Chattisgarh High Court
Pawan Das Hewar vs State Of Chhattisgarh on 23 April, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1 / 36
2026:CGHC:18591-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 404 of 2022
Pawan Das Hewar S/o Ghasidas, Aged About 25 Years R/o Village
Lakhapuri, P.S. Mardapal, District Kondagaon Chhattisgarh
... Appellant
versus
State of Chhattisgarh Through Station House Officer, Police Station
Narayanpur, District Narayanpur Chhattisgarh
... Respondent
For Appellant : Ms. Nirupama Bajpai, Advocate
For State : Mr. Shailendra Sharma, Panel Lawyer
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Ravindra Kumar Agrawal, Judge
Judgment on Board
Per, Ramesh Sinha, C.J.
23/04/2026
1. Heard Ms. Nirupama Bajpai, learned counsel for the appellant.
Also heard Mr. Shailendra Sharma, learned Panel Lawyer, appearing
for the respondent/State.
2. This criminal appeal has been preferred under Section 374(2) of
the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) against the
impugned judgment of conviction and order of sentence dated
Digitally
signed by
ASHUTOSH
ASHUTOSH MISHRA
MISHRA Date:
2026.05.06
11:47:30
+0530
2 / 3625.01.2022, passed by the learned Additional Sessions Judge (F.T.C.)
Kondagaon, District Kondagaon, C.G. in POCSO Case No.03/2021, by
which the appellant has been convicted and sentenced as under:-
Conviction Sentence
Under Section 04 of the Protection Life imprisonment and fine of
of Children from Sexual Offences Rupees 1000/- in default of fine
Act, 2012 additional R.I. for 03 Years.
Under Section 506 (B) of the Rigorous imprisonment for 03
Indian Penal Code Years and fine of Rupees 1000/- in
default of fine Additional R.I. for 01
Year
Under Section 3 (2) (V) of Life Imprisonment and fine of
Schedule Caste and Schedule Rupees 1000/- in default of fine
Tribes (Prevention of Atrocities) Additional R.I. for 03 years
Act, 1989
Under Section 376 (1) of the Indian No separate sentence has been
Penal Code awarded.
All the sentences shall run
concurrently.
3. Case of the prosecution, in brief, is that complainant PW-3, father
of the victim, appeared at Narayanpur police station on 14/12/2020 and
lodged a missing person report that his minor daughter had left her
house along with her brother on 04/12/2020 to submit the answer sheet
of class 10th at Government Higher Secondary School Halami
Munjmeta. Her brother returned home after leaving her at the house of
relative. On 10/12/2020 at around 5.00 pm, the victim proceeded from
Halami Munjmeta saying that she was going home to Kalepal, who did
not reach home till today. Her whereabouts were searched nearby but
she was not found anywhere. On the information of which a missing
3 / 36
person report was registered and crime number 196/2020 under section
363 IPC was registered and taken into consideration.
4. During the investigation, the victim was recovered on 15/12/2020,
from the possession of the appellant and the recovery Panchnama Ex.
P/7 was prepared. She was sent for her medical examination to District
Hospital Narayanpur, where she was medically examined by PW-6 Dr.
Sakun Markam. While medically examining the victim, the doctor had
not noticed any external injuries on her body; however, her hymen was
ruptured, and redness was found on her private part, and she gave her
MLC report Ex. P/7. Two slides of her vaginal swab were prepared,
sealed and handed over to the police for their chemical examination.
Spot map Ex. P/3 was prepared by the police. The social status
certificate of the victim has been seized vide seizure memo Ex. P/2, in
which the victim is shown to belong to the Scheduled Tribe community.
With respect to the age and date of birth of the victim, the police have
seized the class 5th and 9th mark-sheet vide seizure memo Ex. P/4. The
school register has also been seized from the school vide seizure
memo Ex. P/25, and after retaining its attested true copy Ex. P/31C, the
original register was returned. As per the school register, the date of
birth of the victim is 03/04/2004. The appellant was arrested on
16/12/2020, and he too was sent for her medical examination to the
District Hospital, Narayanpur, where he was medically examined by Dr.
Amarnath Tarak, PW-7. The doctor did not notice any external injuries
on his body and found him capable of performing sexual intercourse,
and gave his report Ex. P/9. Semen slide of the appellant was also
4 / 36
prepared and handed over to the police for its chemical examination.
The vaginal slides of the victim, her underwear, pubic hair, semen slide
of the appellant and his underwear were sent for its chemical
examination to FSL, Raipur, from where report Ex. P/20 was received,
and semen and sperm were found on the sent articles except the pubic
hair of the victim. The police have also collected a blood sample of the
victim and the appellant for a DNA report and sent it to the State FSL,
DNA unit, Raipur. From the FSL, Raipur, a DNA report was received,
and the DNA profiles were found matched. Statement of the witnesses
under Section 161 of Cr.P.C. and statement of the victim under Section
164 of the Cr.P.C. were recorded and after completion of usual
investigation, charge-sheet was filed before the learned trial Court, for
the offence under Section 363, 376 and 506 of IPC, Section 4 of
Protection of Children from Sexual Offences Act, 2012 (in short
“POCSO Act“), and Section 3 (2) (v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short
“Atrocities Act, 1989”).
5. To prove its case, the prosecution has examined P.W.1 the victim
(A), P.W.2 the friend of the victim, P.W.3 the father of the victim (B),
P.W.4 the brother of the victim (C), P.W.5 Assistant Sub-Inspector
Chhabiram, P.W.6 Dr. Sakun Markam, P.W.7 Dr. Amarnath Tarak, P.W.8
Constable Roydas Mandavi, P.W.9 Constable Sunita Vatti, P.W.10
Assistant Sub-Inspector Narayan Singh Poya, P.W.11 Deputy
Superintendent of Police Unnati Thakur, P.W.12 Assistant Sub-Inspector
Vandana Chandrakar & P.W.13 teacher.
5 / 36
6. When the accused was charged with the offences under Section
376(1), 506 (B) IPC and Section 4 of the Protection of Children from
Sexual Offences Act and Section 3 (2) (v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act the same read out to him
and explained to him. He denied the charges and claimed trial. When
the statement was recorded under Section 313 of the Code of Criminal
Procedure, the accused stated that he was innocent and had been
falsely implicated. He expressed his desire not to produce defence
evidence.
7. The trial Court upon appreciation of oral and documentary
evidence on record and considering that it is the appellant who have
committed aforesaid offence, convicted and sentenced him in the
aforementioned manner, against which the appeal under Section 374(2)
of the Cr.P.C. has been preferred by the accused/appellant.
8. Learned counsel for the appellant submits that the impugned
judgment of conviction and sentence passed by the learned trial Court
is contrary to law and evidence on record and is liable to be set aside.
She would next contend that the conviction has been recorded primarily
on the basis of the testimony of the victim, which, according to the
defence, suffers from material inconsistencies and does not inspire
confidence. She would also submit that the conduct of the victim, as
emerging from her deposition, creates serious doubt regarding the
prosecution story. The defence has elicited in cross-examination that
the victim had accompanied the appellant and had remained with him,
6 / 36
which shows that the relationship was consensual in nature. There is
no independent corroboration of the version of the victim on material
particulars. The supporting witnesses, including PW-03 (father), are
interested witnesses and their evidence is based on what was told to
them, and thus cannot be treated as substantive corroboration. She
would next contend that with regard to age, the prosecution has relied
upon school records, particularly the Dakhil Kharij Register, however,
the same has not been proved in accordance with law. The witness
(PW-13) has admitted in cross-examination that the basis of entry of
date of birth is not known. In absence of proof of the source of such
entry, the said document cannot be treated as conclusive proof of age.
Therefore, it is prayed that the appellant may be acquitted from the
charges leveled against him.
9. On the other hand, the learned counsel for the State opposes the
arguments advanced by the learned counsel for the appellant and
submitted that the victim was a minor and below 18 years of age at the
time of incident, which is proved by the school admission register seized
vide seizure memo Ex. P/25, which contains the date of birth of the
victim as 03/04/2004. The School mark sheet of the victim supports the
entries of the school register. The victim was a minor on the date of
incident, and her consent is immaterial. The evidence of the victim
need not be required for any corroboration, and on the sole testimony of
the victim, the conviction can be made. Injury was found on the private
part of the victim, and the FSL report duly supported the presence of
semen and sperm on the vaginal slide of the victim. Further, the DNA
7 / 36
report is also found positive, which unerringly supported the
prosecution’s case that the appellant had committed sexual intercourse
with the victim. Therefore, there is no illegality or infirmity in the findings
of the learned trial Court. The prosecution has proved its case beyond
a reasonable doubt, and but for minor omission or contradiction, the
prosecution’s evidence duly corroborated each other and is sufficient to
hold the conviction of the appellant for the offence in question.
Therefore, the impugned judgment of conviction and sentence needs no
interference.
10. We have heard learned counsel for the parties and considered
their rival submissions made herein-above and also went through the
original records of the learned trial Court with utmost circumspection
and carefully as well.
11. The first question which arises for consideration is whether the
prosecution has been able to establish beyond reasonable doubt that
on the date of incident i.e. 14.12.2020 the victim was below 18 years of
age and thus a “child” within the meaning of the POCSO Act?
12. The victim (PW-01), in her deposition, has specifically stated her
date of birth as 03.04.2004. Her testimony on this aspect is consistent
and has not been shaken in cross-examination. The said assertion finds
substantial corroboration from documentary evidence brought on record
by the prosecution.
13. PW-13 (Head Master), who has produced and proved the original
Dakhil Kharij Register of the school has categorically deposed that the
8 / 36
victim is entered at Serial No. 115, wherein her date of birth is recorded
as 03.04.2004. He has further clarified that the said register is
maintained in the regular course of official duties. In cross-examination,
he admitted that he is the author of the school register and made the
entry of the date of birth of the victim. He voluntarily stated that on the
basis of the list provided by Anganbadi Centre, he made entries in the
school register. He denied that there is no basis for entering the date of
birth of the victim in the school register. Thus, this witness has
supported the twin condition that he is the author of the school register
and stated the basis on which the entries have been made in the school
register.
14. PW-3, the father of the victim, has deposed that the victim is his
daughter and at the time of the incident she was a minor. He has stated
that his daughter was studying in school and was below 18 years of age
on the date of occurrence. He has further stated that though he does
not remember the exact date of birth of the victim, she had not attained
majority at the relevant time. He has also deposed that the police had
obtained documents relating to the age of the victim, including her
school records. In his cross-examination, nothing material has been
elicited to discredit his testimony regarding the minority of the victim.
15. In Jarnail Singh Vs. State of Haryana, reported in (2013) 7
SCC 263, the Hon’ble Supreme Court laid down the guiding principles
for determining the age of a child, which read as follows :
“22. On the issue of determination of age of a minor,
9 / 36one only needs to make a reference to Rule 12 of the
Juvenile Justice (Care and Protection of Children)
Rules, 2007 (hereinafter referred to as the 2007
Rules). The aforestated 2007 Rules have been
framed under Section 68(1) of the Juvenile Justice
(Care and Protection of Children) Act, 2000. Rule 12
referred to hereinabove reads as under :
“12. Procedure to be followed in determination of
Age.? (1) In every case concerning a child or a
juvenile in conflict with law, the court or the Board or
as the case may be the Committee referred to in rule
19 of these rules shall determine the age ofsuch
juvenile or child or a juvenile in conflict with law
within a period of thirty days from the date of making
of the application for that purpose.
(2) The court or the Board or as the case may be the
Committee shall decide the juvenility or otherwise of
the juvenile or the child or as the case may be the
juvenile in conflict with law, prima facie on the basis
of physical appearance or documents, if available,
and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in
conflict with law, the age determination inquiry shall
be conducted by the court or the Board or, as the
case may be, the Committee by seeking evidence by
obtaining –
(a) (i) the matriculation or equivalent certificates, if
available; and in the absence whereof;
(ii) the date of birth certificate from the school(other
than a play school) first attended; and in the absence
whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
10 / 36
(b) and only in the absence of either (i), (ii) or(iii) of
clause (a) above, the medical opinion will be sought
from a duly constituted Medical Board, which will
declare the age of the juvenile or child. In case exact
assessment of the age cannot be done, the Court or
the Board or, as the case may be, the Committee, for
the reasons to be recorded by them, may, if
considered necessary, give benefit to the child or
juvenile by considering his/her age on lower side
within the margin of one year and, while passing
orders in such case shall, after taking into
consideration such evidence as may be available, or
the medical opinion, as the case may be, record a
finding in respect of his age and either of the
evidence specified in any of the clauses (a)(i),(ii), (iii)
or in the absence whereof, clause (b) shall be the
conclusive proof of the age as regards such child or
the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in
conflict with law is found to be below 18 years on the
date of offence, on the basis of any of the conclusive
proof specified in sub- rule (3), the court or the Board
or as the case may be the Committee shall in writing
pass an order stating the age and declaring the
status of juvenility or otherwise, for the purpose of
the Act and these rules and a copy of the order shall
be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or
otherwise is required, inter alia, in terms of
section7A, section 64 of the Act and these rules, no
further inquiry shall be conducted by the court or the
Board after examining and obtaining the certificate or
any other documentary proof referred to in sub-rule
11 / 36(3) of this rule.
(6) The provisions contained in this rule shall also
apply to those disposed off cases, where the status
of juvenility has not been determined in accordance
with the provisions contained in sub- rule(3) and the
Act, requiring dispensation of the sentence under the
Act for passing appropriate order in the interest of the
juvenile in conflict with law.”
23. Even though Rule 12 is strictly applicable only to
determine the age of a child in conflict with law, we
are of the view that the aforesaid statutory provision
should be the basis for determining age, even for a
child who is a victim of crime. For, in our view, there
is hardly any difference in so far as the issue of
minority is concerned, between a child in conflict with
law, and a child who is a victim of crime. Therefore,
in our considered opinion, it would be just and
appropriate to apply Rule 12 of the 2007 Rules, to
determine the age of the prosecutrix VW-PW6. The
manner of determining age conclusively, has been
expressed in sub-rule (3) of Rule 12 extracted above.
Under the aforesaid provision, the age of a child is
ascertained, by adopting the first available basis, out
of a number of options postulated in Rule 12(3). If, in
the scheme of options under Rule 12(3), an option is
expressed in a preceding clause, it has overriding
effect over an option expressed in a subsequent
clause. The highest rated option available, would
conclusively determine the age of a minor. In the
scheme of Rule 12(3),matriculation (or equivalent)
certificate of the concerned child, is the highest rated
option. In case, the said certificate is available, no
other evidence can be relied upon. Only in the
12 / 36
absence of the said certificate, Rule 12(3), envisages
consideration of the date of birth entered, in the
school first attended by the child. In case such an
entry of date of birth is available, the date of birth
depicted therein is liable to be treated as final and
conclusive, and no other material is to be relied
upon. Only in the absence of such entry, Rule12(3)
postulates reliance on a birth certificate issued by a
corporation or a municipal authority or a panchayat.
Yet again, if such a certificate is available, then no
other material whatsoever is to be taken into
consideration, for determining the age of the child
concerned, as the said certificate would conclusively
determine the age of the child. It is only in the
absence of any of the aforesaid, that Rule 12(3)
postulates the determination of age of the concerned
child, on the basis of medical opinion.
24. Following the scheme of Rule 12 of the 2007
Rules, it is apparent that the age of the prosecutrix
VW – PW6 could not be determined on the basis of
the matriculation (or equivalent) certificate as she
had herself deposed, that she had studied upto class
3 only, and thereafter, had left her school and had
started to do household work. The prosecution in the
facts and circumstances of this case, had
endeavoured to establish the age of the prosecutrix
VW-PW6, on the next available basis, in the
sequence of options expressed in Rule 12(3) of the
2007 Rules. The prosecution produced Satpal
(PW4), to prove the age of the prosecutrix VW –
PW6. Satpal (PW4) was the Head Master of the
Government High School, Jathlana, where the
prosecutrix VW – PW6 had studied upto class 3.
13 / 36
Satpal (PW4) had proved the certificate Exhibit-PG,
as having been made on the basis of the school
records indicating, that the prosecutrix VW – PW6,
was born on 15.5.1977. In the scheme contemplated
under Rule 12(3) of the 2007 Rules, it is not
permissible to determine age in any other manner,
and certainly not on the basis of an option mentioned
in a subsequent clause. We are therefore of the view,
that the High Court was fully justified in relying on the
aforesaid basis for establishing the age of the
prosecutrix VW – PW6. It would also be relevant to
mention, that under the scheme of Rule 12 of the
2007 Rules, it would have been improper for the High
Court to rely on any other material including the
ossification test, for determining the age of the
prosecutrix VW-PW6. The deposition of Satpal-PW4
has not been contested. Therefore, the date of birth
of the prosecutrix VW – PW6 (indicated in Exhibit
P.G., as 15.7.1977) assumes finality. Accordingly it is
clear, that the prosecutrix VW-PW6, was less than 15
years old on the date of occurrence, i.e., on
25.3.1993. In the said view of the matter, there is no
room for any doubt that the prosecutrix VW – PW6
was a minor on the date of occurrence. Accordingly,
we hereby endorse the conclusions recorded by the
High Court, that even if the prosecutrix VW-PW6 had
accompanied the accused-appellant Jarnail Singh of
her own free will, and had had consensual sex with
him, the same would have been clearly
inconsequential, as she was a minor.”
16. In view of the foregoing appreciation of oral and documentary
evidence, particularly the testimony of PW-13 (Head Master) and the
entries in the Dakhil Kharij Register reflecting the date of birth of the
14 / 36
victim as 03.04.2004, this Court is of the considered opinion that the
prosecution has successfully established that the victim was below 18
years of age on the date of the incident. Accordingly, she was a “child”
within the meaning of the POCSO Act.
17. The next question which arises for consideration is whether the
prosecution has been able to prove beyond reasonable doubt that the
appellant committed penetrative sexual assault upon the victim?
18. The victim (PW-01), being the victim of the offence, has given a
clear, cogent and categorical account of the incident. She has deposed
that when she was alone in the house, the appellant came there, caught
hold of her, removed her clothes and committed forcible sexual
intercourse. She has further stated that the appellant threatened her not
to disclose the incident. Her testimony is natural, consistent and inspires
confidence. Despite detailed cross-examination, nothing material has
been elicited to discredit her version regarding the commission of
sexual intercourse. The suggestions put by the defence regarding
consent and voluntary conduct have been specifically denied by her.
Her evidence finds corroboration from surrounding circumstances as
well as from the testimony of PW-03 (father), who has deposed
regarding the disappearance of the victim, her subsequent recovery and
the lodging of report.
19. It is a settled principle of law that the testimony of the victim, if
found reliable and trustworthy, is sufficient to base conviction even in
the absence of independent corroboration. In the present case, her
15 / 36
testimony not only inspires confidence but is also corroborated by other
evidence on record. Upon careful scrutiny of the evidence of the victim
(PW-01), which is found to be consistent, cogent and trustworthy, and
duly corroborated by surrounding circumstances and the testimony of
PW-03, this Court is of the considered opinion that the prosecution has
proved that the appellant committed penetrative sexual assault upon the
victim.
20. The next question which arises for consideration is whether the
medical and scientific evidence on record corroborates the version of
the victim and connects the appellant with the crime?
21. The victim was subjected to medical examination and the medical
evidence indicates findings consistent with sexual intercourse. The
doctor has proved the medico-legal report, and nothing has been
elicited in cross-examination to discredit the same. More importantly, the
prosecution has brought on record the FSL/DNA report, which clearly
establishes that the biological samples collected from the victim match
with that of the appellant. The chain of custody of the samples has been
duly proved and remains unchallenged. The DNA evidence provides
strong and conclusive corroboration and directly connects the appellant
with the act of sexual intercourse. In the case of Mukesh and Another
vs. State (NCT of Delhi) and Others, 2017 (6) SCC 1, the Hon’ble
Supreme Court emphasized that DNA evidence is a scientifically
accurate and reliable means of establishing guilt. They have considered
in detail the scientific valuation of the DNA report in paragraphs 211 to
16 / 36
228, which are as under:-
211. DNA is the abbreviation of deoxyribonucleic
acid. It is the basic genetic material in all human
body cells. It is not contained in red blood
corpuscles. It is, however, present in white
corpuscles. It carries the genetic code. DNA
structure determines human character, behaviour
and body characteristics. DNA profiles are
encrypted sets of numbers that reflect aperson’s
DNA makeup which, in forensics, is used to identify
human beings. DNA is a complex molecule. It has a
double helix structure which can be compared with a
twisted rope “ladder”.
212. The nature and characteristics of DNA had
been succinctly explained by Phillips, L.J. in R. v.
Doheny-55, In the above case, the accused were
convicted relying on results obtained by comparing
DNA profiles obtained from a stain left at the scene
of the crime with DNA profiles obtained from a
sample of blood provided by the appellant. In the
above context, with regard to DNA, the following
was stated by Phillips, L.J.:
“Deoxyribonucleic acid, or DNA, consists of
long ribbon-like molecules, the chromosomes,
46 of which lie tightly coiled in nearly every cell
of the body. These chromosomes 23 provided
from the mother and 23 from the father at
conception, form the genetic blueprint of the
body. Different sections of DNA have different
identifiable and discrete characteristics. When
a criminal leaves a stain of blood or semen at
the scene of the crime it may prove possible to
extract from that crime stain sufficient sections
of DNA to enable a comparison to be made
with the same sections extracted from a
sample of blood provided by the suspect. This
process is complex and we could not hope to
describe it more clearly or succintly than did
Lord Taylor, C.J. in Deen86 (transcript: 21-12-
17 / 361993), so we shall gratefully adopt his
description:
“The process of DNA profiling starts with
DNA being extracted from the crime stain and
also from a sample taken from the suspect. In
each case the DNA is cut into smaller lengths
by specific enzymes. The fragments produced
are sorted according to size by a process of
electrophoresis. This involves placing the
fragments in a gel and drawing them
electromagnetically along a track through the
gel. The fragments with smaller molecular
weight travel further than the heavier ones.
The pattern thus created is transferred from
the gel onto a membrane. Radioactive DNA
probes, taken from elsewhere, which bind with
the sequences of most interest in the sample
DNA are then applied. After the excess of the
DNA probe is washed off, an x-ray film is
placed over the membrane to record the band
pattern. This produces an auto-radiograph
which can be photographed. When the crime
stain DNA and the sample DNA from the
suspect have been run in separate tracks
through the gel, the resultant auto-radiographs
can be compared. The two DNA profiles can
then be said either to match or not.’
213. In the United States, in an early case Frye v.
United States87, it was laid down that scientific
evidence is admissible only if the principle on which
it is based is substantially established to have
general acceptance in the field to which it belonged.
The US Supreme Court reversed the above
formulationin Daubert v. Merrell Dow
Pharmaceuticals Inc stating thus: (SCC OnLine US
SC)“Although the Fry decision itself focused
exclusively on “novel” scientific techniques, we
do not read the requirements of Rule 702 to
apply specially or exclusively to
unconventional evidence. Of course, well-
18 / 36
established propositions are less likely to be
challenged than those that are novel and they
are more handily defended. Indeed, theories
that are so firmly established as to have
attained the status of scientific law, such as
the laws of thermodynamics, properly are
subject to judicial notice under Federal Rule of
Evidence 201.
* * *
This is not to say that judicial interpretation,
as opposed to adjudicative fact findine, does
not share basic characteristics of the scientific
endeavor:
‘The work of a Judge is in one sense
enduring and in another ephemeral…. In the
endless process of testing and retesting, there
is a constant rejection of the dross and a
constant retention of whatever is pure and
sound and fine. B. Cardozo, The Nature of the
Judicial Process at pp. 178, 179 (1921).”
214. The principle was summarised by Blackmun,
J., as follows: (Daubert case, SCC OnLine US SC)“To summarise: “general acceptance” is not
a necessary precondition to the admissibility of
scientific evidence under the Federal Rules of
Evidence, but the Rules of Evidence
especially Rule 702-do assign to the trial
Judge the task of ensuring that an expert’s
testimony both rests on a reliable foundation
and is relevant to the task at hand. Pertinent
evidence based on scientifically valid
principles will satisfy those demands.
The inquiries of the District Court and the
Court of Appeals focused almost exclusively
on “general acceptance”, as gauged by
publication and the decisions of other courts.
Accordingly, the judgment of the Court of
Appeals is vacated and the case is remanded
19 / 36
for further proceedings consistent with this
opinion.”
After the above judgment, the DNA Test has
been frequently applied in the United States of
America.
215. In District Attorney’s Office for the Third Judicial
District v. Osborne89, Roberts, C.J. of the Supreme
Court of United States, while referring to the DNA
test, stated as follows: (SCC OnLine US SC)
“DNA testing has an unparalleled ability both
to exonerate the wrongly convicted and to
identify the guilty. It has the potential to
significantly improve both the criminal justice
system and police investigative practices.The
Federal Government and the States have
recognised this, and have developed special
approaches to ensure that this evidentiary tool
can be effectively incorporated into
established criminal procedure usually but not
always through legislation.
* * *
Modern DNA testing can provide powerful
new evidence unlike anything known before.
Since its first use in criminal investigations in
the mid-1980s, there have been several major
advances in DNA technology, culminating in
STR technology. It is now often possible to
determine whether a biological tissue matches
a suspect with near certainty. While of course
many criminal trials proceed without any
forensic and scientific testing at all, there is no
technology comparable to DNA testing for
matching tissues when such evidence is at
issue.”
216. DNA technology as a part of Forensic Science
and scientific discipline not only provides guidance
to investigation but also supplies the court accrued
information about the tending features of
identification of criminals. The recent advancement
20 / 36
in modern biological research has regularised
Forensic Science resulting in radical help in the
administration of justice. In our country also like
several other developed and developing countries,
DNA evidence is being increasingly relied upon by
courts. After the amendment in the Criminal
Procedure Code by the insertion of Section 53-A by
Act 25 of 2005, DNA profiling has now become a
part of the statutory scheme. Section 53-A relates to
the examination of a person accused of rape by a
medical practitioner.
217. Similarly, under Section 164-A inserted by Act
25 of 2005, for medical examination of the victim of
rape, the description of material taken from the
person of the woman for DNA profiling is a must.
Section 53-A sub-section (2) as well as Section 164-
A sub-section (2) are to the following effect:
“53-A. Examination of person accused of
rape by medical practitioner.- (1)(2) The registered medical practitioner
conducting such examination shall, without
delay, examine such person and prepare a
report of his examination giving the following
particulars, namely-
(i) the name and address of the accused
and of the person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of
the accused,
(iv) the description of material taken from
the person of the accused for DNA profiling,
and
(v) other material particulars in reasonable
detail.
* * *
164-A. Medical examination of the victim of
rape- (1) * * *
21 / 36(2) The registered medical practitioner, to
whom such woman is sent, shall, without
delay, examine her person and prepare a
report of his examination giving the following
particulars, namely –
(i) the name and address of the woman
and of the person by whom she was brought;
(ii) the age of the woman;
(iii) the description of material taken from the
person of the woman for DNA profiling:
(iv) marks of injury, if any, on the person of
the woman;
(v) general mental condition of the woman;
and
(vi) other material particulars in reasonable
detail”
218. This Court had the occasion to consider
various aspects of DNA profiling and DNA reports.
K.T. Thomas, J. in Kamti Devi v. Poshi Ram%
observed: (SCC p. 316, para 10)“10. We may remember that Section 112 of
the Evidence Act was enacted at a time when
the modern scientific advancements with
deoxyribonucleic acid (DNA) as well as
ribonucleic acid (RNA) tests were not even in
contemplation of the legislature. The result of
a genuine DNA test is said to be scientifically
accurate….”
219. In Pantangi Balarama Venkata Ganesh v. State
of A.P.91, a two-Judge Bench had explained as to
what is DNA in the following manner: (SCC pp. 617-
18, paras 41-42)
“41. Submission of Mr Sachar that the
report of DNA should not be relied upon,
cannot be accepted. What is DNA? It means:
22 / 36
Deoxyribonucleic acid, which is found in
the chromosomes of the cells of living beings
is the blueprint of an individual. DNA decides
the characteristics of the person such as the
colour of the skin, type of hair, nails and so on.
Using this genetic fingerprinting, identification
of an individual is done like in the traditional
method of identifying fingerprints of offenders.
The identification is hundred per cent precise,
experts opine.”
There cannot be any doubt whatsoever that there is
a need of quality control. Precautions are required to
be taken to ensure preparation of high molecular
weight DNA, complete digestion of the samples with
appropriate enzymes, and perfect transfer and
hybridization of the blot to obtain distinct bands with
appropriate control. (See article of Lalji Singh,
Centre for Cellular and Molecular Biology,
Hyderabad in DNA profiling and its applications.) But
in this case there is nothing to show that such
precautions were not taken.
42. Indisputably, the evidence of the experts
is admissible in evidence in terms of Section
45 of the Evidence Act, 1872. In cross-
examination, PW 46 had stated as under:
‘If the DNA fingerprint of a person matches
with that of a sample, it means that the sample
has come from that person only. The
probability of two persons except identical
twins having the same DNA fingerprint is
around 1 in 30 billion world population.” ”
220. In Santosh Kumar Singh v. State2, which was a
case of a young girl who was raped and murdered,
the DNA reports were relied upon by the High Court
which were approved by this Court and it was held
thus: (Santosh Kumar case2, SCC p. 772, para 71)“71. We feel that the trial court was not
justified in rejecting the DNA report, as nothing
adverse could be pointed out against the two
experts who had submitted it. We must,
23 / 36therefore, accept the DNA report as being
scientifically accurate and an exact science as
held by this Court in Kamti Devi v. Poshi Ram.
In arriving at its conclusions the trial court was
also influenced by the fact that the semen
swabs and slides and the blood samples of
the appellant had not been kept in proper
custody and had been tampered with, as
already indicated above. We are of the opinion
that the trial court was in error on this score.
We, accordingly, endorse the conclusions of
the High Court on Circumstance 9.”
221. In Inspector of Police v. John David94, a young
boy studying in MBBS course was brutally murdered
by his senior. The torso and head were recovered
from different places which were identified by the
father of the deceased. For confirming the said
facts, the blood samples of the father and mother of
the deceased were taken which were subjected to
DNA test. From the DNA, the identification of the
deceased was proved. Para 60 of the decision is
reproduced below: (SCC p. 528)
“60. The said fact was also proved from the
DNA test conducted by PW 77. PW 77 had
compared the tissues taken from the severed
head, torso and limbs and on scientific
analysis he has found that the same gene
found in the blood of PW 1 and Baby
Ponnusamy was found in the recovered parts
of the body and that therefore they should
belong to the only missing son of PW 1.”
222. In Krishan Kumar Malik v. State of Harvana95,
in a gang rape case when the prosecution did not
conduct DNA test or analysis and matching of
semen of the appellant-accused with that found on
the undergarments of the CrPC, it has become
necessary for the prosecution to go in for DNA test
in prosecutrix, this Court held that after the
incorporation of Section 53-A in such type of cases.
The relevant paragraph is reproduced below: (SCC
p. 140. para 44)
24 / 36
“44. Now, after the incorporation of Section
53-A in the Criminal Procedure Code w.e.f 23-
6-2006, brought to our notice by the learned
counsel for the respondent State, it has
become necessary for the prosecution to go in
for DNA test in such type of cases, facilitating
the prosecution to prove its case against the
accused. Prior to 2006, even without the
aforesaid specific provision in CrPC the
prosecution could have still restored to this
procedure of getting the DNA test or analysis
and matching of semen of the appellant with
that found on the undergarments of the
prosecutrix to make it a foolproof case, but
they did not do so, thus they must face the
consequences.
223. In Surendra Koli v. State of U.P.9%, the
appellant, a serial killer, was awarded death
sentence which was confirmed by the High Court.
While confirming the death sentence, this Court
relied on the result of the DNA test conducted on the
part of the body of the deceased girl. Para 12 is
reproduced below: (Surendra Koli case%, SCC p.
84)
“12. The DNA test of Rimpa by CDFD, a
pioneer institute in Hyderabad matched with
that of blood of her parents and brother. The
doctors at AIIMS have put the parts of the
deceased girls which have been recovered by
the doctors of AIIMS together. These bodies
have been recovered in the presence of the
doctors of AIIMS at the pointing out by the
accused Surendra Koli. Thus, recovery is
admissible under Section 27 of the Evidence
Act.”
224. In Mohd. Ajmal Amir Kasab v. State of
Maharashtra98, the accused was awarded death
sentence on charges of killing large number of
innocent persons on 26-11-2008 at Bombay. The
accused with others had come from Pakistan using
a boat “Kuber” and several articles were recovered
25 / 36
from “Kuber”. The stains of sweat, saliva and other
bodily secretions on those articles were subjected to
DNA test and the DNA test matched with several
accused The Court observed: (SCC p. 125, para
333)”
333. It is seen above that among the
articles recovered from Kuber were a number
of blankets, shawis and many other items of
clothing. The stains of sweat, saliva and other
bodily secretions on those articles were
subjected to DNA profiling and, excepting
Imran Babar (deceased Accused 2). Abdul
Rahman Bada (deceased Accused 5),
Fahadullah (deceased Accused 7) and Shoaib
(deceased Accused 9), the rest of six accused
were connected with various articles found
and recovered from Kuber. The appellant’s
DNA matched the DNA profile from a sweat
stain detected on one of the jackets. A chart
showing the matching of the DNA of the
different accused with DNA profiles from stains
on different articles found and recovered from
the Kuber is annexed at the end of the
judgment as Schedule III.”
225. In Sandeep v. State of U.P.99, the facts related
to the murder of pregnant paramour/girlfriend and
unborn child of the accused. The DNA report
confirmed that the appellant was the father of the
unborn child. The Court, relying on the DNA report,
stated as follows: (SCC p. 133, para 67)
“67. In the light of the said expert evidence
of the Junior Scientific Officer it is too late in
the day for the appellant Sandeep to contend
that improper preservation of the foetus would
have resulted in a wrong report to the effect
that the accused Sandeep was found to be the
biological father of the foetus received from
the deceased Jyoti. As the said submission is
not supported by any relevant material on
record and as the appellant was not able to
substantiate the said argument with any other
26 / 36
supporting material, we do not find any
substance in the said submission. The
circumstance, namely, the report of DNA in
having concluded that accused Sandeep was
the biological father of the recovered foetus of
Jyoti was one other relevant circumstance to
prove the guilt of the said accused.”
226. In Rajkumar v. State of M.P. 100, the Court was
dealing with a case of rape and murder of a 14-year-
old girl. The DNA report established the presence of
semen of the appellant in the vaginal swab of the
prosecutrix. The conviction was recorded relying on
the DNA report. In the said context, the following
was stated: (SCC pp. 357-58, para 8)
“8. The deceased was 14 years of age and
a student in VIth standard which was proved
from the school register and the statement of
her father Iknis Jojo (PW1). Her age has also
been mentioned in the FIR as 14 years. So far
as medical evidence is concerned, it was
mentioned that the deceased prosecutrix was
about 16 years of age. So far as the analysis
report of the material sent and the DNA report
is concerned, it revealed that semen of the
appellant was found on the vaginal swab of
the deceased. The clothesof the deceased
were also found having the appellant’s semen
spots. The hair which were found near the
place of occurrence were found to be that of
the appellant.”
228. From the aforesaid authorities, it is quite clear
that DNA report deserves to be accepted unless it is
absolutely dented and for non-acceptance of the
same, it is to be established that there had been no
quality control or qualityassurance. If the sampling is
proper and if there is no evidence as to tampering of
samples, the DNA test report is to be accepted.”
22. In light of the medical evidence and the FSL/DNA report, which
conclusively establishes that the biological samples of the victim match
27 / 36
with that of the appellant, this Court is of the considered opinion that the
scientific and medical evidence fully corroborates the prosecution case
and firmly connects the appellant with the commission of the offence.
23. The next question which arises for consideration is whether the
plea of consent raised by the defence has any legal relevance in the
facts of the present case?
24. In view of the finding recorded under Point No. 1, the victim was a
minor at the time of the incident. Under the provisions of the POCSO
Act, consent of a minor is legally immaterial. Even otherwise, the victim
has categorically stated that the act was committed against her will.
Thus, the plea of consent raised by the defence is devoid of merit and
deserves to be rejected.
25. The final question which arises for consideration is whether the
prosecution has succeeded in proving the guilt of the appellant beyond
reasonable doubt so as to sustain the conviction recorded by the
learned trial Court?
26. The prosecution case stands firmly established on the basis of the
reliable and cogent testimony of the victim (PW-01), Corroborative
evidence of PW-03, Documentary proof of age through the Dakhil Kharij
Register, Medical evidence, and Conclusive DNA/FSL report. The chain
of evidence is complete and consistent, and there are no material
contradictions or discrepancies going to the root of the matter.
27. Considering the cumulative effect of the reliable testimony of the
victim, corroborative evidence of other witnesses, documentary proof of
28 / 36
age, and conclusive scientific evidence, this Court is of the considered
opinion that the prosecution has successfully proved its case beyond
reasonable doubt against the appellant, and no ground is made out to
interfere with the findings recorded by the learned trial Court.
28. The offence under Section 3 (2) (v) of the Atrocities Act, 1989,
also stands proved by the prosecution on the ground that the victim
belongs to the Schedule Tribe community. The social status certificate
of the victim (Ex. P/32C) has not been challenged by the defence.
Further, the victim, PW-1, has specifically deposed in para 1 of her
deposition that she belongs to the Scheduled Tribe community, and the
appellant knew the said fact. Section 3(2)(v) of the Atrocities Act, 1989,
provides that whoever, not being a member of a Scheduled Caste or
Scheduled Tribe, commits any offence under the IPC, with
imprisonment for a term of ten years or more against a person knowing
that such person is a member of a Scheduled Caste or Scheduled
Tribe, shall be punishable with imprisonment for life and with fine. In the
present case, the appellant knowingly committed the offence that the
victim belongs to a Scheduled Tribe and committed the offence of rape
upon her, for which he is sentenced to Life imprisonment. Therefore,
his conviction and sentence under Section 3 (2) (v) of the Atrocities Act,
1989, are also found justified.
29. Having thus appreciated the entire evidence on record and
answered the points for determination in favour of the prosecution, this
Court now proceeds to examine the legal position governing reliance on
29 / 36
the testimony of the prosecutrix in cases of sexual assault.
30. In the Indian society refusal to act on the testimony of the victim of
sexual assault 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 had ever occurred. She would be
conscious of the danger of being ostracized by the society and when in
the face of these factors the crime is brought to light, there is 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 sex offence is
entitled to great weight, absence of corroboration notwithstanding. A
woman or a girl who is raped is not an accomplice. Corroboration is not
the sine qua non for conviction in a rape case. The observations of
Vivian Bose, J. in Rameshwar v. The State of Rajasthan, reported in
(AIR 1952 SC 54) were:
“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
where the circumstances make it safe to dispense
with it, must be present to the mind of the judge….”
31. Crime against women in general and rape in particular is on the
30 / 36
increase. It is an irony that while we are celebrating women’s rights in all
spheres, we show little or no concern for her honour. It is a sad
reflection on the attitude of indifference of the society towards the
violation of human dignity of the victims of sex crimes. We must
remember that a rapist not only violates the victim’s privacy and
personal integrity, but inevitably causes serious psychological as well as
physical harm in the process. Rape is not merely a physical assault – it
is often destructive of the whole personality of the victim. A murderer
destroys the physical body of his victim, a rapist degrades the very soul
of the helpless female. The Court, therefore, shoulders a great
responsibility while trying an accused on charges of rape. They must
deal with such cases with utmost sensitivity. The Courts should examine
the broader probabilities of a case and not get swayed by minor
contradictions or insignificant discrepancies in the statement of the
victim, which are not of a fatal nature, to throw out an otherwise reliable
prosecution case. If evidence of the victim inspires confidence, it must
be relied upon without seeking corroboration of her statement in
material particulars. If for some reason the Court finds it difficult to place
implicit reliance on her testimony, it may look for evidence which may
lend assurance to her testimony, short of corroboration required in the
case of an accomplice. The testimony of the victim must be appreciated
in the background of the entire case and the trial Court must be alive to
its responsibility and be sensitive while dealing with cases involving
sexual molestation. This position was highlighted in State of Punjab v.
Gurmeet Singh, reported in (1996) 2 SCC 384.
31 / 36
32. A victim of a sex offence cannot be put on par with an accomplice.
She is in fact a victim of the crime. The Evidence Act nowhere says that
her evidence cannot be accepted unless it is corroborated in material
particulars. She is undoubtedly a competent witness under Section 118
and her evidence must receive the same weight as is attached to an
injured in cases of physical violence. The same degree of care and
caution must attach in the evaluation of her evidence as in the case of
an injured complainant or witness and no more. What is necessary is
that the Court must be conscious of the fact that it is dealing with the
evidence of a person who is interested in the outcome of the charge
levelled by her. If the Court keeps this in mind and feels satisfied that it
can act on the evidence of the victim. There is no rule of law or practice
incorporated in the Indian Evidence Act, 1872 (in short ‘Evidence Act‘)
similar to illustration (b) to Section 114 which requires it to look for
corroboration. If for some reason the Court is hesitant to place implicit
reliance on the testimony of the victim it may look for evidence which
may lend assurance to her testimony short of corroboration required in
the case of an accomplice. The nature of evidence required to lend
assurance to the testimony of the victim must necessarily depend on
the facts and circumstances of each case. But, if a victim is an adult and
of full understanding the Court is entitled to base a conviction on her
evidence unless the same is own to be infirm and not trustworthy. If the
totality of the circumstances appearing on the record of the case
discloses that the victim does not have a strong motive to falsely involve
the person charged, the Court should ordinarily have no hesitation in
32 / 36
accepting her evidence.
33. The Hon’ble Supreme Court in the matter of Ranjit Hazarika v.
State of Assam, reported in AIR 1998 SC 635 has held that the
evidence of a victim of sexual assault stands almost on a par with the
evidence of an injured witness and to an extent is even more reliable. It
must not be overlooked that a woman or a girl subjected to sexual
assault is not an accomplice to the crime, but is a victim of another
person’s lust and it is improper and undesirable to test her evidence
with a certain amount of suspicion, treating her as if she were an
accomplice.
34. The Hon’ble Supreme Court in the matter of Rai Sandeep @
Deenu v. State of NCT of Delhi, reported in (2012) 8 SCC 21 held as
under:-
“In our considered opinion, the ‘sterling witness’
should be of a very high quality and caliber whose
version should, therefore, be unassailable. The Court
considering the version of such witness should be in a
position to accept it for its face value without any
hesitation. To test the quality of such a witness, the
status of the witness would be immaterial and what
would be relevant is the truthfulness of the statement
made by such a witness. What would be more
relevant would be the consistency of the statement
right from the starting point till the end, namely, at the
33 / 36time when the witness makes the initial statement and
ultimately before the Court. It should be natural and
consistent with the case of the prosecution qua the
accused. There should not be any prevarication in the
version of such a witness. The witness should be in a
position to withstand the cross-examination of any
length and howsoever strenuous it may be and under
no circumstance should give room for any doubt as to
the factum of the occurrence, the persons involved, as
well as, the sequence of it. Such a version should
have co-relation with each and everyone of other
supporting material such as the recoveries made, the
weapons used, the manner of offence committed, the
scientific evidence and the expert opinion. The said
version should consistently match with the version of
every other witness. It can even be stated that it
should be akin to the test applied in the case of
circumstantial evidence where there should not be any
missing link in the chain of circumstances to hold the
accused guilty of the offence alleged against him.
Only if the version of such a witness qualifies the
above test as well as all other similar such tests to be
applied, it can be held that such a witness can be
called as a ‘sterling witness’ whose version can be
accepted by the Court without any corroboration and
34 / 36based on which the guilty can be punished. To be
more precise, the version of the said witness on the
core spectrum of the crime should remain intact while
all other attendant materials, namely, oral,
documentary and material objects should match the
said version in material particulars in order to enable
the Court trying the offence to rely on the core version
to sieve the other supporting materials for holding the
offender guilty of the charge alleged.”
35. As per the statement of the victim (PW-1), she has categorically
deposed that she knew the accused as he was related to her
acquaintance and thus identifiable. She has specifically stated that on
the date of incident, when she had gone to the house of her friend, the
accused found her alone, caught hold of her, gagged her mouth and
forcibly committed sexual intercourse with her against her will. She has
further stated that the accused threatened her not to disclose the
incident to anyone and assured her that he would marry her.
36. Considering the aforesaid facts and circumstances of the case,
particularly the evidence of the victim (PW-1), which inspires confidence
and remains consistent on material particulars, coupled with the
evidence of her father (PW-3), who has deposed regarding the missing
of the victim and lodging of report, and other supporting witnesses, it is
evident that the prosecution version stands duly corroborated. The
medical evidence adduced by the prosecution, along with the report of
35 / 36
the medical officer, further lends assurance to the version of the
prosecutrix. It is also borne out from the record that the victim was a
minor at the time of incident, which stands proved from the
documentary evidence i.e. school records and dakhil-kharij register,
wherein her date of birth is recorded as 03.04.2004. The said
documentary evidence has been duly proved by the concerned witness
and remains unshaken in cross-examination.
37. The medical officer who examined the victim and prepared the
MLC report has supported the prosecution case, and it is quite clear
from the documentary as well as oral evidence available on record that
the accused committed forcible sexual intercourse with the victim. The
conduct of the accused in threatening the victim further establishes
absence of consent. The prosecution has thus been successful in
proving beyond reasonable doubt that on the date of the incident, the
victim was below 18 years of age and the accused committed
penetrative sexual assault upon her. Thus, this Court comes to the
conclusion that the prosecution has succeeded in proving its case
beyond all reasonable doubts against the appellant. The conviction and
sentenced as awarded by the trial Court is hereby upheld. The present
appeal lacks merit and is accordingly dismissed.
38. It is stated at the Bar that the appellant is in jail. He shall serve out
the sentence as ordered by the trial Court.
39. Registry is directed to send a copy of this judgment to the
concerned Superintendent of Jail where the appellant is undergoing his
36 / 36
jail sentence to serve the same on the appellant informing him that he is
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 record be transmitted
to the trial Court concerned forthwith for necessary information and
compliance.
SD/- SD/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
ashu
