[Cites 47, Cited by 0]
Bombay High Court
Martin Soares vs State on 8 January, 2026
2026:BHC-GOA:16
CRIA 13.2018
Sonam/Vinita
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO.13 OF 2018
Martin Soares,
75 years of age,
Resident of H. No. 182,
Ranoi, Quitla,
Aldona, Bardez,
Goa-403508.
Represented by his next friend
And wife
Mrs. Regina Celina Ophelia Soares,
65 years of age,
W/o Martin Soares,
H. No. 182,
Resident of Ranoi, Quitla,
Aldona, Bardez,
Goa-403508. ... APPELLANT
V/S
STATE
Through Officer-in-Charge,
Mapusa Police Station,
Mapusa-Goa. ... RESPONDENT
Ms. Annelise Fernandes, Advocate for the Appellant.
Mr. Pravin Faldessai, Additional Public Prosecutor for the
Respondent-State.
CORAM : SHREERAM V. SHIRSAT, J.
DATE : 8th JANUARY, 2026.
1 / 63
8th January
2026
CRIA 13.2018
JUDGMENT:
1. The present Appeal has been filed challenging the
impugned Judgement and Order dated 15.02.2018 passed by
the Children's Court for the State of Goa, at Panaji in Special
Case No. 50/2012, by which the Appellant stands convicted
for the offence punishable under Sections 341, 354, 375(b)
and 376(2)(i) of Indian Penal Code, 1860 (IPC) read with
Section 2(y)(i) and (ii) punishable under Section 8(2) of the
Goa Children's Act, 2003. The Appellant has been sentenced
to undergo the following:
i. Simple imprisonment for one month and fine of Rs.
500/-, in default to undergo simple imprisonment for 5
days for offence punishable under Section 341 of IPC.
ii. Simple imprisonment for three years and fine of Rs.
5,000/-, in default to undergo simple imprisonment for
1 month for offence punishable under Section 354 of
IPC.
iii. Rigorous imprisonment for ten years and fine of Rs.
2,00,000/-, in default, to undergo simple
imprisonment for 2 years for the offence punishable
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under Section 376(2)(i) of IPC r/w Section 8(2) of the
Goa Children's Act.
2. BRIEF FACTS OF THE PROSECUTIONS CASE
a. It is the case of the prosecution that the
complaint has been filed by the mother of the
victim (name withheld) and she has stated in her
complaint dated 15 May 2012, that on 13 May
2012, she along with her husband, Christopher
had been to Mapusa, for a prayer meeting where
complainant and her husband met their family
friend, Mr. Lenin Nunes and his wife, Mrs Merlin
Nunes. It is further the case that they both
informed her in the presence of her husband that
their daughter (victim) who had come to their
residence on 5 May 2012, after swimming at
Mapusa had informed about sexual assault on
her. They further informed that victim had told
them that she had gone to the house of one
Martin Soares(the Appellant) in the last month
and Martin had forcibly taken her inside his
house through back door and then taken her to
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the bathroom and forcibly undressed her and
made her naked and then forcibly inserted his
hand finger in her private part, kissed her on her
lips and on her private part. The victim had
further stated that the she put on her clothes and
came running out from the house and at time
daughter of Martin was sitting on the computer
and when she noticed victim running out of the
house, the daughter asked her friend to sit with
her, but she got frightened and ran away from the
house. It is further the case of the prosecution
that when the complainant returned back to her
residence and during night hours when she was
present in the house with other family members,
the victim was asked in confidence about the fact
narrated by her to Lenin and Merlin. Upon this,
she got scared and when the complainant gave
her confidence, the victim informed her that one
day in the last month before 20th April in the
evening at about 17.30 hours when she was
present in the house, she had visited the
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neighbouring uncle's house, uncle Martin, who
was watering the plants in front garden of his
house and his daughter was sitting in front and
on seeing her alone, Martin forcibly caught her
hand and took her inside the house to the
bathroom through rare door and forcefully
undressed, her, made her complete naked inside
the bathroom, and then put on the shower,
making her wet, and then forcefully kissed her on
her lips and private part and inserted his finger in
the private part, which caused her very bad pain.
It is further the case that at that time she tried to
kick him. After that, Uncle Martin let her go and
that she wore her clothes and ran away from
inside house of Martin. At that time, his
daughter Luna was sitting in front area of the
house and on seeing her running from the house,
she asked her to sit with her, but she ran away as
she was very frightened and was crying. It is
further the case that she was afraid to tell her
mother and she did not disclose the incident to
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her and that she was having terrible pain in her
private part.
b. It is further the case that on 14 May 2012, in the
morning hours, she again took her daughter in
confidence and asked her to confirm and gave her
moral support and then the victim told the same
facts about the incident. It is further the case that
she called Child Helpline for Help and on 15th
May, 2012 upon visit of members of Child Line,
she along with members of Child Line and her
husband gave confidence to the victim and she
narrated the incident to the members of Child
Lines in her presence and in the presence of her
husband in the house. Thereafter, the complaint
came to be lodged.
3. Thereafter investigation was conducted and
chargesheet was filed on 16.08.2012. The Children's Court
for the State of Goa, at Panaji in Special Case No. 50/2012
framed the charge against the Appellant/Accused for the
offence punishable under Section 341, 354, 375(b) and
punishable under Section 376(2)(i) of IPC r/w Section 2(y)(i)
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and (ii) punishable under Section 8(2) of the Goa Children's
Act to which the Appellant pleaded not guilty and claimed to
be tried.
WITNESSES EXAMINED BY THE PROSECUTION
4. The prosecution has examined 10 witnesses in support
of its case.
PW1 XXX Victim
PW2 Mother of the victim
PW3 XXX (friend of the victim)
PW4 Merlyn Nunes (mother of PW3)
PW5 Nelson Figueiredo (Panch
witness to the Disclosure
Panchanama)
PW6 Savio Figueiredo (Panch witness
to Attachment Panchanama)
PW7 Dr. Chetan Karekar (Doctor who
examined the Appellant)
PW8 Dr. Sunil Chimbolkar (Doctor
who examined the victim)
PW9 Satish Padwalkar (Investigating
Officer)
PW10 Reina Fernandes (Judicial
Magistrate First Class who
recorded the statement of the
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victim under Section 164 of
Cr.P.C.)
5. Further, statement of the Appellant/Accused under
Section 313 of Cr.P.C. was recorded wherein the Appellant
denied all the allegations levelled against him and stated that
he has been falsely implicated in the present case.
6. The learned Children's Court considering the evidence
on record and after hearing the respective parties, convicted
the Appellant/Accused under Sections 341, 354, 375(b) and
376(2)(i) of IPC r/w Section 2(y)(i) and (ii) punishable under
Section 8(2) of the Goa Children's Act, 2003.
7. Aggrieved by the order of conviction passed by the
Children's Court, the present appeal has been filed on
various grounds. The State has contested the appeal.
8. The following points arise for determination in the
Appeal:
i. Whether the learned Children's Court, vide its
judgment dated 15.02.2018, has erred in its judgment
convicting the Appellant for the above stated offences?
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ii. Whether the charges levelled against the Appellant can
be said to be proved by the evidence on record?
iii. Whether there are any mitigating circumstances to be
taken into consideration with respect to the age of the
Appellant?
9. Heard the Ld. Counsel Ms Annelise Fernandes, for the
Appellant and Ld. Addl. Public Prosecutor Mr Pravin
Faldessai, for the Respondent/State.
10. The pivotal witnesses, apart from other witnesses,
whose depositions would be relevant to decide the present
Appeal are: PW1 - i.e. the victim herself, PW3 - the friend of
PW1, PW4 - son of PW 3, PW2 - the mother of victim, PW8
- Doctor who examined the victim, PW9 - the Investigating
Officer and PW10 - the JMFC who recorded the statement of
PW1 under Section 164 of Cr.P.C.
SUBMISSIONS OF THE LD COUNSEL FOR THE APPELLANT
11. It is the submission of the Ld. Counsel for the
Appellant that the prosecution has named the daughter of
the Appellant as a witness i.e (CW No. 10) in the chargesheet,
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but has failed to examine her. It is the submission that the
testimony of the daughter of the Appellant would have been
of utmost importance to the case, as the victim has herself
mentioned that the daughter of the victim was present in the
house when the incident occurred and saw her when she left
the bathroom. Further, it is submitted that although the
daughter of the Appellant was present, but PW1 did not
inform her regarding the incident. It is further argued that
the Appellant has been falsely implicated in the case and he
is innocent. It is also argued that the medical evidence rules
out that there was any sexual assault on the victim and
therefore there is nothing to connect the Appellant to alleged
offence. It is argued that there is delay in lodging FIR and
therefore there are chances of false implication. It is further
submitted that the reasoning given by the prosecution for the
delay in registration of FIR, does not hold as a good ground
as the testimonies of PW 1, PW 2, PW 3 and PW 4 are full of
discrepancies. Further it is argued that there are
inconsistencies and discrepancies in the evidence of
witnesses and there is no corroboration to the evidence of
PW1. The Learned Counsel for the appellant has submitted
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that the offence under Section 341 of IPC is not made out, as
the victim girl voluntarily came to the house of the Appellant.
It is further submitted that even the ingredients of offence
under Section 354 are not made out for using criminal force
with an intention to outrage modesty and so also the
ingredients of the Section 376 of the IPC are not made out.
The Learned Counsel has further submitted the case of the
prosecution with respect to the date on which the victim
informed PW 3 is also not certain and that PW 3 informing
his mother PW 4 smacks of malafide intentions as there is
unexplained delay of the circumstantial evidence. The
Learned Counsel for the Appellant has further argued that
adverse inference needs to be drawn against the prosecution
as the material witness has not been examined. It is further
submitted that as per the statement of the victim, she had
revealed the incident to her cousins who are also not
examined by the prosecution. She has further submitted that
as per the statement of the victim, the Appellant had caught
hold of the victim hands and therefore it would be natural for
a child to shout or raise alarm, however, as the victim has not
raised any alarm, the case of the prosecution is doubtful. It is
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therefore submitted that the Appellant deserves to be given
benefit of doubt considering the age of the Appellant.
SUBMISSIONS OF THE LD ADDL. PUBLIC PROSECUTOR
12. Per Contra, the Ld. Addl. Public Prosecutor has argued
that the offence is very serious and there is no question of
falsely implicating the Appellant as there is sufficient
material brought on record against the Appellant. He further
submitted that testimony of PW1 itself is believable and
sufficient to confirm the conviction. He further submitted
that absence of medical evidence is not fatal and sole
testimony of PW1 is sufficient to confirm the conviction. It is
further submitted that although there are omissions but
those are not major omissions which will go to the root of the
matter or in any manner make the evidence of the victim
unbelievable or untrustworthy. It is also argued that age of
the Appellant should not be considered as a mitigating factor
for either acquitting or reducing the sentence of the
Appellant and no interference is warranted in the order
passed by the trial Court which has taken the entire evidence
into consideration and has convicted the Appellant. The Ld.
Addl. Public Prosecutor therefore prayed that the conviction
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be confirmed.
13. Considering the arguments raised, it will therefore be
necessary to suitably analyse the deposition /evidence of the
PW1, who is the victim and other witnesses so that proper
conclusion is arrived at whether any credence can be placed
in the evidence of PW1 and the other witnesses or that the
Appellant has been falsely implicated.
ANALYSIS OF THE EVIDENCE
14. PW1 in her deposition has narrated that she was
studying in the 4th standard in Eden Primary School at
Mapusa and she knows the Appellant who is her neighbour.
She has deposed that in the year 2012, one month after
Easter, she had gone to meet the daughter of the Appellant in
the evening and as the door of her house was closed, she
went to the back door and called out to Luana, the daughter
of the Appellant, but she did not answer. PW1 further
deposed that at that time the Appellant was watering the
plants in his garden and the Appellant told her that he will
sprinkle water on her and asked her to go and bring a towel.
She was forced to bring towel so she went home and brought
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towel which was pink in colour with a girl on it. She further
deposed that when she came with the towel, the Appellant
did not sprinkle water on her but he dragged her into the
bathroom from the back door. She further deposed that the
Appellant removed all her clothes and kept the clothes on a
rack in the bathroom. At that time, she tried to kick him, but
he was holding her hands firmly. He then put his finger
inside her private part and kissed on her private part and her
lips. She further deposed that she had pain in her private
part due to the said act of the Appellant. She has further
deposed that the Appellant asked her to stay for some time,
but she refused and went home. She further deposed that her
mother was watering the garden. She did not tell her mother
anything as she was scared that she will shout at her. She
further deposed that she sat outside and started crying. She
had bath and after having dinner she went to sleep. She had
pain in her private part which lasted for two days. PW1 has
further deposed that she informed PW3 and then to PW4
about the incident that has taken place. She further deposed
that she had narrated the incident to PW3 as if it had
happened to one of her friends. However, while narrating
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incident to PW4 she has deposed that such an incident has
happened to her. She has further deposed that she informed
PW3 and PW4 about the incident after two to three days of
the incident. Further she has stated that after she had
narrated the incident to PW4, the PW4 called her mother,
but as her mother was busy, she did not come. She further
deposed that on next Sunday PW4 met her mother at the
prayer meeting and informed her about the incident. Her
mother made inquiry with her and then informed the police.
She further deposed that she had also informed about the
incident to her cousins Rosel and Russel, but she does not
remember the date on which she had informed about the
incident to them. She has also identified her signature on her
statement recorded under Section 164 Cr.P.C. She further
stated that she met Luana who is the daughter of the
Appellant after the incident, but she did not tell anything to
Luana about the incident. PW1 has even identified her
clothes which she had worn on that relevant day and the
towel which she had taken to the house of the Appellant.
15. The said deposition of the victim is reproduced below:
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"Thereafter, he put on the shower. When he
removed my clothes, I tried to kick him. But he
was holding my hands firmly. Martin Soares
then put his finger inside my private part and
rubbed. Then he kissed on my private parts and
on my lips. I experience pain in my private part,
due the acts of Martin Soares.
Martin Soares told me to stay for some more
time, but I refused. I put on my clothes and
went home. My mother was watering the
garden. I did not tell my mother. I sat outside
and started crying. I did not tell my mother, as I
was scared that she will shout at me.
I went in to the bathroom, had a bath and after
having my dinner, I went to sleep. The pain in
my private part lasted for two days."
16. PW1 was cross examined by the learned Counsel for the
Appellant. However, after going through the cross
examination, it can be seen that nothing has been brought on
record by the Appellant to disbelieve the evidence of PW1.
The evidence has not been shaken in the cross examination.
PW1 has narrated the incident in apposite manner without
leaving any scope to doubt her testimony. Although there are
few omissions, for instance omission with respect to the
Appellant forcibly telling her to go and get the towel, which
does not find place in her statements recorded under
Sections 161 and 164 of Cr. P.C, likewise PW1 informed her
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aunt (CW8) at the swimming pool has not been recorded in
her statement recorded under Sections 161 and 164 of Cr.P.C.
Further, there are two other omissions, viz. that after the
incident, PW1 met Luana as she was in the hall, but she did
not tell her anything is not recorded in her statements
recorded under Sections 161 and 164 of Cr.P.C. and lastly the
omission that she had told about this incident to her cousins,
does not find place in her statements recorded under
Sections 161 and 164 of Cr.P.C. Even if it is considered that
these are omissions which have come on record in the cross
examination, the same are not in any manner causing any
dent to the testimony of PW1. Even if these omissions are
considered, it does not in any manner effect the deposition
about actual happening of the incident, which PW1 has
narrated. Needless to mention that the omission/s should be
such so as to create a serious doubt about the truthfulness or
credit worthiness of a witness which is not the case here. The
evidence of PW 1 does not seem to be tutored by anyone to
falsely implicate the Appellant. Further PW1 has even
identified her clothes which she had worn on that relevant
day and the towel which she had taken to the house of the
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Appellant, however she he has not been cross examined on
that particular aspect as well. Therefore, the deposition of
PW1 inspires total confidence and there is no reason for PW1
to falsely implicate the present Appellant.
17. The evidence of PW2, who is the mother of PW1 has
also supported the prosecution's case. PW2 has stated that
she knows the Appellant who is her neighbour. She has
deposed that on 13.05.2012, she and her husband had been
to Asro, Mapusa, for attending a prayer meeting on one
Sunday where they met their friends PW4 (CW8) and CW9
and at that time it was informed to her that PW1 was sexually
molested by the Appellant. She has further deposed that PW1
had gone to stay with PW4 and CW9 in the month of May
and during that visit, she had informed their son (PW3)
about the incident. She has further deposed that PW1 had
told PW4 (mother of PW3) about the incident as if it has
happened to someone else. Further PW2 has deposed that
PW1 had informed PW3 about the incident and PW3 had
informed his mother (PW4) and thereafter PW4 had inquiry
with PW1 who disclosed that the incident has taken place
with her. PW2 has further deposed that PW1 informed PW4
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that the Appellant had molested her in his house between
08.04.2012 to 20.04.2012. She has further narrated that
after coming back home, she took PW1 in confidence and
made inquiry with her and PW1 then narrated the incident to
her that she had gone to the house of the Appellant and the
Appellant was watering plants. She further deposed that the
Appellant told PW1 that he will sprinkle water on her and
asked her to get towel, so PW1 came home and took the towel
and went back to the house of the Appellant. Further she
informed that the Appellant dragged her to the backdoor and
took her to the bathroom. During her deposition, as
recorded, PW2 became quite emotional and she was in tears
and unable to speak. Hence, she was asked not to disclose
the incident narrated to her by PW1. She has further deposed
that she was shocked to hear about the incident and once
again inquired with PW1 about the incident and then called
Childline, who after talking to PW1 lodged the complaint at
Mapusa Police Station. She has identified her signature on
the complaint, which is marked Exh. C-13. She has further
deposed that she has handed over the clothes of the victim to
the police on 15.05.2012. The clothes were washed prior to
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that. The clothes consisted of a pink towel with blue border
and pink T-shirt. She has identified the clothes in the Court
when it was shown to her. PW2 has also produced the Birth
Certificate of PW1 which is marked as Exh. C-17. No
objection was raised by the Ld. Counsel for the Appellant and
the age is also not disputed. The said witness was cross
examined at length by the Ld. Counsel for the Appellant.
However, nothing adverse came to be elicited in the cross
examination. The thrust of the cross examination was about
the time period when PW1 was staying with PW4. However,
nothing has been brought on record to disbelieve the
testimony of the present witness.
18. Upon analysing the evidence of PW3, who is a friend of
PW1, it can be seen that PW3 was studying in the same
school and they were family friends. He has deposed that he
along with his family had gone for swimming at Peddem
swimming pool in the evening and PW1 and her parents had
also come to swimming pool. PW3 has further deposed that
from the swimming pool, they all went to his house and at
that time PW1 called him to the bedroom and told him that
one man had taken off the underpants of one of her friends
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and had kissed her down (private part). It is further deposed
that PW3 told his mother about the said incident. In the
cross examination what was being tried to be brought on
record was that the parents of PW1 were also present at his
place at the time when PW1 told him about the incident. The
submissions of the Ld. Counsel for the Appellant were that
PW2 has nowhere stated in her deposition that PW2 and her
husband had visited the house of PW3. PW3 has further
deposed that they all had dinner together and parents of PW1
proceeded back home after having dinner. No doubt, there is
discrepancy in the evidence of PW2 and PW3 to the extent
that PW2 has not narrated that they have been to the house
of PW3. However, the said discrepancy cannot be considered
to be major or material discrepancy as PW3 does not say that
PW2 was informed about the incident on that day. PW2 had
stated that she was informed on 13.05.2012 by the mother of
PW3 when they had gone for prayer meeting at Mapusa.
Even if these minor discrepancies are there, it does not in
any manner cause any dent to the prosecution case. It was
tried to be brought on record in the cross examination that
PW1 had stated that the incident has taken place with one of
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her friends, thereby suggesting that the act was not
committed on her. However, said witness PW3 has in
categorical terms in his deposition had deposed that PW1
narrated the incident to him initially when she stated that the
said incident had happened with her friend and this was
informed to PW4 who is mother of PW3.
19. Upon analysis of evidence of PW4, it can be seen that
she is the mother of PW3 and she has deposed that her
family had gone for swimming at Peddem swimming pool,
family of the victim had also come to the swimming pool. She
further deposed that PW1 had told PW3 that one of her
friends was molested and was taken to the bathroom by one
man and was kissed on her private part. This was informed
by PW3 (son of PW4) to her after which she took PW1 in
confidence and while talking to her PW1 told that the
incident had happened to her. PW1 had told her that incident
had happened in the house of her neighbour. PW4 further
deposed that she spoke to her husband and informed the
parents of the victim about the incident narrated by PW1
when they had met the parents of PW1 after a week at Asro
Damade, where they usually meet for prayers. Even if the
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cross examination is considered, no doubt that there is minor
discrepancy as to, who was present at the house of PW4 as
PW3 has stated that PW4 and family of PW2 had come for
dinner. Even if this discrepancy is taken into consideration, it
does not in any way demolish the deposition of PW4 to the
extent that PW1 had narrated the incident to her. As far as
that aspect is concerned, PW4 has then categorically stated
that PW1 had told her about the incident and even named the
Appellant. There is no cross examination on this aspect and
therefore her deposition has virtually gone unchallenged.
PW4 is consistent that it was only during the prayer meet,
the mother of the victim was informed.
20. The other witnesses whose depositions can be said to
be relevant is PW8 who has examined the victim. It was
argued by the Ld. Counsel for the Appellant that there are no
injuries on the private part and therefore, it can be concluded
that the said incident had not taken place. As per the
deposition of PW1, the incident had taken place somewhere
in the month of April and which was narrated to PW3 in the
month of May 2012. As per the deposition of PW2, the
incident had taken place in the house of the Appellant
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between 08.04.2012 to 20.04.2012. The deposition of PW8
states that on general examination there were no injuries
present over the body and on genital examination, genitals
were well developed for age. On vaginal examination, there
were no injuries seen on labia majora and labia minora. The
said witness has further deposed that no injuries were seen
to the anterior and posterior commissure. It is further
deposed that on physical and genital examination of the
victim and in absence of positive findings for sexual assault,
no opinion can be given to that effect. The doctor has further
categorically deposed that it is possible that it can take
around 7 to 10 days to heal genital injury. This is possible as
the incident had taken place in the month of April, 2012 and
she was examined on 15.05.2012, the injury must have been
healed. Therefore, the submission of the Ld. Counsel for the
Appellant that since there are no injuries, the incident did
not take place cannot be accepted. Surprisingly, there was no
cross examination, although opportunity was given.
21. A profitable reference can be given to the latest
Judgment of the Hon'ble Apex Court in the case of Deeepak
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Kumar Sahu V/s State of Chhattisgar, 2025 INSC 929 . The
relevant paras are quoted below:
"5.5 In cases of offences committed under Section 376,
IPC, when the story of the victim girl as told in the
evidence is found credit-worthy, the apparent
insufficiency of medical evidence pitted against
acceptable testimony of the victim, the latter would
prevail. In State of Punjab vs. Gurmit Singh [(1996) 2
SCC 384] it was observed:
In the absence of injury on the private part of
the prosecutrix, it cannot be concluded that
the incident had not taken place or the
sexual intercourse was committed with the
consent of the prosecutrix. The prosecutrix
being a small child of about nine years of age,
there could be no question of her giving
consent to sexual intercourse. The absence of
injuries on the private part of the prosecutrix
can be of no consequence in the facts and
circumstances of the present case.
(Para 16)
5.5.1 In State of Himachal Pradesh vs. Manga Singh,
[(2019) 16 SCC 759], which was also a case in relation to
the offence committed under Section 376, IPC where the
prosecutrix was minor girl aged 9 years, she was staying
in her aunt's house pursuing her studies. When the
offence of rape was committed against her, she narrated
the story to her teacher. The High Court gave the benefit
of doubt to the accused on the ground, inter alia, that the
medical evidence of the doctor was not conclusive to hold
that the prosecutrix was subjected to sexual intercourse.
5.5.2 This Court observed that if the evidence of the
victim does not suffer from any basic infirmities and the
factor of probability does not render it unworthy
evidence, the conviction could base solely on the
evidence of the prosecutrix. It was further observed that
as a general rule there is no reason to insist on the
corroboration accept in certain cases, it was stated.
5.5.3 The medical evidence may not be available in which
circumstance, solitary testimony of the prosecutrix could
be sufficient to base the conviction.
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"The conviction can be sustained on the sole
testimony of the prosecutrix, if it inspires
confidence. The conviction can be based
solely on the solitary evidence of the
prosecutrix and no corroboration be required
unless there are compelling reasons which
necessitate the Courts to insist for
corroboration of her statement.
Corroboration of the testimony of the
prosecutrix is not a requirement of law; but a
guidance of prudence under the given facts
and circumstances. Minor contractions or
small discrepancies should not be a ground
for throwing the evidence of the prosecutrix."
5.5.4 It may be true that in the present case the
evidence of the medical officer (PW-17) spoke about
absence of external injury marks on the genitals of
the victim. However, the proposition that the
corroboration from the medical evidence is not sine
qua non when the cogent evidence of the victim is
available, was reiterated in a recent judgement of
this Court in Lok Mal alias Loku vs. State of Uttar
Pradesh, [(2025) 4 SCC 470], observed:
"Merely because in the medical evidence, there are
no major injury marks, this merely cannot a be a
reason to discard the otherwise reliable evidence of
the prosecutrix. It is not necessary that in each and
every case where rape is alleged there has to be an
injury to the private parts of the victim and it
depends on the facts and circumstances of a
particular case. We reiterate that absence of
injuries on the private parts of the victim is not
always fatal to the case of the prosecution.
(Para 4)
5.5.5 Akin to the facts of the present case, it was
stated in Lok Mal (supra), according to the version
of the prosecutrix, that the accused overpowered
her and pushed her to bed in spite of her resistance
and gagged her mouth using a piece of cloth. Thus,
considering this very aspect, it is possible that there
were no major injury marks. The appellant made an
attempt to raise the defence of false implication,
however, he was unable to support his defence by
any cogent evidence.
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5.5.6 The credible and reliable evidence of
prosecutrix could not be jettisoned for want of
corroboration including the corroboration by
medical report or evidence. The Court observed in
Manga Singh (supra) that "in absence of injury on
the private part of the prosecutrix, it cannot be
concluded that the incident had not taken place or
the sexual intercourse was committed with the
consent of the prosecutrix". It was stated that it is
well settled that in the cases of rape it is not always
necessary that external injury is to be found on the
body of the victim.
5.6 It is an opt-reiterated dictum of law that in
cases of rape, the testimony of the prosecutrix alone
may be sufficient and sole evidence of the victim,
when cogent and consistent, could be properly used
to arrive at a finding of the guilt. In the State of
Himachal Pradesh vs. Manga Singh, (2019) 16 SCC
759, this Court in terms stated that conviction can
be rested on the testimony of the prosecutrix alone.
The conviction can be sustained on the sole
testimony of the prosecutrix, if it inspires
confidence. The conviction can be based solely on
the solitary evidence of the prosecutrix and no
corroboration be required unless there are
compelling reasons which necessitate the Courts to
insist for corroboration of her statement.
Corroboration of the testimony of the prosecutrix is
not a requirement of law, but a guidance of
prudence under the given facts and circumstances.
Minor contractions or small discrepancies should
not be a ground for throwing the evidence of the
prosecutrix."
(Para 10)
5.6.1 It was further asserted that corroboration is
not an essential requirement for conviction in the
cases of rape.
It is well settled by a catena of decisions of the
Supreme Court that corroboration is not a sine qua
non for conviction in a rape case. If the evidence of
the victim does not suffer from any basic infirmity
and the "probabilities factor" does not render it
unworthy of credence. As a general rule, there is no
reason to insist on corroboration except from
medical evidence. However, having regard to the
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circumstances of the case, medical evidence may
not be available. In such cases, solitary testimony of
the prosecutrix would be sufficient to base the
conviction, if it inspires the confidence of the Court.
(Para 11)
5.6.2 In Gurmit Singh (supra) it was observed to
reiterate that in all cases, the corroboration to the
statements made by the victim in her evidence
could not be insisted upon as a rule of thumb:
In cases involving sexual molestation,
supposed considerations which have no
material effect on the veracity of the
prosecution case or even discrepancies in the
statement of the prosecutrix should not,
unless the discrepancies are such which are
of 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.
(Para 8)
5.6.3 It was asserted that only compelling reasons
would justify rejection of testimony of a rape
victim, and not otherwise:
"....the Courts should find no difficulty to act
on the testimony of a victim of sexual assault
alone to convict an accused where her
testimony inspires confidence and 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....."
(Para 8)
5.6.4 From a recent decision in Raju alias Umakant
vs. State of Madhya Pradesh, (2025 SCC OnLine SC
997), following observations could be noticed:
".......a woman or a girl subjected to sexual
assault is not an accomplice but a victim of
another person's lust and it will be improper
and undesirable to test her evidence with
suspicion. All that the law mandates is that
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the Court should 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
charge levelled by her and if after keeping
that aspect in mind if the Court is thereafter
satisfied that the evidence is trustworthy,
there is nothing that can stop the Court from
acting on the sole testimony of the
prosecutrix. [See State of Rajasthan v. N.K.
the Accused, (2000) 5 SCC 30, Rameshwar v.
State of Rajasthan, 1951 SCC 1213, State of
Maharashtra v. Chandraprakash Kewal
Chand Jain, (1990) 1 SCC 550, State of
Punjab v. Gurmit Singh, (1996) 2 SCC 384]"
(Para 18)
5.6.5 As early as in State of Maharashtra vs.
Chandraprakash Kewalchand Jain, [(1990) 1 SCC
550], this Court observed that the prosecutrix of a
sex offence cannot be put on a par with the
accomplice, it was further observed that she is a
victim of crime. The Evidence Act nowhere says
that her evidence cannot be accepted unless it is
corroborated in material particulars. It was further
observed that evidence of a rape victim must
receive the same weight as is attached to an injured
in cases of physical violence. It was stated that
there is no rule of law or practice incorporated in
the Evidence Act similar to illustration (b) to
Section 114 of the Evidence Act which may require
it to look for corroboration.
22. Further analysis of the evidence of PW 10, the Civil
Judge, Junior Division and JMFC E Court, Mapusa who
recorded the statement under Section 164 of CRPC has
confirmed that she had recorded the statement of the victim
as per say on 8.6.2012.
From the above, it is therefore clear that evidence of PW1 is
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not only clear and consistent in the narration of the incident
but natural as well. The events such as narration of the
incident to PW3 and PW4 can also be corroborated with the
evidence of PW1. The absence of injury on the private part is
also not of much significant, in the facts of the present case,
as PW8 has categorically deposed that the injury to the
genitals must have been healed due to lapse of time, as it
takes around 7 to 10 days to heal such an injury. There is no
cross examination on this aspect. There are no major
contradictions in the deposition of PW1, PW2, PW3 and PW4
and the witnesses inspire confidence. There are also no
serious contradictions and omissions which materially affect
the prosecution case. There is no material brought on record
to come a conclusion that the Appellant has been falsely
implicated either due to any previous enmity or any other
reason. Thus evaluating the total evidence, in the light of the
principle of law, with the evidence of the victim, it can be
safely stated that the evidence of PW1 is probable, natural
and trust worthy and it cannot be said that her evidence is
tutored. There is no reason to disbelieve and discard her
testimony. The issue that she had not narrated the incident
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to the daughter of the Appellant or her mother immediately
can be said to be quite natural and that she informed PW3
who is of her age also cannot said to be unnatural conduct on
the part of the victim. There is no delay in lodging of FIR.
Needless to mention that as far as 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.
23. As far minor omissions and contradictions are
concerned, a profitable reference can also be made to the
judgment of the Apex Court in the case of Sunil Kumar
Sambhudayal Gupta (Dr.) and others vs. State of
Maharashtra (2010) 13 SCC 657 wherein it is observed as
under:-
"While appreciating the evidence, the Court has to
take into consideration whether the
contradictions/omissions had been of
such magnitude that they may materially affect the
trial. Minor contradictions, inconsistencies,
embellishments or improvements on trivial matters
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without effecting the core of the prosecution case
should not be made a ground to reject the evidence
in its entirety. The Trial Court, after going through
the entire evidence, must form an opinion about the
credibility of the witnesses and the appellate Court
in normal course would not be justified in reviewing
the same again without justifiable reasons."
24. Reference can also be made to the Judgment of the
Hon'ble Supreme Court in the case of Vahitha Vs State of
Tamil Nadu, (2023) 11 SCC 338, wherein in paragraphs 41
and 43 has observed as under:-
"41. As regards inconsistencies and/or
discrepancies in the version of the witnesses, in
Shyamal Ghosh [Shyamal Ghosh v. State of W.B.,
(2012) 7 SCC 646 : (2012) 3 SCC (Cri) 685] this
Court has explained the distinction between
serious contradictions and omissions which
materially affect the prosecution case and marginal
variations in the statement of witnesses in the
following terms : (SCC p. 673, para 68)
"68. From the above discussion, it precipitates that
the discrepancies or the omissions have to be
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material ones and then alone, they may amount to
contradiction of some serious consequence. Every
omission cannot take the place of a contradiction
in law and therefore, be the foundation for
doubting the case of the prosecution. Minor
contradictions, inconsistencies or embellishments
of trivial nature which do not affect the core of the
prosecution case should not be taken to be a
ground to reject the prosecution evidence in its
entirety. It is only when such omissions amount to
a contradiction creating a serious doubt about the
truthfulness or creditworthiness of the witness and
other witnesses also make material improvements
or contradictions before the court in order to
render the evidence unacceptable, that the courts
may not be in a position to safely rely upon such
evidence. Serious contradictions and omissions
which materially affect the case of the prosecution
have to be understood in clear contradistinction to
mere marginal variations in the statement of the
witnesses. The prior may have effect in law upon
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the evidentiary value of the prosecution case;
however, the latter would not adversely affect the
case of the prosecution."
43. In Gangadhar Behera [Gangadhar Behera v.
State of Orissa, (2002) 8 SCC 381 : 2003 SCC (Cri)
32] , this Court again highlighted that the normal
discrepancies in evidence are of natural occurrence
in the Court, while observing as under : (SCC p.
393, para 15)
"15. ... normal discrepancies in evidence are those
which are due to normal errors of observation,
normal errors of memory due to lapse of time, due
to mental disposition such as shock and horror at
the time of occurrence and those are always there
however honest and truthful a witness may be.
Material discrepancies are those which are not
normal, and not expected of a normal person.
Courts have to label the category to which a
discrepancy may be categorised. While normal
discrepancies do not corrode the credibility of a
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party's case, material discrepancies do so. These
aspects were highlighted recently in Krishna Mochi
v. State of Bihar [Krishna Mochi v. State of Bihar,
(2002) 6 SCC 81 : 2002 SCC (Cri) 1220] ."
JUDGMENTS RELIED UPON BY THE APPELLANT.
25. In support of her submissions, the Ld. Counsel for the
Appellant has relied upon the following judgments.
i. Golu Vs The State of Madhya Pradesh, 2024MPHC-
IND-28481,
ii. Janardhan Pandurang Kapse Vs The State
Maharashtra, Appeal No. 838 of 2019.
iii. Vijay s/o Manoharrao Jawanjal Vs State of
Maharashtra, Criminal Appeal No. 185 of 2021 dated
14.8.2024 passed by High Court of Bombay, Nagpur
Bench.
iv. Pravin Ruprao Harde Vs State of Maharashtra,
Criminal Appeal No. 67 of 2021 dated 29.7.2024
passed by High Court of Bombay, Nagpur Bench.
v. Parkash Chand v/s State of Himachal Pradesh, AIR
2019SC 1037.
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vi Hari Narayan v/s State of Madhya Pradesh, Criminal
Appeal No. 2446 of 2005 dated 17.1.2024 decided by
Madhya Pradesh High Court at Jabalpur.
vii. State of Orissa v/s Ardu Chendreya,
Manu/OR/0525/2010.
viii. P. N.Krishna Lal and Ors v/s Govt of Kerala and
Ors.MANU/SC/1007/1995
ix. Davinder Singh v/s State of Punjab, Criminal
Appeal No. 12 of 2015 dated 22.06.2023 passed by
Hon'ble Supreme Court.
x. Nirmal Premkumar and Ors v/s State rep. by
Inspector of Police, Criminal Appeal No. 1098 of 2024
passed by Hon'ble Supreme Court.
ANALYSIS OF THE JUDGMENTS RELIED UPON BY THE
APPELLANT.
26. By referring to the judgment of Golu v/s State of
Madhya Pradesh(supra), it was submitted that there was a
delay of 6-9 days in registration of the FIR from the incident
and the Court has held that since it is a case of attempt to
rape, a delay of 1-2 days is possible but a delay of 6-9 days
from a major prosecutrix is unnatural. Upon going through
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the judgment, it can be seen that the facts of the said case are
different. It was a case of attempted rape. The FIR was
lodged after a delay of 6 to 9 days of the incident, and the
Court had come to the conclusion that in a case of attempt to
rape delay of one or two days is possible, but delay of 6 to 9
days by a major prosecutrix is unnatural. In the facts of the
case, the Court had come to a conclusion that the testimony
of the prosecutrix is having contradiction and material
exaggeration and that there was a previous enmity of land
dispute between the parties and further no specific evidence
or DNA regarding attempt to rape is produced by the
prosecution. The Court has further observed that even the
MLC report was delayed by seven days and the incident was
neither supported by any independent witness nor by any
medical testimony. It was in the backdrop of the facts and
circumstances of that case that the Court came to the
conclusion that the prosecution had failed to prove the
offences alleged.
27. By referring to the judgment of Janardan Pandurang
Karpse v/s The State of Maharashtra (supra), it was tried to
be argued that the accused was acquitted as the prosecution's
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version was full of contradictions and lacked medical or
independent corroboration, creating clear, reasonable doubt.
However, in the facts of the said case the Court has observed
that the victim had admitted in her cross-examination that
her parents were present at the time of recording a statement
under Section 164 of CRPC and her parents had told her how
to give the statement. It is also further observed that when
she was questioned by the police about the incident, her
mother had given answers which were taken down in writing.
She has admitted that her parents had told her how to
depose before the Court. The Court has further observed
that PW2 on her own admission was a tutored witness and
hence the Court has not placed reliance on her evidence. The
Court has also observed that the PW2 had noticed the injury
on the private part of the victim and that she was passing
reddish colour urine, but had not taken the victim to the
doctor till the lodging of FIR, and therefore the Court had
come to a conclusion that the conduct was unnatural and had
cast doubt on the truthfulness and credibility of the entire
prosecution witness. The ruling in this case will not be of any
aid to the case of the Appellant, as the facts are totally
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different. In the present case, there is nothing to suggest that
the victim was in any manner tutored nor are there any
major omissions which would cast doubt on the truthfulness
and credibility of the entire prosecution witness.
28. By referring to this judgment of Vijay Jawanjal v. State
of Maharashtra (supra), it was submitted that what has been
noted by the Hon'ble Court that in this case that the victim
girl after facing such an ordeal could not have behaved
normally. Upon reading the entire judgment it can be seen
that in the facts of the case, the version of the victim has been
disbelieved by the Court. The Court has observed that her
mother had told her to tell before the Court that the accused
had caused harassment to her and that her mother had told
her to depose as per her say, otherwise she would punish her.
It is further observed that it was the mother who had told the
name of the accused, and therefore, the Court came to the
conclusion that she was tutored. The witness was tutored to
depose against the accused. The Court in the facts of the case
and on appreciation of evidence, had come to a conclusion
that the evidence adduced by the prosecution is not cogent,
convincing and trustworthy, and that the evidence was not
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sufficient to prove the guilt of the accused beyond a
reasonable doubt and that the attending circumstances were
sufficient to doubt the credibility and trustworthiness of the
witness. The Court has also observed that there was no
concrete evidence about penetrative sexual assault and hence
the Court had quashed the order of conviction. The facts of
the present case are different. The conduct of the 9 years old
child confiding in the child of same age and not to her
parents, cannot be said to be unnatural and just because the
behaviour of the victim was normal, it cannot be construed
that the incident has not taken place.
29. By referring to the judgment of Pravin Ruprao Harde
vs State of Maharashtra (supra), it was submitted that the
Court acquitted the Appellant because the medical evidence
did not corroborate the prosecution's version and material
inconsistencies in witness testimonies raised reasonable
doubts about the alleged assault. The Court in the facts of the
case has come to the conclusion that there are material
omissions and inconsistencies in their evidences on the vital
aspect of the case of the prosecution and the statements
recorded under Section 164 are also inconsistent as to the
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occurrence of the incident and the actual act committed by
the accused and therefore the Court was of the opinion that
the prosecution had failed to prove the guilt of the accused
beyond reasonable doubt. The Court has observed that the
inconsistent evidence of the witnesses on material aspect is
sufficient to doubt the credibility and trustworthiness of the
witnesses and therefore, in the teeth of such doubtful
evidence, the Court came to a conclusion that the
prosecution has failed to prove the guilt of the accused and
therefore had given a benefit of doubt and therefore even this
judgment and its observations are not helpful to the
Appellant.
30. By referring to the judgment of Parkash Chand v/s
State of Himachal Pradesh (supra), it was submitted that
there was a delay in filing the FIR for 7 months and when
vital evidence is not appreciated, the Courts can interfere.
This ruling can be distinguished in the facts of the case as
there was a delay of 7 months in lodging FIR and the victim
was not a minor. The Hon'ble Apex Court in the facts of the
said case came to conclusion that it would be unsafe to base a
conviction solely on the testimony of the prosecutrix and
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accordingly extended the benefit of doubt to the Appellant.
The said case can be distinguished as there is no inordinate
delay. The victim in the present case has confided in the child
of her age at the available opportunity and which in turn was
communicated to her mother who without any loss of time
and after properly ascertaining from the victim has lodged
the complaint and therefore even this case will not be of any
avail to the Appellant.
31. The case of Hari Narayan v/s State of Madhya Pradesh
(supra), was cited which talks about independence of
witnesses. The necessity of examination of all witnesses is
material to unfold the genesis of the incident. In the said
case, the offence was under Section 354 of IPC. The victim
was not a minor and the issue was whether oral dying
declaration can be relied upon in absence of documentary
evidence. Emphasis in this case was on the difference
between a related witness and an interested witness and
therefore, this judgment will not aid the Appellant in any
manner.
32. By referring to the judgment of State of Orissa v/s Ardu
Chendreya (supra), it was submitted that the Hon'ble Court
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has taken into consideration the mitigating circumstances
like the convict has no criminal background, no adverse
report has been submitted during detention by the jail
authorities and urged before the Court that Appellant is 83
years old and that his advanced age be considered, further he
has no criminal history or any other litigation pending
against him and therefore these factors may be considered as
mitigating circumstances and the Appellant be acquitted.
Whilst taking into consideration the age of the Appellant, the
Court cannot be oblivion to the age of the victim who has
undergone the ordeal and which must have left an indelible
mental scar for her lifetime.
33. In the case of P. N. Krishna Lal and Ors v/s Govt of
Kerala and Ors. (supra), reliance is placed on this judgment
to canvass an argument that the burden is on the prosecution
to prove the offence beyond reasonable doubt. The learned
Counsel has submitted that the it is a settled law even under
a general criminal jurisprudence that Section 105 and 106 of
the Evidence Act, places a part of the burden of the accused
to prove the fact which are within his knowledge when the
prosecution establishes the ingredients of the offence
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charged, the burden shifts on the accused to prove certain
facts within his knowledge or exceptions to which is entitled
to. She has further submitted the test of proof of
preponderance of probability is extended criminal
jurisprudence and the burden of proof is not as heavy as on
the prosecution and that once the Accused succeeds in
showing by preponderance of probability that there is
reasonable doubt in his favour, the burden shifts again on
the prosecution to rove for the case against the accused
beyond reasonable doubt, if the accused has to be convicted.
There can be no doubt about this proposition of law, however
in the present case, the Appellant has never entered the
witness box or led any evidence to disprove the case of the
prosecution. Even in the cross examination there is nothing
to discredit the evidence of the victim. Therefore, this ruling
also does not come to the aid of the Appellant.
34. By referring to the judgment of Davinder Singh v/s
State of Punjab, (supra), it has been submitted that the
accused has been acquitted by the Hon'ble Supreme Court
based on the absence of concurrent findings that there was
an inordinate delay in filing the complaint. The said case can
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be distinguished on the facts of the case as in the case cited,
the victim was not a minor. The only eye witness was not
examined. There was a delay of 28 days in filing the
complaint and the reasons assigned was not acceptable.
Further there was no recovery of knife when the specific case
was that he committed the offence by threatening to the
prosecutrix. Taking these factors as well as other factors into
consideration, the Appellant was acquitted. This case also
will not be of any avail to the Appellant as there is sufficient
evidence to indicate the complicity of the Appellant which
has been elaborately discussed above.
35. The Ld. Counsel has also referred to the judgment of
the Apex Court in the case of Nirmal Premkumar and Ors v/s
State rep. by Inspector of Police (supra) and has submitted
that conviction undoubtedly can be recorded on the sole
evidence of a victim of crime. However, it has to undergo
scrutiny through a well settled legal principles as established
by this Court and has therefore submitted that even in the
said case, the evidence has been marked by inadequacies,
omissions, and contradictions, and therefore, the evidence of
the victim should be taken into consideration with proper
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circumspection. In the opinion of this Court, the Hon'ble
Apex Court in the said case, after taking into consideration
the prosecution case came to the conclusion that the
prosecution's case has been marked by a lacklustre effort,
revealing a poorly executed endeavour that gives rise to
substantial doubts regarding the integrity of the case. The
Court has also observed that there have been material
contradictions apparent in the deposition of prosecution
witnesses, including the victim, thereby undermining the
credibility of the prosecution's version and therefore in the
facts of that case, was pleased to set aside the conviction.
Such is not the fact in the present case. The version of the
victim inspires total confidence and her evidence has not
been shaken in the cross-examination and therefore, the
present ruling cited by the Appellant cannot come to the
rescue of the Appellant.
36. In the case of Takhaji Hiraji v/s Thakore Kubersing
Chamansing and Ors. (supra), this judgment is relied upon
by the Appellant to point out that if a material witness, which
would unfold a genesis of the incident or an essential part of
the prosecution case not convincingly brought to fore or not
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examined the witness although available, then the
prosecution case can be termed as suffering from a deficiency
and withholding of such a material witness would oblige the
Court to draw an adverse inference against the prosecution
by holding that if the witnesses would have been examined, it
would not have supported the prosecution's case. The answer
to this lies in the same judgment where the Court has also
observed that if already overwhelming evidence is available
and examination of other witnesses would only be a
repetition or duplication of the evidence already adduced,
non-examination of such other witnesses may not be
material. The Court has further observed that if the witnesses
already examined are reliable and the testimony coming
from their mouth is unimpeachable, the Court can safely act
upon it, uninfluenced by the factum of non-examination of
other witnesses. In the present case, the evidence of the
victim is unimpeachable and therefore, assuming that the
prosecution has not examined the daughter of the Appellant,
for the reasons best known, the same will not be fatal to the
prosecution's case.
37. The trial Court has rightly relied upon the judgment of
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B C Deva v State of Karnataka, 2007 (12) SCC 122, wherein it
is observed that the medical evidence was not corroborating
the alleged forced sexual intercourse and the conviction was
based solely on oral evidence of prosecutrix and her
subsequent conduct. The conviction was upheld by the
Hon'ble Supreme Court and it is held that when the oral
testimony of victim is found to be cogent, reliable, convincing
and trustworthy and when her evidence is corroborated by
other witnesses and the narration of events in the FIR, the
matter can result in conviction, even when the medical
examination of prosecutrix does not disclose evidence of
sexual intercourse and when no injury marks are found on
the accused or the victim.
INGREDIENTS OF THE OFFENCES ARE MADE OUT
38. The prosecution has proved all the ingredients of the
offences with which the Appellant was charged for.
39. Section 339 of IPC which is the defining Section and
Section 341 of IPC which is penal Section is reproduced
herein below:-
"Section 339: Whoever voluntarily obstructs any
person so as to prevent that person from proceeding
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in any direction in which that person has a right to
proceed, is said wrongfully to restrain that person.
Section 341 Punishment for wrongful restraint.--
Whoever wrongfully restrains any person shall be
punished with simple imprisonment for a term
which may extend to one month, or with fine which
may extend to five hundred rupees, or with both."
40. The material brought on record conclusively proves the
minor victim girl was 'wrongfully restrained' in the bathroom
of the house of the Appellant by the Appellant, by preventing
her from proceeding out from that place. It has come in
evidence of PW No 1 that when the Appellant removed her
clothes, she tried to kick him but he had held her hand
firmly. Therefore, the victim was trying to move but was
prevented by the Appellant. There is no cross examination on
this aspect as well. Therefore, the offence of wrongful
restraint as defined in Section 339 of IPC and punishable
under Section 341 IPC is duly proved.
41. Section 375 defines "Rape" [375. Rape.-- A man is said
to commit "rape" if he--
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(a) penetrates his penis, to any extent, into the vagina,
mouth, urethra or anus of a woman or makes her to do so
with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not
being the penis, into the vagina, the urethra or anus of a
woman or makes her to do so with him or any other person;
or
(c) manipulates any part of the body of a woman so as to
cause penetration into the vagina, urethra, anus or any part
of body of such woman or makes her to do so with him or
any other person; or
(d) applies his mouth to the vagina, anus, urethra of a
woman or makes her to do so with him or any other person,
under the circumstances falling under any of the following
seven descriptions:
First. Against her will.
Secondly. Without her consent.
Thirdly. With her consent, when her consent has been
obtained by putting her or any person in whom she is
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interested, in fear of death or of hurt.
Fourthly. With her consent, when the man knows that he is
not her husband and that her consent is given because she
believes that he is another man to whom she is or believes
herself to be lawfully married.
Fifthly. With her consent when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication or
the administration by him personally or through another of
any stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which
she gives consent.
Sixthly. With or without her consent, when she is under
eighteen years of age.
Seventhly. When she is unable to communicate consent.
Explanation 1. For the purposes of this Section, "vagina"
shall also include labia majora.
Explanation 2. Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any form
of verbal or non-verbal communication, communicates
willingness to participate in the specific sexual act:
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CRIA 13.2018
Provided that a woman who does not physically resist to the
act of penetration shall not by the reason only of that fact, be
regarded as consenting to the sexual activity.
Exception 1.A medical procedure or intervention shall not
constitute rape.
Exception 2. Sexual intercourse or sexual acts by a man with
his own wife, the wife not being under fifteen years of age, is
not rape
Section 376 : Punishment for rape (1) Whoever, except in the
cases provided for in sub-Section (2), commits rape, shall be
punished with rigorous imprisonment of either description
for a term which 1 [shall not be less than ten years, but which
may extend to imprisonment for life, and shall also be liable
to fine]......
42. The Appellant by removing the clothes of PW1,
inserting his finger in her private part, kissing her private
part and lips, clearly amounts to an offence of 'rape', under
Section 375(b) of IPC, punishable under Section 376(1) of the
IPC.
43. Sections 2(y) and 8(2) of the Goa Children's Act, 2003
are reproduced herein below:-
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Section 2(y):' Sexual offences' for the purposes of
awarding appropriate punitive action means and
includes,-- (i) ―Grave Sexual Assault‖ which covers
different types of intercourse; vaginal or oral or
anal, use of objects with children, forcing minors to
have sex with each other, deliberately causing
injury to the sexual organs of children, making
children pose for pornographic photos or films,
and also includes rape;
(ii) Sexual Assault which covers sexual touching
with the use of any body part or object, voyeurism,
exhibitionism, showing pornographic pictures or
films to minors, making children watch others
engaged in sexual activity, issuing of threats to
sexually abuse a minor, verbally abusing a minor
using vulgar and obscene language
Section 8(2)- Whosoever commits any [child abuse
or sexual assault] as defined under this Act, shall
be punished with imprisonment of either
description for a term that may extend to three
years and shall also be liable to fine of
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Rs.1,00,000/-. Whoever commits any Grave Sexual
Assault shall be punished with imprisonment of
either description for a term that shall not be less
than "[ten years] but which may extend to [life
imprisonment] and shall also be liable to a fine of
Rs. 2,00,000. Whoever commits incest shall be
punished with imprisonment of either description
for a term that shall not be less than ten years but
which may extend to life imprisonment and also a
fine which may extend to Rs.2,00,000/-
[Statement of the child victim shall be treated on
par with the statement of a child rape victim]
under Section 375 of the IPC, as laid down by the
Supreme Court of India."
44. The said act of the Appellant causing injury to the
sexual organ and sexual touching with use of finger also
amounts to 'grave sexual assault', under Section 2(y)(i)(ii) of
the Goa Children's Act, 2003.
45. Sections 354 of IPC is reproduced herein below:-
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"354. Assault or criminal force to woman with
intent to outrage her modesty.--
Whoever assaults or uses criminal force to any
woman, intending to outrage or knowing it to be
likely that he will thereby outrage her modesty,
shall be punished with imprisonment of either
description for a term which shall not be less than
one year but which may extend to five years, and
shall also be liable to fine."
46. The said act of the Appellant also amounts to outraging
the modesty of the minor victim girl, by use of criminal force,
under Section 354 of I.P.C, and therefore considering the
evidence that has come on record the trial Court has rightly
convicted the Appellant.
47. Another aspect which cannot be lost sight of is that the
stand taken by the Appellant is that he has been falsely
implicated however there is no explanation given as to why
the Appellant has been falsely implicated. Even in cross
examination nothing has been brought on record by the
Appellant to substantiate its claim that he has been falsely
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implicated. The opportunity to explain his stand was
available to him while recording statement under Section 313
of Cr.P.C. however, the same has not been availed of. No
doubt the Appellant has a right to maintain silence even
before the Court during the examination under 313 of Cr.P.C.
however, the Court would be entitled to draw an inference
including adverse inference as may be permissible.
Reference can be made to the judgment of the Hon'ble
Supreme Court in the case of Vahitha Vs State of Tamil
Nadu, (supra) wherein in paragraph 45 the Court has been
pleased to observe as under:-
45. In Ramnaresh [Ramnaresh v. State of
Chhattisgarh, (2012) 4 SCC 257 : (2012) 2 SCC
(Cri) 382] , this Court has, though recognised the
right of the accused to maintain silence during
investigation as also before the Court in the
examination under Section 313CrPC but, at the
same time, has also highlighted the consequences
of maintaining silence and not availing opportunity
to explain the circumstances appearing against
him, including that of the permissibility to draw
adverse inference in accordance with law. This
Court observed and held as under : (SCC pp. 274-
75, paras 49 & 52)
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"49. In terms of Section 313CrPC, the accused has
the freedom to maintain silence during the
investigation as well as before the court. The
accused may choose to maintain silence or
complete denial even when his statement under
Section 313CrPC is being recorded, of course, the
court would be entitled to draw an inference,
including adverse inference, as may be permissible
to it in accordance with law.
* * *
52. It is a settled principle of law that the obligation
to put material evidence to the accused under
Section 313CrPC is upon the court. One of the main
objects of recording of a statement under this
provision of CrPC is to give an opportunity to the
accused to explain the circumstances appearing
against him as well as to put forward his defence, if
the accused so desires. But once he does not avail
this opportunity, then consequences in law must
follow. Where the accused takes benefit of this
opportunity, then his statement made under
Section 313CrPC, insofar as it supports the case of
the prosecution, can be used against him for
rendering conviction. Even under the latter, he
faces the consequences in law."
(emphasis supplied)
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48. The Appellant has also not rebutted presumption
under section 29 of the Act. A presumption that the accused
has committed or abetted or attempted to commit the
offence, as the case may be unless the contrary is proved, is
provided by virtue of Section 29 of the POCSO Act, which the
accused has to rebut by leading evidence so as to establish
his innocence beyond all manner of doubt. In the present
case, the Appellant, other than offering a bald denial, has not
lead any evidence whatsoever so as to rebut the testimony of
the victim.
49. For the reasons stated above, this Court is of the
opinion that the trial Court has rightly convicted the
Appellant of the offences for which he was charged for as the
same is duly proved beyond reasonable doubt by cogent
evidence. The trial court has evaluated and appreciated the
entire evidence in an absolute apropos manner and arrived at
the only possible conclusion i.e. the guilt of the accused. The
impugned judgment does not suffer from any illegality,
infirmity or irregularity whatsoever warranting interference
by this Court
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50. This Court does not find the age of the Appellant, who
is 83 years, a mitigating circumstance to reduce the sentence
in such offences, as the Court also cannot also turn a
Nelson's eye to the age of the victim and the ordeal the victim
has undergone.
51. A useful reference can be made to the judgment of the
Apex Court in the case of Sumer Singh Versus Surajbhan
Singh and others reported in 2014 Supreme (SC) 327
wherein it has been observed that
"32. Having discussed about the discretion,
presently we shall advert to the duty of the court
in the exercise of power while imposing sentence
for an offence. It is the duty of the court to impose
adequate sentence, for one of the purposes of
imposition of requisite sentence is protection of
the society and a legitimate response to the
collective conscience. The paramount principle
that should be the guiding laser beam is that the
punishment should be proportionate. It is the
answer of law to the social conscience. In a way, it
is an obligation to the society which has reposed
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faith in the court of law to curtail the evil. While
imposing the sentence it is the Court's
accountability to remind itself about its role and
the reverence for rule of law. It must evince the
rationalized judicial discretion and not an
individual perception or a moral propensity. But,
if in the ultimate eventuate the proper sentence is
not awarded, the fundamental grammar of
sentencing is guillotined. Law cannot tolerate it;
society does not withstand it; and sanctity of
conscience abhors it. The old saying "the law can
hunt one's past" cannot be allowed to be buried in
an indecent manner and the rainbow of mercy, for
no fathomable reason, should be allowed to rule.
True it is, it has its own room, but, in all
circumstances, it cannot be allowed to occupy the
whole accommodation. The victim, in this case,
still cries for justice. We do not think that increase
in fine amount or grant of compensation under
the Code would be a justified answer in law.
Money cannot be the oasis. It cannot assume the
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centre stage for all redemption. Interference in
manifestly inadequate and unduly lenient
sentence is the justifiable warrant, for the Court
cannot close its eyes to the agony and anguish of
the victim and, eventually, to the cry of the
society."
52. In the case of State of Rajasthan v. Om Prakash reported in
2002 Supreme(SC) 614 in paragraph 19, the Apex Court has observed
thus
"19. Child rape cases are cases of perverse lust for
sex where even innocent children are not spared in
pursuit of sexual pleasure. There cannot be anything
more obscene than this. It is a crime against
humanity. Many such cases are not even brought to
light because of the social stigma attached thereto.
According to some surveys, there has been a steep rise
in child rape cases. Children need special care and
protection. In such cases, responsibility on the
shoulders of the courts is more onerous so as to
provide proper legal protection to these children.
Their physical and mental immobility call for such
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protection. Children are the natural resource of our
country. They are the country's future. Hope of
tomorrow rests on them. In our country, a girl child is
in a very vulnerable position and one of the modes of
her exploitation is rape besides other modes
of sexual abuse. These factors point towards a
different approach required to be adopted. The
overturning of a well-considered and well-analysed
judgment of the trial court on grounds like non-
examination of other witnesses, when the case against
the respondent otherwise stood established beyond
any reasonable doubt was not called for"
53. The Appeal stands dismissed and the conviction of the
Appellant is upheld.
54. The Appellant shall forthwith surrender to serve his
sentence. Bail bond stands cancelled.
55. Appeal stands disposed of accordingly.
SHREERAM V.SHIRSAT, J.
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JUDGMENT CONTINUED
56. At this stage, Ms. Fernandes, the Ld. Counsel
appearing for the Appellant, prays for stay of the judgment
and order for a period of six weeks, submitting that the
Appellant was on bail throughout the trial and during appeal
period.
57. Upon considering the submissions advanced by the
learned Counsel for the Appellant and having regard to the
nature of the offence and the findings recorded in the
impugned judgment, this Court is not inclined to grant any
stay of the order. The request for stay is, therefore, rejected.
SHREERAM V. SHIRSAT, J.
Signed by: VINITA VIKAS NAIK
Designation: Private Secretary 8th January
Date: 08/01/2026 17:54:49 2026
