PRASANTA KAMELA vs STATE OF ODISHA
- Court
- Odisha High Court
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Location: ORISSA HIGH COURT, CUTTACK
Date: 27-May-2026 15:45:01
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.920 of 2024
(In the matter of an appeal under Section 415(2) of the Bharatiya
Nagarik Suraksha Sanhita, 2023 (BNSS).)
Prasanta Kamela …. Appellant (s)
-versus-
State of Odisha …. Respondent (s)
:
Advocates appeared in this case through Hybrid Arrangement Mode
For Appellant(s) : Mr. Rabindra Nath Panda, Adv.
For Respondent(s) : Miss Gayatri Patra, ASC
Mr. Sushanta Ku. Samantaray, Adv.
CORAM:
DR. JUSTICE SANJEEB K PANIGRAHI
DATE OF HEARING: -06.04.2026
DATE OF JUDGMENT: -22.05.2026
Dr. Sanjeeb K Panigrahi, J.
1. This Criminal Appeal has been preferred by the appellant-accused,
Prasanta Kamela, against the judgment and order dated 22.08.2024
passed by the learned Ad-hoc Additional District and Sessions Judge
(Fast Track Special Court under the Protection of Children from Sexual
Offences Act) No. I, Cuttack in Spl. G.R. Case No. 95 of 2017, whereby
the appellant was convicted for the offences punishable under Sections
342 and 354-A of the Indian Penal Code, 1860, Section 8 of the
Protection of Children from Sexual Offences Act, 2012, and Section
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3(1)(w)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989, and sentenced to undergo rigorous imprisonment
for five years along with other sentences, all of which were directed to
run concurrently.
I. F ACTUAL M ATRIX :
2.
The facts of the prosecution case are that on 21.10.2016, the father of the
victim girl lodged an FIR stating that his daughter, the victim, aged
about 12 years, was a student of Class-VII at Dadhichi Public School
and used to travel to school in the school vehicle, a Tata Magic, driven
by the appellant.
3.
The appellant, instead of dropping the victim at her home, allegedly
drove the vehicle near Swapneswar Temple, where he is stated to have
wrongfully confined her inside the vehicle by closing its door and
pulling down its screen. It is alleged that he touched her cheeks, breasts
and private parts with sexual intent and threatened to kill her and her
family members if she disclosed the incident to anybody.
4.
An FIR was lodged before Balianta Police Station, which initially
registered the same and subsequently transferred it to Olatpur Police
Station.
5. Accordingly, Olatpur P.S. registered Olatpur P.S. Case No. 89 of 2016
for commission of offences under Sections 376(2)(f)(i) and 506 of the
IPC read with Section 6 of the POCSO Act and Sections 3(1)(r)(s) and
3(2)(v) of the SC & ST (PoA) Act.
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6. Upon completion of investigation, charge-sheet was submitted under
Sections 342, 354-A and 506 of the IPC read with Section 8 of the
POCSO Act and Section 3(1)(w)(i) of the SC & ST (PoA) Act, giving rise
to the present case.
7.
In order to prove its case, the prosecution examined as many as nine
witnesses.
8. After scrutinizing the evidence and going through the records, the
learned court below was pleased to convict the appellant and sentence
him to undergo rigorous imprisonment for five years and to pay a fine
of Rs.10,000/-, in default, to undergo rigorous imprisonment for six
months for commission of the offence under Section 8 of the POCSO
Act, 2012.
9. The learned court further sentenced the appellant to undergo simple
imprisonment for four months and to pay a fine of Rs.500/-, in default,
to undergo simple imprisonment for fifteen days for commission of the
offence under Section 342 of the IPC.
10.
The appellant was also sentenced to undergo rigorous imprisonment
for two years and to pay a fine of Rs.2,000/-, in default, to undergo
rigorous imprisonment for four months for commission of the offence
under Section 3(1)(w)(i) of the SC & ST (PoA) Act. All the substantive
sentences were directed to run concurrently.
II. S UBMISSIONS OF THE A PPELLANT :
11.
Learned counsel for the appellant made the following submissions in
support of his contentions:
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i. The appellant submitted that the judgment of conviction passed by the
learned court below is wrong, illegal and arbitrary in nature and,
therefore, the same is liable to be set aside.
ii. The appellant contended that the judgment of conviction passed by the
learned court below is against the settled principles of law and
statutory provisions and has been passed whimsically and arbitrarily
and, therefore, the same is liable to be set aside.
iii. The appellant submitted that the judgment of conviction passed by the
learned court below is contrary to the law laid down by the High Court
as well as the Supreme Court of India and that the learned court below,
being oblivious to the principles of natural justice, has erroneously
passed the impugned judgment of conviction.
iv. It was submitted that the alleged occurrence took place on 21.10.2016,
whereas the FIR was lodged after a delay of 12 days, i.e., on 03.11.2016.
It was contended that the learned court below, while passing the
judgment of conviction, failed to properly appreciate the evidence
adduced by the victim as well as her parents. Though the FIR was
lodged by P.W.2, the father of the victim, not a single word was stated
therein explaining the reason for such delay, nor was any evidence
adduced before the court during his examination explaining the same.
v. It was further submitted that although delay in lodging the FIR is not
always fatal to the prosecution case, in cases where there exists
controversy regarding the veracity of the prosecution story and the
subsequent events following the incident, the court is required to
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carefully evaluate the evidence to ascertain the truthfulness of the
allegations, particularly when the delay remains unexplained.
However, the learned court below, while passing the impugned
judgment of conviction, failed to properly consider and evaluate the
evidence relating to such delay. Hence, the impugned judgment of
conviction is liable to be set aside.
vi. The appellant submitted that the learned court below failed to take into
consideration the delay in lodging the FIR in light of the decision in
1
Harpal Singh and Another v. State of Himachal Pradesh and other
decisions. It was contended that the facts and circumstances of the
present case are distinguishable from those considered by the Supreme
Court in the aforesaid decision. In the instant case, the alleged
occurrence took place on 21.10.2016, whereas the FIR was registered on
03.11.2016, i.e., after a delay of thirteen days. It was further submitted
that it is the evidence of the informant (PW-2) as well as the mother of
the victim (PW-3) that, after the alleged incident, on 25.10.2016 at about
7:00 p.m., the appellant along with 200 others came to their house,
abused them, and assaulted them, pursuant to which PW-2 lodged an
FIR before the I.I.C., Balianta P.S. Learned counsel contended that, in
view of such evidence, it is crystal clear that the appellant has been
falsely implicated in the present case. It was also argued that the delay
in lodging the FIR has not been properly explained either in the FIR or
1
AIR 1981 SC 361
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in the statements of the witnesses, particularly as to why there was a
delay of thirteen days in lodging the same.
vii. PW-3, the mother of the victim, adduced evidence that on the date of
occurrence, PW-8, the aunt of the victim, informed her over telephone
that PW-1 was going to her house due to illness by the school vehicle at
about 12 noon. She further stated that she enquired into the matter
from PW-1 at about 4:30 p.m., whereupon PW-1 narrated the entire
episode before her. If at all the said version is true, it is not explained as
to what prevented PW-2, the father of the victim, from confronting the
Principal, PW-6, regarding the said fact when the Principal called him
and questioned PW-1 in his presence about the occurrence. Rather, the
evidence of PW-6 is that he had called PW-2 and informed him about
the incident of the previous day. Thereafter, he called PW-1 to his office
and, upon being questioned regarding the incident of the previous day,
PW-1 did not disclose anything, for which PW-6 directed the Vice-
Principal and other teachers to counsel the victim. The said evidence of
PW-6, before whom there was confrontation on the very next day, i.e.,
on 22.10.2016, has not been taken into consideration while presuming
the evidence of the victim to be cogent, reliable, and trustworthy. The
facts and circumstances of the present case are completely different
from the decisions reported by the Supreme Court as well as this Court.
viii. Reliance was further placed upon the decision in
State of Punjab v.
2
Gurmit Singh , wherein it was held that the testimony of the victim in
2
(1996) 2 SCC 384
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sexual assault cases is vital unless there are compelling reasons
necessitating corroboration of her statement, particularly when her
testimony inspires confidence and is found to be reliable. However, it
was contended that, in the instant case, immediately after the alleged
incident, PW-1 did not disclose the occurrence and, even when
questioned by PW-6, stated that no such incident had taken place. It
was further submitted that PW-1 disclosed the incident only after
thirteen days from the date of occurrence, though PW-2 deposed that
PW-1 had narrated the incident on the very next day. It was argued
that there is no explanation as to what prevented PW-2 from lodging
the FIR immediately and why there was a delay of thirteen days.
According to the appellant, the facts remain that there was a free fight
on 25.10.2016 and, in order to take revenge and put the appellant
behind bars, the present case has been falsely foisted against him. It
was submitted that this aspect has not been taken into consideration by
the learned court below while passing the judgment of conviction.
ix.
It was further contended that the learned court below held the
appellant guilty for commission of the offence under Section 3(1)(w)(i)
of the SC & ST (PoA) Act. However, during the course of trial, neither
the Tahasildar nor the R.I., who had submitted the report regarding
caste, was examined. It was submitted that merely on the basis of the
evidence of PW-1, PW-2, and PW-3, the appellant has been convicted
for the aforesaid offence. Accordingly, it was prayed that the judgment
of conviction be set aside.
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x.
It was further contended that the learned court below took into account
a compromise deed executed on 30.10.2016, wherein the appellant is
alleged to have confessed his guilt. However, it was submitted that the
learned court below failed to consider the examination-in-chief of PW-
2, who stated that on 25.10.2016, the appellant, along with 200 persons,
came to his house, abused him, and assaulted him, pursuant to which
he lodged an FIR before the police. According to the appellant, the said
compromise deed pertained to the incident dated 25.10.2016, wherein
the appellant allegedly confessed his guilt and assured that he would
not cause any harm to PW-2. It was further argued that, if at all there
had been any confession or compromise regarding the alleged
occurrence, there was no reason for the same to be executed after a
delay of ten days from the date of the incident. On the aforesaid
grounds, it was prayed that the judgment of conviction be set aside.
xi. It was further contended that the informant categorically stated in his
examination-in-chief that he had lodged the FIR before the I.I.C.,
Balianta P.S. at about 10:30 p.m. on 03.11.2016 and was also examined
by the Investigating Officer of the said police station. The endorsement
on the FIR also reveals that it was registered by the I.I.C., Balianta P.S.
However, it is not understood as to how Olatpur P.S. conducted the
investigation and submitted the charge-sheet after examining the
witnesses under Sections 161 and 164 of the Cr.P.C. It was submitted
that the learned court below, while convicting the appellant, failed to
take into account that the FIR lodged before the I.I.C., Balianta P.S. has
been suppressed and that the investigation was carried out on the basis
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of the said FIR, which is fatal to the prosecution case and hit by Section
162 of the Cr.P.C.
xii. It was further contended that, so far as the age of the victim is
concerned, there are contradictory statements made by PW-2 and PW-
3. On the other hand, neither was the school admission register seized
nor was the Headmaster examined in order to ascertain the actual age
of PW-1.
xiii. It was further contended that DW-2 categorically stated that he was
present throughout in the office of the Principal, PW-6, when there was
confrontation between PW-1 and PW-2 regarding the alleged incident,
and that PW-1 denied the allegations. It was submitted that, despite
such evidence, the learned court below surprisingly failed to take into
account the veracity of the evidence of DW-2, particularly in a case
where the FIR was lodged after thirteen days from the date of
occurrence.
xiv. It was further contended that the learned court below convicted the
appellant solely on the basis of the evidence of PW-1, which, according
to the appellant, is neither cogent, trustworthy, nor reliable. It was,
therefore, prayed that the judgment of conviction passed by the learned
court below be set aside.
xv. It was further submitted that the contradictions in the evidence are not
trivial in nature, but go to the root of the prosecution case. According to
the appellant, the contradictions in the evidence relate to the very
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substratum of the allegations and materially affect the credibility of the
prosecution version.
xvi. It was contended that the learned court below failed to appreciate that
although a conviction in a sexual offence case can be based upon the
sole testimony of the prosecutrix, such testimony must inspire
confidence and be of sterling quality. Reliance was placed upon the
3
decision in Rai Sandeep v. State (NCT of Delhi) , wherein the Supreme
Court explained the concept of a “sterling witness” and held that the
testimony of such witness should remain consistent from the initial
stage till deposition before the Court and should not suffer from
material contradictions or inconsistencies. It was submitted that, in the
present case, the evidence of PW-1 does not satisfy the aforesaid test in
view of the material inconsistencies and contradictions appearing on
record.
xvii. It was further submitted that though Sections 29 and 30 of the POCSO
Act raise statutory presumptions in favour of the prosecution, such
presumptions can arise only after the prosecution establishes
foundational facts constituting the alleged offence. Reliance was placed
4
upon the decision in Ganesan v. State . It was contended that, in the
instant case, the prosecution failed to establish the foundational facts
through reliable evidence and, therefore, the presumptions under the
POCSO Act could not have been invoked against the appellant.
3
(2012) 8 SCC 21
4
(2020) 10 SCC 573
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xviii. It was further contended that the medical evidence in the present case
does not corroborate the prosecution version and, rather, materially
contradicts the same. PW-4, the Medical Officer who examined the
victim on 04.11.2016, found no injury on the person of the victim and
no signs or symptoms of recent sexual intercourse. It was also found
that no foreign particles or stains were present on the body of the
victim and no matting or staining was found on her pubic hair. Though
one old tear at the 6 o’clock position was noticed, the same was
specifically described as old in nature and incapable of being connected
with the alleged incident. It was submitted that despite allegations of
physical assault and insertion of finger into the private parts of the
victim, as alleged by PW-3, the complete absence of medical signs
supporting the prosecution case creates serious doubt regarding the
truthfulness of the allegations. Reliance was placed upon Nallabothu
5
Venkaiah v. State of Andhra Pradesh and Mani Ram v. State of Uttar
6
Pradesh .
xix.
It was further submitted that though the victim’s wearing apparel was
allegedly seized by the police about two days after lodging of the FIR,
the same was never produced before PW-4, the Medical Officer, nor
was it sent for forensic examination. According to the appellant, the
said apparel constituted an important piece of forensic evidence and
the failure of the Investigating Officer to produce or examine the same
creates a serious lacuna in the prosecution case.
5
(2002) 7 SCC 17.
6
(1994) Supp (2) SCC 289.
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xx. It was contended that material contradictions also exist regarding the
movements of the victim after the alleged occurrence. While PW-1
stated in her examination-in-chief that she was brought back to her
house at about 3:40 p.m., she also stated elsewhere that she returned to
the school after 4:00 p.m. It was submitted that, according to PW-6,
school classes ended at about 3:45 p.m., and PW-1 herself stated that no
teachers were present in the school when she returned. It was argued
that these inconsistencies render the prosecution story doubtful,
particularly regarding the alleged return of the victim to the school and
the subsequent disclosure of the incident.
xxi.
It was further submitted that PW-8 was the only independent witness
regarding the initial part of the alleged occurrence, namely, the victim
boarding the school vehicle. However, PW-8 was declared hostile and
stated that she had no knowledge regarding the case. It was contended
that the statement of PW-8 under Section 161 Cr.P.C. was not brought
on record and the learned court below failed to properly appreciate the
effect of the hostile evidence of PW-8 upon the prosecution case.
xxii.
It was further contended that the learned court below failed to properly
appreciate the statement of the appellant recorded under Section 313
Cr.P.C. and the defence evidence adduced during trial. The appellant
had specifically stated that the case was false and had arisen due to
previous enmity and dispute regarding seating arrangement in the
school vehicle. It was submitted that DW-1 had also supported the said
defence version. However, the learned court below failed to examine
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the defence plea in its proper perspective and summarily rejected the
same without proper analysis.
xxiii. It was further submitted that while the learned court below acquitted
the appellant of the charge under Section 506 IPC, it nevertheless relied
upon the allegations of threat forming part of the same prosecution
story while convicting the appellant under the other offences.
According to the appellant, such inconsistent appreciation of evidence
reflects non-application of judicial mind and renders the impugned
judgment unsustainable in law.
xxiv. Reliance was further placed upon the decision in Sekaran v. State of
7
Tamil Nadu , wherein the Supreme Court observed that when the
prosecution fails to prove the accusations beyond reasonable doubt, the
benefit of doubt must necessarily go to the accused. It was submitted
that, in view of the unexplained delay, material contradictions, infirm
medical evidence, and defects in investigation, the appellant is entitled
to the benefit of doubt and consequent acquittal.
III. S UBMISSIONS OF THE R ESPONDENT :
12.
Per contra, learned counsel for the respondent-State made the
following submissions in support of his contentions:
i. The respondent-State contended that the learned Trial Court had
rightly appreciated the evidence on record and arrived at the finding of
guilt against the appellant. It was submitted that the testimony of the
victim was cogent, consistent and trustworthy and stood corroborated
7
2023 INSC 1062
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by the evidence of her parents, the medical evidence regarding her age,
and the surrounding circumstances of the case.
ii. It was further contended that minor discrepancies and the delay in
lodging the FIR were neither material nor fatal to the prosecution case,
particularly in offences relating to sexual assault upon a child.
iii.
The respondent further submitted that the learned Trial Court had
rightly held that the prosecution had successfully established the
offences under Sections 342 and 354-A IPC, Section 8 of the POCSO Act
and Section 3(1)(w)(i) of the SC & ST (PoA) Act beyond reasonable
doubt. It was also contended that the statutory presumptions under
Sections 29 and 30 of the POCSO Act operated against the accused and
remained unrebutted. Accordingly, it was urged that the judgment of
conviction and order of sentence passed by the learned Trial Court did
not warrant interference by this Court.
IV. F INDINGS OF THE A D - HOC A DDITIONAL D ISTRICT AND S ESSIONS J UDGE
(F AST T RACK SPECIAL COURT UNDER POCSO A CT ) N O . I C UTTACK :
13. The learned Trial Court, upon appreciation of the oral and
documentary evidence on record, held that the victim, a Class-VII
student aged about 13 years at the time of occurrence, had consistently
and cogently deposed that on 21.10.2016, while returning from school
due to stomach pain, the accused, who was the driver of the school
vehicle, instead of taking her home, drove the vehicle near Swapneswar
Temple, confined her inside the vehicle by closing the doors and
pulling down the screen, and sexually assaulted her by touching her
cheek, breasts and private parts, besides threatening her with dire
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consequences. The evidence of the victim was found to be trustworthy
and of sterling quality, duly corroborated by the testimony of her
parents, the Principal of the school, medical evidence and other
surrounding circumstances regarding the age of the victim. The Trial
Court further held that minor discrepancies in the evidence were
natural and did not affect the core prosecution case.
14. The defence plea of false implication due to prior disputes regarding
seating arrangement in the school vehicle was disbelieved for want of
any cogent supporting evidence. The delay in lodging the FIR was also
held to have been satisfactorily explained by the prosecution on the
ground that the school authorities had initially advised the victim’s
father to suppress the matter. Relying upon settled principles
governing appreciation of evidence in sexual assault cases, the Trial
Court observed that conviction can be based on the sole testimony of
the prosecutrix if found reliable and credible.
15. Upon analysis of the evidence, the learned Trial Court concluded that
the prosecution had successfully established the offences under
Sections 342 and 354-A IPC, Section 8 of the POCSO Act, and Section
3(1)(w)(i) of the SC & ST (PoA) Act beyond reasonable doubt. The
Court further held that the statutory presumptions under Sections 29
and 30 of the POCSO Act operated against the accused and remained
unrebutted. Accordingly, the accused-Prasanta Kamela was convicted
for the aforesaid offences, though acquitted of the charge under Section
506 IPC for lack of sufficient evidence.
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16. On the question of sentence, considering the gravity of the offence, the
vulnerability of the child victim and the object of the POCSO Act, the
learned Trial Court sentenced the accused to undergo rigorous
imprisonment for five years along with fine for the offence under
Section 8 of the POCSO Act, along with separate sentences under
Sections 342 IPC and 3(1)(w)(i) of the SC & ST (PoA) Act, directing all
the substantive sentences to run concurrently. The victim was also
awarded compensation under Section 357-A Cr.P.C. read with Section
33(8) of the POCSO Act.
V. C OURT S ANALYSIS AND REASONING
’
17.
Heard learned counsel for the parties and perused the material placed
on record.
18. The present appeal arises out of the judgment of conviction passed by
the learned Ad-hoc Additional District and Sessions Judge (Fast Track
Special Court under the POCSO Act) No. I, Cuttack, whereby the
appellant has been convicted for the offences punishable under
Sections 342 and 354-A IPC, Section 8 of the POCSO Act and Section
3(1)(w)(i) of the SC & ST (PoA) Act.
19. It is well-settled that in cases involving sexual offences, particularly
offences against children, conviction can be based on the sole testimony
of the prosecutrix if the same is found reliable, cogent and trustworthy.
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8
20. In Ganesan v. State , the Supreme Court reiterated that conviction can
be based on the sole testimony of the prosecutrix when such testimony
is found trustworthy, credible and of sterling quality. It was further
observed that minor contradictions or insignificant discrepancies which
do not go to the root of the prosecution case cannot be made a ground
to discard an otherwise reliable prosecution version.
9
21. Similarly, in State of Punjab v. Gurmit Singh , the Supreme Court held
that courts must adopt a sensitive approach while appreciating the
evidence of victims of sexual assault and examine the broader
probabilities of the case instead of being swayed by minor
contradictions or insignificant discrepancies which are not fatal to the
prosecution case.
22. At the same time, it is equally well-settled that the testimony of the
prosecutrix must inspire confidence and remain consistent on material
10
particulars, as observed in Rai Sandeep v. State (NCT of Delhi). This
case also elucidated who can be said to be a “sterling witness” and
observed as under:
“22. In our considered opinion, the “sterling witness”
should be of very high quality and caliber whose version
should, therefore, be unassailable. The court considering
the version of such witness should be in a position to
accept it for its face value without any hesitation. To test
the quality of such a witness, the status of the witness
would be immaterial and what would be relevant is the
8
(2020) 10 SCC 573.
9
(1996) 2 SCC 384.
10
(2012) 8 SCC 21.
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truthfulness of the statement made by such a witness.
What would be more relevant would be the consistency of
the statement right from the starting point till the end,
namely, at the time when the witness makes the initial
statement and ultimately before the court. It should be
natural and consistent with the case of the prosecution
qua the accused. There should not be any prevarication in
the version of such a witness. The witness should be in a
position to withstand the cross-examination of any
length and howsoever strenuous it may be and under no
circumstance should give room for any doubt as to the
factum of the occurrence, the persons involved, as well as
the sequence of it. Such a version should have co-relation
with each and every one of other supporting material
such as the recoveries made, the weapons used, the
manner of offence committed, the scientific evidence and
the expert opinion. The said version should consistently
match with the version of every other witness. It can even
be stated that it should be akin to the test applied in the
case of circumstantial evidence where there should not be
any missing link in the chain of circumstances to hold the
accused guilty of the offence alleged against him. Only if
the version of such a witness qualifies the above test as
well as all other such similar tests to be applied, can it be
held that such a witness can be called as a “sterling
witness” whose version can be accepted by the court
without any corroboration and based on which the guilty
can be punished. To be more precise, the version of the
said witness on the core spectrum of the crime should
remain intact while all other attendant materials,
namely, oral, documentary and material objects should
match the said version in material particulars in order to
enable the court trying the offence to rely on the core
version to sieve the other supporting materials for
holding the offender guilty of the charge alleged.”
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23. Keeping the aforesaid principles in view, this Court has carefully
examined the evidence adduced by the prosecution as well as the
defence.
24. PW-1, the victim, categorically stated that on the date of occurrence,
while she was returning from school due to stomach pain in the school
vehicle driven by the appellant, the appellant instead took the vehicle
near Swapneswar Temple, confined her inside the vehicle by closing
the doors and pulling down the screen, and thereafter touched her
cheeks, breasts and private parts. She further stated that the appellant
threatened her with dire consequences if she disclosed the incident to
anybody.
25.
Upon careful scrutiny of the deposition of PW-1, this Court finds that
her testimony remains substantially consistent on the material aspects
of the prosecution case, namely, the identity of the appellant, the place
of occurrence, the manner in which she was restrained inside the
vehicle and the nature of the assault alleged against the appellant.
26.
The discrepancies pointed out by the defence regarding the exact
timing of the victim returning either to the school or to her house are
not of such nature as would affect the core prosecution case. Minor
inconsistencies relating to peripheral details are natural in the
testimony of a child witness and become more probable when the
witness is narrating an incident involving trauma and fear.
27.
Learned counsel for the appellant placed considerable emphasis on the
circumstance that PW-1 did not initially disclose the occurrence before
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PW-6, the Principal of the school, on the following day. However, mere
initial reluctance or hesitation on the part of a child victim to disclose
an incident of sexual assault cannot by itself render the prosecution
case doubtful. It is not uncommon for child victims to remain silent
initially due to fear, embarrassment or intimidation.
28.
The evidence of DW-2 to the effect that PW-1 denied the allegations
before the Principal is also required to be appreciated in the
background of the age of the victim and the threats alleged to have
been extended by the appellant. Such circumstance, by itself, is
insufficient to completely discredit the otherwise consistent testimony
of PW-1.
29.
Much emphasis was also laid upon the delay in lodging the FIR. It is
settled law that delay in lodging the FIR in cases involving sexual
offences cannot be viewed with the same rigidity as in ordinary
criminal cases and has to be appreciated in the light of the attending
facts and circumstances of each case.
30.
In the present case, the victim was admittedly a minor girl aged about
12–13 years at the relevant time. The evidence on record further
indicates that the appellant had threatened the victim and her family
members. PW-2 also stated regarding the incident dated 25.10.2016
when the appellant along with several persons allegedly came to his
house and intimidated him. In the aforesaid factual background, this
Court is of the view that the delay in lodging the FIR does not create
such doubt as would demolish the prosecution case.
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31. The contention raised regarding transfer of the case from Balianta P.S.
to Olatpur P.S. also does not persuade this Court to discard the
prosecution case. Merely because the FIR was initially lodged at
Balianta P.S. and investigation was subsequently conducted by Olatpur
P.S., the same would not ipso facto vitiate the investigation in the
absence of any demonstrated prejudice caused to the appellant.
32. So far as the medical evidence is concerned, PW-4, the Medical Officer,
did not notice any external injuries or signs suggestive of recent sexual
intercourse. However, the appellant has not been convicted for
penetrative sexual assault. The allegations against the appellant relate
to touching of the cheeks, breasts and private parts of the victim,
constituting sexual assault within the meaning of Section 7 of the
POCSO Act punishable under Section 8 thereof.
33. In such circumstances, absence of injuries or signs of penetrative
assault does not materially contradict the prosecution case. Medical
evidence is essentially corroborative in nature and where the ocular
testimony of the victim is found trustworthy, absence of injuries cannot
by itself be treated as fatal to the prosecution.
34. The lapse on the part of the investigating agency in not sending the
wearing apparel of the victim for forensic examination is certainly a
defect in investigation. However, it is equally well-settled that
deficiencies in investigation by themselves cannot be a ground to
discard otherwise reliable ocular evidence.
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35. The appellant further challenged the conviction under Section
3(1)(w)(i) of the SC & ST (PoA) Act on the ground that the Tahasildar
or Revenue Inspector was not examined during trial. However, the
evidence of PW-1, PW-2 and PW-3 consistently indicates that the victim
belongs to a Scheduled Caste community and the said evidence has not
been seriously challenged in cross-examination.
36. Though examination of the competent revenue authority and
production of caste documents would have further strengthened the
prosecution case, non-examination thereof is not fatal in the facts and
circumstances of the present case.
37.
The defence plea of false implication on account of prior disputes
regarding seating arrangement in the school vehicle also does not
inspire confidence. Except making such suggestions, no cogent material
has been placed on record to probabilise the defence theory.
38. The evidence adduced through DW-1 and DW-2 is insufficient to
dislodge the otherwise reliable evidence of the prosecution witnesses.
39.
Section 29 of the POCSO Act raises a statutory presumption against the
accused once the foundational facts constituting the offence are
established. In the present case, the testimony of PW-1, read along with
the surrounding circumstances and other evidence on record,
sufficiently establishes such foundational facts and consequently the
statutory presumption operates against the appellant.
40.
The appellant has failed to rebut the said presumption through cogent
and reliable evidence.
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41. Upon overall appreciation of the evidence on record, this Court is of
the considered opinion that the prosecution has been able to establish
the charges against the appellant beyond reasonable doubt. The
testimony of PW-1 inspires confidence and remains consistent on
material particulars. The delay in lodging the FIR stands sufficiently
explained and the medical evidence does not materially contradict the
prosecution version relating to non-penetrative sexual assault.
42. The learned Trial Court has properly appreciated the evidence
available on record and has rightly convicted the appellant for the
offences punishable under Sections 342 and 354-A IPC, Section 8 of the
POCSO Act and Section 3(1)(w)(i) of the SC & ST (PoA) Act.
VI. CONCLUSION:
43. Accordingly, finding no merit in the present Criminal Appeal, the same
stands dismissed . Consequently, the judgment of conviction and order
of sentence dated 22.08.2024 passed by the learned Ad-hoc Additional
District and Sessions Judge (Fast Track Special Court under the POCSO
Act) No. I, Cuttack in Spl. G.R. Case No.95 of 2017 are hereby affirmed.
44.
Interim order, if any, passed earlier stands vacated.
(Dr. Sanjeeb K Panigrahi)
Judge
Orissa High Court, Cuttack,
nd
Dated the 22 May, 2026 /
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