While hearing an appeal preferred by two gang-rape convicts, the Bench of Dr. Justice Sanjeeb Kumar Panigrahi shed light on the stance of law and thus held–

“In the present case, the defence adopted a fundamentally different strategy. Despite prolonged cross examination of PW-1, PW-2, PW-16 and PW-18, at no point was a specific suggestion put to any witness that the date of birth entry of 17.12.1999 in Ext-13 was incorrect, fabricated, or entered on an erroneous basis. This omission is of decisive significance… In the present case, the failure of the defence to challenge the specific entry, when ample opportunity existed, leaves the statutory presumption attaching to Ext-13 wholly unrebutted.”

The case emanated from an alleged case of gang-rape of a minor girl. As per prosecution allegations, on the night of 03.04.2016, when the parents of the victim were away from village, the appellants visited her house. Upon the victim opening the door, they allegedly caught hold of her, gagged her mouth, pulled and dragged her, and both accused together lifted and carried her to a hillock near the village.

The victim was kept confined from the night of 03.04.2016 until the morning of 05.04.2016, during which both the appellants allegedly tied her, denied her food and repeatedly committed rape on her. On the morning of 05.04.2016, they brought her down and abandoned her near her house, whereafter she disclosed the entire incident to gathered villagers.

An FIR was lodged and upon completion of investigation, a charge-sheet was filed against the appellants. The Special Court framed charges under Sections 363 (kidnapping), 366 (kidnapping for illicit sexual intercourse), 376-D (gang rape), 376(2)(n) IPC (repeated rape) and Sections 6 (aggravated penetrative sexual assault) and 10 (aggravated sexual assault) of the POCSO Act and found the appellants guilty of the aforementioned offences.

Before delving into the adjudication of the case on culpability of the appellants, the primary vital question which arose for consideration was the proof of age of the victim. The prosecution produced the school admission register to prove the date of birth of the victim to be 17.12.1999, which made her a minor on the date of offence.

The appellants assailed such evidence on the primary ground that the former Headmaster who produced the register, admitted in cross-examination that he could not state the basis on which the date of birth entry was made, since he was not posted at the school at the relevant time. Explicit reliance was placed on Birka Shiva v. State of Telangana, 2025 INSC 863 to argue that a school register, foundational basis of which is unknown, cannot constitute reliable proof of age.

However, the Court nixed such contention by distinguishing the facts. It held that the critical distinction between the present case and Birka Shiva (supra) lies in the manner the challenge was made. In that case, the defence specifically challenged the basis of the very entry through specific cross-examination and adduced material to demonstrate that the entry was unreliable. In the current case, on the other hand, the defence did not put a specific suggestion to any witness that the date of birth entry was incorrect, fabricated, or entered on an erroneous basis. The Court held such omission to be of “decisive significance”.

Relying upon Laxmibai (Dead) through LRs v. Bhagwantbuva (Dead) through LRs (2013) the Court reiterated the settled principle that where a party seeks to dispute the correctness of a witness's statement, the witness must be specifically confronted with that part of the testimony in cross-examination. In the absence of such confrontation, the credibility of the witness cannot later be impeached.

The appellants also challenged the procedure adopted by the Court to elicit evidence on the proof of age of the victim. They particularly objected to the invocation Section 34 of the POCSO Act to determine the age of the victim, which is in fact a provision to ascertain age of accused. Nevertheless, the Court also overruled such objection by relying upon the decision of the Supreme Court in Jarnail Singh v. State of Haryana (2013).

“The court used Section 34 as a procedural conduit to import the well-established JJ Act hierarchy for age determination. In the absence of a dedicated statutory provision under the POCSO Act for determining the age of the child victim, courts have consistently and pragmatically applied the same hierarchy. The Supreme Court's approval of this hierarchy in Jarnail Singh (supra) was not confined to the accused alone but was stated as a general principle for age determination in cases involving children. I see no jurisdictional infirmity in the trial court's approach.”

Accordingly, the evidence of the prosecution regarding minority of the victim was upheld. After examining all other evidence on record, the conviction of the appellants under Sections 363, 366 and 376-D of IPC read with Sections 6 and 10 of the POCSO Act was confirmed.

Case Title: Pramod Bariha & Anr. v. State of Odisha

Case No: CRLA Nos. 489 & 483 of 2023

Counsel for the Appellants: Mr. Dipti Ranjan Swain & Mr. S.S. Ray (2), Advocates

Counsel for the State: Ms. Gayatri Patra, Addl. Standing Counsel

Citation: 2026 LiveLaw (Ori) 80