ANISH vs STATE OF KERALA
- Court
- Kerala High Court
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TH
SATURDAY, THE 24 DAY OF OCTOBER 2026 / 2ND KARTHIKA, 1948
CRL.A NO. 2042 OF 2024
CRIME NO.650/2021 OF Rajakkad Police Station, Idukki
AGAINST THE JUDGMENT DATED 04.10.2023 IN SC NO.678 OF
2021 OF SPECIAL COURT UNDER POCSO ACT, IDUKKI
APPELLANT/ACCUSED:
ANISH, AGED 38 YEARS, S/O SUNNY RESIDING AT
PERUNGATTUMALAYIL HOUSE, POOMALA BHAGAM, POTTANKADU
KARA, BYSON VALLEY VILLAGE, IDUKKI, PIN - 685565
BY ADVS.
SRI.N.K.SHYJU
SRI.GIREESH PANKAJAKSHAN
SHRI.VISHNU MOHAN
SMT.SAHLA NECHIYIL
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
OTHER PRESENT:
SR PUBLIC PROSECUTOR : P K SAJEEV
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
28.09.2026, THE COURT ON 24.10.2026 DELIVERED THE FOLLOWING:
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A. BADHARUDEEN, J.
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Crl.Appeal No.2042 of 2024
—---------------------------------------------------
Dated this the 24th day of October, 2026
‘CR’
JUDGMENT
This appeal has been filed by the sole accused in
S.C.No.678/2021 on the files of the Fast Track Special Court,
Idukki, Painavu for the trial of offences under the Protection of
Children from Sexual Offences Act, 2012 (hereinafter referred to
as ‘the POCSO Act’) challenging judgment dated 04.10.2023,
rendered in the above case.
2. Heard the learned counsel for the appellant/accused
and the learned Public Prosecutor appearing for the prosecution.
Perused the verdict impugned and the evidence available.
3. The prosecution case is that the accused, who is the
appellant herein, a relative of the victim aged 14 years, subjected
her to repeated penetrative sexual assault during the month of
December 2020 and in the last week of December 2020. As a
consequence thereof, she became pregnant and gave birth to a
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child. On that premise, the prosecution alleges commission of
offences punishable under Sections 376(2)(f), 376(3), 506(i) of the
Indian Penal Code (hereinafter referred to as ‘IPC’) and under
Sections 3(a) r/w 4(2), 5(j)(ii), 5(n), 5(p) r/w 6 of the POCSO Act
and under Section 75 of the Juvenile Justice Act (hereinafter
referred to as ‘ JJ Act’) by the accused.
4. When final report was filed before the learned Special
Judge, learned Special Judge took cognizance for the said
offences and proceeded with trial. During trial, PWs.1 to 23 were
examined, Exts.P1 to P27 and MOs.1 to 6 were marked on the side
of the prosecution. DW1 was examined on the side of the defence.
On appreciation of evidence, it was found by the learned Special
Judge that the appellant committed offences punishable under
Sections 376(2)(f), 376(3) IPC and under Sections 3(a) r/w 4(2),
5(j)(ii), 5(n), 5(p) r/w 6 of the POCSO Act and accordingly, the
appellant/accused was convicted for the said offences and
sentenced as under:-
“The accused is sentenced to undergo rigorous
imprisonment for a period of 20 (twenty) years and to pay a
fine of Rs.10,000/-(ten thousands only) for the offence
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under section 3 (a) r/w 4 (2) of Pocso Act, IDSI for six
months. Accused is also sentenced to undergo rigorous
imprisonment for a period of twenty years and to pay a fine
of Rs. ten thousands for the offence under section 5 (j)(ii)
r/w 6 of Pocso Act IDSI for six months. Accused is further
sentenced to undergo rigorous imprisonment for a period
of twenty years and to pay a fine of Rs. ten thousands for
the offence under section 5 (p) r/w 6 of Pocso Act IDSI for
six months. Accused is further sentenced to undergo
rigorous imprisonment for a period of twenty years and to
pay a fine of Rs. ten thousands for the offence under
section 5 (n) r/w 6 of POCSO Act IDSI for six months. In
view of the mandate of section 42 of Pocso Act, no separate
sentences are imposed on the accused in respect of
offenses under section 376(2)(f) and 376(3) IPC. It is
specifically made clear that the substantive sentences will
run concurrently and default sentences will run
consecutively. It is specifically made clear that if the fine is
recovered, the same shall be paid to PW1 as compensation.
Accused is entitled to get set off U/s 428 Cr.P.C. Properties
are directed to be disposed of as per law, after the appeal
period.”
5. According to the learned counsel for the appellant,
PW1 became pregnant after she had attained the age of 18 years
and the accused was not responsible for her pregnancy. It has
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been contended that the doctor, examined as PW4, who attended
the delivery of PW1 recorded statement relating to the course of
pregnancy of PW1. PW4, during her cross-examination, stated
that a woman with a strict 28-day menstrual cycle would
typically ovulate on the 14th day after the last menstruation. She
further explained that the ovum usually would remain viable for
48 to 72 hours, and in some cases, up to six days. The doctor
opined that if effective sexual intercourse would occur during
this time, pregnancy might result. Doctor also testified that if
intercourse would occur during the 'safe period,' the chances of
pregnancy would be less, though not entirely impossible.
Moreover, if ineffective sexual contact would happen within 78
hours after ovulation, pregnancy could still occur. The 'safe
period' generally to be the time from the last ovulation to the
next ovulation. According to PW1, her last LMP was in the first
week of December 2020, and she testified that the sexual contact
occurred in the last week of December 2020. Therefore, even if
sexual intercourse had taken place between PW1 and the
accused, she would not have become pregnant as the ovum
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would no longer had been viable by that time. According to the
learned counsel for the appellant, the Special court failed to look
into veracity of Exhibit P21 DNA Result and Exhibit P20 Chemical
analysis report. The DNA result made available to the court and
marked as Exhibit P21 did not reflect the correct result as the
procedures adopted for sampling and testing were not foolproof.
Also the said certificates could not be accepted in evidence and
relied on, without examining the authors of report. According to
him, the Special Court relied too much on the DNA even though it
is only an opinion evidence. It is submitted that the Special court
failed to consider the evidence of DW1, the wife of the accused to
the effect that the police summoned DW1 and her daughter and
collected blood from them after 2 days of the arrest of the
accused. It is pointed out further that the prosecution would not
get support of presumption under section 29 of POCSO Act to
prove the offences charged under the IPC. Thus the learned
counsel for the appellant sought interference in the verdict
impugned.
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6. The learned Public Prosecutor supported the verdict
and argued that the evidence given by PW1, the victim,
supported by the evidence of PW3 and Ext.P20 FSL report dated
01.01.2022 tendered in evidence through PW19, the prosecution
categorically established penetrative sexual assault committed
by the accused against the victim, which resulted in her
pregnancy. Therefore none of the contentions raised by the
learned counsel for the appellant would yield to upset the verdict
impugned.
7. In order to support the evidentiary value of DNA
report, he had placed reliance on the decision reported in
Satheesh Babu v. State of Kerala (2024(1) KLD 108(DB))
wherein, in paragraph 15, this Court considered the impact of
DNA profile to prove the pregnancy and sexual intercourse and
held as under:
“15. DNA profiling and its impact: Since there was
no facility for DNA profiling in the Chemical Examination
Laboratory of the State Government, the vaginal swab and
smear collected from the body of the victim were initially
forwarded to the State Forensic Science Laboratory and
then to Rajiv Gandhi Centre for Biotechnology,
Thiruvananthapuram. PW64 was the DNA Examiner
attached to Rajiv Gandhi Centre for Biotechnology.
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Thiruvananthapuram. PW64 testified that he received the
blood sample of the accused and the samples of the
vaginal swab and smear of the victim and the same
received by him were properly sealed and labelled. PW64
also testified that he extracted DNA from the same,
prepared the DNA profile using Autosomal DNA profiling
kit as also Y-Chromosomal DNA profiling kit and found
that the Autosomal DNA profile obtained from the blood
sample of the accused did not match with the Autosomal
DNA profile obtained from the vaginal swab and smear of
the victim. PW64, however testified that the
Y-Chromosomal DNA profile obtained from the blood
sample of the accused was found matching with the
Y-Chromosomal DNA obtained from the vaginal swab and
smear of the victim. PW64 also testified that the DNA test
results are sufficient to conclude that the accused cannot
be excluded as a possible contributor to the DNA obtained
from the vaginal swab and smear of the victim. Ext. P61 is
the certificate issued by PW64 in this regard. During
cross-examination, PW64 stated that the Autosomal DNA
profiling is intended to establish the identity of disputed
individuals and the same is wide, elaborate and accurate.
PW64 admitted in cross-examination that males belonging
to same paternity shall have same Y-Chromosome.
15.1. There cannot be any doubt to the proposition that
the DNA evidence is in the nature of opinion evidence as
envisaged under Section 45 of the Indian Evidence Act,
and like any other opinion evidence, its probative value
varies from case to case and it cannot be said that the
absence of DNA evidence would lead to an adverse
inference against a party, especially in the presence of
other cogent and reliable evidence on record in favour of
such party. It is so held by the Apex Court in Pattu Rajan v.
State of T.N . (2019 KHC 6361). The relevant portion of the
judgment reads thus:
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"52. Like all other opinion evidence, the probative
value accorded to DNA the weight accorded to other
evidence depecord, whether contrary or
corroborative, evidence also varies from case to case,
depending on the facts and circumstances and This
is all the more important to remember, given that
even though the accuracy of DNA evidence may be
increasing with the advancement of science and
technology with every passing day, thereby making
it more and more reliable, we have not yet reached a
juncture where it may be said to be infallible. Thus, it
cannot be said that the absence of DNA evidence
would lead to an adverse inference against a party,
especially in the presence of other cogent and
reliable evidence on record in favour of such party."
In Mukesh v. State (NCT of Delhi) (2017 KHC 6396) , the
Apex Court has held that DNA report deserves to be
accepted unless it is absolutely dented and for
non-acceptance of the same, it is to be established that
there had been no quality control or quality assurance. If
the sampling is proper, and if there is no evidence as to
the tampering of the samples, the DNA test report is to be
accepted. Paragraph 228 of the said judgment reads thus:
"228. From the aforesaid authorities, it is quite clear
that DNA report deserves to be accepted unless it is
absolutely dented and for non-acceptance of the
same, it is to be established that there had been no
quality control or quality assurance. If the sampling is
proper and if there is no evidence as to tampering of
samples, the DNA test report is to be accepted."
In Mukesh, the Apex Court has also quoted with approval
a passage from the judgment in Pantangi Balarama
Venkata Ganesh v. State of A.P. (2009 KHC 5052) , wherein
the Apex Court has referred to the evidence tendered by
an expert on the subject that the probability of two
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persons except identical twins having the same DNA
fingerprint is around 1 in 30 billion world population.
" Conclusion
The DNA test performed on the exhibits provided is
sufficient to conclude that the source of Exhibit A (Blood
sample said to be of Satheesh Babu (T 451/15)) cannot be
excluded as a possible contributor to the DNA obtained
from Exhibit B (Vaginal Swab & Smear (T 69/16)).”
8. Apart from that, he had placed reliance on the
decision reported in Dnyandeo Bhujang Dahiphale v. State of
Maharashtra (2023 KHC OnLine 5998) wherein, the Bombay High
Court also relied on DNA profiling as held in paragraphs 9 and 14
of the judgment.
9. Regarding proof of age of the victim, learned Public
Prosecutor has placed decision of this Court reported in Sibu
John v. Circle Inspector of Police, Puthencruz Circle (2026 KHC
OnLine 708) wherein this Court held as under:
“It is relevant to note that the evidence of PW7 supported
by Ext. P6 would show that the date of birth of the victim is
18/12/1998. During cross examination of PW7 given evidence
that he had entered the date of birth in Ext. P6 after verifying
the birth certificate of the victim. This version remains as
unchanged as it was brought during cross-examination of PW7.
Thus, the contention raised by the learned Senior Counsel for
the appellant/accused that PW1 and PW2 did not state anything
regarding the status of PW1 as a child at the time of occurrence
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could not be found. Even otherwise, going by the decisions
referred to above, Ext. P6, tendered in evidence, through PW7
found to be a reliable document to hold that the date of birth of
PW1 is 18/12/1998 and that, at the time of the occurrence, she
was below 18 years of age and, she was a 'child' as defined
under Section 2(1)(d) of the PoCSO Act. In fact, the status of
PW1 as a child is not at all disputed during trial and thus this
argument mooted before this Court is childish. The evidence
discussed in detail by way of re-appreciation would show that
the argument advanced by the learned Senior Counsel for the
accused/appellant that the status of PW1 as a child failed to be
established by the prosecution and that the relationship to be
found as consensual would not succeed.”
10. Adverting to the rival arguments, the points arise for
consideration are:
(i) Whether the Special Court is right in holding that the
appellant/accused committed offence punishable under Section
376(2)(f) of IPC?
( ii) Whether the Special Court erred in holding that the
appellant/accused committed the offence under Section 376(3) of
IPC ?
(iii) Whether the Special Court is justified in holding that
the appellant/accused committed offence punishable under
Section Sections 3(a) r/w 4(2) of POCSO Act ?
(iv) Whether the Special Court is erred in holding that the
appellant/accused committed offence punishable under Section
Sections 5(j)(ii) of POCSO Act ?
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(v) Whether the Special Court went wrong in holding that
the appellant/accused committed offence punishable under
Section Sections 5(n) of POCSO Act ?
(vi) Whether the Special Court is right in holding that the
appellant/accused committed offence punishable under Section
Sections 5(p) r/w 6 of POCSO Act of POCSO Act ?
(vii) Whether the verdict would require interference?
(viii) The order to be passed?
Point Nos.(i) to (viii)
11. PW1, the victim, was examined to prove the alleged
sexual assault resulting in her pregnancy and delivery of a child.
PW2 is the mother of PW1. PW2 was examined to prove the date
of birth of PW1, the relation of the victim with the accused,
pregnancy and delivery of a baby by PW1. PW3, doctor was
examined to prove the pregnancy status of PW1, collection of
blood samples from the victim, victim's baby, its packing and
sealing for DNA analysis. PW4, doctor attended delivery of PW1
at the hospital also was examined. PW5 was examined to prove
the date of birth of PW1. PW6, a neighbor to the accused, was
examined to prove Ext.P6 scene mahazar. PW7 was also examined
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to prove the same fact. PW8, a Jeep driver was examined to prove
the transportation of PW1 and PW2 upto Anachal. PW9 was
examined to prove Ext. P7 ownership certificate relating to the
house with door No.3/111A of Bysonvalley Grama panchayath.
PW10, Bysonvalley Village Officer was examined and Ext.P8 scene
plan was proved through him. PW11, the Sub Inspector of Police
was examined to prove recording of Ext.P1 statement from PW1.
PW12 was examined to prove registration of Ext.P9 FIR based on
Ext.P1. PW13, a pharmacist, was examined to prove that the
accused had come to his shop and purchased a pregnancy kit.
PW14, SCPO was examined to prove Ext.P10 mahazar, by which
the blood of the accused was seized and Ext.P11 mahazar by
which the dress of accused was seized. PW16, the CPO was
examined to prove the picking up of blood sample from the
doctor and handing it over to the Investigating Officer. PW17,
another CPO was examined to prove Ext.P10 mahazar relating to
seizure of blood sample of accused. PW18, Adimaly Grama
panchayath Secretary, was examined to prove the date of birth of
PW1. It was PW19 who conducted main part of the investigation.
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12. PW20, doctor was examined to prove the medical
examination of the accused, collection of blood samples for DNA
analysis from the accused. PW21 was examined to prove Ext.P15
Mahazar prepared while the blood samples of the victim and her
baby were handed over to PW19, Investigating Officer. PW21 who
signed in Ext.P14 mahazar relating to the seizure of the dresses
worn by the accused was examined to prove the said aspect.
PW22 was examined to prove his signature on Ext.P15. PW23,
Adimaly Grama Panchayath Secretary was examined to prove the
date of birth of PW1. Here, the learned Special Judge relied on
the evidence of PW5, the LP school Assistant, LPS, Vengoor, and
Ext.P5, the certified copy of admission register dated 19.05.2022,
Ext.P5(a), certified copy of application for admission dated
19.05.2022, Ext.P5(b), birth certificate dated 13.10.2021 and
Ext.P5(c), birth certificate dated 19.05.2022 tendered in evidence
to hold that the date of birth of the victim was on 19.04.2007 and
accordingly, she was a child during the period of occurrence. In
fact, there is no dispute before this Court regarding the status of
the victim as a child as defined under Section 2(d) of the POCSO
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Act.
13. In the instant case, as already pointed out, apart from
the evidence of PW1 and other evidence elicited summarily
herein above, including the medical evidence would show
pregnancy as a consequence of the sexual intercourse and also
delivery of the victim. That apart, DNA profile report would
establish the fact that the accused is the biological father of the
child.
14. PW1’s evidence would show that she was aged 14 years
(as on the date of her examination dated 18.05.2022 and she was
born on 19.04.2007). She deposed about her study in St. Thomas
School, Vengoor, near Perumbavoor, Government LP School,
Vengoor upto the 6th standard. Thereafter, she stayed at
St.Thomas Orphanage run by sisters. During 2020 March, she had
reached the house of one Aswathy, daughter of her mother’s elder
sister as she had no house of her own, for residence. Her father
passed away and her mother had been working as a Home Nurse.
When the Orphanage was closed down due to Corona, she came
to the above residence. According to her, during the last of
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December 2020, the accused reached the residence at noon and,
in the absence of others, brought her to the bedroom. During this
time, sister's children were playing outside.
15. Her demeanor was recorded by the learned Special
Judge in her statement as “ she looks very shy and emotionally
distressed ”. According to her, she wore a nighty at the relevant
time and the accused put her on the cot. He lifted her nighty,
removed her undergarment and inserted his penis into her vagina
and as a consequence thereof, she cried. Thereafter, there were
no periods for her. When she informed the same to the accused,
he brought pregnancy card for testing and on testing, the same
showed positive result. Then the accused informed her that she
did not divulge the same to anybody and he would give tablets.
On 28th December, she felt pain and she went along with the
accused and her sister to the hospital. When it was informed to
her mother, she had given “boiled fenugreek” to her as she had
no periods and she was brought to the Taluk Hospital, Adimali
and admitted at the Labour room and then she delivered a child.
Then police recorded Ext.P1 statement given by her. Also she
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had given statement under Section 164 of the Criminal Procedure
Code. She identified her signatures in Exts.P1 and P2. According
to her, the accused was the husband of her mother’s sister’s
daughter and she identified the accused at the dock. She was
subjected to searching cross-examination with a view to shake
her version. During cross-examination, she reiterated that she
was assaulted during the month of December 2020. During furher
cross-examination, it was suggested that, when there would be
sexual intercourse during that time, there would be no possibility
for pregnancy, she replied that what she stated was the events
occurred. During further cross-examination, a suggestion was
made to the effect that she had a relationship with one Kishore
and when the accused annoyed the same, this case was foisted.
This suggestion was denied by PW1. In fact, during
cross-examination of PW1, nothing was extracted to disbelieve
her version in any manner. No contradiction also elicited during
her cross-examination.
16. In support of the evidence given by PW1, PW3,
Dr.Divya V.S., who had examined PW1 on 29.09.2021 also gave
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evidence. According to PW3, while she was working as the
Assistant Surgeon Taluk Hospital, Adimali, she had examined the
victim and the victim spoke about the forced sexual assault
committed by the accused on the victim with full penetration
and ejaculation, despite resistance offered. She had conducted
genital and physical examination and found as under:
1. Perspeculum examination showed the cervix patalous
2 Lochia plus or present suggestive of vaginal delivery.
17. PW3 also collected samples from the victim and her
baby in FDTA bottles, packed, sealed and handed over the same
to police. She had given evidence that, accordingly, she had
issued Ext.P3 which would bear her signature. Even though she
was cross-examined, with a view to shake her version,
particularly regarding collection of the DNA, collection of blood
samples from the victim and baby for DNA profiling, nothing
extracted to disbelieve her version and during re-examination,
she had reiterated the procedure that she followed to ensure
tamper proof collection of the blood samples.
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18. In addition to the evidence of PW3, PW4, Dr. Chinnu P,
who had examined the victim on 28.09.2021, when she was
brought to the labour room with complaints of pain in abdomen
also was examined. PW4 testified that on examination of the
victim, her finding was that the victim’s uterus was appropriately
36 weeks size, with contractions. She also deposed that the
victim delivered a live, ferm male baby having 3.2 kg at 2.26 p.m.
on 28.09.2021. PW6, a nearby resident at the house of the accused
supported Ext.P6 mahazar pertaining to the house and according
to him, she had seen the victim girl while she was staying in the
house of the accused. PW7 also supported Ext.P6 mahazar.
19. Ext.P7 is the ownership certificate of the house where
the offence occurred was tendered in evidence through PW9, Lal
Sing S, Secretary, Bysonvalley Grama Panchayath during the
relevant period. Ext.P8 is the sketch prepared by PW10, the
Village Officer, Bysonvalley town. Regarding forwarding of the
blood samples collected by PW16, CPO, who had collected the
same from the hospital and handed over the same to the
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Investigating Officer given evidence in terms of Ext.P10 and the
same is supported by PW17 also. PW19 deposed about the
investigation he had conducted, supported by the evidence of
PWs.21 and 22. The Potency Certificate pertaining to the accused
was tendered in evidence and marked as Ext.P14 though PW20,
Dr. Souparnika, who had examined him on 02.10.2021.
20. Apart from the prosecution evidence, the wife of the
accused got examined as DW1. She deposed that the victim is her
mother’s sister’s daughter. Further, she deposed that the victim
resided along with her. She came to know about the pregnancy of
the victim when she was informed by her mother. She also
deposed that, thereafter, Adimali police called her and obtained
blood samples of the child. In fact, the prosecution has no such
case and this evidence had been let in to shake the prosecution
case in the matter of DNA profiling done on the child born to the
victim in the sexual intercourse between the accused and the
victim. During cross examination, she candidly stated that she
had dislike in sending her husband to jail, since she had been
living on his income. In fact the evidence of DW1 has no
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significance to disbelieve the prosecution case since she being
the wife of the accused had given such an evidence even without
making any complaint against the police for collecting the blood
sample for any purpose, whatsoever.
21. On a perusal of Ext.P21 DNA examination report, it
was opined that “in the absence of identical twins, the alleged
father Aneesh to whom the sample blood in item No. 7 belongs is
the biological father of the B/o Abhymol to whom the sample blood
in item No.5 belongs” . When the evidence of PW1, victim, as
regards penetrative sexual assault and birth of a baby in the said
course is fortified by the evidence of Ext.P21 report stating that
the accused was the biological father of the baby child born
within the period after the sexual intercourse between the victim
and the accused.
22. Here, learned Special Judge had given emphasis to
the extra judicial confession at the instance of the accused before
PW2 when she enquired about the occurrence and the pregnancy
after calling the accused. According to PW2, when she asked the
accused what he had done, he replied that ‘he committed a wrong
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and to be pardoned’. Even though the learned counsel for the
appellant attacked the extra judicial confession, in this
connection, the learned Public Prosecutor placed reliance on the
decision of the Apex Court reported in Pritinder Singh @ Lovely
v. State of Punjab (2023 KHC OnLine 6727 ) where the Apex Court
considered and discussed the law regarding extra judicial
confession and observed as under:
“12. The law with regard to extra-judicial confession has
be (succinctly discussed in the case of Munna Kumar Upadhyay
alias Munna Upadhyaya v. State of Andhra Pradesh through
Public Prosecutor, Hyderabad, Andhra Pradesh ((2012) 6 SCC
174), wherein this Court has also referred to its earlier
judgments, which read thus:
“56. This Court has had the occasion to discuss the effect of
extra-judicial confessions in a number of decisions. In Balwinder
Singh v. State of Punjab [1995 Supp (4) SCC 259: 1996 SCC (Cri) 59]
this Court stated the principle that: (SCC p. 265, para 10)
“10. An extra-judicial confession by its very nature is rather a
weak type of evidence and requires appreciation with a great
deal of care and caution. Where an extra-judicial confession is
surrounded by suspicious circumstances, its credibility becomes
doubtful and it loses its importance.”
57. In Pakkirisamy v. State of T.N . [ (1997) 8 SCC 158: 1997 SCC
(Cri) 1249] the Court held that: (SCC p. 162, para 8)
8. ... It is well settled that it is a Rule of caution where the court
would generally look for an independent reliable corroboration
before placing any reliance upon such extra-judicial
confession.”
58. Again, in Kavita v. State of T.N. [ (1998) 6 SCC 108: 1998 SCC
(Cri) 1421] the Court stated the dictum that: (SCC p. 109, para 4)
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“4. There is no doubt that convictions can be based on
extra-judicial confession but it is well settled that in the very
nature of things, it is a weak piece of evidence. It is to be
proved just like any other fact and the value thereof
depends upon the veracity of the witness to whom it is made.”
59 . While explaining the dimensions of the principles governing
the admissibility and evidentiary value of an extra-judicial
confession, this Court in State of Rajasthan v. Raja Ram [ (2003) 8
SCC 180: 2003 SCC (Cri) 1965] stated the principle that: (SCC p.
192, para 19)
“19. An extra-judicial confession, if voluntary and true and made
in a fit state of mind, can be relied upon by the court. The
confession will have to be proved like any other fact. The value
of the evidence as to confession, like any other evidence,
depends upon the veracity of the witness to whom it has been
made. The Court further expressed the view that: (SCC p. 192,
para 19)
“19. ... Such a confession can be relied upon and conviction can
be founded thereon if the evidence about the confession comes
from the mouth of witnesses who appear to be unbiased, not
even remotely inimical to the accused, and in respect of whom
nothing is brought out which may tend to indicate that he may
have a motive of attributing an untruthful statement to the
accused....”
60. In Aloke Nath Dutta v. State of W.B. [(2007) 12 SCC 230: (2008)
2 SCC (Cri) 264], the Court, while holding that reliance on
extra-judicial confession by the lower courts in absence of other
corroborating material, was unjustified, observed: (SCC pp.
265-66, paras 87 & 89)
“87. Confession ordinarily is admissible in evidence. It is a
relevant fact. It can be acted upon. Confession may under
certain circumstances and subject to law laid down by the
superior judiciary from time to time form the basis for
conviction. It is, however, trite that for the said purpose the
court has to satisfy itself in regard to: (i) voluntariness of the
confession; (ii) truthfulness of the confession; (iii)
corroboration.
*
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89. A detailed confession which would otherwise be within the
special knowledge of the Accused may itself be not sufficient to
raise a presumption that confession is a truthful one. Main
features of a confession are required to be verified. If it is not
done, no conviction can be based only on the sole basis thereof.”
61. Accepting the admissibility of the extra- judicial confession,
the Court in Sansar Chand v. State of Rajasthan [(2010) 10 SCC
604: (2011) 1 SCC (Cri) 79] held that: (SCC p. 611, paras 29-30)
“29. There is no absolute Rule that an extra-judicial confession
can never be the basis of a conviction, although ordinarily an
extra-judicial confession should be corroborated by some other
material. [Vide Thimma and Thimma Raju v. State of Mysore
[(1970) 2 SCC 105: 1970 SCC (Cri) 320], Mulk Raj v. State of U.P.
[AIR 1959 SC 902: 1959 Cri LJ 1219], Sivakumar v. State [ (2006) 1
SCC 714 : (2006) 1 SCC (Cri) 470] (SCC paras 40 and 41), Shiva
Karam Payaswami Tewari v. State of Maharashtra [ (2009) 11 SCC
262: (2009) 3 SCC (Cri) 1320] and Mohd. Azad v. State of W.B. [
(2008) 15 SCC 449: (2009) 3 SCC (Cri) 1082]]
30. In the present case, the extra-judicial confession by Balwan
has been referred to in the judgments of the learned Magistrate
and the Special Judge, and it has been corroborated by the other
material on record. We are satisfied that the confession was
voluntary and was not the result of inducement, threat or
promise as contemplated by Section 24 of the Evidence Act,
1872.”
62. Dealing with the situation of retraction from the
extra-judicial confession made by an Accused, the Court in
Rameshbhai Chandubhai Rathod v. State of Gujarat [ (2009) 5 SCC
740: (2009) 2 SCC (Cri) 881] held as under: (SCC pp. 772-73, para
53)
“53. It appears therefore, that the Appellant has retracted his
confession. When an extra-judicial confession is retracted by an
Accused, there is no inflexible Rule that the court must
invariably accept the retraction. But at the same time it is unsafe
for the court to rely on the retracted confession, unless, the
court on a consideration of the entire evidence comes to a
definite conclusion that the retracted confession is true.”
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23. Thus the law regarding acceptance of extra judicial
confession is no more res-integra. Extra-judicial confession
must be established to be true and made voluntarily and in a fit
state of mind. The words of the witnesses must be clear,
unambiguous and should clearly convey that the accused is the
perpetrator of the crime. The extra- judicial confession can be
accepted and can be the basis of conviction, if it passes the test
of credibility. The extra-judicial confession should inspire
confidence and the court should find out whether there are
other cogent circumstances on record to support it. [ Ref. Sk.
Yusuf v. State of W.B . [(2011) 11 SCC 754: (2011) 3 SCC (Cri) 620]
(SCC pp. 762-63, para 28) and Pancho v. State of Haryana [(2011)
10 SCC 165: (2012) 1 SCC (Cri) 223].]
24. As regards to the DNA profiling result, a contention
was raised before the learned Special Judge and in paragraph 34
of the judgment, the learned Special Judge considered the same
and dispelled the same as extracted hereunder:
“34. Next, this court may examine as to whether the
defense has been successful in rebutting presumption. In this
connection, learned defense counsel has raised two
contentions. The first contention is that the Pw1 became
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pregnant after she had attained the age of 18. The second
contention is that she became pregnant from somebody else
and that the accused had not have any sorts of sexual contacts
with the Pw1. While discussing point- no-1, this court had
already found that the pw1 was aged below 16 as on in the last
week of December 2020. Hence, second contention needs to be
discussed deeply. To support his second contention, learned
defense counsel relies on the evidence of the Pw4, doctor who
had attended the delivery on the Pw1 and recorded statement
relating to the cause of pregnancy from the Pw1. Pw4 has in her
cross examination stated that a girl having 28 days strict cycle
of menstruation will have normally ovulation on the 14th day
since the last menstruation and the ovum will be alive from 48
hours to 72 hours normally and in some cases, the ovum will
remain alive up to six days and in case an effective sexual
intercourse took place, woman could become pregnant. She has
further added that in case an effective sexual contact took
place during safe period, the chance for a woman to become
pregnant is very remote, but, the chance cannot be completely
ruled out. She has added that in case an effective sexual contact
took place within 78 hours after ovulation, a woman may get
pregnant. She added that the safe period is considered to be the
time span from the last ovulation date to the next ovulation
date. Relaying on these facts elicited during the cross
examination of the Pw4, the following contentions were raised
by the defense counsel; according to the Pw1, her last LMP was
in the first week of December, 2020. According to her evidence,
the sexual contact took place in the last week of December
2020. In that case, even if it was conceded that there had been
sexual intercourse between the Pw1 and the accused, she would
not have got impregnated, the reason being that the live ovum
would have died in the Pw1 by that time. This court has
considered this argument very deeply and is of the view that it
cannot be accepted for the following reasons; Evidence of Pw3
doctor shows the Pw1 having disclosed to her that the
intercourse took place on a day, just before the Christmas in the
year 2020. When she says that her LMP was in the first week of
December, it may be on any day from the first day of the week
till the elapse of seven days in that week. In case she had a 30
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days menstrual cycle, she will have ovulation by the elapse of
15 days from the last date of her menses. According to the Pw4,
the ovum in all most all cases will have life span from 48 hours
to 72 hours and in some cases, it will have life span up to six
days. In case last menses took place in Pw1 on the last day of
the first week, she must have had ovulation by turn of 15th day
since then. The ovum will be alive up to 72 hours normally and
in some cases, it may remain alive up to six days. Therefore, in
case a sexual intercourse took place on any day just before the
Christmas in the year 2020, the chances for the Pw1 to become
pregnant from the accused is very much possible and probable,
according to the evidence of the Pw4. Hence, this court is of the
view that the contention of the defense counsel is liable to
rejected.”
25. Going through the reasons given by the learned
Special Judge, while rejecting the contention raised by the
accused, the same appears to be justifiable and therefore, the
said contention raised before this Court is also liable to be
rejected.
26. Now it is necessary to address the contention raised
by the learned counsel for the accused regarding impossibility of
pregnancy if the sexual intercourse occurred in the last week of
December. In this connection, the evidence of the Doctor is very
much relevant.
27. PW4, during her cross-examination, stated that a
woman with a strict 28-day menstrual cycle would typically
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ovulate on the 14th day after the last menstruation. She further
explained that the ovum usually would remain viable for 48 to 72
hours, and in some cases, up to six days. The doctor opined that
if effective sexual intercourse would occur during this time,
pregnancy might result. The doctor also testified that if
intercourse would occur during the 'safe period,' the chances of
pregnancy would be less, though not entirely impossible.
Moreover, if ineffective sexual contact would happen within 78
hours after ovulation, pregnancy could still occur. The 'safe
period' generally to be the time from the last ovulation to the
next ovulation. According to PW1, her last LMP was in the first
week of December 2020, and she testified that the sexual contact
occurred in the last week of December 2020.
28. Thus when evaluating the evidence of PW4, she did
not in any way ruled out pregnancy now found when the sexual
intercourse was during the last month of December 2020.
Therefore, this contention must fail.
29. Here, extra judicial confession alone is not the
evidence available. Even without the extra judicial confession
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evidence of PW1 and other evidence discussed, including the medical
evidence and Ext.P21 DNA report, would establish the prosecution
case beyond reasonable doubt. In such a case, the extra judicial
confession spoken by PW2 also is acceptable to corroborate the other
substantive evidence. Similar is the position with regard to the DNA
profiling. In fact the DNA result fully established that the appellant is
the biological father of the child. At the same time, in the absence of
evidence in the form of DNA profiling, also the evidence of PW1 found
to be of sterling quality is sufficient to prove the prosecution case as
the same is wholly reliable. In such contingency, the non-examination
of the author of Ext.P21 also is of no significance; a contention now
raised without objecting tendering of Ext.P21 in evidence.
30. To sum up, on re-appreciation of the evidence, this Court is
of the view that the learned Special Judge is right in finding that the
accused herein committed offences punishable under Sections
376(2)(f), 376(3) IPC and under Sections 3(a) r/w 4(2), 5(j)(ii), 5(n), 5(p)
r/w 6 of the POCSO Act. Therefore, conviction does not require any
interference.
31. Coming to the sentence, the sentence imposed by the
Special Judge is very reasonable. Accordingly, the sentence is
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also confirmed.
Hence, this appeal fails and is dismissed by confirming
the conviction and sentence imposed by the Special Court.
Since the appellant/accused is in Jail, no other orders are
required.
Registry is directed to forward a copy of this judgment to
the Special Court, for information and further steps.
Sd/-
A. BADHARUDEEN
JUDGE
Sbna/