Chattisgarh High Court
David Xaxa vs State Of Chhattisgarh on 3 March, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2026:CGHC:11069-DB
Digitally signed
by SAGRIKA
NAFR
SAGRIKA AGRAWAL
AGRAWAL Date:
2026.03.10
14:49:18 +0530
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1525 of 2025
David Xaxa S/o Late Khristofhar Xaxa Aged About 23 Years R/o
Village- Bamhani Bheditoli, Police Station- Duldula, Distt- Jashpur C.G.
--- Appellant (s)
versus
State Of Chhattisgarh Through Police Station- Duldula, Distt- Jashpur
C.G.
--- Respondent(s)
For Appellant (s) : Ms. Deepanjali Tiwari, Advocate For Respondent(s) : Mr. Sourabh Sahu, Panel Lawyer CRA No. 1036 of 2025 Sudip Minj S/o Theodar Minj Aged About 25 Years R/o Village- Raidih, P.S. Duldula, District- Jashpur (C.G.)
---appellant(s) Versus State Of Chhattisgarh Through Police Station- Duldula, District- Jashpur (C.G.) 2
--- Respondent(s) For Appellant (s) : Mr. Amit Xalxo, Advocate For Respondent(s) : Mr. Sourabh Sahu, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 03.03.2026
1. Heard Ms. Deepanjali Tiwari, learned counsel for the appellant in CRA No. 1525/2025 and Mr. Amit Xalxo, learned counsel for the appellant in CRA No. 1036/2025. Also heard Mr. Sourabh Sahu, learned Panel Lawyer, appearing for the Respondent/ State.
2. Both these appeals arise out of the same sessions trial and common judgment; therefore, they are being heard and decided together.
3. The CRA No. 1525/2025 is filed by the appellant David Xaxa against the impugned judgment of conviction and sentence dated 01.04.2025 passed by learned Special Judge (POCSO), Kunkuri, Dist- Jashpur in Special Sessions Case No. 18/2022, whereby the appellant David Xaxa has been convicted and sentenced in the following manner:-
S. No. Conviction Sentence
1. Under Section 363 of IPC R.I. for 5 years and fine of Rs.
1000/-
2. Under Section 366 of IPC R.I. for 5 years and fine of Rs.
1000/-
3. Under Section 4 of POCSO R.I. for 20 years and a fine of Rs. 3 Act, 2012. 1000/-
in default of payment of fine to further undergo R.I. for a period of 6 month for each default.
All the sentences of imprisonment awarded will run concurrently.
4. The CRA No. 1036/2025 is filed by the appellant Sudip Minj, against the impugned judgment of conviction and sentence dated 01.04.2025 passed by learned Special Judge (POCSO), Kunkuri, Dist- Jashpur in Special Sessions Case No. 18/2022, whereby the appellant Sudip Minj has been convicted and sentenced in the following manner:-
S. No. Conviction Sentence 1. Under Section 354 of IPC 2. Under Section 354-A of IPC 3. (Alternate Punishment R.I. for 3 years and a fine of Rs. awarded as per the 1000/- in default of payment of fine
provision of POCSO Act) to further undergo R.I. for a period under Section 8 of POCSO of 3 month separately. Act, 2012.
The period for which the appellant/ accused remained in custody during the investigation and trail of the case, shall be set off against the substantive sentences awarded to him.
5. The brief facts of the case are that on 29.04.2022, the victim (PW/1) lodged a written complaint (Ex-P/1) to the Police with the 4 allegation that she had gone to her maternal grandmother's house in a marriage function. At about 6-7 pm, when she was standing in front of her maternal grandmother's house, the appellant David, who was her neighbour, dragged her towards the gaushala and committed rape upon her. Thereafter, his cousin brother Sudip came there and tried to outrage her modesty. After the incident, she came back to her house and informed her mother and maternal aunt. It has also been reported that David is a constable at the Chhattisgarh Armed Force, and he came there on leave. Based on her written complaint, FIR (Ex.P/2) was registered against the appellants for the offence under Sections 363, 376, 354 and 34 of the IPC and Sections 6 and 8 of the Protection of Children from Sexual Offences Act, 2012 (in short "POCSO Act"). The victim was sent for her medical examination to the Community Health Centre, Duldula, where she was medically examined by (PW/6) Dr. Shobha Minj, who gave her report (Ex. P/14). While medically examining the victim, the doctor noticed three scratches on the back of the chest. On internal examination, an abrasion was found on her private part; however, no active bleeding was seen. Two slides of her vaginal swab were prepared, sealed and handed over to the Police for its chemical examination. However, she opined that the opinion will be given after the FSL report, and a query report was also requested. The doctor (PW/6) gave her the query report (Ex-P/16) and opined that, according to the FSL report, human 5 sperm was present, which shows that she was subjected to sexual intercourse. Spot map (Ex-P/3) was prepared by the Police, and (Ex-P/8) was prepared by the Patwari. With respect to the age and date of birth of the victim, the Police have seized the Class-6 mark sheet of the victim vide Seizure memo (Ex.-P/7) and school register (Ex-P/11) vide seizure memo (Ex-P/10). After retaining its attested true copy, the original school register was returned to the school. According to the school register, the date of birth of the victim is 15.08.2008. Statement under Section 164 of Cr.P.C. of the victim was recorded as (Ex-P/5) on 04.05.2022. The appellants were arrested on 30.04.2022, and the appellant David also sent for his medical examination to the Community Health Centre, Duldula, where he was medically examined by (PW/8) Dr. Nitin Anant Sonwani, who gave his report (Ex-P/32) and found that the appellant is able to do or to commit sexual activities or intercourse. The appellant Sudip was also sent for his medical examination to the same doctor who gave his report (Ex- P/33) and found him able to do or commit sexual activities or intercourse. The clothes of the victim, her vaginal slides and the underwear of the appellant David were sent for its chemical examination to Regional FSL, Ambikapur, from where report (Ex- P/17) was received and according to the FSL report, on the underwear of the victim, her vaginal slides and underwear of the appellant David, semen and sperms were found. Statement of the witnesses under Section 161 of Cr.P.C. was recorded, and after 6 completion of the usual investigation, charge-sheet was filed before the learned trial Court for the offence under Sections 363, 376, 354, 34, 366-A, 376-D of IPC, and Sections 6 and 8 of the POCSO Act have been filed.
6. The learned trial Court has framed the charge against the appellant David Xaxa for the offence under Section 363, 366, 376 (3) of IPC and Section 3/4(2) of POCSO Act and against the appellant Sudip, the charge under Section 354, 354-A of IPC and Section 7/8 of POCSO Act has been framed. The accused persons denied the charge and claimed trial.
7. To prove the charge against the appellants, the prosecution has examined as many as 9 witnesses. Statement of the accused persons under Section 313 of Cr.P.C. has also been recorded in which they denied the allegation levelled against them plead innocence, and have submitted that they have been falsely implicated in the offence.
8. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellants and sentenced them as mentioned in the earlier part of this judgment. Hence, this appeal.
9. Learned counsel appearing for the appellant, David, would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions or contradictions in the evidence of prosecution witnesses, which cannot be made the basis to convict him for the alleged offence. There is no 7 admissible evidence to hold that the victim was a minor on the date of the incident, except the school register. There is no other evidence led by the prosecution to prove the age of the victim, and the school register has not been proved in accordance with the law. The manner in which the alleged offence is said to have been committed is totally improbable, as the allegation is that while the victim is standing outside of her house, the appellant, David, came there, dragged her a certain distance and committed rape upon her, which is practically impossible in such a busy time in the locality. The injuries found on her body could be self- inflicted injuries, only to make the allegation more grave. There is no sufficient evidence on record that she raised an alarm at the time of the alleged commission of the offence, which has been heard by the other witnesses of the vicinity. Her evidence is full of exaggeration and contradictions, and she cannot be relied upon for her allegation. Therefore, there is sufficient material to disbelieve the prosecution's case, and the appellant David Xaxa may be acquitted of the alleged offence.
10. Learned counsel appearing for the appellant, Sudip Minj, vehemently submitted that there is no allegation against the appellant, Sudip Minj, that he committed the sexual intercourse with the victim. There is only an allegation that when the other appellant, David, committed rape upon her, the present appellant came there and outraged the modesty of the victim. Had the victim actually suffered the offence of rape by the accused David, 8 she would immediately rush to her own house or to any other house for her rescue, but it is alleged that after some time of the incident of rape, the present appellant had gone there and outraged the modesty of the victim, which is practically impossible. He has been implicated in the offence only for the reason that he is the cousin brother of the accused Devid Xaxa. She could have raised an alarm also at the time of the alleged incident, but she did nothing; therefore, no offence is established by the evidence of the victim and other witnesses against the present appellant, Sudip Minj, and he is entitled to his acquittal.
11. On the other hand, learned counsel appearing for the State opposes and would submit that the prosecution has proved its case beyond reasonable doubt, but for a minor omission or contradictions, the evidence of the prosecution witnesses is fully reliable and corroborated with the medical evidence as well as the scientific evidence of the FSL report. The evidence of the victim is not required to be corroborated by any other evidence, yet in the present case, her evidence is corroborated by the other evidence. But for minor omissions or contradictions in the evidence of the victim, nothing is there to discredit her evidence. The FIR has been lodged without any delay, and the named report of the alleged act of the accused persons has been mentioned in the FIR. Injuries have been found on the body of the victim, and she suffered the alleged offence, which has been proved by medical evidence and supported by the FSL report. 9 Therefore, there is sufficient and overwhelming evidence against the accused persons to convict them for the offence in question. He would further submit that the age of the victim has been proved by the school record (Ex-P/11) as well as the evidence of the mother of the victim (PW/2), who deposed the date of birth of the victim, therefore, it was also proved by the prosecution that on the date of incident, the victim was a minor and about 13 years 8 months of age, therefore, there is no merit in the appeal filed by the respective appellants and the same are liable to be dismissed.
12. We have heard learned counsel for the parties and perused the record of the trial Court with utmost circumspection.
13. The first and foremost question that arises for consideration would be the age of the victim, as to whether, on the date of the incident, she was less than 18 years of age or not.
14. The prosecution has mainly relied upon the school register (Ex. P/11), which has been sought to be proved through the testimony of PW/3. PW/3 is the Principal of the school where the victim had studied. He stated in his evidence that the police had seized the school register pertaining to the age and date of birth of the victim vide seizure memo (Ex. P/10). He further stated that he had brought the original register with him, from which an attested true copy (Ex. P/11C) was issued. According to the school register, the date of birth of the victim is recorded as 15.08.2008. However, during cross-examination, he admitted that he did not 10 know who had admitted the victim to the school, and the document (Ex. P/11) does not mention the basis on which the date of birth of the victim was recorded. Nevertheless, he stated that he was the Principal of the school and that the date of birth of the victim was recorded on 02.04.2016, when she was admitted to the school in Class II. He further stated that at the time of the victim's admission to the school, no one could have anticipated that her date of birth would be required after such a long period in connection with a criminal case. In paragraph 13 of his cross- examination, he denied the suggestion that the date of birth of the victim was recorded on the basis of mere assumption. He categorically stated that at the time of her admission to the school, the admission form was filled on the basis of supporting documents, namely the transfer certificate, Aadhaar card, and the birth certificate issued by the Municipal Council, Jashpur.
15. In the case of "Jarnail Singh vs. State of Haryana", (2013) 7 SCC 263, the Hon'ble Supreme Court has held that:-
"22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under :
"12. Procedure to be followed in determination of Age.?
(1) In every case concerning a child or a juvenile in conflict with law, the court or 11 the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i),
(ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or 12 juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-
rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
13
23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW- PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion."
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16. The victim (PW/1) has stated in her evidence that her date of birth is 15.08.2008 and her age is 14 years. In her cross-examination, the defence could not be able to rebut the date of her birth because she did not disclose her correct date of birth. In para 85 of her cross-examination, she denied that she has no birth certificate.
17. The mother of the victim (P.W. 2) has stated in her evidence that the date of birth of the victim is 15.08.2008 and her age is 14 years. In cross-examination, she stated that her daughter was born at Jashpur District Hospital. The victim has been admitted at nursery class at Village- Gholeng, where she studied for two years; thereafter, she was admitted at Bagghiva school. She denied that she had recorded the date of birth of her daughter by reducing her age. From her cross-examination, the defence could not extract any material to disbelieve the date of birth of the victim as she disclosed in her evidence. When the date of birth of the victim could not be rebutted in the evidence of PW/1 and PW/2, which has been corroborated by the school record (Ex-P/11) and her mark-sheet of class-6 (Article-A/1), it can safely be held that the prosecution has been able to prove the date of birth of the victim, i.e. 15.08.2008, and she was about 13 years 8 months of age at the time of the alleged incident on 29.04.2022. We concur with the finding recorded by the learned trial Court with respect to the age of the victim that on the date of the incident, she was a minor and less than 18 years of age. The learned trial Court 15 relied upon the evidence produced by the victim as well as her mother, and also in view of the judgment of the Hon'ble Supreme Court in the case of Jarnail Singh (supra), and also Rule-12 of the Juvenile Justice Protection and Care of Children Act (Rules, 2007) concluded the age of the victim is less than 18 years, in which this Court does not find any infirmity or perversity.
18. The other question that arises for consideration would be the involvement of the appellants in the alleged offence of rape and outraging the modesty of the victim, and whether the evidence available on record is sufficient to hold them guilty or not.
19. The victim (PW/1) has stated in her evidence that on the date of the incident, she had gone to her maternal grandmother's house for a marriage function. They had gone there on 19.04.2022, and after the marriage, they stayed there. On 29.04.2022, she came out of her house to search for her she-goats and at that time, both the accused persons came there from the side of the accused David's house and asked about her brother. When she answered, her brother went back. At that time, the accused David caught hold of her hand and dragged her towards the gaushala. Despite the alarm raised by her, no one came to help her. The appellant, David, committed rape upon her. Thereafter, the appellant Sudip came there, and he too tried to commit rape upon her, but she somehow saved herself and ran away from the place. She rushed to her house and informed her mother and maternal aunt about the incident. Thereafter, on the same night, 16 they had gone to Duldula Police Station and lodged a written complaint (Ex-P/1), and then FIR (Ex-P/2) was registered. In her lengthy and detailed cross-examination, the defence could not extract any material that makes her evidence doubtful. Though she admitted that there was an altercation between her maternal uncle and the appellant, David, on the issue of dancing at the marriage function. She further admitted that before the incident, the relationship between her family and the family of the accused persons was good. She denied that, due to the dispute between her maternal uncle and David, she made a false complaint against the accused David. She also denied that she had suffered any incident of rape. Though she admitted in her evidence that if she shouted from the place of the incident, it would be heard at her maternal grandmother's house, she strongly denied that she had shouted, and she has not suffered any incident. From the evidence of the victim, it is quite vivid that on the date of the incident, she was dragged by the accused David towards the gaushala, and he committed rape upon her there. Despite raising her alarm, no one came to help her. Thereafter, the accused Sudip came there, and he too tried to commit rape upon her; however, somehow she saved herself and fled away. However, the accused Sudip committed the offence of outraging her modesty, and under the evidence given by her, she could be put at the level of a witness of sterling quality, as there is no discrepancy in her evidence that affects her credibility. 17
20. In the case of "Santosh Prasad @ Santosh Kumar v. State of Bihar" 2020 (3) SCC 443, the Hon'ble Supreme Court considered who would be the witness of sterling quality. In para 5.4.2 of its judgment, it has been held that:-
"5.4.2 In the case of Rai Sandeep alias Deepu (supra), this Court had an occasion to consider who can be said to be a "sterling witness". In paragraph 22, it is observed and held as under:
"22 In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and 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 18 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."
21. In the case of "State of Himachal Pradesh v. Sanjay Kumar @ Sunny" (2017) 2 SCC 51, the Hon'ble Supreme Court held that:-
30- ................We have already discussed above the manner in which the testimony of the prosecutrix is to be examined analysed in order to find out the truth therein and to ensure that deposition of the victim is trustworthy. At the 19 same time, after taking all due precautions which are necessary, when it is found that the prosecution version is worth believing, the case is to be dealt with all sensitivity that is needed in such cases...........
31- ........ By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance (See Bhupinder Sharma v. State of H.P.5). Notwithstanding this legal position, in the instant case, we even find enough corroborative material as well, which is discussed hereinabove.20
22. The evidence of the victim is supported by the evidence of the doctor (PW/6), who medically examined her and found external and internal injuries on her body. The doctor has found abrasion on her back and also on her private part, which is clearly revealed from the MLC report (Ex-P/14). Further two slides of her vaginal swab were prepared by the doctor, sealed and handed over to the Police for its chemical examination and on its chemical examination, the semen and sperm were found present which proved by the prosecution through the FSL report (Ex-P/17) and based on the FSL report, the doctor has also gave his query report (Ex-P/16) that the victim suffered with sexual intercourse, which are duly corroborated the evidence of the victim on the date of incident, she suffered sexual intercourse by the appellant David. The allegation of outraging the modesty of the victim by the accused Sudip has also been proved from her evidence. There is no reason for their false allegation, although the defence has suggested that in the marriage function, there was some altercation between the maternal uncle of the victim and the appellant David; however, it would not be sufficient to falsely implicate the accused persons in the alleged offence.
23. The evidence of (PW/1) victim is also supported by her mother (PW/2). She stated in her evidence that on the date of the incident, her daughter had gone to search their she-goats and at about 7.15 pm, when she came back, she was crying and her clothes were full of mud and she was disturbed. When they 21 pacified her, she disclosed the incident that she was subjected to rape by the appellant David and outrage to her modesty by the accused Sudip. Thereafter, they had gone to the house of the accused David, but he denied, and thereafter, they lodged the report to the Police in the same night itself. In cross-examination, she too has remained firm that on the date of the incident, the victim informed about the incident and they lodged the report to the Police, but for minor omissions or contradictions, her evidence is also fully corroborated by the evidence of the victim.
24. (PW/9), the maternal aunt of the victim has also supported the evidence that the victim was subjected to rape by the appellant David and outrage the modesty by the appellant Sudip. She stated in her evidence that on the date of the incident, at about 7- 8 pm, the victim came back to her house and informed her that she was subjected to rape by the appellant David and outraged modesty by the appellant Sudip. When they had gone to the house of the appellant David, neither of the accused persons answered their queries. They scolded the accused persons, and her sister slapped the accused David. Thereafter, they had gone to the Police Station for lodging of the report, but for minor omissions or contradictions, her evidence is also corroborated by the evidence of the victim and her mother. Thus, from the evidence produced by the prosecution, the allegation against the accused persons has been proved by the prosecution. 22
25. In the case of "Appabhai v. State of Gujrat", 1988 Supp. SCC 241, the Hon'ble Supreme Court has held that:-
13- ......."The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses may go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are other-(Para 13) wise trustworthy."
26. Moreover, the Hon'ble Supreme Court observed in the case of "State of Punjab v. Gurmit Singh" (1996) 2 SCC 384, that:-
"21. ...The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance 23 to her testimony, short of corroboration required in the case of an accomplice he 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."
27. It is also necessary to observe here the consideration of the Hon'ble Supreme Court in the case of "Prahlad v. State of Haryana", (2015) 8 SCC 688. In para 17, it has been considered that:-
"17. It has to be borne in mind that an offence of rape is basically an assault on the human rights of a victim. It is an attack on her individuality. It creates an incurable dent in her right and free will and personal sovereignty over the physical frame. Everyone in any civilised society has to show respect for the other individual and no individual has any right to invade on physical frame of another in any manner. It is not only an offence but such an act creates a scar in the marrows of the mind of the victim. Anyone who indulges in a crime of such nature not only does he violate the penal provision of IPC but also the right of equality, right of individual identity and in the ultimate eventuality an important aspect of rule of law which is a constitutional commitment. The Constitution of India, an organic document, confers rights. It does not condescend or confer any allowance or grant. It recognises rights and the rights are strongly entrenched in the constitutional framework, its ethos and philosophy, subject to certain limitations. Dignity of every citizen flows from the fundamental precepts of the equality clause engrafted under 24 Article 14 and right to life under Article 21 of the Constitution, for they are the "fons juris" of our Constitution. The said rights are constitutionally secured.
18. Therefore, regard being had to the gravity of the offence, reduction of sentence indicating any imaginary special reason would be an anathema to the very concept of rule of law. The perpetrators of the crime must realise that when they indulge in such an offence, they really create a concavity in the dignity and bodily integrity of an individual which is recognised, assured and affirmed by the very essence of Article 21 of the Constitution."
28. Considering the overall evidence produced by the prosecution and the nature of evidence given by the victim and the manner in which the alleged incident was committed by the accused persons, the medical report as well as the FSL report clearly point towards the guilt of the accused persons with the offence in question, which has rightly been considered by the learned trial Court while convicting the accused persons in the alleged offence, in which we do not find any perversity or illegality in the judgment of conviction and sentence awarded to the appellants.
29. Accordingly, both the appeals filed by the respective appellants are hereby dismissed.
30. The appellant David Xaxa (in Cr.A. No. 1525/2025) is reported to have been in jail since 30.04.2022. He shall serve the entire sentence as awarded by the learned trial Court. 25
31. The appellant, Sudip Minj (in Cr.A. No. 1036/2025), is convicted for the offence under Section 354, 354-A of IPC and Section 8 of POCSO Act and sentenced under Section 8 of POCSO Act for R.I. for 03 years, his sentence was suspended by the learned trial Court by invoking the powers under Section 389(3) of Cr.P.C. for filing of the appeal and to obtain the order of suspension of sentence and grant of bail from the appellate court, and presently, he is on interim bail. Since the appeal filed by the appellant, Sudip Minj, is also dismissed, he shall surrender within three weeks from today, before the learned trial Court, to serve the entire sentence as awarded by the learned trial Court.
32. Registry is directed to send a copy of this judgment to the appellant David Xaxa through the concerned Superintendent of Jail where the appellant is undergoing his jail sentence, informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon'ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee.
33. The trial court record, along with a copy of this judgment, should be sent back immediately to the trial court concerned for compliance and necessary action.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Sagrika