Orissa High Court
Vishal Som vs State Of Odisha on 25 June, 2026
Author: Sanjeeb K Panigrahi
Bench: Sanjeeb K Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT,
CUTTACK
Date: 08-Jul-2026 17:14:15
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.805 of 2023
(In the matter of an appeal under Section 415 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 (BNSS).)
Vishal Som .... Appellant (s)
-versus-
State of Odisha .... Respondent (s)
Advocates appeared in this case through Hybrid Arrangement Mode:
For Appellant(s) : Ms. Ananya Mishra, Adv.
Ms. Diptirekha Nanda, Adv.
For Opp. Party(s) : Mr. Sonak Mishra, ASC
CORAM:
DR. JUSTICE SANJEEB K PANIGRAHI
DATE OF HEARING: -21.05.2026
DATE OF JUDGMENT: -25.06.2026
Dr. Sanjeeb K Panigrahi, J.
1. The appellant is challenging the Judgment of Conviction and Order of
Sentence dated 22.03.2023 passed by the learned Additional District
and Sessions Judge-cum-Special Court under the POCSO Act,
Jharsuguda, in C.T. (Special) Case No. 62 of 2020, arising out of
Jharsuguda P.S. Case No. 485 dated 07.07.2020.
I. FACTUAL MATRIX:
2. The prosecution case, in brief, is that in the year 2017, while the victim
was visiting the house of her maternal uncle at Jharsuguda, the
appellant gave her his mobile phone number, whereafter they started
talking to each other over the phone.
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3. It is alleged that in March, 2019, the appellant came to the victim’s
house at Sundargarh in the absence of her parents and established
physical relations with her. It is further alleged that the appellant
videographed the act without the victim’s knowledge and thereafter
started threatening her that he would circulate the videos and
photographs unless she met him.
4. The victim is stated to have disclosed the aforesaid facts to her mother
on 06.07.2020, whereafter her mother lodged the F.I.R. on 07.07.2020
against the appellant.
5. Upon completion of investigation and filing of charge-sheet, charges
were framed, and the prosecution examined 12 witnesses in support
of its case. P.Ws.1, 2, 5, 11 and 12 are seizure witnesses; P.W.3 is the
informant; the victim has been examined as P.W.4; and P.Ws.6 and 7
are the medical officers who examined the victim and the appellant.
6. The defence pleaded denial and false implication and, in support
thereof, examined two witnesses.
7. Upon conclusion of the trial, the learned Trial Court convicted the
appellant under Section 376(1) IPC, Section 4(1) of the POCSO Act,
and Section 506 IPC, and sentenced him to undergo rigorous
imprisonment for 10 years with fine of Rs.25,000/-, and in default,
further rigorous imprisonment for one year under Section 376(1) IPC
and Section 4(1) of the POCSO Act, and rigorous imprisonment for 3
years with fine of Rs.3,000/-, and in default, further rigorous
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imprisonment for 6 months under Section 506 IPC, directing all
sentences to run concurrently.
8. The present appeal is directed against the judgment of conviction and
order of sentence dated 22.03.2023 passed by the learned Additional
District and Sessions Judge-cum-Special Court under the POCSO Act,
Jharsuguda in C.T. (Special) Case No.62 of 2020.
II. SUBMISSIONS OF THE APPELLANT:
9. Learned counsel for the Appellant made the following submissions in
support of his contentions:
i. The appellant submitted that the F.I.R. was lodged after due
deliberation and confabulation after a delay of one year and four
months, which raises a significant possibility of exaggeration,
embellishment and colourful version and is as such fatal to the
prosecution case.
ii. The appellant submitted that the informant P.W.3 (mother of the
victim) has stated that the victim P.W.4 was in a frustrated mind and,
on her enquiry, disclosed the facts to her on 06.06.2020. It is highly
suspicious as to how P.W.4 never appeared frustrated and never
disclosed the facts to her mother or anyone else prior to this date for a
period of one year and four months, even though the victim and her
mother reside jointly in the same house.
iii. The appellant submitted that instead of any original documentary
evidence as provided under Section 94(2) of the JJ Act, 2015, the
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Date: 08-Jul-2026 17:14:15learned Trial Court has erroneously relied upon inadmissible
evidence such as the Aadhaar card of the victim and a photocopy of a
document purporting to be the date of birth certificate granted in the
year 2008, i.e., 6 years after the date of birth recorded therein, in order
to determine her age as 16 years and 7 months on the date of
occurrence.
iv. The appellant submitted that the I.O.s (P.W.s 10 and 11) have not
taken any pains to visit the victim’s school and no date of birth
certificate/matriculation certificate has been seized by the I.O.s or
called for from the concerned examination board by the learned Trial
Court at any stage during trial in order to determine the age of the
victim in accordance with Section 94(2)(i) of the Juvenile Justice Act,
2015, and that the concerned school authorities have also not been
examined in the case.
v. The appellant submitted that as necessitated under Section 94(2)(ii) of
the Juvenile Justice Act, 2015, the original birth certificate issued by
the Municipality was never seized by the I.O. nor called for by the
learned Trial Court from the concerned Municipality that granted it,
and consequently the original date of birth certificate has neither been
brought in evidence nor marked as exhibit or duly proved in Court by
the prosecution, and instead the learned Trial Court has relied upon a
photocopy of the date of birth certificate.
vi. The appellant submitted that as per Section 62 of the Indian Evidence
Act, 1872, the primary evidence of a document is the document itself
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Date: 08-Jul-2026 17:14:15produced for the inspection of the Court, and that a photocopy of a
document is not admissible in evidence unless it is proved that the
original is destroyed or lost or under circumstances delineated under
Section 65 of the Evidence Act, which further provides that even in
case of a public document, only a certified copy and no other kind of
secondary evidence is admissible, and hence the learned Trial Court
has grossly erred in relying upon a photocopy of the date of birth
certificate, which is inadmissible in evidence and is additionally not
free from the suspicion of having been manufactured or manipulated.
vii. The appellant submitted that the Aadhaar card is not proof of age as
per Section 94(2) of the Juvenile Justice Act, 2015 and is not admissible
in evidence for the purpose of determination of age, and the learned
Trial Court has erred in relying upon the same.
viii. The appellant submitted that Section 94(2)(iii) of the Juvenile Justice
Act, 2015 lays down that in the absence of a date of birth certificate
from the school or a matriculation certificate obtained from the Board
of Examination or a date of birth certificate granted by a Corporation,
Municipal Authority or a Panchayat, the age shall be determined by
ossification test or any other latest medical age determination test, and
in the present case P.W.6, the medical officer who examined the
victim, had duly conducted the necessary bone ossification test, and
according to the medical report as well as the deposition of P.W.6, the
X-ray plates show that the age of the victim is 18-19 years, which as
per the statutory provision is conclusive proof of her age, and this
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Date: 08-Jul-2026 17:14:15indicates that the victim was not a minor below 18 years of age and
therefore the provisions of the POCSO Act are not attracted in the
present case.
ix. The appellant submitted that the medical evidence in the present case
shows that the victim is a major girl and that there is no other injury
on her except an old healed hymenal tear, and there is no evidence to
correlate the age of the injury to the date of the alleged occurrence,
nor is there any other medical or serological evidence to connect the
appellant to the alleged offences.
x. It is further submitted that as per her own deposition and statement
under Section 164 Cr.P.C., the victim was not just acquainted with the
appellant but was also in contact with certain other men during the
same period, with whom she used to make TikTok videos, and there
was also a marriage proposal which did not materialize.
xi. The appellant further submitted that it is the prosecution’s version
that the appellant and the victim were regularly in touch and talking
to each other over phone since 2017 and that in March, 2019 the
appellant came to the victim’s house at Sundargarh and established
physical relations with her against her wish, and it is inconceivable as
to how the appellant became aware of the victim’s address at
Sundargarh and the fact that her parents would be absent on that day
unless he was invited by the victim herself, and it is further submitted
that it is even more unbelievable that he was able to set up the
paraphernalia to videograph the incident in the victim’s house
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Date: 08-Jul-2026 17:14:15without her knowledge, and the fact that the victim did not struggle
or raise hue and cry and did not inform anybody including her
parents about the incident indicates that if at all any such incident
took place, it was voluntary and consensual.
xii. The appellant submitted that in the light of the conclusive medical
evidence proving that the victim was an adult of 18-19 years and the
conduct of the victim suggesting a consensual relationship rather than
forcible rape, the conviction of the appellant under Section 4(1) of the
POCSO Act as well as under Section 376(1) IPC must fail.
xiii. The appellant submitted that the alleged objectionable videos and
photographs were never found anywhere nor has anyone deposed to
have seen them, and the forensic examination also did not disclose the
existence of any such objectionable material, and on this basis the
learned Trial Court rightly acquitted the appellant of the charges
under Section 354C IPC and Section 66E of the IT Act, 2000. Although
the learned Trial Court held that the allegations of videography of
intimate acts without consent were not proved, yet the appellant has
been wrongly convicted under Section 506 IPC for allegedly
threatening the victim of circulating such videos/photographs, and it
further submitted that since the learned Trial Court itself has held that
the entire allegation of videography is doubtful, the allegation of
threats based on such videos/photographs ought also to have been
held not proved and therefore the conviction of the appellant under
Section 506 IPC is liable to be set aside.
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Date: 08-Jul-2026 17:14:15xiv. The appellant submitted that the learned Trial Court should not have
based the conviction on the sole testimony of the prosecutrix and
should not have considered her a sterling witness in the light of
glaring inconsistencies and discrepancies in her evidence.
xv. It was submitted that the appellant is an innocent and law-abiding
man with no complicity in the alleged incident. He was a young man
of 24 years at the time of judgment and has been in custody for about
5 years and 10 months till date, which has robbed him of a normal life
and livelihood. Hence, it is prayed on behalf of the appellant that the
appeal be allowed and the judgment and order of conviction passed
by the learned Trial Court be set aside by this Court.
III. SUBMISSIONS OF THE RESPONDENT:
10.Per contra, learned counsel for the Respondent made the following
submissions in support of his contentions:
i. The present appeal is liable to be rejected, as the learned Trial Court
has passed a well-reasoned judgment dated 22.03.2023 after proper
appreciation of the oral, documentary, and medical evidence available
on record, and the same does not call for any interference by this
Court.
ii. The victim/prosecutrix (P.W. 4), has clearly deposed that in the year
2017, the Appellant came in contact with her at Jharsuguda, gave his
mobile number, and thereafter remained in contact with her over
phone. She has further deposed that the Appellant came in contact
with her in 2017, remained in touch over phone, and in March, 2019
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Date: 08-Jul-2026 17:14:15came to her rented house at Sundargarh in absence of her mother and
committed rape upon her. She has further stated that the Appellant
videographed/took photographs without her knowledge and
thereafter threatened to circulate the same in social media if she did
not meet him. Her evidence on the core allegation of rape/penetrative
sexual assault remained intact in cross-examination.
iii. The evidence of P.W.4 also receives support from Dr. Rita Maxima
Barla, P.W.6, who examined the victim on 08.07.2020 and found an old
healed hymenal tear suggesting sexual intercourse. Further, Dr.
Prafulla Chandra Dalai, P.W.7, opined that the Appellant was capable
of committing sexual intercourse. Thus, the evidence of P.W.4,
supported by P.W.3, P.W.6 and P.W.7, proves penetration and
satisfies the ingredients of Section 375 IPC, Section 376(1) IPC and
Section 4(1) of the POCSO Act.
iv. There is no case of the defence that the victim was the wife of the
Appellant. Therefore, the exception relating to marital relationship
under Section 375 IPC has no application to the present case. The
victim was a minor girl aged about 16 years and 7 months at the time
of occurrence, and the Appellant was not her husband.
v. The Appellant submits that the conviction cannot be sustained
because it rests primarily on the solitary oral testimony of the
prosecutrix (P.W.4) and that the medical evidence does not show
active signs of recent physical violence. This argument misinterprets
the law relating to sexual offences, as a prosecutrix is not an
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Date: 08-Jul-2026 17:14:15accomplice, she is a victim of a sexual offence, and her testimony
stands on a higher pedestal than that of an ordinary witness. If her
statement is clear, cogent, natural, and inspires judicial confidence, it
is sufficient to sustain a conviction without independent
corroboration. In the present case, the testimony of the victim has
remained unshaken through cross-examination. Further, her evidence
is corroborated by (i) the testimony of her mother (P.W.3), (ii) her
statement recorded under Section 164 Cr.P.C., and (iii) the medical
evidence of Dr. Rita Maxima Barla (P.W.6), who noticed an old healed
hymenal tear at the 5 o’clock position, indicating sexual intercourse
consistent with the prosecution case.
vi. Reliance was placed on Ganesan v. State1, State of Punjab v.
Raghubir Singh2 and State of Punjab v. Gurmit Singh3 to assert that
conviction can be based on the sole testimony of the prosecutrix,
provided it is found to be reliable, trustworthy, and inspires
confidence, and that no independent corroboration is necessary in
such cases. It was submitted that the aforesaid judgments are
applicable to the present case, as the evidence of the
victim/prosecutrix (P.W.4) inspires confidence and clearly proves the
core allegation against the appellant. Her testimony is further
supported by the evidence of her mother (P.W.3) and the medical
evidence of Dr. Rita Maxima Barla (P.W.6). Therefore, seeking further
1
(2020) 10 SCC 573.
2
(1991) 2 SCC 622.
3
(1996) 2 SCC 384.
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corroboration as a condition for sustaining conviction would be
contrary to the settled law.
vii. The Appellant has taken a ground that the victim was a grown-up
girl, did not raise alarm, did not struggle and did not attempt to
escape, and therefore the prosecution case is improbable. The said
contention is wholly misconceived, as the victim was below 18 years
of age at the time of occurrence. Since she was a minor, her alleged
conduct, maturity, absence of resistance or consent cannot dilute the
offence under the POCSO Act or Section 375 IPC.
viii. The victim/P.W.4 has clearly stated that the appellant committed rape
upon her in March, 2019 and thereafter threatened to circulate her
video/photos on social media. Her evidence is supported by P.W.3
and the medical evidence of P.W.6. Therefore, the defence plea of
improbability/consent is legally unsustainable, and the learned Trial
Court has rightly convicted the appellant under Section 376(1) IPC
and Section 4(1) of the POCSO Act.
ix. The Appellant has taken a ground that although the occurrence is of
March, 2019, the victim disclosed the incident to her mother only on
06.07.2020 and the FIR was lodged on 07.07.2020. The said ground is
liable to be rejected, as P.W.4 has clearly stated that after committing
rape, the appellant threatened to circulate her video/photos on social
media if she did not meet him. P.W.3 has also stated that the victim
was in frustration and, upon inquiry, disclosed the incident to her on
06.07.2020, whereafter the FIR was lodged as Ext.4. Thus, the delay is
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satisfactorily explained by threat, fear, trauma and mental pressure.
The same evidence also proves the offence under Section 506 IPC. The
threat to circulate the victim’s video/photos was not a casual or empty
statement, but a real threat to her dignity and reputation, which
caused fear and alarm in her mind. Even though the learned Trial
Court has acquitted the appellant under Section 354(C) IPC and
Section 66-E of the I.T. Act, the evidence regarding video/photos and
threat remains relevant for appreciating the conduct of the appellant,
explaining the delay, and sustaining the conviction under Section 506
IPC. Therefore, even in the absence of admissible cyber evidence, the
conviction under Section 506 IPC is legally sustainable, and the delay
in lodging the FIR does not weaken the prosecution case.
x. The age of the victim below 18 years is proved through the municipal
birth record and supporting evidence and once the foundational facts
are established, the statutory presumptions under sections 29 and 30
of the POCSO Act operate against the appellant. The victim (P.W.4)
has stated that her date of birth is 31.07.2002. Her mother, namely
P.W.3, has also stated the same. Further, the birth certificate of the
victim was issued by the Registrar, Births and Deaths, Jharsuguda
Municipality. The learned Trial Court has also considered the Birth
Register maintained in the office of the Registrar, Births and Deaths,
Jharsuguda Municipality, wherein the date of birth of the victim has
been recorded as 31.07.2002. On the date of occurrence in March, 2019,
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the victim was about 16 years and 7 months old and therefore a child
within the meaning of Section 2(d) of the POCSO Act.
xi. The Appellant has relied upon the medical age opinion of Dr. Rita
Maxima Barla (P.W.6), who assessed the victim’s age as 18 to 19 years
on the basis of X-ray examination. However, medical opinion is only
approximate and cannot override reliable public record of birth. The
defence has not produced any cogent material to dislodge the
authenticity of the municipal birth record.
xii. Reliance was placed on the observations in Jarnail Singh v. State of
Haryana4, where it was observed that the highest priority must be
given to matriculation or equivalent certificate, and in its absence, to
the birth certificate issued by a municipal authority, and only in the
absence of such records should medical opinion be relied upon.
xiii. Once the foundational facts of penetrative sexual assault and minority
are proved, the statutory presumptions under Sections 29 and 30 of
the POCSO Act operate against the Appellant.
xiv. The Appellant has contended that electronic evidence such as call
detail records and cyber evidence have not been proved. The said
ground does not affect the conviction under Section 376(1) IPC,
Section 4(1) POCSO Act and Section 506 IPC, which stand proved
through oral and medical evidence along with age proof.
4
(2013) 7 SCC 263.
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IV. FINDINGS OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE-CUM-
SPECIAL COURT UNDER THE POCSO ACT, JHARSUGUDA:
11.The accused was tried for offences under Sections 376(1), 506 IPC read
with Section 4 of the POCSO Act, and Sections 354(C) IPC and 66(E) of
the IT Act.
12.The prosecution examined 12 witnesses, including the victim (PW4),
her mother (PW3), medical officers (PW6 & PW7), and investigating
officers. The defence examined two witnesses and denied the
allegations.
13.On the issue of age, the Court relied upon the birth certificate issued
by the Registrar of Births and Deaths, Jharsuguda Municipality,
supported by school records, Aadhaar card and testimonies of PW3 &
PW4 and held that the victim was born on 31.07.2002. Accordingly,
she was found to be about 16 years and 7 months old at the time of
occurrence, thus a minor under the POCSO Act.
14.On merits, the learned trial Court held that the testimony of the victim
was consistent, natural and trustworthy, and, therefore, did not
require any independent corroboration. It was further held that her
version stood duly corroborated by the testimony of her mother as
well as the medical evidence on record. The medical examination
revealed an old healed hymenal tear at the 5 o’clock position, which,
according to the doctor, was consistent with sexual intercourse. The
learned trial Court, therefore, concluded that the medical evidence
corroborated the ocular testimony of the victim.
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15.Accordingly, the Court found the charge under Section 376(1) IPC
proved, holding that the victim’s evidence clearly established
penetrative sexual assault committed by the accused.
16.With regard to Section 4(1) of the POCSO Act, the Court held that the
victim was a minor at the time of occurrence and that the evidence of
PW3 and PW4, supported by medical opinion, established penetrative
sexual assault. The presumption under Sections 29 and 30 of the
POCSO Act was invoked against the accused.
17.On the charge under Section 506 IPC, the Court accepted the
prosecution case that the accused repeatedly threatened the victim
with circulation of obscene material, thereby causing fear and mental
harassment, which led to delayed disclosure of the incident. The
Court held that the ingredients of criminal intimidation were made
out.
18.However, the Court acquitted the accused under Section 354(C) IPC
and Section 66(E) of the IT Act, holding that the electronic evidence
relied upon was not proved in accordance with Section 65B of the
Indian Evidence Act, and therefore could not be legally relied upon to
establish voyeurism or unlawful transmission of private images.
19.Accordingly, the accused was convicted under Sections 376(1) IPC,
506 IPC, and Section 4(1) of the POCSO Act, and acquitted of the
remaining charges.
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20.On sentence, the Court imposed rigorous imprisonment for 10 years
with fine of Rs.25,000/-, and in default, further rigorous imprisonment
for one year under Section 376(1) IPC and Section 4(1) of the POCSO
Act, and rigorous imprisonment for 3 years with fine of Rs.3,000/-,
and in default, further rigorous imprisonment for 6 months under
Section 506 IPC, directing all sentences to run concurrently.
21.The Court further directed victim compensation of Rs. 75,000/- under
Section 357-A CrPC, and ordered destruction/release of seized articles
as per law.
V. COURT’S ANALYSIS AND REASONING
24.Heard learned counsel for the parties and perused the material placed
on record.
25.The appellant has assailed the impugned judgment on several
grounds, inter alia, questioning the determination of the age of the
victim, the appreciation of the evidence of the prosecutrix, the delay in
lodging the F.I.R., and the sustainability of the conviction under
Sections 376(1) and 506 IPC as well as Section 4 of the POCSO Act.
The respondent, on the other hand, has supported the findings
recorded by the learned Trial Court and contended that the
prosecution has succeeded in establishing the charges beyond
reasonable doubt.
26.Since the applicability of the provisions of the POCSO Act and the
plea of consent sought to be advanced on behalf of the appellant are
fundamentally dependent upon the age of the victim, it becomes
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necessary to first examine whether the prosecution has been able to
establish the age of the victim in accordance with law.
27.The learned Trial Court has recorded a finding that the victim was
born on 31.07.2002 and was, therefore, about 16 years and 7 months of
age at the time of the occurrence alleged to have taken place in March,
2019. The appellant has challenged the said finding by contending
that the prosecution failed to prove the age of the victim in the
manner contemplated under Section 94 of the Juvenile Justice (Care
and Protection of Children) Act, 2015 and that the medical opinion
assessing her age to be between 18 and 19 years ought to have been
accepted.
28.In support of the prosecution case regarding age, the victim (P.W.4)
and her mother (P.W.3) have consistently stated that the date of birth
of the victim is 31.07.2002. The learned Trial Court has also taken into
consideration the birth certificate issued by the Registrar of Births and
Deaths, Jharsuguda Municipality as well as the corresponding entry
in the Birth Register maintained by the competent authority.
29.In this context, it is apposite to refer to Section 94 of the Juvenile
Justice (Care and Protection of Children) Act, 2015. The provision
contemplates determination of age primarily on the basis of
documentary evidence and envisages recourse to medical age
determination only in the absence of such material. The provision
reads as follows:
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Date: 08-Jul-2026 17:14:15“94. Presumption and determination of age.–(1) Where, it
is obvious to the Committee or the Board, based on the
appearance of the person brought before it under any of the
provisions of this Act (other than for the purpose of giving
evidence) that the said person is a child, the Committee or
the Board shall record such observation stating the age of
the child as nearly as may be and proceed with the inquiry
under Section 14 or Section 36, as the case may be, without
waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable
grounds for doubt regarding whether the person brought
before it is a child or not, the Committee or the Board, as
the case may be, shall undertake the process of age
determination, by seeking evidence by obtaining–
(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the concerned
examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall
be determined by an ossification test or any other latest
medical age determination test conducted on the orders of
the Committee or the Board:
Provided such age determination test conducted on the
order of the Committee or the Board shall be completed
within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be
the age of person so brought before it shall, for the purpose
of this Act, be deemed to be the true age of that person.”
30.The principal submission of the appellant is that the learned Trial
Court ought not to have relied upon the documentary evidence
relating to the age of the victim and should instead have accepted the
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medical opinion of P.W.6, who assessed her age to be between
eighteen and nineteen years. The appellant has further contended that
the birth certificate relied upon by the prosecution was not proved in
accordance with law and that the Aadhaar card could not have been
treated as proof of age. Upon consideration of the materials on record,
this Court finds no merit in the aforesaid contention. The evidence of
P.W.3 and P.W.4 consistently indicates that the date of birth of the
victim is 31.07.2002. The learned Trial Court has also taken into
consideration the birth record maintained by the office of the
Registrar of Births and Deaths, Jharsuguda Municipality, wherein the
date of birth of the victim has been recorded as 31.07.2002. The
defence has not been able to demonstrate any material discrepancy in
the said record nor has any evidence been adduced to show that the
entry was fabricated, manipulated or otherwise unreliable. In the
absence of any such material, the mere assertion that the documentary
evidence ought not to be relied upon cannot be accepted.
31.In Jarnail Singh (supra), the Supreme Court observed that where
documentary evidence relating to age is available in the form of
school records or birth certificates issued by municipal authorities,
such evidence must receive precedence and medical opinion can be
resorted to only in the absence of such material. The relevant
observations are replicated hereinunder:
23. Even though Rule 12 is strictly applicable only to
determine the age of a child in conflict with law, we are of
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Date: 08-Jul-2026 17:14:15the basis for determining age, even of a child who is a
victim of crime. For, in our view, there is hardly any
difference insofar 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, PW 6.
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 child concerned is the highest rated option.
In case, the said certificate is available, no other evidence
can be relied upon. Only in the 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, Rule 12(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 child concerned, on the basis of
medical opinion.”
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32.In the present case, P.W.6 assessed the age of the victim to be between
eighteen and nineteen years on the basis of radiological examination.
However, it is well settled that an ossification test provides only an
approximate estimate of age and not an exact determination. Such
medical opinion necessarily carries a margin of error and cannot
ordinarily override reliable documentary evidence indicating a
specific date of birth. Having regard to the birth record relied upon by
the prosecution and accepted by the learned Trial Court, this Court is
of the considered view that the medical estimate furnished by P.W.6 is
insufficient to dislodge the documentary evidence regarding age.
Accordingly, this Court finds no infirmity in the conclusion arrived at
by the learned Trial Court that the victim was below eighteen years of
age at the relevant point of time and was consequently a child within
the meaning of Section 2(d) of the POCSO Act.
33.Having affirmed the finding regarding the age of the victim, this
Court now proceeds to examine the evidence relating to the
occurrence.
34.The victim has been examined as P.W.4. She has stated that she came
into contact with the appellant in the year 2017 while visiting her
maternal uncle’s house at Jharsuguda and thereafter remained in
contact with him over phone. According to her, in March, 2019, the
appellant came to her house at Sundargarh in the absence of her
parents and established physical relations with her. She has further
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stated that the appellant videographed the act without her knowledge
and subsequently threatened to circulate the videos and photographs.
35.On a careful scrutiny of her evidence, this Court finds that the
testimony of P.W.4 remains consistent on the core aspects of the
prosecution case. The fact that she knew the appellant, was in contact
with him over phone and that he came to her residence and
established physical relations with her has remained substantially
unchanged throughout her examination. Though certain omissions
and discrepancies were sought to be highlighted in cross-examination,
this Court finds that they pertain to peripheral aspects of the matter
and do not detract from the essential substratum of the prosecution
case.
36.The law is equally well settled that the testimony of a prosecutrix, if
found to be credible and trustworthy, can by itself form the basis of
conviction. The Court is not required to seek corroboration as a matter
of course. What is required is a careful evaluation of the intrinsic
worth of her testimony. In this regard, in Ganesan v. State represented
by its Inspector of Police5, the Supreme Court observed that the
statement of the prosecutrix, if found to be worthy of credence and
reliable, requires no corroboration. The court may convict the accused
on her sole testimony. Similarly, in Krishan Kumar Malik v. State of
Haryana6 it was observed that to hold an accused guilty for
5
(2020) 10 SCC 573.
6
(2011) 7 SCC 130.
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commission of an offence of rape, the solitary evidence of the
prosecutrix is sufficient provided that the same inspires confidence
and appears to be trustworthy, unblemished and is of sterling quality.
Applying the aforesaid principles, this Court finds no reason to
discard the evidence of P.W.4.
37.The testimony of the victim also receives support from the evidence of
her mother (P.W.3). P.W.3 has deposed that she noticed her daughter
to be under mental distress and upon enquiry the victim disclosed the
incident to her. The F.I.R. was lodged thereafter. Though P.W.3 is not
an eyewitness to the occurrence, her evidence assumes significance
insofar as it explains the circumstances in which the incident came to
light and lends support to the version of the victim regarding the
subsequent events.
38.It is also noted that the appellant has placed emphasis upon the delay
of approximately one year and four months in lodging the F.I.R. It has
been contended that such delay creates a serious doubt regarding the
truthfulness of the prosecution case. In this regard, it is relevant to
examine the evidence of P.W.4 which reveals that after the occurrence
the appellant threatened to circulate her photographs and videos.
P.W.3 has also stated that she found the victim to be mentally
disturbed and that the disclosure came only after repeated enquiry.
While evaluating the effect of such delay, the Court must remain
conscious of the realities attendant upon allegations of sexual assault,
particularly where the victim is a young girl. Feelings of fear, shame,
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social stigma and emotional vulnerability often operate as significant
deterrents against immediate disclosure. The conduct of a victim in
such circumstances cannot be tested on the basis of rigid assumptions
as to how a person ought to behave. Viewed in this context, the delay
in the present case does not appear so unnatural as to discredit the
prosecution version altogether. Rather, the explanation offered by the
prosecution appears to be reasonably consistent with the
circumstances brought on record. The delay, therefore, cannot be
treated as fatal to the prosecution case.
39.Further, once it has been found that the victim was below eighteen
years of age at the time of the occurrence, any apparent consent on her
part becomes legally immaterial. The statutory scheme of the POCSO
Act proceeds on the premise that a child is incapable of giving legally
valid consent to such acts. Likewise, for the purpose of Section 375
IPC, consent of a girl below the age prescribed by law cannot furnish a
defence. Consequently, the plea sought to be advanced on behalf of
the appellant that the relationship was consensual does not assist his
case.
40.The testimony of the victim also finds support from the medical
evidence. P.W.6, who examined the victim, noticed an old healed
hymenal tear at the 5 o’clock position. While it is true that no recent
external injury was detected, the examination admittedly took place
long after the alleged occurrence. In such circumstances, the absence
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of fresh injuries cannot be viewed as a circumstance adverse to the
prosecution case.
41.It is equally well settled that the absence of injuries does not, by itself,
negate an allegation of sexual assault. Medical evidence is essentially
corroborative in nature and its significance lies in whether it is
consistent with the prosecution version. In the present case, the
medical findings do not contradict the evidence of the prosecutrix and
are broadly compatible with her allegation of prior sexual intercourse.
In this regard, in B.C. Deva v. State of Karnataka7, it was observed
that the plea that no injuries were found on the person of the accused
or prosecutrix, does not lead to any inference that the accused has not
committed forcible sexual intercourse on the prosecutrix. It was
observed that even in the absence of any corroboration of medical
evidence, the oral testimony of the prosecutrix, which is found to be
cogent, reliable, convincing and trustworthy has to be accepted. In the
present case, the medical findings do not contradict the evidence of
the prosecutrix and are broadly compatible with her allegation of
prior sexual intercourse.
42.The appellant has also challenged the conviction under Section 506
IPC on the ground that the learned Trial Court acquitted him of the
offences under Section 354(C) IPC and Section 66(E) of the
Information Technology Act owing to the failure of the prosecution to
prove the electronic evidence in accordance with Section 65B of the
7
(2007) 12 SCC 122
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Evidence Act. However, the said contention overlooks the distinction
between the two sets of offences. The acquittal under Section 354(C)
IPC and Section 66(E) of the Information Technology Act was founded
upon the failure of the prosecution to prove the alleged electronic
material in the manner required by law. The charge of criminal
intimidation, however, rests upon a different footing. The substance of
the allegation is not the actual existence of the photographs or videos
but the threat allegedly held out by the appellant that such material
would be circulated.
43.P.W.4 has consistently stated that the appellant threatened her with
circulation of photographs and videos. Her evidence on this aspect
has remained substantially intact. The delayed disclosure of the
incident and the mental distress spoken to by P.W.3 also lend
assurance to this part of the prosecution case. Therefore, merely
because the electronic evidence itself was not proved, it does not
necessarily follow that the allegation of criminal intimidation must
also fail.
44.Upon an independent re-appreciation of the entire evidence on
record, this Court finds that the learned Trial Court has approached
the matter with due caution and has correctly appreciated the oral,
documentary and medical evidence available before it. This Court
finds no perversity, misappreciation of evidence, manifest illegality or
omission of any material circumstance in the approach adopted by the
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learned Trial Court so as to warrant interference in appellate
jurisdiction.
45.This Court is, therefore, of the considered view that the prosecution
has been able to establish the guilt of the appellant for the offences
punishable under Section 376(1) IPC, Section 4 of the POCSO Act and
Section 506 IPC beyond reasonable doubt. No ground has been made
out warranting interference with the judgment of conviction and
order of sentence passed by the learned Trial Court.
VI. CONCLUSION:
46.In view of the foregoing discussion, this Court finds no merit in the
present appeal. The prosecution has succeeded in establishing the
charges against the appellant beyond reasonable doubt and the
findings recorded by the learned Trial Court do not suffer from any
infirmity warranting interference. Accordingly, the Judgment of
Conviction and Order of Sentence dated 22.03.2023 passed by the
learned Additional District and Sessions Judge-cum-Special Court
under the POCSO Act, Jharsuguda in C.T. (Special) Case No. 62 of
2020 are hereby affirmed.
47.Accordingly, the present appeal is dismissed.
48.Interim order, if any, passed earlier stands vacated.
(Dr. Sanjeeb K Panigrahi)
Judge
Orissa High Court, Cuttack,
Dated the 25th June, 2026 /
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