Telangana High Court
Colonel Rishi Sharma vs The State Of Telangana on 1 May, 2025
Author: P.Sam Koshy
Bench: P.Sam Koshy, N.Tukaramji
IN THE HIGH COURT FOR THE STATE OF TELANGANA
::HYDERABAD::
***
CRIMINAL APPEAL No.946 of 2024
Between:
Colonel Rishi Sharma.
Appellant
VERSUS
The State of Telangana,
Rep. by its Public Prosecutor,
High Court of Telangana at Hyderabad.
Respondent
JUDGMENT PRONOUNCED ON: 01.05.2025
THE HONOURABLE SRI JUSTICE P.SAM KOSHY
AND
THE HONOURABLE SRI JUSTICE N.TUKARAMJI
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
_____________
P.SAM KOSHY, J
_____________
N.TUKARAMJI, J
Page 2 of 37
* THE HONOURABLE SRI JUSTICE P.SAM KOSHY
AND
THE HONOURABLE SRI JUSTICE N.TUKARAMJI
+ CRIMINAL APPEAL No.946 of 2024
% 01.05.2025
# Between:
Colonel Rishi Sharma.
Appellant
VERSUS
The State of Telangana,
Rep. by its Public Prosecutor,
High Court of Telangana at Hyderabad.
Respondent
! Counsel for Appellant :: Mr. E.Uma Maheshwar Rao
Mr. Enuganti Sudhanshu
Mr.Nikhil Chainani
Ms.Anishka Vaishnav
^Counsel for respondent :: Mr. M.Ramachandra Reddy, learned
Additional Public Prosecutor.
<GIST:
> HEAD NOTE:
? Cases referred
1) (2003) 3 SCC 175
2) (2011) 7 SCC 130
3) (2012) 7 SCC 171
4) (2008) 15 SCC 133
5) (2012) 8 SCC 21
6) (2020) 3 SCC 443
7) 2025 SCC OnLine SC 78
8) 1993 SCC (Cri) 860
9) (1984) 4 SCC 116
10) (2013) 7 SCC 192
11) (1952) 2 SCC 71
12) 1989 Supp (2) SCC 706
13) (1996) 10 SCC 193
14) (2006) 10 SCC 172
15) (2008) 3 SCC 210
16) (2010) 8 SCC 593
17) (2015) 7 SCC 178
Page 3 of 37
THE HONOURABLE SRI JUSTICE P.SAM KOSHY
AND
THE HONOURABLE SRI JUSTICE N.TUKARAMJI
CRIMINAL APPEAL No.946 of 2024
JUDGMENT:
(per the Hon’ble Sri Justice P.Sam Koshy)
Heard Mr. E.Uma Maheshwar Rao, learned counsel for the
appellant – accused and Mr. M.Ramachandra Reddy, learned Additional
Public Prosecutor for the respondent – State.
2. The instant is an appeal under Section 374(2) of Cr.P.C. filed by
the appellant challenging the judgment of conviction dated
11.09.2024, in S.C.No.132 of 2019, passed by the Spl. Sessions Judge
for Fast Tracking the Cases Relating to Atrocities Against Women-cum-
XIII Addl. District and Sessions Judge, R.R. District at L.B. Nagar.
3. Vide the impugned judgment, the Trial Court found the appellant
guilty for the offence punishable under Section 376(2)(f)(n) of Indian
Penal Code, 1860 (for short, ‘IPC‘) and sentenced him to undergo
rigorous imprisonment for life with fine of Rs.5,000/-, and in default of
payment of fine, to undergo simple imprisonment for a period of six
months. The appellant was also found guilty for the offence punishable
under Section 506 of IPC and was sentenced to undergo rigorous
imprisonment for a period of one year with fine of Rs.100/-, and in
Page 4 of 37
default of payment of fine, to undergo simple imprisonment for a
period of period of one month.
4. The case of the prosecution as per the charge-sheet is that PW.1,
the de-facto complainant, filed a complaint on 25.04.2017 at about
21:40 hours stating that she resided with her divorced mother-PW.2.
The appellant Colonel Rishi Sharma who was serving as an
administrative officer at D.R.D.O. Shameerpet was reportedly a close
friend of PW.2, the victim’s mother and had been a regular visitor to
their residence since May, 2016. The appellant is also said to have
developed a friendly relationship with the victim PW.1 and her brother
PW.12, showing particular interest in PW.1. The appellant used to take
the PW.1 out in his BMW car and Harley Davidson motorcycle by
gaining trust of PW2. In January, 2017, PW.2 went on official tour to
Kavali at Nellore as well as Tirupathi. Before PW.2 leaving for tour
asked the appellant to stay at their house to look after her children
PW.1 and PW.12 under his care, protection and guardianship. The
appellant stayed at PW.2’s house at night. During midnight the
appellant entered PW.1’s room and coerced her into sexual relation
and also repeated the same the following morning. Thereafter, the
appellant threatened PW.1 with dire consequences against revealing
these incidents to anyone. Later, the appellant promised PW.1 to
Page 5 of 37
marry her. It is said that the victim did not disclose the offence to any
person and somewhere in April, 2017 she went to her father’s house.
5. However, PW.1 informed to her father / PW.3 about missing her
monthly periods as the stomach ache and when PW.3 took her to a
nearby Medical Laboratory for medical examination it was detected
that she is carrying 12 weeks of pregnancy and the same was
conveyed to PW.2. Later, PW.1 informed about her pregnancy to the
appellant who gave two options i.e. either to keep the child and live
with him or to undergo an abortion. Further, PW.1 stated that the
appellant had showed no remorse or responsibility while continuously
expressing his love and desire for PW.1. Immediately thereafter, on
25.04.2017, PW.1 along with PW.2 and PW.3 lodged a complaint
against the appellant for multiple instances of rape. Thereafter, an FIR
was registered against the appellant and the matter was put to trial
before the Spl. Sessions Judge for Fast Tracking the Cases Relating to
Atrocities against Women-cum-XIII Addl. District and Sessions Judge,
R.R. District at L.B. Nagar, vide S.C.No.132 of 2019.
6. In all, the prosecution examined thirteen witnesses PWs.1 to 13,
marked twelve Exhibits Exs.P1 to P12 and marked four Material
Objects M.Os.1 to 4. On the other hand, the defence examined only
one witness DW.1 and marked four Exhibits Exs.D1 to D4. The Trial
Court after recording the statement of the appellant under Section 313
Page 6 of 37
of Cr.P.C. finally passed the impugned judgment of conviction which is
under challenge in the present appeal.
7. Learned counsel for the appellant primarily contended that
perusal of the impugned judgment would reveal that there is complete
absence of essential ingredient required to establish the offence under
Section 376(2)(f)(n) and Section 506 of IPC. Moreover, the inordinate
and unexplained delay in filing a complaint without justifiable reasons
casts serious doubts on the veracity of the allegations also impacting
the credibility of the prosecution’s case.
8. Learned counsel for the appellant further contended that the
conviction is based on unreliable testimony with glaring contradictions
in the evidence of prosecution witnesses where the prosecution has
failed to establish the exact date on which PW.2 has travelled on
official tour. There are also contradictions in the testimonies regarding
the locations of PW.2 for the alleged official tour. PW.1 in her
statement under Section 164 of Cr.P.C. stated that PW.2 had visited
Cheepurupally (Vizianagaram District, Andhra Pradesh) and whereas in
her deposition PW.1 stated that PW.2 had visited Tirupati, Andhra
Pradesh in January, 2017 and the same are separated by 850 KM
which severely damages the prosecution’s statement. Additionally
PW.2’s own testimony fails to corroborate any out of station travel
during the relevant period.
Page 7 of 37
9. Learned counsel for the appellant further emphasized that the
Trial Court erroneously concluded on the depositions of PW.2, PW.3
and PW.12 on corroborated version of PW.1 when in fact the case rests
solely on PW.1’s testimony which itself is inconsistent across various
statements made under Section 161 and 164 Cr.P.C.
10. Learned counsel for the appellant strongly contended that the
pregnancy of PW.1 is highly doubtful; particularly in light of the
sterilization certificate (Ex.D1) dated 02.09.2005 issued by the
Government of India which definitively proves the appellant had
undergone vasectomy operation on 30.06.2005, which shows his
inability to cause pregnancy. Also the appellant is drawing family
planning allowances. Further, the prosecution’s case also suffers from
critical evidentiary gaps as they failed to produce any crucial medical
documentation regarding PW.1’s alleged pregnancy and subsequent
abortion such as no pregnancy test reports, ultrasound scans or
medical records from any authorized medical facility under the Medical
Termination of Pregnancy Act, 1971 to substantiate their claims.
Furthermore, the Doctor who allegedly performed the abortion was
neither cited nor examined as a witness, raising serious concerns
about the veracity of the prosecution’s case. Most critically, there are
significant gaps in the chain of custody of the foetal sample – no
evidence has been produced regarding who collected the sample, what
Page 8 of 37
are the methods employed for its preservation, the duration and
conditions of storage and the identity of the person who transported it
for examination. These cumulative deficiencies in medical
documentation and procedural compliance cast serious doubts on the
prosecution’s version of events.
11. Learned counsel for the appellant further contended that
prosecution had failed to prove its case from DNA analysis report
connecting the alleged foetus of PW.1 to the appellant. Moreover, the
prosecution had failed to collect and send the product of conception
(foetus) sample if any to FSL promptly. However, the conception
(foetus) sample sent to the FSL itself was highly putrefied to perform
the DNA analysis report. This by itself would establish the appellant’s
innocence.
12. Learned counsel for the appellant lastly contended that there are
serious discrepancies in the MLC report and FSL findings. While the
MLC report documented sent only four material items to FSL (nail
clippings, pubic hair, two glass slides with dried smear, and reddish
turbid liquid), the FSL report mysteriously included a fifth item – a
brownish turbid liquid described as a highly putrefied product of
conception. The learned counsel emphasized that there is no
explanation or evidence regarding the origin of this fifth item, who
submitted it to FSL, or how it was preserved. Furthermore, if the
Page 9 of 37
pregnancy was indeed aborted by PW.6, there is no evidence or
medical report corroborating her statement. Most critically, there is no
conclusive determination whether this putrefied material was of human
origin, thus, creating a significant doubt about its evidentiary value
and the integrity of the investigation process.
13. Thus, for all the aforesaid reasons, the learned counsel for the
appellant prayed that the impugned judgment of conviction may be set
aside and the instant appeal be allowed.
14. Per contra, the learned Additional Public Prosecutor appearing for
the respondent – State, vehemently opposed the contentions regarding
the delay in filing the complaint. The learned Additional Public
Prosecutor argued that this delay was thoroughly explained and
justified by the prosecution’s evidence which established that the
appellant had specifically threatened PW.1, warning her that if she
revealed the incident to anyone, he would kill her brother. This threat
instilled genuine fear in the victim’s mind, effectively preventing her
from immediately reporting the incident. The learned Additional Public
Prosecutor emphasized that such delays are not uncommon in cases
involving threats and coercion, particularly when the threats are
directed at harming family members. This explanation for the delay is
both plausible and supported by the evidence on record,
Page 10 of 37
demonstrating that the delay was neither unexplained nor
unreasonable under the circumstances.
15. Learned Additional Public Prosecutor strongly relied on the
testimony of PW.1 throughout the proceedings emphasizing her
statement that the appellant who held a position of trust as a friend of
her mother (PW.2) committed the offence. The medical examination
confirmed PW.1 is in 10th week of pregnancy. However, the Doctor
categorically stated that “sexual assault cannot be ruled out” which
strongly corroborates the PW.1’s statement.
16. The learned Additional Public Prosecutor further contended that
the various evidences such as the medical report, FSL findings, BMW
car (MO.4) and the statement of various witnesses (PW.1 to PW.13)
provided circumstantial evidence to prove the guilt of the appellant.
However, technical aspects of DNA test proved inconclusive due to no
amplifiable DNA yield which does not diminish the strength of other
evidence, particularly the PW.1’s testimony and PW.6’s medical report
of pregnancy which collectively establish the guilt of the appellant
beyond reasonable doubt under Section 376(2)(f)(n) and Section 506
of IPC.
17. Lastly, the learned Additional Public Prosecutor contended that
why woulda victim of sexual assault falsely implicate an innocent
Page 11 of 37
person, especially considering the social context and values prevailing
in the Country. He emphasized that the victim’s testimony need not
necessarily be corroborated if it inspires confidence, and in the present
case, PW.1’s testimony was both consistent and trustworthy.
18. Having considered the submissions advanced by the counsel
appearing on either side and on perusal of the records, it would clearly
show the following material evidence available before the Trial Court:
I. The appellant has undergone the vasectomy operation and the
sterilization certificate (Ex.D1) dated 02.08.2005 issued by the
Government of India, and Vasectomy Certificate issued by the
Military Hospital, Khadakwala, Pune explains the appellant’s
physical inability that could cause pregnancy. This medical
certificate serves a strong prima facie piece of evidence to prove
appellant’s physical condition.
II. This Bench observed several critical questions regarding the
inconsistencies and gaps in the medical evidence presented by
the prosecution. Meticulous examination of PW.1’s testimony
reveals a sequence of events that demands thorough scrutiny i.e.
1. According to PW.1’s deposition, she initially discovered her
pregnancy when she missed her periods and subsequently
informed PW.2. She claims to have undergone a medical
Page 12 of 37examination confirming a 12-week pregnancy. However, this
Bench finds the following prima facie discrepancies and
lacunas:
a) Where is the documentary evidence of this initial pregnancy
test and medical examination before filing complaint?
b) Why has the prosecution failed to produce any medical
records from the local laboratory facility where this initial
confirmation of pregnancy was obtained?
c) If such a medical examination was indeed conducted, why
wasn’t the examining doctor called as a witness?
2. PW.1’s testimony further states that upon informing the
appellant about the pregnancy, he presented her with two
options: either to live with him along with the child or to
undergo abortion. This Bench finds it pertinent to question:
a) If PW.1 opted for abortion following this alleged ultimatum,
where are the medical records of this procedure?
b) Why hasn’t the prosecution produced any documentation
from the medical facility where this abortion was
supposedly performed?
Page 13 of 37
c) What explains the complete absence of mandatory
documentation required under the Medical Termination of
Pregnancy Act for such procedures?
3. Most crucially, the only medical evidence presented by the
prosecution is a single report by PW.6-Dr. A. Sujatha marked
as Ex-P3 Medical examination report regarding pregnancy test
and abortion. This raises further questions, i.e.,
a) How can the prosecution establish the timeline and
circumstances of the alleged pregnancy without
contemporary medical records?
b) Why is there such a stark absence of medical
documentation that would naturally exist in the normal
course of events as described by PW.1?
c) Why there is no ultrasound scans presented to determine
fetal age which is mandatory under the MTP Act?
d) The prosecution also failed in proper collection,
preservation and prompt analysis of the product of
conception for DNA testing; and
e) Conception (foetus) sample sent to the FSL itself was highly
putrefied making DNA analysis impossible. The question is
Page 14 of 37
who collected the conception (foetus) sample, from where,
when and whom. Secondly where was the sample kept and
under whose custody it was sent for the DNA analysis?
This Bench finds these prima facie lapse in medical evidence
which punched the hole in prosecution’s case.
19. The natural course of events as described by PW.1 would
necessarily generate a trail of medical documentation – from initial
pregnancy confirmation to the abortion procedure. The inexplicable
absence of the crucial medical records, coupled with the prosecution’s
failure to produce or explain their absence, creates serious doubts
about PW.1’s allegations. Further, this Bench observed that there is an
inconsistency in the testimonies of the witnesses, which reads thus:
a) Inconsistence in the statement of PW.1 about the date and
the location of the alleged tour of PW.2 on the day of
alleged offence.
b) Additionally, PW.2 has failed to corroborate any out of
station travel during January, 2017 despite being a
verifiable fact through PW.2’s official tour record.
c) This Bench also observed the glaring inconsistencies in
PW.1’s statements regarding her mother’s whereabouts on
Page 15 of 37the day of the incident. The victim has provided four
distinctly different versions – in her initial complaint she
claimed her mother PW.2 was away on official duty; in her
Section 161 Cr.P.C. statement, she stated PW.2 had gone
to Kavali in Nellore district; in her Section 164 Cr.P.C.
statement, she mentioned PW.2 visited Chipurupally for
personal work; and finally, in her deposition, she testified
that PW.2 had gone to Tirupathi. Such material
contradictions regarding a crucial aspect of the case – the
absence of PW.2 from the house during the alleged incident
severely undermines the credibility of the prosecution’s
narrative and raises serious doubts about the truthfulness
of PW.1’s testimony.
d) The prosecutrix’s conduct also prima facie raises significant
doubts as she being an educated individual failed to report
the incident promptly or confide in family members, friends
or her brother who was present at the residence on the
night of the alleged forced sexual assault which appears to
be contrary to natural human behavior. The unexplained
and considerable delay in filing the complaint without any
justifiable reason severely undermines the prosecution’s
Page 16 of 37
case and casts serious doubts on the truthfulness of the
allegations.
e) The Trial Court has erroneously concluded that PW.2, PW.3,
and PW.12 corroborated PW.1’s version, when in fact, the
case rests solely on PW.1’s testimony.
20. Further, this Bench also observes a significant discrepancy in the
timeline of events after the pregnancy discovery. As per PW.1’s
testimony, she stayed at PW.4’s residence on 14.04.2017 and when
she was suffering from fever, PW.4 (father) took her to the hospital on
17.04.2017 and subsequently the pregnancy was discovered. However,
PW.1 only filed the complaint on 25.04.2017. The prosecution has
failed to provide any satisfactory explanation for this delay of 7 days
between the discovery of pregnancy and the filing of the complaint
raising additional doubts about the credibility of the prosecution’s case.
21. This Bench also observes that there is a close intimate
friendship/relationship between the appellant and PW.2/mother of
victim. This in itself creates a strong doubt about the veracity of the
prosecution’s case as it seems implausible for someone who is
otherwise so close to the mother of the victim would go beyond to risk
their social standing and relationship by committing such an offense
against the daughter of his close friend.
Page 17 of 37
22. It would be relevant at this juncture to refer to a few decisions of
the Hon’ble Supreme Court on the subject matter.
23. In the case of Vimal Suresh Kamble vs. Chaluverapinake
Apal S.P. 1 the Hon’ble Supreme Court in paragraph No.21 held that a
conviction cannot be solely based on prosecutrix evidence if it does not
inspire confidence, which for ready reference is reproduced hereunder:
“21. On an overall appreciation of the evidence of the
prosecutrix and her conduct we have come to the conclusion
that PW 1 is not a reliable witness. We, therefore, concur with
the view of the High Court that a conviction cannot be safely
based upon the evidence of the prosecutrix alone. It is no
doubt true that in law the conviction of an accused on the basis
of the testimony of the prosecutrix alone is permissible, but
that is in a case where the evidence of the prosecutrix inspires
confidence and appears to be natural and truthful. The
evidence of the prosecutrix in this case is not of such quality,
and there is no other evidence on record which may even lend
some assurance, short of corroboration that she is making a
truthful statement. We, therefore, find no reason to disagree
with the finding of the High Court in an appeal against
acquittal. The view taken by the High Court is a possible,
reasonable view of the evidence on record and, therefore,
warrants no interference. This appeal is dismissed.”
24. Similarly in the case of Krishan Kumar Malik vs. State of
Haryana 2 the Hon’ble Supreme Court observed the importance of DNA
1
(2003) 3 SCC 175
2
(2011) 7 SCC 130
Page 18 of 37
Test while convicting a rape accused and held in paragraph Nos.31, 32,
40, 43 and 44 as under, viz.,
“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.
32. Indeed there are several significant variations in material
facts in her Section 164 statement, Section 161 statement
(CrPC), FIR and deposition in court. Thus, it was necessary to
get her evidence corroborated independently, which they could
have done either by examination of Ritu, her sister or Bimla
Devi, who were present in the house at the time of her alleged
abduction. The record shows that Bimla Devi though cited as a
witness was not examined and later given up by the public
prosecutor on the ground that she has been won over by the
appellant.
40. The appellant was also examined by the doctor, who had
found him capable of performing sexual intercourse. In the
undergarments of the prosecutrix, male semen were found but
these were not sent for analysis in the forensic laboratories
which could have conclusively proved, beyond any shadow of
doubt with regard to the commission of offence by the
appellant. This lacuna on the part of the prosecution proves to
be fatal and goes in favour of the appellant.
Page 19 of 37
43. With regard to the matching of the semen, we find it from
Taylor’s Principles and Practice of Medical Jurisprudence, 2nd
Edn. (1965) as under:
“Spermatozoa may retain vitality (or free motion) in
the body of a woman for a long period, and
movement should always be looked for in wet
specimens. The actual time that spermatozoa may
remain alive after ejaculation cannot be precisely
defined, but is usually a matter of hours. Seymour
claimed to have seen movement in a fluid as much as
5 days old. The detection of dead spermatozoa in
stains may be made at long periods after emission,
when the fluid has been allowed to dry. Sharpe found
identifiable spermatozoa often after 12 months and
once after a period of 5 years. Non-motile
spermatozoa were found in the vagina after a lapse of
time which must have been 3 and could have been 4
months.”
Had such a procedure been adopted by the prosecution, then it
would have been a foolproof case for it and against the
appellant.
44. Now, after the incorporation of Section 53-A in the Criminal
Procedure Code w.e.f. 23-6-2006, brought to our notice by the
learned counsel for the respondent State, it has become
necessary for the prosecution to go in for DNA test in such type
of cases, facilitating the prosecution to prove its case against
the accused. Prior to 2006, even without the aforesaid specific
provision in CrPC the prosecution could have still resorted to
this procedure of getting the DNA test or analysis and matching
of semen of the appellant with that found on the
undergarments of the prosecutrix to make it a foolproof case,
but they did not do so, thus they must face the consequences.”
Page 20 of 37
25. Further, in the case of Narender Kumar vs. State (NCT of
Delhi) 3 relying upon the decision in the case of Vimal Suresh
Kamble (supra), the Hon’ble Supreme Court held in paragraph No.21
as under:
“21. A prosecutrix complaining of having been a victim of the
offence of rape is not an accomplice after the crime. Her
testimony has to be appreciated on the principle of probabilities
just as the testimony of any other witness; a high degree of
probability having been shown to exist in view of the subject-
matter being a criminal charge. However, if the court finds it
difficult to accept the version of the prosecutrix on its face
value, it may search for evidence, direct or substantial
(sic circumstantial), which may lend assurance to her
testimony. (Vide Vimal Suresh Kamble v. Chaluverapinake Apal
S.P. [(2003) 3 SCC 175 : 2003 SCC (Cri) 596 : AIR 2003 SC
818] and Vishnu v. State of Maharashtra [(2006) 1 SCC 283 :
(2006) 1 SCC (Cri) 217 : AIR 2006 SC 508] .)”
26. In the same judgment, in paragraph Nos.22, 24, 29 and 30 the
Hon’ble Supreme Court held as under:
“22. Where evidence of the prosecutrix is found suffering from
serious infirmities and inconsistencies with other material, the
prosecutrix making deliberate improvement on material point
with a view to rule out consent on her part and there being no
injury on her person even though her version may be
otherwise, no reliance can be placed upon her evidence.
3
(2012) 7 SCC 171
Page 21 of 37(Vide Suresh N. Bhusare v. State of Maharashtra [(1999) 1
SCC 220 : 1998 SCC (Cri) 1595] .)
24. In Raju v. State of M.P 4 this Court held : (SCC p. 141,
para 10, 11)
“10. … that ordinarily the evidence of a prosecutrix
should not be suspected and should be believed,
more so as her statement has to beevaluated on a
par with that of an injured witness and if the evidence
is reliable, no corroboration is necessary.”
“11. It cannot be lost sight of that rape causes the
greatest distress and humiliation to the victim but at
the same time a false allegation of rape can cause
equal distress, humiliation and damage to the
accused as well. The accused must also be protected
against the possibility of false implication … there is
no presumption or any basis for assuming that the
statement of such a witness is always correct or
without any embellishment or exaggeration.”
29. However, even in a case of rape, the onus is always on the
prosecution to prove, affirmatively each ingredient of the
offence it seeks to establish and such onus never shifts. It is no
part of the duty of the defence to explain as to how and why in
a rape case the victim and other witnesses have falsely
implicated the accused. The prosecution case has to stand on
its own legs and cannot take support from the weakness of the
case of defence. However great the suspicion against the
accused and however strong the moral belief and conviction of
the court, unless the offence of the accused is established
beyond reasonable doubt on the basis of legal evidence and
material on the record, he cannot be convicted for an offence.
There is an initial presumption of innocence of the accused and
the prosecution has to bring home the offence against the
4
(2008) 15 SCC 133
Page 22 of 37
accused by reliable evidence. The accused is entitled to the
benefit of every reasonable doubt. (Vide Tukaram v. State of
Maharashtra [(1979) 2 SCC 143 : 1979 SCC (Cri) 381 : AIR
1979 SC 185] and Uday v. State of Karnataka [(2003) 4 SCC
46 : 2003 SCC (Cri) 775 : AIR 2003 SC 1639] .)
30. The prosecution has to prove its case beyond reasonable
doubt and cannot take support from the weakness of the case
of defence. There must be proper legal evidence and material
on record to record the conviction of the accused. The
conviction can be based on sole testimony of the prosecutrix
provided it lends assurance of her testimony. However, in case
the court has reason not to accept the version of the
prosecutrix on its face value, it may look for corroboration. In
case the evidence is read in its totality and the story projected
by the prosecutrix is found to be improbable, the prosecutrix’s
case becomes liable to be rejected.
27. In the case of Rai Sandeep vs. State (NCT of Delhi) 5 the
Hon’ble Supreme Court dealing with the importance of “sterling
witness” held in paragraph No.22 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 makes5
(2012) 8 SCC 21
Page 23 of 37the 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.
Page 24 of 37
28. In the case of Santosh Prasad v. State of Bihar 6, the Hon’ble
Supreme Court held in paragraph Nos.5.2, 5.3, 5.5 and 6 as under:
5.2. From the impugned judgments and orders passed by both
the courts below, it appears that the appellant has been
convicted solely relying upon the deposition of the prosecutrix
(PW 5). Neither any independent witness nor even the medical
evidence supports the case of the prosecution. From the
deposition of PW 1, it has come on record that there was a land
dispute going on between both the parties. Even in the cross-
examination even PW 5, prosecutrix had admitted that she had
an enmity with Santosh (accused). The prosecutrix was called
for medical examination by Dr Renu Singh, Medical Officer and
PW 7 Dr Renu Singh submitted injury report. In the injury
report, no sperm as well as RBC and WBC were found. Dr Renu
Singh, PW 7 Medical Officer in her deposition has specifically
opined and stated that she did not find any violence marks on
the body of the victim. She has also categorically stated that
there is no physical or pathological evidence of rape. It is true
that thereafter she has stated that possibility of rape cannot be
ruled out (so stated in the examination-in-chief). However, in
the cross-examination, she has stated that there was no
physical or pathological evidence of rape.
5.3. As per the FSL report, the blood group on the petticoat
and the semen on the petticoat are stated to be inconclusive.
Therefore, the only evidence available on record would be the
deposition of the prosecutrix. It cannot be disputed that there
can be a conviction solely based on the evidence of the
prosecutrix. However, the evidence must be reliable and
trustworthy. Therefore, now let us examine the evidence of the
prosecutrix and consider whether in the facts and
6
(2020) 3 SCC 443
Page 25 of 37
circumstances of the case is it safe to convict the accused
solely based on the deposition of the prosecutrix, more
particularly when neither the medical report/evidence supports
nor other witnesses support and it has come on record that
there was an enmity between both the parties.
5.5. With the aforesaid decisions in mind, it is required to be
considered, whether is it safe to convict the accused solely on
the solitary evidence of the prosecutrix? Whether the evidence
of the prosecutrix inspires confidence and appears to be
absolutely trustworthy, unblemished and is of sterling quality?
6. Having gone through and considered the deposition of the
prosecutrix, we find that there are material contradictions. Not
only there are material contradictions, but even the manner in
which the alleged incident has taken place as per the version of
the prosecutrix is not believable. In the examination-in-chief,
the prosecutrix has stated that after jumping the fallen
compound wall the accused came inside and thereafter the
accused committed rape. She has stated that she identified the
accused from the light of the mobile. However, no mobile is
recovered. Even nothing is on record that there was a broken
compound wall. She has further stated that in the morning at
10 o’clock she went to the police station and gave oral
complaint. However, according to the investigating officer a
written complaint was given. It is also required to be noted that
even the FIR is registered at 4.00 p.m. In her deposition, the
prosecutrix has referred to the name of Shanti Devi, PW 1 and
others. However, Shanti Devi has not supported the case of the
prosecution. Therefore, when we tested the version of PW 5,
prosecutrix, it is unfortunate that the said witness has failed to
pass any of the tests of “sterling witness”. There is a variation
in her version about giving the complaint. There is a delay in
the FIR. The medical report does not support the case of the
prosecution. FSL report also does not support the case of the
Page 26 of 37
prosecution. As admitted, there was an enmity/dispute
between both the parties with respect to land. The manner in
which the occurrence is stated to have occurred is not
believable. Therefore, in the facts and circumstances of the
case, we find that the solitary version of the prosecutrix, PW 5
cannot be taken as a gospel truth at face value and in the
absence of any other supporting evidence, there is no scope to
sustain the conviction and sentence imposed on the appellant
and the accused is to be given the benefit of doubt.
29. Very recently, in the case of State (NCT of Delhi) vs. Vipin7
the Hon’ble Supreme Court has held in paragraph No.10 as under:
“10. Although it is absolutely true that in the case of rape,
conviction can be made on the sole testimony of the
prosecutrix as her evidence is in the nature of an injured
witness which is given a very high value by the Courts. But
nevertheless when a person can be convicted on the testimony
of a single witness the Courts are bound to be very careful in
examining such a witness and thus the testimony of such a
witness must inspire confidence of the Court. The testimony of
the prosecutrix in the present case thus has failed to inspire
absolute confidence of the Trial Court, the High Court and this
Court as well.”
30. It would be also relevant at this juncture to take note of the
judgments rendered by the Hon’ble Supreme Court on circumstantial
evidence. In the case of Sarbir Singh vs. State of Punjab 8, dealing
7
2025 SCC OnLine SC 78
8
1993 SCC (Cri) 860
Page 27 of 37
with the case of circumstantial evidence, the Hon’ble Supreme Court in
paragraph Nos.5 to 7 has held as under:
5. There is no dispute that the prosecution case is based solely
on the circumstantial evidence. If at a trial the prosecution
adduces direct evidence to prove the charge, the court is
primarily concerned whether the witnesses who have testified
about the role of the accused are reliable. Once the court is
satisfied that the witnesses who are said to have seen the
occurrence are trustworthy and inspire confidence, the finding
of guilt has to be recorded, if otherwise, the accused has to be
acquitted. But in a case based on circumstantial evidence
neither the accused nor the manner of occurrence is known to
the persons connected with the victim. The first information
report is lodged only disclosing the offence, leaving to the
investigating agency to find out the offender.
6. It is said that men lie but circumstances do not. Under the
circumstances prevailing in the society today, it is not true in
many cases. Sometimes the circumstances which are sought to
be proved against the accused for purpose of establishing the
charge are planted by the elements hostile to the accused who
find out witnesses to fill up the gaps in the chain of
circumstances. In countries having sophisticated modes of
investigation, every trace left behind by the culprit can be
followed and pursued immediately. Unfortunately it is not
available in many parts of this country. That is why courts have
insisted (i) the circumstances from which the conclusion of guilt
is to be drawn should in the first instance be fully established;
(ii) all the facts so established should be consistent only with
the hypothesis of the guilty of the accused and should be such
as to exclude every hypothesis but the one sought to be
proved; (iii) the circumstances should be of a conclusive
nature; and (iv) the chain of evidence should not have any
Page 28 of 37
reasonable ground for a conclusion consistent with the
innocence of the accused.
7. A note of caution has also been struck regarding the role of
imagination. In the case of Reg v. Hodge [(1838) 2 Lewin CC
227], it was said:
“The mind was apt to take a pleasure in adapting
circumstances to one another, and even in
straining them a little, if need be, to force them
to form parts of one connected whole; and the
more ingenious the mind of the individual, the
more likely was it, considering such matters, to
overreach and mislead itself, to supply some little
link that is wanting, to take for granted some fact
consistent with its previous theories and
necessary to render them complete.”
It has been impressed that suspicion and conjecture should not
take the place of legal proof. It is true that the chain of events
proved by the prosecution must show that within all human
probability the offence has been committed by the accused, but
the court is expected to consider the total cumulative effect of
all the proved facts along with the motive suggested by the
prosecution which induced the accused to follow a particular
path. The existence of a motive is often an enlightening factor
in a process of presumptive reasoning in cases depending on
circumstantial evidence.”
31. The Hon’ble Supreme Court in the case of Sharad Birdhi Chand
Sarda vs. State of Maharashtra 9 laying down the basic principles of
circumstantial evidence held at paragraph Nos.153 and 154 as under:
9
(1984) 4 SCC 116
Page 29 of 37“153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against an
accused can be said to be fully established:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that
the circumstances concerned “must or should” and
not “may be” established. There is not only a
grammatical but a legal distinction between “may be
proved” and “must be or should be proved” as was
held by this Court in Shivaji Sahabrao Bobade v.
State of Maharashtra where the observations were
made: [SCC para 19, p. 807: SCC (Cri) p. 1047]
“Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court
can convict and the mental distance between ‘may
be’ and ‘must be’ is long and divides vague
conjectures from sure conclusions.”
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is
to say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and
Page 30 of 37
must show that in all human probability the act must
have been done by the accused.
154. These five golden principles, if we may say so, constitute the
panchsheel of the proof of a case based on circumstantial
evidence.”
32. Further, the Hon’ble Supreme Court in the case of Majenderan
Langeswaran vs. State (NCT of Delhi) 10 considering the case of
conviction based on circumstantial evidence held as under:
“The legal issue under consideration was whether the
circumstantial evidence presented in the case was enough to
sustain the conviction.
The court made clear that in cases where the evidence is of a
circumstantial nature, certain rules must be adhered to. Firstly,
the circumstances from which the conclusion of guilt is drawn
must be fully established. This means that each fact that points
to the guilt of the accused must be proven individually and
beyond a reasonable doubt.
Further, the court emphasized that the proven circumstances
should be consistent only with the hypothesis of the accused’s
guilt. This means that the facts established should point
towards the guilt of the accused and no one else. Moreover,
these circumstances should be of such a conclusive nature and
tendency that they exclude every other hypothesis but the one
proposed to be proved.
In this context, the court cited several past judgments. For
instance, in the case of Hanumant Govind Nargundkar v. State10
(2013) 7 SCC 192
Page 31 of 37of M.P 11., the court observed that there must be a chain of
evidence so complete as not to leave any reasonable ground for
a conclusion consistent with the innocence of the accused.
The court also referred to the case of Padala Veera Reddy v.
State of A.P 12., where it was stated that circumstantial
evidence, in order to sustain conviction, must be complete,
conclusive, and incapable of explanation of any other
hypothesis than that of the guilt of the accused.
This key principle was reinforced in a series of other cases, such
as C. Chenga Reddy v. State of A.P 13., Ramreddy Rajesh
Khanna Reddy v. State of A.P 14., and Sattatiya v. State of
Maharashtra 15.
In the case of G. Parshwanath v. State of Karnataka 16, the
court went a step further and explained that while dealing with
circumstantial evidence, a distinction must be made between
primary or basic facts and inferences of facts to be drawn from
them. This means that the court must not only evaluate
whether a fact is proven, but also whether that fact leads to an
inference of the accused’s guilt.”
33. In the case of Tomaso Bruno v. State of U.P 17, Hon’ble
Supreme Court held at paragraph No.42 as under:
“42. By and large, this Court will not interfere with the
concurrent findings recorded by the courts below. But where
the evidence has not been properly appreciated, material11
(1952) 2 SCC 71
12
1989 Supp (2) SCC 706
13
(1996) 10 SCC 193
14
(2006) 10 SCC 172
15
(2008) 3 SCC 210
16
(2010) 8 SCC 593
17
(2015) 7 SCC 178
Page 32 of 37aspects have been ignored and the findings are perverse under
Article 136 of the Constitution, this Court would certainly
interfere with the findings of the courts below though
concurrent. In a case based on circumstantial evidence,
circumstances from which inference of guilt is sought to be
drawn should be fully proved and such circumstances must be
of conclusive nature pointing to the guilt of the accused. There
shall be no gap in such chain of circumstances. In the present
case, the courts below have not properly appreciated the
evidence and the gap in the chain of circumstances sought to
be established by the prosecution. The courts below have
ignored the importance of best evidence i.e. CCTV camera in
the instant case and also have not noticed the absence of
symptoms of strangulation in the medical reports. Upon
consideration of the facts and circumstances of the case, we
are of the view that the circumstances and the evidence
adduced by the prosecution do not form a complete chain
pointing to the guilt of the accused and the benefit of doubt is
to be given to the accused and the conviction of the appellants
is liable to be set aside.”
34. After careful consideration of the facts, evidence and catena of
judgments, this Bench finds that the prosecution has failed to establish
the charges beyond reasonable doubt, with material inconsistencies in
key witness testimonies and overlooked documentary evidence that
supports the appellant’s case. Following the principles laid down in
various Supreme Court judgments regarding the standard of proof
required in criminal cases, we find that the impugned judgment of
conviction passed by the Trial Court cannot be sustained. Therefore,
this Court deems it appropriate to set aside the same. The appellant
Page 33 of 37
stands acquitted of all the charges leveled against him and if he is not
required in any other case, he shall be released from the jail forthwith.
35. In the result, the instant appeal stands allowed.
(Per The Hon’ble Sri Justice N.Tukaramji):
36. I am in full agreement with the view, opinion and the decision arrived at
by my brother Judge. However, I would only like to add a few lines in
continuation.
37. Although, we have adjudicated the appeal and parting with the
judgment, this Bench regrets to note the grand failure of the
investigation in the present case.
38. The investigation is bedrock of the criminal justice
administration. The fact finding and collection of evidentiary materials
by the investigating agency makes this stage imperative and imposes
a greater obligation on the investigating agency in meeting the
fundamental right of every citizen to have fair investigation.
39. In the matter at hand, while considering the evidence brought
onto record, we could discern failure in collecting clinching material to
substantiate essential facts and negligent handling of the
scientific/medical evidence from the stage of collection of sample, safe
Page 34 of 37
chain of custody and drawing conclusions in regard to culpability and
into manifestation of incomplete and lackadaisical investigation.
40. These aspects prompted us to deduce paradoxical consequences,
firstly, regardless of available material evidence the investigating
agency invented a case in support of the police report, may be with
emotional bias or extraneous influence; secondly, the evidence
brought onto record to deliberately present a superficial investigation
to favour the accused.
41. In either case, the greatest victim is the criminal justice
administration. The aftermath may result in wrongful conviction of the
innocent or letting the real culprits go scot-free, which transforms the
actual perpetrator into an ongoing threat. Additionally, flawed
investigation leads to prolonged trial, retrials, appeal and many more
legal challenges resulting in wastage of resources, delays in the justice
delivery, in turn affects citizen’s faith in the criminal justice system.
42. Further, a manufactured criminal case not only undermines
justice administration, but also actively destroys the individual’s dignity
infringes upon rights and erodes opportunities, often without
accountability for those responsible for the false accusations.
43. To prevent such far-reaching consequences, the investigation
agency must abandon the tunnel vision approach, where prematurely
Page 35 of 37
centers on the projected suspect without adequately exploring the
other relevant aspects and must conduct proceedings strictly in
accordance with the prescribed procedures of investigation.
Furthermore, it is imperative that the investigating agency maintains
an open and unbiased approach throughout the inquiry ensuring that
all potential evidence and witnesses are thoroughly examined. Such
comprehensive methodology not only upholds the principles of natural
justice but also strengthens the credibility and reliability of the
investigation. Any premature conclusions or procedural lapses could
jeopardize the integrity of the case and potentially lead to miscarriage
of justice. Thus, the investigating agency shall act with caution to
prevent abuse and must be resolute in defending individual rights and
preserving the integrity of investigation and administrative of justice.
44. We recognize that the investigations are conducted by the police
officers who also attend to numerous other responsibilities and this
situation would degrade the quality. Therefore, maintaining a
dedicated team with sufficient number of trained and designated
personnel specifically for conducting investigations on defined fields
and clearly fixing responsibility on the investigating officer assigned to
a case is crucial.
45. When an officer is entrusted with a case he or she should be
accountable for the thoroughness and quality of the investigation
Page 36 of 37
conducted. Instituting a performance evaluation system that rates the
efficiency and effectiveness of the investigating officers based on
adherence to produce and the outcomes in the cases they handle, will
encourage greater diligence and professionalism. Moreover linking
such performance assessments to the officers’ career progression and
opportunities for advancement would motivate the officers to prioritize
investigative excellence. This approach encourages specialization,
fosters a culture of accountability and ensures that investigations are
conducted with the highest standards of integrity and competence.
46. In addition, regular and rigorous training programs tailored to
investigative skills, forensic techniques and legal procedures must be
institutionalized. Continuous professional development will equip
officers to handle complex cases more effectively and adapt to evolving
challenges in the criminal investigations.
47. Finally, establishing an independent supervising mechanism to
monitor investigation quality and provide constructive feedback can
further enhance the transparency and public confidence in the criminal
justice system.
48. This Bench is of the considered view that these measures would
significantly enhance standards and outcomes of police investigations.
Thus the appropriate governments shall consider recognizing the
Page 37 of 37
investigating institutions with defined goals, for securing the
fundamental rights of the citizen for fair, impartial and prompt
investigations for achieving more effective and just legal system.
49. We say this to bring these aspects to attention with an
expectation of proactive engagement and affirmative and decisive
action from all involved in the investigating agencies.
Pending miscellaneous applications, if any, shall stand closed.
_______________
P.SAM KOSHY, J
_______________
N.TUKARAMJI, J
Date: 01.05.2025
Note: LR Copy to be marked.
(B/o)GSD
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