Chattisgarh High Court
Azad Kumar Yadav vs State Of Chhattisgarh on 22 July, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
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CGHC010072452025 2026:CGHC:31137-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 388 of 2025
Shubham Damod @ Raj S/o Late Shri Subhash Damod Aged About 19
Years R/o Behind Subba Hotel, Tarbahar, Police Station Tarbahar, District
Bilaspur, Chhattisgarh.
--- Appellant
versus
State Of Chhattisgarh Through Police Station Torwa, District Bilaspur,
Chhattisgarh.
--- Respondent
For Appellant : Mr. Manoj Paranjpe, Senior Advocate
along with Mr. Kabeer Kalwani, Advocate
For Respondent/State : Mr. Shaleen Singh Baghel, Govt.
Advocate and Ms. Anusha Naik, Deputy
Govt. Advocate
CRA No. 859 of 2025
1 – Azad Kumar Yadav S/o Rajkumar Yadav Aged About 23 Years R/o- Near
Guru Ghasidas Temple, Tarbahar P.S.- Tarbahar, District- Bilaspur (C.G.)
2 – Faizan Shekh @ Faizu S/o Shekh Ramjaan Aged About 23 Years R/o
Near Guru Ghasidas Temple, Tarbahar P.S.- Tarbahar, District- Bilaspur
(C.G.)
—Appellants
Versus
VED
PRAKASH
DEWANGAN State Of Chhattisgarh Through- Station House Officer P.S.- Torwa, District-
Bilaspur (C.G.)
Digitally signed
by VED
PRAKASH -- Respondent
DEWANGAN
Date: (Cause title taken from Case Information System)
2026.07.27
17:34:09
+0530
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For Appellants : Mr. Sandeep Yadav, Advocate and Mr.
Sourabh Sonwani, Advocate
For Respondent/State : Mr. Shaleen Singh Baghel, Govt.
Advocate and Ms. Anusha Naik, Deputy
Govt. Advocate
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Ravindra Kumar Agrawal, Judge
Judgment on Board
Per Ramesh Sinha, Chief Justice
22/07/2026
1. Learned counsel for the State would submit that the notice issued to
the father of the victim (PW-4) has been served to him, however, no
one appears on his behalf to make submission in applications for
suspension of sentence and grant of bail as well as the appeals.
Though the matter was listed for consideration on I.A. No. 01/2025
(in both CRA Nos. 388/2025 and 859/2025), which are the
applications for suspension of sentence and grant of bail to the
respective appellants, however, considering the fact that, appellants-
Shubham Damod and Azad Kumar Singh are in jail since 15.11.2021
and appellant- Faizan Shekh @ Faizu is in jail since 07.02.2022, with
the consent of the parties both the appeals are being finally heard.
Accordingly, I.A. No. 01/2025 in both these appeals are disposed of.
2. Both these appeals are arising out of the same incident and same
sessions trial and therefore, they are being heard and decided
together.
3. The CRA No. 388 of 2025 has been filed by the appellants- Subham
Damod @ Raj and CRA No. 859 of 2025 has been filed by the
appellants- Azad Kumar Yadav and Faizan Shekh @ Faizu under
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Section 415(2) of the Bhartiya Nagrik Suraksha Sanhita, 2023
against the impugned judgment of conviction and sentence dated
23.01.2025, passed by learned Additional Sessions Judge, Second
Fast Track Special Court (POCSO Act), Bilaspur, in Special Criminal
Case (POCSO Act) No. 6 of 2022, arising out of Crime No. 459 of
2021, registered at police station Torwa, District Bilaspur, whereby
the accused persons have been convicted and sentenced in the
following manner:-
For appellant- Shubham Damod @ Raj in CRA No. 388 of 2025
CONVICTION SENTENCE
U/s 5(g) & 6 of the Protection Imprisonment for Life till natural
of Children from Sexual death and Fine of Rs. 2,000/-, in
Offences Act, 2012 (in short case of non-payment of fine,
‘POCSO Act‘). additional rigorous imprisonment for
4 months.
U/s 506 of Indian Penal Code Rigorous Imprisonment for 2 years
(in short ‘IPC‘) and Fine of Rs. 500/-, in case of
non-payment of fine, additional
rigorous imprisonment for 2 months.
Both the sentences are directed to run concurrently.
For appellant- Azad Kumar Yadav in CRA No. 859 of 2025
CONVICTION SENTENCE
U/s 5(g)/6 of POCSO ACT Life imprisonment, meaning thereby
imprisonment for rest of life of the
said person & fine of Rs. 2000/-, in
default of payment of fine amount,
additional R.I. for 04 months.
U/s 506/34 of IPC R.I. for 02 years & fine of Rs. 500/-,
in default in payment of fine amount,
additional R.I. for 02 months.
Both the sentences are directed to run concurrently.
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For appellant- Faizan Shekh @ Faizu in CRA No. 859 of 2025
CONVICTION SENTENCE
U/s 363 of IPC R.I. for 03 years & fine of Rs. 500/-,
in default in payment of fine amount,
additional R.I. for 02 months.
U/s 366 A of IPC R.I. for 05 years & fine of Rs. 500/-,
in default in payment of fine amount,
additional R.I. for 02 months.
U/s 5(g)/6 of POCSO Act Life imprisonment, meaning thereby
imprisonment for rest of life of the
said person & fine of Rs. 2000/-, in
default of payment of fine amount,
additional R.I. for 04 months.
U/s 506 r/w 34 of IPC R.I. for 02 years & fine of Rs. 500/-,
in default in payment of fine amount,
additional R.I. for 02 months.
All the sentences are directed to run concurrently.
4. The case of the prosecution in brief is that, on 12.11.2021, the father
of the victim (PW-4) lodged a report to the police that, his minor
daughter had gone to photo studio at about 12:30 PM, but could not
return and her whereabouts could not be traced out. The FIR (exhibit
P-7) for the offence under Section 363 of IPC was registered against
unknown persons. During the investigation, the victim informed her
mother through mobile phone from the house of her friend and
thereafter her parents took her back and produced her before the
police on 13.11.2021, then a recovery panchnama (exhibit P-1) was
prepared. The victim was sent for her medical examination to District
Hospital, Bilaspur, where she was medically examined by Dr. Bhavya
Maheshwari (PW-6), who gave her MLC report (exhibit P-11). While
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medically examining the victim, the doctor found bleeding from
vagina, hymen tear present, complaining pain while examination and
slight swelling present, however she opined that no definite opinion
can be given about rape. She also observed in MLC report about
history of pain in lower abdomen and burning sensation in vaginal
area. Two slides of vaginal smear was preserved, sealed and handed
over to the police for its chemical examination. The victim was also
referred to Radiologist for age confirmation.
5. Her 164 CRPC statement (exhibit P-2) was recorded. The birth
certificate of the victim (article-A) has been seized by the police vide
seizure memo (exhibit P-4). The vaginal slides and underwear have
also been seized by the police vide seizure memo (exhibit P-5). Spot
map (exhibit P-8) was prepared by the police. The accused- Azad
Kumar Yadav and Shubham Damod were arrested on 15.11.2021
and they too have been sent to District Hospital, Bilaspur for their
medical examination, where they have been examined by Dr. C.B.
Mishra (PW-10), who gave his report (exhibit P-14 and P-15,
respectively) and found these two appellants capable to perform
sexual intercourse. The accused Faizan Shekh was also arrested on
07.02.2022 and he was also sent for his medical examination to the
District Hospital, Bilaspur, where he was also medically examined by
the doctor, who found him also to be capable to perform sexual
intercourse. His underwear has also been seized vide seizure memo
(exhibit P-27). The vaginal slides of the victim, her underwear and
the underwear of the accused persons were sent for its chemical
examination to the Regional FSL Bilaspur, from where report (exhibit
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P-23 and P-29) was received, in which semen and sperms were
found on all the articles. Statements of the witnesses under Section
161 of CRPC have been recorded and after completion of usual
investigation charge sheet was filed before the learned trial Court
against the accused persons for the offence under Sections 363,
376-DA, 34 and 506 of IPC and Sections 4 and 6 of Protection of
Children from Sexual Offences Act, 2012 (in short ‘POCSO Act‘).
6. The learned trial Court framed charge against the accused persons
for the offence under Sections 363/34, 366-A/34, 376-DA and 506/34
of the IPC and Sections 5(g)/6 of the POCSO Act. the accused
persons denied the charge and claimed trial.
7. In order to prove the charge against the accused persons, the
prosecution has examined as many as 11 witnesses. The statements
of the accused persons under Section 313 of CRPC have also been
recorded, in which they denied the circumstances that appears
against them, pleaded innocence and the appellant Azad Yadav
submitted that he has been falsely implicated in the offence, he did
not know the victim as well as Shekh @ Faizu and Shubham Damod.
He has been arrested by the police in a suspicion in a false case and
the victim and his family members falsely implicated him to receive
compensation from the government. The appellant Shubham Damod
has stated that on the date of incident, he was in his house
throughout the day. The victim or other accused persons neither
came to his house nor he knows the victim and other accused
persons Azad and Faizu. The victim is girlfriend of Faizu. The
accused Shekh Faizan has stated that on the date of incident he had
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gone to Khuntaghat Dam along with her girlfriend and her girlfriend
gave the photographs, which were taken at Khuntaghat Dam to the
police. He did not know the other accused Azad and Shubham
Damod and the victim also.
8. The appellants examined three defence witnesses (DW-1, DW-2 and
DW-3) in support of their defence.
9. After appreciation of oral as well as documentary evidence led by the
parties, the learned trial Court has convicted and sentenced the
accused persons as has been mentioned in the earlier part of this
judgment. Hence these appeals.
10. Mr. Manoj Paranjpe, Senior Advocate appearing for the appellant-
Shubham Damod @ Raj (CRA No. 388 of 2025) would submit that,
the prosecution has failed to prove its case beyond reasonable
doubt. There are material omissions and contradictions in the
evidence of the prosecution witnesses and their statements are
inconsistent. The evidence of the victim (PW-1) suffers from material
discrepancies, which cannot be relied upon for holding conviction of
the appellant. The victim in her 161 CRPC statement stated that, the
three unknown persons having covered their faces came in a car,
took her to unknown place and made physical relation with her,
however another statement was recorded on 15.11.2021, in which
she completely changed her version and then she stated that the co-
accused Faizan Shekh had taken her to the house of co-accused
Shubham @ Raj, where the co-accused Azad was also present and
then they committed rape upon her and threatened with dire
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consequences. These contradictory statements of the victim makes
the entire prosecution case doubtful. He would further submit that
although semen and sperms were found in the vaginal slides and
underwear of the victim, but there is no DNA report to identify the
source of semen and sperms from the accused persons. In absence
of any scientific evidence, like DNA report, the presence of semen
and sperms does not have much significance in FSL report. He
would further submit that the medical evidence produced by the
prosecution is also shaky. The doctor who medically examined the
victim, has admitted in her evidence that the hymen of the victim was
not completely torn. The victim was allegedly subjected to gang rape
by the accused persons and the medical evidence does not
corroborate her allegation and thus the evidence of the victim cannot
be relied upon. In support of his submission, he would rely upon the
judgment of Hon’ble Supreme Court in the case of ‘Nirmal Prem
Kumar and another v. State represented by Inspector of Police’
2024 (20) SCC 293.
11. Mr. Sandeep Yadav, learned counsel appearing for the appellants-
Azad Kumar Yadav and Faizan Shekh @ Faizu while adopting the
submissions made by learned Senior Advocate would further submit
that, the friend of the victim, who saw her with the accused persons,
has not been examined to prove that the victim had gone with the
accused persons. The victim has not been recovered from the
possession of the appellants and there is no sign or protest or
struggle has been noticed by the doctor during her medical
examination. The age of the victim has also not been proved by the
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prosecution that she was less than 18 years of age. There are
material inconsistencies in the evidence of mother and her parents
and are not sufficient to convict the appellants for the alleged
offence. Learned trial Court has also not properly appreciated the
evidence of defence witnesses and has erroneously convicted and
sentenced the appellants. Therefore, these appellants are also
entitled for benefit of doubt and they may also be acquitted.
12. On the other hand, learned counsel for the State opposes the
submissions made by learned counsel for the respective appellants
and have submitted that there is sufficient evidence available in the
case against the appellants that they kidnapped the victim and
committed gang rape upon her. The evidence of the victim does not
suffer from any material omissions or contradictions. She clearly
deposed the manner in which she was subjected to gang rape by the
accused persons. Injuries have been found on the private part of the
victim and in the FSL report, the presence of semen and sperms on
her vaginal slides and underwear were also found. But for minor
omissions or contradictions the evidence of prosecution witnesses
are reliable and acceptable. The age of the victim has also been
proved by her birth certificate (article-A), which is the statutory
document of her date of birth. Even the defence could not be
specifically challenged the age of the victim. In absence of any
external injury on the body of the victim does not absolve the
accused persons from the offence. In the cases of rape, absence of
injuries are not the determining factor of the involvement of the
accused persons, but it depends upon the facts of the case. He
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would further submit that the learned trial Court has also properly
appreciated the evidence of defence witnesses and has passed the
well reasoned judgment convicting the appellants and sentence
them. The appeals filed by the appellants do not have any merit and
the same are liable to be dismissed.
13. We have heard learned counsel for the parties and perused the
record.
14. So far as the submissions made by learned counsel for the
appellants that the prosecution could not establish the age of the
victim that she was minor on the date of incident, the prosecution
relied upon the birth certificate (article-A) of the victim. The birth
certificate (article-A) is issued by the Deputy Registrar (Birth and
Deaths), which is an statutory document and admissible under
Section 35 of the Indian Evidence Act, 1872. As per the birth
certificate of the victim (article-A), her date of birth is 05.05.2008.
15. The learned counsel for the appellants further contended that the
prosecution failed to establish the age of the victim as no school
record reflecting her date of birth, as contemplated under Section
94(2)(i) of the Juvenile Justice (Care and Protection of Children) Act,
2015, was produced. We are unable to accept the said submission.
The birth certificate (Article-A), recording the victim’s date of birth as
05.05.2008, was registered on 17.05.2008, i.e., within twenty-one
days of her birth, and being a public document, is admissible in
evidence. The prosecution witnesses, namely the victim (PW-1), her
mother (PW-2), father (PW-4), grandfather (PW-9) and uncle (PW-5),
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consistently deposed that the victim was about 13-14 years of age at
the time of the incident, and their testimony on this aspect remained
unchallenged in cross-examination. The oral evidence thus stands
fully corroborated by the documentary evidence in the form of the
birth certificate. Accordingly, we are satisfied that the prosecution has
proved beyond reasonable doubt that the victim’s date of birth is
05.05.2008 and that she was below sixteen years of age on the date
of the incident, i.e., 12.11.2021.
16. With respect to involvement of the accused persons, we again
examined the evidence of prosecution witnesses.
17. PW-1 is the victim, who stated in her evidence that she identified the
accused persons and she suffered the incident on 12.11.2021.
Before the incident, on 22nd of June, 2021 she had a chatting with
accused Faizu in instagram. In the month of July, he came to her and
asked to accompany him. Since Faizu was her friend, she
accompanied him. He took her to a lodge and made forceful physical
relation with her and threatened her that if she disclose the incident
to anyone, he would kill her. Thereafter, the accused Faizu used to
call her and made forceful physical relation with her repeatedly. On
12.11.2021, he made a mobile call in her mother’s mobile and he
called her. Initially she denied, but when he came outside of her
house, she accompanied him. He took her to the house of accused
Shubham @ Raj at Tarbahar, where another accused Azad was
already present. All the three accused persons made forceful
physical relation with her one after another. Faizu made physical
relation first, then Raj @ Shubham and thereafter Azad.
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Subsequently, she was left at Hemu Nagar, Bandhwapara by the
accused Faizu and Azad. Since she was scared, she went to her
friend’s house, instead her own house and then her friend informed
her parents and then her parents took her back. In the next morning,
her mother took her to police station because a missing report was
already lodged there. She was medically examined by the doctor and
her statement was recorded by the Magistrate.
18. In cross-examination, she stated that she made her instagram ID in
January, 2021 in which she filled her date of birth as 05.05.2008. She
was not having her own mobile phone and she was using her
mother’s mobile phone. Since, she kept the mobile number of Faizu
in blacklist, his number could not be displayed in mobile phone of her
mother. She admitted that at the time of her medical examination,
she disclosed about physical relation by two accused persons. She
voluntarily stated that since she was scared, she disclosed only
against two accused persons. She further stated that, when she
made a statement before the police in first occasion, she was scared
and when her statement was recorded on second occasion, she
disclosed the entire incident. She denied that the accused Azad has
not committed any bad work with her. She admitted in her further
cross-examination that on first occasion she was not disclosed the
name of accused Faizu. Faizu used to sent her message first on
instagram and only thereafter he called her. Her friend had informed
her mother that she was in her house and then her parents came
there. She also denied that the accused Faizu has not committed any
offence with her. She also shown her ignorance about any
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threatening given by Faizu to her father to withdraw the case against
his friends. She also admitted that in her police statement (exhibit D-
1) she disclosed that during chatting in the car, the accused persons
called each other as Raja and Azad and the third person was called
as Dada. She also admitted that she disclosed in her police
statement that at about 11:30 PM the accused persons left her near
Hemu Nagar Over-bridge and she tried to take shelter in a temple
and due to fear she could not return to her house. She voluntarily
stated that she was scared and she could not tell anything to anyone.
She firmly denied that since she does not suffer by any incident,
therefore, she could not disclosed the actual case of incident. She
knew the accused Raj @ Shubham from the date of incident. She
further stated that the place where she suffered the incident was the
house of the accused Raj. From the evidence of this witness, it
transpires that she substantially supported the prosecution’s case.
Though the defence tried to brought the discrepancies about the
place of incident, but she answered that since she was scared, she
could not explain the exact place of incident, but she disclosed the
manner in which she was kidnapped by the accused persons and
subjected to gang rape by them. The discrepancies regarding place
of incident and the identification of the accused persons by their
names have duly been explained by the victim and the same does
not affect her credibility.
19. In the matter of ‘Appa Bhai v. State of Gujarat’ 1988 Suppl. SCC
241, the Hon’ble Supreme Court has held in Para 13 of its judgment
that:-
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“13. ………..The Court while appreciating the
evidence must not attach undue importance to
minor discrepancies. The discrepancies which do
not shake the basic version of the prosecution
case may be discarded. The discrepancies which
are due to normal errors of perception or
observation should not be given importance. The
errors due to lapse of memory may be given due
allowance. The Court by calling into aid its vast
experience of men and matters in different cases
must evaluate the entire material on record by
excluding the exaggerated version given by any
witness. When a doubt arises in respect of certain
facts alleged by such witness, the proper course
is to ignore that fact only unless it goes into the
root of the matter so as to demolish the entire
prosecution story. The witnesses nowadays go on
adding embellishments to their version perhaps
for the fear of their testimony being rejected by
the court. The courts, however, should not
disbelieve the evidence of such witnesses
altogether if they are otherwise trustworthy.”
20. The evidence of the victim can be the sole basis for conviction unless
there are some reasons for the court to disbelieve her evidence. In
the case of ‘State of Himanchal Pradesh v. Sanjay Kumar @
Sunny‘ 2017(2) SCC 51, the Hon’ble Supreme Court has held in
Para 30 and 31 that:-
“30. By no means, it is suggested that whenever
such charge of rape is made, where the victim is
a child, it has to be treated as a gospel truth and
the accused person has to be convicted. We have
already discussed above the manner in which
testimony of the prosecutrix is to be examined
15and analysed in order to find out the truth therein
and to ensure that deposition of the victim is
trustworthy. At the same time, after taking all due
precautions which are necessary, when it is found
that the prosecution version is worth believing,
the case is to be dealt with all sensitivity that is
needed in such cases. In such a situation one
has to take stock of the realities of life as well.
Various studies show that in more than 80%
cases of such abuses, perpetrators have
acquaintance with the victims who are not
strangers. The danger is more within than
outside. Most of the time, acquaintance rapes,
when the culprit is a family member, are not even
reported for various reasons, not difficult to
fathom. The strongest among those is the fear of
attracting social stigma. Another deterring factor
which many times prevent such victims or their
families to lodge a complaint is that they find
whole process of criminal justice system
extremely intimidating coupled with absence of
victim protection mechanism. Therefore, time is
ripe to bring about significant reforms in the
criminal justice system as well. Equally, there is
also a dire need to have a survivor centric
approach towards victims of sexual violence,
particularly, the children, keeping in view the
traumatic long lasting effects on such victims.
31. After thorough analysis of all relevant and
attendant factors, we are of the opinion that none
of the grounds, on which the High Court has
cleared the respondent, has any merit. By now it
is well settled that the testimony of a victim in
cases of sexual offences is vital and unless there
are compelling reasons which necessitate looking
16for corroboration of a statement, the courts
should find no difficulty to act on the testimony of
the victim of a sexual assault alone to convict the
accused. No doubt, her testimony has to inspire
confidence. Seeking corroboration to a statement
before relying upon the same as a rule, in such
cases, would literally amount to adding insult to
injury. The deposition of the prosecutrix has, thus,
to be taken as a whole. Needless to reiterate that
the victim of rape is not an accomplice and her
evidence can be acted upon without
corroboration. She stands at a higher pedestal
than an injured witness does. If the court finds it
difficult to accept her version, it may seek
corroboration from some evidence which lends
assurance to her version. To insist on
corroboration, except in the rarest of rare cases,
is to equate one who is a victim of the lust of
another with an accomplice to a crime and
thereby insult womanhood. It would be adding
insult to injury to tell a woman that her claim of
rape will not be believed unless it is corroborated
in material particulars, as in the case of an
accomplice to a crime. Why should the evidence
of the girl or the woman who complains of rape or
sexual molestation be viewed with the aid of
spectacles fitted with lenses tinged with doubt,
disbelief or suspicion? The plea about lack of
corroboration has no substance {See Bhupinder
Sharma v. State of Himachal Pradesh, (2003) 8
SCC 551}. Notwithstanding this legal position, in
the instant case, we even find enough
corroborative material as well, which is discussed
hereinabove.”
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21. In the case in hand, the alleged discrepancies which have been
pointed out regarding place of incident and identification of the
accused persons by their names are of a minor character and do not
call into question the veracity of the victim’s evidence, particularly
when she alleged the involvement of the accused persons in the
offence of kidnapping and gang rape.
22. PW-6 Dr. Bhavya Maheshwari medically examined the victim on
13.11.2021. She stated in her evidence that the victim was brought
before her and while examining her, she found bleeding present from
vagina, hymen tear present, swelling and redness present on her
vagina and hymen was not completely torn. She also found pain in
lower abdomen and burning sensation in vaginal area. She prepared
two vaginal slides and opined that no definite opinion can be given
regarding rape. In cross-examination, the defence could not be able
extract any material, so that her evidence could be disbelieved that
no injury was found on the private part of the victim, and thus, the
evidence of the victim (PW-1) about rape has been supported by the
evidence of doctor (PW-6).
23. Even otherwise, it is always not necessary that the victim must suffer
injury on her body. In the case of ‘Satyapal v. State of Haryana’
2009 (6) SCC 635, the Hon’ble Supreme Court has held that, in the
offences of rape, even the slightest form of penetration is sufficient to
constitute the offence of penetrative assault and not necessary that
there has to be some injury on private part or any other part of the
victim’s body. It has been observed in para 18 that:-
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“18. In Modi’s Medical Jurisprudence, 23rd
Edn., at pp. 897 and 928, it is stated:
“To constitute the offence of rape, it is not
necessary that there should be complete
penetration of the penis with the emission
of semen and the rupture of hymen.
Partial penetration of the penis within the
labia majora or the vulva or pudenda, with
or without the emission of semen, or even
an attempt at penetration is quite
sufficient for the purpose of law. It is,
therefore, quite possible to commit legally,
the offence of rape without producing any
injury to the genitals or leaving any
seminal stains.”
24. The allegations leveled by the victim against the accused persons
have been further corroborated by the FSL reports (exhibit P-23 and
P-29). The alleged date of incident is the intervening of
12/13.11.2021 and the victim was medically examined on 13.11.2021
and vaginal slides were prepared on that day, which was sent for its
chemical examination to the Regional FSL Bilaspur. In the FSL report
(exhibit P-23), semen and sperms were found present on her vaginal
slides (article-A), her underwear (article-B), underwe4ar of the
accused Shubham Damod @ Raj (article-C) an the underwear of the
accused Azad (article-D), whereas in the FSL report (exhibit P-29),
semen and sperms were found on the underwear of the accused
Shekh Faizan @ Faizu, and thus, the allegation of rape has been
substantially proved by the prosecution by leading cogent and
clinching evidence.
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25. PW-2 is the mother of the victim. She stated in her evidence that
when the victim could not be found in her house, they lodged the
missing report to the police. In the next morning, the friend of her
daughter informed that the victim is in her house and then they took
her back and took her to police station. The birth certificate of the
victim has been seized vide seizure memo (exhibit P-4), which is
article A-1. In cross-examination, she stated that the victim informed
the incident to her. She denied that the victim was having quarrel with
another boy in the last year. She came to know about using
instagram by her daughter at the time of incident, when she
disclosed it to her. She denied that she received compensation in the
case, but admitted that they made application for the same. In further
cross-examination, she stated that till the lodging of the missing
report, they were unaware about her whereabouts and in the next
morning her friend informed her about the incident.
26. PW-4 is the father of the victim. He stated in his evidence that on the
date of incident, the accused Faizu called his daughter through
mobile phone and threatened her. When his daughter refused to go
there, the appellant Faizu came to his house and then took his
daughter with him. He took her to a house at Tarbahar, where two
other accused persons already present and then they threatened her
daughter and committed rape upon her. When he came back from
his work, his wife informed about her missing and then he lodged a
missing report to the police, which is exhibit P-7. In cross-
examination, when the defence confronted his 161 CRPC statement
(exhibit D-2), he disclosed that he stated in his statement about the
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incident committed by the accused persons with his daughter, but if it
is not there, he could not tell the reason. He admitted that till the
victim recovered he was unaware about the incident. He also shown
his ignorance about the victim’s compensation.
27. PW-5 is the uncle of the victim. He too has stated about the incident
on the basis of the incident disclosed by the victim to him. PW-9 is
the grandfather of the victim. He too has stated that when the victim
could not be found in the house, they lodged the missing report to the
police. In the next morning, her friend informed them and then he
along with her father took her back and had gone to police station.
Though he has been cross-examined at length, but he duly
supported the prosecution’s case that the victim informed him about
the incident. Thus, these witnesses PW-2, P-4, PW-5 and PW-9 are
supported the victim’s evidence that she informed about the incident
to her parents and family members.
28. PW-10 is the doctor, who medically examined the accused Azad
Kumar Yadav and Shubham Damod @ Raj and proved his MLC
report (exhibit P-14 and P-15). While medically examining these
accused persons, the doctor found him capable to perform sexual
intercourse and nothing in his cross-examination to disbelieve his
evidence.
29. PW-11 is the investigating officer, who duly and firmly supported the
prosecution’s case and investigation conducted by him. He being the
procedural witness, duly supported the investigation in the case.
21
30. The defence has examined three defence witnesses (DW-1, DW-2
and DW-3). DW-1 has stated in her evidence that on 12.11.2021, she
was in her house throughout the day and the accused Shubham was
also present in the house. In cross-examination, she admitted that at
the time, when she was in washroom, she could not see the visitors
to the house of the accused Shubham. She also admitted that after
giving medicine to her father, his routine is not known to her.
31. DW-2 is the mother of accused Shubham Damod. She stated in her
evidence that, on the date of incident the accused Shubham was in
her house throughout the day to take care of his father. In cross-
examination, she admitted that she is a teacher and had gone to her
duty from 12:00 Noon to 5:00 PM and she could not know, who
visited to her house in between that.
32. DW-3 (inadvertently mentioned as DW-2) is the girlfriend of accused
Shekh Faizu she stated in her evidence that she is in relation with
Shekh Faizu since three years, which was known to their family
members also. On 12.11.2021, at about 10:30 AM, they had gone to
visit Khuntaghat and returned from there at about 8:30 PM. On 7-8
February, the police personals called the accused Faizu and when
she came to know about the fact, she disclosed before the police
that, on 12.11.2021, they had gone to Khuntaghat and handed over
her mobile phone to the police. In the evening, when the police
returned her mobile phone, she found that the photographs have
been deleted by the police. In cross-examination, she admitted that
she has not made any written application that on the date of incident
the accused Faizu was with her. She denied that the accused Faizu
22
was chatting with the victim through instagram. The instagram ID of
Faizu was activated in her mobile phone and therefore, his
conversation with the victim through instagram is not possible.
33. Though the defence tried to build up the defence against the accused
Faizu that he was not present on the spot on the date of incident and
had gone to Khuntaghat with DW-3, but the defence evidence are not
acceptable for the reason that, they did nothing when they came to
know that the accused Faizu is an accused in the alleged offence.
Except of oral evidence of defence witnesses, they have not tried to
produce the photographs, which might have been extracted from the
retrieved data of the mobile phone of DW-3 as has been claimed by
her. The defence evidence are not sufficient to dilute the evidence of
the victim, which has been supported by medical evidence as well as
scientific evidence of FSL report.
34. The version of the victim commands great respect and acceptability,
but if there are some circumstances which cast some doubt in the
mind of the court on the veracity of the victim’s evidence, then it will
not be safe to rely on the said version of the victim. There is
contradiction and omissions in the statement of the victim and her
parents. The law is well settled that in case of rape, conviction can be
maintained even on the basis of sole testimony of the victim.
However, there is an important caveat which is that the testimony of
the victim must inspire confidence. Even though the testimony of the
victim is not required to be corroborated, if her statement is not
believable, then the accused cannot be convicted. The prosecution
has to bring home the charges leveled against the appellant beyond
23
any reasonable doubt, which the prosecution has failed to do in the
instant case.
35. In the case of Dola @ Dolagobinda Pradhan and another v. State
of Odisha‘ 2018 (18) SCC 695, the Hon’ble Supreme Court has held
that:-
“9. However, as is also evident from the
observations above, such reliance may be placed
only if the testimony of the prosecutrix appears to
be worthy of credence. In this regard, it is also
relevant to note the following observations of this
Court in Raju v. State of M.P. 4, which read thus:
(SCC p. 141, paras 10-11)
“10. The aforesaid judgments lay down the
basic principle that ordinarily the evidence of
a prosecutrix should not be suspected and
should be believed, more so as her
statement has to be evaluated on a par with
that of an injured witness and if the
evidence is reliable, no corroboration is
necessary. Undoubtedly, the aforesaid
observations must carry the greatest weight
and we respectfully agree with them, but at
the same time they cannot be universally
and mechanically applied to the facts of
every case of sexual assault which comes
before the court.
11. It cannot be lost sight of that rape
causes the greatest distress and humiliation
to the victim but at the same time a false
allegation of rape can cause equal distress,
humiliation and damage to the accused as
24well. The accused must also be protected
against the possibility of false implication,
particularly where a large number of
accused are involved. It must, further, be
borne in mind that the broad principle is that
an injured witness was present at the time
when the incident happened and that
ordinarily such a witness would not tell a lie
as to the actual assailants, but there is no
presumption or any basis for assuming that
the statement of such a witness is always
correct or without any embellishment or
exaggeration.”
Having due regard in our mind to the
abovementioned settled position in law, we have
assessed the entire material on record
meticulously.”
36. Upon a comprehensive reappreciation of the entire oral and
documentary evidence on record, we find that the prosecution has
succeeded in establishing the guilt of the appellants beyond
reasonable doubt. The testimony of the victim (PW-1) is cogent,
natural, trustworthy and inspires confidence. The alleged
discrepancies regarding the place of occurrence, the manner of
identification of the accused persons and the sequence in which the
incident was disclosed are minor in nature and do not strike at the
root of the prosecution case. Rather, such omissions and
improvements stand satisfactorily explained by the victim in view of
the trauma and fear she was subjected to immediately after the
incident. Her evidence receives substantial corroboration from the
medical evidence of PW-6, which reveals injuries on her private parts
25
consistent with recent sexual assault, and from the FSL reports
(Exhibits P-23 and P-29), wherein semen and sperms were detected
on the vaginal slides and underwear of the victim as well as on the
underwear of all the accused persons. The age of the victim also
stands duly proved by her birth certificate (Article-A), a statutory
document admissible under Section 35 of the Indian Evidence Act,
establishing that she was a child within the meaning of the POCSO
Act on the date of the incident. The evidence of the parents and other
family members is consistent with the immediate disclosure made by
the victim and lends further assurance to her version. The defence
evidence, on the other hand, neither probabilises the plea of false
implication nor creates any reasonable doubt regarding the
prosecution case. The plea of alibi raised on behalf of accused
Faizan Shekh remains wholly unsubstantiated in the absence of any
reliable documentary or electronic evidence, while the evidence
adduced by the remaining defence witnesses is insufficient to
discredit the consistent and reliable prosecution evidence. It is well
settled that conviction in a case of sexual assault can be founded
solely on the testimony of the victim, if it is found to be reliable and
trustworthy, and corroboration is only a matter of prudence and not of
law. In the present case, apart from the unimpeachable testimony of
the victim, there exists ample medical, scientific and circumstantial
evidence corroborating the prosecution version.
37. We, therefore, find no infirmity, perversity or illegality in the
appreciation of evidence by the learned trial Court. The findings of
conviction recorded against the appellants are based on proper
26
appreciation of the evidence on record and do not warrant
interference by this Court. Consequently, the appeals being devoid of
merit deserve to be and hereby dismissed.
38. The appellants- Shubham Damod and Azad Kumar Singh are in jail
since 15.11.2021 and appellant- Faizan Shekh @ Faizu is in jail
since 07.02.2022. They shall serve the entire sentence as awarded
by the learned trial Court.
39. Registry is directed to send a copy of this judgment to the concerned
Superintendent of Jail where the appellants are undergoing their jail
sentence to serve the same on the appellants informing them that
they are at liberty to assail the present judgment passed by this Court
by preferring an appeal before the Hon’ble Supreme Court with the
assistance of High Court Legal Services Committee or the Supreme
Court Legal Services Committee.
40. Let a copy of this judgment and the original records be transmitted to
the trial Court concerned forthwith for necessary information and
compliance.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
ved
