Is the question of consent insignificant once it is established that the victim was a minor?
Protection of Children from Sexual Offences Act, 2012 — ss.5(l), 6, 29 — Indian Penal Code, 1860 — s.366 — Age of the victim — Consent immaterial — Sole testimony of the victim — Delay in lodging the complaint — Statutory presumption —
Protection of Children from Sexual Offences Act, 2012 — Minor victim — Consent —
Held: Once it is established that the victim was a minor, the question of consent becomes insignificant. (¶32)
Evidence — Sole testimony of the victim —
Held further: The sole testimony of the victim is sufficient to convict an accused where that testimony is of sterling quality and inspires the confidence of the Court. (¶27, 28)
Criminal law — Sexual offences — Delay in lodging the complaint —
Held further: Mere delay in lodging the complaint in a sexual offence case is not by itself fatal to the prosecution where the delay is properly explained. (¶30)
Protection of Children from Sexual Offences Act, 2012 — s.29 — Statutory presumption —
Held further: The statutory presumption under s.29 of the Protection of Children from Sexual Offences Act, 2012 operates once the prosecution establishes the foundational facts. (¶33) Conviction and sentence confirmed; appeal dismissed. (¶34, 35)
Is the question of consent insignificant once it is established that the victim was a minor?
Yes. Once it is established that the victim was a minor, the question of consent becomes insignificant. The date of birth having been established from the school records coupled with the evidence of the Headmistress, the victim was a child within the meaning of the POCSO Act on the dates of occurrence. [¶14, ¶32]
Is the sole testimony of the victim sufficient to convict an accused where that testimony is of sterling quality?
Yes. The sole testimony of the victim is sufficient to convict an accused where that testimony is of sterling quality and inspires the confidence of the Court. Where the victim's evidence is clear, unambiguous and trustworthy, withstands cross-examination and is corroborated by the medical evidence and records, no further corroboration is required for recording a conviction. [¶27, ¶28]
Is mere delay in lodging the complaint in a sexual offence case fatal to the prosecution where the delay is properly explained?
No. Mere delay in lodging the complaint in a sexual offence case is not fatal to the prosecution where the delay is properly explained. Delay has the effect of putting the Court on its guard to search whether an explanation has been offered and whether it is satisfactory, and it cannot be used as a ritualistic formula for doubting the prosecution case. [¶29, ¶30]
Does the statutory presumption under s.29 of the Protection of Children from Sexual Offences Act, 2012 operate once the foundational facts are established?
Yes. The statutory presumption under s.29 of the Protection of Children from Sexual Offences Act, 2012 operates once the foundational facts are established. Once the prosecution has established the foundational facts in respect of the charges, the presumption applies and it is for the accused to adduce evidence to rebut it. [¶33]
What did the High Court finally decide on the appeal against the conviction under the POCSO Act and s.366 IPC?
The criminal appeal was dismissed and the conviction and sentence imposed by the trial Court were confirmed. On reappraisal of the entire evidence the Court found no error or infirmity in the findings of the trial Court warranting interference, and directed the trial Court to secure the presence of the accused and commit him to prison to undergo the remaining period of sentence. [¶34, ¶35]
Prepared by the LexStreak Editorial Desk — verify against the judgment.
“27. It is well settled that even the sole testimony of the victim is sufficient to convict an accused, provided such testimony is of sterling quality and inspires the confidence of the Court. In this regard it is useful to refer to the decision of the Three Judge Bench of the Hon’ble Supreme Court in Ganesan vs. State, Represented by the Inspector of Police[^1], wherein it has been held that, when the sole testimony of the victim is reliable and trustworthy, no further corroboration is required for recording a conviction, and the relevant portions are as follows:”
“30. In cases involving sexual offences, mere delay in lodging the complaint, if properly explained, would not by itself be fatal to the prosecution case. In this regard, it would be useful to refer to the following decisions of the Hon'ble Supreme Court, which consistently held the above proposition of law:”
“31. Though certain discrepancies have been pointed out by the learned counsel for the appellant in the evidence adduced by the prosecution, such minor discrepancies does not affect the prosecution case when the testimony of the victim is clear and cogent and is supported by the medical evidence and the medical records.”
“32. Once it is established that PW1 was a minor, the question of consent becomes insignificant. From the evidence of PW1, it is established that the accused forcibly by threatening to commit suicide took her and married with the intention of having sexual intercourse. Accordingly, the charge under Section 366 IPC is established. The fact that the accused was studying in college at the time of occurrence does not advance his case. His conduct in following the victim, who had lost her father at an early age and was working in a store for supporting her family, persuading her to accompany him by threat of committing suicide, taking her away on different occasions and having repeated sexual intercourse on the pretext of marriage, discloses the vulnerability of the victim and the consequences of such conduct on the prospects of a young girl.”
“33. Once the prosecution has established the foundational facts in respect of the charges against the accused, the statutory presumption under Section 29 of the POCSO Act operates. The accused has failed to adduce any evidence to rebut the said presumption.”
Headnote & Points of Law
You've used your free headnotes this month
The Court's judgment is below in full, free, as always — that never changes. What needs an account is LexStreak's own work on it: the headnote, the questions this judgment settles, and the passages that decide them. A free account opens all of it again.
Create my free accountFree forever plan · 30 seconds · data stays in India
The Criminal Appeal has been filed challenging the judgment dated 05.03.2022 made in Spl.S.C.No.42 of 2019 on the file of the Special Court for Exclusive Trial of Cases under the POCSO Act, Cuddalore.
The appellant, who is the sole accused, was convicted for the offences punishable under Section 366 of IPC and Section 5(l) r/w Section 6 of the Protection of Children From Sexual Offence Act, 2012, [hereinafter referred to as ‘POCSO Act’] and sentenced as follows: S.No. Offence Sentence Fine 1 Section 5(l) r/w 10 Years Rigorous Rs.2,000 in default 3 Sec.6 of POCSO Imprisonment months SI Act, 2012 2 Section 366 of IPC 10 Years Rigorous Rs.2,000 in default 3 Imprisonment months SI Sentence to run concurrently
It is the case of the prosecution that PW2, a widow, had a daughter/PW1, aged about 16 years, and a son. PW1/victim, discontinued her schooling after the 9th Standard due to financial constraints and went to work at Om Sakthi Departmental Store at Thittakudi. While so, the accused, who was a resident of Pattur Village, used to visit the grocery shop and follow PW1. On 10.11.2016, when the victim went to the shop for work, the accused waylaid her and on the pretext of marriage, forcibly took her to Koyambedu, where they stayed in a lodge. However, the victim managed to return home after two days.
Again, when the victim went to the shop for work on 10.02.2017, the accused forcibly took her to Tiruppur and tied a mangalsutra around her neck at the Mariyamman Temple. Thereafter, he took her to his aunt's house at Tiruppur, where they stayed for five days and, during the said period, the accused had sexual intercourse with the victim. Thereafter, on coming to know about the presence of the victim at Tiruppur, she was secured and the accused was sent along with his parents. Thereafter, again on 30.03.2017, the accused, with an intention to have sexual intercourse with the victim, took her to Thittakudi Bus Stand and thereafter to the house of the victim's uncle at Gingee. They stayed there for nearly five days, during which period the accused had sexual intercourse with the victim. Unable to trace her daughter, PW2 lodged a complaint/Ex.P2 on 23.04.2017 before the Thittakudi Police Station. On receipt of the complaint, PW8/the Sub-Inspector of Police, registered the FIR/Ex.P10, for the offence under Section 366A of the IPC.
PW9/Inspector of Police, visited the place of occurrence and prepared the observation mahazar/Ex.P11, and the rough sketch/Ex.P12, in the presence of PW3 and PW4. The statement of the victim girl was recorded under Section 164 of Code of Criminal Procedure, 1973 before the learned Magistrate in Ex.P1. Subsequently, the accused was arrested and through alteration report/Ex.P13 the offences were altered to Sections 366A of Indian Penal Code, Sections 4 and 6 of the POCSO Act and Section 9 of the Prohibition of Child Marriage Act, 2006. The victim was medically examined by PW6/Doctor, who issued the Medical Certificate/Ex.P6, and the Radiology Report marked as Ex.P7. The accused was examined by Doctor/PW5, who issued the Potency Certificate/Ex.P5.
Thereafter, PW10 took up the investigation, recorded the statement of the Doctor under Section 161 of Cr.P.C. and collected the school records of the victim, including Ex.P9 and Ex.P14. Since, the case involved offences under the POCSO Act, the investigation was transferred to PW11. PW11 again through alteration report/Ex.P15, altered the offences to Sections 366 and 376(3) of IPC, Sections 5(l) r/w 6 of the POCSO Act and Section 9 of the Prohibition of Child Marriage Act and after completion of the investigation, filed the final report.
The Trial Court, on taking cognizance, issued summons and, upon appearance of the accused, complied with Section 207 of the Code of Criminal Procedure. On being questioned, the accused pleaded not guilty and stood trial. In order to prove the charges, the prosecution examined PW1 to PW11 and marked Ex.P1 to Ex.P15.
On completion of the prosecution evidence, the accused was questioned under Section 313 of Cr.P.C. with regard to the incriminating materials available against him. He denied the same as false. However, no oral or documentary evidence was adduced on behalf of the accused. On conclusion of the trial, the Trial Court, upon considering the evidence and the arguments advanced on either side, came to the conclusion that the appellant was guilty of the offences under Section 366 of IPC and Section 5(l) read with Section 6 of the POCSO Act and imposed the sentence referred to above. However, the Trial Court acquitted the appellant of the charge under Section 9 of the Prohibition of Child Marriage Act, 2006. Challenging the conviction and sentence imposed upon him, the accused has preferred the present Criminal Appeal.
The learned counsel appearing for the appellant submitted that the victim had given inconsistent versions in her statement under Section 164 of the Cr.P.C., (Ex.P1), and in her evidence before the Court and that the testimony of PW1 is unreliable and untrustworthy. He further submitted that, while the statement of PW1 in Ex.P1 is completely silent with regard to the sexual intercourse allegedly had by the accused with her, PW1 subsequently came forward with a totally different and exaggerated version in her deposition, which is in line with the complaint given by her mother/PW2. According to the learned counsel, PW1 had been tutored to depose in accordance with the complaint given by PW2, resulting in an improvised and exaggerated version.
The learned counsel further submitted that there was a huge delay in lodging the complaint (Ex.P2). He also submitted that there was no complaint in respect of the earlier alleged occurrence and that the uncle, in whose house the accused and the victim allegedly stayed, where the accused allegedly had sexual intercourse with the victim, was not examined. When PW3 and PW4 had not supported the case of the prosecution, the evidence of PW2 and PW9 to PW11 clearly reveals that the evidence is neither corroborative nor consistent with the charges framed against the appellant. The fact that PW1 had not stated about the alleged sexual assault either in Ex.P1 or before PW6/Doctor, would demonstrate that the exaggerated and improved version in her evidence was only the result of tutoring. He further submitted that, at the time of the occurrence, the accused was aged about 20 years and that the case arose out of a love affair between the accused and the victim, which ultimately resulted in registration of the case under Section 366 of IPC and was subsequently altered by invoking the provisions of the POCSO Act. The trial Court erroneously convicted the appellant merely on the unreliable sole testimony of PW1, which was not supported or corroborated by any other material on record.
Per contra, the learned Government Advocate (Criminal Side), appearing on behalf of the State, contended that the prosecution had established the age of the victim as 16 years on the date of occurrence by producing the school records, namely, Exs.P8, P9 and P14, and by examining the Headmistress of the school as PW7. When the victim was proved to be a minor on the date of occurrence, any question of consent would be insignificant. The victim had clearly deposed that the accused had taken her to Tiruppur, where he tied a mangalsutra around her neck and thereafter stayed with her in his aunt's house for nearly five days, during which period he continuously had sexual intercourse with her. The victim had further cogently deposed that, again, the accused took her to the house of her uncle, where they stayed for five days and the accused continuously had sexual intercourse with her. The evidence of PW6, the Doctor, coupled with the medical certificate, Ex.P6, establishes the aggravated sexual assault. When the accused had taken the victim with the intention of marrying her and had sexual intercourse with her, the charge under Section 366 IPC and Sections 5(l) and 6 of the POCSO Act stood proved. Upon invocation of the statutory presumption under Section 29 of the POCSO Act, the trial Court had rightly convicted and sentenced the appellant, which does not call for any interference.
Heard the rival submissions and perused the materials available on record.
The appellant was charged for the offences under Section 5(l) read with Section 6 of the POCSO Act for allegedly committing aggravated penetrative sexual assault on 10.11.2016, 10.02.2017 and 30.03.2017. For invoking the provisions of the POCSO Act, the victim must have been below 18 years of age on the date of occurrence, as contemplated under Section 2(d) of the Act.
In order to prove the age of the victim, the admission/withdrawal register of the school was marked as Ex.P8. The Transfer Certificate of PW1, was marked as Ex.P9, and the school certificate issued by the Headmistress of the Government Higher Secondary School, Tittagudi, was marked as Ex.P14. As per the school certificate/Ex.P14, the date of birth of the victim is 30.06.2002, which is supported by Exs.P8 and P9. The Headmistress of the Government Girls Higher Secondary School, Tittagudi, was examined as PW7. She deposed that the victim was admitted in the school in the 6 th Standard and spoke about the date of birth recorded in the school records. From the documents marked as Exs.P8, P9 and P14, coupled with the evidence of PW7, it is established that the date of birth of the victim as 30.06.2002. From the date of birth established from the records, the victim was aged about 15 years on the alleged dates of occurrence in the year 2017 and therefore was a child within the meaning of the POCSO Act.
As per the complaint/Ex.P2, the accused had forcibly taken the victim, with an intention to marry her, from the grocery shop on 10.11.2016 and brought her back home after two days. Again, on 10.02.2017, the accused kidnapped the victim and, taking advantage of her innocence, took her to Tiruppur, where he tied a mangalsutra around her neck at the Mariyamman Temple and thereafter made her stay at his aunt's house for five days, during which period he continuously had sexual intercourse with her. Again, on 30.03.2017, the accused took the victim to her uncle's house at Gingee and stayed there for five days, during which period he again continuously had sexual intercourse with her, thereby subjecting the minor victim to aggravated penetrative sexual assault.
In the statement of the victim recorded under Section 164 of the Cr.P.C. in Ex.P1, PW1 stated that, while she was working in a grocery store, the accused used to propose his love to her. Even though she initially refused, the accused persisted and asked her to elope with him. Whenever PW1 refused, the accused threatened to commit suicide and, owing to such threat, she went along with him. PW1 further stated that she was not willing to disclose anything more.
PW1, in her evidence, deposed that, while she was working in the grocery store, the accused, who was studying in college, used to visit the shop after 5.00 p.m. under the guise of purchasing articles. He got introduced to her by enquiring about her details. The accused proposed his love to PW1, but she refused, stating that she had lost her father and had to take care of her family. The accused threatened to commit suicide, and PW1 warned him not to do so. However, on the following day, when PW1 went to the shop for work, the accused approached her and threatened to commit suicide if she did not accompany him. The accused forcibly took her by bus to Tiruppur, and tied mangalsutra (yellow thread) around her neck at the Mariyamman Temple. Thereafter, he took her to his aunt's house, where they stayed for five days. The accused prevailed upon her that they had already married and were husband and wife and thereby had sexual intercourse with her throughout the five days. The accused's father came to know of their presence at Tiruppur and took his son away, leaving the victim at the bus stand. When PW1 returned home, PW2 and her relatives scolded her for having been deceived by the accused.
After one month, the accused came to the house of PW1 in search of her and convinced her that he would take her to his house. On such assurance, he again had sexual intercourse with her. On the following day, when PW1 went to the grocery shop for work, the accused visited the shop and asked her to accompany him, stating that they could go to the house of some relative. The accused took the victim to the house of her uncle at Gingee, where they stayed for five days and during which period he continuously had sexual intercourse with her. Thereafter, on coming to know of their presence at Gingee, and pursuant to the complaint lodged by PW2, they were secured.
PW2/mother of the victim, deposed that the accused had taken her daughter when she had gone to the grocery shop for work. PW1 informed PW2 that she was staying at her uncle's house. PW1 was taken to the hospital for medical examination. PW3 and PW4, in whose presence Ex.P11 and Ex.P12 were prepared, did not support the case of the prosecution. PW5/Doctor, who examined the accused, deposed about the medical condition of the accused fit to indulge in sexual relationship and the Potency Certificate issued by him, marked as Ex.P5.
PW6, the Doctor who examined PW1, deposed that, during the course of examination, the victim had informed her that she had stayed with the accused at Koyembedu for two days in November 2016 and thereafter went to Tiruppur with the accused in February 2017. She had further stated that she stayed for 20 days in a friend's house and thereafter went to her aunt's house at Gingee, where she stayed for seven days. However, according to the Doctor, PW1 had not stated that the accused had sexual intercourse with her. PW6 issued the Medical Certificate (Ex.P6). The Radiology Report (Ex.P7), was issued by Dr.Natarajan. PW6 deposed that no injury was found on the private parts of the victim, however the hymen was not intact and the vagina admitted two fingers. As per the radiological examination, the victim had completed 17 years but had not completed 18 years.
PW8/Sub-Inspector of Police, deposed regarding the registration of the FIR/Ex.P10. PW9 and PW10, the Inspectors of Police, deposed regarding the preparation of the alteration report, the statements recorded under Section 161 of the Cr.P.C. and preparation of Ex.P11 and Ex.P12. PW11/ Inspector of Police, deposed that the offences were altered by way of the alteration report/ Ex.P15, and that, after completing the investigation, the final report was submitted.
From the evidence of PW1, it is clear that the accused forcibly took her to Tiruppur on 10.02.2017, tied the mangalsutra around her neck at the Mariyamman Temple and took her to his aunt's house, where they stayed for five days. The accused prevailed upon the victim that they had already got married and were husband and wife and thereby continuously had sexual intercourse with her during the said period. PW1 further categorically deposed that, after one month, the accused again visited her house, convinced her that he would take her to his house soon and again had sexual intercourse with her. On the very next day, the accused visited the grocery shop and, by convincing PW1, forcibly took her to Gingee and thereafter to her uncle's house, where they stayed for five days and he continuously had sexual intercourse with the victim.
The Medical Certificate/Ex.P6, supported by the evidence of PW6/ Doctor, establishes that the victim had been subjected to sexual intercourse. The evidence of PW5/Doctor who examined the accused and issued the Potency Certificate (Ex.P5), establishes that the accused was capable of having sexual intercourse. The evidence of PW1, therefore, establishes that the accused had sexual intercourse with the victim on several occasions.
It is the vehement contention of the learned counsel for the appellant that, since PW1 had not stated anything about the sexual intercourse in her statement under Section 164 of the Cr.P.C./Ex.P1, the subsequent evidence given by her regarding the sexual intercourse is an exaggerated version resulting from tutoring and, therefore, her evidence is unreliable and untrustworthy.
From the statement under Section 164 of the Cr.P.C. in Ex.P1, it is evident that PW1 had categorically stated that the accused had followed her and compelled her to accompany him by threatening to commit suicide. Owing to such threat, she was forcibly taken by the accused to Tiruppur, and she was not willing to disclose anything further. From the said statement, it is evident that, while PW1 had stated about the accused forcibly taking her away, she was not willing to disclose anything more, particularly as the accused had made believe the victim, that they were already husband and wife and that he would take her home soon. She was with full hope that the accused would marry her and take her home, which never materialised.
However, in her evidence before the Court, she came out with the details of the sexual relationship had by the accused with her. PW1 clearly deposed the accused had sexual intercourse for all the five days during which they stayed at Tiruppur, the subsequent visit of the accused to her house and the subsequent occasion when he took her to Gingee, where they stayed for five days during which period the accused continuously had sexual relationship. PW1’s evidence is corroborated by the evidence of PW5 and PW6, coupled with the medical records, Exs.P6 and P7.
It is well settled that even the sole testimony of the victim is sufficient to convict an accused, provided such testimony is of sterling quality and inspires the confidence of the Court. In this regard it is useful to refer to the decision of the Three Judge Bench of the Hon’ble Supreme Court in Ganesan vs. State, Represented by the Inspector of Police1, wherein it has been held that, when the sole testimony of the victim is reliable and trustworthy, no further corroboration is required for recording a conviction, and the relevant portions are as follows:
“10. In the present case, the appellant-accused has been convicted by the learned trial court for the offence under Section 7, punishable under Section 8 of the POCSO Act. We have gone through the entire judgment passed by the learned trial court as well as the relevant evidence on record, more particularly the deposition of PW 1 father of the victim, PW 2 mother of the victim and PW 3 victim herself. It is true that PW 2 mother of the victim has turned hostile. However, PW 3 victim has fully supported the case of the prosecution. She has narrated in detail how the incident has taken place. She has been thoroughly and fully cross-examined. We do not see any good reason not to rely upon the deposition of PW 3 victim. PW 3 aged 15 years at the time of deposition is a matured one. She is trustworthy and reliable. As per the settled proposition of law, even there can be a conviction based on the sole testimony of the victim, however, she must be found to be reliable and trustworthy. 10.1. Whether, in the case involving sexual harassment, molestation, etc., can there be conviction on the sole evidence of the prosecutrix, in Vijay [Vijay v. State of M.P., (2010) 8 SCC 191 : (2010) 3 SCC (Cri) 639], it is observed in paras 9 to 14 as under : (SCC pp. 195-98) “9. In State of Maharashtra v. Chandraprakash Kewalchand Jain [State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 : 1990 SCC (Cri) 210] this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under : (SCC p. 559, para 16) ‘16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.’ 10. In State of U.P. v. Pappu [State of U.P. v. Pappu, (2005) 3 SCC 594 : 2005 SCC (Cri) 780] this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under : (SCC p. 597, para 12) ‘12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.’ 11. In State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 : 1996 SCC (Cri) 316] , this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under : (SCC pp. 394-96 & 403, paras 8 & 21) ‘8. … The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. … The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. … Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. … Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. … 21. … The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.’ (emphasis in original) 12. In State of Orissa v. Thakara Besra [State of Orissa v. Thakara Besra, (2002) 9 SCC 86 : 2003 SCC (Cri) 1080] , this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. 13. In State of H.P. v. Raghubir Singh [State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 : 1993 SCC (Cri) 674] this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. [Wahid Khan v. State of M.P., (2010) 2 SCC 9 : (2010) 1 SCC (Cri) 1208] placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan [Rameshwar v. State of Rajasthan, 1951 SCC 1213 : AIR 1952 SC 54] . 14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.” 10.2. In Krishan Kumar Malik v. State of Haryana [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61], it is observed and held by this Court that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. ”
The evidence of PW1, regarding the sexual intercourse had by the accused on several occasions by forcefully taking her away and threatening to commit suicide, is clear, unambiguous, and trustworthy. PW1 withstood the cross-examination and her testimony is unblemished, trustworthy and inspires the confidence of the Court. Further, the evidence of the Doctors/PW5 and PW6 coupled with the medical reports in the Ex.P6 and Ex.P7 as well as Ex.P1, corroborates the version of PW1 and establishes the sexual relationship had by the accused on several occasions when the victim was a minor.
The learned counsel for the appellant further contended that there was an inordinate delay in lodging the complaint after the alleged dates of occurrence and that such delay is fatal to the case of the prosecution. From the complaint (Ex.P2), it is clear that there had already been two instances in which the accused had taken the victim away. When the victim was found missing from 30.03.2017, PW2, after making efforts and searching for her with the assistance of her relatives, ultimately lodged the complaint.
In cases involving sexual offences, mere delay in lodging the complaint, if properly explained, would not by itself be fatal to the prosecution case. In this regard, it would be useful to refer to the following decisions of the Hon'ble Supreme Court, which consistently held the above proposition of law:
(a) In State of Punjab v. Gurmit Singh 2, wherein the Supreme Court held as follows:
“8. The grounds on which the trial court disbelieved the version of the prosecutrix are not at all sound. The findings recorded by the trial court rebel against realism and lose their sanctity and credibility. The court lost sight of the fact that the prosecutrix is a village girl. ……. In our opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecution but in the facts and circumstances of the case was also natural. The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. The prosecution has explained that …….detected. The criticism by the trial court of the evidence of the prosecutrix as to why she did not complain to the lady teachers or to other girl students when she appeared for the examination at the centre and waited till she went home and narrated the occurrence to her mother is unjustified. The conduct of the prosecutrix in this regard appears to us to be most natural. The trial court overlooked that a girl, in a tradition-bound non-permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down by the society. Her not informing the teachers or her friends at the examination centre under the circumstances cannot detract from her reliability. In the normal course of human conduct, this unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to her teachers and others overpowered by a feeling of shame and her natural inclination would be to avoid talking about it to anyone, lest the family name and honour is brought into controversy. Therefore her informing her mother only on return to the parental house and no one else at the examination centre prior thereto is in accord with the natural human conduct of a female. The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, …… )” (b) In State of Punjab v. Ramdev Singh 3, the Supreme Court held as follows:
“9. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in the prosecution version on account of such delay, the same would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the same cannot by itself be a ground for disbelieving and discarding the entire prosecution version, as was done by the High Court in the present case. 10. The evidence of PWs 4 and 5 read with that of the victim clearly explained as to why the first information report was lodged after 17-18 days. The evidence of the aforesaid three witnesses clearly shows that PW 5 was seriously ill and the family members did not want to create tension in his mind when he was not physically well and waited for his recovery. In spite of the lengthy cross-examination this aspect has not been shaken by the defence. The view of the High Court that PW 4 should have told some respectable person or the father earlier to say the least is a view which has no foundation and overlooks the very reason to shun or openly publicise it to avoid the ignominy involved in it. In a tradition-bound and conservative society, more particularly in a rural area, the shame of sexual assault on a girl of about 14 years cannot be lost sight of. This down-to-earth reality has been lost sight of by the High Court. The trial court had rightly emphasized this aspect, but unfortunately, the High Court took a contrary view irrationally.” (c) In Ramdas v. State of Maharashtra4, wherein the Apex Court held as follows:
“24. Counsel for the State submitted that the delay in lodging the first information report in such cases is immaterial. The proposition is too broadly stated to merit acceptance. 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.” (d) In Deepak vs. State of Haryana5, the Apex Court held as follows:
“14. Coming to the first submission relating to the lodging of the FIR for the commission of the offence is concerned, in our considered opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecution but also considering the facts and circumstances of the case, it was natural. 15. The courts cannot overlook the fact that in sexual offences and, in particular, the offence of rape and that too on a young illiterate girl, the delay in lodging the FIR can occur due to various reasons. One of the reasons is the reluctance of the prosecutrix or her family members to go to the police station and to make a complaint about the incident, which concerns the reputation of the prosecutrix and the honour of the entire family. In such cases, after giving very cool thought and considering all pros and cons arising out of an unfortunate incident, a complaint of sexual offence is generally lodged either by the victim or by any member of her family. Indeed, this has been the consistent view of this Court as has been held in State of Punjab v. Gurmit Singh [(1996) 2 SCC 384 : 1996 SCC (Cri) 316].”
Though certain discrepancies have been pointed out by the learned counsel for the appellant in the evidence adduced by the prosecution, such minor discrepancies does not affect the prosecution case when the testimony of the victim is clear and cogent and is supported by the medical evidence and the medical records.
Once it is established that PW1 was a minor, the question of consent becomes insignificant. From the evidence of PW1, it is established that the accused forcibly by threatening to commit suicide took her and married with the intention of having sexual intercourse. Accordingly, the charge under Section 366 IPC is established. The fact that the accused was studying in college at the time of occurrence does not advance his case. His conduct in following the victim, who had lost her father at an early age and was working in a store for supporting her family, persuading her to accompany him by threat of committing suicide, taking her away on different occasions and having repeated sexual intercourse on the pretext of marriage, discloses the vulnerability of the victim and the consequences of such conduct on the prospects of a young girl.
Once the prosecution has established the foundational facts in respect of the charges against the accused, the statutory presumption under Section 29 of the POCSO Act operates. The accused has failed to adduce any evidence to rebut the said presumption.
On consideration of the entire oral and documentary evidence available on record, the trial Court, convicted the appellant for the offences under Section 366 of IPC and Section 5(l) read with Section 6 of the POCSO Act. This Court, on reappraisal of the entire evidence and materials available on record, finds no error or infirmity in the findings recorded by the trial Court warranting interference.
Accordingly, the conviction and sentence imposed by the trial Court are confirmed and the Criminal Appeal stands dismissed. The trial Court shall take necessary steps to secure the presence of the accused and commit him to prison to undergo the remaining period of sentence.
Is property purchased with the proceeds of sale of ancestral property ancestral property?
SA.1843/2004 · Madras High Court
Is the obligation to maintain the settlor implicit in a Settlement Deed, unlike in a Gift Deed?
WP(MD).26973/2023 · Madras High Court
Are non-executive and nominee directors persons carrying on the business of a company under s.542(1) of the Companies Act, 1956?
COMP.A.397/2024 · Madras High Court
The Supreme Court and the Madras High Court decide something every day. Read one a day.
A free account gets you the day's judgments in your practice areas, a reading streak, and folders to keep what matters.
Start reading freeOne judgment a day. That's the whole habit.
LexStreak turns the Supreme Court's and the Madras High Court's output into a five-minute daily read for advocates — plain-language headnotes, the questions each judgment settles, and the full text when you need it.
Free forever plan · 30 seconds · data stays in India
Headnote and questions prepared by the LexStreak Editorial Desk · Report an error · Privacy