IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE CRA (DB) 196 of 2025 Arun Das Vs. The State of West Bengal Before: The Hon’ble Justice Arijit Banerjee & The Hon’ble Justice Apurba Sinha Ray For the appellant : Mr. Kaushik Saha, Adv. Ms. Barna Samanta, Adv. For the State : Mr. Krishnendu Bhattacharyya, Ld. A.P.P. Ms. Tanusree Kar, Adv. CAV on : 08.09.2026 Judgment on : 15.09.2026 Apurba Sinha Ray, J. :- 1. The judgment and order of conviction dated 18.03.2025 and 19.03.2025 passed by learned Judge Special (POCSO) Court, Barasat in Sessions Trial No. 10 (03) of 2017 arising out Special Case no. 20 of 2017 convicting the appellant under Section 6 of the POCSO Act, is under challenge on the grounds, inter alia, that the learned Trial Judge did not consider the evidence on record in its proper perspective. There are glaring inconsistencies and contradictions in the victim’s testimony. It is further argued that the victim's statements were recorded at different stages of investigation and trial. Her oral evidence before the learned Trial Court consists of significant and material contradiction with her statements as recorded under Section 164 Cr.P.C. These inconsistencies pertain to crucial aspects such as the place of occurrence, the time of the incident, the person who instructed her to go with the accused and the sequence of events. Learned Counsel has further pointed out that despite admitting her inability to read a watch during preliminary questioning by the learned Magistrate and Trial Court, the victim specifically stated that the incident occurred at 7 p.m. There are contradictions regarding wherefrom she was taken to the place of occurrence by the convict and further there are contradictions regarding the narration of the incident. There was an unexplained and contradictory delay in lodging the FIR. The evidence of other witnesses revealed that there was an ulterior motive in lodging the complaint since there was prior animosity between the concerned persons. When witnesses have a clear motive to depose falsely, their testimony must be viewed with extreme caution and the same cannot be relied upon without strong independent corroborative evidence. The learned Trial Judge has relied upon hearsay evidence which is not admissible under Indian Evidence Act, 1972. The examination of the accused under Section 313 of Cr.P.C. was not conducted properly and not in tune with the guidelines framed by the Hon’ble Apex Court. These procedural irregularities deprived the accused of a fair opportunity to explain incriminating circumstances appearing against him in the evidence and thereby vitiating the trial. 2. It was also argued on behalf of the appellant that the medical report of the appellant and certain police records contain serious irregularities and there are indications of manipulation undermining the integrity of the investigation and the prosecution case. The prosecution has failed to examine crucial witnesses like “Thamma” and “Panchayat Kaku”. There are contradictions in the statement of parents of the victim. 3. The learned Counsel has relied upon a judgment reported in Krishan Kumar Malik v. State of Haryana reported in (2011) 7 SCC 130 in support of his contention. In this regard, he has referred to Paragraph 31 of the judgment which is quoted hereinbelow:- “31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the appellant guilty of the said offences.” 4. The learned counsel has further relied upon the judgment in Rai Sandeep alias Deepu v. State (NCT of Delhi) reported in (2012) 8 SCC 21. Paragraph 22 which was referred to by the learned counsel is quoted hereinbelow:- “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 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.” 5. The learned Additional Public Prosecutor, Mr. Bhattacharyya has submitted that if the victim’s evidence inspires confidence no other evidence is required to prove the case of the prosecution. Learned counsel has pointed out that there are several reasons when the hymen of a victim remain intact even after sexual assault. According to him, the medical examination found that the complainant’s hymen was mostly intact with a few abrasions. The hymen differs from person to person and that just because the hymen was not torn does not establish that there was no penetration. The VG was examined after 3 days from the date of sexual assault. She was very young. The healing process in the vaginal area took place very quickly. The hymen could remain intact although there was penetration. During penetration the victim could experience what she referred to as thickening of the hymen itself, that the hymen can stretch with certain activities and if the VG is sweet-talked there would be less damage during penetration. 6. He has further argued that the victim was medically examined after 3 days from the date of the sexual assault and her vagina as well as her wearing apparels were washed before taking her to the doctor. Therefore, there are reasons for not having anything on the wearing apparels of the victim. Mr. Bhattacharyya has further argued that the inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same in such cases amounts to adding insult to injury. 7. He has argued that victim was aged only 9 years and she had no reason to implicate the appellant who is a resident of her locality. Mr. Bhattacharyya has relied upon the following judgments:- i) State of Himachal Pradesh vs. Manga Singh reported in AIR ONLINE 2018 SC 1019 para- 16 to 21 ii) Raju @ Umakant Vs. State of Madhya Pradesh reported in 2025 INSC 615, Para 17 and 18 iii) Bharwada Bhoginbhai Hirjibhai vs. State AIR 1983 SC 753, para 5 and 9 Court’s view:- 8. Needless to mention, it has now become settled law that if the deposition of a victim of sexual assault inspires confidence, no corroboration is required. Only when there are certain inconsistencies or anomalies in the evidence of such a victim, the Court can seek further corroboration. Therefore, let us see whether the deposition of the victim girl inspires confidence or not. The deposition of PW 1 is quoted hereinbelow:- “Q. What is your name? Ans. My name is Lakshmi Biswas. Q. What is your age? Ans. I am 10 years old. Q. In what class are you read in? Ans. I am student of Class V in Prithiba Radharani Girls' High School Q. Can you say the English Calendar months or year? Ans. No Q. Can you read the watch? Ans. No (It appears that the child witness is aged 10 years, considering her age and mental maturity she is not administered oath). Page 8 of 18 Arun jethu misbehaved with me about 3/4 months ago at about 7.00 in the evening. In a field behind my house. Arun jethu opened and his pant and put his nunku into my nunku. I suffered pain and redness in my nunki. Arun jethu left me near my house and went away. From my house I went to the house of one woman whom I called thamma ( grand mother) by village courtesy. I then narrated the occurrence to my parents, police, doctor and court. I was examined by doctor. This is my signature put before doctor (marked Exbt. 1/1) These are my signatures put before Magistrate (marked Exbt. 2/1 to 2/3). Arun jethu is present in court room.” 9. Now, if we peruse the FIR and the previous statement of the victim recorded under Section 164 Cr.P.C. we shall find that there are several contradictions in the stand of the victim. In the statement under Section 164 Cr.P.C. which was recorded on 17.2.2017, that is, 5 days after the alleged incident, she stated before the learned Judicial Magistrate that on Sunday her mother went elsewhere. The victim went to her aunt’s house which was nearby. She was watching TV and her paternal aunt was making rotis. The appellant asked the victim to tie a goat. Then as soon as she came out the appellant caught hold of her hand and pulled her to Lambubagan which was behind their house. The victim tried to flee away but in vain. She was forcibly made to lay on the ground and appellant opened the chain of his trouser and thereafter he also pulled her trouser and inserted his private parts into her private parts. He tried to shout but in vain since he shut her mouth by hand. She failed to do anything due to fear. Thereafter, the appellant fled away. 10. The FIR was lodged by the mother of the victim. The contents of the FIR are as follows:- “To The Inspector-in-Charge, Habra Police Station, District: North 24 Parganas. Sir, I most respectfully submit that I am Kanchan Biswas, aged about 48 years, wife of Shri Harish Chandra Biswas, resident of Village Haider Belia, P.O. Prithiba, P.S. Habra, District North 24 Parganas. I hereby inform you that on 12.02.2017 (Sunday), I had left my daughter, Laxmi Biswas, aged about 9+ years, at the house of my sister-in-law, Montusi Halder, wife of Jyotish Halder, resident of Village Haider Belia, Dhopa Para, P.O. Prithiba, P.S. Habra, District North 24 Parganas, and thereafter I went to my maternal aunt's mother-in-law's house at Ashoknagar. On the same day, i.e. 12.02.2017, at about 7:00 p.m., one resident of our locality, namely Arun Das, son of Haren Das, resident of Village Haider Belia, Dhopa Para, P.S. Prithiba, Habra, District North 24 Parganas, came to the house of my sister-in-law and took my daughter Laxmi Biswas away on the pretext of tying a goat. He thereafter took her to a place called “Lambu Bagan”, situated near our house, and then raped her. Thereafter, today i.e. on the morning of 15.02.2017, my daughter was feeling unwell. When I asked her about the reason for her condition, she then disclosed the entire incident to me. I, therefore, humbly request you to kindly take necessary legal action against the accused person in accordance with law. The aforementioned letter was written as per my statement. I heard the same and signed in it. Yours faithfully, Sd/- Kanchan Biswas (in Bengali) Date- 15-02-2017” 11. A comparative study of the victim’s statement under Section 164 Cr.P.C. and her examination-in-chief before the learned trial judge shows that there was material contradiction so far as the place wherefrom she was taken to the place of occurrence. In her cross- examination she has stated that on the day of occurrence she was studying in her house and her mother was working in the kitchen. Her elder sister had gone to the house of maternal aunt. 12. From the above it appears that although the victim was very much specific in her statement under Section 164 Cr.P.C. regarding the incident which culminated in the allegation of rape, she was not so much specific when she was produced before the learned Trial Court during her examination. 13. The medical evidence shows that apart from some abrasion on vulva no other injuries were found on her private parts. It appears that the medical evidence is inconclusive. First of all, there was a statement that the hymen was intact and there was no other injury on the private parts of the victim. The said medical evidence records that there was abrasion on vulva but the probable age of injury was not noted in the medical evidence. If a girl was raped after being laid on the ground of an orchard, she would certainly sustain injuries on her back, pelvic region etc. There was no such record in the medical evidence that there was any mark of injury or scratch on the back of the victim. As the victim’s evidence does not inspire confidence, the Court should look into other corroborative evidence. Needless to mention, the best piece of evidence in this regard is the medical report which appears to be an inconclusive one. PW 1, the victim has failed to withstand the cross-examination when she deposed in the cross- examination that on the date of occurrence she was studying in her house and her mother was working in the kitchen. The incident occurred on 12.02.2017 and this deposition was recorded on the 14th day of June, 2017 which is about 4 months after the alleged incident occurred. This is not a case of a long protraction of the trial and, therefore, it is not understandable as to why there was so much grave deviation/variation between the statement of the victim recorded under Section 164 Cr.P.C. and her deposition before the learned Trial Court. The Doctor was not produced and a medical report was exhibited on consent. The aunt whose house the victim was alleged to have visited on the date of occurrence as per FIR and also as per statement under Section 164 Cr.P.C., was examined as PW 5 who stated before the Court that the complainant (the mother of the victim) went to her aunt’s house by keeping the victim in PW 5’s house. On the same day at about 7p.m. at night the appellant came to her house and on the pretext of tying a goat the appellant took the victim with him from her house. The victim or the appellant did not return back for about 1 hour. PW 5 went to the house of the victim and she saw that the victim became terrified due to fear. She returned back home. After 3 days the victim became ill and thereafter she disclosed that the appellant committed rape upon her in the garden of Lambubagan. In her cross-examination, she has stated that it is a fact that the wife of the appellant filed a case against her prior to the present case and incident. The victim has also admitted in her cross-examination that they were not visiting terms with the appellant’s family. 14. It is not acceptable that when there was animosity between two families, the victim be allowed to go with the adversary of PW 5 or of the complainant who is a near relative of PW 5 As the defence has been able to show that there was previous enmity between PW 5 who is a close relative of the complainant and such animosity went up to Court of law, the possibility of false implication cannot be ruled out. It is also astonishing that although PW 5 found the victim terrified on the day of occurrence, she did not try to ascertain the cause of fear which made the victim terrified. In this regard, it is pertinent to mention that in her cross-examination the victim stated that on the day of occurrence she told the occurrence to her mother, that is, the de-facto complainant. Her mother did not inform the Police or the Panchayat on that day. It is also stated by the victim that on the next day one “Panchayat Kaku” visited their house and he called the Police on the next day of occurrence. Therefore, the above clear statement of PW 1 shows that she informed the matter to her mother being PW 2 on the day of occurrence itself. It appears from the FIR that the said PW 2 being the de-facto complainant had stated that the date of occurrence was on 12.02.2017 at 7 p.m. but she came to know from her daughter on 15.02.2017 that she was raped by the appellant on 12.02.2017. This is a serious infirmity in the prosecution case. It was correctly pointed out by learned counsel for the defence before the learned Trial Judge that the said “Panchayat Kaku” was not examined since from the deposition of the victim it is seen that the said “Panchayat Kaku” called the Police. The aspect of possibility of false implication was not properly considered by the learned Trial Judge. 15. Moreover, the medical evidence does not support the prosecution case. It is true that hymen of female bodies are different from woman to woman but if a victim was raped after pinning her to the ground, there must be some injuries on the back of the victim. The prosecution has utterly failed to throw any light on this aspect. It appears that the learned Trial Judge did not consider this aspect of the prosecution case and medical condition of the victim. In our view, it is the duty of the prosecution to establish the foundational facts first, and if the prosecution is able to prove such facts in accordance with law, the defence will be asked to adduce evidence to show that he is not responsible for commission of the offence. In this case as the foundational facts are not proved beyond doubt, presumption under Section 29 of the POCSO Act will not come into play automatically. 16. In State of Himachal Pradesh (supra), the Hon’ble Apex Court of India was pleased to hold that even if the hymen of the victim is not ruptured, the prosecution case cannot be discarded if there are cogent and reliable testimony of the prosecutrix to the effect that the accused committed rape on her. 17. After going through the above judgment, it appears that this judgment has also upheld the basic principle, that is, the conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence. 18. In Raju @ Umakant (supra), the Hon’ble Apex Court has reiterated the principle that when the evidence of the prosecutrix inspires confidence and nothing has been elicited in cross-examination to dilute her testimony, such evidence could be acted upon without corroboration. 19. In Bharwada Bhoginbhai Hirjibhai (supra), it has been laid down that on the ground of discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, the prosecution case cannot be discarded. It is also laid down that corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. 20. All the above judgments have accepted one basic principle, i.e. if the deposition of the victim is reliable, free from blemishes, the same can be acted upon without any corroboration. So far as the present case is concerned, it appears that the deposition of the victim is quite different from the basic allegation made in the FIR as well as in the statement recorded under Section 164 Cr.P.C. Be it mentioned even at the cost of repetition that although the deposition took place within 4 months of the alleged incident it is not understood as to why there was so much deviation from her previous statement. In fact, the deposition of the victim does not inspire confidence. Thereafter, this Court tried to draw corroboration from other evidence and materials on record but it is found that the medical evidence does not support the prosecution case and the defence has been able to show that there was serious animosity between the concerned persons and such animosity is of such a nature that the parties were fighting in a Court of law. Another vital aspect which is not mentioned by any side is that when the victim was examined before the learned Trial Court, the learned Trial Court had put certain preliminary questions to ascertain the maturity or competence of the minor victim as a witness. But most astonishingly the learned Trial Judge who recorded the examination and cross- examination of the victim did not certify that from the answers of the victim, the learned Trial Judge had come to the conclusion that the minor victim was competent to depose as a witness before the said Court. Without recording such a certificate the learned Trial Judge proceeded to record her examination-in-chief which has already been discussed above. 21. The appellant has relied upon two judgments i.e. Krishan Kumar Malik (supra) and Rai Sandeep alias Deepu (supra). 22. In Krishan Kumar Malik (supra), the Hon’ble Apex Court has been pleased to observe that the solitary evidence of the prosecutrix is sufficient to convict an accused subject to the condition that the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. 23. In Rai Sandeep alias Deepu (supra), the Hon’ble Apex Court reiterated the above principle once again. The said judgment has also noted down the meaning of “sterling witness”. According to Hon’ble Apex Court the “sterling witness” should be of a very high quality and calibre whose version should be unassailable. Page 17 of 18 24. As this Bench has already noted that the victim’s evidence is full of anomalies and blemishes, it suffers from serious untrustworthiness and, the other evidence on record have also failed to clarify those anomalies and therefore, the prosecution evidence cannot be relied upon. 25. As there is a long-standing dispute and animosity between the concerned persons, and further as the foundational facts have not been proved beyond doubt, we are inclined to give benefit of doubt to the appellant. 26. Accordingly, the judgment and order of conviction dated 18.03.2025 and 19.03.2025 passed by learned Judge Special (POCSO) Court, Barasat in Sessions Trial No. 10 (03) of 2017 arising out Special Case no. 20 of 2017 convicting the appellant under Section 6 of the POCSO Act is hereby set aside. 27. Accordingly, CRA (DB) 196 of 2025 is allowed and all connected applications, if any, stand disposed of. 28. The appellant is acquitted from all charges labelled against him. He be released at once. 29. The Trial Court Records shall be sent back to the learned Trial Court immediately, along with a copy of this judgment. Page 18 of 18 30. All parties shall act in terms of server copy of the order downloaded from the official website of this Court. 31. Urgent photostat certified copies of this judgment, if applied for, be supplied to the parties on compliance of all necessary formalities. I Agree. (ARIJIT BANERJEE, J.) (APURBA SINHA RAY, J.)