Patna High Court
Karu Mandal vs The State Of Bihar on 5 May, 2026
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.634 of 2019
Arising Out of PS. Case No.-227 Year-2016 Thana- NATHNAGAR District- Bhagalpur
======================================================
KARU MANDAL Son of Sri Raju Mandal Resident of Village- Budhuchak,
Devi Mandal Lane, P.S.- Nathnagar, District- Bhagalpur.
... ... Appellant/s
Versus
1. The State of Bihar
2. Lochan Mandal S/O Late Magali Mandal Resident of Village- Budhuchak,
Devi Mandal Lane, P.S.- Nathnagar, District- Bhagalpur.
... ... Respondent/s
======================================================
Appearance :
For the Appellant : Mr. Ravindra Kumar, Advocate
Mr. Ram Niwas Prasad, Advocate
For the Respondent/s : Ms. Shashi Bala Verma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
Date : 07-05-2026
Factual Matrix
The appellant, Karu Mandal, has approached this Court
in appeal against the judgment of conviction dated 16.04.2019 and
the order of sentence dated 23.04.2019 passed by the learned 1 st
Additional Sessions Judge-cum-Special Judge (POCSO Act),
Bhagalpur in G.R. No. 2680 of 2016 arising out of Nathnagar
Police Station Case No. 227 of 2016. By the impugned judgment,
the learned trial court found the appellant guilty of the offence
punishable under Section 4 of the Protection of Children from
Sexual Offences Act, 2012 for having committed penetrative
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sexual assault as defined under Section 3(a) of the said Act upon a
minor girl aged about 9 years. He was sentenced to undergo
rigorous imprisonment for life together with a fine of Rs. 25,000/-,
with the default stipulation of further simple imprisonment for six
months.
2. The prosecution case, as unfolded in the written report
of the informant Lucho Mandal (PW-5) lodged on 09.08.2016, is
that on 08.08.2016 at about 12 noon, his youngest daughter, a
minor girl fictitiously named 'A', aged about 9 years, while
proceeding alone towards the agricultural field (Bahiyar) near
Bairiya Pul, was subjected to penetrative sexual assault by the
appellant at a secluded spot. The informant alleged that the
appellant forcibly took the minor girl, made her hold and shake his
penis, digitally penetrated her private part, and then committed
penile penetration, causing her severe pain and screaming. The
assault came to light when two cousin sisters of the victim,
Khushbu Kumari and Kumkum Kumari, who were passing by the
field, heard the cries, rushed to the spot, and saw the appellant
naked and lying on the naked victim. The appellant fled after
wearing his pants. The two girls dressed the victim, brought her
home, and she narrated the entire incident to her parents. The FIR
was registered the next morning, leading to investigation and
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
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submission of charge-sheet under Section 376(2)(i) IPC and
Section 4 POCSO Act.
3. The appellant pleaded not guilty and claimed false
implication due to previous land dispute and village enmity. He
examined no defence witness. The trial court, after a detailed
appreciation of the evidence of seven prosecution witnesses and
two documentary exhibits, recorded the conviction and imposed
the sentence, holding that the prosecution had proved its case
beyond reasonable doubt. Aggrieved thereby, the appellant has
preferred the present appeal.
Prosecution Evidence
4. The prosecution examined seven witnesses in support
of its case. PW-1, Khushbu Kumari, and PW-2, Kumkum Kumari,
both aged about 12 years and cousin sisters of the victim (though
residing in the adjacent village of Shrirampur), emerged as the
most crucial eye-witnesses. They deposed in clear and consistent
terms that while proceeding to the field to pluck ladyfinger and
grass, they heard cries emanating from the spot. On reaching there,
they saw the appellant lying naked on the disrobed victim. The
appellant immediately wore his pants and ran away upon seeing
them. The victim, who was crying and had blood stains on her
half-pants, disclosed to them on the way home that the appellant
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
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had forcibly made her hold and shake his penis and thereafter
inserted it into her urinary organ. Both witnesses withstood cross-
examination without any material contradiction.
5. PW-3, Ramni Devi, the mother of the victim, and PW-
5, Lucho Mandal, the informant and father, provided hearsay
evidence of the immediate disclosure made by the victim upon
reaching home. PW-5 further proved the prompt lodging of the
FIR the next morning and admitted that a village panchayat had
been convened, though he clarified that the police were never
informed about it. Both parents categorically denied any land
dispute with the appellant.
6. PW-6, the victim herself, gave a clear, cogent and
natural account of the incident. She stated that she was sitting
alone under a banyan tree when the appellant approached her,
asked her to hold and shake his penis, beat her on refusal, opened
her pants, inserted his finger into her private part, threw her down,
and committed penile penetration. She screamed in pain. The
arrival of Khushbu, Kumkum and an old woman caused the
appellant to flee after wearing his pants. The rescuers dressed her
and took her home where she narrated everything to her parents.
Her testimony was fully consistent with her statement recorded
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
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under Section 164 Cr.P.C. on 10.08.2016 (Ext. 2), which was taken
merely two days after the occurrence.
7. PW-4, Dr. Sushila Chaudhary, who medically
examined the victim on 09.08.2016 at 3:00 p.m., found pain,
redness and an "angry look of mucosa" in the vagina, clearly
indicative of recent vaginal assault. The radiological examination
established the victim's age to be below 12 years (Ext. 1 and 1/1).
Although the vaginal swab report showed absence of spermatozoa,
the doctor firmly opined that the findings were consistent with
vaginal assault.
8. Finally, PW-7, Tej Narayan Rai, the Investigating
Officer, proved the FIR, the place of occurrence (described as Jago
Mandal's brinjal field with specific boundaries), the statements of
witnesses, the medical report and the charge-sheet. In cross-
examination, he admitted that no clothes of the victim were
produced by the informant and that no statements were taken from
the owners of the adjoining fields.
Defence Version and Statement under Section 313
Cr.P.C.
9. The appellant maintained a complete denial of the
occurrence. In his statement recorded under Section 313 Cr.P.C.,
he simply stated that he had heard the witnesses but denied the
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allegations and offered no further explanation or alternative
version. The learned counsel for the appellant has contended that
the prosecution witnesses are all interested and related, that there
are contradictions regarding the exact place of occurrence, that the
clothes of the victim were never seized, that no DNA test was
conducted, that the panchayat members were not examined, and
that the case suffers from false implication due to land dispute.
Submissions & Relevant Legal Provisions
10. The POCSO Act, 2012 was enacted to provide a
special mechanism for the protection of children from sexual
offences. Section 3(a) defines penetrative sexual assault to include
penetration of the vagina by any part of the body of another
person. Section 4 prescribes rigorous imprisonment for a term
which shall not be less than ten years but which may extend to
imprisonment for life. Of equal importance is Section 29 of the
Act, which raises a statutory presumption against the accused once
the prosecution establishes the foundational facts.
11. The Counsel for the appellant strenuously argued
that there was delay of one day in lodging the FIR and that the
same is fatal to the prosecution case.
12. It is a settled principle of law that in cases of sexual
assault, particularly upon a minor girl, some delay in lodging the
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FIR is natural and cannot be viewed with suspicion. The trauma,
shock, societal stigma, and the need to consult family members
often cause such delay. In the present case, the incident occurred at
about noon on 08.08.2016. The victim was immediately rescued
by PW-1 and PW-2, brought home, and disclosed the incident to
her parents. The FIR was lodged the very next morning on
09.08.2016.
13
. The Hon’ble Supreme Court has repeatedly held that
in sexual offences, delay, ranging from a few days to even several
months, is not fatal if the evidence otherwise inspires confidence.
Reference in this regard may be made to Tulshidas Kanolkar v.
State of Goa, (2003) 8 SCC 590, where the victim was a mentally
challenged person, and the FIR was lodged after the delivery of
her stillborn child. Emphasizing the sensitivities of rape cases, the
Hon’ble Supreme Court made the following observation:
“5. We shall first deal with the question of delay. The
unusual circumstances satisfactorily explained the delay in
lodging of the first information report. In any event, delay per se is
not a mitigating circumstance for the accused when accusations of
rape are involved. Delay in lodging the first information report
cannot be used as a ritualistic formula for discarding the
prosecution case and doubting its authenticity. It only puts the
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
8/44court on guard to search for and consider if any explanation has
been offered for the delay. Once it is offered, the court is to only
see whether it is satisfactory or not. In case if the prosecution fails
to satisfactorily explain the delay and there is possibility of
embellishment or exaggeration in the prosecution version on
account of such delay, it is a relevant factor. On the other hand,
satisfactory explanation of the delay is weighty enough to reject
the plea of false implication or vulnerability of the prosecution
case. As the factual scenario shows, the victim was totally
unaware of the catastrophe which had befallen her. That being so,
the mere delay in lodging of the first information report does not
in any way render the prosecution version brittle”
14. In the instant case, delay of less than 24 hours stands
satisfactorily explained by the victim’s immediate disclosure to the
family members and the natural hesitation of the informant in
rushing to the police station with a minor girl who had undergone
a traumatic experience. The delay, therefore, is neither inordinate
nor fatal to the prosecution.
15. The law relating to appreciation of evidence in cases
of sexual assault upon children is well settled. The testimony of a
child victim, if found reliable, cogent and consistent, does not
require corroboration as a matter of law. The Hon’ble Supreme
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Court in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 has
laid down that evidence of a victim of sexual assault is entitled to
great weight and is to be treated on par with the evidence of an
injured witness. Seeking corroboration of her statement before
relying upon the same, as a rule, in such cases amounts to adding
insult to injury. Relevant para 8 of the said judgment is reproduced
below:
“8. The grounds on which the trial court disbelieved the
version of the prosecutrix are not at all sound. The findings
recorded by the trial court rebel against realism and lose their
sanctity and credibility. The court lost sight of the fact that the
prosecutrix is a village girl. She was a student of Xth class. It was
wholly irrelevant and immaterial whether she was ignorant of the
difference between a Fiat, an Ambassador or a Master car. Again,
the statement of the prosecutrix at the trial that she did not
remember the colour of the car, though she had given the colour of
the car in the FIR was of no material effect on the reliability of her
testimony. No fault could also be found with the prosecution
version on the ground that the prosecutrix had not raised an alarm
while being abducted. The prosecutrix in her statement
categorically asserted that as soon as she was pushed inside the
car she was threatened by the accused to keep quiet and not to
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
10/44raise any alarm, otherwise she would be killed. Under these
circumstances to discredit the prosecutrix for not raising an alarm
while the car was passing through the bus adda is a travesty of
justice. The court overlooked the situation in which a poor
helpless minor girl had found herself in the company of three
desperate young men who were threatening her and preventing her
from raising any alarm. Again, if the investigating officer did not
conduct the investigation properly or was negligent in not being
able to trace out the driver or the car, how can that become a
ground to discredit the testimony of the prosecutrix? The
prosecutrix had no control over the investigating agency and the
negligence of an investigating officer could not affect the
credibility of the statement of the prosecutrix. The trial court fell
in error for discrediting the testimony of the prosecutrix on that
account. In our opinion, there was no delay in the lodging of the
FIR either and if at all there was some delay, the same has not
only been properly explained by the prosecution but in the facts
and circumstances of the case was also natural. The courts cannot
overlook the fact that in sexual offences delay in the lodging of the
FIR can be due to variety of reasons particularly the reluctance of
the prosecutrix or her family members to go to the police and
complain about the incident which concerns the reputation of the
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
11/44prosecutrix and the honour of her family. It is only after giving it a
cool thought that a complaint of sexual offence is generally
lodged. The prosecution has explained that as soon as Tirlok
Singh PW 6, father of the prosecutrix came to know from his wife,
PW 7 about the incident he went to the village Sarpanch and
complained to him. The Sarpanch of the village also got in touch
with the Sarpanch of Village Pakhowal, where in the tubewell
kotha of Ranjit Singh rape was committed, and an effort was made
by the panchayats of the two villages to sit together and settle the
matter. It was only when the Panchayats failed to provide any
relief or render any justice to the prosecutrix, that she and her
family decided to report the matter to the police and before doing
that naturally the father and mother of the prosecutrix discussed
whether or not to lodge a report with the police in view of the
repercussions it might have on the reputation and future prospects
of the marriage etc. of their daughter. Tirlok Singh PW 6 truthfully
admitted that he entered into consultation with his wife as to
whether to lodge a report or not and the trial court appears to
have misunderstood the reasons and justification for the
consultation between Tirlok Singh and his wife when it found that
the said circumstance had rendered the version of the prosecutrix
doubtful. Her statement about the manner in which she was
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
12/44abducted and again left near the school in the early hours of next
morning has a ring of truth. It appears that the trial court
searched for contradictions and variations in the statement of the
prosecutrix microscopically, so as to disbelieve her version. The
observations of the trial court that the story of the prosecutrix that
she was left near the examination centre next morning at about 6
a.m. was “not believable” as “the accused would be the last
persons to extend sympathy to the prosecutrix” are not at all
intelligible. The accused were not showing “any sympathy” to the
prosecutrix while driving her at 6.00 a.m. next morning to the
place from where she had been abducted but on the other hand
were removing her from the kotha of Ranjit Singh and leaving her
near the examination centre so as to avoid being detected. The
criticism by the trial court of the evidence of the prosecutrix as to
why she did not complain to the lady teachers or to other girl
students when she appeared for the examination at the centre and
waited till she went home and narrated the occurrence to her
mother is unjustified. The conduct of the prosecutrix in this regard
appears to us to be most natural. The trial court overlooked that a
girl, in a tradition-bound non-permissive society in India, would
be extremely reluctant even to admit that any incident which is
likely to reflect upon her chastity had occurred, being conscious of
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
13/44the danger of being ostracized by the society or being looked
down by the society. Her not informing the teachers or her friends
at the examination centre under the circumstances cannot detract
from her reliability. In the normal course of human conduct, this
unmarried minor girl, would not like to give publicity to the
traumatic experience she had undergone and would feel terribly
embarrassed in relation to the incident to narrate it to her
teachers and others overpowered by a feeling of shame and her
natural inclination would be to avoid talking about it to anyone,
lest the family name and honour is brought into controversy.
Therefore her informing her mother only on return to the parental
house and no one else at the examination centre prior thereto is in
accord with the natural human conduct of a female. The courts
must, while evaluating evidence, remain alive to the fact that in a
case of rape, no self-respecting woman would come forward in a
court just to make a humiliating statement against her honour
such as is involved in the commission of rape on her. In cases
involving sexual molestation, supposed considerations which have
no material effect on the veracity of the prosecution case or even
discrepancies in the statement of the prosecutrix should not, unless
the discrepancies are such which are of fatal nature, be allowed to
throw out an otherwise reliable prosecution case. The inherent
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
14/44bashfulness of the females and the tendency to conceal outrage of
sexual aggression are factors which the courts should not
overlook. The testimony of the victim in such cases is vital and
unless there are compelling reasons which necessitate looking
for corroboration of her statement, the courts should find no
difficulty to act on the testimony of a victim of sexual assault alone
to convict an accused where her testimony inspires confidence and
is found to be reliable. Seeking corroboration of her statement
before relying upon the same, as a rule, in such cases amounts to
adding insult to injury. Why should the evidence of a girl or a
woman who complains of rape or sexual molestation, be viewed
with doubt, disbelief or suspicion? The court while appreciating
the evidence of a prosecutrix may look for some assurance of her
statement to satisfy its judicial conscience, since she is a witness
who is interested in the outcome of the charge levelled by her, but
there is no requirement of law to insist upon corroboration of her
statement to base conviction of an accused. 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. Just
as a witness who has sustained some injury in the occurrence,
which is not found to be self-inflicted, is considered to be a good
witness in the sense that he is least likely to shield the real culprit,
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
15/44the evidence of a victim of a sexual offence is entitled to great
weight, absence of corroboration notwithstanding. Corroborative
evidence is not an imperative component of judicial credence in
every case of rape. Corroboration as a condition for judicial
reliance on the testimony of the prosecutrix is not a requirement of
law but a guidance of prudence under given circumstances. 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. Inferences have to be drawn from a given set
of facts and circumstances with realistic diversity and not dead
uniformity lest that type of rigidity in the shape of rule of law is
introduced through a new form of testimonial tyranny making
justice a casualty. Courts cannot cling to a fossil formula and
insist upon corroboration even if, taken as a whole, the case
spoken of by the victim of sex crime strikes the judicial mind as
probable. In State of Maharashtra v. Chandraprakash
Kewalchand Jain [(1990) 1 SCC 550 : 1990 SCC (Cri) 210]
Ahmadi, J. (as the Lord Chief Justice then was) speaking for the
Bench summarised the position in the following words: (SCC p.
559, para 16)
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
16/44“A prosecutrix of a sex offence cannot be put on a 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 alive to and 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
prosecutrix, there is no rule of law or practice incorporated in the
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
prosecutrix 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 prosecutrix must necessarily depend on the
facts and circumstances of each case. But if a prosecutrix is an
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
17/44adult and of full understanding the court is entitled to base a
conviction on her evidence unless the same is shown to be infirm
and not trustworthy. If the totality of the circumstances appearing
on the record of the case disclose that the prosecutrix does not
have a strong motive to falsely involve the person charged, the
court should ordinarily have no hesitation in accepting her
evidence.”
16. Similarly, in Phool Singh v. State of Madhya
Pradesh, (2022) 2 SCC 74, the Hon’ble Apex Court reiterated that
in POCSO cases the testimony of the child victim, if it inspires
confidence, can form the sole basis of conviction, and that minor
discrepancies or absence of certain scientific evidence do not
vitiate the prosecution case when the oral evidence is trustworthy.
Relevant paras 8 to 11 of the said judgment are reproduced below:
“8. In Ganesan [Ganesan v. State, (2020)
10 SCC 573 : (2021) 1 SCC (Cri) 76], this Court has
observed and held that there can be a conviction on
the sole testimony of the victim/prosecutrix when the
deposition of the prosecutrix is found to be
trustworthy, unblemished, credible and her evidence
is of sterling quality. In the aforesaid case, this Court
had an occasion to consider the series of judgments
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
18/44of this Court on conviction on the sole evidence of
the prosecutrix. In paras 10.1 to 10.3, it is observed
and held as under : (Ganesan
case [Ganesan v. State, (2020) 10 SCC 573 : (2021)
1 SCC (Cri) 76] , SCC pp. 578-82)
“10.1. Whether, in the case involving sexual
harassment, molestation, etc. can there be conviction on the
sole evidence of the prosecutrix, in Vijay [Vijay v. State of
M.P., (2010) 8 SCC 191 : (2010) 3 SCC (Cri) 639] , it is
observed in paras 9 to 14 as under : (SCC pp. 195-98)
‘9. In State of Maharashtra v. Chandraprakash
Kewalchand Jain [State of Maharashtra v. Chandraprakash
Kewalchand Jain, (1990) 1 SCC 550 : 1990 SCC (Cri) 210]
this Court held that a woman, who is the victim of sexual
assault, is not an accomplice to the crime but is a victim of
another person’s lust and, therefore, her evidence need not be
tested with the same amount of suspicion as that of an
accomplice. The Court observed as under : (SCC p. 559, para
16)
“16. A prosecutrix of a sex offence cannot be put
on a 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
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
19/44witness and no more. What is necessary is that the court must
be alive to and 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 prosecutrix,
there is no rule of law or practice incorporated in the
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 prosecutrix 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 prosecutrix must
necessarily depend on the facts and circumstances of each
case. But if a prosecutrix is an adult and of full understanding
the court is entitled to base a conviction on her evidence
unless the same is shown to be infirm and not trustworthy. If
the totality of the circumstances appearing on the record of the
case disclose that the prosecutrix does not have a strong
motive to falsely involve the person charged, the court should
ordinarily have no hesitation in accepting her evidence.”
10. In State of U.P. v. Pappu [State of
U.P. v. Pappu, (2005) 3 SCC 594 : 2005 SCC (Cri) 780] this
Court held that even in a case where it is shown that the girl is
a girl of easy virtue or a girl habituated to sexual intercourse,
it may not be a ground to absolve the accused from the charge
of rape. It has to be established that there was consent by her
for that particular occasion. Absence of injury on the
prosecutrix may not be a factor that leads the court to absolve
the accused. This Court further held that there can be
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
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conviction on the sole testimony of the prosecutrix and in case,
the court is not satisfied with the version of the prosecutrix, it
can seek other evidence, direct or circumstantial, by which it
may get assurance of her testimony. The Court held as under :
(SCC p. 597, para 12)
“12. It is well settled that a prosecutrix
complaining of having been a victim of the offence of rape is
not an accomplice after the crime. There is no rule of law that
her testimony cannot be acted upon without corroboration in
material particulars. She stands at a higher pedestal than an
injured witness. In the latter case, there is injury on the
physical form, while in the former it is both physical as well as
psychological and emotional. However, if the court of facts
finds it difficult to accept the version of the prosecutrix on its
face value, it may search for evidence, direct or
circumstantial, which would lend assurance to her testimony.
Assurance, short of corroboration as understood in the context
of an accomplice, would do.”
11. In State of Punjab v. Gurmit Singh [State of
Punjab v. Gurmit Singh, (1996) 2 SCC 384 : 1996 SCC (Cri)
316] , this Court held that in cases involving sexual
harassment, molestation, etc. the court is duty-bound to deal
with such cases with utmost sensitivity. Minor contradictions
or insignificant discrepancies in the statement of a prosecutrix
should not be a ground for throwing out an otherwise reliable
prosecution case. Evidence of the victim of sexual assault is
enough for conviction and it does not require any
corroboration unless there are compelling reasons for seeking
corroboration. The court may look for some assurances of her
statement to satisfy judicial conscience. The statement of the
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
21/44
prosecutrix is more reliable than that of an injured witness as
she is not an accomplice. The Court further held that the delay
in filing FIR for sexual offence may not be even properly
explained, but if found natural, the accused cannot be given
any benefit thereof. The Court observed as under : (SCC pp.
394-96 & 403, paras 8 & 21)
“8. … The court overlooked the situation in
which a poor helpless minor girl had found herself in the
company of three desperate young men who were threatening
her and preventing her from raising any alarm. Again, if the
investigating officer did not conduct the investigation properly
or was negligent in not being able to trace out the driver or
the car, how can that become a ground to discredit the
testimony of the prosecutrix? The prosecutrix had no control
over the investigating agency and the negligence of an
investigating officer could not affect the credibility of the
statement of the prosecutrix. … The courts must, while
evaluating evidence, remain alive to the fact that in a case of
rape, no self-respecting woman would come forward in a court
just to make a humiliating statement against her honour such
as is involved in the commission of rape on her. In cases
involving sexual molestation, supposed considerations which
have no material effect on the veracity of the prosecution case
or even discrepancies in the statement of the prosecutrix
should not, unless the discrepancies are such which are of
fatal nature, be allowed to throw out an otherwise reliable
prosecution case. … Seeking corroboration of her statement
before relying upon the same, as a rule, in such cases amounts
to adding insult to injury. … Corroboration as a condition for
judicial reliance on the testimony of the prosecutrix is not a
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
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requirement of law but a guidance of prudence under given
circumstances. …
***
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 to her testimony, short of corroboration
required in the case of an accomplice. The 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.”
12. In State of Orissa v. Thakara Besra [State of
Orissa v. Thakara Besra, (2002) 9 SCC 86 : 2003 SCC (Cri)
1080] , this Court held that rape is not mere physical assault,
rather it often distracts (sic destroys) the whole personality of
the victim. The rapist degrades the very soul of the helpless
female and, therefore, the testimony of the prosecutrix must be
appreciated in the background of the entire case and in such
cases, non-examination even of other witnesses may not be a
serious infirmity in the prosecution case, particularly where
the witnesses had not seen the commission of the offence.
13. In State of H.P. v. Raghubir Singh [State of
H.P. v. Raghubir Singh, (1993) 2 SCC 622 : 1993 SCC (Cri)
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
23/44
674] , this Court held that there is no legal compulsion to look
for any other evidence to corroborate the evidence of the
prosecutrix before recording an order of conviction. Evidence
has to be weighed and not counted. Conviction can be
recorded on the sole testimony of the prosecutrix, if her
evidence inspires confidence and there is absence of
circumstances which militate against her veracity. A similar
view has been reiterated by this Court in Wahid Khan v. State
of M.P. [Wahid Khan v. State of M.P., (2010) 2 SCC 9 : (2010)
1 SCC (Cri) 1208] placing reliance on an earlier judgment
in Rameshwar v. State of Rajasthan [Rameshwar v. State of
Rajasthan, 1951 SCC 1213 : AIR 1952 SC 54 : 1952 SCR 377]
.
14. Thus, the law that emerges on the issue is to
the effect 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 the sole testimony of the
prosecutrix.’
10.2. In Krishan Kumar Malik v. State of
Haryana [Krishan Kumar Malik v. State of Haryana, (2011) 7
SCC 130 : (2011) 3 SCC (Cri) 61] , it is observed and held by
this Court that to hold an accused guilty for commission of an
offence of rape, the solitary evidence of the prosecutrix is
sufficient, provided the same inspires confidence and appears
to be absolutely trustworthy, unblemished and should be of
sterling quality.
10.3. Who can be said to be a “sterling witness”,
has been dealt with and considered by this Court in Rai
Sandeep v. State (NCT of Delhi) [Rai Sandeep v. State (NCT of
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
24/44
Delhi), (2012) 8 SCC 21 : (2012) 3 SCC (Cri) 750] . In para
22, it is observed and held as under : (SCC p. 29)
’22. [Ed. : Para 22 corrected vide Official
Corrigendum No. F.3/Ed.B.J./48/2012 dated 18-8-2012.] 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 have 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
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
25/44
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.’ “
(emphasis in original)
9. In Pankaj Chaudhary [State (NCT of Delhi) v. Pankaj
Chaudhary, (2019) 11 SCC 575 : (2019) 4 SCC (Cri) 264] , it is
observed and held that as a general rule, if credible, conviction of
the accused can be based on sole testimony, without
corroboration. It is further observed and held that sole testimony
of the prosecutrix should not be doubted by the court merely on
basis of assumptions and surmises. In para 29, it is observed and
held as under : (SCC p. 587)
“29. It is now well-settled principle of law that conviction can be sustained
on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu v. State of
Maharashtra [Vishnu v. State of Maharashtra, (2006) 1 SCC 283 : (2006) 1 SCC (Cri)
217] ]. It is well settled by a catena of decisions of this Court that there is no rule of law
or practice that the evidence of the prosecutrix cannot be relied upon without
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
26/44corroboration and as such it has been laid down that corroboration is not a sine qua non
for conviction in a rape case. If the evidence of the victim does not suffer from any basic
infirmity and the “probabilities factor” does not render it unworthy of credence, as a
general rule, there is no reason to insist on corroboration except from medical evidence,
where, having regard to the circumstances of the case, medical evidence can be expected
to be forthcoming. [State of Rajasthan v. N.K. [State of Rajasthan v. N.K., (2000) 5 SCC
30 : 2000 SCC (Cri) 898] ].”
10. In Sham Singh v. State of Haryana [Sham Singh v. State of Haryana,
(2018) 18 SCC 34 : (2019) 3 SCC (Cri) 129] , it is observed that testimony of the victim
is vital and unless there are compelling reasons which necessitate looking for
corroboration of her statement, the courts should find no difficulty to act on the
testimony of the victim of sexual assault alone to convict an accused where her testimony
inspires confidence and is found to be reliable. It is further observed that seeking
corroboration of her statement before relying upon the same, as a rule, in such cases
amounts to adding insult to injury. In paras 6 and 7, it is observed and held as under :
(SCC pp. 37-38)
“6. We are conscious that the courts shoulder 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
prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable
prosecution case. If the 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 to her testimony, short of corroboration required
in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the
background of the entire case and the court must be alive to its responsibility and be
sensitive while dealing with cases involving sexual molestations or sexual assaults.
[See State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC
384 : 1996 SCC (Cri) 316] (SCC p. 403, para 21).]
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
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7. It is also by now well settled that the courts must, while evaluating
evidence, remain alive to the fact that in a case of rape, no self-respecting woman would
come forward in a court just to make a humiliating statement against her honour such as
is involved in the commission of rape on her. In cases involving sexual molestation,
supposed considerations which have no material effect on the veracity of the prosecution
case or even discrepancies in the statement of the prosecutrix should not, unless the
discrepancies are such which are of fatal nature, be allowed to throw out an otherwise
reliable prosecution case. The inherent bashfulness of the females and the tendency to
conceal outrage of sexual aggression are factors which the courts should not overlook.
The testimony of the victim in such cases is vital and unless there are compelling reasons
which necessitate looking for corroboration of her statement, the courts should find no
difficulty to act on the testimony of a victim of sexual assault alone to convict an accused
where her testimony inspires confidence and is found to be reliable. Seeking
corroboration of her statement before relying upon the same, as a rule, in such cases
amounts to adding insult to injury. (See Ranjit Hazarika v. State of Assam [Ranjit
Hazarika v. State of Assam, (1998) 8 SCC 635 : 1998 SCC (Cri) 1725] .)”
11. Applying the law laid down by this Court in the aforesaid decisions to
the facts of the case on hand and as observed hereinabove, we see no reason to doubt the
credibility and/or trustworthiness of the prosecutrix. She is found to be reliable and
trustworthy. Therefore, without any further corroboration, the conviction of the accused
relying upon the sole testimony of the prosecutrix can be sustained.”
17. Learned counsel for the appellant vehemently
contended that the Investigating Officer failed to get the appellant
medically examined under Section 53A Cr.P.C. to ascertain
whether there was any injury on his private part which could have
been caused while thrusting the same into the private part of the
minor girl whose private part was not fully developed. It was
argued that such examination was necessary to determine whether
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
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the appellant was physically capable of committing the alleged
sexual offence.
18. This contention deserves to be rejected outright.
Section 53A Cr.P.C. provides for medical examination of the
accused in cases of rape to ascertain the commission of the offence
and the nature of injuries. However, in the instant case, the specific
allegation against the appellant, as consistently deposed by the
victim (PW-6) and corroborated by the eye-witnesses (PW-1 and
PW-2), is that the appellant not only made the victim hold and
shake his penis but also inserted his finger into her vagina before
committing penile penetration.
19. It is well settled that under Section 3 of the POCSO
Act, penetrative sexual assault includes penetration of the vagina
by any part of the body of another person, including a finger. It is
not mandatory that penile penetration must be proved in every
case. Even if the accused were incapable of penile penetration for
any reason, insertion of a finger would still constitute penetrative
sexual assault. Since a finger does not normally sustain visible
injuries while being inserted into the vagina, non-examination of
the appellant under Section 53A Cr.P.C. is neither mandatory nor
fatal to the prosecution case in the facts of this case.
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
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20. Another ground urged by the appellant was that the
age of the victim was not determined in accordance with the
procedure prescribed under the Juvenile Justice (Care and
Protection of Children) Act, 2015. It was submitted that when the
victim is on the verge of majority, strict compliance with Section
94 of the JJ Act is mandatory.
21. Section 94 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 provides the procedure for
determination of age of a child in conflict with law or a child in
need of care and protection. It gives preference to school
certificates or matriculation certificate, and only in their absence,
directs medical examination through ossification test or other
scientific methods.
22. In the present case, the victim (PW-6) stated that she
was aged about 9 years. Her parents (PW-3 and PW-5) also stated
her age to be 9 years. Dr. Sushila Chaudhary (PW-4), after
radiological examination, opined that the victim was below 12
years (Ext. 1/1). Even if the benefit of the two-year margin of error
is given in favour of the appellant, the victim’s age would still be
between 10 and 14 years. In either case, she remains a “child”
within the meaning of Section 2(1)(d) of the POCSO Act.
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
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23. The failure of the Investigating Officer to strictly
follow the procedure under Section 94 of the JJ Act is not fatal to
the prosecution case when the age is otherwise proved by
consistent oral evidence of the victim and her parents and is
corroborated by the medical opinion. At this point it would be
relevant here to refer to State of Madhya Pradesh v. Anoop
Singh, (2015) 7 SCC 773. In this case, the Hon’ble Supreme Court
restored the conviction under Sections 363, 366, and 376 I.P.C.
after the High Court had acquitted the accused partly on grounds
of procedural issues with age proof documents. The trial court had
relied on multiple documentary proofs (including a birth certificate
and school records) showing the prosecutrix was below 16 at the
time of the incident. The Hon’ble Supreme Court held:
16. In the present case, we have before us two
documents which support the case of the prosecutrix that she was
below 16 years of age at the time the incident took place. These
documents can be used for ascertaining the age of the prosecutrix
as per Rule 12(3)(b). The difference of two days in the dates, in
our considered view, is immaterial and just on this minor
discrepancy, the evidence in the form of Exts. P-5 and P-6 cannot
be discarded. Therefore, the trial court was correct in relying on
the documents.
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
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24. The Court reversed the acquittal, finding the age
sufficiently proved despite any procedural compliance issues
raised regarding the documents.
25. It is apposite to remind oneself that procedure is the
handmaiden of justice, and therefore, when the evidence clearly
establishes that the victim is a minor, technical non-compliance
with the age determination procedure shall not vitiate the
conviction.
26. Of particular relevance to the facts of the present
case is the decision of the Hon’ble Supreme Court in Veerendra v.
State of M.P., (2022) 8 SCC 668. This case involved a brutal rape
and murder of a minor girl. The Hon’ble Supreme Court
emphasising the sancitity of the testimony of the child victim and
the limited impact of certain investigative lapses when the ocular
evidence is trustworthy, observed that minor discrepancies in
description of the place or absence of certain scientific evidence do
not vitiate the conviction when the direct evidence of the victim
and eye-witnesses is consistent and inspires confidence.
27. Section 53(A) of Cr.P.C. enables medical
examination of a person accused of rape for the purpose of
collecting scientific evidence such as semen, blood, hair samples
or DNA profile. The Hon’ble Court pointed out, that the provision
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
32/44
is facilitative in nature and not mandatory and therefore, failure to
conduct DNA profiling cannot by itself be treated as fatal to the
prosecution case. The judgment underscores that in heinous
offences against the children, the Court must adopt a sensitive
approach while ensuring that the prosecution has discharged its
burden beyond reasonable doubt. The relevant paras 46 and 53 of
the said judgment are reproduced below:
“46. There can be no doubt with respect to the position
that a fair investigation is necessary for a fair trial. Hence, it is
the duty of the investigating agency to protect the rights of both
the accused and the victim by adhering to the prescribed
procedures in the matter of investigation and thereby to ensure a
fair, competent and effective investigation. Even while holding so,
we cannot be oblivious of the well-nigh settled position that solely
on account of defects or shortcomings in investigation an accused
is not entitled to get acquitted. In other words, it also cannot be
the sole reason for interference with a judgment of conviction if
rest of the evidence is cogent enough to sustain the same.
53. In view of the nature of the provision under Section
53-ACrPC and the decisions referred to, we are also of the
considered view that the lapse or omission (purposeful or
otherwise) to carry out DNA profiling, by itself, cannot be
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
33/44permitted to decide the fate of a trial for the offence of rape
especially, when it is combined with the commission of the offence
of murder as in case of acquittal only on account of such a flaw or
defect in the investigation the cause of criminal justice would
become the victim. The upshot of this discussion is that even if
such a flaw had occurred in the investigation in a given case, the
court has still a duty to consider whether the materials and
evidence available on record before it, are enough and cogent to
prove the case of the prosecution. In a case which rests on
circumstantial evidence, the Court has to consider whether,
despite such a lapse, the various links in the chain of
circumstances form a complete chain pointing to the guilt of the
accused alone in exclusion of all hypothesis of innocence in his
favour.”
Appreciation of Evidence
28. This Court has meticulously examined the entire
evidence on record. The testimony of the victim (PW-6) stands as
the cornerstone of the prosecution case. Her account, both in court
and in the statement under Section 164 Cr.P.C. recorded barely two
days after the incident, is clear, consistent and inspires complete
confidence. She has given a vivid description of the entire
sequence, right from the approach by the appellant, the demand to
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
34/44
hold and shaking his penis, the beating on refusal, digital
penetration, penile penetration, the pain and screaming, and to the
timely arrival of the rescuers. There is no material contradiction
between her court testimony and the 164 statement. Minor
variations regarding the precise description of the spot (banyan
tree versus brinjal field) are natural in the testimony of a child who
had undergone a traumatic experience and do not affect the core of
the prosecution story.
29. The evidence of PW-1 and PW-2, the two eye-
witnesses, provides powerful corroboration. They actually saw the
appellant naked and on top of the naked victim. Their immediate
rescue of the victim and the spontaneous disclosure made by her
on the way home further strengthen the prosecution case. The fact
that these witnesses are related to the victim as cousins does not
render their testimony unreliable. The Hon’ble Supreme Court has
repeatedly held that the evidence of related witnesses cannot be
discarded merely on the ground of relationship if it is otherwise
trustworthy and inspires confidence. Reliance in this regard may
be placed on Brahm Swaroop v. State of U.P., (2011) 6 SCC 288.
The relevant paras 26 and 28 of the said judgment are reproduced
as under:
“26. Merely because the witnesses
were closely related to the deceased persons,
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
35/44their testimonies cannot be discarded. Their
relationship to one of the parties is not a factor
that affects the credibility of a witness, more
so, a relation would not conceal the actual
culprit and make allegations against an
innocent person. A party has to lay down a
factual foundation and prove by leading
impeccable evidence in respect of its false
implication. However, in such cases, the court
has to adopt a careful approach and analyse
the evidence to find out whether it is cogent
and credible evidence. (Vide Dalip Singh v.
State of Punjab [(1953) 2 SCC 36 : AIR 1953
SC 364 : 1953 Cri LJ 1465] , Masalti v. State
of U.P. [AIR 1965 SC 202 : (1965) 1 Cri LJ
226] , Lehna v. State of Haryana [(2002) 3
SCC 76 : 2002 SCC (Cri) 526] and Rizan v.
State of Chhattisgarh [(2003) 2 SCC 661 :
2003 SCC (Cri) 664] .)
28. Where a witness to the
occurrence has himself been injured in the
incident, the testimony of such a witness is
generally considered to be very reliable, as he
is a witness that comes with an in-built
guarantee of his presence at the scene of the
crime and is unlikely to spare his actual
assailant(s) in order to falsely implicate
someone. “Convincing evidence is required to
discredit an injured witness.” (Vide State of
U.P. v. Kishan Chand [(2004) 7 SCC 629 :
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
36/442004 SCC (Cri) 2021] , Krishan v. State of
Haryana [(2006) 12 SCC 459 : (2007) 2 SCC
(Cri) 214] , Dinesh Kumar v. State of
Rajasthan [(2008) 8 SCC 270 : (2008) 3 SCC
(Cri) 472] , Jarnail Singh v. State of Punjab
[(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107] ,
Vishnu v. State of Rajasthan [(2009) 10 SCC
477 : (2010) 1 SCC (Cri) 302] , Annareddy
Sambasiva Reddy v. State of A.P. [(2009) 12
SCC 546 : (2010) 1 SCC (Cri) 630 : AIR 2009
SC 2661] and Balraje v. State of Maharashtra
[(2010) 6 SCC 673 : (2010) 3 SCC (Cri)
211] .)”
30. Another significant issue that arises for consideration
is whether the evidence of PW-3 (mother) and PW-5 (father),
which is essentially hearsay in nature, can be relied upon. After the
incident, the victim immediately narrated the entire sequence of
events to PW-1 and PW-2, who brought her home. She then
disclosed the same facts to her parents.
31. The evidence of the parents cannot be discarded
merely on the ground that they are hearsay witnesses. Their
testimony is clearly admissible under Section 6 of the Indian
Evidence Act, 1872 on the principle of res gestae. Section 6
provides that facts which form part of the same transaction are
relevant, even if they are not in issue. The immediate disclosure by
the victim to her parents immediately after the occurrence forms
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
37/44
an integral part of the same transaction. Such spontaneous
statements made soon after the incident carry high probative value
as they are free from the risk of tutoring or concoction.
32. The Hon’ble Supreme Court in Gentela
Vijayavardhana Rao v. State of A.P., (1996) 6 SCC 241,
explaining the intricacies of the Section 6 of the Indian Evidence
Act, 1872, held that statements made immediately after the
occurrence explaining the circumstances of the transaction are
admissible as res gestae evidence. The relevant para 15 of the said
judgment is reproduced below:
“15. The principle of law embodied in
Section 6 of the Evidence Act is usually known as the
rule of res gestae recognised in English law. The
essence of the doctrine is that a fact which, though
not in issue, is so connected with the fact in issue “as
to form part of the same transaction” becomes
relevant by itself. This rule is, roughly speaking, an
exception to the general rule that hearsay evidence is
not admissible. The rationale in making certain
statement or fact admissible under Section 6 of the
Evidence Act is on account of the spontaneity and
immediacy of such statement or fact in relation to the
fact in issue. But it is necessary that such fact or
statement must be a part of the same transaction. In
other words, such statement must have been made
contemporaneous with the acts which constitute the
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
38/44offence or at least immediately thereafter. But if there
was an interval, however slight it may be, which was
sufficient enough for fabrication then the statement is
not part of res gestae. In R. v. Lillyman a statement
made by a raped woman after the ravish-ment was
held to be not part of the res gestae on account of
some interval of time lapsing between the act of rape
and the making of the statement. Privy Council while
considering the extent up to which this rule of res
gestae can be allowed as an exemption to the
inhibition against hearsay evidence, has observed in
Teper v. R. thus:
“The rule that in a criminal trial hearsay
evidence is admissible if it forms part of the res
gestae is based on the propositions that the human
utterance is both a fact and a means of
communication and that human action may be so
interwoven with words that the significance of the
action cannot be under-stood without the correlative
words and the dissociation of the words from the
action would impede the discovery of the truth. It is
essential that the words sought to be proved by
hearsay should be, if not abso lutely
contemporaneous with the action or event, at least so
clearly associated with it that they are part of the
thing being done, and so an item or part of the real
evidence and not merely a reported statement.”
33. The correct legal position stated above needs no
further elucidation.
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
39/44
34. Here, the act of the accused defiling the victim
during the middle of the day, the victim’s rescue by PW-1 and PW-
2, her narrating the incident to her parents, are all circumstances so
inter-twined with each other by proximity of time and space that
the disclosure by the victim to her parents becomes part of the
same transaction. Hence, the evidence of PW-3 and PW-5 is both
admissible and reliable.
35. The medical evidence furnished by PW-4 fully
corroborates the ocular testimony. The finding of vaginal pain,
redness and “angry look of mucosa” within 27 hours of the
incident is a clear indicator of recent penetrative assault. In
Parminder v. State of Delhi, (2014) 2 SCC 592, the Hon’ble Apex
Court was pleased to hold, that absence of spermatozoa in vaginal
swab does not demolish the prosecution case. The relevant para 11
of the said judgment is reproduced below:
“11. Section 375 IPC defines the
offence of “rape” and the Explanation to
Section 375 IPC, states that penetration is
sufficient to constitute the sexual intercourse
necessary to the offence of rape. This Court
has accordingly held in Wahid Khan v. State of
M.P. [(2010) 2 SCC 9 : (2010) 1 SCC (Cri)
1208] that even the slightest penetration is
sufficient to make out an offence of rape and
depth of penetration is immaterial. In the
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
40/44aforesaid case, this Court has relied on the
very same passage from Modi in Medical
Jurisprudence and Toxicology (22nd Edn.)
quoted above. In the present case, even though
the hymen of the prosecutrix was not ruptured
the High Court has held that there was
penetration which has caused bleeding in the
private parts of the prosecutrix as would be
evident from the fact that the underwear of the
prosecutrix was stained by blood. In our
considered opinion, the High Court was right
in holding the appellant guilty of the offence of
rape and there is no merit in the contention of
the learned counsel for the appellant that there
was only an attempt to rape and not rape by
the appellant.”
36. Further, the Hon’le Supreme Court, in Gurmeet
(Supra) has ruled that non-seizure of clothes and other
investigative lapses do not have a detrimental effect on the
prosecution’s case. Relevant para 21 of the said judgment is
reproduced below:
“21. Of late, crime against women in
general and rape in particular is on the increase. It
is an irony that while we are celebrating woman’s
rights in all spheres, we show little or no concern for
her honour. It is a sad reflection on the attitude of
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
41/44indifference 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 courts, therefore, shoulder 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 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
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
42/44may look for evidence which may lend assurance to
her testimony, short of corroboration required in the
case of an accomplice. The 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.”
37. In the instant case, the two eye-witnesses saw the act
in broad daylight, the victim herself gave a consistent account, and
medical findings support penetration. The absence of spermatozoa
or non-seizure of clothes, therefore, does not create any reasonable
doubt.
38. The alleged discrepancy regarding the place of
occurrence and the non-examination of panchayat members or
boundary witnesses are also not fatal. The place described by all
witnesses falls within the same general area near Bairiya Pul and
the brinjal field. Such minor variations are inevitable and do not
shake the credibility of the witnesses. The panchayat, even if held,
was not a formal proceeding and its non-examination does not
undermine the direct evidence. The Investigating Officer (PW-7)
has proved the chain of custody of documents and the place of
occurrence. The appellant’s own denial of any land dispute when
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
43/44
questioned by the IO further weakens the defence plea of false
implication.
39. In the light of the statutory presumption under
Section 29 of the POCSO Act, once the foundational facts of the
victim being a child below 12 years and the commission of
penetrative sexual assault are established by reliable evidence, the
burden shifts to the accused to rebut the presumption. The
appellant has failed to discharge that burden.
Conclusion
40. After a careful and anxious consideration of the
entire evidence on record, this Court is of the firm opinion that the
learned trial court has correctly appreciated the evidence and has
rightly recorded the conviction. The prosecution has proved its
case beyond reasonable doubt. The testimony of the victim and the
two eye-witnesses is reliable, consistent and trustworthy. The
medical evidence provides adequate corroboration. The alleged
lapses in investigation are not of such a nature as to create any
reasonable doubt in the mind of the Court. The sentence of life
imprisonment imposed by the trial court is commensurate with the
gravity of the offence and does not call for any interference.
41. Accordingly, the criminal appeal is dismissed. The
judgment of conviction dated 16.04.2019 and the order of sentence
Patna High Court CR. APP (DB) No.634 of 2019 dt.07-05-2026
44/44
dated 23.04.2019 passed by the learned 1st Additional Sessions
Judge-cum-Special Judge (POCSO Act), Bhagalpur are hereby
affirmed. The appellant shall serve the sentence.
(Bibek Chaudhuri, J)
I agree.
Chandra Shekhar Jha, J :
(Chandra Shekhar Jha, J)
suraj/-
AFR/NAFR NAFR CAV DATE 24.04.2026 Uploading Date 07.05.2026 Transmission Date 07.05.2026
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