SUSHEEL KUMAR vs STATE OF HP
- Court
- High Court of Himachal Pradesh
1
( 2026:HHC:49132 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. : 272 of 2022
Reserved on : 15.09.2026
Date of decision: 06.11.2026
Uploaded on : 06.11.2026
Susheel Kumar …Appellant.
Versus
State of H.P. …Respondent.
Coram
The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
The Hon’ble Mr. Justice Bhupesh Sharma, Judge.
1
Whether approved for reporting? Yes
For the appellant : Mr. Vinod Kumar Thakur,
Advocate.
For the respondent : Mr. Gautam Sood, Deputy Advocate
General.
Bhupesh Sharma, Judge
Appellant (hereinafter referred to as the
‘accused’) calls in question the legality of the conviction
recorded in terms of Sections 363 and 376(2) of the Indian
Penal Code (for short ‘IPC’) and Section 4 of the Protection of
1
Whether the reporters of the local papers may be allowed to see the Judgment? Yes
2
( 2026:HHC:49132 )
Children from Sexual Offences (for short ‘POCSO’) Act, 2012,
passed by learned Special Judge, Fast Track Special Court
(POCSO) Mandi, District Mandi, H.P., in Sessions Trial No. 64
of 2018, titled as ‘State of Himachal Pradesh Vs. Susheel
Kumar’, vide judgment of conviction and order of sentence
dated 11.07.2022. The accused has been sentenced as
under:-
Offence Imprisonment Fine In default
Under Section
363 IPC
SI for five years Rs. 5,000/- To further
undergo SI
for three
months
Under Section
376(2) IPC
RI for ten years Rs. 10,000/- To further
undergo RI
for six
months
Under Section
4 of POCSO
Act
SI for ten years Rs. 10,000/- To further
undergo SI
for six
months.
2. The accused was sent to face trial for the
commission of the offences punishable under Sections 363
and 376(2) of the IPC and Section 4 of the POCSO Act, 2012,
by the SHO Police Station Sadar Mandi, District Mandi, H.P.,
in case FIR No. 37/2018, dated 06.02.2018.
3
( 2026:HHC:49132 )
3. The accused was charged and he faced trial for
the commission of the offences punishable under Sections
363 and 376(2) of the IPC and Section 4 of the POCSO Act,
2012 and after conclusion of the trial he stood convicted and
sentenced vide judgment dated 11.07.2022, passed in
Sessions Trial No. 64 of 2018, titled as ‘State of H.P. Vs.
Susheel Kumar’.
4. The case of the prosecution, as set out against
the accused, in brief is as under:-
4(a) On 05.02.2018, during the day time at Mandi,
the accused kidnapped the Victim Child/Prosecutrix ‘K’
minor aged 17 years and 11 months (date of birth
05.06.2000) from lawful guardianship of her parents and
thereafter subjected her to forcible sexual intercourse
(penetrative sexual assault) during the night at Hotel
Shubham, Kullu Road, Sauli-Khad Mandi, District Mandi,
H.P.
4(b). On 05.02.2018, the Victim Child/Prosecutrix ‘K’
went missing during the day time and the Complainant ‘SD’
being her mother filed a complaint at about 11:00 PM. On the
basis of the facts contained therein, a case FIR No. 37/2018,
4
( 2026:HHC:49132 )
dated 06.02.2018, under Section 363 of the IPC was
registered against an unknown person at Police Station Sadar
Mandi, District Mandi, H.P.
4 (c). On 06.02.2018, at about 6:30 AM, the Victim
Child/Prosecutrix ‘K’ returned home and disclosed the
incident to her mother that she was enticed by the accused
to accompany him from Seri-Bazaar Mandi to Hotel Shubham
Sauli-Khad, where they stayed in a Room Number 203 for the
night, during which she was subjected to forcible sexual
intercourse without her consent. On the basis of the facts
disclosed by the Victim Child/Prosecutrix ‘K’, Section 376
of the IPC and Section 4 of the POCSO Act, 2012, was added
in FIR No. 37 of 2018 and thereafter the Victim
Child/Prosecutrix ‘K’ was sent for medical examination to
Zonal Hospital, Mandi. Thereafter, the investigation
commenced and the police got the spots identified from the
Victim Child/Prosecutrix ‘K’ at Seri Bazar and Hotel
Shubham, Sauli-Khad, Mandi. The police, during the course
of investigation, recovered torn shirt and shirt piece of the
Victim Child/Prosecutrix ‘K’ from Room No. 203 of Hotel
Shubham, which were taken into possession. The police also
5
( 2026:HHC:49132 )
recovered double bedsheet, which was spread on the bed
during the night when the offence was committed against
Victim Child/Prosecutrix ‘K’. The police also took into
possession CCTV footage and the relevant record i.e., visitors'
register from the Hotel. The accused was arrested on
06.02.2018, at about 9:00 PM at Women Police Station,
Mandi, in accordance with law and thereafter, he was sent
for medical examination.
5. On 08.02.2018, the Victim Child/Prosecutrix ‘K’
got her statement recorded under Section 164 of Cr.P.C.
before the learned Judicial Magistrate First Class, Court No.
IV, Mandi, District Mandi (H.P).
6. The police after conducting the detailed
investigation found involvement of the accused in the
commission of the offences punishable under Sections 363
and 376(2) of the IPC and Section 4 of the POCSO Act, 2012
and accordingly he was challaned for the commission of
said offences and was put up for trial before learned Special
Judge, Fast Track Special Court (POCSO), Mandi District,
Mandi, H.P..
6
( 2026:HHC:49132 )
7. The prosecution in order to prove and
substantiate the allegations and accusations against the
accused examined 16 witnesses. The principal prosecution
witnesses examined before the learned Trial Court include
the Complainant ‘SD’, who is mother of the Victim
Child/Prosecutrix ‘K’ as PW-1, her father ‘HR’ as PW-2, her
cousin Jyoti as PW-3, the Manager of Hotel Shubham Rahul
as PW-5, Receptionist at Shubham Hotel Yogesh as PW-6 and
Dr. Tanvi Soni, Medical Officer as PW-7. The Victim
Child/Prosecutrix ‘K’ stepped into the witness box as PW-15.
Apart from this, the Investigating Officers, Inspector Ati Devi
examined as PW-14 and SI Pawan Kumar as PW-16. The
other witnesses examined by the prosecution are formal in
nature which were associated at the various stages of
investigation and constitute the link evidence.
8. The prosecution, apart from examining aforesaid
witnesses, also heavily relied upon the documentary
evidence, which was collected during the course of
investigation. The material documents, which needs reference
are the recovery and seizure memos of the torn shirt (Exhibit
PB-1 & shirt piece Exhibit PB-2), vide memo Exhibit PW1/B.
7
( 2026:HHC:49132 )
Recovery of bedsheet (Exhibit PA-1), vide seizure memo
Exhibit PW1/C. Copy of guest register of Hotel Shubham
(Exhibit PW5/C). MLC of the Victim Child/Prosecutrix ‘K’
(Exhibit P-2/PW7) and final opinion (Exhibit P-4/PW7). Copy
of FIR No. 37 of 2018, dated 06.02.2018, under Section 363
of the IPC at Police Station Sadar Mandi (Exhibit P-1/PW9).
Statement of the Victim Child/Prosecutrix ‘K’ under Section
164 of Cr.PC (Exhibit P-1/PW15), RFSL Report No. 219, RFSL
Bio (28)18( Exhibit P-3/PW7).
9. The substratum of the prosecution case was put
to the accused in his statement recorded under Section 313
of the Cr.PC on 13.06.2022. The accused has denied and
disputed the entire prosecution case by raising the defence of
denial simplicitor and false implication at the behest of the
complainant, victim child and other witnesses.
10. Learned Trial Court after considering the
material and evidence on record and after hearing learned
counsel for the parties found the complicity of the accused in
the alleged incident. Accordingly, he was convicted for the
offences punishable under Section 363 & 376(2) of the IPC
8
( 2026:HHC:49132 )
and Section 4 of POCSO Act, 2012, vide impugned judgment
of conviction and order of sentence dated 11.07.2022.
11. Feeling aggrieved and dissatisfied with the
judgment of conviction and order of sentence dated
11.07.2022, passed by learned Trial Court in Sessions Trial
No.64 of 2018, titled ‘State of Himachal Pradesh vs. Susheel
Kumar’, the accused filed the instant appeal before this Court
on following grounds:-
That the impugned judgment of
sentence and conviction passed by the
Ld. Special Judge fast track Special
court (POCSO) Mandi H.P is against the
law and facts on record, which is liable
to be set aside.
That Ld. Trial Court below has wrongly,
erroneously misread and misconstrued
the evidence on record and as such
arrived at wrong conclusion and has
over looked the fact that the
prosecution has not been able to
established the guilt the appellant
beyond reasonable doubt.
That the prosecution story is full of
contradiction and there is no cogent
reliable and conclusive evidence led by
the prosecution to prove the aforesaid
act by the appellant. Therefore, he is
entitled be acquitted.
9
( 2026:HHC:49132 )
That the Ld. Court below has miserably
failed to appreciate that it is for the
prosecution to prove the age of the
prosecutrix to attract the provision of
POCSO Act. Where as in the present
case the certificate so produced in the
evidence being the photocopy has not
been proved in accordance with the
compliance of Indian Evidence Act and
therefore fore can not looked in to.
That the learned trial court below has
further erred in sentencing the present
appellant on the bases of Exhibit PW/B
which has not even procured from the
legal and competent authority and also
the same could not be correlated with
the victim as the name of the mother in
the said certificate is shown as Dhirja
where as the name of the mother is
sunita therefore there is no link
between the two and the conviction on
the basis of the same can not be
sustained.
That the learned trial court below has
further failed to appreciate the fact that
there are material contradictions in the
prosecution story and the conviction of
the basis of the said witnesses is not
sustainable in the eyes of law.
That the learned trial court further
failed to appreciate the fact that the
recovery as alleged has not been proved
in accordance with law. The
complainant who is the mother of victim
has been associated in the recovery and
the seal impressions after appending to
10
( 2026:HHC:49132 )
the sealed parcels have been kept with
the claimant only.
That the Ld. Trial court further erred
not appreciating the fact that there is
no link evidence in the entire
prosecution story which may be
concluded that the case
property/sample remained un-
tempered.
That the entire judgment of sentence
and the conviction passed by the Ld.
Trial Court is based on surmises and
conjectures because each and every
aspect of the case i.e. recovery
procedure, collection birth certificate,
creates doubt therefore, accused
appellant is entitled for acquittal.
That the statement of the official
witnesses as well as independent
witnesses examined are explicitly
contrary to each other on material
points.
That the Ld. Trial court has further
erred in not taking into consideration
the fact that the entire story so created
by the prosecution is absolutely false
and fabricated. Therefore the sentence
and conviction cannot be sustained in
the eyes of law and hence the
accused/appellant may be acquitted.
That the instant appeal has been filed
within prescribed period of limitation.
11
( 2026:HHC:49132 )
12. We have heard Mr. Vinod Kumar Thakur,
learned counsel for the accused and Mr. Gautam Sood,
learned Deputy Advocate General for the respondent-State,
and have also carefully gone through the records.
13. Learned counsel for the accused argued that the
learned Trial Court has failed to appreciate the oral as well
as documentary evidence led by the prosecution. The
prosecution miserably failed to establish that the Victim
Child/Prosecutrix ‘K’ was minor at the time of the alleged
incident. Therefore, the act and conduct of the accused, if
any, does not fall within the purview of Section 363 of IPC
and Section 4 of the POCSO Act. There is no evidence on
record suggesting the involvement of the accused. It is also
argued that the electronic evidence used by the prosecution
lack evidentiary value for want of certification under Section
65B of the Evidence Act. Further, he has was submitted that
the statement of the Victim Child/Prosecutrix) 'K' (PW-15)
does not inspire confidence and is liable to be discredited.
The medical evidence used by the prosecution also does not
support the factum of sexual assault having taken place with
the Victim Child/Prosecutrix ‘K’. Learned counsel for the
12
( 2026:HHC:49132 )
accused with these submissions sought acquittal of the
accused by setting aside the judgment of conviction and
order of sentence dated 11.07.2022, passed by the learned
Trial Court.
14. Learned Deputy Advocate General for the
respondent-State submitted that the prosecution proved the
birth certificate of the Victim Child/Prosecutrix ‘K’ as Exhibit
PW4/B and as per the said document, her recorded date of
birth is 05.06.2000, therefore, on the date of occurrence, she
was 17 years and 8 months old. The Victim
Child/Prosecutrix ‘K’ was enticed out of the keeping of lawful
guardianship of her parents under false pretexts and was
taken to a Hotel for the night, where she was subjected to
forcible sexual intercourse (penetrative sexual assault).
Furthermore, the medical and forensic evidence support and
corroborate the ocular evidence and on the basis of aforesaid
evidence, learned Trial Court has rightly convicted the
accused. The judgment of conviction and order of sentence
dated 11.07.2022, passed by the learned Trial Court does not
suffer from any infirmity or perversity, therefore, the same is
liable to be affirmed and the appeal is to be dismissed.
13
( 2026:HHC:49132 )
15. W e have given considerable thought to the
submissions made at the bar and also gone through the
records carefully.
16. At the very outset, this Court is compelled to
dwell into the issue regarding the age of the Victim
Child/Prosecutrix ‘K’ at the time of the alleged incident. Since
the issue regarding the age of the Victim Child/Prosecutrix
‘K’ has been specifically disputed by the defence making
reference to the judgments of Hon'ble Supreme Court in
Jarnail Singh v. State of Haryana (2013) 7 SCC 263,
Rishipal Singh Solanki v. State of U.P. and Others (2022)
8 SCC 602, P. Yuvaprakash v. State, Represented by
Inspector of Police (2023) INSC 676 and the judgments of
Co-ordinate Bench of this High Court in Criminal Appeal
No. 193 of 2022 titled as Sewak Ram @ Sanjeev Vs. State
of Himachal Pradesh (neutral citation No.
2025:HHC:2110) and Criminal Appeal No. 246 of 2021,
titled as ‘V’ Vs. State of H.P. (Neutral Citation No. 2024:
HHC:13464).
17. Exhibit PW4/B is the birth certificate of the
Victim Child/Prosecutrix ‘K’ issued under Section 12/17 of
14
( 2026:HHC:49132 )
the Registration of Births and Deaths Act, 1969 and Rule 8 of
the Himachal Pradesh Registration of Births and Deaths
Rules, 2003. The aforesaid document has been proved on
record by Amar Singh, Chowkidar, posted in Nagar Parishad,
Mandi. As per the aforesaid document, the recorded date of
birth of the Victim Child/Prosecutrix ‘K’ is 05.06.2000.
Therefore, having considered the entry of the date of birth in
the birth certificate (Exhibit PW4/B), the age of the Victim
Child/Prosecutrix ‘K’ on the date of incident i.e 05.06.2018
was 17 years and 8 months. As per the statement of the
complainant, ‘SD’, (mother-PW-1), the age of her daughter
was 17 years and 11 months at the relevant time. Similarly,
the Victim Child/Prosecutrix ‘K’ in her statement as PW-15
disclosed her date of birth as 05.06.2000, which is in
consonance with the date reflected in the birth certificate
(Exhibit PW4/B). However, considering the ratio of laws laid
down by the Hon'ble Supreme Court in Jarnail Singh case
(supra), Rishipal Singh Solanki case (supra) and
P. Yuvaprakash case (supra) and the judgments of the
Co-ordinate Bench in Sewak Ram @ Sanjeev case (supra)
and ‘ V’ case (supra), the document i.e. birth certificate
15
( 2026:HHC:49132 )
Exhibit PW4/B, cannot be considered to ascertain the date of
birth of the Victim Child/Prosecutrix ‘K’ as 05.06.2000.
Therefore, there is no authentic and legal document proving
that she was a minor i.e. below the age of 18 years at the
time of the alleged incident. Therefore, we are constrained
to hold that the prosecution has failed to establish that the
Victim Child/Prosecutrix ‘K’ was minor at the time of the
alleged incident for lack of evidence as required under the
law.
18. Section 2(d) of the Protection of Children from
Sexual Offences Act, 2012, defines ‘ Child’ for the purpose of
said Act. As per the aforesaid provisions, ‘ Child’ means any
person below the age of 18 years. Therefore, the provisions of
Protection of Children from Sexual Offences Act, 2012, are
applicable only if the offence is committed against a minor, as
defined in Section 2(d) of the Act.
19. In the present case, the prosecution has failed to
prove that the Victim Child/ Prosecutrix ‘K’ was minor on the
date of the alleged occurrence i.e 05.02.2018, therefore, the
provisions of the POCSO Act are not applicable against the
accused even if it is proved that he committed forcible sexual
16
( 2026:HHC:49132 )
intercourse with the Victim Child/Prosecutrix ‘K’ on the
intervening night of 05.02.2018 and 06.02.2018 at Hotel
Shubham, Kullu Road, Sauli-Khad Mandi, HP.
20 . Similarly, Section 363 of the IPC defines the
punishment for the offence of kidnapping, as defined under
Section 361 of the IPC. So far as kidnapping a minor girl
from lawful guardianship is concerned, the ingredients are:
(i) that the girl was under 18 years of age; ii). such minor
was in the keeping of a lawful guardianship, and iii) the
accused took or induced such person to leave out of such
keeping and such taking was done without the consent of
the lawful guardian. In view of the words, “under 16 years of
age, if a male, or under 18 years of age, if a female”,
occurring in Section 361 of the IPC, the question of proof of
age assumes great significance.The prosecution is bound to
prove that the age of the victim girl was below 18 years. In
the present case, as discussed hereinabove, the prosecution
has failed to prove the age of the victim girl below 18 years,
hence, the provisions under Section 361 of the IPC,
punishable under Section 363 of the IPC, are also not
applicable.
17
( 2026:HHC:49132 )
21. Having considered the said provisions of law, the
act of omission and involvement of the accused does not fall
within the ambit and purview of Section 366 of the IPC and
Section 4 of the POCSO Act. Therefore, the conviction of the
accused recorded under the said provisions cannot sustain
and is liable to be set aside.
22. As per the prosecution allegations, the accused
subjected the Victim Child/Prosecutrix ‘K’ to forcible sexual
intercourse on the intervening night of 05.02.2018 and
06.02.2018 at Hotel Shubham, Kullu Road, Sauli-Khad
Mandi, HP.
23. In order to prove the aforesaid fact, the
prosecution heavily relied upon the statement of the
complainant ‘SD’, (Victim Child/Prosecutrix ‘K’ mother),
examined as PW1, her father HR examined as PW2, her
cousin Jyoti examined as PW3 and the Victim Child/
Prosecutrix ‘K’ examined as PW-15. Apart from this, reliance
is also placed upon the medical and forensic evidence i.e.
MLC of the Victim Child/ Prosecutrix ‘K’ (Exhibit P2/PW-7),
final opinion (Exhibit P-4/PW7) and evidence of Dr. Tanvi
18
( 2026:HHC:49132 )
Soni examined as PW-7. RFSL Report No. 219, RFSL Bio
(28)18 (Exhibit P2/PW7) is also relied upon.
24. In order to ascertain whether the Victim Child/
Prosecutrix ‘K’ (PW15) was subjected to forcible sexual
intercourse by the accused on the night intervening in Room
No. 203 of Hotel Shubham, Kullu Road, Sauli-Khad Mandi,
HP, we have carefully and meticulously gone through the
evidence relied upon by the learned Trial Court as referred
herein above.
25. Needless to emphasize that the prosecution case
heavily rests upon the sole testimony of the Victim Child/
Prosecutrix ‘K’, examined as PW-15, therefore, she is the
material and relevant witness in order to ascertain the
involvement of the accused in the said incident.
26. Before adverting to the factual matrix and
material adduced in support thereof, it may be fruitful to
refer to the relevant provisions of law and the ratio of the law
laid down by the Hon’ble Supreme Court which may be
relevant in context to the facts and circumstances of the
present case.
19
( 2026:HHC:49132 )
27. The Hon'ble Supreme Court in Mohd. Imran
Khan vs. State (Govt. of NCT of Delhi),(2011)10 Supreme
Court Cases 192 , has held:-
“15. It is a trite law that a woman, who is the
victim of sexual assault, is not an accomplice to the
crime but is a victim of another person's lust. The
prosecutrix stands at a higher pedestal than an
injured witness as she suffers from emotional
injury. Therefore, her evidence need not be tested
with the same amount of suspicion as that of an
accomplice. The Indian Evidence Act, 1872
(hereinafter called 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 of Evidence Act and her evidence must receive
the same weight as is attached to an injured in
cases of physical violence. The same degree of care
and caution must attach in the evaluation of her
evidence as in the case of an injured complainant or
witness and no more. 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.
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. The court must
be alive to its responsibility and be sensitive while
dealing with cases involving sexual molestations.
Rape is not merely a physical assault, rather it
often distracts the whole personality of the victim.
20
( 2026:HHC:49132 )
The rapist degrades the very soul of the helpless
female and, therefore, the testimony of the
prosecutrix must be appreciated in the background
of the entire case and in such cases, non-
examination even of other witnesses may not be a
serious infirmity in the prosecution case,
particularly where the witnesses had not seen the
commission of the offence. (Vide: State of
Maharashtra v. Chandraprakash Kewalchand Jain,
AIR 1990 SC 658; State of U.P. v. Pappu @Yunus &
Anr. AIR 2005 SC 1248; and Vijay @ Chinee v.
State of M.P., (2010) 8 SCC 191).
Thus, the law that emerges on the issue is to the
effect that statement of 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.
28. In State of Maharashtra Vs. Chandraprakash
Kewalchand Jain AIR 1990 SC 658, the Hon'ble Supreme
Court held that a woman, who is the victim of sexual assault,
is not an accomplice to the crime but is a victim of another
person's lust and, therefore, her evidence need not be tested
with the same amount of suspicion as that of an accomplice.
The Court observed as under :-
"A prosecutrix of a sex-offence cannot be put on
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 10
corroborated in material particulars. She is
undoubtedly a competent witness under Section
118 and her evidence must receive the same
weight as is attached to an injured in cases of
physical violence. The same degree of care and
21
( 2026:HHC:49132 )
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."
29. In State of U.P. Vs. Pappu @ Yunus & Anr. AIR
2005 SC 1248 , the Hon'ble Supreme Court held that even in
a case where it is shown that the girl is a girl of easy virtue or
a girl habituated to sexual intercourse, it may not be a
ground to absolve the accused from the charge of rape. It has
to be established that there was consent by her for that
22
( 2026:HHC:49132 )
particular occasion. Absence of injury on the prosecutrix may
not be a factor that leads the court to absolve the accused.
The Hon'ble Supreme Court further held that there can be
conviction on the sole testimony of the prosecutrix and in
case, the court is not satisfied with the version of the
prosecutrix, it can seek other evidence, direct or
circumstantial, by which it may get assurance of her
testimony. The Court held as under :-
"It is well settled that a prosecutrix complaining of
having been a victim of the offence of rape is not
an accomplice after the crime. There is no rule of
law that her testimony cannot be acted without
corroboration in material particulars. She stands
at a higher pedestal than an injured witness. In
the latter case, there is injury on the physical form,
while in the former it is both physical as well as
psychological and emotional. However, if the court
of facts finds it difficult to accept the version of the
prosecutrix on its face value, it may search for
evidence, direct or circumstantial, which 11 would
lend assurance to her testimony. Assurance, short
of corroboration as understood in the context of an
accomplice, would do."
30. In State of Punjab Vs. Gurmit Singh & Ors.
AIR 1996 SC 1393, the Hon'ble Supreme Court held that in
cases involving sexual harassment, molestation etc. the court
is duty bound to deal with such cases with utmost
sensitivity. Minor contradictions or insignificant
23
( 2026:HHC:49132 )
discrepancies in the statement of a prosecutrix should not be
a ground for throwing out an otherwise reliable prosecution
case. Evidence of the victim of sexual assault is enough for
conviction and it does not require any corroboration unless
there are compelling reasons for seeking corroboration. The
court may look for some assurances of her statement to
satisfy judicial conscience. The statement of the prosecutrix
is more reliable than that of an injured witness as she is not
an accomplice. The Court further held that the delay in filing
FIR for sexual offence may not be even properly explained,
but if found natural, the accused cannot be given any benefit
thereof. The Hon'ble Supreme Court observed as under :-
"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
24
( 2026:HHC:49132 )
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 12 replying 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.
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."
31. In State of Orissa Vs. Thakara Besra & Anr.
AIR 2002 SC 1963 , the Hon'ble Supreme Court held that
rape is not mere a physical assault, rather it often distracts
the whole personality of the victim. The rapist degrades the
25
( 2026:HHC:49132 )
very soul of the helpless female and, therefore, the testimony
of the prosecutrix must be appreciated in the background of
the entire case and in such cases, non-examination even of
other witnesses may not be a serious infirmity in the
prosecution case, particularly where the witnesses had not
seen the commission of the offence.
32. In State of Himachal Pradesh Vs. Raghubir
Singh (1993) 2 SCC 622 , the Hon'ble Supreme Court held
that there is no legal compulsion to look for any other
evidence to corroborate the evidence of the prosecutrix before
recording an order of conviction. Evidence has to be weighed
and not counted. Conviction can be recorded on the sole
testimony of the prosecutrix, if her evidence inspires
confidence and there is absence of circumstances which
militate against her veracity. A similar view has been
reiterated by the Hon'ble Supreme Court in Wahid 13 Khan
Vs. State of Madhya Pradesh (2010) 2 SCC 9 , placing
reliance on earlier judgment in Rameshwar Vs. State of
Rajasthan AIR 1952 SC 54 .
33. The Hon'ble Supreme Court in the case of
Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat
26
( 2026:HHC:49132 )
[1983(3) SCC 217] has laid down the elaborate guidelines as
to how the evidence of the prosecutrix in the crime of rape
should be evaluated by the Court.
34. In Ved Parkash versus State of Himachal
Pradesh (2005(1) SLC 395) , the Hon'ble Supreme Court
while dealing with the question of value of the statement of
the prosecutrix, held as under:-
"8. At may be pointed out at the very outset that
by now it is well settled that conviction of a person
accused of the commission of rape can be based
on the sole testimony of the prosecutrix because
she is not an accomplice but victim of the offence,
hence, the injured person. Her evidence can also
not be suspected for the reason that no self
respecting woman would come forward to lower
her dignity and self esteem by making false
allegations of rape on her. Therefore, a conviction
can be based on the statement of the prosecutrix
when her statement is found cogent, reliable and
confidence inspiring. In case for some reason the
Court is hesitant to place implicit reliance on the
testimony of the prosecutrix it may look into other
evidence which may lend assurance to her
testimony.. In a case where the prosecutrix is
adult and of full understanding the Court can base
conviction on her evidence unless shown to be
infirm or untrustworthy. In case the prosecutrix
has no motive to falsely implicate the accused the
Court should ordinarily have no hesitation in
accepting her evidence."
27
( 2026:HHC:49132 )
35. The Hon'ble Supreme Court in Aman Kumar
and another vs. State of Haryana, (2004)4 SCC 379 held
as under:-
“5. It is well settled that a prosecutrix complaining
of having been a victim of the offence of rape is not
an accomplice after the crime. There is no rule of
law that her testimony cannot be acted without
corroboration in material particulars. She stands
at a higher pedestal than an injured witness. In
the latter case, there is injury on the physical form,
while in the former it is both physical as well as
psychological and emotional. However, if the court
of facts finds it difficult to accept the version of the
prosecutrix on its face value, it may search for
evidence, direct or circumstantial, which would
lend assurance to her testimony. Assurance, short
of corroboration as understood in the context of an
accomplice would suffice.
7. Penetration is the sine qua non for an offence of
rape. In order to constitute penetration, there must
be evidence clear and cogent to prove that some
part of the virile member of the accused was
within the labia of the pudendum of the woman,
no matter how little (See Joseph Lines IC & K 893).
It is well-known in the medical world that the
examination of smegma loses all importance after
twenty four hours of the performance of the sexual
intercourse. (See Dr. S.P. Kholi, Civil Surgeon,
Ferozepur v. High Court of Punjab and Haryana
thr. Registrar (1979) 1 SCC 212). In rape cases, if
the gland of the male organ is covered by smegma,
it negatives the possibility of recent complete
penetration. If the accused is not circumcised, the
existence of smegma round the corona gland is
proof against penetration, since it is rubbed off
during the act. The smegma accumulates if no
bath is taken within twenty four hours. The
rupture of hymen is by no means necessary to
28
( 2026:HHC:49132 )
constitute the offence of rape. Even a slight
penetration in the vulva is sufficient to constitute
the offence of rape and rupture of the hymen is not
necessary. Vulva penetration with or without
violence is as much rape as vaginal penetration.
The statute merely requires evidence of
penetration, and this may occur with the hymen
remaining intact. The actus reus is complete with
penetration. It is well settled that the prosecutrix
cannot be considered as accomplice and,therefore,
her testimony cannot be equated with that of an
accomplice in an offence of rape. In examination of
genital organs, state of hymen offers the most
reliable clue. While examining the hymen, certain
anatomical characteristics should be remembered
before assigning any significance to the findings.
The shape and the texture of the hymen is
variable. This variation, sometimes permits
penetration without injury. This is possible
because of the peculiar shape of the orifice or
increased elasticity. On the other hand, sometimes
the hymen may be more firm, less elastic and gets
stretched and lacerated earlier. Thus a relatively
less forceful penetration may not give rise to
injuries ordinarily possible with a forceful attempt.
The anatomical feature with regard to hymen
which merits consideration is its anatomical
situation. Next to hymen in positive importance,
but more than that in frequency, are the injuries
on labia majora. These, viz. labia majora are the
first to be encountered by the male organ. They
are subjected to blunt forceful blows, depending
on the vigour and force used by the accused and
counteracted by the victim. Further,examination of
the females for marks of injuries elsewhere on the
body forms a very important piece of evidence. To
constitute the offence of rape, it is not necessary
that there should be complete penetration of the
penis with emission of semen and rupture of
hymen. Partial penetration within the labia majora
of the vulva or pudendum with or without emission
of semen is sufficient to constitute the offence of
29
( 2026:HHC:49132 )
rape as defined in the law. The depth of
penetration is immaterial in an offence punishable
under Section 376 IPC.”
36. The Hon'ble Supreme Court in Tarkeshwar Sahu
vs. State of Bihar (now Jharkhand, (2006)8 SCC 560 , held
as under:-
“10. Under Section 375 IPC, six categories
indicated above are the basic ingredients of the
offence. In the facts and circumstances of this
case, the prosecutrix was about 12 years of age,
therefore, 15 her consent was irrelevant. The
appellant had forcibly taken her to his Gumti with
the intention of committing sexual intercourse with
her. The important ingredient of the offence under
Section 375 punishable under Section 376 IPC is
penetration which is altogether missing in the
instant case. No offence under Section 376 IPC can
be made out unless there was penetration to some
extent. In absence of penetration to any extent
would not bring the offence of the appellant within
the four corners of Section 375 of the Indian Penal
Code. Therefore, the basic ingredients for proving
a charge of rape are the accomplishment of the act
with force. The other important ingredient is
penetration of the male organ within the labia
majora or the vulva or pudenda with or without
any emission of semen or even an attempt at
penetration into the private part of the victim
completely, partially or slightly would be enough
for the purpose of Sections 375 and 376 IPC. This
Court had an occasion to deal with the basic
ingredients of this offence in the case of State of
U.P. v. Babul Nath. In this case, this Court dealt
with the basic ingredients of the offence under
Section 375 in the following words:- "8. It may
here be noticed that Section 375 of the IPC defines
rape and the Explanation to Section 375 reads as
follows:
30
( 2026:HHC:49132 )
"Explanation: Penetration is sufficient to
constitute the sexual intercourse necessary to the
offence of rape."
From the Explanation reproduced above it
is distinctly clear that ingredients which are
essential for proving a charge of rape are the
accomplishment of the act with force and
resistance. To constitute the offence of rape neither
Section 375 of IPC nor the Explanation attached
thereto require that there should necessarily be
complete penetration of the penis into the private
part of the victim/prosecutrix. In other words to
constitute the offence of rape it is not at all
necessary that there should be complete
penetration of the male organ with emission of
semen and rupture of hymen. Even partial or
slightest penetration of the male organ within the
labia majora or the vulva or pudenda with or
without any emission of semen or even an attempt
at penetration into the private part of the victim
would be quite enough for the purpose of Sections
375 and 376 of IPC. That being so it is quite
possible to commit legally the offence of rape even
without causing any injury to the genitals or
leaving any seminal stains. But in the present
case before us as noticed above there is more than
enough evidence positively showing that there
was sexual activity on the victim and she was
subjected to sexual assault without which she
would not have sustained injuries of the nature
found on her private part by the doctor who
examined her."
37. The Hon'ble Supreme Court in Narender Kumar
vs. State (NCT of Delhi), (2012)7 SCC 171 held as under:-
“29. However, even in a case of rape, the onus is
always on the prosecution to prove, affirmatively
each ingredient of the offence it seeks to establish
31
( 2026:HHC:49132 )
and such onus never shifts. It is no part of the
duty of the defence to explain as to how and why
in a rape case the victim and other witness have
falsely implicated the accused. Prosecution case
has to stand on its own legs and cannot take
support from the weakness of the case of defence.
However great the suspicion against the accused
and however strong the moral belief and
conviction of the court, unless the offence of the 16
accused is established beyond reasonable doubt
on the basis of legal evidence and material on the
record, he cannot be convicted for an offence.
There is an initial presumption of innocence of the
accused and the prosecution has to bring home the
offence against the accused by reliable evidence.
The accused is entitled to the benefit of every
reasonable doubt. (Vide: Tukaram & Anr. v. The
State of Maharashtra, AIR 1979 SC 185; and
Uday v. State of Karnataka, AIR 2003 SC 1639).
30 . Prosecution has to prove its case beyond
reasonable doubt and cannot take support from
the weakness of the case of defence. There must
be proper legal evidence and material on record to
record the conviction of the accused. Conviction
can be based on sole testimony of the prosecutrix
provided it lends assurance of her testimony.
However, in case the court has reason not to
accept the version of prosecutrix on its face value,
it may look for corroboration. In case the evidence
is read in its totality and the story projected by the
prosecutrix is found to be improbable, the
prosecutrix case becomes liable to be rejected.”
38. The Hon'ble Supreme Court in Munna vs. State
of Madhya Pradesh, (2014) 10 SCC 254, has reiterated the
principle that testimony of prosecutrix is almost at par with
32
( 2026:HHC:49132 )
an immediate witness and can be acted upon without
corroboration.
39. Reiterating its earlier view in Mohd. Iqbal v.
State of Jharkhand,(2013) 14 SCC, 481, Narender Kumar
v. State (NCT of Delhi), (2012) 7SCC 171 , the Hon'ble
Supreme Court in Mukesh v. State of Chhattisgarh, (2014)
10 SC 327 , has held that sole testimony of prosecutrix is
sufficient to establish commission of rape, even in the
absence of any corroborative evidence.
40. It is a settled legal proposition that once the
statement of prosecutrix inspires confidence and is accepted
by the court as such, conviction can be based only on the
solitary evidence of the prosecutrix and no corroboration
would be required unless there are compelling reasons which
necessitate the court for corroboration of her statement.
Corroboration of testimony of the prosecutrix as a condition
for judicial reliance is not a requirement of law but a
guidance of prudence under the given facts and
circumstances. Minor contradictions or insignificant
discrepancies should not be a ground for throwing out an
otherwise reliable prosecution case. A prosecutrix
33
( 2026:HHC:49132 )
complaining of having been a victim of the offence of rape is
not an accomplice of the crime. Her testimony has to be
appreciated on the principle of probabilities just as the
testimony of any other witness; a high degree of probability
having been shown to exist in view of the subject matter
being a criminal charge. However, if the court finds it difficult
to accept the version of the prosecutrix on its face value, it
may search for evidence, direct or substantial, which may
lend assurance to her testimony. (Refer: Vimal Suresh
Kamble v. Chaluverapinake Apal S.P. & Anr., AIR 2003 SC
818; and Vishnu v. State of Maharashtra, AIR 2006 SC
508).
41. Where evidence of the prosecutrix is found
suffering from serious infirmities and inconsistencies with
other material, prosecutrix making deliberate improvements
on material point with a view to rule out consent on her part
and there being no injury on her person even though her
version may be otherwise, no reliance can be placed upon her
evidence. (Refer: Suresh N. Bhusare & Ors. v. State of
Maharashtra, (1999) 1 SCC 220) .
34
( 2026:HHC:49132 )
42. In Jai Krishna Mandal & Anr. v. State of
Jharkhand, (2010)14 SCC 534 , the Hon'ble Supreme Court
while dealing with the issue held:
“The only evidence of rape was the statement of
the prosecutrix herself and when this evidence
was read in its totality, the story projected by the
prosecutrix was so improbable that it could not be
believed.”
43. In Rajoo & Ors. v. State of Madhya Pradesh,
AIR 2009 SC 858 , the Hon'ble Supreme Court held that
ordinarily the evidence of a prosecutrix should not be
suspected and should be believed, more so as her statement
has to be evaluated on par with that of an injured witness
and if the evidence is reliable, no corroboration is necessary.
The Hon'ble Supreme court however, further observed:
“…….It cannot be lost sight of that rape causes the
12 Session Trial No. Regd-CIS No.1/2014 CIS CNR
No.HPSO01-0018432013 greatest distress and
humiliation to the victim but at the same time a
false allegation of rape can cause equal distress,
humiliation and damage to the accused as well.
The accused must also be protected against the
possibility of false implication….. there is no
presumption or any basis for assuming that the
statement of such a witness is always correct or
without any embellishment or exaggeration.”
35
( 2026:HHC:49132 )
44. In Tameezuddin @ Tammu v. State (NCT of
Delhi), (2009) 15 SCC 566, the Hon'ble Supreme Court held
has 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.”
45. The courts while trying an accused on the charge
of rape, must deal with the case with utmost sensitivity,
examining the broader probabilities of a case and not get
swayed by minor contradictions or insignificant discrepancies
in the evidence of witnesses which are not of a substantial
character. However, even in a case of rape, the onus is
always on the prosecution to prove, affirmatively each
ingredient of the offence it seeks to establish and such onus
never shifts. It is no part of the duty of the defence to explain
as to how and why in a rape case the victim and other
witness have falsely implicated the accused. Prosecution case
has to stand on its own legs and cannot take support from
the weakness of the case of defence. However great the
suspicion against the accused and however strong the moral
36
( 2026:HHC:49132 )
belief and conviction of the court, unless the offence of the
accused is established beyond reasonable doubt on the basis
of legal evidence and material on the record, he cannot be
convicted for an offence. There is an initial presumption of
innocence of the accused and the prosecution has to bring
home the offence against the accused by reliable evidence.
The accused is entitled to the benefit of every reasonable
doubt. (Refer: Tukaram & Anr. v. The State of
Maharashtra,, AIR 1979 SC 185; and Uday Vs. State of
Karnataka, AIR 2003 SC 1639).
46. The Hon’ble Supreme Court in Rai Sandeep
alias Deepu vs. State (NCT of Delhi) (2011) 8 SCC 21 ,
found totally conflicting versions of the prosecutrix, from
what was stated in the complaint and what was deposed
before Court, resulting in material inconsistencies; reversing
the conviction and holding that the prosecutrix cannot be
held to be a ‘sterling witness’.
47. In Krishan Kumar Malik v. State of Haryana
(2011) 7 SCC 130 , the Hon’ble Supreme Court held that
although the victim's solitary evidence in matters related to
sexual offences is generally deemed sufficient to hold an
37
( 2026:HHC:49132 )
accused guilty, the conviction cannot be sustained if the
prosecutrix's testimony is found unreliable and insufficient
due to identified flaws and lacunaes.
48. Similarly, the Hon’ble Supreme Court in Nirmal
Prem Kumar & Anr. vs State rep. by Inspector of Police
2024 INSC 193 (neutral citation) disbelieved the prosecution
case on material contradictions apparent in the deposition of
the prosecution witnesses, including the victim and acquitted
the accused of the offence under Section 12 of the POCSO
Act.
49. The testimony of the Victim Child/Prosecutrix
‘K’ examined as PW-15 is to be assessed and evaluated
keeping in view the ratio laid down by the Hon’ble Supreme
Court referred supra.
50. In order to test the veracity of the deposition of
the Victim Child/Prosecutrix ‘K’ (PW-15), it may be necessary
to make reference to the same. As per her evidence, on the
date of incident, the accused committed wrong act with her
before her marriage in Hotel Room No. 203. She came back
from the Hotel in the morning at 6:30 AM. The accused had
dropped her in a car and thereafter she returned on foot.
38
( 2026:HHC:49132 )
She had informed her mother about the wrong act
committed by the accused. She had identified Room No. 203
in the Hotel to the police. Police had recorded her statement.
Police had taken into possession one bed sheet and one shirt
alongwith piece of shirt from the Hotel Room, which were
taken into possession vide memo Exhibit PW1/B and Exhibit
PW1/C. She was medically examined at Zonal Hospital
Mandi.
51. The Complainant ‘SD’ is being mother of Victim
Child/Prosecutrix ’K’ was examined as PW-1. As per her
evidence, on 05.02.2018, during the day time, her daughter
visited her office at 1:30 PM after attending computer class
and thereafter she went missing. On 06.02.2018, at 6:30 AM,
she returned and disclosed that one boy took her from Seri
Manch, Mandi to one Hotel where they stayed for the night
and she was subjected to forcible sexual intercourse by a boy
named Vicky @ Susheel.
52 . The father ‘HR’ of the Victim Child/Prosecutrix
‘K’ was examined as PW-2. As per his testimony, on
05.02.2018 at about 6:30-6:45 PM when he returned home,
his wife told that the victim girl had not returned. They
39
( 2026:HHC:49132 )
searched their daughter in Mandi town and also reported
matter to the police. Next day morning at about 6:30 AM, she
returned home and disclosed to her mother that accused had
taken her to a Hotel room. His wife told him that their
daughter had been sexually assaulted in the Hotel by the
accused.
53. PW-3, Jyoti, is the cousin of the Victim Child/
Prosecutrix ‘K’. As per her evidence, the Victim Child/
Prosecutrix ‘K’ (PW15) returned home on 06.02.2018, at 6:30
AM and disclosed that the accused took her to a Hotel at
Sauli-Khad Mandi and kept her for the night and committed
rape upon her.
54. The ocular evidence of the Victim Child/
Prosecutrix ‘K’ (PW15), her mother(PW1), her father (PW2),
and her cousin (PW3) is consistent with the allegations and
accusations and there are no material contradictions in their
respective statements rendering their version(s), vulnerable
and unacceptable.
55. Also, the aforesaid evidence finds corroboration
from the document (Exhibit P1/PW15), which is the
statement of the Victim Child/Prosecutrix ‘K’, recorded under
40
( 2026:HHC:49132 )
Section 164 of the Cr.PC by learned Judicial Magistrate First
Class, Court-IV Mandi. The medical evidence i.e MLC (Exhibit
P2/PW7) and the final opinion of the Medical Officer (Exhibit
P4 /PW7) further support and corroborate the factum of the
sexual intercourse having taken place with the Victim/
Prosecutrix ‘K’.
56. PW7, Dr. Tanvi Soni, conducted the medical
examination of the Victim Child/Prosecutrix ‘K’, at Zonal
Hospital, Mandi on 06.02.2018 at 5:00 PM with following
observations:-
“On General physical examination :-
LMP-28.01.2018
Secondary sexual character: pubic
hair were present, axillary hair present and
breast well developed. No signs of external
injuries on labia majora and labia minora.
Admits two fingers easily on per vaginal
examination. UPT negative.
The following samples were taken,
packed sealed and handed over to the police
along with sample
seal and forwarding letter;
1) Pubic hair
2) Vaginal swab 1 in number
3) Vaginal smear 3 in number
4) Clothers worn at the time of
incident as broght by police
5) Sample of blood on FTA
card.”
41
( 2026:HHC:49132 )
57. Admittedly, there was no evidence of violation/
injury on any part of the body of the Victim/Prosecutrix ‘K’
(PW-15) at the time of her medical examination conducted
by Dr. Tanvi Soni (PW-7). However, the aforesaid facts does
not necessarily lead to infer that no sexual assault was
committed upon the Victim/Prosecutrix ‘K’ (PW-15).
58 . Needless to mention that injury on the private
parts in cases of sexual assault (offences ) depends upon
various factors. It is not necessary that in every case there
would be an injury caused. In Gurbachan Singh Vs. State
of Haryana ( 1972) 2 SCC 2661, the Hon'ble Supreme Court
held: that in absence of injury or mark of violence on the
private part on the person of prosecutrix is of no consequence
and it would merely suggest want of violent resistance on her
part. Similarly, in Devinder Singh Vs. State of Himachal
Pradesh (2003) 11 SCC 488 , the Hon'ble Supreme Court
held that the fact that no injury was found on the body of the
prosecutrix only goes to show that she did not put up
resistance.
42
( 2026:HHC:49132 )
59. Further, the absence of violence or stiff
resistance in the present case may be as well suggest
helplessness, surrendered to the inevitable due to sheer
timidity. This Court cannot lose sight of the fact that the
Victim/Prosecutrix ‘K’ (PW-15) is suffering from mild
retardation. Hence, the Victim/Prosecutrix ‘K’ (PW-15)
showing no signs of internal or external injuries cannot be
construed that she was not subjected to sexual assault. The
injuries on the body of victim are not always, sine qua non
for the offence of sexual assault.
60. Learned counsel for the accused also drew
attention of this Court towards the observations in the MLC
wherein it is specifically mentioned that the
Victim/Prosecutrix ‘K’ (PW-15) was habitual to sexual
intercourse. The fact that the Victim/Prosecutrix ‘K’ (PW-15)
was habitual to sexual intercourse is also testified by Dr.
Tanvi Soni (PW-7). Even if it is assumed on the basis of the
said evidence that the Victim/Prosecutrix ‘K’ (PW-15) was
habitual to sexual intercourse, it is of least consequence
whatsoever in view of the law laid down by the Hon'ble
Supreme Court in State of Maharashtra Vs. Madhukar
43
( 2026:HHC:49132 )
Narayan Mardikar, AIR 1991 SC 207 , State of Punjab Vs.
Gurmeet Singh and others, 1996 (2) SCC 384 and State
(NCT of Delhi) Vs. Pankaj Chaudhary, ( 2018) SCC OnLine
SC 2256 . The law is fairly settled that right to refuse is also
available even if a woman is habituated to sexual intercourse
or is alleged to be of loose moral character. She retains the
absolute right to refuse sexual activity at any time. Consent
cannot may assumed or coerced. Even a woman of easy virtue
is entitled to privacyand no one can invade her privacy as
and when he likes. Attempting to discredit the victim by
attacking her past conduct or character is legally barred in a
sexual offence trial.
61. Having considered the oral and documentary
evidence referred and discussed hereinabove, it is fairly
established that the Victim/Prosecutrix ‘K’ (PW15 ) was
subjected to forcible sexual intercourse by the accused in
Room No. 203 of Hotel Shubham, Sauli-Khad Mandi, on the
night intervening 05.02.2018 and 06.02.2018.
62. This Court, at this stage, find proper and deemed
appropriate to refer to Section 114A of the Evidence Act,
44
( 2026:HHC:49132 )
which refers presumption as to absence of consent in certain
prosecution for rape.
63. Section 114-A of Evidence Act, 1872 (Section
120 of Bharatiya Sakshya Adhiniyam, 2026) reads as under.
“Presumption as to absence of consent in
certain prosecutions for rape-In a prosecution
for rape under clause (a) or clause (b) or
clause (c) or clause (d) or clause (e) or clause
(g) of sub-section (2) of Section 376 of the
Indian Penal Code (45 of 1860), where sexual
intercourse by the accused is proved and the
question is whether it was without the
consent of the woman alleged to have been
raped and she states in her evidence before
the Court that she did not consent, the
Court shall presume that she did not
consent.”
64. The law in support of aforesaid is Naim Ahmed
Vs. State (NCT of Delhi) 2023 SCC OnLine 89 and Anurag
Soni Vs. State of Chhattisgarh, 2019 (13) SCC 1 .
65. The provisions of Section 114-A of the Evidence
Act are applicable having considered the facts put on record
by the Victim Child/Prosecutrix ‘K’ in her evidence.
66. After carefully analyzing material and
documentary evidence led by the prosecution, the conviction
45
( 2026:HHC:49132 )
of the accused punishable under Section 376(2) of the IPC is
upheld, whereas the conviction under Section 363 of the IPC
and Section 4 of the POCSO Act, 2012, is set aside.
67. Accordingly, the appeal is partly allowed.
68. This appeal is, accordingly, disposed of, so also
the pending miscellaneous application(s), if any.
(Vivek Singh Thakur)
Judge
th
6 November, 2026 (Bhupesh Sharma)
( sushma )
Judge