Himachal Pradesh High Court
Reserved On: 24.2.2026 vs State Of H.P on 18 March, 2026
2026:HHC:7510
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 231 of 2015
Reserved on: 24.2.2026
.
Date of Decision: 18.3.2026
Paramjeet Singh @ Pamma ...Appellant
Versus
State of H.P. ...Respondent
of
Coram rt
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Appellant : Mr N.K. Thakur, Senior
Advocate, with Mr Karanveer
Singh, Advocate.
For the Respondent-State : Mr Jitender Sharma,
Additional Advocate General.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
of conviction and order of sentence dated 25.6.2015, passed by
learned Special Judge, Una, District Una, H.P., vide which the
appellant (accused before learned Trial Court) was convicted and
sentenced as under:-
Under Section 4 of the To suffer imprisonment for seven
POCSO Act years, pay a fine of ₹10,000/- and1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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in default of payment of fine, to
undergo simple imprisonment for
two months.
.
Under Section 293 of the IPC To suffer imprisonment for one
year, pay a fine of ₹2000/- and in
default of payment of fine, to
undergo further simpleimprisonment for 15 days.
(Parties shall hereinafter be referred to in the same manner as they
of
were arrayed before the learned Trial Court for convenience.)
2.
rt
Briefly stated, the facts giving rise to the present
appeal are that the police presented a challan against the accused
for the commission of offences punishable under Sections 377
and 294 of the Indian Penal Code (IPC) and Section 4 of the
Protection of Children from Sexual Offences Act, 2012 (POCSO
Act). It was asserted that the victim (name withheld to protect
his identity) was born on 26.7.1999. The accused had committed
a bad act with the victim on 2.9.2013. The victim narrated this
fact to his mother, who made inquiries from the accused. The
accused apologised. The victim revealed that the accused had
taken him to his home and sexually penetrated his anus. The
incident was narrated to the victim’s father, who reported the
matter to the police. FIR (Ex.PW14/A) was registered. SI Prem Raj
(PW13) investigated the matter. He visited the spot and prepared
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the site plan (Ex.PW13/A). He arrested the accused and filed an
application (Ex.PW11/B) for the medical examination of the
accused. Dr G.S. Didhra (PW11) examined the accused and opined
.
that he was capable of performing sexual intercourse. He seized
the hair from the private part of the accused. He also seized the
underwear (Ex.P5), the undervest (P6) and the handkerchief (P7)
of
of the accused and handed them over to the police official
accompanying the accused after sealing them. Dr Vinod Dhiman
rt
(PW10) medically examined the victim and found an abrasion on
the right mid leg medial aspect. He seized the underwear and
knickers, perianal swab, rectal swab, normal saline rectal side,
blood samples and head hair of the victim and handed them over
to the police officials accompanying the accused. He issued the
MLC (Ex.PW10/B). Photographs of the spot (Ex.PW2/B and
Ex.PW2/C) were taken. The wife of the accused produced a mobile
phone containing a SIM and a memory card. The mobile phone
was sealed in a parcel with three seals of Seal ‘M’. Seal
impression (Ex.PW4/B) was taken on a separate piece of cloth,
and the parcel was seized vide memo (Ex.PW4/A). An application
(Ex.PW5/A) was filed for obtaining the victim’s birth certificate.
Ved Prakash (PW5) issued a birth certificate (Ex.PW5/B) and an
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extract (Ex.PW5/C) regarding the victim’s birth. The case
property was sent to SFSL, and as per the report of analysis
(Ex.PW10/C), no blood and semen were detected in the articles
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seized by the Medical Officer. One porn clip was found on the
memory card, which could be played on the mobile phone. Report
(Ex.PW13/B) was issued. The statements of witnesses were
of
recorded as per their version, and after the completion of the
investigation, the challan was prepared and presented before the
rt
learned Trial Court.
3. Learned Trial Court charged the accused with the
commission of offences punishable under Section 4 of the POCSO
Act and Section 293 of IPC, to which he pleaded not guilty and
claimed to be tried.
4. The prosecution examined 15 witnesses to prove its
case. Victim (PW1) narrated the incident. Victim’s father (PW2)
made the complaint to the police. The victim’ mother (PW3)
deposed about narration of the incident to her. Ramesh Kumar
(PW4) is the witness to the recovery of the mobile phone. Ved
Prakash (PW5) issued the birth certificate. Constable Manjeet
Kumar (PW6) accompanied the victim to the hospital and
brought the samples to the Police Station. HHC Narinder Kumar
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(PW7) carried the case property to RFSL, Dharamshala. HC Shakti
Nandan (PW8) was working as MHC with whom the case
property was deposited. Vikas Kondal (PW9) proved that the
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accused was using SIM number xxx326. Dr Vinod Dhiman (PW10)
examined the victim. Dr G.S. Didhra (PW11) examined the
accused. HHC Rajinder Singh (PW12) accompanied the accused
of
for his medical examination and brought the samples to the
Police Station. SI Prem Raj (PW13) investigated the matter.
rt
Inspector/SHO Mohinder Singh (PW14) signed the FIR and filed
an application for medical examination of the victim. Dr Jagjit
Singh (PW15) examined the mobile phone and memory card.
5. The accused, in his statement recorded under Section
313 of Cr.P.C., denied the prosecution’s case. He stated that his
mobile phone was taken from him in the evening. The memory
card did not belong to him. His clothes were seized by the police,
not by the Doctor. He claimed that he was innocent and was
falsely implicated. He did not produce any evidence in defence.
6. Learned Trial Court held that the victim’s statement
was natural and creditworthy. He was proven to be a minor on
the date of the incident. No reason could be elucidated as to why
he would make a false statement. The minor contradictions in
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the statements were not sufficient to discard the prosecution’s
case. The mere absence of the injuries was not sufficient to
discard the prosecution’s case. The defence taken by the accused
.
in the cross-examination that the informant had to pay
₹15000/- for the repair of his vehicle, and he made a false
complaint against the accused to avoid the payment, was not
of
believable. There is a presumption under Section 30 of the POCSO
Act, and the burden is upon the accused to rebut the
rt
presumption. Hence, the learned Trial Court convicted and
sentenced the accused as noted above.
7. Being aggrieved by the judgment and order passed by
the learned Trial Court, the accused has filed the present appeal
asserting that the learned Trial Court erred in convicting and
sentencing the accused. The prosecution’s story is highly
improbable. There was a delay in reporting the matter to the
police, and no explanation was provided for it. The Medical
Officer has not found any injury around the victim’s anus, which
falsified the prosecution’s version. The victim had attended the
school the next day, which is highly unnatural. The houses of the
victim and the accused were surrounded by abadis, and no
person from the locality was examined. The victim improved
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upon his version and claimed that a porn clip was shown to him.
The integrity of the case property was not established. Therefore,
it was prayed that the present appeal be allowed and the
.
judgment and order passed by the learned Trial Court be set-
aside.
8. I have heard Mr N.K. Thakur, learned Senior Counsel
of
assisted by Mr Karanvir Singh, learned counsel for the
appellant/accused and Mr Jitender Sharma, learned Additional
rt
Advocate General, for the respondent/State.
9. Mr N.K. Thakur, learned Senior Counsel for the
appellant, submitted that the prosecution has failed to prove its
case beyond a reasonable doubt and the learned Trial Court erred
in convicting and sentencing the accused. The victim’s testimony
was not corroborated by the medical evidence, and the absence of
the injuries made the prosecution’s case suspect. Learned Trial
Court ignored the contradictions. Therefore, it was prayed that
the present appeal be allowed and the judgment and order passed
by the learned Trial Court be set-aside.
10. Mr Jitender Sharma, learned Additional Advocate
General, for the respondent-State, submitted that the victim’s
testimony was natural and was rightly accepted by the learned
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Trial Court. The absence of the injuries is not fatal to the
prosecution’s case. The explanation provided in the cross-
examination that a false case was made against the accused to
.
avoid the payment of ₹15,000/- is highly improbable. Learned
Trial Court had rightly held that the minor contradictions were
bound to come with the passage of time and should not have
of
been used to discard the prosecution’s case. Therefore, he prayed
that the present appeal be dismissed.
11.
rt
I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
12. The victim (PW1) stated that he was present in his
home on 2.9.2013. The accused called his (victim’s) mother and
told her that he was to repair the vehicle as per the instructions
of the victim’s father. The victim’s mother handed over the keys
to the accused and sent the victim with the accused. The accused
and the victim went to the parked vehicle. The accused started
repairing the vehicle. The victim asked the accused to repair the
vehicle speedily because the victim had to go to the temple. The
accused told him that he was also to visit the temple, and he
would accompany the victim. The accused repaired the vehicle
and asked the victim to visit his house. No one was present in the
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house of the accused. The accused tried to show a porn video on
his mobile phone, but the victim refused. The accused removed
the victim’s underwear and sexually penetrated his anus. The
.
victim felt pain. The victim pushed the accused. The accused
asked the victim not to narrate the incident to any person. He
narrated the incident to his mother at about 8.00 PM. His father
of
returned in the evening, and the incident was narrated to him. He
took the victim to the Police Station where the application was
filed.
rt
13. He stated in his cross-examination that the house of
the accused was at a distance of 3-4 minutes’ walk from his
house. The vehicle was parked in the house of a retired Inspector
residing in the village. 9-10 houses surrounded his house, and 4-
5 houses surrounded the house of the accused. He did not raise
any cries because he was perplexed. Many people used to visit the
temple. The accused had dropped him off at his home on his bike.
His mother did not narrate the incident to any person. He had
attended the school on 3.9.2013, but did not narrate the incident
to any classmate. His mother was a homemaker. She did not
disclose the incident to any Pradhan, Ward Panch or respectable
person of the society. He used to visit the house of the accused,
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and the accused was well known to him. He admitted that his
mother used to get his vehicle repaired from the accused. He
denied that his father owed ₹15000/- to the accused for repair
.
charges and made a false case to avoid the payment. He denied
that he was making a false statement.
14. The testimony of the victim was natural. It was
of
suggested to him in the cross-examination that his father owed
₹15000/- to the accused, and a false case was made to avoid the
rt
payment; however, the accused did not state this fact in his
statement recorded under Section 313 of Cr.P.C. He only claimed
that a false case was made against him, and the witnesses
deposed falsely against him. He did not produce any evidence to
establish this fact. The victim’s father (PW2) denied in his cross-
examination that he owed money to the accused and that he had
made a false statement. A denied suggestion does not amount to
any proof and cannot be used to discard the prosecution’s case.
15. It was submitted that there is a delay in reporting the
matter to the police, which made the prosecution’s case highly
suspect. This submission will not help the accused. It was laid
down by the Hon’ble Supreme Court in State of H.P. v. Sanjay
Kumar, (2017) 2 SCC 51: (2017) 1 SCC (Cri) 648: 2016 SCC OnLine SC
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1473 that the delay in lodging the FIR cannot be used as a
ritualistic formula to discard the prosecution’s case, especially in
sexual offences. It was observed on page 64:
.
“24. When the matter is examined in the aforesaid
perspective, which in the opinion of this Court is the right
perspective, the reluctance on the part of the prosecutrixin not narrating the incident to anybody for a period of
three years and not sharing the same event with her
mother is clearly understandable. We would like to extractof
the following passage from the judgment of this Court in
Tulshidas Kanolkar v. State of Goa, (2003) 8 SCC 590: 2004
SCC (Cri) 44]: (SCC p. 592, para 5)
rt
“5. We shall first deal with the question of delay. The
unusual circumstances satisfactorily explained thedelay in lodging the first information report. In any
event, delay per se is not a mitigating circumstance for
the accused when accusations of rape are involved.
Delay in lodging the first information report cannot beused as a ritualistic formula for discarding the
prosecution case and doubting its authenticity. It only
puts the court on guard to search for and consider if anyexplanation has been offered for the delay. Once it is
offered, the court is to only see whether it issatisfactory or not. In case the prosecution fails to
satisfactorily explain the delay and there is a possibility
of embellishment or exaggeration in the prosecution’sversion on account of such delay, it is a relevant factor.
On the other hand, a satisfactory explanation of the
delay is weighty enough to reject the plea of false
implication or vulnerability of the prosecution’s case.
As the factual scenario shows, the victim was totally
unaware of the catastrophe which had befallen her.
That being so, the mere delay in lodging of the first
information report does not in any way render the
prosecution version brittle.”
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25. In Karnel Singh v. State of M.P., (1995) 5 SCC 518: 1995
SCC (Cri) 977, this Court observed that: (SCC p. 522, para 7)
“7. … The submission overlooks the fact that in India,
women are slow and hesitant to complain of such
assaults, and if the prosecutrix happens to be a married
.
person, she will not do anything without informing her
husband. Merely because the complaint was lodged less
than promptly does not raise the inference that the
complaint was false. The reluctance to go to the police
is because of society’s attitude towards such women; it
casts doubt and shame upon her rather than comfort
of
and sympathise with her. Therefore, delay in lodging
complaints in such cases does not necessarily indicate
that her version is false.”
26. Likewise, in State of Punjab v. Gurmit Singh, (1996) 2
rt
SCC 384: 1996 SCC (Cri) 316, it was observed: (SCC p. 394,
para 8)
8. … The courts cannot overlook the fact that in sexual
offences, delay in the lodging of the FIR can be due to a
variety of reasons, particularly the reluctance of the
prosecutrix or her family members to go to the police
and complain about the incident, which concerns the
reputation of the prosecutrix and the honour of her
family. It is only after giving it a cool thought that a
complaint of sexual offence is generally lodged.”
16. A similar view was taken in Sekaran v. State of T.N.,
(2024) 2 SCC 176: (2024) 1 SCC (Cri) 548: 2023 SCC OnLine SC 1653,
wherein it was observed at page 182:
“14. We start with the FIR, to which exception has been
taken by the appellant, urging that there has been no
satisfactory explanation for its belated registration. It is
trite that merely because there is some delay in lodging an
FIR, the same by itself and without anything more ought
not to weigh in the mind of the courts in all cases as fatal
for the prosecution. A realistic and pragmatic approach has
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2026:HHC:7510particular case, to assess whether the unexplained delay in
lodging the FIR is an afterthought to give a coloured
version of the incident, which is sufficient to corrode the
credibility of the prosecution’s version.
15. In cases where delay occurs, it has to be tested on the
.
anvil of other attending circumstances. If on an overall
consideration of all relevant circumstances it appears to
the court that the delay in lodging the FIR has beenexplained, mere delay cannot be sufficient to disbelieve
the prosecution case; however, if the delay is not
satisfactorily explained and it appears to the court thatof
cause for the delay had been necessitated to frame anyone
as an accused, there is no reason as to why the delay
should not be considered as fatal forming part of several
factors to vitiate the conviction.”
rt
17. In the present case, the incident occurred on 2.9.2013.
The matter was reported to the police on 3.9.2013. The victim’s
father was not present at the home, and the victim and his
mother cannot be faulted for not approaching the Police Station
in the absence of the victim’s father. Thus, the mere delay is not
sufficient to discard the prosecution’s case.
18. It was submitted that the victim had not narrated the
incident to anyone in the locality or in the school, which makes
his testimony doubtful. This submission cannot be accepted. It
was laid down by the Hon’ble Supreme Court in Motiram Padu
Joshi v. State of Maharashtra, (2018) 9 SCC 429: (2018) 3 SCC (Cri)
738: 2018 SCC OnLine SC 676 that the Court cannot discard the
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testimony of a witness because he failed to act in a particular
manner. It was observed:
“15. Evidence of PWs 3 and 4 is assailed on the ground that
.
PWs 3 and 4 have not gone to the rescue of the deceased,
and it is quite unbelievable that, on seeing the accused
who were armed with weapons, both of them went insidethe house. It is further submitted that the trial court
rightly held that their evidence is not trustworthy, and the
High Court was not right in intervening in such a finding
and basing the conviction on the evidence of PWs 3 and 4.
of
In their evidence, PWs 3 and 4 have stated that on seeing a
number of accused armed with deadly weapons, they got
frightened and went inside the house, stood near the
rt
window and saw the occurrence. Their evidence cannot be
doubted on the grounds that they did not intervene in theattack nor make attempts to save the deceased. On witnessing
a crime, each person reacts in his own way, and their evidence
cannot be doubted on the grounds that the witness has not
acted in a particular manner. The evidence of PWs 3 and 4cannot be doubted merely because they have not acted in a
particular manner.
16. We may usefully refer to Rana Partap v. State of Haryana
[Rana Partap v. State of Haryana, (1983) 3 SCC 327: 1983 SCC
(Cri) 601] as under: (SCC p. 330, para 6)“6. Yet another reason given by the learned Sessions
Judge to doubt the presence of the witnesses was thattheir conduct in not going to the rescue of the deceased
when he was in the clutches of the assailants was
unnatural. We must say that the comment is most
unreal. Every person who witnesses a murder reacts in
his own way. Some are stunned, become speechless and
stand rooted to the spot. Some become hysterical and
start wailing. Some start shouting for help. Others run
away to keep themselves as far removed from the spot
as possible. Yet others rush to the rescue of the victim,
even going to the extent of counter-attacking the
assailants. Everyone reacts in his own special way.
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There is no set rule of natural reaction. To discard the
evidence of a witness on the ground that he did not
react in any particular manner is to appreciate evidence
in a wholly unrealistic and unimaginative way.”
19. The accused had sexually penetrated the victim. The
.
victim was perplexed and did not understand the sequence of
events, as deposed by him. Therefore, the victim’s version
cannot be discarded because the victim had failed to narrate the
of
incident to any person.
20. Victim’s mother (PW3) corroborated the victim’s
rt
version. She stated that the accused came to her house and told
her that her husband had asked him to repair the vehicle. She
handed over the keys of the vehicle to her son (the victim) and
sent him along with the accused. The victim returned at about
7.00 pm, and he was perplexed. The victim revealed that the
accused had shown him the porn film on the mobile and
committed a bad act. The victim complained of severe pain in the
anus. She went to the house of the accused and inquired about
the incident. The accused begged a pardon from her.
21. She stated in her cross-examination that her
husband’s brother resides at Mehatpur. Her house was located at
lonely place. She did not notice blood stains on the underwear of
her son. She did not inform her husband and did not get her son
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treated by anyone. She volunteered to say that no Doctor is
available in the village after 7.00 PM. She did not disclose the
incident to anybody in the village. The wife and mother of the
.
accused were present in the house when she went to his house.
The house of the accused was located in a lonely place. The victim
had not gone to the school on 3.9.2013. Many people had
of
gathered at her house. She denied that the accused had not done
any bad act with the victim.
22.
rt
It was submitted that there are various contradictions
in the victim’s statement and the statement of his mother. The
victim’s mother stated that no house is located in the vicinity of
her house and the house of the accused, whereas the victim
stated that 5-6 houses were located in the vicinity. She stated
that the victim had not gone to the school on 3.9.2013, whereas
the victim stated that he had gone to the school on 3.9.2013.
These discrepancies make the prosecution’s case doubtful. This
submission is not acceptable. The incident had occurred on
2.9.2013, and the statements were recorded on 7.2.2014 and
12.5.2014 after the lapse of more than six months. Learned Trial
Court rightly held that the discrepancies were bound to come
with the passage of time and could not have been used to reject
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the prosecution’s case. Hon’ble Supreme Court held in Rajan v.
State of Haryana, 2025 SCC OnLine SC 1952, that the discrepancies
in the statements of the witnesses are not sufficient to discard
.
the prosecution case unless they shake the core of the
testimonies. It was observed: –
“32. The appreciation of ocular evidence is a hard task.
There is no fixed or straitjacket formula for theof
appreciation of the ocular evidence. The judicially evolved
principles for the appreciation of ocular evidence in a
criminal case can be enumerated as under:
rt
“I. While appreciating the evidence of a witness, the
approach must be whether the evidence of the witness,read as a whole, appears to have a ring of truth. Once
that impression is formed, it is undoubtedly necessary
for the Court to scrutinize the evidence more
particularly keeping in view the deficiencies, drawbacksand infirmities pointed out in the evidence as a whole
and evaluate them to find out whether it is against the
general tenor of the evidence given by the witness andwhether the earlier evaluation of the evidence is shaken
as to render it unworthy of belief.
II. If the Court before whom the witness gives evidence
had the opportunity to form the opinion about the
general tenor of evidence given by the witness, theappellate court which had not this benefit will have to
attach due weight to the appreciation of evidence by the
trial court and unless there are reasons weighty and
formidable it would not be proper to reject the evidence
on the ground of minor variations or infirmities in the
matter of trivial details.
III. When an eye-witness is examined at length, it is
quite possible for him to make some discrepancies. But
courts should bear in mind that it is only when
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2026:HHC:7510incompatible with the credibility of his version that the
court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching
the core of the case, a hyper-technical approach by
taking sentences torn out of context here or there from.
the evidence, attaching importance to some technical
error committed by the investigating officer, not going
to the root of the matter, would not ordinarily permitrejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations
falling in the narration of an incident (either asof
between the evidence of two witnesses or as between
two statements of the same witness) is an unrealistic
approach for judicial scrutiny.
rt
VI. By and large, a witness cannot be expected to possess
a photographic memory and to recall the details of an
incident. It is not as if a videotape is replayed on themental screen.
VII. Ordinarily, it so happens that a witness is overtaken
by events. The witness could not have anticipated theoccurrence, which so often has an element of surprise.
The mental faculties, therefore, cannot be expected to
be attuned to absorb the details.
VIII. The powers of observation differ from person to
person. What one may notice, another may not. Anobject or movement might emboss its image on one
person’s mind, whereas it might go unnoticed on thepart of another.
IX. By and large, people cannot accurately recall a
conversation and reproduce the very words used by
them or heard by them. They can only recall the main
purport of the conversation. It is unrealistic to expect a
witness to be a human tape recorder.
X. In regard to the exact time of an incident, or the time
duration of an occurrence, usually, people make their
estimates by guesswork on the spur of the moment at
the time of interrogation. And one cannot expect people
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2026:HHC:7510matters. Again, it depends on the time sense of
individuals, which varies from person to person.
XI. Ordinarily, a witness cannot be expected to recall
accurately the sequence of events that take place in
rapid succession or in a short time span. A witness is.
liable to get confused or mixed up when interrogated
later on.
XII. A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing
cross-examination by counsel and, out of nervousness,
mix up facts, get confused regarding the sequence ofof
events, or fill in details from imagination on the spur of
the moment. The subconscious mind of the witness
sometimes operates on account of the fear of looking
foolish or being disbelieved, though the witness is
rt
giving a truthful and honest account of the occurrence
witnessed by him.
XIII. A former statement, though seemingly inconsistent
with the evidence, need not necessarily be sufficient to
amount to a contradiction. Unless the former statementhas the potency to discredit the latter statement, even if
the latter statement is at variance with the former to
some extent, it would not be helpful to contradict thatwitness.” [See Bharwada Bhoginbhai Hirjibhai v. State
of Gujarat (1983) 3 SCC 217: 1983 Cri LJ 1096: (AIR 1983SC 753) Leela Ram v. State of Haryana (1999) 9 SCC
525: AIR 1999 SC 3717 and Tahsildar Singh v. State of
UP (AIR 1959 SC 1012)”
23. In the present case, the discrepancies did not relate to
the core of the prosecution case but to the circumstances
surrounding the incident. They were bound to come with time
and did not make the prosecution case suspect.
24. It was submitted that the victim’s mother had not
narrated the incident to anyone in the village. She had not called
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her husband, and such conduct is highly unnatural. This
submission cannot be accepted. As already stated, a witness
cannot be expected to act in a particular manner. The incident
.
involved sexual penetration and could not have been revealed to
any person but to closely related persons. Hence, her testimony
cannot be doubted because she had not narrated the incident to
of
anyone.
25. Dr Vinod Dhiman (PW10) examined the victim. He
rt
only found an abrasion on the right mid leg medial aspect. It was
submitted that the absence of the injury around the anus would
falsify the victim’s version. This submission cannot be accepted.
Dr Vinod Dhiman (PW10) categorically stated that the possibility
of penetration and sexual assault could not be ruled out. He
further stated that one finger was admitted with discomfort
during digital examination, and slight pain or discomfort was
present while taking the rectal swab. He stated in his cross-
examination that there was no injury, but there was slight pain
while inserting a finger in the anus. Therefore, the Medical
Officer had noticed the discomfort and the pain in the anal
region. It was laid down by the Hon’ble Supreme Court in
Childline India Foundation v. Allan John Waters, (2011) 6 SCC 261,
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that there is no requirement of corroboration of the testimony of
the victim of the sexual abuse. It was observed: –
49. Regarding the requirement of corroboration about the
.
testimony of PWs 1 and 4, with regard to sexual abuse, it is
useful to refer to the decision of this Court in State of
Kerala v. Kurissum Moottil Antony [(2007) 1 SCC 627 : (2007)
1 SCC (Cri) 403]. In that case, the respondent was found
guilty of the offences punishable under Sections 451 and
377 IPC. The trial court had convicted the respondent and
imposed a sentence of six months and one year’s rigorous
of
imprisonment, respectively, with a fine of Rs. 2000 in each
case. The factual background shows that on 10-11-1986,
the accused trespassed into the house of the victim girl,
rt
who was nearly about 10 years of age on the date of the
occurrence and committed an unnatural offence on her.
After finding the victim alone in the house, the accused
committed an unnatural offence by putting his penis and
having carnal intercourse against the order of nature. The
victim PW 1 told about the incident to her friend PW 2, who
narrated the same to the parents of the victim and
accordingly, on 13-11-1986, an FIR was lodged.
50. On consideration of the entire prosecution version in
Kurissum Antony [(2007) 1 SCC 627: (2007) 1 SCC (Cri) 403],
the trial court found the accused guilty and convicted and
sentenced him as aforesaid. An appeal before the Sessions
Judge did not bring any relief to the accused, and a
revision was filed before the High Court, which set aside
the order of conviction and sentence. The primary ground
on which the High Court directed acquittal was the
absence of corroboration, and the alleged suppression of a
report purported to have been given before the FIR in
question was lodged. In support of the appeal, the State
submitted that the High Court’s approach is clearly
erroneous, and it was pointed out that corroboration is not
necessary for a case of this nature.
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51. The following observations and conclusions in
Kurissum Antony [(2007) 1 SCC 627 : (2007) 1 SCC (Cri) 403]
are relevant : (SCC pp. 629-30, paras 7-11)
“7. An accused cannot cling to a fossil formula and
insist on corroborative evidence, even if taken as a
.
whole, the case spoken to by the victim strikes a
judicial mind as probable. Judicial response to
human rights cannot be blunted by legal jugglery. A
similar view was expressed by this Court in Rafiq v.
State of U.P. [(1980) 4 SCC 262: 1980 SCC (Cri) 947]
with some anguish. The same was echoed again in
of
Bharwada Bhoginbhai Hirjibhai v. State of Gujarat
[(1983) 3 SCC 217: 1983 SCC (Cri) 728]. It was observed
in the said case that, in the Indian setting, refusal to
act on the testimony of the victim of sexual assault
rt
in the absence of corroboration, as a rule, is adding
insult to injury. A girl or a woman in the tradition-
bound, non-permissive society of India would be
extremely reluctant even to admit that any incident
which is likely to reflect on her chastity or dignity
had ever occurred. She would be conscious of the
danger of being ostracised by society, and when, in
the face of these factors, the crime is brought to
light, there is an inbuilt assurance that the charge is
genuine rather than fabricated. Just as a witness
who has sustained an injury, which is not shown or
believed to be self-inflicted, is the best witness in
the sense that he is least likely to exculpate the real
offender, the evidence of a victim of a sex offence is
entitled to great weight, absence of corroboration
notwithstanding. Corroboration is not the sine qua
non for conviction in a rape case. The observations
of Vivian Bose, J., in Rameshwar v. State of Rajasthan
[1951 SCC 1213: AIR 1952 SC 54: 1952 Cri LJ 547] were :
(AIR p. 57, para 19)
’19. … The rule, which according to the cases
has hardened into one of law, is not that
corroboration is essential before there can be
a conviction but that the necessity of
corroboration, as a matter of prudence, except::: Downloaded on – 18/03/2026 20:33:23 :::CIS
23
2026:HHC:7510where the circumstances make it safe to
dispense with it, must be present to the mind
of the judge….’
8. 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’. (See State of Maharashtra v.
Chandraprakash Kewalchand Jain [(1990) 1 SCC 550:
of
1990 SCC (Cri) 210] .) Why should the evidence of the
girl or the woman who complains of rape or sexual
molestation be viewed with the aid of spectacles
rt
fitted with lenses tinged with doubt, disbelief or
suspicion? The plea about the lack of corroboration
has no substance.
9. It is unfortunate that respect for womanhood in
our country is on the decline, and cases of
molestation and rape are steadily growing. Decency
and morality in public and social life can be
protected only if courts deal strictly with those who
violate the social norms.
10. The above position was highlighted by this Court
in Bhupinder Sharma v. State of H.P. [(2003) 8 SCC
551: 2004 SCC (Cri) 31]
11. The rule regarding non-requirement of
corroboration is equally applicable to a case of this
nature, relating to Section 377 IPC.”
52. We are in agreement with the above-said conclusion,
and in a case of this nature, the Court is not justified in
asking for further corroboration apart from the testimony
of PWs 1 and 4. Accordingly, we reject the contention
raised by the learned Senior Counsel for the accused.
26. The victim stated that the accused had attempted to
show a porn clip to him. This was duly corroborated by the
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presence of the porn clip in the mobile phone of the accused. The
accused claimed in his statement recorded under Section 313 of
Cr.P.C. that the memory card did not belong to him. However,
.
this denial is not acceptable. Ramesh Kumar (PW4) stated that
the wife of the accused produced the mobile phone of her
husband with dual SIM and a memory card, which were seized by
of
the police. He was not cross-examined at all regarding the
recovery of the mobile phone or the presence of the SIM card and
rt
memory card in it. Therefore, his testimony that the wife of the
accused had produced a mobile phone containing a SIM card and
a memory card has to be accepted as correct. It was laid down by
the Hon’ble Supreme Court in State of Uttar Pradesh Versus Nahar
Singh 1998 (3) SCC 561 that where the testimony of a witness is
not challenged in the cross-examination, the same cannot be
challenged during the arguments. This position was reiterated in
Arvind Singh v. State of Maharashtra, (2021) 11 SCC 1: (2022) 1 SCC
(Cri) 208: 2020 SCC OnLine SC 4, and it was held at page 34:
“58. A witness is required to be cross-examined in a
criminal trial to test his veracity; to discover who he is and
what his position in life is, or to shake his credit, by
injuring his character, although the answer to such
questions may directly or indirectly incriminate him or
may directly or indirectly expose him to a penalty or
forfeiture (Section 146 of the Evidence Act). A witness is
required to be cross-examined to bring forth::: Downloaded on – 18/03/2026 20:33:23 :::CIS
25
2026:HHC:7510inconsistencies and discrepancies, and to prove the
untruthfulness of the witness. A-1 set up a case of his
arrest on 1-9-2014 from 18:50 hrs; therefore, it was
required for him to cross-examine the truthfulness of the
prosecution witnesses with regard to that particular.
aspect. The argument that the accused was shown to be
arrested around 19:00 hrs is an incorrect reading of the
arrest form (Ex. 17). In Column 8, it has been specifically
mentioned that the accused was taken into custody on 2-9-2014 at 14:30 hrs at Wanjri Layout, Police Station,
Kalamna. The time, i.e. 17, 10 hrs mentioned in Column 2,
appears to be when A-1 was brought to the Police Station,of
Lakadganj. As per the IO, A-1 was called for interrogation
as the suspicion was on an employee of Dr Chandak since
the kidnapper was wearing a red colour t-shirt which was
rt
given by Dr Chandak to his employees. A-1 travelled from
the stage of suspect to an accused only on 2-9-2014. Since
no cross-examination was conducted on any of theprosecution witnesses about the place and manner of the
arrest, the argument that the accused was arrested on 1-
9-2014 at 18:50 hrs is not tenable.
59. The House of Lords, in a judgment reported as Browne
v. Dunn (1893) 6 R 67 (HL), considered the principles of
appreciation of evidence. Lord Chancellor Herschell, heldthat it is absolutely essential to the proper conduct of a
cause, where it is intended to suggest that a witness if notspeaking the truth on a particular point, direct his
attention to the fact by some questions put in cross-
examination showing that imputation is intended to bemade, and not to take his evidence and pass it by as a
matter altogether unchallenged. It was held as under:
“Now, my Lords, I cannot help saying that it seems to
me to be absolutely essential to the proper conduct of a
cause, where it is intended to suggest that a witness is
not speaking the truth on a particular point, to direct
his attention to the fact by some questions put in
cross-examination showing that that imputation is
intended to be made, and not to take his evidence and
pass it by as a matter altogether unchallenged, and::: Downloaded on – 18/03/2026 20:33:23 :::CIS
26
2026:HHC:7510then, when it is impossible for him to explain, as
perhaps he might have been able to do if such questions
had been put to him, the circumstances which it is
suggested indicate that the story he tells ought not to
be believed, to argue that he is a witness unworthy of.
credit. My Lords, I have always understood that if you
intend to impeach a witness you are bound, whilst he is
in the box, to give him an opportunity of making any
explanation which is open to him; and, as it seems tome, that is not only a rule of professional practice in the
conduct of a case, but is essential to fair play and fair
dealing with witnesses. Sometimes reflections haveof
been made upon excessive cross-examination of
witnesses, and it has been complained of as undue, but
it seems to me that cross-examination of a witness
rt
which errs in the direction of excess may be far more
fair to him than to leave him without cross-
examination, and afterwards, to suggest that he is not awitness of truth, I mean upon a point on which it is not
otherwise perfectly clear that he has had full notice
beforehand that there is an intention to impeach thecredibility of the story which he is telling.”
60. Lord Halsbury, in a separate but concurring opinion, held as
under:
“My Lords, with regard to the manner in which the
evidence was given in this case, I cannot too heartilyexpress my concurrence with the Lord Chancellor as to
the mode in which a trial should be conducted. To mymind, nothing would be more absolutely unjust than
not to cross-examine witnesses upon evidence which
they have given, so as to give them notice, and to give
them an opportunity of explanation, and an
opportunity very often to defend their own character,
and, not having given them such an opportunity, to ask
the jury afterwards to disbelieve what they have said,
although not one question has been directed either to
their credit or to the accuracy of the facts they have
deposed to.”
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61. This Court, in a judgment reported as State of U.P. v. Nahar
Singh, (1998) 3 SCC 561: 1998 SCC (Cri) 850, quoted from Browne v.
Dunn, (1893) 6 R 67 (HL) to hold that in the absence of cross-
examination on the explanation of delay, the evidence of PW 1
remained unchallenged and ought to have been believed by the
.
High Court. Section 146 of the Evidence Act confers a valuable
right of cross-examining the witness tendered in evidence by the
opposite party. This Court held as under: (State of U.P. v. Nahar
Singh, (1998) 3 SCC 561: 1998 SCC (Cri) 850], SCC pp. 566-67, para
13)
“13. It may be noted here that part of the statement of
of
PW 1 was not cross-examined by the accused. In the
absence of cross-examination on the explanation of
the delay, the evidence of PW 1 remained unchallenged
and ought to have been believed by the High Court.
rt
Section 138 of the Evidence Act confers a valuable right
of cross-examining the witness tendered in evidence
by the opposite party. The scope of that provision is
enlarged by Section 146 of the Evidence Act by allowing
a witness to be questioned:
(1) to test his veracity,
(2) to discover who he is and what his position in life
is, or(3) to shake his credit by injuring his character,
although the answer to such questions might tenddirectly or indirectly to incriminate him or might
expose or tend directly or indirectly to expose him to
a penalty or forfeiture.”
62. This Court, in a judgment reported Muddasani Venkata
Narsaiah v. Muddasani Sarojana, (2016) 12 SCC 288: (2017) 1 SCC
(Civ) 268, laid down that the party is obliged to put his case in
cross-examination of witnesses of the opposite party. The rule
of putting one’s version in cross-examination is one of essential
justice and not merely a technical one. It was held as under: (SCC
pp. 294-95, paras 15-16)
“15. Moreover, there was no effective cross-
examination made on the plaintiff’s witnesses with
respect to the factum of execution of the sale deed. PW 1
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2026:HHC:7510
and PW 2 have not been cross-examined as to the
factum of execution of the sale deed. The cross-
examination is a matter of substance, not of procedure.
One is required to put one’s own version in the cross-
examination of the opponent. The effect of non-cross-
.
examination is that the statement of the witness has
not been disputed. The effect of not cross-examining
the witnesses has been considered by this Court in
Bhoju Mandalv.Debnath Bhagat, AIR 1963 SC 1906. This
Court repelled a submission on the ground that the
same was not put either to the witnesses or suggested
before the courts below. A party is required to put his
of
version to the witness. If no such questions are put, the
Court would presume that the witness account has been
accepted as held in Chuni Lal Dwarka Nath v. Hartford
rt
Fire Insurance Co. Ltd., 1957 SCC OnLine P&H 177: AIR
1958 P&H 440.
16. In Maroti Bansi Teli v. Radhabai, 1943 SCC OnLine MP
128: AIR 1945 Nag 60, it has been laid down that the
matters sworn to by one party in the pleadings not
challenged either in pleadings or cross-examination by
another party must be accepted as fully established. The
High Court of Calcutta in A.E.G. Carapiet v. A.Y. Derderian,
1960 SCC OnLine Cal 44: AIR 1961 Cal 359 has laid down that
the party is obliged to put his case in the cross-
examination of witnesses of the opposite party. The rule of
putting one’s version in cross-examination is one of
essential justice and not merely a technical one. A Division
Bench of the Nagpur High Court, Kuwarlal Amritlal v.
Rekhlal Koduram, 1949 SCC OnLine MP 35: AIR 1950 Nag 83
has laid down that when attestation is not specifically
challenged, and the witness is not cross-examined
regarding details of attestation, it is sufficient for him to
say that the document was attested. If the other side wants
to challenge that statement, it is their duty, quite apart
from raising it in the pleadings, to cross-examine the
witness along those lines. A Division Bench of the Patna
High Court in Karnidan Sardav.Sailaja Kanta Mitra, 1940
SCC OnLine Pat 288: AIR 1940 Pat 683 has laid down that it
cannot be too strongly emphasised that the system of
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2026:HHC:7510
administration of justice allows of cross-examination of
opposite party’s witnesses for the purpose of testing their
evidence, and it must be assumed that when the witnesses
were not tested in that way, their evidence is to be
ordinarily accepted. In the aforesaid circumstances, the
.
High Court has gravely erred in law in reversing the
findings of the first appellate court as to the factum of
execution of the sale deed in favour of the plaintiff.”
27. The mobile phone was sent to the FSL, and a porn clip
was found in it. The victim could not have known about the
of
presence of the porn clip in the mobile phone of the accused, and
the presence of the porn clip corroborates his testimony.
rt
28. It was submitted that the integrity of the case
property was not established because there was a discrepancy in
the number of seals. Memo (Ex.PW4/A) stated that the parcel was
sealed with three seals of impression ‘M’, whereas the report of
analysis (Ex.PW13/B) mentions the number of seals as four.
Thus, the possibility of tampering with the case property could
not be ruled out. This submission cannot be accepted. SI Prem Raj
(PW13) sealed the parcel. He was not cross-examined regarding
the integrity of the case property; rather, it was suggested that
the mobile was taken on 4.9.2013 and falsely shown to be
recovered on 6.9.2013 which suggestion was denied by him. HC
Shakti Nandan (PW8) was working as MHC with whom the parcel
was deposited. He specifically stated that nobody tampered with
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the case property when it remained with him. He was also not
cross-examined. Constable Manjeet Kumar (PW6) stated that he
carried the parcel sealed with seal impressions ‘M’, sample seals
.
and documents to FSL. The case property remained intact with
him. He was also not cross-examined. The testimonies of the
prosecution witnesses regarding the integrity of the case
of
property have remained unshaken, and the integrity of the case
property cannot be doubted merely because there is a
rt
discrepancy in the number of seals.
29. It was submitted that the complaint made to the
police is silent regarding the showing of the porn clip. This was
clearly an improvement, and learned Trial Court erred in relying
upon it. This submission will not help the accused. The attention
of the victim was not brought to the previous statement, and his
credit has not been impeached as per the law. It was laid down by
the Hon’ble Supreme Court in Binay Kumar Singh Versus State of
Bihar, 1997 (1) SCC 283, that if a witness is to be contradicted with
his previous statement, his attention must be drawn towards it.
It was observed: –
“11. The credit of a witness can be impeached by proof of
any statement which is inconsistent with any part of his
evidence in Court. This principle is delineated in S. 155 (3)
of the Evidence Act, and it must be borne in mind when::: Downloaded on – 18/03/2026 20:33:23 :::CIS
31
2026:HHC:7510reading S. 145, which consists of two limbs. It is provided
in the first limb of S.145 that a witness may be cross-
examined as to the previous statement made by him
without such writing being shown to him but the second
limb provides that “if it is intended to contradict him by.
the writing his attention must before the writing can be
provided, be called to those parts of it which are to be used
for the purpose of contradicting him.” There is thus a
distinction between the two vivid limbs, though subtle itmay be. The first limb does not envisage impeaching the
credit of a witness, but it merely enables the opposite
party to cross-examine the witness with reference to theof
previous statements made by him. He may at that stage
succeed in eliciting materials to his benefit through such
cross-examination, even without resorting to the
rt
procedure laid down in the second limb. But if the witness
disowns having made any statement which is inconsistent
with his present stand, his testimony in Court on thatscore would not be vitiated until the cross-examiner
proceeds to comply with the procedure prescribed in the
second limb of S. 145.
12. In Bhagwan Singh‘s case (AIR 1952 SC 214), Vivian Bose,
J., pointed out in paragraph 25 that during the cross-
examination of the witnesses concerned, the formalitiesprescribed by S. 145 are complied with. The cross-
examination, in that case, indicated that everycircumstance intended to be used as a contradiction was
put to him point by point and passage by passage. Learned
Judges were called upon to deal with an argument thatwitnesses’ attention should have been specifically drawn
to that passage in addition thereto. Their Lordships were,
however, satisfied in that case that the procedure adopted
was in substantial compliance with S. 145, and hence held
that all that is required is that the witness must be treated
fairly and must be afforded a reasonable opportunity of
explaining the contradictions after his attention has been
drawn to them in a fair and reasonable manner. On the
facts of that case, there is no dispute with the proposition
laid therein.
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13. So long as the attention of PW 32 (Sukhdev Bhagat) was
not drawn to the statement attributed to him as recorded
by DW-10 (Nawal Kishore Prasad), we are not persuaded
to reject the evidence of PW-32 that he gave Ex. 14
statement at the venue of occurrence and that he had not.
given any other statement earlier thereto.”
30. A similar view was taken in Alauddin v. State of Assam,
2024 SCC OnLine SC 760, wherein it was observed:
“7. When the two statements cannot stand together, they
of
become contradictory statements. When a witness makes
a statement in his evidence before the Court which is
inconsistent with what he has stated in his statement
recorded by the Police, there is a contradiction. When a
rt
prosecution witness whose statement under Section 161(1)
or Section 164 of CrPC has been recorded states factualaspects before the Court which he has not stated in his
prior statement recorded under Section 161(1) or Section
164 of CrPC, it is said that there is an omission. There will
be an omission if the witness has omitted to state a fact inhis statement recorded by the Police, which he states
before the Court in his evidence. The explanation to
Section 162CrPC indicates that an omission may amountto a contradiction when it is significant and relevant.
Thus, every omission is not a contradiction. It becomes acontradiction provided it satisfies the test laid down in the
explanation under Section 162. Therefore, when an
omission becomes a contradiction, the procedure providedin the proviso to sub-Section (1) of Section 162 must be
followed for contradicting witnesses in the cross-
examination.
8. As stated in the proviso to sub-Section (1) of section
162, the witness has to be contradicted in the manner
provided under Section 145 of the Evidence Act. Section
145 reads thus:
“145. Cross-examination as to previous statements
in writing.–A witness may be cross-examined as to
previous statements made by him in writing or::: Downloaded on – 18/03/2026 20:33:23 :::CIS
33
2026:HHC:7510reduced into writing, and relevant to matters in
question, without such writing being shown to him,
or being proved; but, if it is intended to contradict
him by the writing, his attention must, before the
writing can be proved, be called to those parts of it.
which are to be used for the purpose of contradicting
him.”
The Section operates in two parts. The first part provides
that a witness can be cross-examined as to his previous
statements made in writing without such writing being
shown to him. Thus, for example, a witness can be cross-
of
examined by asking whether his prior statement exists.
The second part is regarding contradicting a witness.
While confronting the witness with his prior statement to
prove contradictions, the witness must be shown his prior
rt
statement. If there is a contradiction between the
statement made by the witness before the Court and what
is recorded in the statement recorded by the police, the
witness’s attention must be drawn to specific parts of his
prior statement, which are to be used to contradict him.
Section 145 provides that the relevant part can be put to
the witness without the writing being proved. However,
the previous statement used to contradict witnesses must
be proved subsequently. Only if the contradictory part of
his previous statement is proved can the contradictions be
said to be proved. The usual practice is to mark the portion
or part shown to the witness of his prior statement
produced on record. Marking is done differently in
different States. In some States, practice is to mark the
beginning of the portion shown to the witness with an
alphabet and the end by marking with the same alphabet.
While recording the cross-examination, the Trial Court
must record that a particular portion marked, for example,
as AA was shown to the witness. Which part of the prior
statement is shown to the witness for contradicting him
has to be recorded in the cross-examination. If the witness
admits to having made such a prior statement, that
portion can be treated as proved. If the witness does not
admit the portion of his prior statement with which he is
confronted, it can be proved through the Investigating
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Officer by asking whether the witness made a statement
that was shown to the witness. Therefore, if the witness is
intended to be confronted with his prior statement
reduced into writing, that particular part of the statement,
even before it is proved, must be specifically shown to the
.
witness. After that, the part of the prior statement used to
contradict the witness has to be proved. As indicated
earlier, it can be treated as proved if the witness admits to
having made such a statement, or it can be proved in the
cross-examination of the concerned police officer. The
object of this requirement in Section 145 of the Evidence
Act, in confronting the witness by showing him the
of
relevant part of his prior statement, is to give the witness
a chance to explain the contradiction. Therefore, this is a
rule of fairness.
rt
9. If a former statement of the witness is inconsistent with
any part of his evidence given before the Court, it can be
used to impeach the credit of the witness in accordance
with clause (3) of Section 155 of the Evidence Act, which
reads thus:
“155. Impeaching the credibility of the witness. —
The credit of a witness may be impeached in the
following ways by the adverse party, or, with the
consent of the Court, by the party who calls him–
(1) ……………………………………….
(2) ………………………………………
(3) by proof of former statementsinconsistent with any part of his evidence
which is liable to be contradicted.”
It must be noted here that every contradiction or omission
is not a ground to discredit the witness or to disbelieve
his/her testimony. A minor or trivial omission or
contradiction brought to the record is not sufficient to
disbelieve the witness’s version. Only when there is a
material contradiction or omission can the Court
disbelieve the witness’s version either fully or partially.
What is a material contradiction or omission, depending
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2026:HHC:7510
upon the facts of each case? Whether an omission is a
contradiction also depends on the facts of each case.
10. We are tempted to quote what is held in a landmark
decision of this Court in the case of Tahsildar Singh v. State
of U.P., 1959 Supp (2) SCR 875. Paragraph 13 of the said
.
decision reads thus:
“13. The learned counsel’s first argument is based
upon the words “in the manner provided bySection145of the Indian Evidence Act, 1872″ found in
Section 162 of the Code of Criminal Procedure. Section
145 of the Evidence Act, it is said, empowers theof
accused to put all relevant questions to a witness
before his attention is called to those parts of the
writing with a view to contradicting him. In support of
this contention, reliance is placed upon the judgment
rt
of this Court in Shyam Singh v. State of Punjab [(1952) 1
SCC 514:1952 SCR 812]. Bose, J. describes the procedureto be followed to contradict a witness under Section
145 of the Evidence Act, thus at p. 819:
Resort to Section 145 would only be necessary
if the witness denies that he made the former
statement. In that event, it would be necessary
to prove that he did, and if the former statementwas reduced to writing, then Section 145
requires that his attention must be drawn tothese parts, which are to be used for
contradiction. But that position does not arise
when the witness admits the formerstatement. In such a case, all that is necessary
is to look to the former statement of which no
further proof is necessary because of the
admission that it was made.”
It is unnecessary to refer to other cases wherein a
similar procedure is suggested for putting questions
under Section 145 of the Indian Evidence Act, for the
said decision of this Court, and similar decisions were
not considered the procedure in a case where the
statement in writing was intended to be used for
contradiction under Section 162 of the Code of
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Criminal Procedure. Section 145 of the Evidence Act is in
two parts: the first part enables the accused to cross-
examine a witness as to aprevious statement made by
him in writing or reduced to writing without such writing
being shown to him; the second part deals with a
.
situation where the cross-examination assumes the
shape of contradiction: in other words, both parts deal
with cross-examination; the first part with cross-
examination other than by way of contradiction, and the
second with cross-examination by way of contradiction
only. The procedure prescribed is that, if it is intended to
contradict a witness by the writing, his attention must,
of
before the writing can be proved, be called to those parts
of it which are to be used for the purpose of contradicting
him. The proviso to Section 162 of the Code of Criminal
rt
Procedure only enables the accused to make use of such a
statement to contradict a witness in the manner provided
by Section 145 of the Evidence Act. It would be doing
violence to the language of the proviso if the said
statement were allowed to be used for the purpose of
cross-examining a witness within the meaning of the
first part of Section 145 of the Evidence Act. Nor are we
impressed by the argument that it would not be possible
to invoke the second part of Section 145 of the Evidence
Act without putting relevant questions under the first part
thereof. The difficulty is more imaginary than real. The
second part of Section 145 of the Evidence Act clearly
indicates the simple procedure to be followed. To
illustrate: A says in the witness box that B stabbed C;
before the police, he had stated that D stabbed C. His
attention can be drawn to that part of the statement
made before the police, which contradicts his statement
in the witness box. If he admits his previous statement, no
further proof is necessary; if he does not admit it, the
practice generally followed is to admit it, subject to proof
by the police officer. On the other hand, the procedure
suggested by the learned counsel may be illustrated
thus: If the witness is asked, “Did you say before the
police officer that you saw a gas light?” and he
answers, “Yes”, then the statement which does not
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contain such recital is put to him as a contradiction.
This procedure involves two fallacies: one is that it
enables the accused to elicit by a process of cross-
examination what the witness stated before the police
officer. If a police officer did not make a record of a
.
witness’s statement, his entire statement could not be
used for any purpose, whereas if a police officer
recorded a few sentences, by this process of cross-
examination, the witness’s oral statement could be
brought on record. This procedure, therefore,
contravenes the express provision of Section 162 of
the Code. The second fallacy is that by the illustration
of
given by the learned counsel for the appellants, there
is no self-contradiction of the primary statement
made in the witness box, for the witness has not yet
rt
made on the stand any assertion at all which can serve
as the basis. The contradiction, under the section,
should be between what a witness asserted in the
witness box and what he stated before the police
officer, and not between what he said he had stated
before the police officer and what he actually said
before him. In such a case, the question could not be
put at all: only questions to contradict can be put, and
the question here posed does not contradict; it leads
to an answer which is contradicted by the police
statement. This argument of the learned counsel
based upon Section 145 of the Evidence Act is,
therefore, not of any relevance in considering the
express provisions of Section 162 of the Code of
Criminal Procedure.” (emphasis added)
This decision is a locus classicus, which will continue to
guide our Trial Courts. In the facts of the case, the learned
Trial Judge has not marked those parts of the witnesses’
prior statements based on which they were sought to be
contradicted in the cross-examination.”
31. It was held in Anees v. State (NCT of Delhi), 2024 SCC
OnLine SC 757 that the Courts cannot suo motu take cognisance of
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the contradiction and the same has to be brought on record as per
the law. It was observed:
“64. The court cannot suo motu make use of statements to
.
the police that have not been proved and ask questions
with reference to them which are inconsistent with the
testimony of the witness in the court. The words ‘if dulyproved’ are used in Section 162Cr. P.C.clearly show that the
record of the statement of witnesses cannot be admitted in
evidence straightaway, nor can it be looked into, but they
must be duly proved for contradiction by elicitingof
admission from the witness during cross-examination and
also during the cross-examination of the Investigating
Officer. The statement before the Investigating Officer can
rt
be used for contradiction, but only after strict compliance
with Section 145 of the Evidence Act, that is, by drawingattention to the parts intended for contradiction.
65. Section 145 of the Evidence Act reads as follows:
“145. Cross-examination as to previous statements in
writing.– A witness may be cross-examined as toprevious statements made by him in writing or reduced
into writing, and relevant to matters in question,
without such writing being shown to him, or beingproved; but, if it is intended to contradict him by the
writing, his attention must, before the writing can be
proved, be called to those parts of it which are to be used
for the purpose of contradicting him.”
66. Under Section 145 of the Evidence Act, when it is intended
to contradict the witness by his previous statement reduced
into writing, the attention of such witness must be called to
those parts of it which are to be used for the purpose of
contradicting him, before the writing can be used. While
recording the deposition of a witness, it becomes the duty of
the trial court to ensure that the part of the police statement
with which it is intended to contradict the witness is brought
to the notice of the witness in his cross-examination. The
attention of the witness is drawn to that part, and this must be
reflected in his cross-examination by reproducing it. If the
witness admits the part intended to contradict him, it stands
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proved, and there is no need for further proof of contradiction,
and it will be read while appreciating the evidence. If he
denies having made that part of the statement, his attention
must be drawn to that statement, and it must be mentioned in
the deposition. By this process, the contradiction is merely
brought on record, but it is yet to be proved. Thereafter, when
.
the Investigating Officer is examined in the court, his attention
should be drawn to the passage marked for contradiction; it
will then be proved in the deposition of the Investigating
Officer, who, again, by referring to the police statement, will
depose about the witness having made that statement. The
process again involves referring to the police statement and
culling out the part with which the maker of the statement
of
was intended to be contradicted. If the witness was not
confronted with that part of the statement with which the
defence wanted to contradict him, then the court cannot suo
motu make use of statements to police not proved in
compliance with Section 145 of the Evidence Act, that is, by
rt
drawing attention to the parts intended for contradiction.”
[See: V.K. Mishra v. State of Uttarakhand: (2015) 9 SCC 588]
32. Since in the present case, the attention of the victim
was not brought to the previous statement, his credit has not
been impeached as per law, and his testimony cannot be rejected
because this fact was not narrated in the FIR.
33. The victim’s father stated in his cross-examination
that he had passed higher secondary. His wife had told him about
showing a porn clip, but he probably had not mentioned this fact.
He would not have understood the significance of mentioning
such a fact in the FIR, and the prosecution’s case cannot be
doubted due to his error. Further, the victim could not have
invented such a fact without knowing that the mobile phone of
the accused had a porn clip. Therefore, the prosecution’s case
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cannot be doubted because the showing of a porn clip was not
mentioned in the FIR.
34. Section 29 of the Protection of Children from Sexual
.
Offences Act, 2012 provides that where a person is prosecuted for
committing or abetting or attempting to commit any offence
under Sections 3, 5, 7 & 9 of the Act, the Special Court shall
of
presume that such person had committed or abetted or
attempted to commit the offence as the case may be unless the
rt
contrary is proved. This Section was considered by the Bombay
High Court in Amol Dudhram Barsagade vs. State of Maharashtra
2019 AllMR(Cri) 435, and it was held that once the foundation of
the prosecution case is laid by legally admissible evidence, it
becomes incumbent upon the accused to establish from the
record that he has not committed the offence. It was observed:-
“5. The learned Additional Public Prosecutor Shri S.S.
Doifode would strenuously contend that the statutorypresumption under Section 29 of the POCSO Act is
absolute. The date of birth of the victim, 12.10.2001, is duly
proved and is indeed not challenged by the accused, and
the victim, therefore, was a child within the meaning of
Section 2(d) of the POCSO Act, it is the submission. The
submission that the statutory presumption under Section
29 of the POCSO Act is absolute must be rejected if the
suggestion is that even if foundational facts are not
established, the prosecution can invoke the statutory
presumption. Such an interpretation of Section 29 of the
POCSO Act would render the said provision vulnerable to::: Downloaded on – 18/03/2026 20:33:23 :::CIS
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2026:HHC:7510the vice of unconstitutionality. The statutory presumption
would stand activated only if the prosecution proves the
foundational facts, and then, even if the statutory
presumption is activated, the burden on the accused is not
to rebut the presumption beyond a reasonable doubt.
.
Suffice it if the accused is in a position to create a serious
doubt about the veracity of the prosecution’s case or the
accused brings on record material to render the
prosecution’s version highly improbable.”
35. Similar is the judgment of the Tripura High Court in
of
Joubansen Tripura v. State of Tripura, 2021 SCC OnLine Tri 176,
wherein it was observed:
rt
“12. Upon meticulous reading of Section 29 and 30 of the
POCSO Act, according to us, prosecution will commencethe trial with an additional advantage that there will be
presumption of guilt against the accused person, but, in
our considered view, such presumption cannot form the
basis of conviction, if that be so, it would offend Article20(3) and 21 of the Constitution of India. Perhaps, it is not
the object of the legislature to incorporate Sections 29 and
30 under the POCSO Act.
13. As we have said in the first part of this paragraph, the
prosecution will commence trial with an additionaladvantage of presumption against the accused, but the
prosecution is legally bound to establish foundationalfacts that set the prosecution’s case in motion. If the
prosecution succeeds in establishing the foundational
facts, then it will be the obligation of the accused to prove
his innocence, but the standard of proof again will be on
the basis of a preponderance of probabilities. Keeping in
view the aforesaid principles, we shall proceed to decide as
to whether the prosecution has been able to establish the
foundational facts of the instant case. Foundational facts
in the POCSO Act include:–
(i) the proof that the victim is a child;
(ii) that the alleged incident has taken place;
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(iii) that the accused has committed the offence; and
(iv) whenever physical injury is caused, to establish it
with supporting medical evidence.
14. If the fundamental facts of the prosecution case are laid by
.
the prosecution by leading legally admissible evidence, the
duty of the accused is to rebut it by establishing from the
evidence on record that he has not committed the offence. This
can be achieved by eliciting patent absurdities or inherent
infirmities in the version of prosecution or the oral testimony
of witnesses or the existence of enmity between the accused
and victim or bring out material contradictions and omissions
of
in the evidence of witnesses, or to establish that the victim and
witnesses are unreliable or that there is considerable and
unexplained delay in lodging the complaint or that the victim
is not a child. The accused may reach that end by discrediting
rt
and demolishing the prosecution witnesses by effective cross-
examination. Only if he is not fully able to do so, he needs only
to rebut the presumption by leading defence evidence. Still,
whether to offer himself as a witness is the choice of the
accused. Fundamentally, the process of adducing evidence in a
POCSO case does not substantially differ from any other
criminal trial, except that in a trial under the POCSO Act, the
prosecution is additionally armed with the presumptions and
the corresponding obligation on the accused to rebut the
presumption. It is imperative to mention that in POCSO cases,
considering the gravity of sentence and the stringency of the
provisions, an onerous duty is cast on the trial court to ensure
a more careful scrutiny of evidence, especially, when the
evidence let in is the nature of oral testimony of the victim
alone and not corroborated by any other evidence–oral,
documentary and medical. (emphasis supplied)
15. Legally, the duty of the accused to rebut the
presumption as arises only after the prosecution has
established the foundational facts of the offence alleged
against the accused. The yardstick for evaluating the
rebuttable evidence is limited to the scale of
preponderance of probability. Once the burden to rebut the
presumption is discharged by the accused through
effective cross-examination or by adducing defence
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evidence or by the accused himself tendering oral
evidence, what remains is the appreciation of the evidence
let in. Though it may appear that, in the light of presumptions,
the burden of proof oscillates between the prosecution and the
accused, depending on the quality of evidence let in, in
.
practice, the process of adducing evidence in a POCSO case
does not substantially differ from any other criminal case.
Once the recording of prosecution evidence starts, the
cross-examination of the witnesses will have to be
undertaken by the accused, keeping in mind the duty of
the accused to demolish the prosecution case by an
effective cross-examination and additionally to elicit facts
of
to rebut the statutory presumption that may arise from the
evidence of prosecution witnesses. Practically, the duty of
prosecution to establish the foundational facts and the
rt
duty of the accused to rebut presumption arise, with the
commencement of the trial, progress forward along with
the trial and the establishment of one, extinguishes the
other. To that extent, the presumptions and the duty to
rebut presumptions are coextensive. (emphasis supplied)
16. If an accused is convicted only on the basis of a
presumption as contemplated in Sections 29 and 30 of the
POCSO Act, then it would definitely offend Articles 20(3)
and 21 of the Constitution of India. In my opinion, it was
not the object of the legislature. Presumption of innocence
is a human right and cannot per se be equated with the
fundamental right under Article 21 of the Constitution of
India. The Supreme Court, in various decisions, has held
that provisions imposing the reverse burden must not
only be required to be strictly complied with but also may
be subject to proof of some basic facts as envisaged under
the Statute. [See State of Bombay v. Kathi Kalu Oghad,
(1962) 3 SCR 10: AIR 1961 SC 1808 : (1961) 2 Cri LJ 856].
17. It may safely be said that presumptions under Sections
29 and 30 of the POCSO Act do not take away the primary
duty of prosecution to establish the fundamental facts.
This duty is always on the prosecution and never shifts to
the accused. POCSO Act has no different connotations.
Parliament is competent to place a burden on certain
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aspects of the accused, especially those which are within
his exclusive knowledge. It is justified on the ground that
prosecution cannot, in the very nature of things, be
expected to know the affairs of the accused. This is
specifically so in the case of sexual offences, where there
.
may not be any eyewitnesses to the incident. Even the
burden on the accused is also a partial one and is
justifiable on the larger public interest. [State of Bombay v.
Kathi Kalu Oghad, (1962) 3 SCR 10: AIR 1961 SC 1808: (1961) 2
Cri LJ 856; Noor Aga v. State of Punjab, (2008) 16 SCC 417;
Abdul Rashid Ibrahim v. State of Gujarat, (2000) 2 SCC 513]
of
36. It was laid down by the Hon’ble Supreme Court in
Sambhubhai Raisangbhai Padhiyar v. State of Gujarat, (2025) 2 SCC
rt
399: 2024 SCC OnLine SC 3769 that when the prosecution has
established the foundational facts, the burden shifts upon the
accused to rebut the presumption. It was observed at page 413:
34. Sections 29 and 30 of the POCSO Act read as under:
“29. Presumption as to certain offences.–Where a
person is prosecuted for committing or abetting orattempting to commit any offence under Sections 3, 5,
7 and Section 9 of this Act, the Special Court shallpresume that such person has committed or abetted
or attempted to commit the offence, as the case may
be, unless the contrary is proved.
30. Presumption of culpable mental state.–(1) In any
prosecution for any offence under this Act which
requires a culpable mental state on the part of the
accused, the Special Court shall presume the
existence of such mental state but it shall be a defence
for the accused to prove the fact that he had no such
mental state with respect to the act charged as an
offence in that prosecution.
(2) For the purposes of this section, a fact is said to be
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2026:HHC:7510beyond a reasonable doubt and not merely when its
existence is established by a preponderance of
probability.”
35. It will be seen that a presumption under Section 29 is
available where the foundational facts exist for the
.
commission of an offence under Section 5 of the POCSO Act.
Section 5 of the POCSO Act deals with aggravated
penetrative sexual assault, and Section 6 speaks of
punishment for aggravated penetrative sexual assault.
Section 3 of the POCSO Act defines what penetrative sexual
assault is. The relevant sections are extracted herein
of
below:
“3. Penetrative sexual assault.–A person is said to
commit “penetrative sexual assault” if–
rt (a) he penetrates his penis, to any extent, into
the vagina, mouth, urethra or anus of a child
or makes the child do so with him or any otherperson; or
5. Aggravated penetrative sexual assault.–
(a)-(h) * * *
(i) whoever commits penetrative sexual
assault causing grievous hurt or causing
bodily harm and injury or injury to the sexualorgans of the child; or
***
(m) whoever commits penetrative sexual
assault on a child below twelve years; or
6. Punishment for aggravated penetrative sexual assault.
–(1) Whoever commits aggravated penetrative
sexual assault shall be punished with rigorous
imprisonment for a term which shall not be less than
twenty years, but which may extend to imprisonment
for life, which shall mean imprisonment for the
remainder of the natural life of that person, and shall
also be liable to fine, or with death.
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(2) The fine imposed under sub-section (1) shall be
just and reasonable and paid to the victim to meet the
medical expenses and rehabilitation of such victim.”
36. The manner in which the appellant enticed the
deceased child under the pretext of buying ice cream in
.
spite of being dissuaded by the aunt (PW 10) and without
the consent of the lawful guardians also makes out an
offence under Section 364 IPC. The aggravated penetrative
sexual assault clearly establishes an offence under Section
377 IPC and Sections 4 and 6 of the POCSO Act. The
appellant has not rebutted the presumption by adducing
of
proof to the contrary.”
37. The foundational facts were explained by the Madras
High Court in B. Mooventhan v. State of T.N., 2023 SCC OnLine Mad
rt
5241 as under:
30. In Criminal jurisprudence, the prosecution has to prove
the case. However, in view of Section 29 of the POCSO Act,
where a person is prosecuted for committing or abetting orattempting to commit any offence under Sections 3, 5, 7
and 9 of the POCSO Act, the Court shall presume that such
person has committed or abetted or attempted to committhe offence as the case may be unless the contrary is
proved. The presumption to be drawn under Sections 29and 30 of the POCSO does not absolve the prosecution of
its duty to establish the foundational facts. Theprosecution has to establish the prima facie case by
adducing evidence. Only when the fundamental and
primary facts are established by the prosecution will the
accused be under an obligation to rebut the presumptions
by adducing cogent evidence, where the standard of proof
required to rebut the presumption is a preponderance of
probabilities. In short, the basic, primary and fundamental
facts are to be established by the prosecution.
31. The term ‘foundational facts’ in the POCSO Act includes
the following:
(i) The victim is a child
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(ii) The alleged incident has occurred
(iii) The accused has committed the offence
(iv) Medical evidence to support the physical injury,
if any.”
.
38. Similar is the judgment in State of Haryana v. Vishal,
2022 SCC OnLine P&H 3827, wherein it was observed:
17. Learned counsel for the State argued that, in view of
provision of Sections 29 and 30 of the POCSO Act, aof
statutory presumption arises against the
respondent/accused, and, the onus is upon him to prove
his innocence, and that, in the present case, he has failed to
prove his innocence, therefore, the statutory presumptions
rt
stand against him and he is liable to be convicted for the
charges framed against him. A cumulative reading ofSections 29 and 30 of the POCSO Act would provide that,
once the foundational facts have been proved by the
prosecution, only then is the statutory presumption raised
against the accused, and the onus shifts upon the accusedto prove his innocence. In the present case, as we have
discussed above in detail, the prosecution has failed to
prove the foundational facts upon which a statutorypresumption can be raised. “Presumption” is a rule of law
which enables the Court to presume the existence of a facton the basis of certain proved facts. The Court cannot
presume the existence of certain facts in a vacuum. The
prosecution has to discharge its initial burden by provingthose facts which are essential to raise the statutory
presumption. In the case at hand, the prosecution has
failed to discharge its initial onus; therefore, the statutory
presumption cannot be raised at the instance of the
prosecution.
39. In the present case, the victim’s testimony was
sufficient to prove the foundational facts, and the burden shifted
to the accused to lead evidence and to produce the evidence to
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rebut the presumption, but he failed to do so, and he was rightly
held guilty of the commission of an offence punishable under
Section 4 of the POCSO Act.
.
40. The accused had also shown the pornographic clip to
the victim, who was a minor; therefore, he was rightly held guilty
of the commission of an offence punishable under Section 293 of
of
the IPC.
41. Learned Trial Court had sentenced the accused to
rt
undergo simple imprisonment for seven years, which was the
minimum punishment prescribed for the commission of an
offence punishable under Section 4 of the POCSO Act. The learned
Trial Court had also sentenced the accused to undergo
imprisonment for one year for the commission of an offence
punishable under Section 293 of the IPC. Section 293 of the IPC
provides for the punishment of imprisonment up to three years.
The victim was a minor, and the offence was grave. Accordingly,
the punishment of one year cannot be said to be excessive,
requiring any interference from this Court.
42. Therefore, there is no infirmity in the judgment and
order passed by the learned Trial Court, and no interference is
required with it.
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43. Hence, the present appeal fails, and it is dismissed.
44. The record of the learned Trial Court be returned
along with a copy of this judgment.
.
(Rakesh Kainthla)
Judge
18th March, 2026
(Chander)
of
rt
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