Himachal Pradesh High Court
Raman Kumar vs State Of H.P on 7 July, 2026
2026:HHC:26975
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 355 of 2023
.
Reserved on: 22.06.2026
Date of Decision: 07.07.2026
Raman Kumar ...Appellant
Versus
State of H.P. ...Respondent
of
Coram
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Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Appellant : Ms. Anjali Soni Verma, Advocate.
For the Respondent/State : Mr Lokender Kutlehria, Additional
Advocate General.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment of
conviction and order of sentence dated 25.07.2023 passed by the
learned Additional Sessions Judge (Fast Track Special Court
POCSO), Kangra at Dharamshala (learned Trial Court) vide which
the appellant (accused before the learned Trial Court) was
convicted and sentenced as under:
Under Section 4 of the POCSO To suffer simple imprisonment for a
Act period of seven years, pay a fine of
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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₹5,000/- and in default of payment of
fine, to undergo simple imprisonment
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for one year.
(The parties shall hereinafter be referred to in the same manner as they
were arrayed before the learned Trial Court for convenience)
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2. Briefly stated, the facts giving rise to the present appeal
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are that the police filed a charge sheet against the accused for the
commission of offences punishable under Section 376 of Indian
Penal Code (IPC), Section 4 of Protection of Children from Sexual
Offences Act (POCSO) Act and Section 3(2)(v) of Scheduled Castes
and Scheduled Tribes Prevention of Atrocities Act (SC & ST Act). It
was asserted that the informant was aged 14 years and was
studying in class 9th. She came out of her home to answer the call of
nature on 14.10.2018 at about 06.30 p.m. The accused dragged her
and raped her. She became unconscious and was brought to her
home. The matter was reported to the police, and the police
recorded an entry (Ext.P3/PW12) in the daily diary. Inspector
Mahinder Kumar (PW27) went to the spot to verify the correctness
of the information. The victim filed an application (Ext.P1/PW9),
which was sent to the police station where an FIR (Ext.P2/PW9)
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was registered. Inspector Mahinder Kumar (PW27) investigated
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the matter. He recorded the statements of the victim, her father
and her aunt. The statements were videographed, and the video
recording was transferred to the DVD (Ext.P9/PW19). Inspector
Mahinder Kumar (PW27) filed an application (Ext.PW3/A) for the
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medical examination of the victim. Dr Meenakshi (PW3) examined
the victim and found that the possibility of sexual intercourse
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could not be ruled out. She issued the MLC (Ext.PW3/B). She
obtained the samples and handed them over to the police officials
accompanying the victim. Inspector Mahinder Kumar (PW27) filed
an application (Ext.P1/PW27) before the learned Additional Chief
Judicial Magistrate, Nurpur, for recording the statement of the
victim. Learned Magistrate recorded the victim’s statement
(Ext.P4/PW9). Inspector Mahinder Kumar (PW27) visited the spot
and prepared the site plan (Ext.P2/PW27) on the identification of
the victim and her aunt. He took the photographs (Ext.P5/PW9 to
Ext.P8/PW9). He lifted the sample soil from the spot, put it in a
parcel and sealed the parcel with five seals of seal ‘K’. He obtained
the seal impression (Ext.P1/PW13) on a separate piece of cloth. He
seized the parcel vide memo (Ext.PW1/A). He arrested the accused.
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The accused identified the spot. Inspector Mahinder Kumar (PW27)
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prepared the spot memo (Ext. PW1/C) and the site plan (Ext.
P3/PW27). The vehicle of the accused bearing registration No. PB-
07BG-3389 was found parked on the spot. Inspector Mahinder
Kumar (PW27) seized the vehicle along with the utensils and the
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documents vide memo (Ext.PW1/P). Roshan Lal (PW19) took the
photographs (Ext.P1/PW19 to Ext.P8/PW19). He handed over the
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utensils and the vehicle to the father of the accused vide memo
(Ext.P4/PW27). He filed an application (Ext.PW7/A) for supplying
the birth certificate of the victim. Shakti Chand (PW7) issued the
birth certificate of the victim (Ext.PW7/A) showing that the victim
was born on 03.05.2004. He forwarded the certificate to the police
vide letter (Ext.PW7/C). Kewal Krishan handed over a copy of the
Family Register (Ext.P5/PW27) showing that the victim belonged
to the Schedule Caste category. The case property was sent to the
FSL, and a report (Ext.PY) was issued stating that Human blood
was detected in the vaginal swab and pubic hair of the victim and
the pants of the accused, but it was insufficient for blood grouping.
Human blood and semen were detected on the underwear of the
accused. Blood was detected in traces in vagina smear side of the
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victim and the pubic hair of the accused, but it was insufficient for
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serological examination. Human blood was also detected on the
T-shirt of the accused, but it was inconclusive in respect of blood
group. The samples were also tested for DNA. Two profiles were
obtained from the blood sample of the victim and the accused. DNA
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profile obtained from the T-shirt of the accused was consistent
with the DNA profile obtained from the blood sample of the victim
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and completely matched the blood sample of the accused. The
statements of witnesses were recorded as per their version, and
after the completion of the investigation, the challan was prepared
and presented before the Court.
3. Learned Trial Court found sufficient reasons to summon
the accused. When the accused appeared, he was charged with the
commission of an offence punishable under Section 4 of the POCSO
Act and Section 3(1) (w) (i) of the SC and ST Act, to which he
pleaded not guilty and claimed to be tried.
4. The prosecution examined 27 witnesses to prove its
case. Kewal Krishan (PW1) and Kewal Singh (PW2) did not support
the prosecution’s case. Dr Meenakshi (PW3) medically examined
the victim. Daler Singh (PW4) loaded the articles in the vehicle.
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Sushil Kumar (PW5) issued the caste certificate of the victim.
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Sanjay Singh (PW6) received the application for issuance of the
caste certificate. Shakti Chand (PW7) issued the date of birth
certificate of the victim. Victim’s father (PW8), victim (PW9), and
victim’s aunts (PW10 and PW22) narrated the incident. HASI
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Mohinder Singh (PW11) proved the entry in the daily diary. ASI
Ashok Kumar (PW12), ASI Raj Kumar (PW14), and ASI Rakesh
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Kumar (PW21) were working as MHCs. HC Vipin Kumar (PW13)
witnessed the recoveries. LC Raj Kumari (PW15) recorded the
supplementary statement of the victim and accompanied the
victim to the hospital. HASI Shashi Pal (PW16) accompanied the
accused to the hospital. HC Sanjeev Kumar (PW17) carried the case
property to RFSL Dharamshala. Jagdev Singh (PW18) proved the
entry in the daily diary. Roshan Lal (PW19) took the photographs
and videographed the spot. Constable Vivek (PW20) brought the
result of the analysis and case property from the RSFL. Dr Arun
Sharma (PW23) analysed the samples for DNA profiling. Sandeep
Pathania (PW24) signed the FIR. Dy. SP Sahil Arora (PW25) and
Inspector Mahinder Kumar (PW27) investigated the matter. Dr
Varun Sharma (PW26) medically examined the accused.
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5. The accused, in his statement recorded under Section
.
313 of the Code of Criminal Procedure (Cr.P.C.), denied the
prosecution’s case in its entirety. He claimed that he was innocent
and was falsely implicated. He did not produce any evidence in his
defence.
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6. Learned Trial Court held that the victim’s testimony was
satisfactory. It was duly corroborated by the statements of her
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father, mother and aunt. Dr Meenakshi (PW3) stated that the
possibility of sexual intercourse could not be ruled out. This
corroborated the victim’s version. The DNA profile found on the
T-shirt of the accused established the prosecution’s version. The
victim was a minor on the date of the incident. However, it was not
proved that the accused had committed the offence because the
victim belonged to the scheduled caste. Hence, the learned Trial
Court convicted and sentenced the accused as aforesaid.
7. Being aggrieved by the judgment and order passed by
the learned Trial Court, the accused has filed the present appeal
asserting that the learned Trial Court erred in convicting and
sentencing him. There were major contradictions in the statements
of the victim recorded before the Police, the magistrate, and the
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Court. The identification of the accused was not properly proved.
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The Medical Officer had not found any injuries on the body of the
victim, which ruled out the possibility of sexual intercourse. The
DNA analysis could not have been used to convict the accused.
There was a discrepancy in the colour of the T-shirt analysed in the
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laboratory, which made the prosecution’s case highly doubtful.
Therefore, it was prayed that the present appeal be allowed and the
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judgment and order passed by the learned Trial Court be set aside.
8. I have heard Ms Anjali Soni Verma, learned counsel for
the appellant/accused, and Mr Lokender Kutlehria, learned
Additional Advocate General for the respondent/State.
9. Ms Anjali Soni Verma, learned counsel for the
appellant/accused, submitted that the learned Trial Court erred in
convicting and sentencing the accused. Dr Meenakshi (PW3) had
not found any injuries on the person of the victim, and the victim’s
hymen was found intact, which ruled out the possibility of sexual
intercourse. The identification of the accused was highly suspect.
The victim was studying in school, and her age was to be proved by
the school certificate as per Section 94 of the Juvenile Justice (Care
and Protection of Children Act), 2015, (JJ Act). No such certificate
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was proved on record, and reliance could not have been placed
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upon the certificate issued by the Panchayat or the copy of the
Pariwar Register. There was a discrepancy in the colour of the T-
shirt, and DNA is not a perfect science, which could result in the
conviction of a person. Learned Trial Court ignored all these
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aspects. Therefore, she prayed that the present appeal be allowed
and the judgment and order passed by the learned Trial Court be
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set aside. She relied upon the judgments of this Court in Tsewang
vs. State of H.P. Cr. Appeal No. 138 of 2019 decided on 19.09.2023, V vs.
State of H.P. 2024:HHC:13464 and Mukesh Kumar vs. State of H.P. Cr.
Appeal No. 321 of 2021 decided on 27.12.202 in support of her
submissions.
10. Mr Lokender Kutlehria, learned Additional Advocate
General for the respondent/State, submitted that the mere absence
of injuries on the body of the victim is not sufficient to conclude
that no rape had taken place. The victim’s testimony was
corroborated by the statements of her father and aunts. The
victim’s DNA was found in the T-shirt of the accused, which
corroborated the prosecution’s version. There is a clerical error in
the report of the analysis regarding the colour of the T-shirt,
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which is not sufficient to doubt the prosecution’s version. There is
.
no infirmity in the judgment and order passed by the learned Trial
Court. Therefore, he prayed that the present appeal be dismissed.
11. I have given a considerable thought to the submissions
made at the bar and have gone through the records carefully.
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12. The victim (PW9) stated that she had gone to the fields
to answer the call of nature on 14.10.2018 at about 06.30 p.m. The
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accused gagged her mouth with a piece of cloth and hit her head
with a heavy object, as a result of which she lost consciousness. She
regained consciousness in her house. Her clothes were stained with
blood, and the accused had raped her. The accused was drunk. She
made a complaint (Ext.P1/PW9) to the police, and an FIR
(Ext.P2/PW9) was registered. She stated in her cross-examination
that she had sustained injuries to her back and head. She had
disclosed the injuries to the Doctor. She admitted that the police
had not seized any weapon or handkerchief during the
investigation. She admitted that she had found her clothes to be
proper after she had regained consciousness. She volunteered to
say that they were smeared with blood. She admitted that she had
told the Doctor that she was menstruating and that some unknown
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person had hit her from behind. She admitted that she did not
.
know the accused by name before the incident. She volunteered to
say that the accused used to visit her village and she knew him by
face. She admitted that the name of the accused was told to her by
the police. She admitted that the accused was not identified in a
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Test Identification Parade. She admitted that the police had
recorded her statement (Ext.P1/PW9), wherein it was recorded that
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the accused had acted indecently with her from the beginning and
digitally penetrated her. She denied that the accused had not done
anything to her.
13. Ms Anjali Soni Verma, learned counsel for the accused,
submitted that the testimony of the victim is not satisfactory. She
has materially improved upon her version. She referred to the
statements of a victim recorded by the police, the Magistrate and
the Court to highlight various discrepancies. This submission will
not help the accused because the victim’s attention was not
brought to the discrepancies in the previous statements recorded
by the Police or the Magistrate. It was laid down by the Hon’ble
Supreme Court in Binay Kumar Singh Versus State of Bihar, 1997 (1)
SCC 283, that if a witness is to be contradicted with his previous
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statement, his attention must be drawn towards it. It was
.
observed: –
“11. The credit of a witness can be impeached by proof of any
statement which is inconsistent with any part of hisevidence in Court. This principle is delineated in S. 155 (3) of
the Evidence Act, and it must be borne in mind when reading
S. 145, which consists of two limbs. It is provided in the firstof
limb of S.145 that a witness may be cross-examined as to the
previous statement made by him without such writing being
shown to him but the second limb provides that “if it is
intended to contradict him by the writing his attention must
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before the writing can be provided, be called to those parts of
it which are to be used for the purpose of contradictinghim.” There is thus a distinction between the two vivid
limbs, though subtle it may be. The first limb does not
envisage impeaching the credit of a witness, but it merely
enables the opposite party to cross-examine the witnesswith reference to the previous statements made by him. He
may at that stage succeed in eliciting materials to his benefit
through such cross-examination, even without resorting tothe procedure laid down in the second limb. But if the
witness disowns having made any statement which isinconsistent with his present stand, his testimony in Court
on that score would not be vitiated until the cross-examinerproceeds to comply with the procedure prescribed in the
second limb of S. 145.
12. In Bhagwan Singh’s case (AIR 1952 SC 214), Vivian Bose, J.,
pointed out in paragraph 25 that during the cross-
examination of the witnesses concerned, the formalities
prescribed by S. 145 are complied with. The cross-
examination, in that case, indicated that every circumstance
intended to be used as a contradiction was put to him point
by point and passage by passage. Learned Judges were called
upon to deal with an argument that witnesses’ attention
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2026:HHC:26975addition thereto. Their Lordships were, however, satisfied in
that case that the procedure adopted was in substantial.
compliance with S. 145, and hence held that all that is
required is that the witness must be treated fairly and must
be afforded a reasonable opportunity of explaining the
contradictions after his attention has been drawn to them ina fair and reasonable manner. On the facts of that case, there
is no dispute with the proposition laid therein.
13. So long as the attention of PW 32 (Sukhdev Bhagat) was
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not drawn to the statement attributed to him as recorded by
DW-10 (Nawal Kishore Prasad), we are not persuaded to
reject the evidence of PW-32 that he gave Ex. 14 statement at
the venue of occurrence and that he had not given any other
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statement earlier thereto.”
14. A similar view was taken in Alauddin v. State of Assam,
2024 SCC OnLine SC 760, wherein it was observed:
“7. When the two statements cannot stand together, they
become contradictory statements. When a witness makes astatement in his evidence before the Court which is
inconsistent with what he has stated in his statementrecorded by the Police, there is a contradiction. When a
prosecution witness whose statement under Section 161(1)or Section 164 of CrPC has been recorded states factual
aspects before the Court which he has not stated in his prior
statement recorded under Section 161(1) or Section 164 of
CrPC, it is said that there is an omission. There will be an
omission if the witness has omitted to state a fact in his
statement recorded by the Police, which he states before the
Court in his evidence. The explanation to Section 162CrPC
indicates that an omission may amount to a contradiction
when it is significant and relevant. Thus, every omission is
not a contradiction. It becomes a contradiction provided it
satisfies the test laid down in the explanation under Section
162. Therefore, when an omission becomes a contradiction,
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2026:HHC:26975the procedure provided in the proviso to sub-Section (1) of
Section 162 must be followed for contradicting witnesses in.
the cross-examination.
8. As stated in the proviso to sub-Section (1) of section 162,
the witness has to be contradicted in the manner provided
under Section 145 of the Evidence Act. Section 145 readsthus:
“145. Cross-examination as to previous statements in
of
writing.–A witness may be cross-examined as to
previous statements made by him in writing or
reduced into writing, and relevant to matters in
question, without such writing being shown to him, or
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being proved; but, if it is intended to contradict him by
the writing, his attention must, before the writing canbe proved, be called to those parts of it which are to be
used for the purpose of contradicting him.”
The Section operates in two parts. The first part provides
that a witness can be cross-examined as to his previous
statements made in writing without such writing being
shown to him. Thus, for example, a witness can be cross-
examined by asking whether his prior statement exists. The
second part is regarding contradicting a witness. While
confronting the witness with his prior statement to prove
contradictions, the witness must be shown his prior
statement. If there is a contradiction between the statement
made by the witness before the Court and what is recorded in
the statement recorded by the police, the witness’s attention
must be drawn to specific parts of his prior statement, which
are to be used to contradict him. Section 145 provides that
the relevant part can be put to the witness without the
writing being proved. However, the previous statement used
to contradict witnesses must be proved subsequently. Only if
the contradictory part of his previous statement is proved
can the contradictions be said to be proved. The usual
practice is to mark the portion or part shown to the witness
of his prior statement produced on record. Marking is done
differently in different States. In some States, practice is to
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mark the beginning of the portion shown to the witness with
an alphabet and the end by marking with the same alphabet.
.
While recording the cross-examination, the Trial Court
must record that a particular portion marked, for example,
as AA was shown to the witness. Which part of the prior
statement is shown to the witness for contradicting him has
to be recorded in the cross-examination. If the witness
admits to having made such a prior statement, that portion
can be treated as proved. If the witness does not admit the
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portion of his prior statement with which he is confronted, it
can be proved through the Investigating Officer by asking
whether the witness made a statement that was shown to
the witness. Therefore, if the witness is intended to be
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confronted with his prior statement reduced into writing,
that particular part of the statement, even before it is
proved, must be specifically shown to the witness. After that,
the part of the prior statement used to contradict the witness
has to be proved. As indicated earlier, it can be treated as
proved if the witness admits to having made such a
statement, or it can be proved in the cross-examination of
the concerned police officer. The object of this requirement
in Section 145 of the Evidence Act, in confronting the
witness by showing him the relevant part of his prior
statement, is to give the witness a chance to explain the
contradiction. Therefore, this is a rule of fairness.
9. If a former statement of the witness is inconsistent with
any part of his evidence given before the Court, it can be
used to impeach the credit of the witness in accordance with
clause (3) of Section 155 of the Evidence Act, which reads
thus:
“155. Impeaching the credibility of the witness. —
The credit of a witness may be impeached in the
following ways by the adverse party, or, with the
consent of the Court, by the party who calls him–
(1) ……………………………………….
(2) ………………………………………
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(3) by proof of former statements inconsistent
with any part of his evidence which is liable to
.
be contradicted.”
It must be noted here that every contradiction or omission is
not a ground to discredit the witness or to disbelieve his/her
testimony. A minor or trivial omission or contradiction
brought to the record is not sufficient to disbelieve the
witness’s version. Only when there is a material
contradiction or omission can the Court disbelieve the
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witness’s version either fully or partially. What is a material
contradiction or omission, depending upon the facts of each
case? Whether an omission is a contradiction also depends
on the facts of each case.
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10. We are tempted to quote what is held in a landmark
decision of this Court in the case of Tahsildar Singh v. State of
U.P., 1959 Supp (2) SCR 875. Paragraph 13 of the said decision
reads thus:
“13. The learned counsel’s first argument is based upon
the words “in the manner provided by Section145of the
Indian Evidence Act, 1872″ found in Section 162 of the
Code of Criminal Procedure. Section 145 of the EvidenceAct, it is said, empowers the accused to put all relevant
questions to a witness before his attention is called tothose parts of the writing with a view to contradicting
him. In support of this contention, reliance is placedupon the judgment of this Court in Shyam Singh v. State
of Punjab [(1952) 1 SCC 514:1952 SCR 812]. Bose, J.
describes the procedure to be followed to contradict a
witness under Section 145 of the Evidence Act, thus at p.
819:
Resort to Section 145 would only be necessary if
the witness denies that he made the former
statement. In that event, it would be necessary to
prove that he did, and if the former statement was
reduced to writing, then Section 145 requires that
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2026:HHC:26975which are to be used for contradiction. But that
position does not arise when the witness admits.
the former statement. In such a case, all that is
necessary is to look to the former statement of
which no further proof is necessary because of
the admission that it was made.”
It is unnecessary to refer to other cases wherein a
similar procedure is suggested for putting questions
under Section 145 of the Indian Evidence Act, for the
of
said decision of this Court, and similar decisions were
not considered the procedure in a case where the
statement in writing was intended to be used for
contradiction under Section 162 of the Code of Criminal
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Procedure. Section 145 of the Evidence Act is in two parts:
the first part enables the accused to cross-examine a
witness as to aprevious statement made by him in writing
or reduced to writing without such writing being shown to
him; the second part deals with a situation where thecross-examination assumes the shape of contradiction: in
other words, both parts deal with cross-examination; the
first part with cross-examination other than by way of
contradiction, and the second with cross-examination byway of contradiction only. The procedure prescribed is that,
if it is intended to contradict a witness by the writing, his
attention must, before the writing can be proved, be called
to those parts of it which are to be used for the purpose ofcontradicting him. The proviso to Section 162 of the Code of
Criminal Procedure only enables the accused to make use of
such a statement to contradict a witness in the manner
provided by Section 145 of the Evidence Act. It would be
doing violence to the language of the proviso if the said
statement were allowed to be used for the purpose of cross-
examining a witness within the meaning of the first part of
Section 145 of the Evidence Act. Nor are we impressed by
the argument that it would not be possible to invoke the
second part of Section 145 of the Evidence Act without
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2026:HHC:26975difficulty is more imaginary than real. The second part of
Section 145 of the Evidence Act clearly indicates the simple.
procedure to be followed. To illustrate: A says in the witness
box that B stabbed C; before the police, he had stated that D
stabbed C. His attention can be drawn to that part of the
statement made before the police, which contradicts hisstatement in the witness box. If he admits his previous
statement, no further proof is necessary; if he does not
admit it, the practice generally followed is to admit it,of
subject to proof by the police officer. On the other hand,
the procedure suggested by the learned counsel may be
illustrated thus: If the witness is asked, “Did you say
before the police officer that you saw a gas light?” and
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he answers, “Yes”, then the statement which does not
contain such recital is put to him as a contradiction.
This procedure involves two fallacies: one is that it
enables the accused to elicit by a process of cross-
examination what the witness stated before the police
officer. If a police officer did not make a record of awitness’s statement, his entire statement could not be
used for any purpose, whereas if a police officer
recorded a few sentences, by this process of cross-
examination, the witness’s oral statement could be
brought on record. This procedure, therefore,contravenes the express provision of Section 162 of the
Code. The second fallacy is that by the illustration givenby the learned counsel for the appellants, there is no
self-contradiction of the primary statement made in the
witness box, for the witness has not yet made on the
stand any assertion at all which can serve as the basis.
The contradiction, under the section, should be between
what a witness asserted in the witness box and what he
stated before the police officer, and not between what
he said he had stated before the police officer and what
he actually said before him. In such a case, the question
could not be put at all: only questions to contradict can
be put, and the question here posed does not contradict;
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2026:HHC:26975statement. This argument of the learned counsel based
upon Section 145 of the Evidence Act is, therefore, not of.
any relevance in considering the express provisions of
Section 162 of the Code of Criminal Procedure.”
(emphasis added)
This decision is a locus classicus, which will continue to guideour Trial Courts. In the facts of the case, the learned Trial
Judge has not marked those parts of the witnesses’ prior
statements based on which they were sought to beof
contradicted in the cross-examination.”
15. It was held in V.K. Mishra v. State of Uttarakhand, (2015) 9
rt
SCC 58, that the Courts cannot suo motu take cognisance of thecontradiction and the same has to be brought on record as per the
law. It was observed:
19. Under Section 145 of the Evidence Act, when it is intended
to contradict the witness by his previous statement reducedinto writing, the attention of such witness must be called to
those parts of it which are to be used for the purpose ofcontradicting him, before the writing can be used. While
recording the deposition of a witness, it becomes the duty of
the trial court to ensure that the part of the police statementwith which it is intended to contradict the witness is brought
to the notice of the witness in his cross-examination. The
attention of the witness is drawn to that part, and this must
reflect in his cross-examination by reproducing it. If the
witness admits the part intended to contradict him, it stands
proved, and there is no need for further proof of
contradiction, and it will be read while appreciating the
evidence. If he denies having made that part of the
statement, his attention must be drawn to that statement,
and it must be mentioned in the deposition. By this process,
the contradiction is merely brought on record, but it is yet to::: Downloaded on – 07/07/2026 20:36:53 :::CIS
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2026:HHC:26975be proved. Thereafter, when the investigating officer is
examined in the court, his attention should be drawn to the.
passage marked for the purpose of contradiction; it will then
be proved in the deposition of the investigating officer, who
again, by referring to the police statement, will depose about
the witness having made that statement. The process again
involves referring to the police statement and culling out
that part with which the maker of the statement was
intended to be contradicted. If the witness was not
of
confronted with that part of the statement with which the
defence wanted to contradict him, then the court cannot suo
motu make use of statements to police not proved in
compliance with Section 145 of the Evidence Act, that is, by
rt
drawing attention to the parts intended for contradiction.
20. In the case at hand, PW 1 was not confronted with his
statement recorded by the police under Section 161 CrPC to
prove the contradiction, nor was his statement marked for
the purpose of contradiction, which was read out to the
investigating officer. When neither PW 1 nor the
investigating officer were confronted with the statement and
questioned about it, PW 1’s statement recorded under
Section 161 CrPC cannot be looked into for any purpose,
much less to discredit the testimony of PW 1 and the
prosecution version.
16. This position was reiterated in Anees v. State (NCT of
Delhi), 2024 SCC OnLine SC 757, wherein it was observed:
“64. The court cannot suo motu make use of statements to
the police that have not been proved and ask questions with
reference to them which are inconsistent with the testimony
of the witness in the court. The words ‘if duly proved’ are
used in Section 162Cr. P.C. clearly shows that the record of
the statement of witnesses cannot be admitted in evidence
straightaway, nor can it be looked into, but they must be duly
proved for contradiction by eliciting admission from the
witness during cross-examination and also during the::: Downloaded on – 07/07/2026 20:36:53 :::CIS
21
2026:HHC:26975cross-examination of the Investigating Officer. The
statement before the Investigating Officer can be used for.
contradiction, but only after strict compliance with Section
145 of the Evidence Act, that is, by drawing attention to the
parts intended for contradiction.
65. Section 145 of the Evidence Act reads as follows:
“145. Cross-examination as to previous statements in
writing.– A witness may be cross-examined as toof
previous statements made by him in writing or reduced
into writing, and relevant to matters in question, without
such writing being shown to him, or being proved; but, if it
is intended to contradict him by the writing, his attention
rt
must, before the writing can be proved, be called to those
parts of it which are to be used for the purpose ofcontradicting him.”
66. Under Section 145 of the Evidence Act, when it is intended to
contradict the witness by his previous statement reduced into
writing, the attention of such witness must be called to those
parts of it which are to be used for the purpose of contradicting
him, before the writing can be used. While recording the
deposition of a witness, it becomes the duty of the trial court to
ensure that the part of the police statement with which it is
intended to contradict the witness is brought to the notice of the
witness in his cross-examination. The attention of the witness is
drawn to that part, and this must be reflected in his cross-
examination by reproducing it. If the witness admits the part
intended to contradict him, it stands proved, and there is no
need for further proof of contradiction, and it will be read while
appreciating the evidence. If he denies having made that part of
the statement, his attention must be drawn to that statement,
and it must be mentioned in the deposition. By this process, the
contradiction is merely brought on record, but it is yet to be
proved. Thereafter, when the Investigating Officer is examined
in the court, his attention should be drawn to the passage
marked for contradiction; it will then be proved in the deposition
of the Investigating Officer, who, again, by referring to the police
statement, will depose about the witness having made that
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2026:HHC:26975
statement. The process again involves referring to the police
statement and culling out the part with which the maker of the
.
statement was intended to be contradicted. If the witness was
not confronted with that part of the statement with which the
defence wanted to contradict him, then the court cannot suo
motu make use of statements to police not proved in compliance
with Section 145 of the Evidence Act, that is, by drawing
attention to the parts intended for contradiction.” [See: V.K.
Mishra v. State of Uttarakhand: (2015) 9 SCC 588]
of
17. Therefore, it is impermissible to impeach the victim’s
rt
credit during the arguments by referring to her previous
statements.
18. Dr Meenakshi (PW3) examined the victim. She found no
external fresh injury marks over the victim’s body. She also found
that the victim’s hymen was intact. Dr Meenakshi stated in her
cross-examination that she did not find any marks of injury or
violence on the body of the victim. As per her opinion, the sexual
intercourse may or may not have taken place. Since the hymen was
found to be intact, it could not be said definitely that any kind of
sexual intercourse had taken place. The minimal vaginal bleeding
could have occurred because of menstrual blood, and the victim
had herself disclosed that she had undergone menstrual periods on
09.10.2018.
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2026:HHC:26975
19. It was submitted that the absence of injuries on the body
.
of the victim made the prosecution’s case doubtful. This
submission cannot be accepted. It was laid down by the Hon’ble
Supreme Court in Deepak Kumar Sahu v. State of Chhattisgarh, 2025
SCC OnLine SC 1610, that the absence of injuries on the victim’s
of
body does not make her testimony doubtful. It was observed:
“5.5. In cases of offences committed under Section 376, IPC,
rt
when the story of the victim girl as told in the evidence is
found credible, the apparent insufficiency of medicalevidence pitted against acceptable testimony of the victim,
the latter would prevail. In State of Punjab v. Gurmit Singh
[(1996) 2 SCC 384] it was observed:
In the absence of injury on the private part of the
prosecutrix, it cannot be concluded that the incident had
not taken place or that the sexual intercourse was
committed with the consent of the prosecutrix. Theprosecutrix, being a small child of about nine years of age,
there could be no question of her giving consent to sexualintercourse. The absence of injuries on the private part of
the prosecutrix can be of no consequence in the facts andcircumstances of the present case. (Para 16)
5.5.1. In State of Himachal Pradesh v. Manga Singh, [(2019) 16
SCC 759], which was also a case in relation to the offence
committed under Section 376, IPC, where the prosecutrix
was a minor girl aged 9 years, she was staying in her aunt’s
house pursuing her studies. When the offence of rape was
committed against her, she narrated the story to her teacher.
The High Court gave the benefit of doubt to the accused on
the ground, inter alia, that the medical evidence of the doctor
was not conclusive to hold that the prosecutrix was subjected
to sexual intercourse.
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2026:HHC:26975
5.5.2. This Court observed that if the evidence of the victim
does not suffer from any basic infirmities and the factor of
.
probability does not render it unworthy evidence, the
conviction could be based solely on the evidence of the
prosecutrix. It was further observed that, as a general rule,
there is no reason to insist on the corroboration except in
certain cases.
5.5.3. The medical evidence may not be available in which
circumstance, the solitary testimony of the prosecutrix could
of
be sufficient to base the conviction.
“The conviction can be sustained on the sole testimony of
the prosecutrix, if it inspires confidence. The conviction
rt
can be based solely on the solitary evidence of the
prosecutrix, and no corroboration be required unlessthere are compelling reasons that necessitate the courts
to insist on corroboration of her statement. Corroboration
of the testimony of the prosecutrix is not a requirement of
law, but a guidance of prudence under the given facts andcircumstances. Minor contractions or small discrepancies
should not be a ground for throwing the evidence of the
prosecutrix.” (Para 11)5.5.4. It may be true that in the present case, the evidence of
the medical officer (PW-17) spoke about the absence ofexternal injury marks on the genitals of the victim. However,
the proposition that the corroboration from the medicalevidence is not sine qua non when the cogent evidence of the
victim is available, was reiterated in a recent judgment of
this Court in Lok Mal alias Loku v. State of Uttar Pradesh,
[(2025) 4 SCC 470], observed:
“Merely because in the medical evidence, there are no
major injury marks, this merely cannot be a reason to
discard the otherwise reliable evidence of the prosecutrix.
It is not necessary that in each and every case where rape
is alleged, there has to be an injury to the private parts of
the victim, and it depends on the facts and circumstances
of a particular case. We reiterate that the absence of::: Downloaded on – 07/07/2026 20:36:53 :::CIS
25
2026:HHC:26975injuries on the private parts of the victim is not always
fatal to the case of the prosecution. (Para 4).
5.5.5. Akin to the facts of the present case, it was stated in
Lok Mal(supra), according to the version of the prosecutrix,
that the accused overpowered her and pushed her to bed in
spite of her resistance and gagged her mouth using a piece ofcloth. Thus, considering this very aspect, it is possible that
there were no major injury marks. The appellant made an
attempt to raise the defence of false implication; however, heof
was unable to support his defence with any cogent evidence.
5.5.6. The credible and reliable evidence of the prosecutrix
could not be jettisoned for want of corroboration, including
rt
the corroboration by a medical report or evidence. The Court
observed in Manga Singh (supra) that “in the absence of injuryon the private part of the prosecutrix, it cannot be concluded that
the incident had not taken place or the sexual intercourse was
committed with the consent of the prosecutrix”. It was stated
that it is well settled that in the cases of rape, it is not alwaysnecessary that external injury is to be found on the body of
the victim.
5.5.7. In Wahid Khan v. State of Madhya Pradesh, [(2010) 2 SCC
9], this Court repelled the contention of the appellant that
since the hymen of the prosecutrix was found to be intact, itcannot be said that an offence of rape has been committed.
The Court refused to accept such contention in light of thedefinition of the offence of rape in Section 375 of the Penal
Code, 1860. It was further observed that it is the consistent
view of this Court that even the slightest penetration is
sufficient to make out an offence of rape.
5.6. It is an oft-repeated dictum of law that in cases of rape,
the testimony of the prosecutrix alone may be sufficient and
sole evidence of the victim, when cogent and consistent,
could be properly used to arrive at a finding of guilt. In the
State of Himachal Pradesh v. Manga Singh, (2019) 16 SCC 759,
this Court, in terms stated that conviction can be rested on
the testimony of the prosecutrix alone.
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2026:HHC:26975
The conviction can be sustained on the sole testimony of
the prosecutrix if it inspires confidence. The conviction.
can be based solely on the solitary evidence of the
prosecutrix, and no corroboration be required unless
there are compelling reasons that necessitate the courts
to insist on corroboration of her statement. Corroborationof the testimony of the prosecutrix is not a requirement of
law, but a guidance of prudence under the given facts and
circumstances. Minor contractions or small discrepanciesof
should not be a ground for throwing the evidence of the
prosecutrix.” (Para 10)
5.6.1. It was further asserted that corroboration is not an
essential requirement for conviction in the cases of rape.
rt
It is well settled by a catena of decisions of the SupremeCourt 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 ofcredence. As a general rule, there is no reason to insist on
corroboration except from medical evidence. However,
having regard to the circumstances of the case, medicalevidence may not be available. In such cases, the solitary
testimony of the prosecutrix would be sufficient to basethe conviction, if it inspires the confidence of the court.
(Para 11)5.6.2. In Gurmit Singh (supra), it was observed to reiterate
that in all cases, the corroboration of the statements made
by the victim in her evidence could not be insisted upon as a
rule of thumb:
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 a fatal nature, be
allowed to throw out an otherwise reliable prosecution
case. The inherent bashfulness of the females and the::: Downloaded on – 07/07/2026 20:36:53 :::CIS
27
2026:HHC:26975tendency to conceal outrage of sexual aggression are
factors that the courts should not overlook. (Para 8).
5.6.3. It was asserted that only compelling reasons would
justify rejection of the testimony of a rape victim, and not
otherwise:
“….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 isof
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…” (Para 8)
5.6.4. From a recent decision in Raju alias Umakant v. State of
rt
Madhya Pradesh (2025 SCC OnLine SC 997), the following
observations could be noticed:
“…….a woman or a girl subjected to sexual assault is not
an accomplice but a victim of another person’s lust, and it
will be improper and undesirable to test her evidence withsuspicion. All that the law mandates is that the Court
should be alive to and conscious of the fact that it is
dealing with the evidence of a person who is interested inthe outcome of charge levelled by her and if after keeping
that aspect in mind if the Court is thereafter satisfied thatthe evidence is trustworthy, there is nothing that can stop
the Court from acting on the sole testimony of the
prosecutrix. [See State of Rajasthan v. N.K. the Accused,(2000) 5 SCC 30, Rameshwar v. State of Rajasthan, 1951 SCC
1213, State of Maharashtra v. Chandraprakash Kewal Chand
Jain, (1990) 1 SCC 550, State of Punjab v. Gurmit Singh,
(1996) 2 SCC 384]” (Para 18)
5.6.5. As early as in State of Maharashtra v. Chandraprakash
Kewalchand Jain, [(1990) 1 SCC 550], this court observed that
the prosecutrix of a sex offence cannot be put on a par with
the accomplice; it was further observed that she is a victim of
crime. The Evidence Act nowhere says that her evidence
cannot be accepted unless it is corroborated in material
particulars. It was further observed that evidence of a rape::: Downloaded on – 07/07/2026 20:36:53 :::CIS
28
2026:HHC:26975victim must receive the same weight as is attached to an
injured person in cases of physical violence. It was stated.
that there is no rule of law or practice incorporated in the
Evidence Act similar to illustration (b) to Section 114 of the
Evidence Act, which may require it to look for
corroboration.”
20. Delhi High Court held in Beeru v. State (NCT of Delhi),
2013 SCC OnLine Del 4995 that the hymen being intact does not rule
of
out the commission of rape. It was observed:
23. The other contention raised by the learned counsel for
rt
the appellant was that the hymen of the prosecutrix was
found missing but not torn, and the prosecutrix was notexamined by the gynaecologist. Here, it would be pertinent
to refer to the observations of the report given by the Justice
Verma Committee, and the relevant extract of the same isreproduced as under:-
“However, it is largely irrelevant because the hymen
can be torn due to several reasons. An intact hymendoes not rule out sexual assault, and a torn hymen
does not prove previous sexual intercourse. Hymenshould therefore be treated like any other part of the
genitals while documenting examination findings in
cases of sexual assault. Only those that are relevant tothe episode of assault (findings such as fresh tears,
bleeding, oedema, etc.) are to be documented.”
24. The Division Bench of this court in the matter
of Pappu v. State of Delhi, 2010 (1) Cri.LJ 580 Delhi dealing
with a similar medical condition of the prosecutrix of six
years of age, whose hymen was also found torn and her
vagina admitted two fingers easily, and no injury was found
on the private part, after placing reliance on the medical
jurisprudence (5th Edition by Dr R.M. Jhala and B.B.
Raju) held as under:-
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2026:HHC:26975
“The reason is obvious. Medical jurisprudence
evidences that in adolescent girls, the hymen is.
situated relatively more posteriorly, and for this
reason, there is a possibility of rape being committed
without the hymen being torn; the converse whereof
would be that if the hymen of an adolescent girl is torndue to rape, the penetration has to be deep. The
medical jurisprudence guides that the labia majora are
the first to be encountered by the male organ, and theyof
are subjected to blunt forceful blows, depending on the
vigour and the force used by the accused and
counteracted by the victim. The narrowness of the
vaginal canal makes it inevitable for the male organ to
rt
inflict blunt, forceful blows on the labia, and such
blows lead to contusion because of looseness andvascularity. The feature of such contusion is revealed
against the pink background of the mucous membrane
dark red contusion being evident to the naked eye”
25. As can be seen from the aforesaid authoritative view of
the experts in the medical field, as referred to by the Hon’ble
Division Bench and by the Justice Verma Committee, the
condition of the hymen being torn of the prosecutrix may
not necessarily mean a previous sexual intercourse, and
conversely, the hymen being not torn also does not
necessarily mean that there was no sexual intercourse. In
some of the females, the hymen can also be missing, and in
such cases, mere absence of the hymen will not necessarily
prove the previous sexual intercourse and likewise will also
not rule out the previous sexual assault. Much would depend
on the quality, reliability and credibility of the testimony of
the prosecutrix, and if the same is found to be of
unimpeachable character, the conviction of the accused can
be based on the same even without looking for corroboration
from the medical evidence. The same principle equally
applies to the evidence of forensic science, as the same is
also not a substantive piece of evidence and may not support
even otherwise clear and cogent evidence of the prosecutrix.
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2026:HHC:26975
It is also a settled legal position that for proving the offence
of rape, penetrative sexual assault may not necessarily result
.
in ejaculation and therefore, in such cases, there can hardly
arise any question of stains of semen being there on the
clothes of the victim and the perpetrator of the crime. Thus,
the contention raised by learned counsel for the appellant on
this aspect also lacks merit and the same is rejected.
21. Therefore, the victim’s testimony cannot be discarded
of
because she had not sustained any injury during the incident, nor
was her hymen found intact by the medical officer.
22.
rt
A heavy reliance was placed upon the judgment of this
Court in Tsewang (supra), wherein this Court had held that the
absence of injuries in a case of sodomy would make the
prosecution’s case suspect. The cited judgment deals with sodomy
and is not relevant in a case of rape. Therefore, not much
advantage can be derived from the cited judgment.
23. The victim’s father (PW8) stated that he returned to his
house and enquired about the victim. He was told that the victim
had gone to answer the call of nature. The victim did not return to
her home for some time. He informed his sister. His sister, his
niece, and his son went to search for the victim. The victim was
traced in a sugar cane field. She was lying unconscious and was
brought home. She disclosed that she was raped by a boy. He stated
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2026:HHC:26975
in his cross-examination that he did not know the name of the
.
accused, but the police had disclosed the name of the accused. He
admitted that the police had not conducted any Test Identification
Parade. He admitted that the police had arrested the accused based
on suspicion.
of
24. The victim’s aunt (PW10) stated that her brother
telephonically informed her on 14.10.2018 at about 08.15 p.m. that
rt
the victim was missing from the home. She went to search for the
victim along with her niece and the victim’s brother. A vehicle was
parked on the roadside. One boy was standing near the vehicle,
who revealed on enquiry that the accused had followed the victim.
They called for the victim. The accused came and revealed that the
victim was lying unconscious in the 4th Sugarcane field. They went
to the field where the victim was unconscious. Her Salwar was
removed, and her clothes were smeared with blood. They brought
the victim to the house. The accused requested them not to call the
police. They called Pradhan. Pradhan visited the house, and the
incident was narrated to him. She stated in her cross-examination
that she did not know the name of the accused before the date of
the incident, and the name of the accused was disclosed by the
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2026:HHC:26975
police. She admitted that the police had not conducted any Test
.
Identification Parade and that the police had not recorded the
statement of the boy who was standing near the vehicle. She denied
that the accused was arrested based on suspicion.
25. The victim’s other aunt (PW22) stated that the victim
of
had left the home to ease herself. The victim did not return to her
home. She (aunt) and the victim’s father searched for the victim.
rt
The victim’s other aunt used to reside with them, but had gone to
meet her elder sister. She was informed, and she returned at about
09:30-10:00 p.m. The victim’s aunt enquired whether any hawker
had visited that day. She informed the victim’s aunt that one
person who was selling utensils had visited the village. The victim
went to the field of sugar cane and started calling the victim’s
name. The accused came out of the sugar cane field. He was caught
on the spot, and an enquiry was made about the victim. The
accused said that the victim would return. The victim was found in
the sugar cane field. She stated in her cross-examination that she
did not know the accused personally, but she used to purchase
utensils from him. She admitted that she came to know about the
name of the accused from the police, and the police had not
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2026:HHC:26975
obtained her signature on any memo regarding the identification
.
of the accused. She admitted that no one had seen the accused and
the victim going together, and the accused was apprehended based
on suspicion.
26. The statements of these witnesses corroborate the
of
victim’s version that the accused had raped her. The accused was
found coming out of the sugar cane field where the victim was
rt
found unconscious with her salwar removed. The accused has not
provided any explanation for his conduct, and the circumstances
can only lead to an inference of the guilt of the accused.
27. The accused was arrested. Dr Varun Sharma (PW26)
examined him. He found smegma absent, a bruise over the deltoid
region, and a red bruise over the right abdomen. He preserved the
clothes of the accused and his sample. He stated that there was
nothing to suggest that the accused was incapable of performing
sexual intercourse. He was not cross-examined at all, which means
that his testimony was accepted as correct. The statement of
Doctor Varun Sharma (PW26) proves that the accused had
sustained injuries and clothes, and the samples of the accused were
preserved.
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2026:HHC:26975
28. The samples were sent to the FSL, and the report of DNA
.
analysis (Ext.P1/PW23) was issued, in which it was mentioned that
the DNA profile obtained from the T-shirt of the accused matched
completely with the DNA profile obtained from the victim. Further,
the report of analysis (Ext.P1) mentions that blood was found in
of
the pants and pubic hair of the accused, but it was insufficient for
serological examination. The accused has not provided any
rt
explanation for the presence of the DNA profile of the victim on his
clothes. It was laid down by the Hon’ble Supreme Court in Manoj v.
State of M.P., (2023) 2 SCC 353: 2022 SCC OnLine SC 677 that the
report of DNA analysis can be used to corroborate the version of
the witness. It was observed:
154. In Dharam Deo Yadav v. State of U.P., (2014) 5 SCC 509:
(2014) 2 SCC (Cri) 626, this Court discussed the reliability of
DNA evidence in a criminal trial, and held as follows: (SCCpp. 528-29, para 36)
“36. DNA stands for deoxyribonucleic acid, which is the
biological blueprint of every life. DNA is made up of a
double-stranded structure consisting of a deoxyribose
sugar and phosphate backbone, cross-linked with two
types of nucleic acids referred to as adenine and guanine,
purines and thymine and cytosine, pyrimidines. … DNA
usually can be obtained from any biological material,
such as blood, semen, saliva, hair, skin, bones, etc. The
question as to whether DNA tests are virtually infallible
may be moot, but the fact remains that such tests have::: Downloaded on – 07/07/2026 20:36:53 :::CIS
35
2026:HHC:26975come to stay and are being used extensively in the
investigation of crimes, and the court often accepts the.
views of the experts, especially when cases rest on
circumstantial evidence. More than half a century ago,
samples of human DNA began to be used in the criminal
justice system. Of course, debate lingers over the
safeguards that should be required in testing samples and
in presenting the evidence in court. DNA profile,
however, is consistently held to be valid and reliable, but
of
of course, it depends on the quality control and quality
assurance procedures in the laboratory.”
155. The US Supreme Court in District Attorney’s Office for the
Third Judicial District v. Osborne, 2009 SCC OnLine US SC 73:
rt
557 US 52 (2009) dealt with a post-conviction claim to access
evidence, at the behest of the convict, who wished to provehis innocence, through new DNA techniques. It was
observed, in the context of the facts, that: (SCC OnLine US
SC)“Modern DNA testing can provide powerful new
evidence, unlike anything known before. Since its first
use in criminal investigations in the mid-1980s, therehave been several major advances in DNA technology,
culminating in STR technology. It is now often possible todetermine whether a biological tissue matches a suspect
with near certainty. While, of course, many criminal trials
proceed without any forensic and scientific testing at all,there is no technology comparable to DNA testing for
matching tissues when such evidence is at issue. … DNA
testing has exonerated wrongly convicted people, and has
confirmed the convictions of many others.”
156. Several decisions of this Court —Pantangi Balarama
Venkata Ganesh v. State of A.P., (2009) 14 SCC 607 : (2010) 2
SCC (Cri) 190], Santosh Kumar Singh v. State, (2010) 9 SCC
747 : (2010) 3 SCC (Cri) 1469, State of T.N. v. John David, (2011)
5 SCC 509 : (2011) 2 SCC (Cri) 647, Krishan Kumar Malik v.
State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61,
Surendra Koli v. State of U.P., (2011) 4 SCC 80 : (2011) 2 SCC
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2026:HHC:26975
(Cri) 92, Sandeep v. State of U.P., (2012) 6 SCC 107 : (2012) 3
SCC (Cri) 18, Rajkumar v. State of M.P., (2014) 5 SCC 353 :
.
(2014) 2 SCC (Cri) 570 and Mukesh v. State (NCT of Delhi),
(2017) 6 SCC 1 : (2017) 2 SCC (Cri) 673 have dealt with the
increasing importance of DNA evidence. This Court has also
emphasised the need to ensure quality control, about thesamples, as well as the technique for testing in Anil v. State of
Maharashtra, (2014) 4 SCC 69: (2014) 2 SCC (Cri) 266: (Anil v.
State of Maharashtra, (2014) 4 SCC 69 : (2014) 2 SCC (Cri) 266,
of
SCC p. 81, para 18)
“18. Deoxyribonucleic acid, or DNA, is a molecule that
encodes the genetic information in all living organisms.
DNA genotype can be obtained from any biological
rt
material, such as bone, blood, semen, saliva, hair, skin,
etc. Now, for several years, DNA profiles have also shown
a tremendous impact on forensic investigation.
Generally, when the DNA profile of a sample found at the
scene of a crime matches the DNA profile of the suspect,
it can generally be concluded that both samples have the
same biological origin. A DNA profile is valid and reliable,
but the variance in a particular result depends on the
quality control and quality procedure in the laboratory.”
157. This Court, in one of its recent decisions, Pattu Rajan v.
State of T.N., (2019) 4 SCC 771: (2019) 2 SCC (Cri) 354,
considered the value and weight to be attached to a DNA
report: (SCC p. 791, para 52)
“52. Like all other opinion evidence, the probative value
accorded to DNA evidence also varies from case to case,
depending on facts and circumstances and the weight
accorded to other evidence on record, whether contrary
or corroborative. This is all the more important to
remember, given that even though the accuracy of DNA
evidence may be increasing with the advancement of
science and technology with every passing day, thereby
making it more and more reliable, we have not yet
reached a juncture where it may be said to be infallible.
Thus, it cannot be said that the absence of DNA evidence
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37
2026:HHC:26975
would lead to an adverse inference against a party,
especially in the presence of other cogent and reliable
.
evidence on record in favour of such party.”
158. This Court, therefore, has relied on DNA reports in the
past, where the guilt of an accused was sought to be
established. Notably, the reliance was to corroborate. This
Court highlighted the need to ensure quality in the testing
and eliminate the possibility of contamination of evidence; it
also held that, being an opinion, the probative value of such
of
evidence has to vary from case to case.”
29. A similar view was taken in Mukesh Kumar (supra).
30.
rt
It was submitted that the integrity of the case property
has not been established, and the reliance cannot be placed upon
the report of the analysis. This submission cannot be accepted. Dr
Varun Sharma (PW26) obtained the samples. HASI Shashi Pal
(PW16) accompanied the accused and stated that the Medical
Officer handed over MLC and 5 sealed parcels containing the
sample to him. He deposited the MLC and the sealed parcel with
the MHC, and the case property remained intact till it remained
with him. ASI Ashok Kumar (PW12) stated that he was discharging
the duties of the MHC. HASI Shashi Pal (PW16) deposited one
parcel sealed with five seals of seal ‘P’. He deposited the case
property with him. He made the entry in the register of Malkhana
and kept the case property in the Malkhana. ASI Raj Kumar (PW14)
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38
2026:HHC:26975
was the regular MHC. He handed over the case property to HHC
.
Jagdev Singh (PW18) with a direction to carry the case property to
FSL. HHC Jagdev Singh (PW18) stated that he had carried the case
property to the FSL Junga. All these witnesses were not cross-
examined, which means that their testimonies were not disputed.
of
The seals were found intact in the laboratory as per the report of
the analysis (Ext.PY and Ext.PX-1/PW23), which means that there
rt
was no tampering with the case property. It was held in Baljit
Sharma vs. State of H.P 2007 HLJ 707, where the report of analysis
shows that the seals were intact, and the prosecution’s case that
the case property remained intact is to be accepted as correct. It
was observed:
“A perusal of the report of the expert Ex.PW8/A shows that
the samples were received by the expert in a safe manner,
and the sample seal was separately sent and tallied with thespecimen impression of a seal taken separately. Thus, there
was no tampering with the seal, and the seal impressions
were separately taken and sent to the expert also.”
31. Similar is the judgment in Hardeep Singh vs State of
Punjab 2008(8) SCC 557, wherein it was held:
“It has also come to evidence that to date, the parcels of the
sample were received by the Chemical Examiner, and the
seal put on the said parcels was intact. That itself proves
and establishes that there was no tampering with the::: Downloaded on – 07/07/2026 20:36:53 :::CIS
39
2026:HHC:26975previously mentioned seal in the sample at any stage, and
the sample received by the analyst for chemical.
examination contained the same opium, which was
recovered from the possession of the appellant. In that view
of the matter, a delay of about 40 days in sending the
samples did not and could not have caused any prejudice tothe appellant.”
32. In State of Punjab vs Lakhwinder Singh 2010 (4) SCC 402,
of
the High Court had concluded that there could have been
tampering with the case property since there was a delay of seven
rt
days in sending the report to FSL. It was laid down by the Hon’ble
Supreme Court that case property was produced in the Court, and
there was no evidence of tampering. Seals were found to be intact,
which would rule out the possibility of tampering. It was observed:
“The prosecution has been able to establish and prove that
the aforesaid bags, which were 35 in number, contained
poppy husk, and accordingly, the same were seized aftertaking samples therefrom which were properly sealed. The
defence has not been able to prove that the aforesaid seizure
and seal put in the samples were in any manner tamperedwith before it was examined by the Chemical Examiner.
There was merely a delay of about seven days in sending the
samples to the Forensic Examiner, and it is not proved as to
how the aforesaid delay of seven days has affected the said
examination, when it could not be proved that the seal of the
sample was in any manner tampered with. The seal having
been found intact at the time of the examination by the
Chemical Examiner and the said fact having been recorded in
his report, a mere observation by the High Court that the
case property might have been tampered with, in our
opinion, is based on surmises and conjectures and cannot::: Downloaded on – 07/07/2026 20:36:53 :::CIS
40
2026:HHC:26975take the place of proof.
17. We may at this stage refer to a decision of this Court in
.
Hardip Singh v. State of Punjab reported in (2008) 8 SCC 557 in
which there was a delay of about 40 days in sending the
sample to the laboratory after the same was seized. In the
said decision, it was held that in view of cogent and reliableevidence that the opium was seized and sealed and that the
samples were intact till they were handed over to the
Chemical Examiner, the delay itself was held to be not fatalof
to the prosecution’s case. In our considered opinion, the
ratio of the aforesaid decision squarely applies to the facts of
the present case in this regard.
rt
18. The case property was produced in the Court, and there is
no evidence to show that the same was ever tampered with.”
33. Similar is the judgment of the Hon’ble Supreme Court in
Surinder Kumar vs State of Punjab (2020) 2 SCC 563, wherein it was
held: –
“10. According to learned senior counsel for the appellant,
Joginder Singh, ASI, to whom Yogi Raj, SHO (PW-3), handed
over the case property for producing the same before theIllaqa Magistrate and who returned the same to him after
such production, the link evidence was incomplete. In thisregard, it is to be noticed that Yogi Raj, SHO, handed over the
case property to Joginder Singh, ASI, for production before
the Court. After producing the case property before the
Court, he returned the case property to Yogi Raj, SHO (PW-
3), with the seals intact. It is also to be noticed that Joginder
Singh, ASI, was not in possession of the seals of either the
investigating officer or Yogi Raj, SHO. He produced the case
property before the Court on 13.09.1996 vide application
Ex.P-13. The concerned Judicial Magistrate of First Class,
after verifying the seals on the case property, passed the
order Ex.P-14 to the effect that since there was no judicial
malkhana at Abohar, the case property was ordered to be::: Downloaded on – 07/07/2026 20:36:53 :::CIS
41
2026:HHC:26975kept in safe custody, in Police Station Khuian Sarwar till
further orders. Since Joginder Singh, ASI, was not in.
possession of the seals of either the SHO or the Investigating
Officer, the question of tampering with the case property by
him did not arise at all.
11. Further, he has returned the case property, after
production of the same, before the Illaqa Magistrate, with
the seals intact, to Yogi Raj, SHO. In that view of the matter,
the Trial Court and the High Court have rightly held that the
of
non-examination of Joginder Singh did not, in any way,
affect the case of the prosecution. Further, it is evident from
the report of the Chemical Examiner, Ex. P-10, that the sample
was received with seals intact and that the seals on the sample
rt
tallied with the sample seals. In that view of the matter, the
chain of evidence was complete.” (Emphasis supplied)
34. Therefore, the prosecution’s version that the case
property remained intact has to be accepted as correct, and the
learned Trial Court had rightly relied upon the report of the
analysis. The report specifically mentions that the victim’s DNA
was found on the T-shirt of the accused and corroborates the
victim’s testimony that the accused had raped her.
35. The report of analysis (Ex PY) mentions the T-shirt of
the accused as white, whereas the report (Ex. P1/P23) mentions one
white and blue short-sleeved T-shirt torn from the left shoulder. It
was submitted that the discrepancy in the colour of the T-shirt
makes it difficult to connect the T-shirt to the accused. This
submission cannot be accepted. The medical officer mentioned in
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42
2026:HHC:26975
the MLC (Ex. P2/PW20) that the white T-shirt was torn from the
.
left shoulder. Similarly, the report (Ex. Py) also mentions that
white short-sleeved seams of the left shoulder region were seen
torn off with the breaking and pulling of threads. The report (Ex.
P1/PW23) mentions seams of the left shoulder region were seen
of
torn off. Thus, the identity of the T-shirt is duly established, and
mere discrepancy in the colour is not sufficient to hold that the T-
rt
shirt did not belong to the accused.
36. The prosecution relied upon the statement of Shakti
Chand (PW7) to prove the victim’s date of birth. He issued the
victim’s date of birth certificate (Ext.PW7/B), stating that the
victim was born on 03.05.2004. This evidence will not help the
prosecution. It is an admitted position that the victim was studying
in the 9th grade; hence, her date of birth would be available in the
school. It was laid down by the Hon’ble Supreme Court in Jarnail
Singh versus State of Haryana (2013) 7 SCC 263 that the provisions of
the Juvenile Justice Act (JJ Act) should be followed to determine the
age of the victim under the POCSO Act. It was observed:
“23. Even though Rule 12 is strictly applicable only to
determine the age of a child in conflict with the law, we are
of the view that the aforesaid statutory provision should be::: Downloaded on – 07/07/2026 20:36:53 :::CIS
43
2026:HHC:26975the basis for determining the age, even of a child who is a
victim of crime. For, in our view, there is hardly any.
difference insofar as the issue of the minority is concerned
between a child in conflict with the 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 2007Rules to determine the age of the prosecutrix VW, PW 6. The
manner of determining age conclusively has been expressed
in sub-rule (3) of Rule 12 extracted above. Under theof
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
rt
an overriding effect over an option expressed in a subsequent
clause. The highest-rated option available would conclusivelydetermine the age of a minor. In the scheme of Rule 12(3), the
matriculation (or equivalent) certificate of the child concerned
is the highest-rated option. In case the said certificate is
available, no other evidence can be relied upon. Only in theabsence 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 isavailable, the date of birth depicted therein is liable to be
treated as final and conclusive, and no other material is to berelied upon. Only in the absence of such an entry, Rule 12(3)
postulates reliance on a birth certificate issued by a corporation,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 the
age of the child concerned on the basis of medical opinion.
24. Following the scheme of Rule 12 of the 2007 Rules, it is
apparent that the age of the prosecutrix VW, PW 6, could not be
determined on the basis of the matriculation (or equivalent)
certificate, as she had herself deposed that she had studied up::: Downloaded on – 07/07/2026 20:36:53 :::CIS
44
2026:HHC:26975to Class 3 only, and thereafter, had left her school and had
started to do household work. The prosecution, in the facts and.
circumstances of this case, had endeavoured to establish the
age of the prosecutrix VW, PW 6, on the next available basis in
the sequence of options expressed in Rule 12(3) of the 2007
Rules. The prosecution produced Satpal (PW 4) to prove the ageof the prosecutrix, VW, PW 6. Satpal (PW 4) was the Head
Master of Government High School, Jathlana, where the
prosecutrix VW, PW 6, had studied up to Class 3. Satpal (PW 4)of
had proved the certificate Ext. PG, as having been made on the
basis of the school records, indicates that the prosecutrix, VW,
PW 6, was born on 15-5-1977. In the scheme contemplated
under Rule 12(3) of the 2007 Rules, it is not permissible to
rt
determine age in any other manner, and certainly not on the
basis of an option mentioned in a subsequent clause. We are,therefore, of the view that the High Court was fully justified in
relying on the aforesaid basis for establishing the age of the
prosecutrix VW, PW 6. It would also be relevant to mention that
under the scheme of Rule 12 of the 2007 Rules, it would havebeen improper for the High Court to rely on any other material,
including the ossification test, for determining the age of the
prosecutrix VW, PW 6. The deposition of Satpal, PW 4, has notbeen contested. Therefore, the date of birth of the prosecutrix
VW, PW 6 (indicated in Ext. PG as 15-7-1977) assumes finality.
Accordingly, it is clear that the prosecutrix VW, PW 6, was less
than 15 years old on the date of occurrence, i.e. on 25-3-1993.
In the said view of the matter, there is no room for any doubt
that the prosecutrix, VW, PW 6, was a minor on the date of the
occurrence. Accordingly, we hereby endorse the conclusions
recorded by the High Court that even if the prosecutrix VW, PW
6, had accompanied the appellant-accused Jarnail Singh of her
own free will and had had consensual sex with him, the same
would have been clearly inconsequential, as she was a minor.”
(Emphasis supplied)
37. It was held in Sanjeev Kumar Gupta versus State of U.P.&
Ors (2019) 12 SCC 370 that a matriculation certificate, and a date of
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45
2026:HHC:26975
Birth certificate from the school first attended, if available, and in
.
their absence the birth certificate given by the Corporation
Municipal Authority or Panchayat would be considered. These are
in hierarchical order. Thus, where a matriculation certificate or the
birth certificate from the school is available, the birth certificate
of
given by the Corporation cannot be relied upon. It was observed:
“Clause (i) of Section 94(2) places the date of birth
rt
certificate from the school and the matriculation or
equivalent certificate from the Examination Boardconcerned in the same category [namely (i) above]. In the
absence thereof, category (ii) provides for obtaining the
birth certificate of the corporation, municipal authority or
panchayat. It is only in the absence of (i) and (ii) that agedetermination by means of medical analysis is provided.
Section 94(2)(i) indicates a significant change over the
provisions which were contained in Rule 12(3)(a) of the 2007Rules made under the 2000 Act. Under Rule 12(3)(a)(i), the
matriculation or equivalent certificate was givenprecedence, and it was only in the event of the certificate not
being available that the date of birth certificate from the
school first attended could be obtained. In Section 94(2)(i),both the date of birth certificate from the school, as well as
the matriculation or equivalent certificate, are placed in the
same category.
38. It was held in Vinod Katara versus State of U.P., 2022 SCC
OnLine SC 1204 that clause (a) of Rule 12(3) of 2007 Rules contains a
hierarchical order. It was observed:
48. Clause (a) of Rule 12(3) of the 2007 Rules contains a
hierarchical ordering, evident from the use of the language::: Downloaded on – 07/07/2026 20:36:53 :::CIS
46
2026:HHC:26975“in the absence whereof”. This indicates that where a
matriculation or equivalent certificate is available, the.
documents adverted to in (ii) and (iii) cannot be relied upon.
The matriculation certificate, in other words, is given
precedence. It is in the absence of a matriculation certificate
that the date of birth certificate of the school first attended
can be relied upon. It is in the absence of both the
matriculation and the birth certificates of the first school
attended that a birth certificate issued by the corporation,
of
municipal authority or panchayat could be obtained.
49. In Shah Nawaz v. State of Uttar Pradesh (2011) 13 SCC 751,
this Court, while examining the scope of Rule 12 of the 2007
Rules, had reiterated that medical opinion from the Medical
rt
Board should be sought only when the matriculation
certificate or equivalent certificate or the date of birth
certificate from the school first attended, or any birth
certificate issued by a corporation or a municipal authority
or a panchayat or municipality is not available. This Court
had held that the entry related to the date of birth entered in
the mark sheet is valid evidence for determining the age of
the accused person, and also the school leaving certificate
for determining the age of the appellant.
39. A similar view was taken in P. Yuvaprakash v. State, 2023
SCC OnLine SC 846, wherein it was observed:
11. Before discussing the merits of the contentions and
evidence in this case, it is necessary to extract Section 34 of
the POCSO Act, which reads as follows:
“34. Procedure in case of commission of offence by a child
and determination of age by the Special Court. – (1) Where
any offence under this Act is committed by a child, such
child shall be dealt with under the provisions of the
Juvenile Justice (Care and Protection of Children) Act, 2015
(2 of 2016)::: Downloaded on – 07/07/2026 20:36:53 :::CIS
47
2026:HHC:26975(2) If any question arises in any proceeding before the
Special Court whether a person is a child or not, such.
question shall be determined by the Special Court after
satisfying itself about the age of such person, and it shall
record in writing its reasons for such determination.
(3) No order made by the Special Court shall be deemed to
be invalid merely by any subsequent proof that the age of a
person as determined by it under sub-section (2) was not
the correct age of that person.”
of
12. In view of Section 34(1) of the POCSO Act, Section 94 of
the JJ Act 2015 becomes relevant and applicable. That
provision is extracted below:
rt
“94. Presumption and determination of age. – (1) Where it
is obvious to the Committee or the Board, based on theappearance of the person brought before it under any of
the provisions of this Act (other than for the purpose of
giving evidence), that the said person is a child, the
Committee or the Board shall record such observationstating the age of the child as nearly as may be and proceed
with the inquiry under section 14 or section 36, as the case
may be, without waiting for further confirmation of theage.
(2) In case the Committee or the Board has reasonable
grounds for doubt regarding whether the person brought
before it is a child or not, the Committee or the Board, as
the case may be, shall undertake the process of age
determination by seeking evidence by obtaining-
(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the
concerned examination Board, if available; and in the
absence thereof;
(ii) the birth certificate given by a corporation, a
municipal authority, or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age
shall be determined by an ossification test or any
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48
2026:HHC:26975
other latest medical age determination test
conducted on the orders of the Committee or the
.
Board:
Provided that such age determination test conducted on
the order of the Committee or the Board shall be completed
within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be
the age of a person so brought before it shall, for theof
purpose of this Act, be deemed to be the true age of that
person.”
13. It is evident from the conjoint reading of the above
provisions that wherever the dispute with respect to the age
rt
of a person arises in the context of her or his being a victim
under the POCSO Act, the courts have to take recourse to the
steps indicated in Section 94 of the JJ Act. The three
documents in order that the Juvenile Justice Act requires
consideration are that the concerned court has to determine
the age by considering the following documents:
“(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the concernedexamination Board, if available; and in the absence
thereof;
(ii) the birth certificate given by a corporation, a municipal
authority, or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall
be determined by an ossification test or any other latest
medical age determination test conducted on the orders of
the Committee or the Board”.
14. Section 94(2)(iii) of the JJ Act clearly indicates that the
date of birth certificate from the school or matriculation or
equivalent certificate by the concerned examination board
has to be firstly preferred in the absence of which the birth
certificate issued by the Corporation or Municipal Authority
or Panchayat and it is only thereafter in the absence of these
such documents the age is to be determined through “an
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49
2026:HHC:26975
ossification test” or “any other latest medical age determination
test” conducted on the orders of the concerned authority, i.e.
.
Committee or Board or Court. In the present case,
concededly, only a transfer certificate and not the date of
birth certificate, matriculation or equivalent certificate was
considered. Ex. C1, i.e., the school transfer certificate, showed
the date of birth of the victim as 11.07.1997. Significantly, the
transfer certificate was produced not by the prosecution but
instead by the court-summoned witness, i.e., CW-1. The
of
burden is always upon the prosecution to establish what it
alleges; therefore, the prosecution could not have fallen back
upon a document which it had never relied upon.
Furthermore, DW-3, the concerned Revenue Official (Deputy
rt
Tahsildar), had stated on oath that the records for the year
1997 with respect to the births and deaths were missing.
Since it did not answer to the description of any class of
documents mentioned in Section 94(2)(i), as it was a mere
transfer certificate, Ex C-1 could not have been relied upon to
hold that M was below 18 years at the time of the commission
of the offence.
15. In a recent decision, in Rishipal Singh Solanki v. State of
Uttar Pradesh (2021) 12 SCR 502, this court outlined the
procedure to be followed in cases where age determination is
required. The court was dealing with Rule 12 of the erstwhile
Juvenile Justice Rules (which is in pari materia) with Section
94 of the JJ Act and held as follows:
“20. Rule 12 of the JJ Rules, 2007, deals with the procedure
to be followed in the determination of age. The juvenility
of a person in conflict with the law had to be decided prima
facie on the basis of physical appearance or documents, if
available. But an inquiry into the determination of age by
the Court or the JJ Board was by seeking evidence by
obtaining: (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::: Downloaded on – 07/07/2026 20:36:53 :::CIS
50
2026:HHC:26975or a panchayat. Only in the absence of either (i), (ii) and
(iii) above, the medical opinion could be sought from a
.
duly constituted Medical Board to declare the age of the
juvenile or child. It was also provided that while
determination was being made, the benefit could be given
to the child or juvenile by considering the age on the lower
side within the margin of one year.”
16. Speaking about provisions of the Juvenile Justice Act,
especially the various options in Section 94(2) of the JJ Act,
of
this court held in Sanjeev Kumar Gupta v. The State of Uttar
Pradesh (2019) 9 SCR 735 that:
“Clause (i) of Section 94(2) places the date of birth
rt
certificate from the school and the matriculation or
equivalent certificate from the concerned examinationboard in the same category (namely (i) above). In the
absence thereof, category (ii) provides for obtaining the
birth certificate of the corporation, municipal authority or
panchayat. It is only in the absence of (i) and (ii) that agedetermination by means of medical analysis is provided.
Section 94(2)(a)(i) indicates a significant change over the
provisions which were contained in Rule 12(3)(a) of theRules of 2007 made under the Act of 2000. Under Rule
12(3)(a)(i), the matriculation or equivalent certificate wasgiven precedence, and it was only in the event of the
certificate not being available that the date of birth
certificate from the school first attended could be obtained.
In Section 94(2)(i), both the date of birth certificate from
the school, as well as the matriculation or equivalent
certificate, are placed in the same category.
17. In Abuzar Hossain @ Gulam Hossain v. State of West Bengal
(2012) 9 SCR 224, this court, through a three-judge bench,
held that the burden of proving that someone is a juvenile (or
below the prescribed age) is upon the person claiming it.
Further, in that decision, the court indicated the hierarchy of
documents that would be accepted in order of preference.
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51
2026:HHC:26975
40. A similar view was taken in Rajni v. State of U.P., 2025
.
SCC OnLine SC 1183, wherein it was observed: –
21. Let us first deal with the issue of juvenility. The question
for consideration is whether the learned Additional Districtand Sessions Judge and the High Court were justified in
holding respondent No. 2 to be a juvenile and whether any
interference is called for in such a decision?
of
22. Section 68 of the Juvenile Justice (Care and Protection of
Children) Act, 2000, empowered the state government to
make rules by notification in the official gazette to carry out
rt
the purposes of the Juvenile Justice (Care and Protection of
Children) Act, 2000 (‘the JJ Act, 2000‘). As per the proviso tosub-section (1) of Section 68, the central government was
also empowered to frame model rules which would apply to
the states also till such time rules were made in that behalf
by the concerned state government; and while making anysuch rules so far as practicable to conform to the model rules
framed by the central government.
23. With a view to provide for better implementation and
administration of the provisions of the JJ Act, 2000 in its
true spirit and substance, the central government in exercise
of the powers conferred by the proviso to sub-section (1) of
Section 68 of the JJ Act, 2000 made the Juvenile Justice (Careand Protection of Children) Rules, 2007 (briefly, ‘the JJ
Rules, 2007’) laying down the fundamental principles to be
applied in the administration of juvenile justice. Rule 12
dealt with the procedure to be followed in the determination
of age. As per sub-rule (1), in every case concerning a child
or juvenile in conflict with law, the court or JJB or the child
welfare committee was required to determine the age of
such juvenile or child or a juvenile in conflict with law within
a period of 30 days from the date of making of the
application for that purpose. As per sub-rule (2), the court or
the JJB or the child welfare committee was required to decide::: Downloaded on – 07/07/2026 20:36:53 :::CIS
52
2026:HHC:26975the juvenility or otherwise of the juvenile or the child or 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 to jail, as the case may be.
23.1. Sub-rule (3) of Rule 12 is relevant. Therefore, the same
is extracted hereunder:
(3) In every case concerning a child or juvenile in
conflict with the law, the age determination inquiryof
shall be conducted by the Court or the Board or, as the
case may be, the Committee by seeking evidence by
obtaining-
rt (a) (i) the matriculation or equivalent certificates, if
available; and in the absence thereof;
(ii) the date of birth certificate from the school
(other than a play school) first attended; and in the
absence thereof;
(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 an exact assessment of the age cannot be done,
the Court or the Board or, as the case may be, the
Committee, for the reasons to be recorded by them,
may, if considered necessary, give benefit to the
child or juvenile by considering his/her age on the
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
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be the conclusive proof of the age as regards such
child or the juvenile in conflict with law.
.
23.2. Thus, sub-rule (3) of Rule 12 provided that the age
determination enquiry should be conducted firstly on the
basis of matriculation or equivalent certificate. If such a
certificate was not available, then the date of birth certificate
from the school first attended (other than a play school). In
the absence of such a certificate, the birth certificate given
of
by a corporation, a municipal authority or a panchayat
should be the basis. Clause (b) of sub-rule (3) made it clear
that only in the absence of such certificates as enumerated
above, medical opinion would be sought from a duly
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constituted medical board, which would declare the age of a
juvenile or a child. In case an exact assessment of age could
not be done, the court or JJB or the child welfare committee,
for the reasons to be recorded, if considered necessary, had
the discretion to give benefit to the child or the juvenile by
considering his/her age on the lower side within the margin
of one year. While passing orders in such a case, evidence as
may be available or the medical opinion as provided should
be taken into consideration before recording a finding in
respect of age.
24. To consolidate and amend the law relating to children
alleged and found to be in conflict with law and children in
need of care and protection by catering to their basic needs
through proper care etc. by adopting a child friendly
approach in the adjudication and disposal of matters in the
best interest of children and for their rehabilitation etc., the
Juvenile Justice (Care and Protection of Children) Act, 2015
(already referred to as the JJ Act, 2015) came to be enacted.
Section 111 is the repeal and savings clause. As per sub-
section (1), the JJ Act, 2000, was repealed.
25. Section 94 deals with the presumption and
determination of age. Section 94 reads thus:
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94. Presumption and determination of age.–(1)
Where, it is obvious to the Committee or the Board,.
based on the appearance of the person brought before it
under any of the provisions of this Act (other than for
the purpose of giving evidence) that the said person is a
child, the Committee or the Board shall record such
observation stating the age of the child as nearly as may
be and proceed with the inquiry under Section 14 or
Section 36, as the case may be, without waiting for
of
further confirmation of the age.
(2) In case the Committee or the Board has reasonable
grounds for doubt regarding whether the person
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brought before it is a child or not, the Committee or the
Board, as the case may be, shall undertake the process
of age determination by seeking evidence by obtaining
—
(i) the date of birth certificate from the school, or
the matriculation or equivalent from the concerned
examination Board, if available; and in the absence
thereof;
(ii) the birth certificate given by a corporation or a
municipal authority, or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age
shall be determined by an ossification test or any
other latest medical age determination test
conducted on the orders of the Committee or the
Board:
Provided that such age determination test conducted on
the order of the Committee or the Board shall be
completed within fifteen days from the date of such
order.
(3) The age recorded by the Committee or the Board to
be the age of a person so brought before it shall, for the
purpose of this Act, be deemed to be the true age of that
person.
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25.1. Thus, the process of age determination is provided in
sub-section (2) of Section 94, which is identical to the
.
procedure prescribed under sub-rule (3) of Rule 12 of the JJ
Rules, 2007. Sub-section (2) of Section 94 says that to
undertake the process of age determination, the child
welfare committee or the JJB shall seek evidence in the
following manner:
(i) the date of birth certificate from the school or the
of
matriculation or equivalent certificate from the
concerned Board, if available;
(ii) in the absence thereof, the birth certificate given by
a corporation, a municipal authority or a panchayat;
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(iii) in the absence of (i) and (ii), the age shall be
determined by an ossification test or by any other latestmedical age determination test conducted on the orders
of the child welfare committee or the JJB.
26. Having noticed the relevant legal framework, let us
examine as to how the case of respondent No. 2 vis-Ã -vis
juvenility was dealt with by the JJB and thereafter by the
learned Additional District and Sessions Judge. As already
noted above, JJB had held respondent No. 2 to be not a
juvenile, which decision was reversed by the learned
Additional District and Sessions Judge and affirmed by the
High Court.
27. At this stage, we need to mention that the date of the
incident is 17.02.2021. On behalf of respondent No. 2, a
certificate from the DPS Higher Secondary School, Parvesh
Vihar, Meerut, was filed. The date of admission was
mentioned as 04.04.2016. The date of birth of respondent
No. 2 was mentioned as 08.09.2003. Respondent No. 2 had
passed the high school examination in the year 2018 from
the said DPS Higher Secondary School, Parvesh Vihar,
Meerut. Thereafter, he studied at CRK Inter College, Meerut.
Therefore, on the date of the incident, respondent No. 2 was
below 18 years of age. In the register of DPS Higher
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Secondary School and the marksheet of the high school
examination, the date of birth of respondent No. 2 was
.
mentioned as 08.09.2003. JJB, in an earlier proceeding
relating to respondent No. 2, i.e. Miscellaneous Case No.
9/2000 in respect of Crime Case No. 11/2000 under Section
307 IPC, Police Station Medical College, Meerut, had
accepted the date of birth of respondent No. 2 as 08.09.2003.
It is seen that in the present proceeding, JJB examined the
mother of respondent No. 2, who had applied to declare her
of
son, respondent No. 2, as a juvenile. JJB observed that she
did not remember in which school respondent No. 2 had
studied from Class 1 to Class 7 before taking admission in
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DPS Higher Secondary School in Class 8. In her statement,
Principal of DPS Higher Secondary School, Smt. Manju Mala
Sharma stated that she had been working in the same school
since the year 1996 and asserted that respondent No. 2 had
obtained his education from her school from Class 4 to High
School, but the original records of Class 4 to Class 8 were not
available as those were destroyed due to fire.
27.1. JJB also rejected the birth certificate of Meerut
Municipal Corporation, which showed the date of birth of
respondent No. 2 as 08.09.2003 on the ground that it was
issued on 08.06.2020.
27.2. As regards the earlier decision of JJB, it was observed
that the present informant was not a party therein.
Therefore, she had no opportunity to tender evidence or to
rebut the claim of juvenility of respondent No. 2. Thus, the
previous decision of JJB was not applicable.
27.3. It was in that context that JJB passed an order for
medical examination of respondent No. 2. In compliance
with such an order, the Medical Board submitted a report on
27.07.2021 assessing the age of respondent No. 2 as about 21
years.
27.4. JJB accepted the medical report dated 27.07.2021,
wherein the age of respondent No. 2 was assessed as about
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21 years. On that basis, respondent No. 2 was found to be
more than 18 years of age on the date of the incident. Thus,
.
respondent No. 2 was held to be an adult as on 17.02.2021, i.e.
the date of the incident.
28. Admittedly, the line of reasoning adopted by the JJB is
totally fallacious. When the concerned birth certificate from
the school was available as well as the birth certificate issued
by the Meerut Municipal Corporation, JJB could not have
of
opted for ossification test. The statute is very clear that only
in the absence of the certificates under clause (i) and clause
(ii) of subsection (2) of Section 94 can the JJB order for an
ossification test or any other medical test to determine the
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age of the juvenile. The certificate of the Meerut Municipal
Corporation was issued on 08.06.2020, before the date of the
incident. In any event, it was not open to the JJB to go behind
the available school certificate or the birth certificate of the
Corporation and record evidence to examine the correctness
or otherwise of such certificate. This is not the mandate of
Section 94(2) of the JJ Act, 2015. Therefore, the learned
Additional District and Sessions Judge was justified in
reversing such a decision of the JJB. Learned Additional
District and Sessions Judge gave preference to the date of
birth of respondent No. 2 mentioned in the high school
certificate, wherein his date of birth was mentioned as
08.09.2003. Thus, respondent No. 2 was 17 years, 3 months,
10 days on the date of the incident. Accordingly, he was
declared a juvenile delinquent.
41. These judgments were followed in V (supra).
42. Therefore, as per Rule 12(3(a)(ii) of the Juvenile Justice
Rules, 2007 and Section 19(4) of the Juvenile Justice Act, 2015, the
certificate from the school which the victim had first attended has
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to be preferred to the birth certificate issued by the municipal
.
corporation or gram panchayat. In the present case, the certificate
from the school first attended by the victim was not produced, and
there is no legally admissible evidence to prove that the victim was
a minor on the date of the incident. However, this will not make
of
much difference to the prosecution’s case. The victim was a woman
who was subjected to sexual intercourse without her consent. The
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ingredients of Sections 375 and 376 of the IPC are similar to the
ingredients of Sections 3 and 4 of the POCSO Act. In fact, Sections
3(a to d) are identical to Sections 375 (a to d) after the amendment
made by the Criminal Law Amendment Act, 2013. Therefore, the
accused had a notice of the ingredients of the offence with which
he was charged. He was informed about the fact that he was being
tried for raping a girl, and he was not prejudiced in any manner in
his defence. The only difference is in the Section, because instead
of Section 376 of the IPC, Section 4 of POCSO was mentioned.
Therefore, the accused can be convicted of the commission of an
offence punishable under Section 376 of the IPC and the conviction
of the accused is altered from Section 4 of the POCSO Act to Section
376 of the IPC.
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43. In view of the above, the present appeal is partly
.
allowed, and the conviction of the accused is altered from Section 4
of the POCSO Act to Section 376 of the IPC.
44. Let a production notice be issued to the Superintendent
of Lala Lajpat Rai District Air Correctional Home, Dharamshala,
of
District Kangra, H.P. to produce him before the Court for hearing
on the quantum of sentence on 16.07.2026.
rt
(Rakesh Kainthla)
Judge
7th July, 2026
(Nikita)
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