Surguja (Ambikapur), Chhattisgarh v. 1 - State Of Chhattisgarh
Case Details
1 VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR HIGH COURT OF CHHATTISGARH AT BILASPUR AFR CRA No. 1878 of 2019 Judgment Reserved on 21.07.2025 Judgment Delivered on 06.08.2025 1 - Tota Prasad @ Baba S/o Rama Yadav, Aged About 21 Years R/o Village Parpatiya, Police Station Kamleshwarpur, District Surguja Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 2 - Mahendra Yadav, S/o Luxman, Aged About 23 Years R/o Village Parpatiya, Police Station Kamleshwarpur, District Surguja Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh ...Appellants versus 1 - State Of Chhattisgarh Through P.S. Lakhanpur, District Surguja Chhattisgarh, District : Surguja (Ambikapur), Chhattisgarh ... Respondent For Appellants : Mr. Sushil Dubey & Mr. Aman Upadhyay, Advocates for the respective appellant. For Respondent/State : Mr. Abhishek Singh, P.L. Division Bench Hon'ble Smt. Justice Rajani Dubey, J. & Hon'ble Shri Justice Amitendra Kishore Prasad, J. 2 C A V Judgment Per, Amitendra Kishore Prasad, J. 1. In this appeal filed under Section 374(2) of Cr.P.C., the present appellants have challenged the legality, validity and propriety of the judgment of conviction and order of sentence dated 18.09.2019 passed by the Special Judge, Surguja (Ambikapur), Chhattisgarh {Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989} (for short, ‘the Act, 1989’), in Special Sessions (Atrocities) Case No.15/2018, whereby and whereunder the appellants No.1 & 2 stand convicted and sentenced as under:- Conviction Sentence Under Section 341 of Indian Penal Code (for short, 'IPC') Under Section 376(D) of IPC Under Section 392/34 of IPC Simple Imprisonment for 15 days and fine of Rs.200/- and in default of payment of fine amount to undergo additional simple imprisonment for seven days Rigorous Imprisonment for 20 years and fine of Rs.5,000/- and in default of payment of fine amount to undergo additional rigorous imprisonment for one year Rigorous Imprisonment for 5 years and fine of Rs.1,000/-, in default of payment of fine amount to undergo additional rigorous imprisonment for six months (All sentences were directed to run concurrently) 2. Case of the prosecution, in brief, is that on 18.12.2017, the prosecutrix, aged about 23 years, was returning home from 3 Ambikapur by bus. After reaching at village Pankajam, she was walking towards her home, at that time, two unknown persons came there on a blue motorcycle and intercepted her near village Labji Tukradan. After that, one of the accused snatched her mobile phone, forcibly dragged her and took her to a nearby area, where they committed forcible sexual intercourse with her one by one. After commission of the crime, both the unknown persons left the prosecutrix in the forest and fled away from the spot on their motorcycle, taking her phone with them. Thereafter, prosecutrix reached her home and informed about the incident to her family members. Based on the report of prosecutrix, FIR (Exs.P-7 & P- 35) have been lodged against the unknown persons. 3. During investigation, spot map was prepared vide Ex.P-18 and after taking the consent of the prosecutrix (Ex.P-8), she was sent for medical examination where PW-2 Dr. Sharda Bhagat examined her and did not give any definite opinion regarding recent forcible sexual intercourse nor did find any sign of injury over the body of the prosecutrix either internally or externally and gave her MLC report vide Ex.P-5. Accused persons were taken into custody vide Exs.P-28 & 29 and they were also sent for medical examination where PW-1 Dr. I.D. Bhatnagar examined them and found that they are capable of performing intercourse and gave his MLC reports vide Exs.P-1 & P-2. Vide Ex.P-10, undergarment of prosecutrix containing seminal spots was seized. Vide Ex.P-11, caste certificate of prosecutrix was seized. Vide 4 Ex.P-26, memorandum statement of appellant No.2- Mahendra Yadav was recorded, pursuant to which, one white colour Oppo company mobile phone was seized vide Ex.P-27. Vide Ex.P-24, vaginal slide of prosecutrix was seized. Vide Exs.P-25 & P-27, undergarments of accused persons were seized. Seized articles were sent to FSL for chemical examination and as per FSL report (Ex.D-1), seminal spots and human spermatozoa have been found on the seized articles marked as 'A, B, C & D.' 4. Statements of the witnesses were recorded and after completing investigation, charge-sheet was filed against the accused persons/appellants before the concerned trial Court. Accused persons/appellants abjured their guilt and prayed for trial. 5. The prosecution, in order to bring home the offence, examined as many as 11 witnesses in support of its case and exhibited 35 documents connecting the appellants/accused persons to the crime in question. However, in their defence, appellants/accused
Legal Reasoning
been reiterated by this Court in Wahid Khan v. State of M.P. (2010) 2 SCC 9 placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan, AIR 1952 SC 54. 14. Thus, the law that emerges on the issue is to the effect that 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." 21 (Emphasis supplied) 9.2 In the case of Krishan Kumar Malik v. State of Haryana (2011) 7 SCC 130, it is observed and held by this Court that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. 9.3 Who can be said to be a “sterling witness”, has been dealt with and considered by this Court in the case of Rai Sandeep alias Deepu v. State (NCT of Delhi), (2012) 8 SCC 21. In paragraph 22, it is observed and held as under: “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 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 crossexamination of any length 22 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 corelation 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 12 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.” On evaluating the deposition of PW3 – victim on the touchstone of the law laid down by this Court in the aforesaid decisions, we 23 are of the opinion that the sole testimony of the PW3 – victim is absolutely trustworthy and unblemished and her evidence is of sterling quality. Therefore, in the facts and circumstances of the case, the learned trial Court has not committed any error in convicting the accused, relying upon the deposition of PW3 – victim. The learned trial Court has imposed the minimum sentence provided under Section 8 of the POCSO Act. Therefore, the learned trial Court has already shown the leniency. At this stage, it is required to be noted that allegations against the accused which are proved from the deposition of PW3 are very serious, which cannot be permitted in the civilized society. Therefore, considering the object and purpose of POCSO Act and considering the evidence on record, the High Court has rightly convicted the accused for the offence under Section 7 of the POCSO Act and has rightly sentenced the accused to undergo three years R.I. which is the minimum sentence provided under Section 8 of the POCSO Act. 10. Now so far as the amount of compensation awarded by the learned trial Court is concerned, the High Court has modified the same and has directed the State to pay the compensation to the victim and thereafter to recover the same from the accused under the provisions of the land revenue, if it finds that the accused has sufficient means. It is the case on behalf of the accused that the accused is very poor and has no property. If that be so, he is not to worry. The 24 aforesaid has been taken care by the High Court by modifying the judgment and order passed by the learned trial Court. 11. Now so far as the reliance placed upon the decision of this Court in the case of Vinod Kumar (supra) and the reliance placed upon Order 41 Rule 31 CPC is concerned, as we ourselves have heard the appeal on merits and considering the fact that out of three years R.I., the appellant has already undergone two years and three months (approximately) , the said decision shall not be of any assistance to the accused.” 19. Also, the Hon’ble Supreme Court in the matter of Kattavellai @ Divakar vs. State of Tamil Nadu in CRA No. 1672/2019 also reported in 2025 LiveLaw (SC) 703, has held as under:- “30. Having noticed various gaps as above, the logical question that arises is where were the swabs?; why were they sent for forensic analysis belatedly?; were they properly stored?; whether the Malkhana of the Police Station where they were kept according to some of the witnesses, was sufficiently equipped or not; if the same were kept in the hospital, was it ensured that no other member of the staff could have had access to them?; in whose custody were they?; if the swabs were damaged, who shall be held responsible for the destruction of vital evidence, etc. Similar questions arise in connection with the semen sample taken from the accused as a consequence of an order 25 passed by the Judicial Magistrate, Uthamapalayam, on 13th June, 2011. PW-56 states that the said samples were sent to FSL, Chennai, on 16th June, 2011 but subsequently returned. It is unclear, yet again, that between 13th and 16th June 2011 where such samples were stored; who was in charge thereof and whether he had kept them in safe custody?; how and in what condition they were sent; when and why they were returned - unfortunately, all these questions have no answer forthcoming from the record. 31. In Anil v. State of Maharashtra (2014) 4 SCC 69 this Court observed that DNA profiles have had a tremendous impact on criminal investigations. A DNA profile is valid and reliable, but the same depends on quality control and procedures in the laboratory. We may add to this position and say, that quality control and procedures outside the laboratory matter equally as much in ensuring that the best results can be derived from the samples collected. We record with some sadness that there are quite a few cases in which DNA evidence, despite being there, has to be rejected for the reason that the manner, in which the samples were handled during and after collection by the concerned doctor, in transit to the lab, inside the lab and the results drawn therefrom, are not in accordance with the best possible practices which would focus on ensuring that throughout this process the samples remain in pristine, hygienic and biologically suitable conditions. 26 34. Prakash Nishad v. State of Maharashtra (2023) 16 SCC 357 was a case concerning the rape and murder of a 6-year-old child. Similar to the present case, it was a case of circumstantial evidence. Based on the disclosure statement made by the Appellant therein, the police found certain garments as also traces of semen of the Appellant on the vaginal smear of the minor victim, based on which he was sought to be convicted. DNA evidence had to be rejected by this Court on the grounds that there was a delay in sending the samples to the FSL, which was unexplained. It was observed that because of the delay, the concomitant prospect of contamination could not be ruled out. The need for expediency in sending samples to the concerned laboratories was underscored. 35. This case, incidentally, if not unfortunately, is another one of the like of the above. Despite the presence of DNA evidence, it has to be discarded for the reason that proper methods and procedures were not followed in the collection, sealing, storage, and employment of the evidence in the course of the Appellant-convict's conviction. DNA, as we have observed, has been held to be largely dependable, even though this evidence is only of probative value, subject to the condition that it is properly dealt with. Over the past decades, many cases have come to their logical conclusion with the aid of DNA evidence in many regions across the world. It is also equally true that many persons wrongly convicted have finally had justice served, with them being declared 27 innocent because of advancements in this technology. It is unfortunate that, alongside such advancements, we still have cases where, despite the evidence being present, it has to be rejected for the reason that the concerned persons, either doctors or investigators, have been careless in the handling of such sensitive evidence.” 20. In the matter of Nathu vs. State reported in 2025 SCC OnLine Del 2038, the Hon’ble High Court of Delhi has held as under:- “35.The prosecution also placed reliance on the DNA report (Ext. PW 9/A), which established that the child born to the prosecutrix was biologically fathered by the appellant. This fact is not disputed. However, the DNA report merely proves paternity it does not and cannot, by itself, establish the absence of consent. It is trite law that the offence under Section 376 IPC hinges on the absence of consent. Mere proof of sexual relations, even if resulting in pregnancy. is insufficient to prove rape unless it is also shown that the act was non-consensual. In fact, the surrounding circumstances render the prosecution's case highly improbable.” 21. In the light of the above-cited judgments, the most critical piece of evidence, a DNA test was not conducted by the prosecution to establish that the seminal spots and human spermatozoa found on the seized articles belonged to the present appellants. In the 28 absence of a DNA examination, the forensic report merely proves the presence of seminal spots and human spermatozoa, but it does not connect the accused persons to the alleged act of sexual assault. As such, the forensic evidence fails to establish the involvement of the accused persons in the crime in question. In a criminal trial, the burden lies upon the prosecution to prove the guilt of the accused beyond reasonable doubt. In the present case, the prosecution has failed to discharge its burden and also failed to prove its case beyond a reasonable doubt. The evidence available on record does not inspire confidence and falls short of the standard required for conviction. 22. In that view of the matter, we are of the considered opinion that the appellant No.1 Tota Prasad @ Baba and appellant No.2 Mahendra Yadav are entitled for acquittal and the learned trial Court is totally unjustified in convicting and sentencing the appellant for offences under Sections 341, 376(D) and 392/34 of IPC. As such, the appellants No.1 & 2 are entitled to be acquitted of the aforesaid charge on the basis of benefit of doubt. Accordingly, the impugned judgment of conviction and order of sentence dated 18.09.2019, passed by the learned trial Court is liable to be set- aside. 23. Consequently, the conviction of the appellants No.1 & 2 for offence punishable under Sections 341, 376(D) & 392/34 of IPC as well as the sentence imposed upon them by the learned trial Court is hereby set-aside. They are acquitted of the said charge leveled 29 against them on the basis of benefit of doubt. The appellants are reported to be in jail, we direct that they be released from jail forthwith, if not required in any other matter/case. 24.
Arguments
persons have examined one witness i.e. DW-1 Dr. Smt. S. Gautam and exhibited one document i.e. Ex.D-1. 6. The trial Court, after hearing counsel for the parties and appreciating the evidence on record, acquitted the appellants for the offence under Section 3(2)(v) of the Act, 1989, but convicted and sentenced them as mentioned in the opening para of this judgment, against which, this appeal has been preferred by the 5 appellants No.1 & 2 herein, questioning the impugned judgment of conviction and order of sentence. 7. Learned counsel for the appellants would submit that the prosecution has utterly failed to prove the case against the appellants beyond reasonable doubt. They would further submit there is no cogent and clinching evidence on record to prove the fact that the appellants are the author of the crime in question. They would also submit that though FSL report confirms seminal spots and human spermatozoa on the seized articles, but no DNA test has been conducted by the prosecution to establish the fact that the seminal spots and human spermatozoa are of the present appellants. They would also submit that PW-2 Dr. Sharda Bhagat, who examined the prosecutrix, did not give any definite opinion regarding recent forcible sexual intercourse with the prosecutrix and also did not found any external or internal injury over the body of the prosecutrix. Therefore, the impugned judgment of conviction and order of sentence deserves to be set aside and the appellants be acquitted of the aforesaid charges. 8. On the other hand, supporting the impugned judgment, learned counsel for the State would submit that conviction and sentence of the accused persons / appellants are strictly in accordance with law and there is no illegality or infirmity in the same warranting interference by this Court. 6 9. We have heard learned counsel for the parties and perused the material available on record with utmost circumspection. 10. Upon hearing, the primary question for consideration is the basis of the appellant’s involvement in the crime in question. The subsequent issue to be determined is whether the appellants are responsible for the commission of the said crime. 11. In view of the nature of the offence, it is appropriate to first consider the evidence presented by the prosecution and the victim. 12. PW-3 Prosecutrix has stated in her deposition that on 18.12.2017, she was coming home from Ambikapur by Bus and reached Village Pankajam at about 3:00 to 3:30 PM and proceeded towards her house. However, on the way, two boys came on a motorcycle and stopped her and one of the accused namely- Mahendra Yadav caught hold of her right hand while another namely- Tota Prasad Yadav snatched her mobile phone and thereafter, both the accused persons, pushed her on the ground, threatened her to life and committed forcible sexual intercourse with her one by one. She has further stated that after the incident, they left her in the forest and fled away from there. After that, she came to her house and informed about the incident to her family members. However, on the contrary, in her cross-examination, she admitted that she did not know the accused persons prior to the incident and had initially lodged the report against unknown 7 persons. She further admitted that in her police statement, she had stated that when the police apprehended the accused persons and were taking them for medical examination in a police vehicle, the police showed her the accused persons and asked whether they were the same individuals. Upon seeing them, she identified them as the perpetrators of the offense. She also admitted that when the police told her that they had recovered her mobile phone from the accused persons, then she stated that they were the same people who committed the offence. She also admitted that she had seen the accused persons at the police station and, based upon that, she later identified them in jail. 13. From the testimony of the prosecutrix, it is evident that at the time of the incident, she did not know the accused persons by name or identity. She clearly admitted in her cross-examination that she lodged the report against unknown persons and came to know the identity of the accused only after they were apprehended by the police. This mode of identification where the prosecutrix first identified the accused persons while they were already in police custody and being transported for medical examination, raises serious doubts about the fairness and reliability of the process. It is a well-settled principle of criminal jurisprudence that identification of an accused persons for the first time while in police custody is inherently suggestive and cannot be treated as substantive evidence unless corroborated by a properly conducted Test Identification Parade (TIP) under judicial 8 supervision. In the present case, no TIP was conducted and in absence of a TIP and the manner in which the accused persons were shown to the prosecutrix for identification after their arrest and while in police custody, renders the identification process highly doubtful and legally unsustainable. 14. The Hon’ble Supreme Court, while dealing with the issue related to TIP, in the matter of Parveen @ Sonu vs. The State of Haryana arising out of S.L.P. (Crl.) No.5438/2020, has held as under:- “11. The Trial Court has passed the conviction of the appellant herein, mainly relying on the medical reports and depositions of PW-20, PW- 22 and PW-23. Even according to the case of the prosecution, only four accused have entered the train and one of them who was identified as Vinod, had thrown chilly powder in their eyes and other accused Amarjit had fired a shot upon Arjun Singh, Head Constable. It is also clear from the cross-examination of PW-20 that there were about 50–60 passengers in the compartment, but no one was examined. Even PW-22 Constable Satbir, who has corroborated the Statement of PW-20, disclosed the names of Vinod and Amarjit Singh only. Except the vague and bald statement that the appellant herein is a member of alleged conspiracy, there is no other acceptable evidence on record to prove conspiracy. For the reasons not known, in a case of this nature, the investigating agency has not conducted TIP (Test Identification 9 Parade). Except the alleged confessional statements of co-accused, there is no other evidence on record to implicate the appellant. It is also brought to our notice that the appellant was prosecuted for snatching away the Bolero Crl.A.@SLP(Crl.)No.5438 of 2020 car in Criminal Case No.535 of 2009 in the Court of HCS, Judicial Magistrate, 1st Class, Bhiwani, he was acquitted of the charge for offences under Sections 392, 216 r/w Section 34 of the Indian Penal Code and the said judgment has become final. 12. It is fairly well settled, to prove the charge of conspiracy, within the ambit of Section 120-B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. At the same time, it is to be noted that it is difficult to establish conspiracy by direct evidence at all, but at the same time, in absence of any evidence to show meeting of minds between the conspirators for the intended object of committing an illegal act, it is not safe to hold a person guilty for offences under Section 120-B of IPC. A few bits here and a few bits there on which prosecution relies, cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy. Even the alleged confessional statements of the co-accused, in absence of other acceptable corroborative evidence, is not safe to convict the accused. In the case of Indra Dalal v. State Of Haryana1, this Court has considered the conviction based 10 only on confessional statement and recovery of vehicle used in the crime. In the said case, while Crl.A.@SLP(Crl.)No.5438 of 2020 setting aside the conviction, this Court has held in paragraphs 16 & 17 as under: 16. The philosophy behind the aforesaid provision is acceptance of a harsh reality that confessions are extorted by the police officers by practising oppression and torture or even inducement and, therefore, they are unworthy of any credence. The provision absolutely excludes from evidence against the accused a confession made by him to a police officer. This provision applies even to those confessions which are made to a police officer who may not otherwise be acting as such. If he is a police officer and confession was made in his presence, in whatever capacity, the same becomes inadmissible in evidence. This is the substantive rule of law enshrined under this provision and this strict rule has been reiterated countlessly by this Court as well as the High Courts. 17. The word “confession” has nowhere been defined. However, the courts have resorted to the dictionary meaning and explained that incriminating statements by the accused to the police suggesting the inference of the commission of the crime would amount to confession and, therefore, inadmissible under this provision. It is also defined to mean a direct acknowledgment of guilt and not the admission of any incriminating fact, however grave or conclusive. Section 26 of the Evidence Act 11 makes all those confessions inadmissible when they are made by any person, whilst he is in the custody of a police officer, unless such a confession is made in the immediate presence of a Magistrate. Therefore, when a person is in police custody, the confession made by him even to a third person, that is, other than a police officer, shall also become inadmissible. 13. Further, in the case of Uppa alias Manjunatha v. State of Karnataka2, this Court has held that when an accused is held guilty and sentenced to imprisonment, confirmation of sentence by the High Court is justifiable only in the event of giving sound reasons upon analysis of material evidence. In the case on hand, a perusal of the judgment of the High Court reveals that except referring to depositions, High Court has not considered the evidence at all and confirmed the conviction and sentence as ordered by the Trial Court. The judgments relied on by the learned Addl.AG in the case of Firozuddin Basheeruddin and Others v. State of Kerala3 and in the case of Raju Manjhi v. State of Bihar4, are not helpful to support the case of prosecution, having regard to the facts of the case and evidence on record. 14. On close scrutiny of evidence on record, we are of the considered view that prosecution has failed to prove its case, that the appellant herein, has conspired with other accused for the offences for which he was charged. Except the alleged confessional statements of the co- accused and in absence of any other 12 corroborative evidence, it is not safe to maintain the conviction and sentence imposed upon the Appellant. The findings recorded by the Trial Court in convicting the appellant mainly on the ground that he was one of the conspirators for the crime in question, is erroneous and illegal. The High Court has not considered the evidence on record in proper perspective and erroneously confirmed the conviction and sentence imposed on the appellant.” 15. Apart from the above, the medical evidence in the present case does not support the allegation of recent forcible sexual intercourse. The Medical Officer, PW-2 Dr. Sharda Bhagat, upon examination of the prosecutrix, did not find any external or internal injury marks on her body. Furthermore, PW-2 did not render any conclusive opinion regarding recent sexual activity with the prosecutrix. That apart, though the FSL report (Ex.D-1) confirms the presence of seminal spots and human spermatozoa on the seized articles, but the prosecution has failed to conduct DNA analysis to match the biological material with that of the accused persons. 16. In the matter of Chotkau v. State of Uttar Pradesh, (2023) 6 SCC 742, Hon'ble Apex Court, in para-80 has observed as under: “80. After saying that Section 53A is not mandatory, this Court found in paragraph 54 of the said decision that the failure of the prosecution to produce DNA evidence, warranted 13 an adverse inference to be drawn. Paragraph 54 reads as follows: (Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460 SCC p.485) "54. For the prosecution to decline to produce DNA evidence would be a little unfortunate particularly when the facility of DNA profiling is available in the country. The prosecution would be well advised to take advantage of this, particularly in view of the provisions of Section 53A and Section 164A CrPC. We are not going to the extent of suggesting that if there is no DNA profiling, the prosecution case cannot be proved but we are certainly of the view that where DNA profiling has not been done or it is held back from the trial court, an adverse consequence would follow for the prosecution." 17. In the case of Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130, Hon'ble Apex Court in para-44 has held as under: “44. Now, after the incorporation of Section 53 (A) in the Criminal Procedure Code, w.e.f. 23.06.2006, brought to our notice by learned counsel for the Respondent-State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in the Cr.P.C. the prosecution could have still resorted to this 14 procedure of getting the DNA test or analysis and matching of semen of the Appellant with that found on the undergarments of the prosecutrix to make it a fool proof case, but they did not do so, thus they must face the consequences.” 18. Further, in the case of Ganesan vs State Rep. By Its Inspector Of Police reported in (2020) 10 SCC 573, the Hon’ble Supreme Court observed and held that that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. The relevant paragraphs are quoted hereinbelow:- “9. In the present case, the appellant accused has been convicted by the learned trial Court for 7 , punishable under the offence under Section 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 PW1father of the victim, PW2- mother of the victim and PW3victim herself. It is true that PW2mother of the victim has turned hostile. However, PW3victim 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 crossexamined. We do not see any good reason not to rely upon the deposition of PW3 – victim. PW3 aged 15 years at the time of deposition is a matured one. She is trustworthy and reliable. As per the settled 15 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. 9.1 Whether, in the case involving sexual harassment, molestation etc., can there be conviction on the sole evidence of the prosecutrix, in the case of Vijay alias Chinee (supra), it is observed in paragraphs 9 to 14 as under: “9. In State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under: (SCC p. 559, para 16) "16. A prosecutrix of a sex offence cannot be put on 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 16 outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence." 10. In State of U.P. v. Pappu, (2005) 3 SCC 594 this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the 17 accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: (SCC p. 597, para 12) "12. It is well settled that a prosecutrixcomplaining 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." 11. In State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, this Court held that in cases involving sexual harassment, molestation, etc. the court is dutybound 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 18 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. 39496 & 403, paras 8 & ... The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. ... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even 19 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. ... xxx xxx xxx 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." (emphasis in original) 20 12. In State of Orissa v. Thakara Besra, (2002) 9 SCC 86, this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, nonexamination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. 13. In State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has
Decision
In the result, the criminal appeal is allowed. 25. In compliance with Section 437-A Cr.P.C., both the appellants are directed to furnish a personal bond of ₹25,000/- with two sureties each of the like amount before the concerned court. The bond shall be effective for six months and include an undertaking that in case of filing a Special Leave Petition or grant of leave against this judgment, the appellants will appear before the Supreme Court upon receipt of notice. 26. Registry is directed to transmit the lower court record along with a copy of this judgment to the trial court forthwith for information and necessary compliance. Sd/- (Rajani Dubey) Judge Sd/- (Amitendra Kishore Prasad) Judge Vishakha