State Of Rajasthan, Through P.P v. For

Judgment

1. This appeal is filed against the judgment and order dated

02.09.2022 passed by the Special Judge, Prevention of Children from Sexual Offences Act and Commission for Protection of Child Right Act, in Special Sessions Case No.232/2020. The accused- appellant was convicted under Section 376AB IPC and Section 5(l)/6, 5(m)/6 and 5(n)/6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act’) and sentenced life imprisonment with a fine of Rs.20,000/-. In default of payment of fine had to undergo simple imprisonment for one year.

2. The facts as per the prosecution are that on 15.09.2020

Raeesh @ Kalu neighbour of the accused filed a complaint stating [2025:RJ-JP:26121-DB] (2 of 9) [CRLAD-355/2022] that the prosecutrix (name withheld) residing in the house of the accused-appellant with Mumtaz was being sexually exploited. On the basis of the complaint an FIR No.321/2020 was registered at Police Station, Railway Colony, Kota City. The charges were framed against the accused u/s 376AB, 5(l)/6, 5(m)/6 and 5(n)/6 of the POCSO Act. In the statement recorded u/s 313 Cr.P.C, it was stated to be a case of false implication, result of a monetary dispute with the complainant. The prosecution examined twenty two witnesses and exhibited thirty one documents. No witness was examined by the defence. The trial Court after considering the facts and appreciating the evidence convicted the appellant. Hence, the present appeal.

3. Learned counsel for the appellant contended that there was variation in the complaint filed and the deposition of the prosecutrix. The argument is that as per the prosecutrix she secretly told her suffering to the complainant, whereas in the complaint five persons were named before whom the prosecutrix revealed her sexual exploitation by the accused. Further argument is that the deposition of PW-6 Golu @ Abbasi, PW-8 Insaf Ansari, PW-9 Abdul Hussain, PW-10 Abdul Latif, PW-14 Mohd. Israil and PW-20 Shahid cannot be relied as their presence at time when the prosecutrix told about the sexual abuse by the appellant is doubtful.

3.1. It is argued that DNA of the semen found on jeans of the prosecutrix did not match with the DNA of the accused.

3.2. Lastly, the absence of injuries on the body of the prosecutrix or on private part indicates that no forceful sexual relationship was made with her. [2025:RJ-JP:26121-DB] (3 of 9) [CRLAD-355/2022]

4. Learned Public Prosecutor defends the impugned judgment and contends that the prosecutrix in her statement u/s 164 Cr.P.C and in the statement before the court has consistently supported the case of the prosecution. The recovery of the semen from the vaginal swab of the prosecutrix and Medical Report (MLR) showing old torn hymen is relied upon to argue that the physical relation was made with the prosecutrix.

5. Heard learned counsel for the parties and perused the record with their able assistance.

6. The age of prosecutrix was determined between twelve to fourteen years with variation of plus minus two years. This fact was proved by deposition of PW-18 Dr. Brijesh Tatwal and PW-19 Dr. Tushar Verma and this fact has not been contested while arguing the appeal.

7. The POCSO Act was legislated to provide protection to the children from sexual abuse, assault and sexual harassment, for safeguarding the interest of minor and their well-beings. This act incorporates child-friendly procedures for reporting and recording of evidence.

8. The argument that there is variation in the testimony of the prosecutrix and the contents of the complaint filed by the complainant is fatal, lacks merit. The prosecutrix aged about twelve to fourteen years was consistent in the statement recorded u/s 164 Cr.P.C and in her deposition before the Court. The offence committed by the appellant of making physical relation with prosecutrix was specifically stated in statements made under Section 164 Cr.P.C. and before the trial court, she also withstood the cross examination. It was deposed that she was being sexually [2025:RJ-JP:26121-DB] (4 of 9) [CRLAD-355/2022] exploited by the accused since she was five years old. The MLR was to the effect that hymen of the prosecutrix was old torn and the recovery of semen from vaginal swab established the offence allegedly committed by appellant.

9. In cases relating to sexual exploitation of a minor, the reliable statement of the prosecutrix in itself is sufficient for conviction of the accused. Further that minor discrepancies in statement of prosecution cannot be considered to be fatal in every case, unless contradictions are such that it affects the reliability of the statement. Reliance is on the judgment of the Supreme Court in the case of Ganesan Vs. State represented by its Inspector of Police reported in (2020) 10 SCC 573. Relevant paras of the judgment are quoted hereunder:-

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 PW2 mother of the victim has turned hostile. However, PW3 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 PW3 victim. PW3 aged 15 years at the time of deposition is a matured one. She 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. [2025:RJ-JP:26121-DB] (5 of 9) [CRLAD-355/2022]

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 duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under: (SCC pp. 394-96 & 403, paras 8 & 21). ‘8. ... The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. ... The courts 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 [2025:RJ-JP:26121-DB] (6 of 9) [CRLAD-355/2022] 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)

10. It is a settled law that for offences under the POCSO Act, on prosecution establishing the basic facts of offence having been committed by accused, the presumption under section 29 of POCSO Act is triggered albeit, the presumption is rebuttable.

11. The Supreme Court in the case of Pappu Vs. State of U.P. reported in (2022) 10 SCC 381 held:- “108. For what has been discussed here in above, it is also but clear that the foundational facts of the offences alleged against the appellant have been established. In the given set of circumstances, it could [2025:RJ-JP:26121-DB] (7 of 9) [CRLAD-355/2022] safely be said that the presumption contemplated by Section 29 POCSO came into operation and the burden came staying with the appellant; and it was for him to rebut the presumption and to prove that he had not committed the offence. xxx xxx xxx”

12. The contention that there was personal enmity between the appellant and the complainant as the appellant had lent amount to complainant and on making demand for the amount the appellant was falsely implicated, this allegation remained unsubstantiated for lack of oral or documentary evidence.

13. It would be apposite to note that no witness was examined in the defence for discharging the onus casted by Section 29 of the POCSO Act. The contentions raised in the appeal are merely an attempt to create doubt regarding the evidence adduced by the prosecution, which in itself is not enough for discharging onus on the accused.

14. In criminal jurisprudence an accused is innocent until proven guilty but this does not apply to the trial under the POCSO Act, after the prosecution has proved foundational fact of offence having been committed by the accused where after the presumption is against the accused. In view of the clear and unambiguous statement of the prosecutrix and the medical record that the hymen was torn, on invoking presumption u/s 29 of the POCSO Act the onus shifted and the appellant failed to discharge the onus casted.

15. The second contention that the statements of PW-8, PW-9, PW-10, PW-14 and PW-20 are not reliable, as their presence at [2025:RJ-JP:26121-DB] (8 of 9) [CRLAD-355/2022] the time of narration of the incident by the prosecutrix was doubtful, does not enhance the case of the appellant. The medical evidence, the statement of the prosecutrix and the injury inflicted on hand shown during recording of the statement u/s 164 Cr.P.C. are sufficient to prove foundational facts and for raising presumption against accused u/s 29 of the POCSO Act.

16. The argument that there were no injury marks on the private part or on any body part of the prosecutrix to show forceful relationship, is noted to be rejected. The prosecutrix at the time of the complaint was aged twelve to fourteen years and as per her statement, she was being exploited since the age of five years. Her mother was staying with the accused and inspite of the prosecutrix complaining to the mother no steps were taken to report the matter. These facts coupled with the prolonged period of sexual exploitation of prosecutrix would have put an end to resistance by prosecutrix.

17. Taking the argument at the highest, even the consent of the minor for physical relationship shall not dilute the offence committed by the appellant.

18. The non-matching of the DNA of the semen found on the jeans of the prosecutrix with DNA of the appellant loses relevance once the statements of prosecutrix and MLR are to the effect that hymen was torn substantiated sexual relation made with the prosecutrix.

19. The detailed impugned judgment passed on considering the facts and appreciation of evidence suffers from no legal or factual error and is upheld.

20. The appeal is dismissed. [2025:RJ-JP:26121-DB] (9 of 9) [CRLAD-355/2022] (BHUWAN GOYAL),J RIYA/3 Whether Reportable:Yes (AVNEESH JHINGAN),J