Facts
1. Nearly forty years ago, on 3rd March 1986 happened an incident, that forever altered the trajectory of a minor girl’s life, who for the purposes of this judgment, shall be referred to as ‘V’. She was discovered unconscious and bleeding from her private parts, by one Gulab Chand, after the respondent-accused had allegedly subjected her to sexual assault. The said Gulab Chand filed a report with the concerned police station on 4th March, 1986 – and now by way of this judgment, the matter shall be finally laid to rest. It is a matter of great sadness that this minor girl and her family have to go through nearly four decades of life, waiting to close this horrific chapter of her/their lives.
Appeal by state
2. The State is before us, being aggrieved by the finding of acquittal recorded by the learned Single Judge of the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur, vide judgment dated 12th July 2013 which set aside the finding of conviction entered by learned Sessions Judge, Tonk vide judgment dated 19th November 1987.
Trial
4. After completion of the investigation, the challan was presented to the Court for trial. To prove its version of events, the prosecution examined 15 witnesses and exhibited 19 documents. The respondent-accused termed it to be a false case that Gulab Chand had concocted since he wanted the father of ‘V’ to vacate the house of the respondent-accused. He put forth 2 witnesses and four documents in his defence.
Trial court judgment
Appellant convicted for section 376 IPC
5. The sole issue before the Trial Court was whether the respondent-accused had sexually assaulted ‘V’ or not. A perusal of the judgments reveals that the complainant, Gulab Chand who was examined as PW-2 has been greatly relied on, supported by the deposition of PW-14, Dr. Vasudev. Regarding the commission of sexual assault against ‘V’, the finding is as under :
“39. In such situation when we again believe on deposition of PW-2 Gulabchand then his such evidence that accused committed forcible rape with PW-1 ‘V’ becomes believable and in this regard deposition of PW2 Gulabchand stands corroborated from deposition of PW-14 Vasudev that what injury in vagina of PW-1 ‘V’ was caused, that was caused by forcible sexual intercourse and that sexual intercourse was forcibly committed by accused with PW-1. PW-14 Dr. Vasudev has stated even to the extent that the hymen of PW-1 ‘V’ was completely fresh ruptured and her forshite and posterior commissions ruptured and doctor has also stated that if there was slight more penetration then the penis would have reached in stomach of girl after rupturing uterus and by which death of girl might have caused. Thus from the evidence of this doctor it is clear that what penetration was done by accused in vagina of PW-1 that was grievous and from doing such whatever ingredients in section 375 IPC are told are fulfilled.”
There was an issue of motive raised by the counsel for the accused. However, neither that nor the possibility that the injury sustained by ‘V’ was as a result of injury by a nail found favour with the Court. There was also the aspect of the FIR being lodged on the next day. On this issue, the Trial Court held that given P.S. Uniyara, was situated 14 kms. away from the village where the incident took place, i.e., Sureli, and that the injuries sustained by ‘V’ were quite severe, the delay was held to be justified. It was finally held that the respondent-accused had indeed committed the offence punishable under Section 376 of the Indian Penal Code, 1860, and he was, vide order of sentencing dated 19th November 1987 sentenced to 7 years rigorous imprisonment instead of 10 years given that he was a first-time offender and at the relevant time of the offence he was aged only 21 years. He was further sentenced to pay a fine of Rs.500/- in default and one month of simple imprisonment.
Impugned judgment of Hon’ble High Court
Hon’ble High Court has acquitted the accused
6. The respondent-accused aggrieved by the sentence awarded to him, carried the matter in appeal to the High Court. By way of a judgment running into all of 6 pages, the findings of guilt returned by the Trial Court were upturned and the respondent-accused was acquitted of the charges against him. Suffice it to say that we are surprised with the manner in which this matter was dealt with by the High Court. As the First Appellate Court, the High Court is expected to independently assess the evidence before it before confirming or disturbing the findings of the Court below. This is the settled position of law. [See: Atley v. State of U.P.; and Geeta Devi v. State of U.P. etc.]. Clearly, the same has not been followed. The discussion on merits of the matter by the High Court is reproduced herein below :
“ …………. “
Hon’ble High Court has referred the victim name throughout the judgment
7. We note with some surprise that the High Court has referred to the victim by name throughout. This Court in judgments, going at least a decade further back from the date of the impugned judgment, has highlighted the importance of abiding by such a restriction, preserving the privacy of the unfortunate victim, even though the restriction does not expressly apply to the High Court or this Court. [See: Bhupinder Sharma v. State of H.P.; State of Karnataka v. Puttaraja; and Dinesh v. State of Rajasthan] We have redacted the name of the child victim. The record as it is before us, does not conceal the name of the prosecutrix, however, considering the fact that the directions in Nipun Saxena v. Union of India13 were issued in the pendency of this appeal, her name stands redacted even in the portion quoted from the record.
8. In ordinary circumstances, given the fleeting consideration bestowed on the merits of the matter, an order of remand to the High Court for consideration afresh, could have been a permissible view, however as already noted supra the genesis of this case is 40 years old, and, therefore, justice would not be served by adopting this approach, especially taking note of the fact that an appeal of the year 1987 was disposed of by the impugned judgment in the year 2013. In other words, it took twenty-six years for the criminal appeal to be disposed of. As such, we now proceed to examine the evidence on record.
Analysis and findings
9. The mainstay of the reasoning of the High Court are the statements of PW-1, ‘V’, PW-2, and PW-10.
The relevant extract of the statement of the victim (PW -1) is as follows:
“ …………. “
Doctor’s testimony
10. At this stage, let us consider the other witnesses relevant to the prosecution case. PW-14, the doctor, testified as follows:
“….I medically examine the accused Chatra on 13.03.86, On his penis top, scratch spot was found and on his penis swelling was found, and scratch was also found. These type of wound can only be found by forcefully intercourse with minor girl…..
…..
“….At the time of examination there was no blood oozing from the private part of ‘V’ but the blood spot was found all round the private part. In ‘V’ private inside by seeing from microscope I did not find spermatozoa. In 3 years old child the distance between the private part inside inner kennel and uterus, are very less the if the penetration will be more, then the pennies will torn the uterus and penetrate till the stomach of the girl due to which the girl can die. There was injury in inner kennel but there is no injury in uterus….”
11. PW-3, Savitri, the mother of ‘V’ testified that she had to go to a neighbouring village since someone there had passed away. When she left her village, she had entrusted the care of ‘V’ to the respondent accused. When she returned from having attended the funeral procession in the neighbouring village, she was informed by the women of her village that ‘V’ had been injured and taken to Sureli. She also went there subsequently and found that ‘V’ was unconscious. She has positively identified the clothes worn by the victim. The nurse at the hospital informed her that ‘V’ had been raped.
DW-1 is the brother of the respondent-accused. He testified that ‘X’ was a tenant of theirs and had been asked to vacate said dwelling, but he refused to do so. He further testified that PW-2 Gulab Chand had bribed the doctor with Rs.4,000/-, for him to say in the report that ‘V’ had been sexually assaulted. Further, it was said that the doctor asked him to pay Rs.7,000/- and if paid, so the report was to say that ‘V’ was not raped. He did not pay the money and instead lodged complaints which fell on deaf ears. He denies that Savitri, PW-3 had left ‘V’ in the care of the accused and that he had committed sexual assault against her.
Judgments regarding child victim of sexual assault
12. Let us now consider pronouncements of this Court in cases involving a child victim of sexual assault.
In State of Rajasthan v. Om Prakash this Court sounded a warning against offences of sexual nature against children, in the following terms:
“19. Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity. Many such cases are not even brought to light because of the social stigma attached thereto. According to some surveys, there has been a steep rise in child rape cases. Children need special care and protection. In such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection. Children are the natural resource of our country. They are the country’s future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other modes of sexual abuse. These factors point towards a different approach required to be adopted…”
In Dattu Ramrao Sakhare v. State of Maharashtra this Court held :
“5….A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored…”
In Hari Om v. State of U.P., a three-Judge Bench reiterated the caution observed by this Court in Suryanarayana v. State of Karnataka, that “corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence”. It was further observed therein :
“6. This Court in Panchhi v. State of U.P. [Panchhi v. State of U.P., (1998) 7 SCC 177 : 1998 SCC (Cri) 1561] held that the evidence of the child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus an easy prey to tutoring. The evidence of the child witness must find adequate corroboration before it is relied upon, as the rule of corroboration is of practical wisdom than of law (vide Prakash v. State of M.P. [Prakash v. State of M.P., (1992) 4 SCC 225 : 1992 SCC (Cri) 853]; Baby Kandayanathil v. State of Kerala [Baby Kandayanathil v. State of Kerala, 1993 Supp (3) SCC 667 : 1993 SCC (Cri) 1084]; Raja Ram Yadav v. State of Bihar [Raja Ram Yadav v. State of Bihar, (1996) 9 SCC 287 : 1996 SCC (Cri) 1004] and Dattu Ramrao Sakhare v. State of Maharashtra [Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341 : 1997 SCC (Cri) 685]).
7. To the same effect is the judgment in State of U.P. v. Ashok Dixit [State of U.P. v. Ashok Dixit, (2000) 3 SCC 70 : 2000 SCC (Cri) 579] .”
13. The rule regarding child witnesses was laid down by the US Supreme Court as far back as 1895 in the following terms:
“5. … While no one would think of calling as a witness an infant only two or three years old, there is no precise age which determines the question of competency. This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question rests primarily with the trial Judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record the decision of the trial Judge will not be disturbed on review unless from that which is preserved it is clear that it was erroneous.”
In interpreting the evidence given by a child victim of sexual assault, this Court in State of H.P. v. Sanjay Kumar, held that social realities have to be given due attention. It was observed by Sikri J., writing for the Court that:
“30. By no means, it is suggested that whenever such charge of rape is made, where the victim is a child, it has to be treated as a gospel truth and the accused person has to be convicted. We have already discussed above the manner in which the testimony of the prosecutrix is to be examined and analysed in order to find out the truth therein and to ensure that deposition of the victim is trustworthy. At the 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. In such a situation one has to take stock of the realities of life as well. Various studies show that in more than 80% cases of such abuses, perpetrators have acquaintance with the victims who are not strangers. The danger is more within than outside. Most of the time, acquaintance rapes, when the culprit is a family member, are not even reported for various reasons, not difficult to fathom. The strongest among those is the fear of attracting social stigma. Another deterring factor which many times prevents such victims or their families to lodge a complaint is that they find whole process of criminal justice system extremely intimidating coupled with absence of victim protection mechanism. Therefore, time is ripe to bring about significant reforms in the criminal justice system as well. Equally, there is also a dire need to have a survivor-centric approach towards victims of sexual violence, particularly, the children, keeping in view the traumatic long-lasting effects on such victims.”
In Pradeep v. State of Haryana, it was held that the role of the trial Judge, when a case involves a child witness, becomes heightened. The Court recorded:
“10. Before recording evidence of a minor, it is the duty of a Judicial Officer to ask preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is very crucial. He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and answers so that the Appellate Court can go into the correctness of the opinion of the Trial Court.”
In Sooryanarayana v. State of Karnataka referred to by a Bench of three Judges in Hari Om v. State of U.P., it has been held thus:
“5. Admittedly, Bhavya (PW 2), who at the time of occurrence was about four years of age, is the only solitary eyewitness who was rightly not given the oath. The time and place of the occurrence and the attending circumstances of the case suggest no possibility of there being any other person as an eyewitness. The evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The evidence of PW 2 cannot be discarded only on the ground of her being of tender age. The fact of PW 2 being a child witness would require the court to scrutinise her evidence with care and caution. If she is shown to have stood the test of cross-examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix-up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not.”
Recently, a coordinate Bench of this Court in State of Madhya Pradesh v. Balveer Singh speaking through J.B. Pardiwala, J., considered a large number of prior decisions of this Court to lay down guidelines for the appreciation of the evidence of a child witness. We have perused through the same.
Reference can also be made to other judgments in State of M.P v. Ramesh; Panchhi v. State of U.P; and State of U.P. v. Ashok Dixit, etc.
Principles and administration of child witness
14. The principles that can be adduced from an overview of the aforesaid decisions, are:
a. No hard and fast rule can be laid down qua testing the competency of a child witness to testify at trial.
b. Whether or not a given child witness will testify is a matter of the Trial Judge being satisfied as to the ability and competence of said witness. To determine the same the Judge is to look to the manner of the witness, intelligence, or lack thereof, as may be apparent; an understanding of the distinction between truth and falsehood etc.
c. The non-administration of oath to a child witness will not render their testimony doubtful or unusable.
d. The trial Judge must be alive to the possibility of the child witness being swayed, influenced and tutored, for in their innocence, such matters are of ease for those who may wish to influence the outcome of the trial, in one direction or another.
e. Seeking corroboration, therefore, of the testimony of a child witness, is well-placed practical wisdom.
f. There is no bar to cross-examination of a child witness. If said witness has withstood the crossexamination, the prosecution would be entirely within their rights to seek conviction even solely relying thereon.
Examining the testimony based on the aforesaid principle
17. Having considered the principles of law as above, let us now proceed further. We have independently examined the evidence of the witness, by placing reliance on whom the Trial Court recorded the conviction of respondent-accused, which was erroneously appreciated by the High Court, the same was reversed by the High Court. The child witness (victim), it is true, has not deposed anything about the commission of the offence against her. When asked about the incident, the trial Judge records that ‘V’ was silent, and upon being further asked, only shed silent tears and nothing more. Nothing could be elicited from the testimony regarding the commission of the offence. This, in our view, cannot be used as a factor in favour of the respondent. The tears of ‘V’, have to be understood for what they are worth. This silence cannot accrue to the benefit of the respondent. The silence here is that of a child. It cannot be equated with the silence of a fully realised adult prosecutrix, which again would have to be weighed in its own circumstances. It has been held in Hemudan Nanbha Gadhvi v. State of Gujarat31, that a nine-year-old prosecutrix turning hostile would not be a fatal blow to the prosecution case when other evidence can establish the guilt of the accused. In these facts, ‘V’ has not turned hostile. Trauma has engulfed her in silence. It would be unfair to burden her young shoulders with the weight of the entire prosecution. A child traumatized at a tender age by this ghastly imposition upon her has to be relieved of being the basis on which her offender can be put behind bars. In almost all other cases, the testimony of the prosecutrix is present and forms an essential part of the conviction of an accused, but at the same time, there is no hard and fast rule that in the absence of such a statement a conviction cannot stand, particularly when other evidence, medical and circumstantial, is available pointing to such a conclusion. Reference can be made to State of Maharashtra v. Bandu alias Daulat32, wherein the prosecutrix was “deaf and dumb and mentally retarded”. The Court held that even in the absence of her being examined as a witness, other evidence on record was sufficient to record conviction of the accused. The principle of law, therefore, is that if the prosecutrix is unable to testify, or for some justifiable reason remains unexamined, the possibility of conviction is automatically excluded. At this stage, it is important to record that we should not for a moment be understood saying that a person with a disability is by definition an incompetent witness. This Court in Patan Jamal Vali v. State of A.P.33 frowned upon an earlier observation made by this Court in Mange v. State of Haryana34 , wherein the Court observed “apart from being a child witness, she was also deaf and dumb and no useful purpose would have been served by examining her.” It was held in para 48 as under:
“48. This kind of a judicial attitude stems from and perpetuates the underlying bias and stereotypes against persons with disabilities. We are of the view that the testimony of a prosecutrix with a disability, or of a disabled witness for that matter, cannot be considered weak or inferior, only because such an individual interacts with the world in a different manner, vis-à-vis their able-bodied counterparts. As long as the testimony of such a witness otherwise meets the criteria for inspiring judicial confidence, it is entitled to full legal weight. It goes without saying that the court appreciating such testimony needs to be attentive to the fact that the witness’ disability can have the consequence of the testimony being rendered in a different form, relative to that of an able-bodied witness. In the case at hand, for instance, PW 2’s blindness meant that she had no visual contact with the world. Her primary mode of identifying those around her, therefore, is by the sound of their voice. And so PW 2’s testimony is entitled to equal weight as that of a prosecutrix who would have been able to visually identify the appellant.” (Emphasis supplied)
We fully endorse this view. The upshot of the discussion is that the absence of evidence of the prosecutrix is, not in all cases, a negative to be accounted for in the prosecution case.
conclusion
19. The question that arises for consideration is whether this contradiction in the FIR versus the statement made in Court is material, in as much as, to discredit his statement, thereby landing a fatal blow to the prosecution case. A Constitution Bench of this Court in State of Punjab v. Kartar Singh speaking through Pandian J., held that the purpose of cross-examination is to discredit the witness/elicit facts from such person, which may favour the other party, etc. Having gone through the crossexamination of this witness, we find none of these criteria to have been met. Even this discrepancy was not put to him so as to get an answer from the witness in this regard. That apart, we may also take note of what has been held in Sanjeev Kumar Gupta v. State of U.P. In the said case, a coordinate Bench of this Court was confronted with a similar situation while deciding an appeal arising from the High Court of Uttarakhand. There was a discrepancy in the statement made in the FIR and the deposition in Court. It was held that whether the discrepancy is material or not so, is a determination to be made in the facts and circumstances of the case. It was held that since evidence of other nature, such as the medical evidence, supports the prosecution case, then the contradiction is to be judged in that light, as was done in that case.
22. As a consequence of the above discussion, the appeal is allowed. The judgment of acquittal entered by the learned Single Judge of the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur, in S.B Criminal Appeal No.503/1987 is set aside, and the judgment of conviction returned by the Sessions Judge, Tonk, by judgment dated 19th November 1987 in Sessions Trial No.26/86 is restored. The respondent-accused is directed to surrender before the competent authority within four weeks from the date of this judgment, to serve out the sentence as awarded by the learned Trial Court, if not already served.
Judgments relied/cited in this judgment
- Atley v. State of U.P – AIR 1955 SC 807
- Geeta Devi v. State of U.P – Criminal Appeal No.78 of 2022
- Bhupinder Sharma v. State of H.P – [(2003) 8 SCC 551]
- State of Karnataka v. Puttaraja [(2004) 1 SCC 475]
- Dinesh v. State of Rajasthan [(2006) 3 SCC 771]
- Nipun Saxena v. Union of India [(2019) 2 SCC 703]
- State of Rajasthan v. Om Prakash [(2002) 7 SCC 745]
- Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341]
- Hari Om v. State of U.P. [(2021) 4 SCC 345]
- Suryanarayana v. State of Karnataka [(2001) 9 SCC 129]
- Panchhi v. State of U.P. [(1998) 7 SCC 177]
- Prakash v. State of M.P. [(1992) 4 SCC 225]
- Baby Kandayanathil v. State of Kerala [1993 Supp (3) SCC 667]
- Raja Ram Yadav v. State of Bihar [(1996) 9 SCC 287]
- State of U.P. v. Ashok Dixit [(2000) 3 SCC 70]
- Wheeler v. United States [1895 SCC OnLine US SC 220]
- State of H.P. v. Sanjay Kumar [(2017) 2 SCC 51]
- Pradeep v. State of Haryana [2023 SCC OnLine SC 777]
- State of Madhya Pradesh v. Balveer Singh [2025 SCC OnLine 390]
- State of M.P v. Ramesh [(2011) 4 SCC 786]
- Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116]
- Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793]
- Ramakant Rai v. Madan Rai [(2003) 12 SCC 395]
- K. Gopal Reddy v. State of A.P [(1979) 1 SCC 355]
- Miller v. Minister of Pensions [(1947) 2 All ER 372]
- Khem Karan v. State of U.P. [(1974) 4 SCC 603]
- Hemudan Nanbha Gadhvi v. State of Gujarat [(2019) 17 SCC 523]
- State of Maharashtra v. Bandu alias Daulat [(2018) 11 SCC 163]
- Patan Jamal Vali v. State of A.P. [(2021) 16 SCC 225]
- Mange v. State of Haryana [(1979) 4 SCC 349]
- State of Punjab v. Kartar Singh [(1994) 3 SCC 569]
- Sanjeev Kumar Gupta v. State of U.P. [(2015) 11 SCC 69]
Acts and Sections referred in this judgment
- Section 376 of the Indian Penal Code, 1860,
- Section 118 of the Evidence Act
Party
State of Rajasthan vs. Chatra – Criminal Appeal No. 586 of 2017 – 2025 INSC 360 – March 18, 2025, by Justices Vikram Nath and Sanjay Karol.
