Cr.A(DB)/1238/2018 of JOHAN SAWAIYAN Vs THE STATE OF JHARKHAND on 7 July 2026

1. Johan Sawaiyan aged about 22 years, S/O Late Paikiray Sawaiyan, Resident of Village Eligarha Tola Gosai, P.O. & P.S. Hatgamharia, District West Singhbhum.

2. Jokar Chatomba aged about 25 years, Son of Siram Chatomba, resident of village Merelgarha, P.O. & P.S. Nowamundi, District West Singhbhum.

… … Appellants

Versus State of Jharkhand

… … Respondent

P R E S E N T HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE SANJAY PRASAD ….. For the Appellants : Ms. Pragati Prasad, Advocate For the Respondent : Mr. Pankaj Kumar, P.P.

….. C.A.V. on 16.06.2026 Pronounced on 07/07/2026 Per Sujit Narayan Prasad, J.

1. The instant appeal is directed against the Judgment of conviction dated 16.07.2018 and Order of sentence dated 18.07.2018, passed by learned Additional Sessions Judge-I, West Singhbhum at Chaibasa in G.R. (POCSO) Case No.04 of 2016 registered under Sections 376(D) and 506 of the Indian Penal Code and Section 4/6 of the Protection of Children from Sexual Offences (POCSO) Act by which the appellants have been convicted under Sections 363/34, 376(D) and 506/34 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences (POCSO) Act and have been directed to undergo rigorous imprisonment for five years under

Section 363/34 I.P.C., rigorous imprisonment for 22 years for the offence under Section 376D of the I.P.C./Section 6 of the POCSO Act and rigorous imprisonment for two years for the offence punishable under Section 506 of the I.P.C. In default of payment of fine, both the convicts have been directed to undergo R.I. for one year each under each Sections. All the sentences have been directed to run concurrently.

2. The prosecution story in brief as per the allegation made in the First Information Report reads hereunder as:- The instant case has been lodged on the basis of written application of the prosecutrix/informant given to the Officer- in-charge, Hatgamharia police station on 10.02.2016.

3. It has been stated in the said written application that the prosecutrix is the resident of village Illigarha, Tola Golasai, P.S. -Hatgamharia, District -Singhbhum West. On 04.02.2016, the prosecutrix had gone to collect leaves from the Talaburu forest situated besides the Talaburu Railway station. When the prosecutrix was going to the forest in between 11-12 O' Clock in the day, the above named two accused persons Jokar Chatomba, Johan Sawaiyan as well as another accused Tople Sinku also came there behind the prosecutrix and seeing her alone, they caught the prosecutrix and thereafter, all the said three accused persons dashed the prosecutrix on ground, tied both the hands of prosecutrix with her dupatta and all the said three accused persons committed rape with the prosecutrix one by one.

4. It has been further stated that the accused Jokar Chatomba committed rape twice with the prosecutrix. Thereafter, the said accused persons left the prosecutrix by threatening to kill her, in case she discloses to anyone about the incident and they escaped from there. The prosecutrix returned to her house, but she did not disclose about the incident to anyone due to fear.

5. It has been further stated that the father of the prosecutrix resides in the Chakradharpur and he works there as a labour. On 08.02.2016, the prosecutrix disclosed about the incident to her step mother Basmati Barjo (PW-4), who informed the father of the prosecutrix on phone. Thereafter, the father of the prosecutrix came into village on 10.02.2016 and he went to the police station along with the prosecutrix and village Munda Gardi Sinku (PW-5), where a written application was given by the prosecutrix.

6. It has been further stated that the prosecutrix did not disclose about the incident to anyone immediately after the incident due to fear and hence, there was delay in filing this case.

7. On the basis of the written application of the prosecutrix, the Hatgamharia P.S. Case No. 03/2016 dated 11.02.2016 was registered against the said three accused persons namely

1. Jokar Chatomba, 2. John Sawaiya and 3. Tople Sinku under Sections 376(D), 506 of the Indian Penal Code and Sections 4 & 6 of the Protection of Children from Sexual Offences Act.

8. After completion of investigation, the investigating officer submitted charge-sheet against the said three accused persons under Sections 376D, 506 of the Indian Penal Code and Section 4/6 of the Protection of Children from Sexual Offences Act.

9. But as one of the accused Tople Sinku was shown juvenile, his case record was sent to the Juvenile Justice Board, Chaibasa and trial of only two accused persons/appellants herein has been done in this case.

10. Vide the order dated 10.06.2016, the cognizance of offence was taken against the above-named accused persons, under Sections 376D and 506 of the Indian Penal Code and Sections 4/6 of the Protection of Children from Sexual Offences Act.

11. Charges were framed against the accused persons/appellants herein, under Sections 363/34, 376D and 506/34 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act and the same was read over and explained to them in Hindi upon which they pleaded not to be guilty and demanded for trial.

12. After the closure of prosecution evidence, the statement of the accused persons/appellants herein, under Section 313 Cr.P.C. was recorded, in which they denied from the prosecution evidence and claimed themselves to be innocent.

13. The prosecution has altogether examined 11 witnesses, namely, PW-1 - Dr. Divya Nishi, PW-2 - Shuru Barjo, PW-3 - The Prosecutrix (Name not disclosed), PW-4 Basmati Barjo, PW-5 - Gardi Sinku, PW-6 - Rasik Barjo, PW-7 - Nitima Barjo, PW-8 - Lowke Khandait, PW-9 Mahendra Sawaiyan @ Murdhan Swami, PW-10 - Ramanuj Prasad Singh, who is the investigating Officer of the Case and PW-11 - Lucy Sosen Tigga, JM 1st Class.

14. Apart from the aforesaid oral evidence, the following documents have been also marked as exhibits on behalf of the prosecution, i.e., Ext.-1 Medical examination report of the prosecutrix, Ext.-1/1 Supplementary report of pathological and pregnancy report, Ext.-2 Written report, Ext.-3 -Entire written report, Ext.-4 Signature of Officer-in-charge on formal F.I.R. and Ext.-5 Statement of victim under Section 164 Cr.P.C.

15. The Defence has not examined any witness in support of their case.

16. The learned trial court, on appreciation of the evidences produced on behalf of the prosecution, has found the allegation proved beyond all reasonable doubt and accordingly, passed the judgment of conviction and order of sentence which is impugned in this appeal. Argument advanced on behalf of the appellants

17. Learned counsel for the appellants has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court cannot be sustained in the eyes of law for the following reasons :-

(i) The judgment of conviction and order of sentence passed by the learned court is contrary to law and against the facts of this case.

(ii) The learned trial court has failed to take into consideration that there is vital contradiction in the evidence of the witnesses who have been examined in this case;

(iii) The learned trial court has failed to take into consideration that there is no eye witness of this case and all the witnesses are highly interested and hearsay witnesses.

(iv) The learned trial court has failed to take into consideration that the medical report of the prosecutrix has not supported the case of the prosecution as the doctor has not found any mark of violence on the body and private parts of the prosecutrix not even found any injury on the person of the victim.

(v) The learned trial court has failed to take into consideration that the doctor had found the age of the victim as 15 to 17 years.

(vi) The learned trial court has failed to take into consideration that there is delay of five days of lodging the F.I.R. and as per evidence of the prosecutrix she herself accepted that when the wife of Jokar came to know about the occurrence then she raised halla with regard to the occurrence and soon thereafter, the prosecutrix lodged this false case against the appellants.

(vii) Learned counsel for the appellants has submitted that as per Student Admission Register provided by the Principal of the School, the date of birth of the victim is 03.03.1999. But, principal of the school was not examined to prove the date of birth. Hence, victim being minor is not legally proved by the prosecution. In this regard learned counsel has placed reliance on the judgment of State of Madhya Pradesh Versus Munna Alias Shambhoo Nath, (2016)1 SCC 696.

(viii) There is contradiction in the evidence of the victim, FIR and statement recorded u/s 164 of Cr.P.C., hence her evidence is not trustworthy and on the basis of evidence of the victim who is not at all reliable witness, then the benefit of doubt should be given to the accused.

(ix) The allegation of gang rape upon the victim in the jungle which is a rough surface, is not supported by the doctor as the doctor has not found any injury on the body of the victim nor spermatozoa has been found and save and except sexual intercourse took place.

(x) The place of occurrence is disputed as in the FIR as the Victim has stated that the occurrence took place in Talaburu Forest but the I.O. has stated in his evidence that the place of occurrence is Iligadaha hill.

(xi) The learned trial court has failed to take into consideration that as per evidence of the prosecutrix, she herself has stated that this case has been lodged by her on force of Munda of village and villagers.

(xii) Learned counsel has cited various judgments on the issue of contradictions, delay in filing the FIR and absence of mark of injury on the body of the victim-

i. Rai Sandeep Alias Deepu versus State (NCT of Delhi), (2012)8SCC21

ii. Rajesh Patel Versus State of Jharkhand, (2013)3SCC

iii. Lalliram & Anr. Versus State of M.P., (2008)10SCC69

iv. Nirmal Premkumar & Anr. Versus State Rep.by Inspector of Police in Criminal Appeal No. 1098 of v. Rajoo & Ors. Versus State of M.P., (2008)15SCC133

vi. Santosh Prasad @ Santosh Kumar versus State of Bihar, AIR 2020 Supreme Court 985

(xiii) The judgment of conviction and sentence passed by the learned court below is otherwise bad in law and is fit to be set aside;

18. The learned counsel for the appellants, based upon the aforesaid ground, has submitted that the trial court has not taken into consideration of the aforesaid facts as such impugned judgment requires interference, hence not sustainable in the eyes of law. Argument advanced by the learned counsel for the State

19. While defending the judgment of conviction learned counsel appearing for the State raised the following arguments in response to the grounds as referred hereinabove -

(i) It is a case where the prosecution has been able to prove the charge beyond all reasonable doubt, since the prosecutrix has remained quite consistent on the point of date, time and place of occurrence as well as the occurrence itself during her entire examination and her statement is being fully corroborated by her medical examination report also.

(ii) The prosecutrix has furnished a cogent explanation for the delay in lodging the First Information Report. It has been stated that at the relevant time, the father of the victim was employed at Chakardharpur and was, therefore, not present. Upon being apprised of the occurrence, the father of the victim returned, and thereafter the written report was submitted, on the basis of which the FIR came to be instituted. In the circumstances, the delay in setting the criminal law in motion stands satisfactorily explained and is attributable to natural and reasonable causes.

(iii) Further, all the prosecution witnesses have fully supported the prosecution story and they have remained quite consistent on the point of occurrence. Apart from informant/victim, the other witnesses have also conclusively corroborated the prosecution version.

(iv) The prosecution has successfully proved the charges leveled against the accused persons/appellants, beyond the all shadows of reasonable doubts, hence, order of conviction requires no interference.

20. Learned counsel appearing for the State and the informant, based upon the aforesaid premise, has submitted that the impugned judgment does not suffer from any error, hence the instant appeal is fit to be dismissed.

Analysis

21. We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by the trial court in the impugned judgment.

22. We have also gone through the testimonies of the witnesses as available in the LCR as also the exhibits.

23. This Court before considering the argument advanced on behalf of the parties is now proceeding to consider the deposition of witnesses, as per the testimony as recorded by learned trial Court.

24. In this case the prosecution has examined altogether 11 witnesses. The extracts of their depositions are being referred herein.

25. P.W.1 Dr. Divya Nishi has stated that on 12.02.2016, she was posted at C.H.C. Jhinkpani as a Medical Officer. By the order of Dr. Vijaykant Tiwary, Sadar Hospital, Chaibasa, ORG No. 398 dated 19.02.2014 and wireless no. 205 dated 29.10.2014, she had examined the prosecutrix on 12.02.2016 at 11:30 am at C.H.C., Jhinkpani. She found the following- Identification Marks: -

(i) A mole of right lateral aspect of neck.

(ii) Old scar mark on right anterior aspect of leg. General examination: - Complexion – Dark, Average – Built, Weight – 36 kg., Height – 143 cm., Upper teeth and lower teeth – 14/14. Menstrual history: - Age of menarche two years back. As per her statement. LMP on 05.02.2016 as per her statement. Breast – Developed. Hair – Both hairs and pubic hairs developed.

Mental status: - She is mentally and physically normal. Marks of violence: - No marks of violence on body and private parts. P/V Examination: - Hymen ruptured introitus admits two fingers, No bleeding. Vaginal swab and urine test for HCG: - Sent to Sadar Hospital, Chaibasa for pathological examination – Report awaited. X-ray report regarding age determination: - Sent to Sadar Hospital, Chaibasa – Report awaited. Opinion: - According to physical examination – Sexual intercourse took place. Opinion: - Regarding 2, 3, 4 reserves till vaginal swab report, urine for HCG, X-ray report come.

This witness has identified the medical examination report in her writing and signature (Ext.1). She has further stated that this report follows the supplementary report of pathological (vaginal swab), Radiological and urine test for HCG on 12-02-2016 at 11:30 a.m. O.P.D. registration 1000 C.H.C. Jhikpani.

Vaginal Swab report was done at D.P.H. Laboratory Sadar Hospital Chaibasa by Pathologic Dr. B. K. Pandey on 12-02-2006. Physical examination: - Spermatozoa, no spermatozoa found dead or alive. Pus cell: – Present (4-5/ HPF) Epithelial cell: – Present.

RBC: – Nil. Bacteria: – Present (++) X-ray: - For age determination was done at Sadar Hospital, Chaibasa on 13.02.2016.

According to Radiologist Dr. Praveen Minz, Report shows: -

(i) X-ray Pelvis – Secondary ossification centre at iliac crest and are not fused.

(ii) X-ray of elbow joint – Secondary ossification of lower end of humerus and upper end of ulna and radius are fused.

(iii) X-ray of wrist joint – Secondary ossification centre of lower end of ulna and radius are not fused. Opinion: - 15 to 17 years. Urine test for HCG was done at MCH Center, Sadar Hospital, Chaibasa, Report shows – Negative. Opinion: - According to pathological, radiological and urine test for HCG – Opinion 2, about 15 to 17 years. Opinion No. 4- she is not pregnant. Opinion No. 3 -there is no such finding found.

Further, this witness has identified the supplementary medical examination report in her writing and signature (Exhibit-1/1).

Further, in her cross-examination, this witness has said that hymen may be ruptured due to cycling, swimming and running. She has not found any injury on the person of the victim. She is not a Radiologist and she has not done the work with regard to radiologist.

26. P.W.2 Shuru Barjo has deposed that the prosecutrix is her sister. On 04.02.2016, the prosecutrix along with one Nanhi Budhi and Ratay had gone to pluck leaf in the forest. The rest girls escaped from there and on finding the prosecutrix alone, the accused persons Jokar Chatomba, Johan Sawaiyan and Tople Sinku had taken the prosecutrix into the forest after tiding her with her chunni and thereafter, they insulted her. Further, this witness has identified the accused persons Jokar and Johan before the Court also.

27. Further, in her cross-examination, this witness has said that at the time of incident, she was in her house. She was told about the incident on hearsay. The Jokar Chatomba happens to be son-in-law of our village.

28. P.W.3, is the prosecutrix herself. She has stated in her evidence that she had gone to pluck leaves from the forest. The accused persons Jokar, Johan and Toplo Sinku tied her hands and thereafter they took her into the forest by lifting her. They were saying to remove her cloth. When, she was not removing her cloth, they threatened to kill her. The accused Jokar undressed me and thereafter, all the three accused persons committed rape with her. The wife of Jokar learnt about it and hence, there was murmuring in her basti. A meeting was held in the village. Thereafter, she gave a written application in the police station and had put her thumb impression also over it. She had come to the police station along with her father. She had given her statement earlier also before the Learned Magistrate and her medical examination was also done in the hospital. She has identified the accused persons Jokar Chatomba and Johan who were present today in the Court.

Further, in her cross-examination, prosecutrix deposed that in spite of commission of misdeeds with her, she did not disclose about the incident to anyone in her house. There are two sisters and aunt in her house. When the wife of Jokar raised halla in the village, she lodged this case due to shame. The distance of forest from the village is about 1½ Km. The accused Jokar is son-in-law of her village and she is her sali in the relation of village. prosecutrix denied the suggestion of the defence that nothing had happened with her and she has filed a false case under the pressure of villagers and Munda.

29. P.W.4 Basmati Barjo, is the step mother of the prosecutrix. She has stated in her evidence that on 04.02.2016, the prosecutrix had gone to pluck leaf from the forest where the accused persons Jokar, Johan and Tople had committed rape with her. A meeting was held in the village in this regard. The accused persons were fleeing from the village, but the villagers caught them and made them to sit in the meeting. All the three accused persons confessed their guilt in the meeting and one accused told that he will take liability of the prosecutrix whereas another said that he shall pay compensation. The Munda decided that as there are three accused persons, it is difficult to give jimma of the prosecutrix to them, hence, case was lodged in the police station. She has identified accused persons Jokar Chatomba and Johan Sawaiyan who were present in the Court today.

In her cross-examination, this witness has stated that at the time of incident, she was in her house and whatever she had deposed today, is based on hearsay. A paper of meeting was prepared and she had also put her thumb impression over it.

30. P.W.5 Gardi Sinku, is the Munda of the village. He has stated in his evidence that the incident is of February 2016. The accused persons Jokar Chatomba, Johan Sawaiyan and Tople Sinku had committed rape with the prosecutrix. The father of the prosecutrix namely the had given information to him. The prosecutrix was raped in the Talaburu forest when she had gone alone to bring leaves from there. He had interrogated from the prosecutrix whereupon she told him that when she had gone to bring leaves from the Talaburu forest, the accused persons Jokar Chatomba, John Sawaiya and the Toplo Sinku had committed rape with her, on finding her alone in the forest. This witness has further stated that on the basis of the said information, he had gone to the police station along with the prosecutrix and her father for lodging the case. The

written application is in his writing and signature and it was written by him on the saying of the prosecutrix. Whatever, the prosecutrix had talked about the incident, was written by him and the prosecutrix had put her thumb impression over it. Lankeshwar Barjo had also made his signature over it, which he identified. The entire written application has been marked as Exhibit-2. This witness has identified the accused persons Jokar Chatomba and Johan Sawaiyan, who were present before the Court.

In his cross-examination, this witness has stated that whatever the victim had told him about the incident, he has deposed before the Court. He had gone to the police station at about 10 O’clock in the day. He had prepared the written application in the house of prosecutrix as per saying of prosecutrix and thereafter it was given in the police station. Further, he has denied the suggestion of the defence that he has falsely implicated the accused persons in this case because the Jokar Chatomba did not marry with the prosecutrix.

31. P.W.6 Rasik Barjo has stated that the incident is of 04.02.2016. The prosecutrix had gone into the forest. The accused persons Jokar Chatomba, Johan Sawaiyan and Tople Sinku had committed rape with the prosecutrix in the forest after tying her with her odhni (dupatta). The accused persons Jokar Chatomba and Johan Sawaiyan are present in the Court and he identified them. The prosecutrix had gone in the forest for collecting leaves.Further, in his cross-examination, this witness has said that whatever he has deposed, is based on hearsay.

32. P.W.7 Nitima Barjo has stated that the incident is of one year ago. The Jokar Chatomba, Johan Sawaiyan and Tople Sinku had insulted the prosecutrix. The prosecutrix had gone into the forest for plucking leaves, where the accused persons had insulted her. The accused persons had insulted the prosecutrix by forcibly disrobing her. He identified the accused persons Jokar Chatomba and Johan Sawaiyan who were present in the Court.

Further, in her cross-examination, this witness has said that whatever he has deposed, is based on hearsay. He has no knowledge of the incident.

33. P.W.8 Lowke Khandait, has stated in his evidence that the incident is of two years ago. He had heard that when the prosecutrix had gone into the forest for plucking leaves, the accused persons Jokar Chatomba, Johan Sawaiyan and Tople Sinku had taken her forcibly from the forest to the Talaburu hillock and thereafter, they had committed rape with her. He identified the accused Johan Sawaiyan and Jokar Chatomba who were present before the Court.

In his cross-examination, this witness has said that whatever he has deposed, is based on hearsay.

34. P.W.9 Mahendra Sawaiyan @ Murdhan Swami, has deposed that he had heard that about 02 years ago, when the prosecutrix had gone to pluck leaves in the forest, the accused persons Jokar Chatomba, Johan Sawaiyan and Tople Sinku had taken the prosecutrix forcibly from the forest to Talaburu hillock and thereafter, they had committed rape with her. This witness has also identified the accused Johan Sawaiyan and Jokar Chatomba, before the Court.

In his cross-examination, he has said that whatever he has deposed, is based on hearsay.

35. P.W.10 Ramanuj Prasad Singh, is the Investigating Officer of this case. He has deposed that on 10.02.2016, he was posted as A.S.I. in the Hatgamharia Police Station. On that day, the Hatgamharia P.S. Case No. 03/2016 dated 10.02.2016 was registered against the accused persons, Jokar Chatomba, Johan Sawaiyan and Tople Sinku, under Sections 376D, 506 of the Indian Penal Code and Section 4/6 of the Protection of Children from Sexual Offences Act, on the basis of written application of the prosecutrix. Investigating Officer had identified the written application, given by the prosecutrix in the police station and bearing thumb impression of the prosecutrix as well as the signature of Gardi Sinku, Munda and Lankeshwar Barjo also, over it. He has identified the endorsement over this application for registration of case in the writing and signature of the then Officer-in-charge Ashok

Kumar Sinha and the entire written application has been marked as Exhibit-3. Further, Investigating Officer has identified the formal F.I.R. in the prescribed format and typed by computer and having signature of the then Officer-in-charge Ashok Kumar Sinha (Exhibit-4). He has further said that in course of investigation, he has recorded the re-statement of the victim, who fully supported the incident. Thereafter, he inspected the place of occurrence in presence of village Munda and family members of the informant as per saying of informant. He has recorded the statement of witnesses Basmati Barjo, Shuru Barjo, Gardi Sinku and Nitima Barjo, who fully supported the incident. Thereafter, he raided for arrest of the accused persons and arrested the accused Johan Sawaiyan after making his memo of arrest in presence of independent witnesses. He has then arrested the accused Tople Sinku and thereafter, arrested the accused Jokar Chatomba also. He has recorded the statement of all the three accused persons and forwarded them to the Court. He has got examined the victim medically from Community Health Center, Jhinkpani and her X-ray and other examination were done in Sadar Hospital, Chaibasa. He got recorded the statement of victim from the Learned Judicial Magistrate, under Section 164 Cr.P.C. also. He obtained the medical examination report of the victim. For the verification of the age of the prosecutrix, he went to Utkramit Madhya Vidyalaya, Nurda and met the Principal Sri

Kande Sinku for getting information regarding the date of birth of the victim. The name of the prosecutrix has been entered in the Admission Register of the School at the serial No. 72 according to which the date of birth of the victim is 03.03.1999. The principal had given a certificate in this regard also which is in the writing and signature of the Principal Kande Sinku and having seal of the school also. Its photocopy has been marked with identification mark “X”. He has recorded the statement of witnesses Rasika Barjo, Laukan Khandait and Murdhum Swami. He has obtained the supervision note of the superior officers and after finding the incident true, he has submitted charge-sheet no. 10/2016 dated 06.05.2016, against the accused persons Jokar Chatomba, Johan Sawaiyan and Tople Sinku, under Sections 376D, 506 of the Indian Penal Code and Section 4/6 of the Protection of Children from Sexual Offences Act. Further, this witness has identified the accused persons Jokar Chatomba and Johan Sawaiyan, before the Court.

In his cross-examination, this witness has stated that he had not made the principal as a witness in this case. He had not seized any article in this case. The place of occurrence is surrounded by forest in its all four sides. P.W.11 Lucy Sosen Tigga, the Learned J.M., 1st Class, has proved the statement of the victim (prosecutrix) recorded by her under Section 164 Cr.P.C. in her writing and signature (Exhibit-5). She has further stated that as the victim was speaking in “HO''

language, the process server Mohan Lal Deogam was deputed as translator and the statement of victim bears the signature of said translator also.

36. This Court, on the basis of the aforesaid factual aspect vis-à-vis argument advanced on behalf of parties, is now proceeding to examine the legality and propriety of the impugned judgment of conviction and order of sentence by formulating following questions to be answered by this Court: I. Whether the alleged contradictions in the statement of the prosecutrix recorded under Section 164 of the Code of Criminal Procedure, when compared with her testimony before the learned Trial Court, are of such magnitude as to erode the substratum of the prosecution case and thereby impair its evidentiary worth.?

II. Whether the prosecution has satisfactorily established the age of the prosecutrix so as to attract the rigours of the Protection of Children from Sexual Offences Act, 2012, and to sustain the charge under Section 363 of the Indian Penal Code, which predicates proof of minority as an essential ingredient.

III. Whether delay in lodging FIR is fatal for the prosecution case?

IV. Whether the prosecution has proved the guilt of the appellants for the offence under Section 376D of IPC and Section 506/34 of the IPC?

V. Whether the prosecution has proved the guilt of the appellants for the offence under Section 6 of POCSO Act, 2012 and under Sections 363/34 of IPC? Re: Issue No.(I)

37. Learned Counsel for the appellants has submitted that there is contradiction in the evidence of the victim, in the testimony vis-a-vis statement recorded under Section 164 of Cr.P.C.

38. Learned counsel pointed out that in her testimony the prosecutrix stated that occurrence took place in forest when she had gone to pluck leaves, but, contrary to this, in her statement under Section 164 Cr.P.C., prosecutrix stated that occurrence took place in the evening when she was returning from haat (bazar). Further, prosecutrix in her testimony, had named three accused persons namely Jokar Chatomba, Johan Sawaiyan and Toplo Sinku, who had committed rape upon her, but, in her statement under Section 164 of Cr.P.C., prosecutrix stated that Jokar Chatomba and Johan Sawaiyan (both the appellants herein) had committed rape upon her and Toplo Sinku had not committed rape upon her rather the said Toplo Sinku tried to save her. Hence, learned counsel submitted that victim’s evidence is not trustworthy and reliable and benefit of doubt should be given to the accused/appellants.

39. At this juncture it would be pertinent to mention herein that it is now no more res integra that the contents of

statement recorded under Section 164 CrPC are not substantive evidence, but may be used for contradictions and corroboration of a witness who made it.

40. In case of Utpal Das v. State of W.B., (2010) 6 SCC 493, Hon’ble Apex Court laid down that the statement recorded under Section 164 Cr.P.C., can never be used as substantive evidence of truth of the facts but may be used for contradictions and corroboration of a witness who made it. The statement made under Section 164 CrPC can be used to cross-examine the maker of it and the result may be to show that the evidence of the witness is false. Paragraph-16 of this judgment is quoted herein- “16. Likewise, the statement recorded under Section 164 CrPC can never be used as substantive evidence of truth of the facts but may be used for contradictions and corroboration of a witness who made it. The statement made under Section 164 CrPC can be used to cross-examine the maker of it and the result may be to show that the evidence of the witness is false. It can be used to impeach the credibility of the prosecution witness. In the present case it was for the defence to invite the victim's attention as to what she stated in the first information report and the statement made under Section 164 CrPC for the purposes of bringing out the contradictions, if any, in her evidence. In the absence of the same the court cannot read the Section 164 statement and compare the same with her evidence.”

Again, Hon’ble Apex Court in case of R. Shaji v. State of Kerala, (2013) 14 SCC 266, laid down that the Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 Cr.P.C., can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. Paragraph- 26,27 and 28 of this Judgment is quoted herein below- “26. Evidence given in a court under oath has great sanctity, which is why the same is called substantive evidence. Statements under Section 161 CrPC can be used only for the purpose of contradiction and statements under Section 164 CrPC can be used for both corroboration and contradiction. In a case where the Magistrate has to perform the duty of recording a statement under Section 164 CrPC, he is under an obligation to elicit all information which the witness wishes to disclose, as a witness who may be an illiterate, rustic villager may not be aware of the purpose for which he has been brought, and what he must disclose in his statements under Section 164 CrPC. Hence, the Magistrate should ask the witness explanatory questions and obtain all possible information in relation to the said case.

27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement; and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded, is not at all warranted. (Vide Jogendra Nahak v. State of Orissa [(2000) 1 SCC 272 : 2000 SCC (Cri) 210 : AIR 1999 SC 2565] and CCE v. Duncan Agro Industries Ltd. [(2000) 7 SCC 53 : 2000 SCC (Cri) 1275] )

28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 CrPC can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section

CrPC, such statements cannot be treated as substantive evidence.”

41. Hence, the statement recorded under Section 164 Cr.P.C., can never be used as substantive evidence of truth of the facts but may be used for contradictions and corroboration of a witness who made it. The statement made under Section 164 CrPC can be used to cross-examine the maker of it and if defence does not cross-examine the witnesses whose statements are recorded under Section 164 CrPC, such statements cannot be treated as substantive evidence.

42. Reverting to the facts of the present case, this Court finds that prosecutrix in her examination-in-chief had stated that accused persons Jokar Chatomba (appellant), Johan Sawaiyan(appellant) and Toplo Sinku, had tied her hands and took her to the forest and committed rape upon her.

43. But the defense had not cross-examined prosecutrix to point out the contradiction appearing in her statement under Section 164 Cr.P.C., vis-a-vis in her examination-in-chief.

44. It is manifest that the prosecutrix was not cross-examined by the defence with regard to the alleged contradictions between her statement recorded under Section 164 of the Code of Criminal Procedure and her deposition in examination-in-chief before the learned Trial Court. Although the defence was afforded adequate opportunity to confront the prosecutrix on the contents of her statement under Section 164 Cr.P.C., but no question was put before the prosecutrix/victim regarding the alleged contradiction. In consequence, the alleged contradictions remain unsubstantiated, and the testimony of the prosecutrix retains its probative force.

45. Accordingly, issue no.(I), is hereby answered. Re: Issue No. (II)

46. The second issue is whether the prosecution has satisfactorily established the age of the prosecutrix so as to attract the rigours of the Protection of Children from Sexual Offences Act, 2012, and to sustain the charge under Section 363 of the Indian Penal Code, which predicates proof of minority as an essential ingredient.

47. Learned counsel for the appellants has submitted that as per Student Admission Register provided by the Principal of the School, the date of birth of the victim is 03.03.1999. But, principal of the school was not examined to prove the date of birth. Hence, victim being minor is not legally proved by the prosecution.

48. A photostat copy of date of birth of the prosecutrix, issued by the principal of the school is on record, in which date of birth is mentioned as 03.03.1999 which is marked as 'X'.

49. Since, appellants have been convicted under Section 6 of Protection of Children from Sexual Offences Act and under 363 of IPC, it would be desirable to see the age of the prosecutrix at the time of occurrence.

50. Before proceeding further, it would be fruitful to visit the judgment delivered by the Hon'ble Apex Court in case of P. Yuvaprakash Versus State Rep. by Inspector of Police reported in 2023 SCC OnLine SC 846, wherein the Hon'ble Apex Court has dealt the issue of determination of age of victim while hearing a case of an appellant who was convicted under Section 6 of the Protection of Children from Sexual Offences Act. Hon'ble Apex Court dealt with Section 34(1) of the POCSO Act and Section 94 of the JJ Act, 2015 and at paragraph 13 of its judgment noted that whenever the dispute with respect to the age of person arises in context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. For ready reference paragraphs 11, 12 and 13 of P. Yuvaprakash(supra) are quoted herein below: - "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 child and determi- nation of age by 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).

(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.

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: "94. Presumption and determination of age. - (1) Where, it is obvious to the Committee or the Board, based on the appearance of the per- son brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under Section 14 or Section 36, as the case may be, without waiting for further confir- mation of the age.

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining -

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be deter- mined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.

13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him 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 of which the Juvenile Justice Act requires consideration is 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 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.''

51. Thereafter, in paragraph -14 the Hon'ble Apex Court finally concluded that: - "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 ab- sence of which the birth certificate issued by the Corporation or Munici- pal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossifica- tion test" or "any other latest medical age determination test" con- ducted 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 or matriculation or equivalent certificate was considered. ---''

52. Reverting to the facts of the present case, this court finds that the Investigating Officer in his evidence had stated that in order to ascertain the age of the victim, he had gone to the Utkramit Madhya Vidyalaya, Nurda, and as per the principal of the school, the name of the victim has been recorded in the Admission Register of the School at Serial No.72 according to which the date of birth of the victim is 03.03.1999.

53. On going through the certificate marked as 'X', this Court finds that aforesaid certificate bears the signature of Principal of Utkramit Madhya Vidyalaya, Nurda, West Singhbhum, but surprisingly this certificate was issued by the principal on 28.03.2011, whereas as per the FIR the offence of rape was committed on 04.02.2016 and FIR was registered on 11.02.2016.

54. It is significant to observe that the First Information Report itself was registered on 11.02.2016. In such circumstances, it is wholly inexplicable as to how the Investigating Officer procured the certificate marked ‘X’, purportedly issued by the Principal of the School, bearing the date 28.03.2011, i.e., much prior to the commission of the alleged offence. Furthermore, the Principal of the School, under whose signature the said certificate was issued, was not examined by the prosecution. In the absence of such examination, the certificate marked ‘X’, wherein the date of birth of the prosecutrix is mentioned as 03.03.1999, cannot be accorded evidentiary reliance and is liable to be disregarded.

55. In P. Yuvaprakash(supra), Hon'ble Apex Court at paragraph-14 has held that 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 such documents the age is to be determined through "an 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.

56. In the present case, the prosecution has filed the date of birth certificate of the prosecutrix, issued by the school and marked as ‘X’. However, since the said certificate is doubtful in nature and cannot be accorded evidentiary reliance, this Court now turns to the testimony of Doctor (P.W.1). The Doctor has deposed that, on the basis of the ossification test conducted, the age of the prosecutrix/victim is assessed to be between 15 to 17 years.

57. At this juncture it would be pertinent to note the case of Jaya Mala Versus Home Secretary, Government of Jammu and Kashmir reported in (1982) 2 SCC 538, wherein the Hon'ble Apex Court observed at para-9:

"........ However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side......"

58. Hence, it has been held by the Apex Court that margin in the age of radiological examination can be of two years on either side.

59. The Doctor (PW-1), on the Radiological basis had opined the age of the prosecutrix as 15 to 17 years. In the present case, as per the judgment rendered by the Hon’ble Apex Court applying the margin of two years on either side in the age of radiological examination, the age of prosecutrix would have been 17 years or 19 years.

60. It is further to be noted that, if the permissible margin of error in the ossification test is taken into account, the age of the prosecutrix could extend up to approximately 19 years. In such view of the matter, the age of the prosecutrix cannot be conclusively determined so as to bring the case within the ambit of Section 6 of the Protection of Children from Sexual Offences Act, 2012, or to sustain the charge under Section 363 of the Indian Penal Code, both of which predicate proof of minority as an essential ingredient.

61. Therefore, in view of the foregoing discussion, the age of the prosecutrix cannot be conclusively established so as to attract the provisions of the Protection of Children from Sexual Offences Act, 2012, or to sustain the charge under Section 363 of the Indian Penal Code.

62. Accordingly, Issue No. (II) is answered.

Re: Issue No. (III)

63. Regarding this issue i.e. whether delay in lodging FIR is fatal for the prosecution case?

64. Learned Counsel for the appellants submitted that there is delay in lodging the FIR as the date of the alleged occurrence is 04.02.2016 and the date of lodging the FIR is 11.02. 2016 and hence, there is delay of about seven days. No proper explanation has been given by the victim and the explanation which has been given by the victim in the FIR is not supported by PW-4, who is the mother of the victim, reliance in this regard has been placed upon the judgment rendered by the Hon’ble Supreme Court in the case of Rajesh Patel Versus State of Jharkhand, (2013) 3SCC 791.

65. Here it would be apposite to refer to certain authorities pertaining to delay in lodging FIR in offence of rape cases. It is settled law that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution if the delay in lodging the FIR has been sufficiently explained.

66. Hon’ble Apex Court in case of Tulshidas Kanolkar v. State of Goa, (2003) 8 SCC 590, had laid down that delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging the first information report cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. Paragraph-5 of this judgment is quoted below-

“5. We shall first deal with the question of delay. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging the first information report cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the court is to only see whether it is satisfactory or not. In case if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of the prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of the first information report does not in any way render the prosecution version brittle.”

67. Again, in case of Ramdas v. State of Maharashtra, (2007) 2 SCC 170, Hon’ble Apex Court held that mere delay in lodging the first information report is not fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. Paragraph-24 of this judgment is quoted herein below- “24. …. It is no doubt true that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and in a given case the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court of fact has to consider

whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation there may be circumstances appearing on record which provide a reasonable explanation for the delay. There are cases where much time is consumed in taking the injured to the hospital for medical aid and, therefore, the witnesses find no time to lodge the report promptly. There may also be cases where on account of fear and threats, witnesses may avoid going to the police station immediately. The time of occurrence, the distance to the police station, mode of conveyance available, are all factors which have a bearing on the question of delay in lodging of the report. It is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action, nor was any such advice available to them. In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family's reputation. Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are cases where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No straitjacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. (See Pandurang v. State of Hyderabad [(1955) 1 SCR 1083 : AIR 1955 SC 216] .) Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact.”

68. Further, in case of U.P. v. Manoj Kumar Pandey, (2009) 1 SCC 72, Hon’ble Apex Court laid down that normal rule regarding the duty of the prosecution to explain the delay in lodging FIR and the lack of prejudice and/or prejudice caused because of such delayed lodging of FIR does not per se apply to cases of rape. This has been the consistent view of this Court.Paragraph-3 of this judgment is quoted herein below- “3. The approach of the trial court and the High Court is clearly unsustainable. Merely because the victim was more than 16 years of age as held by the trial court that cannot be a ground to hold that she was a consenting party. No evidence was led to show such consent. Apart from that normal rule regarding the duty of the prosecution to explain the delay in lodging FIR and the lack of prejudice and/or prejudice caused because of such delayed lodging of FIR does not per se apply to cases of rape. This has been the consistent view of this Court. The High Court was, therefore, clearly wrong in disposing of the appeal in such a cryptic manner. In the circumstances of the case, we set aside the order of the High Court and remit the matter to it for fresh hearing so that it can consider the matter and hear in detail and dispose of the same by a reasoned judgment. Whatever has been expressed by us supra is only for the purpose of coming to the conclusion that the manner of disposal of the appeal is not proper.”

69. Again, Hon’ble Apex Court in case of State of H.P. v. Prem Singh, (2009) 1 SCC 420, laid down that delay in lodging FIR in case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. Paragraph-6 of this judgment is quoted herein below- “6. So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition-bound society prevalent in India, more particularly rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. In that score, learned counsel for the appellant is right that the High Court has lost sight of this vital distinction.”

70. Hence, delay in lodging the first information report is not fatal to the case of the prosecution if the delay in lodging the FIR has been sufficiently explained. Delay in a case of sexual assault, cannot be equated with the case involving other offences.

71. Reverting to the facts of the present case, this Court finds that in the First Information Report the prosecutrix categorically stated that, after the commission of rape upon her, the accused persons threatened to kill her in the event she disclosed the incident to anyone. Owing to such threats, she refrained from narrating the occurrence to members of her household. Subsequently, however, the prosecutrix confided in her step-mother, Basmati Barjo (P.W.4), who in turn informed the father of the prosecutrix telephonically, he being employed as a labourer at Chakradharpur. Upon receipt of such information, the father of the prosecutrix arrived at his village on 10.02.2016, and thereafter, accompanied by the village Munda, Gardi Sinku (P.W.5), they proceeded to the police station and lodged the report of the incident.

72. Further, ongoing through the evidence of step mother of the prosecutrix namely Basmati Barjo (PW-4), this court finds that PW-4, in her testimony had stated that a meeting was held in the village and the village Munda had decided to lodge a case in the police station.

73. On the basis of discussion made hereinabove it is evident that delay in lodging FIR has successfully been explained by the prosecution therefore it is considered view of this Court that in the instant case delay in lodging FIR is not fatal for the prosecution case.

74. As regards the ratio laid down by the Hon’ble Supreme Court in Rajesh Patel v. State of Jharkhand (supra), it is evident that the Apex Court, while noting the unexplained delay of 11 days in lodging the First Information Report, found the prosecution case infirm and consequently allowed the appeal.

75. In contradistinction, in the present case the delay is of 7 days, which has been satisfactorily explained by the prosecution. Accordingly, the contention advanced by the learned counsel for the appellants that the delay in lodging the FIR has eroded the substratum of the prosecution case is devoid of merit and not fit to be accepted.

76. Accordingly, Issue No. (III), has been answered. Re: Issue No. (IV)

77. Regarding this issue i.e. whether the prosecution has proved the guilt of the appellants for the offence under Section 376D of IPC and 506/34 IPC.

78. This Court, has to decide the legality and propriety of the impugned judgment of conviction and order of sentence particularly whether the prosecutrix PW-3, is trustworthy and reliable, to convict the appellants under Section 376D of IPC.

79. This court finds from the impugned judgment that learned trial court has convicted the appellants under Section 376D of IPC relying on the testimony of the prosecutrix PW-3 which were supported by PW-1(Doctor), PW-4(step mother), PW-5(village Munda), PW-6, PW-7, PW-8 and PW-9.

80. Before we analyse and appreciate the circumstances that have weighed with the trial court, this court think it apposite to refer to certain authorities pertaining to evidentiary value of the evidence of the prosecutrix in offence of rape.

81. It is settled proposition of law that once the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix.

82. The law is well settled that if evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations as per the judgment rendered by Hon'ble Apex Court in the case of State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, paragraph-21 of the said judgment is being referred hereunder as: - “21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault — it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a

great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.”

83. Likewise, the Hon'ble Apex Court in the case of Vishnu v. State of Maharashtra, (2006) 1 SCC 283, has held as under:- “25. The statement of the prosecutrix, in our view, is quite natural, inspires confidence and merits acceptance. In the traditional non-permissive bounds of society of India, no girl or woman of self-respect and dignity would depose falsely, implicating somebody of ravishing her chastity by sacrificing and jeopardising her future prospect of getting married with a suitable match. Not only would she be sacrificing her future prospect of getting married and having family life, but also would invite the wrath of being ostracised and cast out from the society she belongs to and also from her family circle. From the statement of the prosecutrix, it is revealed that the accused induced her to a hotel by creating an impression that his wife was admitted in the hospital and that he would see her first and then drop the prosecutrix at her residence whereas, in fact, she was not admitted in the hospital. On the pretext of going to Nanawati Hospital, he took her to a hotel, took her inside a room, closed the door of the room, threatened to finish her if she shouted and then forcibly ravished her sexually. In our view, a clear case of rape, as defined under Section 375 clause thirdly IPC has been established against the accused. It is now a well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence.”

84. Further, the Hon'ble Apex Court in the case of Raju v. State of M.P., (2008) 15 SCC 133, held that evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court. Paragraph-8,9 and 10 of the aforesaid judgment are quoted hereinbelow- “ 8. We have heard the learned counsel for the parties and gone through the record. It is true that rape is one of the most heinous and reprehensible of crimes that can be committed on a woman and it is for this reason that courts have leaned heavily in favour of such a victim. (See State of Punjab v. Gurmit Singh [(1996) 2 SCC 384 : 1996 SCC (Cri) 316] .) In this matter, this Court allowed the State appeal against acquittal and while convicting the accused under Section 376 IPC, observed thus: (Gurmit Singh case [(1996) 2 SCC 384 : 1996 SCC (Cri) 316] , SCC p. 403, para 21) “21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault—it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.” (emphasis in original) The Court also observed that the alarming frequency of crimes against women had led Parliament to make some special laws in the background that rape was a very serious offence and that this was another factor which was to be kept in mind while appreciating the evidence in such matters.

9. The observations in Gurmit Singh case [(1996) 2 SCC 384 : 1996 SCC (Cri) 316] were reiterated in Ranjit Hazarika v. State of Assam [(1998) 8 SCC 635 : 1998 SCC (Cri) 1725] in the following terms: (Gurmit Singh case [(1996) 2 SCC 384 : 1996 SCC (Cri) 316] , SCC pp. 395-96, para 8)

“8. … The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. (emphasis supplied) Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.” (emphasis in original)

10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court.”

85. Again, Hon’ble Apex Court in case of Narender Kumar v. State (NCT of Delhi), (2012) 7 SCC 171, reiterated the earlier view laid down in the earlier judgments of the Hon’ble Apex Court. For ready reference paragraphs -20, 21 and 22 of the aforesaid judgment are quoted herein below - “20. It is a settled legal proposition that once the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her

statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case.

21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject-matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial (sic circumstantial), which may lend assurance to her testimony. (Vide Vimal Suresh Kamble v. Chaluverapinake Apal S.P. [(2003) 3 SCC 175 : 2003 SCC (Cri) 596 : AIR 2003 SC 818] and Vishnu v. State of Maharashtra [(2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217 : AIR 2006 SC 508].)

22. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, the prosecutrix making deliberate improvement on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. (Vide Suresh N. Bhusare v. State of Maharashtra [(1999) 1 SCC 220: 1998 SCC (Cri) 1595].)”

86. Hence, Hon’ble Apex Court in the aforesaid cases of rape has laid down that, conviction can be based solely on the solitary evidence of the prosecutrix, if evidence of the prosecutrix inspires confidence and it must be relied upon without seeking corroboration of her statement in material particulars. Evidence of a prosecutrix should be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary.

87. Hence, this court is proceeding to examine the evidence of the prosecutrix PW-3, in the backdrop of aforesaid legal proposition.

88. Prosecutrix PW-3, had stated in her examination-in-chief that on the date of occurrence, she had gone to pluck leaves from the forest. Accused persons Jokar, Johan and Toplo Sinku tied her hands and thereafter they lifted her and took her into the forest. They were saying to remove her cloth, but, when, she did not remove her cloth, accused persons threaten to kill her. The accused Jokar undressed her and thereafter, all the three accused persons committed rape upon her. The wife of Jokar (appellant herein) learnt about it and hence, there was murmuring in her basti. A meeting was held in the village and thereafter, she gave a written application in the police station.

89. Further, PW-2, PW-4, PW-5, PW-6, PW-7, PW-8 and PW-9 had also stated in their evidence that accused persons had committed rape upon the prosecutrix in the forest.

90. PW-5 Gardi Sinku, who is the village Munda, had stated in his evidence that father of the prosecutrix had given information to him that accused persons Jokar, Johan and Toplo Sinku had committed rape upon the prosecutrix at Talaburu forest when she had gone alone to bring leaves. He had interrogated from the prosecutrix whereupon she told him that when she had gone to bring leaves from the Talaburu forest, the accused persons Jokar Chatomba, John Sawaiya and the Toplo Sinku had committed rape with her, on finding her alone in the forest. On the basis of the said information, he had gone to the police station along with the prosecutrix and her father for lodging the case.

91. Thus, in entirety on appraisal of evidences, this court finds that prosecutrix, in her examination-in-chief as well in her cross-examination remain intact on the point that the appellants had forcefully took her into the forest and committed rape upon her which is corroborated by PW-2, PW-4, PW-5 (Village Munda), PW-6, PW-7, PW-8 and PW-9.

92. Thus, as per settled position of law as discussed and referred hereinabove particularly in the case of Raju v. State of M.P., (2008) 15 SCC 133, wherein it has been held that evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness, in the present case also prosecutrix in her examination-in-chief as well as in her cross- examination remain intact and had categorically deposed that she was threatened and forcefully taken by the appellants in the forest and was raped by the appellants. The said statement of the prosecutrix has fully been substantiated by the evidence of other prosecution witnesses particularly medical evidence.

93. The learned counsel for the appellants has urged that a “sterling witness” must be of unimpeachable quality and credibility. It is contended that in the present case, the testimony of the prosecutrix is replete with contradictions and, therefore, cannot be safely relied upon. In support of this submission, reliance has been placed upon paragraph 22 of the judgment of the Hon’ble Supreme Court in Rai Sandeep @ Deepu v. State (NCT of Delhi), (2012) 8 SCC 21, wherein the Apex Court expounded the concept of a “sterling witness” and observed that such a witness must be of very high calibre, whose version is consistent, cogent, and unassailable.

94. This Court has gone through the said judgment and is in total agreement with the settled position of law that sterling witness” must be of very high calibre, whose version is consistent, cogent, and unassailable.

95. This Court, upon discussion in the preceding paragraphs, finds that the testimony of the prosecutrix/victim (P.W.3) has remained consistent and intact. Her evidence has not been shaken in material particulars and, therefore, this Court has accepted her deposition as being of sterling quality. On the strength of such unimpeachable testimony, this Court holds that the charge under Section 376-D of the Indian Penal Code stands duly established by the prosecution beyond reasonable doubt against the appellants.

96. Hence, this Court finds that the case of prosecution has fully been corroborated and substantiated by the other material evidences available on record and as such it is considered view of this Court that the charges under Section 376D IPC has been established by the prosecution beyond reasonable doubt against the appellants.

97. Regarding conviction of the appellants under Section 506/34 of IPC, this court finds that prosecutrix in her examination-in-chief had specifically stated that appellants had tied her hands, they lifted her and took her into the forest and they were saying to remove her cloth, but, when, she did not remove her cloth, appellants had threatened to kill her. Thereafter, Jokar Chatomba(appellant) had undressed and raped her.

98. So, appellants had threatened the prosecutrix and undressed her, thereby, injured the reputation of the prosecutrix.

99. Hence, the prosecution has proved the charge under Section 506/34 of IPC, against the appellants.

100. Accordingly, issue no. (IV) is hereby answered. Re: Issue No. (V)

101. Whether the prosecution has proved the guilt of the appellants for the offence under Section 6 of POCSO Act, 2012 and under Sections 363/34 of IPC?

102. Regarding conviction of the appellants under Section 6 of POCSO Act, 2012 and 363/34 of IPC,it requires to refer herein that this court while dealing with issue no.(ii) came to the conclusive finding that the age of the prosecutrix cannot be conclusively established so as to attract the provisions of the Protection of Children from Sexual Offences Act, 2012, or to sustain the charge under Section 363 of the Indian Penal Code, therefore, prosecution has not successfully proved charges against the appellants under Section 6 of POCSO Act, 2012 and under Section 363/34 of IPC.

103. Accordingly, Issue No. (V), has been answered.

104. Further, the learned counsel for the appellants has submitted that no spermatozoa dead or alive was found, but doctor wrongly opined that sexual intercourse took place.

105. In this regard, this court has gone to the deposition of the doctor PW-1. In her testimony doctor stated that she had examined the prosecutrix on 12.02. 2016.As per the FIR incident of rape is of 04.02. 2016.Hence, prosecutrix was examined by the doctor after eight day of occurrence of rape. So, under such circumstances no spermatozoa dead or alive was found.

106. In the result, prosecution has failed to prove the charges under Section 6 of POCSO Act, 2012 and Section 363/34 of IPC, against the appellants. But, charges under Section 376D

of IPC and Section 506/34 of IPC, is proved against the appellants Johan Sawaiyan and Jokar Chatomba.

107. Accordingly, impugned Judgment of conviction of the appellants under Section 6 of POCSO Act, 2012 and Section 363/34 of IPC is set aside.

108. The impugned Judgment of conviction dated 16.07.2018 so far as it relates to Section 376D and Section 506/34 of IPC and its corresponding order of sentence dated 18.07.2018, passed by learned Additional Sessions Judge-I, West Singhbhum at Chaibasa in G.R. (POCSO) Case No.04 of 2016, requires no interference and is hereby sustained and upheld.

109. The criminal appeal is hereby dismissed with aforesaid modification in the judgment of conviction.

110. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.

111. Pending I.A. stands disposed of.

(Sujit Narayan Prasad, J.)

I agree.

(Sanjay Prasad, J.)

(Sanjay Prasad, J.)

Jharkhand High Court, Ranchi Dated, the 7th July, 2026. Birendra /A.F.R.

Uploaded on 09/07/2026