10. Learned counsel for the appellants/accused Nos.1and 5 also
contended that the medical and forensic evidence did not
conclusively establish the offence of rape and also found no injuries
in the victim's bodies. Further, the Trial Court also failed to
appreciate that the clothes of the victims were not sent to forensic
examination and the FSL report (Ex.P-18) also showed no detection
of semen or spermatozoa which punch holes the prosecution case
inasmuch as casting a shadow of doubt in respect of commission of
rape. Additionally, the timeline of the event is questioned as the
victims attended the school during the day and the father was
present during the night making the commission of the offence
impossible. The learned counsel further contended that suspicion,
howsoever strong may be, cannot take the place of legal proof.
SUBMISSIONS OF THE APPELLANT IN CRIMINAL APPEAL
No.328 OF 2021
11. It was the contention of the learned Senior Counsel for the
appellants/accused No.6 that there is inconsistency in the
evidentiary value submitted by the prosecution. It is submitted that
the name of accused No.6 was not mentioned in the initial FIR or in
the statement of the victims recorded on 03.11.2016, and later the
accused No.6 was implicated without any proper evidence. Further,
it is submitted that the Trial Court has considered the presence of
accused No.6's cell phone number as an incriminating evidence,
however, the Trial Court failed to consider that there is a
professional relationship between the parties where victims' father is
an employee of accused No.6's industry. This circumstantial
evidence alone cannot sustain the conviction of accused No.6.
12. The learned counsel for the appellants/accused No.6 further
submitted that the prosecution had failed to conduct the
identification parade and also the victims (PW.2 and PW.3) made no
direct statement or allegation against the accused No.6 during their
examination. Further, it is submitted that the Trial Court overlooked
the confessional statement of the accused No.6 where there is no
admission or confession relating to any POCSO offence against the
victims, making the conviction of the accused No.6 questionable.
13. Learned counsel for the appellant/accused No.6 lastly
contended that the Trial Court failed to appreciate that there is
serious lapse in the investigation procedure. The investigating
officer after facing criticism from the Magistrate during the bail
proceedings, allegedly backdated the statements of the victims to
07.11.2016 with apparent motive of implicating the accused No.6.
SUBMISSIONS OF THE APPELLANTS IN CRIMINAL APPEAL
NO.391 OF 2021
14. Learned counsel for the appellants/accused Nos.8 and 10 also
argued on the similar grounds that victim girls did not mention their
names in statements before police authorities or the Magistrate and
their testimonies appeared to be improved from earlier statements.
It is further submitted that the prosecution neither conducted
identification parade nor victims identified the appellant/ accused
Nos.8 and10. This inadequate evidence weakens the prosecution's
case and thus, for all the aforesaid reasons, the learned counsel
prayed for setting aside the judgment of conviction and also prayed
for acquittal of the appellants.
SUBMISSIONS OF THE RESPONDENT - STATE
15. On the other hand, the learned Additional Public Prosecutor
submitted that there is compelling evidence of how the
appellants/accused took the advantage of the vulnerable position of
these young children who were merely 8 years old at that time and
causing them severe physical and psychological trauma. It is further
submitted that accused No.1 emerged as the primary perpetrator
who not only committed aggravated penetrative sexual assault on
the victims but also involved his juvenile son in these heinous acts.
16. The learned Additional Public Prosecutor further contended
that accused No.5 who is the mother of the victims actively abetted
the appellants/accusedNos.6, 8 and 10 who actively participated in
various acts of sexual assault and harassment against the minor
victims. Thus, the Trial Court has rightly warranted the maximum
punishment under both the POCSO Act as also the IPC to ensure
justice for the victims .On all the above grounds, the learned
Additional Public Prosecutor pressed for dismissal of the appeal.
ANALYSIS AND DISCUSSION
17. At the outset, it is important to first refer to the testimonies
provided by the key prosecution witnesses, as their depositions form
a critical part of the case and provide essential context for the
matter at hand.
18. According to the statement of PW.1-A.Devendra, who is the
District Protection Officer of Ranga Reddy District, testified that on
03.11.2016, he received oral orders from Chairman of Child Welfare
Committee that two minor victims who were sexually assaulted.
Upon receiving this information, he immediately filed a complaint
which led to the registration of the case. During the course of cross-
examination, the defense counsel questioned the delay in filing the
complaint and the absence of written orders from the CWC
Chairman. However, PW.1 submitted that he acted promptly upon
receiving the oral communication, given the sensitive nature of the
case involving minor victims and explained thatthe standard
protocol in emergency situations allows for immediate action based
on oral directives from the CWC Chairman.
19. PW.2 one of the victim girls aged 8 years, testified the
repeated sexual assault committed by accused No.1 and others. She
provided detailed statement of how accused No.1 sexually abused
her and also forcedhis minor son to commit similar acts. She also
identified all the accused persons in the Court and described how
accused No.5 facilitated these crimes by taking victims to different
locations. Even in her cross-examination, she maintained consistent
statement and identification.
20. Similarly, PW.3 the second victim girl also aged 8 years,
corroborated the testimony of PW.2 that how accused Nos.1,6,8 and
10 sexually assaulted her repeatedly and she also identified all the
accused in the Court.
21. According to PW.4 - C. Nirmala (teacher of the victims) stated
that after Diwali festival in the year, 2016 the victim girls refused to
go home after school, telling her that they faced threats at home
and that their mother was forcing them into sex with others. After
the children came back distressed the very next day, PW.4 informed
the principal and contacted Prajwala Foundation, who took the
children away.
22. According to PW.6 - Mohd. Saleem testified that he resides
near the residence of accused No.5 who is the mother of PW.2 and
3. He observed that male persons used tovisit accused No.5's house
and leave at midnight. After a police complaint was filed PW.6,he
came to know that accused No.5 was allegedly involved in
prostitution with PW.2 and PW.3 which was reported to police.
23. Likewise, PW.7 - K. Lakshmi testified that she lives opposite to
accused No.5's house and observed male visitors in the evenings.
She, initially thinking they were relatives, but later found that PW.2
and PW.3 were being exploited, with accused No.5 allowing them to
be used for sex. She further identified accused Nos.1, 8 and 10 as
regular visitors who would arrive and depart by motorcycles.
24. According to PW.13 - P.Renuka, who is an Associate Professor
at Gandhi Medical College, testified that she examined the 9 years
old victim on 03.11.2016. In her report she stated that there are no
external injuries except a cheek scar but found genital congestion, a
broken hymen and white discharge. After collecting vaginal samples
and receiving the FSL report, she concluded that recent sexual
intercourse could not be ruled out. During her cross-examination,
she clarified that victims showed no signs of beating or mental
disturbance, no bleeding during examination and also explained that
despite repeated sexual activity the victims undeveloped genitalia
would not necessarily admit two fingers due to her young age.
25. Lastly, PW.14-KousarAsra, testified that on 03.11.2016 she
examined the victim PW.3at the request of SHO Mailardevpally. Her
examination revealed no external injuries, but the hymen was not
intact. After collecting and sending smears and swabs to FSL for
analysis, she concluded in her report (Ex.P11) that while there was
no evidence of recent sexual intercourse, past intercourse could not
be ruled out.
JUDICIAL PRECEDENTS ON THE SUBJECT MATTER
26. It would be relevant at this juncture to refer to a couple of
decisions on the subject matter. In the case of State of Uttar
Pradesh vs. Chhotey Lal 1, the Hon'ble Supreme Court in
paragraph Nos.22 to 29 held as under, viz.,
"22. In the backdrop of the above legal position, with which we
are in respectful agreement, the evidence of the prosecutrix
needs to be analysed and examined carefully. But, before we do
that, we state, as has been repeatedly stated by this Court, that a
woman who is a victim of sexual assault is not an accomplice to
the crime. Her evidence cannot be tested with suspicion as that of
an accomplice. As a matter of fact, the evidence of the
prosecutrix is similar to the evidence of an injured complainant or
witness. The testimony of the prosecutrix, if found to be reliable,
by itself, may be sufficient to convict the culprit and no
corroboration of her evidence is necessary. In prosecutions of
rape, the law does not require corroboration. The evidence of the
prosecutrix may sustain a conviction. It is only by way of
abundant caution that the court may look for some corroboration
so as to satisfy its conscience and rule out any false accusations.
23. In State of Maharashtra v. Chandraprakash Kewalchand
Jain [(1990) 1 SCC 550 : 1990 SCC (Cri) 210] this Court at SCC
p. 559 of the Report said: (SCC para 16)
"16. A prosecutrix of a sex offence cannot be put
on a par with an accomplice. She is in fact a
victim of the crime. The Evidence Act nowhere
says that her evidence cannot be accepted unless
it is corroborated in material particulars. She is
undoubtedly a competent witness under Section
118 and her evidence must receive the same
weight as is attached to an injured in cases of
(2011) 2 Supreme Court Cases 550
physical violence. The same degree of care and
caution must attach in the evaluation of her
evidence as in the case of an injured complainant
or witness and no more. What is necessary is
that the court must be alive to and conscious of
the fact that it is dealing with the evidence of a
person who is interested in the outcome of the
charge levelled by her. If the court keeps this in
mind and feels satisfied that it can act on the
evidence of the prosecutrix, there is no rule of
law or practice incorporated in the Evidence Act
similar to Illustration (b) to Section 114 which
requires it to look for corroboration. If for some
reason the court is hesitant to place implicit
reliance on the testimony of the prosecutrix it
may look for evidence which may lend assurance
to her testimony short of corroboration required
in the case of an accomplice. The nature of
evidence required to lend assurance to the
testimony of the prosecutrix must necessarily
depend on the facts and circumstances of each
case. But if a prosecutrix is an adult and of full
understanding the court is entitled to base a
conviction on her evidence unless the same is
shown to be infirm and not trustworthy. If the
totality of the circumstances appearing on the
record of the case disclose that the prosecutrix
does not have a strong motive to falsely involve
the person charged, the court should ordinarily
have no hesitation in accepting her evidence."
24. In State of Punjab v. Gurmit Singh [(1996) 2 SCC 384 : 1996
SCC (Cri) 316] this Court made the following weighty
observations at pp. 394-96 and p. 403: (SCC paras 8 & 21)
"8. ... The court overlooked the situation in which
a poor helpless minor girl had found herself in
the company of three desperate young men who
were threatening her and preventing her from
raising any alarm. Again, if the investigating
officer did not conduct the investigation properly
or was negligent in not being able to trace out
the driver or the car, how can that become a
ground to discredit the testimony of the
prosecutrix? The prosecutrix had no control over
the investigating agency and the negligence of an
investigating officer could not affect the
credibility of the statement of the prosecutrix ...
The courts must, while evaluating evidence,
remain alive to the fact that in a case of rape, no
self-respecting woman would come forward in a
court just to make a humiliating statement
against her honour such as is involved in the
commission of rape on her. In cases involving
sexual molestation, supposed considerations
which have no material effect on the veracity of
the prosecution case or even discrepancies in the
statement of the prosecutrix should not, unless
the discrepancies are such which are of fatal
nature, be allowed to throw out an otherwise
reliable prosecution case ... Seeking corroboration
of her statement before relying upon the same,
as a rule, in such cases amounts to adding insult
to injury ... Corroboration as a condition for
judicial reliance on the testimony of the
prosecutrix is not a requirement of law but a
guidance of prudence under given circumstances.
21. ... The courts should examine the broader
probabilities of a case and not get swayed by
minor contradictions or insignificant discrepancies
in the statement of the prosecutrix, which are
not of a fatal nature, to throw out an otherwise
reliable prosecution case. If evidence of the
prosecutrix inspires confidence, it must be relied
upon without seeking corroboration of her
statement in material particulars. If for some
reason the court finds it difficult to place implicit
reliance on her testimony, it may look for
evidence which may lend assurance to her
testimony, short of corroboration required in the
case of an accomplice. The testimony of the
prosecutrix must be appreciated in the
background of the entire case and the trial court
must be alive to its responsibility and be
sensitive while dealing with cases involving
sexual molestations."
(emphasis in original)
25. In Vijay v. State of M.P. [(2010) 8 SCC 191 : (2010) 3 SCC
(Cri) 639] , decided recently, this Court referred to the above two
decisions of this Court in Chandraprakash Kewalchand
Jain [(1990) 1 SCC 550 : 1990 SCC (Cri) 210] and Gurmit
Singh [(1996) 2 SCC 384 : 1996 SCC (Cri) 316] and also few
other decisions and observed as follows: (Vijay case [(2010) 8
SCC 191 : (2010) 3 SCC (Cri) 639] , SCC p. 198, para 14)
"14. Thus, the law that emerges on the issue is
to the effect that the statement of the
prosecutrix, if found to be worthy of credence
and reliable, requires no corroboration. The court
may convict the accused on the sole testimony of
the prosecutrix."
26. The important thing that the court has to bear in mind is that
what is lost by a rape victim is face. The victim loses value as a
person. Ours is a conservative society and, therefore, a woman
and more so a young unmarried woman will not put her
reputation in peril by alleging falsely about forcible sexual assault.
In examining the evidence of the prosecutrix the courts must be
alive to the conditions prevalent in the Indian society and must
not be swayed by beliefs in other countries. The courts must be
sensitive and responsive to the plight of the female victim of
sexual assault. Society's belief and value systems need to be kept
uppermost in mind as rape is the worst form of women's
oppression. A forcible sexual assault brings in humiliation, feeling
of disgust, tremendous embarrassment, sense of shame, trauma
and lifelong emotional scar to a victim and it is, therefore, most
unlikely of a woman, and more so by a young woman, roping in
somebody falsely in the crime of rape. The stigma that attaches
to the victim of rape in Indian society ordinarily rules out the
levelling of false accusations. An Indian woman traditionally will
not concoct an untruthful story and bring charges of rape for the
purpose of blackmail, hatred, spite or revenge.
27. This Court has repeatedly laid down the guidelines as to how
the evidence of the prosecutrix in the crime of rape should be
evaluated by the court. The observations made in Bharwada
Bhoginbhai Hirjibhai v. State of Gujarat [(1983) 3 SCC 217 :
1983 SCC (Cri) 728] deserve special mention as, in our view,
these must be kept in mind invariably while dealing with a rape
case. This Court observed as follows: (SCC p. 224, para 9)
"9. In the Indian setting, refusal to act on the
testimony of a victim of sexual assault in the
absence of corroboration as a rule, is adding
insult to injury. Why should the evidence of the
girl or the woman who complains of rape or
sexual molestation be viewed with the aid of
spectacles fitted with lenses tinged with doubt,
disbelief or suspicion? To do so is to justify the
charge of male chauvinism in a male dominated
society. We must analyse the argument in
support of the need for corroboration and subject
it to relentless and remorseless cross-
examination. And we must do so with a logical,
and not an opinionated, eye in the light of
probabilities with our feet firmly planted on the
soil of India and with our eyes focussed on the
Indian horizon. We must not be swept off the
feet by the approach made in the western world
which has its own social milieu, its own social
mores, its own permissive values, and its own
code of life. Corroboration may be considered
essential to establish a sexual offence in the
backdrop of the social ecology of the western
world. It is wholly unnecessary to import the said
concept on a turnkey basis and to transplant it
on the Indian soil regardless of the altogether
different atmosphere, attitudes, mores,
responses of the Indian society, and its profile.
The identities of the two worlds are different. The
solution of problems cannot, therefore, be
identical."
28. This Court went on to observe at SCC pp. 225-26: (Bharwada
case [(1983) 3 SCC 217 : 1983 SCC (Cri) 728] , SCC para 10)
"10. Without the fear of making too wide a
statement, or of overstating the case, it can be
said that rarely will a girl or a woman in India
make false allegations of sexual assault on
account of any such factor as has been just
enlisted. The statement is generally true in the
context of the urban as also rural society. It is
also by and large true in the context of the
sophisticated, not so sophisticated, and
unsophisticated society. Only very rarely can one
conceivably come across an exception or two and
that too possibly from amongst the urban elites.
Because--(1) A girl or a woman in the tradition-
bound non-permissive society of India would be
extremely reluctant even to admit that any
incident which is likely to reflect on her chastity
had ever occurred.(2) She would be conscious of
the danger of being ostracised by the society or
being looked down by the society including by
her own family members, relatives, friends, and
neighbours.(3) She would have to brave the
whole world.(4) She would face the risk of losing
the love and respect of her own husband and
near relatives, and of her matrimonial home and
happiness being shattered.(5) If she is
unmarried, she would apprehend that it would be
difficult to secure an alliance with a suitable
match from a respectable or an acceptable
family.(6) It would almost inevitably and almost
invariably result in mental torture and suffering
to herself.(7) The fear of being taunted by others
will always haunt her.(8) She would feel
extremely embarrassed in relating the incident to
others being overpowered by a feeling of shame
on account of the upbringing in a tradition-bound
society where by and large sex is taboo. (9) The
natural inclination would be to avoid giving
publicity to the incident lest the family name and
family honour is brought into controversy.(10)
The parents of an unmarried girl as also the
husband and members of the husband's family of
a married woman, would also more often than
not, want to avoid publicity on account of the
fear of social stigma on the family name and
family honour.(11) The fear of the victim herself
being considered to be promiscuous or in some
way responsible for the incident regardless of her
innocence.(12) The reluctance to face
interrogation by the investigating agency, to face
the court, to face the cross-examination by the
counsel for the culprit, and the risk of being
disbelieved, acts as a deterrent."
29. We shall now examine the evidence of the prosecutrix. The
prosecutrix at the relevant time was less than 18 years of age.
She was removed from the lawful custody of her brother in the
evening on 19-9-1989. She was taken to a different village by
two adult males under threat and kept in a rented room for many
days where A-1 had forcible sexual intercourse with her.
Whenever she asked A-1 for return to her village, she was
threatened and her mouth was gagged. Although we find that
there are certain contradictions and omissions in her testimony,
but such omissions and contradictions are minor and on material
aspects, her evidence is consistent. The prosecutrix being
illiterate and rustic young woman, some contradictions and
omissions are natural as her recollection, observance, memory
and narration of chain of events may not be precise."
27. In the case of Haneel vs. State 2, the learned Single Judge of
the High Court of Allahabad held in paragraph No.17 as under, viz.,
"17. The pain and suffering of a child is a brutal assault oh her
physical frame, when she is raped. She has no idea about the sex
or rape. It is a nightmare. It is not a Utopian thought or "floating
fancy" of unwarranted assumption. It is the demonstration of
reality in concrete terms. When a society moves in this way, there
has to be instillation of fear of law and the punishment has to be
definitive in a different way. In such a situation the classical
understanding of crime by Marcus Aurelius, the Roman Emperor
of 2nd Century A.D., who had said that poverty is the mother of
crime may not hold good, for the crimes committed on girl
children has no nexus with the economic status of the perpetrator
of crime; on the contrary, may have nexus with neurotic
behaviour. In fact, this is a crime which is a shameless
demonstration and total insensitive exposition of attitude to a
victim. It is a gross violation of the social values and a failure of
an individual. It is an act of extreme depravity."
2016 SCC OnLine All 3058
FINDINGS OF THE COURT
28. After careful consideration of all the evidences and
depositions, we find accused No.1 guilty beyond reasonable doubt of
the offences charged. The testimony of both the victim girls is found
to be consistent on material aspects despite minor discrepancies.
Their identification of accused No.1 as primary perpetrator remained
unshaken throughout cross-examination. The medical evidence
corroborates their testimony regarding sexual assault and the
psychological assessment reports further supports the traumatic
impact these incidents had on the victims. We also find that the
prosecution has successfully established all elements of the offences
under Section 376(2)(f)(i)(n) of IPC and Sections 5(g) r/w 6, 7 r/w
8, 9(l)(m) r/w 10, 16 r/w 17 of POCSO Act against accused No. 1.
29. Similarly, accused No.5 is also guilty of the offence under
Section 370 (4) r/w 109 and 506 of IPC. The evidence clearly
establishes that she knowingly facilitated the exploitation of minor
victims by bringing them to locations where they were sexually
assaulted by the accused No.1 and others. This shows how her
actions directly enabled the commission of this heinous offence
against vulnerable children who were under her care. The
prosecution has successfully proven their complicity beyond
reasonable doubt through consistent testimonies of the victims and
corroborative evidence from the other witnesses.
30. However, with respect to accused Nos.6, 8, and 10,we find
significant inconsistencies in the prosecution's case. While the
victims have identified these accused, there are material
contradictions in their testimonies regarding the specific acts
allegedly committed by these accused persons. The time gap
between the incidents and the recording of statements has resulted
in memory lapses affecting the reliability of identification.
Additionally, no independent corroboration exists to establish their
presence at the scene of offence. The alleged phone calls and
messages linking these accused to the crime have not been
conclusively proven through technical evidence.
31. This Bench emphasizes that crimes against children,
particularly sexual offences, warrant the highest degree of
condemnation from society and severe punishment under law. The
heinous nature of the offences committed against two innocent
children aged merely 8-9 years has not only violated their bodies
but has caused irreparable psychological trauma that will impact
their entire lives. While the Trial Court has maintained the
presumption of innocence where evidence falls short of proving guilt
beyond reasonable doubt, it has imposed the maximum punishment
permissible under law where guilt has been conclusively established.
32. When addressing cases involving minor children or victims of
rape, Courts must exercise heightened vigilance and sensitivity
recognizing that child victims of sexual assault endure not only the
trauma experienced by adults but also additional layers of
vulnerability due to their developmental stage, limited
understanding and reliance on adults for protection. The testimony
of a child victim deserves special weight as their innocence and lack
of sophistication make it unlikely for them to fabricate such
traumatic experiences. The psychological impact on child victims is
profound often leading to developmental challenges, educational
setbacks, trust issues and lifelong scars. Behavioural changes,
regression, and nightmares often corroborate their accounts
underscoring the need for a child-friendly judicial process that
safeguards their dignity and ensures their voiceis heard. Society
bears a moral obligation to protect its most vulnerable members,
and the legal system must reflect this by approaching such cases
with care, prioritizing the well-being of the child while gathering
corroborative evidence without causing further harm.
33. Moreover, in our considered opinion while dealing with such
sensitive matters the gravity of such cases demands utmost
attention and sensitivity. It is equally imperative that the
prosecution exercises due diligence in implicating accused persons.
This Bench observes that the prosecution cannot justify the
implication of adding accused persons merely based on unreliable
statements of co-accused, particularly when there exists no direct
testimony or statement from the victims against such persons.
Thus, the sanctity of justice requires that only those against whom
there is clear and reliable evidence primarily through the testimony
of the victims should face prosecution. To do otherwise would not
only compromise the integrity of the judicial process but also dilute
the focus from delivering justice to the actual victims of these
heinous crimes, and at the same time, also subjecting the innocent
persons to traumatic trial leading to anxiety and also resulting in
damage to their reputation within in the society and within the
family and outside the society.
CONCLUSION
34. In view of the factual matrix and also taking into consideration
the judicial precedents discussed in the preceding paragraphs, the
Criminal Appeal Nos.328 and 391 of 2021 stands allowed. As a
consequence, the appellant / accused Nos.6, 8, and 10 are hereby
acquitted of the charges leveled against them. They be released
from the jail forthwith if not required in any other case. The Criminal
Appeal Nos.354 and 395 of 2021 stands dismissed and the
judgment of conviction passed by the Trial Court against appellant /
accused Nos.1 and 5 stands affirmed.
35. As a sequel, miscellaneous applications pending if any in these
batch of appeals, shall stand closed.
_____________
P.SAM KOSHY, J
___________________________
NAMAVARAPU RAJESHWAR RAO, J
Date: 12.03.2025
GSD
