5. Chandrakant Kanjibhai Kaku, Panch-witness of 25
the seizure of clothes of the accused.
9. Devanandbhai Bharamalbhai Gadhvi, P.S.O. who 39
registered the FIR.
conducted sonography test of the victim.
11. Digvijaysinh Mahendrasinh Jhala, Investigating 51
Officer
DOCUMENTARY EVIDENCE
NO. DETAILS EXH.
1. Statement under Section 164 of the Cr.P.C. 07
3. Yadi for carrying out the medical examination of 13
the victim
5. Report of carrying out the preliminary medical 15
and gynaec examination of the victim
6. Copy of the form regarding the samples collected 16
of the victim
collection of necessary samples of the accused
10. M.L.C. certificate regarding medical examination 20
of the accused
11. Collection form of the samples of the accused 21
13. Arrest Panchnama and Seizure Panchnama of 26,
the clothes worn by the accused at the time of 27,
14. Yadi sent to the Chief Officer, Khambhaliya 30
Nagarpalika for obtaining certified copy of the
birth certificate of the victim
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Khambhaliya Nagarpalika
18. Seizure Panchnama of the clothes worn by the 37
victim at the time of offence
20. Certified copy of the Station Diary Entry 40
No.23/22
21. Yadi sent to Police Inspector Shri D.M.Zala to 41
take charge of the investigation papers.
22. Report sent to the superior officer regarding the 42
serious offence
24. Examination Report of the Sonography of the 46
victim
25. Yadi prepared by the Khambhaliya Police Station 47
addressing the department
26. O.P.D. Case of the victim, M.L.C. paper and the 48
Yadi by the Gynecologist referring for registering to
Radiologist Department
27. Report submitted to Hon'ble Special (POCSO) 52
Court, Khambhaliya, for addition of section
28. Yadi sent to the District Officer, Women and 53
Child Development Department, Devbhoomi
Dwarka, for allotting Government panchas.
29. Yadi sent to the District Development Officer, 54
District Panchayat Office, Devbhoomi Dwarka,
for allotting Government panchas.
30. Order passed directing the District Health 55
Officer, District Panchayat, Devbhoomi Dwarka,
to allot two panchas
31. Yadi sent to the Additional Chief Judicial 56
Magistrate, Dwarka, for recording the statement
of the victim under Section 164 of the Cr.P.C.
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acknowledgment receipt to the F.S.L., Rajkot
received by the F.S.L. Rajkot
34. Yadi of the examination of the muddamal along 59,
with the Forwarding Letter by the F.S.L. Rajkot 60
and the Examination Report of the Biological and
Serological Department
8. After completion of the evidence, the further statement of
the appellant-convict was recorded under Section 313 of the
Code of Criminal Procedure and the appellant-convict had
explained the incriminating circumstances that he is innocent
and falsely implicated in the alleged offence.
9. On completion of the trial, the trial court found the
appellant-accused guilty of the charge for the offences
punishable under Sections 363, 366, 376 of the Indian Penal
Code as well as under Sections 3(a), 4 and 18 of the Protection of
Children from Sexual Offences Act, 2012, and consequently, the
appellant-convict was sentenced to suffer rigorous imprisonment
for ten years, vide judgment and order dated 11.09.2024 passed
by the learned Special (POCSO) Judge and 2nd Additional
Sessions Judge, Devbhoomi Dwarka at Khambhaliya, in Special
(POCSO) Case No.01 of 2023.
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10. While holding the appellant-convict guilty of the alleged
offence, the trial court observed that the prosecution had proved
the case against the appellant-convict beyond reasonable doubt
through cogent and convincing evidence of the victim (PW-1) as
well as the father of the victim (PW-2), which were in
corroboration with the medical evidence and forensic evidence as
well as the documentary and ocular evidence of other witnesses.
11. Being aggrieved and dissatisfied with the judgment and
order of conviction and sentence passed by the trial court, the
appellant-convict has preferred the present appeal before this
Court.
SUBMISSIONS ON BEHALF OF THE APPELLANT-ACCUSED:
12. Learned advocate Ms.N.N.Shaikh for Mr.N.V.Pathan,
learned advocate appearing for the appellant-convict has
vehemently and fervently contended that the entire case of the
prosecution is false and fabricated. It is submitted that the
entire case of the prosecution is based upon the evidence of the
victim, which is not at all reliable and trustworthy, and the same
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cannot be said to be of sterling quality as the same suffers from
material contradictions and is doubtful.
13. Learned advocate Ms.Shaikh, while referring to the
evidence of the Medical Officers (PW-3) Dr.Samat Ambaliya and
(PW-4) Dr.Sanjay Rathod along with the medical reports and the
MLC Certificates at Exhibits-14, 15 and 23, has submitted that
the victim girl had narrated two conflicting versions of the
incident before the Medical Officers during her medical
examination. Furthermore, the conjoint reading of her evidence
at Exh.6, her statement recorded by the Magistrate under
Section 164 of the Cr.P.C. at Exh.7 and the history narrated by
her regarding the incident before both the Medical Officers raises
serious doubt about the credibility of the version of the
prosecution. Therefore, it is submitted that the same could not
have been relied upon by the trial court while convicting the
appellant-accused. It is also submitted that the evidence of the
victim cannot be said to be in corroboration with the medical
evidence as there was no evidence of any slightest injury on the
person of the victim. Ms.Shaikh has vociferously submitted that
even from the FSL and serological report, no incriminating
evidence had come forth against the appellant-convict.
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14. Considering the aforesaid, learned advocate Ms.Shaikh has
urged that the judgment of the trial court is required to be
interfered with and has also implored the court to allow the
present appeal, set-aside the impugned judgment and direct the
acquittal of the appellant-convict from the charges levelled
against him.
SUBMISSIONS ON BEHALF OF THE RESPONDENT-STATE :
15. Vehemently opposing the present appeal and the
submissions advanced by learned advocate Ms.N.N.Shaikh for
the appellant-convict, learned APP Ms.Asmita Patel appearing for
the respondent-State has submitted that the judgment and
order of conviction and sentence passed by the trial court do not
call for any interference by this Court since the trial court, after
appreciating the entire evidence on record; both, ocular and
documentary, has convicted the present appellant for the
charges levelled against him. Ms.Patel has submitted that the
prosecution has proved all the essential elements of the alleged
offence through cogent and convincing evidence.
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16. Learned APP Ms.Patel has submitted that ordinarily the
evidence of the victim should not be doubted and should be
believed, and if the evidence is reliable, no corroboration is
necessary. Learned APP Ms.Patel, while taking this Court to the
entire evidence on record, has submitted that in the case on
hand, the prosecution has proved beyond reasonable doubt with
substantive and reliable evidence that at the time of the incident,
the victim girl was aged about 16 years and 03 months.
Furthermore, it has also been established through credible
evidence of the victim that the accused had lured her under a
fake promise of marriage, took her to his farmhouse and then
developed physical relationship with her. It is submitted that in
the instant case, the evidence of the victim is reliable and
trustworthy, therefore, the same have rightly been relied upon by
the trial court while convicting the appellant-accused. It is
submitted that the medical evidence, forensic evidence as well as
the ocular evidence and the evidence of all other witnesses are in
corroboration with the evidence of the victim. Thus, learned APP
Ms.Patel has urged that the conviction and sentence recorded by
the trial court do not call for any interference by this Court and,
therefore, the appeal may be dismissed.
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FINDINGS AND ANALYSIS :
17. Before adverting to the facts and circumstances of the
case, it would be apt to reiterate the fundamental principle of
criminal jurisprudence as affirmed by the highest court that, in
criminal trial, it is for the prosecution to bring home the guilt of
the accused since the burden of proving the guilt beyond
reasonable doubt always rests upon the prosecution. It is also
settled that the prosecution has to stand on its own legs and
cannot take advantage or undue advantage of the defence put
forth by the accused. The Supreme Court, in the case of
Rabindra Kumar Dey vs. State of Orissa, AIR 1977 SC 170,
reiterated three cardinal principles, namely, (i) that the onus lies
affirmatively on the prosecution to prove its case beyond
reasonable doubt, and it cannot derive any benefit from
weakness or falsity of the defence version while proving its case;
(ii) that in a criminal trial the accused must be presumed to be
innocent unless he is proved to be guilty; and (iii) that the onus
of the prosecution never shifts. Thus, it is well-settled that in
criminal trial, the guilt of the accused must be proved beyond
reasonable doubt in order to convict him.
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18. The Supreme Court, in the case of State of Uttar Pradesh
vs. Krishna Gopal, reported in (1988) 4 SCC 302, has held that
the person has, no doubt, profound rights not to be convicted of
an offence, which is not established by the evidential standard of
proof beyond reasonable doubt.
19. Bearing in mind the aforesaid legal position, this Court has
considered the submissions advanced by the respective parties
and carefully perused the materials produced on record along
with the impugned judgment of the trial court.
20. It is the case of the prosecution that on 28.12.2022
between 12:30 hours and 18:00 hours, the appellant-convict had
lured and enticed away the minor daughter of the complainant
aged about 16 years and 03 months under the fake promise of
marrying her though he was knowing that she was a minor,
thereby abducting and kidnapping her from the lawful
guardianship of the complainant with an ulterior motive to have
illicit relationship with her, and ultimately, kept her for three
days between 28.12.2022 and 31.12.2022 at his farmhouse and
committed rape on her.
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21. Considering the aforementioned case of the prosecution, it
becomes imperative for the prosecution to prove two essential
elements :
(i) that the victim was a minor aged about 16 years and 3
months on the day of the alleged incident, and
(ii) that the appellant-accused, despite knowing that the victim
was a minor, lured her under a pretext of marriage with the
intent to establish an undesirable sexual relationship, took her
to his farm, where he kept her for three days, and had
committed sexual intercourse with the victim.
22. With respect to point no.(i), the testimony of the
complainant (PW-2), who is the father of the victim, holds a
significant value. In his evidence at Exh.10, he had stated that
he has four children, out of which three are daughters and one
is son, and the victim is the youngest of his daughters. He had
also stated that the birth of his children were duly registered
with the municipal authority and regarding the age of the victim,
he had testified that she was born on 19.09.2006 at Thakkar
Hospital, Jam-Khambhaliya. To substantiate the evidence of the
complainant, the prosecution has examined one Jivanlal
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Bhikhabhai Dagra (PW-6), Head Clerk of Khambhaliya
Municipality. During his examination, this witness had produced
the birth certificate of the victim at Exh.31 and the abstract of
birth and death register at Exhibit 32. The ocular evidence of
this witness, corroborated by the aforesaid documentary
evidence, leaves no doubt about the fact that the victim was born
on 19.09.2006 at Thakkar Hospital, Khambhaliya. This evidence
strongly supports the complainant's version regarding the age of
the victim. Now, regarding the incident, the complainant (PW-2),
in his evidence at Exh.10, has stated that on 28.12.2002, while
he was at his fabrication shop, he received a phone call from his
wife at around 6:30 pm, informing him that their daughter (i.e.
the victim), who had left for school at approximately 12:30 pm
has not returned home. Therefore, he had contacted the school
and was informed by the teachers that the victim had not
attended the school at all on that day. Despite making enquiries
around the neighbourhood and checking with the relatives, they
were unable to locate her whereabouts, which prompted them to
file a police complaint. He further stated that the victim had left
home wearing a blue-colour kurti, cream-colour legging and a
black-colour sweater and was also carrying a school bag. His
complaint is produced at Exh.11. During the cross-examination,
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the complainant had elicited that the victim had been using
Instagram around the time of the incident.
23. So far as the point no.2 is concerned, the only worthwhile
evidence produced before the court by the prosecution is the
deposition of the victim herself.
24. It is settled that in the case of rape, the testimony of the
victim is very crucial piece of evidence to prove the case against
the accused, and if the evidence of the victim is found to be of
sterling quality, then there is no requirement under law to insist
for further corroboration. However, the court is not required to
accept the testimony of the victim if the same is improbable and
doubtful. It cannot be taken as a gospel truth in all
circumstances and with no exception. It is submitted that if the
evidence of the victim woman on its face value appears to be
doubtful, the court has to look for the corroboration, and if two
views are possible on the evidence adduced by the prosecution,
the view which is favourable to the accused should be adopted.
(See Rajoo and others vs. State of Madhya Pradesh, reported in
AIR 2009 SC 858 and Kali Ram vs. State of Himachal Pradesh,
reported in AIR 1973 SC 2773 as well as of this Court in the case
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of State of Gujarat vs. Farukhbhai Ahmedbhai Shaikh, reported in
(1997) 2 GLR 1400)
25. Similar ratio has been laid down by the Supreme Court in
the case of State of Punjab vs. Gurmit Singh, reported in
(1996) 2 SCC 384, wherein the Supreme Court observed thus :
"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."
26. This was reiterated by the Supreme Court in the case of
Sadashiv Ramrao Hadbe vs. State of Maharashtra and
another, reported in (2006) 10 SCC 92, as under :
"It is true that in a rape case the accused could be
convicted on the sole testimony of the prosecutrix, if it is
capable of inspiring confidence in the mind of the court. If
the version given by the prosecutrix is unsupported by
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any medical evidence or the whole surrounding
circumstances are highly improbable and belie the case
set up by the prosecutrix, the court shall not act on the
solitary evidence of the prosecutrix."
27. In the case of Tameezuddin alias Tammu Versus State
(Government of NCT of Delhi), reported in (2009)15 SCC 566,
the Supreme Court has held as under :
"It is true that in a case of rape the evidence of the
prosecutrix must be given predominant consideration, but to
hold that this evidence has to be accepted even if the story
is improbable and belies logic, would be doing violence to
the very principles which govern the appreciation of evidence
in a criminal matter."
28. Recently in the case of State (NCT of Delhi) vs. Vipin
alias Lalla (Criminal Appeal 94 of 25), the Supreme Court has
observed thus :
"10. Although it is absolutely true that in the case of rape,
conviction can be made on the sole testimony of the
prosecutrix as her evidence is in the nature of an injured
witness which is given a very high value by the Courts. But
nevertheless when a person can be convicted on the
testimony of a single witness the Courts are bound to be
very careful in examining such a witness and thus the
testimony of such a witness must inspire confidence of the
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Court. The testimony of the prosecutrix in the present case
thus has failed to inspire absolute confidence of the Trial
Court, the High Court and this Court as well."
29. Bearing in mind the aforesaid settled legal position, if the
evidence of the victim is read in conjunction with the medical
evidence as well as the FSL evidence produced by the
prosecution, the entire events narrated by the prosecution
appears to be doubtful. It also becomes clear that the incident
did not occur in the manner alleged by the prosecution,
therefore, the evidence put forward by the prosecution cannot be
considered wholly trustworthy. It is the case of the prosecution
that the victim, a minor girl, left home for school at around
12.30 pm on 28.12.2022 carrying only a school bag. The
accused allegedly picked up her from the school on his bike,
took her to his farm at village Sonardi, where they stayed
together for three days (i.e. from 28.12.2022 till 31.12.2022). It
is alleged that during the said period, the accused had once
developed physical relationship with the victim girl.
30. Before evaluating the evidence of the victim, it is essential
to outline the sequence of events with the relevant dates.
According to the prosecution, on 28.12.2022, the victim left
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home for school carrying only a school bag. When she did not
return home and could not find despite efforts made for her
search, a complaint was filed by the father of the victim at the
Khambhaliya Police Station on 29.12.2022. During the course
of the investigation, in the early morning hours on 31.12.2022,
the victim was found with the accused from his farm situated at
village Sonardi. Both the victim and the accused were brought to
the police station, where the victim's statement was recorded.
Thereafter, both of them were taken to the scene of incident,
where a panchnama of the scene of offence was drawn, and a
blanket was seized therefrom. On the same day, that is on
31.12.2022, the medical examination of both the victim and the
accused was conducted, necessary biological samples were
collected and the clothes worn by both the victim and the
accused at the time of the incident were also seized. Thus, the
investigation was substantially concluded on 31.12.2022.
Subsequently, on 06.01.2023, the victim's statement under
Section 164 of the Cr.P.C. was recorded before the Magistrate. It
is also noteworthy that after receiving the FSL reports etc.,
charge-sheet against the accused was submitted on 21.01.2023,
which came to be registered on 23.01.2023 and the victim's
testimony was recorded on 20.10.2023.
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31. As per the evidence on record, the victim was initially
examined by the Medical Officer (PW-3) Dr.Samat Ambaliya.
While giving history about the incident before the doctor, the
victim stated that on 28.12.2022 (i.e. on Wednesday), the
accused had enticed her under a pretext of marriage and took
her to his farm on the bike against her will and had developed
physical relationship with her against her consent. During her
medical examination, no sign of injury or abrasion was noticed
on her person. The MLC certificate and the examination report in
this regard is produced at Exh.15. In the said certificate, the
Medical Officer (PW-3) Dr.Samat Ambaliya has clearly opined
that, "from this examination, it cannot be said with confirmation
that any forceful sexual intercourse has happened". The victim
was later examined by an expert Gynecologist (PW-4) Dr.Sanjay
Rathod. As per the deposition of the Gynecologist Dr.Sanjay
Rathod, the victim stated the history before the doctor that on
28.12.2022, she had been with the accused at his farmhouse at
village Sonardi, Taluka Khambhaliya for about five and a half
hours between 12:30 pm to 6:00 pm and the accused had once
developed physical relationship with the victim against her
consent. During her physical examination, no sign of injury,
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abrasion or redness was noticed on the person or on the private
parts of the victim and the victim did not complain of any pain.
The MLC case papers and the examination report in this regard
have been produced at Exh.23. However, from the certificate as
well as the examination report, it appears that regarding the
incident, the victim has given history before the doctor that on
28.12.2022, she had been with the accused at his farmhouse at
village Sonardi for about five and a half hours between 12:30 pm
to 6:00 pm, and during this period, both of them had developed
physical relationship once. This seems to be quite contradictory
to the oral testimony of the doctor, since in the examination
report, nowhere it has been mentioned that the accused had
developed physical relationship against her consent. Further, in
the examination report, this witness has specifically opined that,
"from this examination, it cannot be said with confirmation that
any forceful sexual intercourse has happened".
32. It is crucial to note at this juncture that despite the
medical certificates clearly suggesting about the opinion as
mentioned above, the trial court has recorded it in a vernacular
language in the testimony of the Medical Officer (PW-4)
Dr.Sanjay Rathod as follows :
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"મારા અભિપ્રાય મુજબ તેણીની સાથે ફોર્સફુલ શરીર સંબંધ બંધાયાની શક્યતા
નકારી શકાય નહિ"
The literal translation of the above sentence in English reads
thus :
"In my opinion, the possibility of forceful sexual intercourse
with her cannot be ruled out."
33. This appears factually incorrect and a misrepresentation of
the facts. It is always expected of the trial court to exercise
caution and to take due diligence while recording the evidence.
34. In this context, the statement of the victim recorded by the
Magistrate under Section 164 of the Cr.P.C. is also required to
be considered. The victim, in her statement at Exh.7, has stated
that she was knowing the accused through social media. The
accused enticed her under a pretext of marriage and took her to
his farm at village Sonardi, which is at a short distance from his
house, and upon verifying her documents, the accused told her
that she was underage for marriage, and thereafter, he had even
developed physical relationship with her once under the pretext
of marriage. Subsequently, her parents arrived and took her
back home. Thereafter, nothing else had happened beyond this.
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35. Now, in the same context, if we consider the testimony of
the victim at Exh.6, she stated that she knew the accused
through social media and received a friend request from the
accused on Instagram, which she readily accepted, and they
started talking with each other on the mobile phone as friends.
On 26.12.2022, when she made a phone call to the accused, he
told her that he would come to Khambhaliya within two days
and asked her to keep the documents ready so that they can
elope and get married. On 28.12.2022, the victim left home for
school and the accused came to her school and took her to his
farm at village Sonardi on bike, where the accused expressed his
desire to marry her and had even developed physical relationship
with the victim behind the bushes, where a blanket was laid on
the ground. However, on verifying her documents, when the
accused realized that the victim was underage, he told her that
they could not marry right now but would do so once she attains
the majority. The victim, thereafter, stayed with the accused at
his farm for three days. On 31.12.2022, the police arrived at the
farm, took both of them to Khambhaliya Police Station, seized
the blanket from the scene of the offence and conducted the
medical examination of the victim and later on recorded her
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statement before the Magistrate. The victim identified her clothes
and the blanket seized by the police.
36. Upon careful evaluation of the aforementioned evidence, it
becomes clear that the victim and the accused had established
friendship through social media. They used to communicate with
each other through mobile phone and had mutually decided to
get married. It is also evident that the victim herself had called
the accused on phone two days prior to the incident, i.e. on
26.12.2022. In accordance with their prior mutual arrangement,
on 28.12.2022 (i.e. on the day of the incident), the victim left
home under a pretense of going to school, carrying documents
related to her age in her school bag. She then voluntarily
accompanied the accused on his motorcycle to his farm. This
sequence of events clearly indicates that the relationship
between the two was consensual. Moreover, from the evidence of
both the Medical Officers (PW-3) Dr.Samat Ambaliya and (PW-4)
Dr.Sanjay Rathod, it is evident that the history given by the
victim to both these Medical Officers in relation to the incident is
inconsistent and contradictory. Even, during her medical
examination, no external or internal injury, abrasion, redness or
struggle mark was noticed on the person of the victim.
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Consequently, both the Medical Officers independently reached
at the same conclusion that from the medical examination of the
victim, it cannot be said with confirmation that any forceful
sexual intercourse has happened. Upon evaluating the conduct
of the victim and the credibility of the evidence produced by the
prosecution, it is noteworthy that the victim has stated before
Dr.Samat that on the day of the incident (i.e. on 28.12.2022), the
accused took the victim to his farmhouse against her will and
had developed physical sexual relationship with her without her
consent. However, at no point of time, she had stated that she
remained at the farmhouse of the accused for a period of 3 days
(i.e. from 28.12.2022 to 31.12.2022). This is significant because
the prosecution's case is premised on the fact that the victim
stayed at the farm of the accused continuously from 28.12.2022
to 31.12.2022. It is also noteworthy that before the expert
Gynecologist (PW-4) Dr.Sanjay Rathod, the victim had stated
completely a different story. She had stated that she had, in fact,
gone with the accused to his farm at village Sonardi on
28.12.2022 and remained there only for about five and a half
hours (i.e. between 12:30 pm to 6:00 pm), and during this
period, they had once developed physical relationship. It is clear
that the facts she had stated to both these witnesses are
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completely contradictory and are inconsistent, which raises
questions about the veracity of her statement.
37. The prosecution has produced the panchnama of the place
of incident at Exh.34. It reveals from the said panchnama that
the alleged offence took place at the farm of the accused.
However, considering the panchnama, it appears that there is no
any permanent structure or house in the farm as referred to by
the victim in her evidence. According to the prosecution, the
victim and the accused spent three consecutive days and nights
from 28.12.2022 to 31.12.2022 during the chilled winter at the
farm amongst the bushes. However, except one blanket, the
Investigating Officer has not found any evidence therefrom which
suggests that both the victim and the accused had spent three
consecutive days and nights there. It is also significant to note
that one Asapura Petrol-pump is located on the road just
opposite to the farm of the accused. Nevertheless, the police
made no attempts to collect any CCTV footage from the
surrounding area to the said petrol-pump.
38. As noted earlier, it is the case of the prosecution that on
the third day of the incident (i.e. on 31.12.2022 in the morning),
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the police had found both the victim and the accused from the
farm of the accused. On the same day, the panchnama of the
place of the incident was drawn, and one blanket was seized
therefrom. Thereafter, the medical examination of both the
victim and the accused was carried out, necessary biological
samples were collected and the clothes allegedly worn by both
the accused and the victim at the time of the alleged incident
were also seized. It is significant to note that upon analysis of
the FSL report, no incriminating evidence was found from the
seized articles and the samples. Shockingly, it also appears from
the evidence that the clothes seized by the police do not match
with the one allegedly worn by the victim at the time of the
incident. As per the testimony of the complainant at Exh.6 and
the original complainant at Exh.7, the victim was wearing a
blue-colour kurti, cream-colour legging and a black-colour
sweater at the time of the incident. However, as per the
panchnama at Exh.37, a mehdi-colour kurti, cream-colour
legging and a blue-colour nicker were seized from the victim.
Moreover, the FSL report mentions a green-colour kurti, cream-
colour legging and a blue-colour nicker, which do not match
with as described by the complainant. It is also noteworthy that
according to the prosecution's case, the victim was found on the
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third day of the incident wearing the same colour clothes she
had worn when she had left the home. However, in her
statement recorded under Section 164 of the Cr.P.C., the victim
stated that on the very same day of the incident, her parents had
brought her home from the farm of the accused. Moreover, the
victim has stated before the Medical Officer (PW-4) Dr.Sanjay
Rathod that she stayed at the farm of the accused for about five
and a half hours only and the medical examination report at
Exh.15 also mentions that the victim had changed her clothes
on 30.12.2022 at 10:00 pm. On conjoint reading of all the
aforesaid evidence raises a significant doubt about the credibility
of the prosecution's version of the events and the evidence
produced by them. The evidence of the victim if read as a whole
along with the medical evidence as well as the forensic evidence
and also considering her conduct, the same does not inspire
confidence.
39. The Supreme Court, in the cases of Jogi and others vs.
State of M.P., reported in (2021) 4 CriCC 524; Padam Singh vs.
State of Uttar Pradesh, reported in (2000) 1 SCC 621; Amar
Sardar vs. State of West Bengal, reported in 2024 INSC 1040;
State of Punjab vs. Gurmit Singh, reported in (1996) 2 SCC
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384; Sadashiv Ramrao Hadbe vs. State of Maharashtra and
another, reported in (2006) 10 SCC 92; and Tameezuddin alias
Tammu Versus State (Government of NCT of Delhi), reported
in (2009)15 SCC 566, has made it clear that in the case of rape,
the conviction can be made on the sole testimony of the
prosecutrix as her evidence is in the nature of an injured
witness, which is given a very high value by the court, but,
nevertheless, when a person can be convicted on the testimony
of a single witness, the courts are bound to be very careful in
examining such a witness and, thus, the evidence of the
prosecutrix must be of sterling quality.
40. The Supreme Court, in the case of Rai Sandeep @ Deepu
vs. State (NCT of Delhi), reported in (2012) 8 SCC 21, has held
that sterling witness should be of a very high quality and caliber
whose version should, therefore, be unassailable. The court
considering the version of such witness should be in a position
to accept it for its face value without any hesitation. To test the
quality of such a witness, the status of the witness would be
immaterial and what would be relevant is the truthfulness of the
statement made by such a witness. The relevant paragraph is
reproduced herein below :
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"15. In our considered opinion, the 'sterling witness' should
be of a very high quality and caliber whose version should,
therefore, be unassailable. The Court considering the version
of such witness should be in a position to accept it for its
face value without any hesitation. To test the quality of such
a witness, the status of the witness would be immaterial
and what would be relevant is the truthfulness of the
statement made by such a witness. What would be more
relevant would be the consistency of the statement right
from the starting point till the end, namely, at the time when
the witness makes the initial statement and ultimately
before the Court. It should be natural and consistent with
the case of the prosecution qua the accused. There should
not be any prevarication in the version of such a witness.
The witness should be in a position to withstand the cross-
examination of any length and strenuous it may be and
under no circumstance should give room for any doubt as to
the factum of the occurrence, the persons involved, as well
as, the sequence of it. Such a version should have co-relation
with each and everyone of other supporting material such as
the recoveries made, the weapons used, the manner of
offence committed, the scientific evidence and the expert
opinion. The said version should consistently match with the
version of every other witness. It can even be stated that it
should be akin to the test applied in the case of
circumstantial evidence where there should not be any
missing link in the chain of circumstances to hold the
accused guilty of the offence alleged against him. Only if the
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version of such a witness qualifies the above test as well as
all other similar such tests to be applied, it can be held that
such a witness can be called as a 'sterling witness' whose
version can be accepted by the Court without any
corroboration and based on which the guilty can be
punished. To be more precise, the version of the said
witness on the core spectrum of the crime should remain
intact while all other attendant materials, namely, oral,
documentary and material objects should match the said
version in material particulars in order to enable the Court
trying the offence to rely on the core version to sieve the
other supporting materials for holding the offender guilty of
the charge alleged."
41. In the instant case, the evidence of the victim, if read as a
whole along with the medical and the forensic evidence, as well
as considering the conduct of the victim, the same does not
inspire confidence. Further, the sequence of events put forward
by the prosecution and the evidence produced in that regard also
raises significant doubt about the story narrated by the
prosecution.
42. On the facts and in the circumstances of the case as well
as for the reasons stated herein above, the appeal succeeds and
the same is hereby allowed.
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43. The impugned judgment and order of conviction and
sentence dated 11.09.2024 passed by the learned Special
(POCSO) Judge and 2nd Additional Sessions Judge, Devbhoomi
Dwarka at Khambhaliya, in Special (POCSO) Case No.01 of
2023, is hereby quashed and set-aside. The appellant-convict
shall be set at liberty forthwith, if not required in any other case.
44. Bail bonds shall stand cancelled. The amount of fine, if
any, paid by the appellant-convict shall be refunded to him.
(VIMAL K. VYAS, J.)
/MOINUDDIN
