನನ� /ಾLಂಟನು� �ೕಲ�ೆT (ಾಡು�ಾ ಅ��ಂದತpU[ ಮ�ೆ ಕHೆ"ೆ ಓJ�ೊಂಡು Iೋಗುವಷ>ರ�� ನನ"ೆ +�ಾ�ಣ#ಾ$ದು% ಅ6ೇ #ೇ�ೆ"ೆ ನನ� "ೆಳ�!ೕEಾಳಮ�ೆಯವರುಮತು*ಇತರರುನನ�ನು� ಹುಡುi�ೊಂಡುಅ��"ೆ ಬಂದು ನನ�ನು� ಪಕTದ3ೆ�ೕ ಇದ%ನನ� ಪ.ಚಯದಹq��ಾಳಮ�ೆ"ೆ ಕ,ೆದು�ೊಂಡು Iೋ$ ಉಪಚ.[ದರು . ಅ��"ೆ ಬಂದ �ೆಲವರು ಓJ Iೋಗು�ದ% ನನ� SಕTಪU ಕು(ಾV ರವರನು� ಕಂಡು :J!ಡುವಸಲು#ಾ$ಓJ[�ೊಂಡು Iೋ$ರು�ಾ,ೆ . ಬWಕ ನನ� �ಾ� ಕೂHಾ ಬಂ!ದು% �ಾನು ನHೆದ �ಷಯಗಳನು� ಅವರ�� W[ದ ಬWಕ �ಾವX sಾtೆ"ೆ ಬಂದು ಈ pnಾ�!ಯನು� +ೕಡು�*ರುವX6ಾ$6ೆ . ಈ ಘಟ�ೆ ನHೆಯು#ಾಗಈ!ನ!�ಾಂಕ 09.08.2021 ರಂದುಮKಾLಹ� 12.45 ಗಂGೆ�ಂದ 1.30 ಗಂGೆ ಮKೆL ಆ$ರಬಹುದು .

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ಕು(ಾರರವರು ನನ� SಕTಪU�ಾ$ದು% �ಾನು ಅ/ಾ�ಪ* ವಯ[Nನ ಹುಡು$ ಎಂದು �W!ದ%ರೂ ಕೂHಾ ನನ�ನು� ಬ3ಾ�ಾTರ#ಾ$ �ೈ :J6ೆ�ೆದು�ೊಂಡು Iೋ$ ನನ"ೆ ಬಲ�ಾTರ ಸಂeೋಗ (ಾJರು�ಾ*,ೆ . ಆದ%.ಂದ ನನ� SಕTಪU ಕು(ಾVರವರ�ೕ3ೆ ಸೂಕ*ಕ�ಮ�ೈ"ೊಳh?ೇ�ಾ$�ನಂ� . ''

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Pursuant to which, case in Crime No.248/2011 for the

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offences punishable under Section 341, 376, 506 of IPC read with Section 4 and 6 of the POCSO Act, came to be registered. After enquiry and investigation, a charge sheet for the aforesaid offences came to be filed. Charges were framed. Since the accused pleaded not guilty, the matter was taken up for trial.

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Prosecution has examined 13 witnesses as PW1 to PW13 and exhibited 18 documents marked as Ex.P1 to Ex.P18 and 6 material objects were marked as MO1 to MO6. No evidence is led on behalf of the accused. Though he has denied

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the incriminating circumstances made against him while recording the statement under Section 313 of the Cr.P.C.

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The trial Court framed the following points for its consideration:

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'' 1. Does the prosecution prove beyond all reasonable doubt that, PW.1 (for short the victim) was the minor as on 9.8.2021?

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2. Does the prosecution prove beyond all reasonable doubt that, on 9.8.2021 at about 12.45 Neerkare p.m. at Devukudru Oni, the accused has wrongfully restrained the victim with an intention to commit the crime?

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3. Does the prosecution prove beyond all reasonable doubt that, the accused has committed the forcible penetrative sexual intercourse with the victim amidst her resistance knowing that she was the minor by the time?

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4. Does the prosecution prove beyond all reasonable doubt that, the accused has held a threat to the victim before and after committing the penetrative sexual intercourse with her ?

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5. What order? ''

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On appreciation of pleadings and evidence, answered

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point Nos.1 to 4 in the affirmative. Consequently, passed the

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impugned judgment and order, which reads as under:

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''The accused by name Sri.Kumara S/0 Sheshappa Gowda is sentenced to undergo the rigorous imprisonment for a period of 15 years and to pay fine of Rs.50,000/- for the offence punishable under Sec.6 of the POCSO Act 2012. In default to pay the fine, the accused shall undergo further rigorous imprisonment for a period of six months.

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He is further sentenced to undergo the imprisonment for a period of 1 year for the offence punishable under Sec.506 of the Indian Penal Code & for a period of 1

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month in respect of offence punishable under Sec.341 of the Indian Penal Code.

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The substantive sentences shall run concurrently and default sentences separately.

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The copy of this judgment is ordered to be furnished forthwith to accused free of cost.

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The accused is remanded to the District Prison at Mangaluru.

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Issue the conviction warrant with the direction to the Prison authority to execute the sentence keeping in mind the period of set off for which the accused is made entitle.''

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Being aggrieved, the accused/appellant is before this

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Court.

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Learned counsel for the accused/appellant taking this Court extensively through the records at the outset submits

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that since the accused/appellant is charged with offences punishable under Sections 4 and 6 of the POCSO Act, it was incumbent upon the prosecution to have first established and proved the requirement of Section 2(d) of the POCSO Act, that the victim was a child below the age of 18 years.

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He submits that no acceptable evidence in the manner known to law has been produced by the prosecution, except a certificate, as per Ex.P5 dated 10.08.2021 issued by the Head

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Mistress of a Government High School, Neerkere and Ex.P14, another School Certificate issued by the Headmistress of DKG Higher Primary School, Neerkere, Moodbidre, Mangaluru. He refers to the deposition of PW4-Prathima H.P, who was examined by the prosecution in support of Ex.P5. The said witness, he submits that has deposed that the said certificate Ex.P5 was given, based on the previous transfer certificate issued by the earlier school i.e., DKG Higher Primary School, Neerkere, Moodbidre, Mangaluru. He thereafter refers to the deposition of PW10-Yamuna. K, who is the author of Ex.P14 and referring to the said deposition, he submits that the said witness in the cross- examination has admitted to the existence of birth certificate based on which the date of birth of the victim was recorded in her Admission Register and that since the police did not request for production of birth certificate, she has not given. He then refers to the deposition of PW12Investigation Officer, who procured Ex.P5 and Ex.P14 from the School Authorities, has deposed that despite his enquiry, he could not get the birth certificate.

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Thus, referring to these three depositions and Ex.P5 and Ex.P14, he submits that the prosecution has failed to establish the date of birth of the victim as mandated under law.

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He refers to Section 34 of the POCSO Act, which contemplates mode of determination of the age of the child by the Special Court. He refers to Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as 'the JJ Act' for short) and submits that the said provision provides for the documentary evidence that is required to be produced to prove the age of the victim and the same is not complied with.

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In justification of his submission, he relies upon the judgment of the Hon'ble Apex Court in the case of Yuvaprakash Vs. State of Tamil Nadu reported in (2024) 17 SCC 684.

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Thus referring to the aforesaid factual and legal aspects of the matter, he submits that prosecution has miserably failed to establish the factum of victim being below 18 years of age. That merely because the accused/appellant has not disputed the age of the victim during the trial cannot be

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the ground to deny him an opportunity of raising the dispute in

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the appeal as the same is a question of law, can be raised at any stage of the proceedings.

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He further submits considering the facts and circumstances of the case, non-examination of either the parents or any of the relatives of the victim gives further suspicion with regard to the whole case of the prosecution.

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He refers to Ex.P8-FSL Report, in that the clothes of the victim as well as of the accused/appellant were sent for Forensic Examination. Opinion, according to him, does not disclose either the blood stains or seminal stains and even vaginal secretions on any of the material objects that were sent. He submits that, in the light of the allegations of forcible sexual assault, alleged to have been committed by the accused/appellant on the victim. It is impossible to imagine victim not suffering any scratch on her body or even on her clothes, which makes it unusual for the case of this nature even for the offences punishable under Section 376. Thus, he submits the trial Court has erred in accepting the case of the

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prosecution, which has failed to prove the case beyond reasonable doubt. Hence, seeks for allowing of the appeal.

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Learned HCGP appearing for the respondent-State,

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taking this Court through the record submits that it is not the quantity of the witnesses, but the quality which requires for consideration. He submits that victim, who has been examined as PW1 has been consistent in her statement before the trial and during the trial. He submits that the incident has taken place on 09.08.2021, at about 12.45 p.m. The complaint has been lodged on the very same day at 05.15 p.m. The victim and the accused were both subjected to medical examination on the very same day. That PW2 who is the classmate and the person who had accompanied the victim at the time of the accused/appellant dragged her away has also withstood the deposition and the cross-examination. Nothing has been elicited to discredit the trustworthiness of the witnesses. Therefore, he submits that mere non-examination of the parents of the victim would not take away the case of the prosecution. As regards

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non production of the birth certificate, he submits that certificate issued by the School regarding the date of birth of

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the victim is one of the documents contemplated under law, which has been complied with and in the absence of any serious dispute by the accused/appellant with regard to date of the birth of the victim, no error can be recovered.

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Learned counsel appearing for the Victim/respondent No.2 reiterating and supplementing the submissions made by learned HCGP, submits that the date of birth of the victim as per the School Admission register is 02.09.2006 and her admission to the school was on 01.06.2012 and the date of the incident being 09.08.2021, it becomes clear that the victim was below age of 15 years. She submits the evidence of victim read conjointly with the evidence of PW2 who is none other than her classmate who was studying 10^th standard was also present

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when the accused/appellant dragged her away. Therefore, she submits read holistically, the prosecution has proved that the victim was below age of 18 years attracting the provisions of POCSO Act. She submits that there has been no delay of any nature whatsoever in registering the complaint and subjecting

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themselves to the medical examination. Thus, the statutory presumption has been proved and established and the burden

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was therefore on the accused/appellant to have discharged his

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burden of he being the innocent as contemplated under Section 29 of the POCSO Act. Hence, seeks for rejection of the appeal.

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Heard and perused the records.

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The accused/appellant is stated to be paternal uncle

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of the victim. Contents of the complaint as extracted hereinabove indicate that he had dragged her away while she was returning from her School after submission of assignment along with PW2. While dragging the victim, accused had threatened PW2 which resulted in she leaving the victim and going away.

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Victim-PW1 has deposed the facts consistent with her complaint. Nothing has been elicited to discredit her version. PW2 has immediately informed her relatives about accused dragging victim away to an area amidst the bushes at a distance of 150 meters from the main road. PW2 soon after informing her maternal and paternal aunt and uncle has taken them to the spot from where the accused had dragged the victim away. The PW2 has spoken about she witnessing accused-appellant running away from the spot where the victim

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had fallen down. The time gap between the victim being dragged away by the accused-appellant and the PW2 coming to the spot after informing her relatives as above is very proximate.

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Nothing has been elicited either from the victim who is examined as PW1 and PW2 to discredit their deposition in any manner whatsoever. As rightly pointed out by learned HCGP, deposition of the victim in the absence of any discrepancies has to be considered as a sterling evidence which is clear in the instant case.

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At this juncture it is relevant to refer to the judgment of the Hon'ble Apex Court in the case of Ganesan Vs. State Rep. by its Inspector of Police reported in (2020) 10 SCC

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573 , wherein at paragraph Nos.10 has held as under:

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'' 10. In the present case, the appellant-accused has been convicted by the learned trial court for the offence under Section 7, punishable under Section 8 of the POCSO Act. We have gone through the entire judgment passed by the learned trial court as well as the relevant evidence on record, more particularly the deposition of PW 1 father of the victim, PW 2 mother of the victim and PW 3 victim herself. It is true that PW 2 mother of the victim has turned hostile. However, PW 3 victim has fully supported the case of the prosecution. She has narrated in detail how the incident has taken place. She has been thoroughly and fully cross-examined. We do not see any good reason not to rely upon the deposition of PW 3 victim. PW 3 aged 15 years at the time of deposition is a matured one. She

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is trustworthy and reliable. As per the settled proposition of law, even there can be a conviction based on the sole testimony of the victim, however, she must be found to be reliable and trustworthy.

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10.1. Whether, in the case involving sexual harassment, molestation, etc., can there be conviction on the sole evidence of the prosecutrix, in Vijay [Vijay v. State of M.P., (2010) 8 SCC 191 : (2010) 3 SCC (Cri) 639] , it is observed in paras 9 to 14 as under : (SCC pp. 195-98)

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“9. In State of Maharashtra v. Chandraprakash Kewalchand Jain [State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 : 1990 SCC (Cri) 210] this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under : (SCC p. 559, para 16)

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‘16. A prosecutrix of a sex offence cannot be put on a 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 alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.’

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10. In State of U.P. v. Pappu [State of U.P. v. Pappu, (2005) 3 SCC 594 : 2005 SCC (Cri) 780] this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under : (SCC p. 597, para 12)

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‘12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.’

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11. In State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 : 1996 SCC (Cri) 316] , this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under : (SCC pp. 394-96 & 403, paras 8 & 21)

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‘8. … The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing

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her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. … The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. … Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. … Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. …

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21. … The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.’

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(emphasis in original)

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12. In State of Orissa v. Thakara Besra [State of Orissa v. Thakara Besra, (2002) 9 SCC 86 : 2003 SCC (Cri) 1080] , this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-

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examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.

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13. In State of H.P. v. Raghubir Singh [State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 : 1993 SCC (Cri) 674] this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. [Wahid Khan v. State of M.P., (2010) 2 SCC 9 : (2010) 1 SCC (Cri) 1208] placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan [Rameshwar v. State of Rajasthan, 1951 SCC 1213 : AIR 1952 SC 54] .

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14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.”

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10.2. In Krishan Kumar Malik v. State of Haryana [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61] , it is observed and held by this Court that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.

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10.3. Who can be said to be a “sterling witness”, has been dealt with and considered by this Court in Rai Sandeep v. State (NCT of Delhi) [Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21 : (2012) 3 SCC (Cri) 750] . In para 22, it is observed and held as under : (SCC p. 29)

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“22. In our considered opinion, the “sterling witness” should be of a very high quality and calibre 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

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be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

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Victim and PW2 have been very consistent in their stand and there is no reason not to accept the same to be the sole basis for proof of allegation of commission of crime by the accusedappellant.

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As regards the medical evidence, PW9 in her evidence has deposed that on her medical examination it was found that the victim was subjected to sexual assault. She has also spoken about the history of the incident which was narrated to her by

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the victim and she has spoken about medical report produced at Ex.P13.

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The contents of Ex.P13 would indicate that the victim

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was found to have been suffering pain over neck region, shoulder and breast where the tenderness was present. The said report also indicate the victim having tenderness in her groin regions. The allegation of accused exerting physical force on her neck and other parts of the body as alleged in the complaint is corroborated by the medical evidence.

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Thus, the prosecution has been able to prove the forcible sexual assault by the accused-appellant on the victim.

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Further, PW3 who is Anganvadi Teacher has supported the case of the prosecution.

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PW4 is the Head-Mistress of Government Primary School, Neerkere who has produced Ex.P5, which is a certificate issued evidencing the age of the victim. The said document also indicates that victim was pursuing the 10^th Standard in the year 2021-22 and her date of birth being 02.09.2006. The said witness has deposed that her date was entered in the records

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based on the transfer certificate that was issued by the previous School.

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PW10 is the Head-Mistress of Government High School who has produced document at Ex.P14, which is School Studying Certificate, the said document would indicate that she was admitted to the 1^st standard on 01.06.2012 and she has studied and completed upto 7^th standard in the said School in the year 2018-19, and her date of birth as per the Admission Register is 02.09.2006. Further, PW10 has spoken to the contents of Admission Register. Though in the cross examination the said witness has stated that the date of birth of the victim was entered in the admission register based on a birth certificate and the same was not produced as the police had not called for, which according to the learned counsel for the accused-appellant is a serious discrepancy in the matter, this Court is not persuaded to accept the said contention. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 reads as under:

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'' 94. (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

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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.

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(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 —

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(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;

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

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(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:

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Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

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(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person''

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Thus one of the documents required to be produced

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by the prosecution to prove the age of the victim is the birth certificate issued by the first School. Ex.P14 is the certificate issued by the first School, based on the admission register, witness-PW10 had apparently brought the original of the said admission register to the Court for its verification.

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The evidence placed on record by the prosecution, complies with the requirement of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Besides, considering the date of the admission of the victim to her school and Ex.P5, the School Certificate issued by her High School, where she stated to be studying 10^th Standard in the year 2021-22 corroborates the fact of victim being aged about 15 years.

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PW2 is her classmate, who is also aged about 15 years as on the date of incident. These material evidence justifies the claim of the prosecution having proved the case beyond reasonable doubt of victim being below age of 18 years to bring home the case within the provisions of POCSO Act.

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Accused-appellant has not led in evidence to discharge the statutory burden casted on him. In the light of the above discussion and analysis and based on the material evidence, this Court is of the considered view that the trial Court has rightly appreciated the material evidence placed on record and has arrived at just conclusion in convicting the accused-appellant for the offences noted hereinabove.

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