Chattisgarh High Court
David Xaxa vs State Of Chhattisgarh on 3 March, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2026:CGHC:11069-DB
Digitally signed
by SAGRIKA
NAFR
SAGRIKA AGRAWAL
AGRAWAL Date:
2026.03.10
14:49:18 +0530
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1525 of 2025
David Xaxa S/o Late Khristofhar Xaxa Aged About 23 Years R/o
Village- Bamhani Bheditoli, Police Station- Duldula, Distt- Jashpur C.G.
--- Appellant (s)
versus
State Of Chhattisgarh Through Police Station- Duldula, Distt- Jashpur
C.G.
--- Respondent(s)
For Appellant (s) : Ms. Deepanjali Tiwari, Advocate
For Respondent(s) : Mr. Sourabh Sahu, Panel Lawyer
CRA No. 1036 of 2025
Sudip Minj S/o Theodar Minj Aged About 25 Years R/o Village- Raidih,
P.S. Duldula, District- Jashpur (C.G.)
—appellant(s)
Versus
State Of Chhattisgarh Through Police Station- Duldula, District-
Jashpur (C.G.)
2
— Respondent(s)
For Appellant (s) : Mr. Amit Xalxo, Advocate
For Respondent(s) : Mr. Sourabh Sahu, Panel Lawyer
Hon’ble Shri Ramesh Sinha, Chief Justice
Hon’ble Shri Ravindra Kumar Agrawal, Judge
Judgment on Board
Per Ramesh Sinha, Chief Justice
03.03.2026
1. Heard Ms. Deepanjali Tiwari, learned counsel for the appellant in
CRA No. 1525/2025 and Mr. Amit Xalxo, learned counsel for the
appellant in CRA No. 1036/2025. Also heard Mr. Sourabh Sahu,
learned Panel Lawyer, appearing for the Respondent/ State.
2. Both these appeals arise out of the same sessions trial and
common judgment; therefore, they are being heard and decided
together.
3. The CRA No. 1525/2025 is filed by the appellant David Xaxa
against the impugned judgment of conviction and sentence dated
01.04.2025 passed by learned Special Judge (POCSO), Kunkuri,
Dist- Jashpur in Special Sessions Case No. 18/2022, whereby
the appellant David Xaxa has been convicted and sentenced in
the following manner:-
S. No. Conviction Sentence
1. Under Section 363 of IPC R.I. for 5 years and fine of Rs.
1000/-
2. Under Section 366 of IPC R.I. for 5 years and fine of Rs.
1000/-
3. Under Section 4 of POCSO R.I. for 20 years and a fine of Rs.
3
Act, 2012. 1000/-
in default of payment of fine to
further undergo R.I. for a period of
6 month for each default.
All the sentences of imprisonment
awarded will run concurrently.
4. The CRA No. 1036/2025 is filed by the appellant Sudip Minj,
against the impugned judgment of conviction and sentence dated
01.04.2025 passed by learned Special Judge (POCSO), Kunkuri,
Dist- Jashpur in Special Sessions Case No. 18/2022, whereby
the appellant Sudip Minj has been convicted and sentenced in
the following manner:-
S. No. Conviction Sentence 1. Under Section 354 of IPC 2. Under Section 354-A of IPC 3. (Alternate Punishment R.I. for 3 years and a fine of Rs. awarded as per the 1000/- in default of payment of fine
provision of POCSO Act) to further undergo R.I. for a period
under Section 8 of POCSO of 3 month separately.
Act, 2012.
The period for which the appellant/
accused remained in custody
during the investigation and trail of
the case, shall be set off against
the substantive sentences awarded
to him.
5. The brief facts of the case are that on 29.04.2022, the victim
(PW/1) lodged a written complaint (Ex-P/1) to the Police with the
4
allegation that she had gone to her maternal grandmother’s
house in a marriage function. At about 6-7 pm, when she was
standing in front of her maternal grandmother’s house, the
appellant David, who was her neighbour, dragged her towards
the gaushala and committed rape upon her. Thereafter, his
cousin brother Sudip came there and tried to outrage her
modesty. After the incident, she came back to her house and
informed her mother and maternal aunt. It has also been reported
that David is a constable at the Chhattisgarh Armed Force, and
he came there on leave. Based on her written complaint, FIR
(Ex.P/2) was registered against the appellants for the offence
under Sections 363, 376, 354 and 34 of the IPC and Sections 6
and 8 of the Protection of Children from Sexual Offences Act,
2012 (in short “POCSO Act“). The victim was sent for her medical
examination to the Community Health Centre, Duldula, where she
was medically examined by (PW/6) Dr. Shobha Minj, who gave
her report (Ex. P/14). While medically examining the victim, the
doctor noticed three scratches on the back of the chest. On
internal examination, an abrasion was found on her private part;
however, no active bleeding was seen. Two slides of her vaginal
swab were prepared, sealed and handed over to the Police for its
chemical examination. However, she opined that the opinion will
be given after the FSL report, and a query report was also
requested. The doctor (PW/6) gave her the query report
(Ex-P/16) and opined that, according to the FSL report, human
5
sperm was present, which shows that she was subjected to
sexual intercourse. Spot map (Ex-P/3) was prepared by the
Police, and (Ex-P/8) was prepared by the Patwari. With respect to
the age and date of birth of the victim, the Police have seized the
Class-6 mark sheet of the victim vide Seizure memo (Ex.-P/7)
and school register (Ex-P/11) vide seizure memo (Ex-P/10). After
retaining its attested true copy, the original school register was
returned to the school. According to the school register, the date
of birth of the victim is 15.08.2008. Statement under Section 164
of Cr.P.C. of the victim was recorded as (Ex-P/5) on 04.05.2022.
The appellants were arrested on 30.04.2022, and the appellant
David also sent for his medical examination to the Community
Health Centre, Duldula, where he was medically examined by
(PW/8) Dr. Nitin Anant Sonwani, who gave his report (Ex-P/32)
and found that the appellant is able to do or to commit sexual
activities or intercourse. The appellant Sudip was also sent for his
medical examination to the same doctor who gave his report (Ex-
P/33) and found him able to do or commit sexual activities or
intercourse. The clothes of the victim, her vaginal slides and the
underwear of the appellant David were sent for its chemical
examination to Regional FSL, Ambikapur, from where report (Ex-
P/17) was received and according to the FSL report, on the
underwear of the victim, her vaginal slides and underwear of the
appellant David, semen and sperms were found. Statement of the
witnesses under Section 161 of Cr.P.C. was recorded, and after
6
completion of the usual investigation, charge-sheet was filed
before the learned trial Court for the offence under Sections 363,
376, 354, 34, 366-A, 376-D of IPC, and Sections 6 and 8 of the
POCSO Act have been filed.
6. The learned trial Court has framed the charge against the
appellant David Xaxa for the offence under Section 363, 366, 376
(3) of IPC and Section 3/4(2) of POCSO Act and against the
appellant Sudip, the charge under Section 354, 354-A of IPC and
Section 7/8 of POCSO Act has been framed. The accused
persons denied the charge and claimed trial.
7. To prove the charge against the appellants, the prosecution has
examined as many as 9 witnesses. Statement of the accused
persons under Section 313 of Cr.P.C. has also been recorded in
which they denied the allegation levelled against them plead
innocence, and have submitted that they have been falsely
implicated in the offence.
8. After appreciation of oral as well as documentary evidence led by
the prosecution, the learned trial Court has convicted and
sentenced the appellants and sentenced them as mentioned in
the earlier part of this judgment. Hence, this appeal.
9. Learned counsel appearing for the appellant, David, would submit
that the prosecution has failed to prove its case beyond
reasonable doubt. There are material omissions or contradictions
in the evidence of prosecution witnesses, which cannot be made
the basis to convict him for the alleged offence. There is no
7
admissible evidence to hold that the victim was a minor on the
date of the incident, except the school register. There is no other
evidence led by the prosecution to prove the age of the victim,
and the school register has not been proved in accordance with
the law. The manner in which the alleged offence is said to have
been committed is totally improbable, as the allegation is that
while the victim is standing outside of her house, the appellant,
David, came there, dragged her a certain distance and committed
rape upon her, which is practically impossible in such a busy time
in the locality. The injuries found on her body could be self-
inflicted injuries, only to make the allegation more grave. There is
no sufficient evidence on record that she raised an alarm at the
time of the alleged commission of the offence, which has been
heard by the other witnesses of the vicinity. Her evidence is full of
exaggeration and contradictions, and she cannot be relied upon
for her allegation. Therefore, there is sufficient material to
disbelieve the prosecution’s case, and the appellant David Xaxa
may be acquitted of the alleged offence.
10. Learned counsel appearing for the appellant, Sudip Minj,
vehemently submitted that there is no allegation against the
appellant, Sudip Minj, that he committed the sexual intercourse
with the victim. There is only an allegation that when the other
appellant, David, committed rape upon her, the present appellant
came there and outraged the modesty of the victim. Had the
victim actually suffered the offence of rape by the accused David,
8
she would immediately rush to her own house or to any other
house for her rescue, but it is alleged that after some time of the
incident of rape, the present appellant had gone there and
outraged the modesty of the victim, which is practically
impossible. He has been implicated in the offence only for the
reason that he is the cousin brother of the accused Devid Xaxa.
She could have raised an alarm also at the time of the alleged
incident, but she did nothing; therefore, no offence is established
by the evidence of the victim and other witnesses against the
present appellant, Sudip Minj, and he is entitled to his acquittal.
11. On the other hand, learned counsel appearing for the State
opposes and would submit that the prosecution has proved its
case beyond reasonable doubt, but for a minor omission or
contradictions, the evidence of the prosecution witnesses is fully
reliable and corroborated with the medical evidence as well as
the scientific evidence of the FSL report. The evidence of the
victim is not required to be corroborated by any other evidence,
yet in the present case, her evidence is corroborated by the other
evidence. But for minor omissions or contradictions in the
evidence of the victim, nothing is there to discredit her evidence.
The FIR has been lodged without any delay, and the named
report of the alleged act of the accused persons has been
mentioned in the FIR. Injuries have been found on the body of the
victim, and she suffered the alleged offence, which has been
proved by medical evidence and supported by the FSL report.
9
Therefore, there is sufficient and overwhelming evidence against
the accused persons to convict them for the offence in question.
He would further submit that the age of the victim has been
proved by the school record (Ex-P/11) as well as the evidence of
the mother of the victim (PW/2), who deposed the date of birth of
the victim, therefore, it was also proved by the prosecution that
on the date of incident, the victim was a minor and about 13
years 8 months of age, therefore, there is no merit in the appeal
filed by the respective appellants and the same are liable to be
dismissed.
12. We have heard learned counsel for the parties and perused the
record of the trial Court with utmost circumspection.
13. The first and foremost question that arises for consideration
would be the age of the victim, as to whether, on the date of the
incident, she was less than 18 years of age or not.
14. The prosecution has mainly relied upon the school register (Ex.
P/11), which has been sought to be proved through the testimony
of PW/3. PW/3 is the Principal of the school where the victim had
studied. He stated in his evidence that the police had seized the
school register pertaining to the age and date of birth of the victim
vide seizure memo (Ex. P/10). He further stated that he had
brought the original register with him, from which an attested true
copy (Ex. P/11C) was issued. According to the school register,
the date of birth of the victim is recorded as 15.08.2008.
However, during cross-examination, he admitted that he did not
10
know who had admitted the victim to the school, and the
document (Ex. P/11) does not mention the basis on which the
date of birth of the victim was recorded. Nevertheless, he stated
that he was the Principal of the school and that the date of birth of
the victim was recorded on 02.04.2016, when she was admitted
to the school in Class II. He further stated that at the time of the
victim’s admission to the school, no one could have anticipated
that her date of birth would be required after such a long period in
connection with a criminal case. In paragraph 13 of his cross-
examination, he denied the suggestion that the date of birth of the
victim was recorded on the basis of mere assumption. He
categorically stated that at the time of her admission to the
school, the admission form was filled on the basis of supporting
documents, namely the transfer certificate, Aadhaar card, and the
birth certificate issued by the Municipal Council, Jashpur.
15. In the case of “Jarnail Singh vs. State of Haryana“, (2013) 7
SCC 263, the Hon’ble Supreme Court has held that:-
“22. On the issue of determination of age of a minor, one 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
11the Board or as the case may be the
Committee referred to in rule 19 of
these rules shall determine the age of
such 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;
(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
12juvenile 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 section 7A, 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 (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.”
13
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 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 concerned child, on
the basis of medical opinion.”
14
16. The victim (PW/1) has stated in her evidence that her date of birth
is 15.08.2008 and her age is 14 years. In her cross-examination,
the defence could not be able to rebut the date of her birth
because she did not disclose her correct date of birth. In para 85
of her cross-examination, she denied that she has no birth
certificate.
17. The mother of the victim (P.W. 2) has stated in her evidence that
the date of birth of the victim is 15.08.2008 and her age is 14
years. In cross-examination, she stated that her daughter was
born at Jashpur District Hospital. The victim has been admitted at
nursery class at Village- Gholeng, where she studied for two
years; thereafter, she was admitted at Bagghiva school. She
denied that she had recorded the date of birth of her daughter by
reducing her age. From her cross-examination, the defence could
not extract any material to disbelieve the date of birth of the victim
as she disclosed in her evidence. When the date of birth of the
victim could not be rebutted in the evidence of PW/1 and PW/2,
which has been corroborated by the school record (Ex-P/11) and
her mark-sheet of class-6 (Article-A/1), it can safely be held that
the prosecution has been able to prove the date of birth of the
victim, i.e. 15.08.2008, and she was about 13 years 8 months of
age at the time of the alleged incident on 29.04.2022. We concur
with the finding recorded by the learned trial Court with respect to
the age of the victim that on the date of the incident, she was a
minor and less than 18 years of age. The learned trial Court
15
relied upon the evidence produced by the victim as well as her
mother, and also in view of the judgment of the Hon’ble Supreme
Court in the case of Jarnail Singh (supra), and also Rule-12 of
the Juvenile Justice Protection and Care of Children Act (Rules,
2007) concluded the age of the victim is less than 18 years, in
which this Court does not find any infirmity or perversity.
18. The other question that arises for consideration would be the
involvement of the appellants in the alleged offence of rape and
outraging the modesty of the victim, and whether the evidence
available on record is sufficient to hold them guilty or not.
19. The victim (PW/1) has stated in her evidence that on the date of
the incident, she had gone to her maternal grandmother’s house
for a marriage function. They had gone there on 19.04.2022, and
after the marriage, they stayed there. On 29.04.2022, she came
out of her house to search for her she-goats and at that time,
both the accused persons came there from the side of the
accused David’s house and asked about her brother. When she
answered, her brother went back. At that time, the accused David
caught hold of her hand and dragged her towards the gaushala.
Despite the alarm raised by her, no one came to help her. The
appellant, David, committed rape upon her. Thereafter, the
appellant Sudip came there, and he too tried to commit rape upon
her, but she somehow saved herself and ran away from the
place. She rushed to her house and informed her mother and
maternal aunt about the incident. Thereafter, on the same night,
16
they had gone to Duldula Police Station and lodged a written
complaint (Ex-P/1), and then FIR (Ex-P/2) was registered. In her
lengthy and detailed cross-examination, the defence could not
extract any material that makes her evidence doubtful. Though
she admitted that there was an altercation between her maternal
uncle and the appellant, David, on the issue of dancing at the
marriage function. She further admitted that before the incident,
the relationship between her family and the family of the accused
persons was good. She denied that, due to the dispute between
her maternal uncle and David, she made a false complaint
against the accused David. She also denied that she had
suffered any incident of rape. Though she admitted in her
evidence that if she shouted from the place of the incident, it
would be heard at her maternal grandmother’s house, she
strongly denied that she had shouted, and she has not suffered
any incident. From the evidence of the victim, it is quite vivid that
on the date of the incident, she was dragged by the accused
David towards the gaushala, and he committed rape upon her
there. Despite raising her alarm, no one came to help her.
Thereafter, the accused Sudip came there, and he too tried to
commit rape upon her; however, somehow she saved herself and
fled away. However, the accused Sudip committed the offence of
outraging her modesty, and under the evidence given by her, she
could be put at the level of a witness of sterling quality, as there is
no discrepancy in her evidence that affects her credibility.
17
20. In the case of “Santosh Prasad @ Santosh Kumar v. State of
Bihar” 2020 (3) SCC 443, the Hon’ble Supreme Court considered
who would be the witness of sterling quality. In para 5.4.2 of its
judgment, it has been held that:-
“5.4.2 In the case of Rai Sandeep alias Deepu (supra),
this Court had an occasion to consider who can be
said to be a “sterling witness”. In paragraph 22, it is
observed and held as under:
“22 In our considered opinion, the “sterling
witness” should be of a very high quality and
calibre 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
time 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
18have co-relation with each and every one 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 such similar
tests to be applied, can it 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 based 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.”
21. In the case of “State of Himachal Pradesh v. Sanjay Kumar @
Sunny” (2017) 2 SCC 51, the Hon’ble Supreme Court held that:-
30- …………….We have already discussed above the
manner in which the testimony of the prosecutrix is to be
examined analysed in order to find out the truth therein and
to ensure that deposition of the victim is trustworthy. At the
19same time, after taking all due precautions which are
necessary, when it is found that the prosecution version is
worth believing, the case is to be dealt with all sensitivity
that is needed in such cases………..
31- …….. By now it is well settled that the testimony of a
victim in cases of sexual offences is vital and unless there
are compelling reasons which necessitate looking for
corroboration of a statement, the courts should find no
difficulty to act on the testimony of the victim of a sexual
assault alone to convict the accused. No doubt, her
testimony has to inspire confidence. Seeking corroboration
to a statement before relying upon the same as a rule, in
such cases, would literally amount to adding insult to injury.
The deposition of the prosecutrix has, thus, to be taken as a
whole. Needless to reiterate that the victim of rape is not an
accomplice and her evidence can be acted upon without
corroboration. She stands at a higher pedestal than an
injured witness does. If the court finds it difficult to accept
her version, it may seek corroboration from some evidence
which lends assurance to her version. To insist on
corroboration, except in the rarest of rare cases, is to
equate one who is a victim of the lust of another with an
accomplice to a crime and thereby insult womanhood. It
would be adding insult to injury to tell a woman that her
claim of rape will not be believed unless it is corroborated in
material particulars, as in the case of an accomplice to a
crime. Why should the evidence of the girl or the woman
who complains of rape or sexual molestation be viewed
with the aid of spectacles fitted with lenses tinged with
doubt, disbelief or suspicion? The plea about lack of
corroboration has no substance (See Bhupinder Sharma v.
State of H.P.5). Notwithstanding this legal position, in the
instant case, we even find enough corroborative material as
well, which is discussed hereinabove.
20
22. The evidence of the victim is supported by the evidence of the
doctor (PW/6), who medically examined her and found external
and internal injuries on her body. The doctor has found abrasion
on her back and also on her private part, which is clearly revealed
from the MLC report (Ex-P/14). Further two slides of her vaginal
swab were prepared by the doctor, sealed and handed over to
the Police for its chemical examination and on its chemical
examination, the semen and sperm were found present which
proved by the prosecution through the FSL report (Ex-P/17) and
based on the FSL report, the doctor has also gave his query
report (Ex-P/16) that the victim suffered with sexual intercourse,
which are duly corroborated the evidence of the victim on the
date of incident, she suffered sexual intercourse by the appellant
David. The allegation of outraging the modesty of the victim by
the accused Sudip has also been proved from her evidence.
There is no reason for their false allegation, although the defence
has suggested that in the marriage function, there was some
altercation between the maternal uncle of the victim and the
appellant David; however, it would not be sufficient to falsely
implicate the accused persons in the alleged offence.
23. The evidence of (PW/1) victim is also supported by her mother
(PW/2). She stated in her evidence that on the date of the
incident, her daughter had gone to search their she-goats and at
about 7.15 pm, when she came back, she was crying and her
clothes were full of mud and she was disturbed. When they
21
pacified her, she disclosed the incident that she was subjected to
rape by the appellant David and outrage to her modesty by the
accused Sudip. Thereafter, they had gone to the house of the
accused David, but he denied, and thereafter, they lodged the
report to the Police in the same night itself. In cross-examination,
she too has remained firm that on the date of the incident, the
victim informed about the incident and they lodged the report to
the Police, but for minor omissions or contradictions, her
evidence is also fully corroborated by the evidence of the victim.
24. (PW/9), the maternal aunt of the victim has also supported the
evidence that the victim was subjected to rape by the appellant
David and outrage the modesty by the appellant Sudip. She
stated in her evidence that on the date of the incident, at about 7-
8 pm, the victim came back to her house and informed her that
she was subjected to rape by the appellant David and outraged
modesty by the appellant Sudip. When they had gone to the
house of the appellant David, neither of the accused persons
answered their queries. They scolded the accused persons, and
her sister slapped the accused David. Thereafter, they had gone
to the Police Station for lodging of the report, but for minor
omissions or contradictions, her evidence is also corroborated by
the evidence of the victim and her mother. Thus, from the
evidence produced by the prosecution, the allegation against the
accused persons has been proved by the prosecution.
22
25. In the case of “Appabhai v. State of Gujrat”, 1988 Supp. SCC
241, the Hon’ble Supreme Court has held that:-
13- …….”The court while appreciating the evidence must
not attach undue importance to minor discrepancies. The
discrepancies which do not shake the basic version of the
prosecution case may be discarded. The discrepancies
which are due to normal errors of perception or observation
should not be given importance. The errors due to lapse of
memory may be given due allowance. The court must
evaluate the entire material on record by excluding the
exaggerated version given by any witness. When a doubt
arises in respect of certain facts alleged by such witness, the
proper course is to ignore that fact only unless it goes into
the root of the matter so as to demolish the entire
prosecution story. The witnesses may go on adding
embellishments to their version perhaps for the fear of their
testimony being rejected by the court. The courts, however,
should not disbelieve the evidence of such witnesses
altogether if they are other-(Para 13) wise trustworthy.”
26. Moreover, the Hon’ble Supreme Court observed in the case of
“State of Punjab v. Gurmit Singh” (1996) 2 SCC 384, that:-
“21. …The courts should examine the broader
probabilities of a case and not get swayed by minor
contradictions or insignificant discrepancies in the
statement of the prosecutrix, which are not of a
fatal nature, to throw out an otherwise reliable
prosecution case. If evidence of the prosecutrix
inspires confidence, it must be relied upon without
seeking corroboration of her statement in material
particulars. If for some reason the court finds it
difficult to place implicit reliance on her testimony, it
may look for evidence which may lend assurance
23to her testimony, short of corroboration required in
the case of an accomplice he testimony of the
prosecutrix must be appreciated in the background
of the entire case and the trial court must be alive
to its responsibility and be sensitive while dealing
with cases involving sexual molestations.”
27. It is also necessary to observe here the consideration of the
Hon’ble Supreme Court in the case of “Prahlad v. State of
Haryana“, (2015) 8 SCC 688. In para 17, it has been considered
that:-
“17. It has to be borne in mind that an offence of
rape is basically an assault on the human rights of
a victim. It is an attack on her individuality. It
creates an incurable dent in her right and free will
and personal sovereignty over the physical frame.
Everyone in any civilised society has to show
respect for the other individual and no individual
has any right to invade on physical frame of
another in any manner. It is not only an offence but
such an act creates a scar in the marrows of the
mind of the victim. Anyone who indulges in a crime
of such nature not only does he violate the penal
provision of IPC but also the right of equality, right
of individual identity and in the ultimate eventuality
an important aspect of rule of law which is a
constitutional commitment. The Constitution of
India, an organic document, confers rights. It does
not condescend or confer any allowance or grant. It
recognises rights and the rights are strongly
entrenched in the constitutional framework, its
ethos and philosophy, subject to certain limitations.
Dignity of every citizen flows from the fundamental
precepts of the equality clause engrafted under
24Article 14 and right to life under Article 21 of the
Constitution, for they are the “fons juris” of our
Constitution. The said rights are constitutionally
secured.
18. Therefore, regard being had to the gravity of
the offence, reduction of sentence indicating any
imaginary special reason would be an anathema to
the very concept of rule of law. The perpetrators of
the crime must realise that when they indulge in
such an offence, they really create a concavity in
the dignity and bodily integrity of an individual
which is recognised, assured and affirmed by the
very essence of Article 21 of the Constitution.”
28. Considering the overall evidence produced by the prosecution
and the nature of evidence given by the victim and the manner in
which the alleged incident was committed by the accused
persons, the medical report as well as the FSL report clearly point
towards the guilt of the accused persons with the offence in
question, which has rightly been considered by the learned trial
Court while convicting the accused persons in the alleged
offence, in which we do not find any perversity or illegality in the
judgment of conviction and sentence awarded to the appellants.
29. Accordingly, both the appeals filed by the respective appellants
are hereby dismissed.
30. The appellant David Xaxa (in Cr.A. No. 1525/2025) is reported to
have been in jail since 30.04.2022. He shall serve the entire
sentence as awarded by the learned trial Court.
25
31. The appellant, Sudip Minj (in Cr.A. No. 1036/2025), is convicted
for the offence under Section 354, 354-A of IPC and Section 8 of
POCSO Act and sentenced under Section 8 of POCSO Act for
R.I. for 03 years, his sentence was suspended by the learned trial
Court by invoking the powers under Section 389(3) of Cr.P.C. for
filing of the appeal and to obtain the order of suspension of
sentence and grant of bail from the appellate court, and presently,
he is on interim bail. Since the appeal filed by the appellant,
Sudip Minj, is also dismissed, he shall surrender within three
weeks from today, before the learned trial Court, to serve the
entire sentence as awarded by the learned trial Court.
32. Registry is directed to send a copy of this judgment to the appellant
David Xaxa through the concerned Superintendent of Jail where the
appellant is undergoing his jail sentence, 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.
33. The trial court record, along with a copy of this judgment, should
be sent back immediately to the trial court concerned for
compliance and necessary action.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Sagrika