Full Judgment Text
2025 INSC 360
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.586 OF 2017
STATE OF RAJASTHAN … APPELLANT(S)
VERSUS
CHATRA … RESPONDENT(S)
J U D G M E N T
SANJAY KAROL, J.
rd
1. Nearly forty years ago, on 3 March 1986 happened an
incident, that forever altered the trajectory of a minor girl’s life,
1
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
Signature Not Verified
Digitally signed by
RAJNI MUKHI
Date: 2025.03.18
17:07:45 IST
Reason:
1
Identity concealed
Criminal Appeal No. 586/2017 Page 1 of 29
allegedly subjected her to sexual assault. The said Gulab Chand
th
filed a report with the concerned police station on 4 March,
2
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.
2. The State is before us, being aggrieved by the finding of
acquittal recorded by the learned Single Judge of the High Court
3
of Judicature for Rajasthan at Jaipur Bench, Jaipur , vide
th
judgment dated 12 July 2013 which set aside the finding of
4
conviction entered by learned Sessions Judge, Tonk vide
th
judgment dated 19 November 1987.
3. The FIR recorded the occurrence of incident in the
following terms:-
“To,
The S.H.O.
Uniyara.
Sir,
5
Subject : With regard to the rape with ‘V’ D/o ‘X’ .
It is respectfully submitted that it is incident of about
1:30 hours that I had gone to handle well on hut of
2
Crime No. 31/86
3
In S.B Criminal Appeal No. 503/1987
4
Sessions Trial 26/86
5
Name of the father of the victim is also redacted for the purpose of protection of identity
Criminal Appeal No. 586/2017 Page 2 of 29
Khadda in village Sureli, and as soon as I reached near
the house of Chhatra S/o Sukhdeva Jat then I heard
sound of cry of a little girl, where upon I entered into the
house then the dhoti of accused was in open condition
and he ran outside seeing me. I saw that ‘V’ who is
daughter of ‘X’ was lying unconscious and blood was
oozing from her private part, at that time Prabhu Kumhar
came there on camel Lattha from the side of Banatha, as
such I sit with girl over the Lattha of camel and brought
her to house because neither Mother of her was present
in house and nor ‘X’. After some time Savitri mother of
‘V’ came to our village but since any means of
conveyance was not available for going to police station
therefore report was not lodged. Primary treatment was
provided by calling nurse of Sureli and Private Sindhi
Doctor Siwad and thereafter today after coming from
there I had lodged report in police station.
Applicant – Gulab Chand
S/o Sunder Lal Caste Mahajan
R/o Sureli
Sd/-
Gulab Chand Gupta
Date 4.3.86”
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.
Criminal Appeal No. 586/2017 Page 3 of 29
TRIAL COURT JUDGMENT
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 PW-
2 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
Criminal Appeal No. 586/2017 Page 4 of 29
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
6 th
Code, 1860 , and he was, vide order of sentencing dated 19
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
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
6
Hereafter ‘IPC’
Criminal Appeal No. 586/2017 Page 5 of 29
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.
7
[See: Atley v. State of U.P . ; and Geeta Devi v. State of U.P.
8
etc. ]. Clearly, the same has not been followed. The discussion
on merits of the matter by the High Court is reproduced herein
below :
“The statement of PW-2 Gulab Chand, the central
witness of the prosecution, as recorded in Ex.D-1,
assumes importance. A bare perusal of that document
reveals that he is stated to have witnessed the appellant
to be engaged in the act of forcible sexual intercourse
with the victim, when he entered the room. This runs
counter to the narration made in his written report on
which the investigation was initiated as well as his
deposition at the trial. PW-10 Prabhu also has not
supported him in full. His statement that his attention
was drawn by the cries of the victim is belied by her
statement that she was found unconscious and unable to
speak.
9
Though the victim, ‘V’ was a child at the time of
her examination in Court, it is unlikely that if the
incident would have been true she would have been so
indifferent and inert as she happened to be when asked
about the same. It seems that no attempt as well had been
made to brief her in this regard. Though keeping her age
in mind, the incident even if had occurred in the manner
as projected by the prosecution, could have been
forgotten by her, it is not acceptable that if true, the
7
AIR 1955 SC 807
8
Criminal Appeal No.78 of 2022
9
Name redacted
Criminal Appeal No. 586/2017 Page 6 of 29
parents or her relations would have made no attempt to
have at least the skeletal facts narrated in court through
her. This assumes importance in view of the consistent
stand taken on behalf of the defence that the appellant
had been framed due to subsisting dispute between him
and the father of the victim. Though the medical
evidence proves injury on her private parts, the Forensic
Science Laboratory report does not show the presence of
semen in the frock of the victim, the lungi on which she
was laid by Gulab Chand (PW-2) and also the blood
smeared soil by the police. The varying versions of
Gulab Chand is also a factor which strikes at the
trustworthiness of the prosecution case.
On a cumulative consideration of all the above, I am
thus of the view that the prosecution has not been able to
prove the charge beyond all reasonable doubt, and that,
the appellant is entitled to the benefit thereof. The
impugned judgment and order is set aside. The appeal is
allowed. The appellant stands discharged from his bail
bonds.
While acknowledging the assistance rendered by Mr.
Raunak Singhvi, learned amicus curiae, this Court
directs payment of his professional fee of Rs.5000/- to
be borne by the State Government.”
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
Criminal Appeal No. 586/2017 Page 7 of 29
10 11
v. State of H.P . ; State of Karnataka v. Puttaraja ; and Dinesh
12
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
13
directions in Nipun Saxena v. Union of India 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.
10
(2003) 8 SCC 551
11
(2004) 1 SCC 475
12
(2006) 3 SCC 771
13
(2019) 2 SCC 703
Criminal Appeal No. 586/2017 Page 8 of 29
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 :
“Question : Are you studying.
Ans : Yes I am studying.
Question : In which standard are you studying.
st
Ans : I am studying in 1 standard.
Question : Do you know meaning of smell.
Ans : Yes.
Question : Should speak lie or should speak truth?
Ans : Should speak truth.
Note :- The witness knows meaning of truth, although
has small age. The mother of witness is present in the
court with the witness. The learned counsel for the
accused has objection that mother of witness will have
to go outside the court as she is also witness in the matter.
As the mother of the witness is not eye-witness of the
occurrence and is a witness of facts after the occurrence
and witness has small age and not capable in standing in
the court room in absence of mother, therefore, on the
prayer of P.P., the permission of presence of mother in
the court room granted and instructed not to suggest any
answer to the witness to the questions asked to the
witness.
Question : Do you know the accused?
Ans: Said yes by nodding neck
Question: Do you know the name of the accused?
Ans: Witness is not giving answers on aking repeatedly
and keeps silent.
Criminal Appeal No. 586/2017 Page 9 of 29
Question: What happens with you and when?
Ans: The learned P.P., her mother and Court repeatedly
explained to give answer, but witness keeps mum and
not speak a single word. Tears were flowing from eyes
on much pressure, but not speak from mouth”
PW-2 Gulab Chand :
“…when I open the door I have seen that accused Chatra,
he was present in the court was seating upon her on that
time. When accused saw me he ran away from the room
accused dhoti was open and lying on there. When I sent
to support her at that time she was in a unconscious
condition and the blood was oozing from her private
part, on back side of her body one white cloth was lying
down on which blood stain was there …
... On Exhibit B-1 there is no mentioing about the
accused seating upon the girl ‘V’, How they cannot
remember to write about this on their report I don’t
know. On Exhibit D-1 about this nothing is mentioned,
I told to the police about this. On Exhibit B-1, they did
not wrote on a report about the piece of cloth choke
inside the mouth of ‘V’, so that she cannot shout at that
time, when I opened the door accused saw me and ran
away at that time. Therefore, I cannot say that at that
time when accused was above [‘V’] at that time accused
arms was open or not.”
14
PW-10 Prabhu :
“… I came near the hut of Khadda to find that X’s
daughter was unconscious at the ‘Bayana Chabootri’. I
then went to drop off the load I was carrying on the cart,
and then proceeded towards Sureli, and then stopped of
at the house of PW-2 Gulabchand. There was no other
male with me, in the cart at that time. The child was in a
14
Translated from the original record
Criminal Appeal No. 586/2017 Page 10 of 29
bad state and her clothes were soiled with blood. There
was blood oozing out from her private parts. I did not see
the accused at the spot of the crime.
…
The police did not question me. It is wrong to say that
when I reached Khadda’s hut, at that time the accused
Vatar/Chatra was running away from the scene catching
a hold of his dhoti, towards the riverbank.”
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 inter-
course 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
Criminal Appeal No. 586/2017 Page 11 of 29
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.
12. Let us now consider pronouncements of this Court in cases
involving a child victim of sexual assault.
15
In State of Rajasthan v. Om Prakash this Court sounded
a warning against offences of sexual nature against children, in
the following terms:
15
(2002) 7 SCC 745
Criminal Appeal No. 586/2017 Page 12 of 29
“ 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 numerous cases, this Court as well as others, have
discussed the applicability of the statement of a child witness to a
case. We may notice a few of them:
16
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
16
(1997) 5 SCC 341
Criminal Appeal No. 586/2017 Page 13 of 29
reliable one and his/her demeanour must be like any
other competent witness and there is no likelihood of
being tutored…”
17
In Hari Om v. State of U.P. , a three-Judge Bench
reiterated the caution observed by this Court in
18
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] .”
17
(2021) 4 SCC 345
18
(2001) 9 SCC 129
Criminal Appeal No. 586/2017 Page 14 of 29
13. The rule regarding child witnesses was laid down by the
19
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
20
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
19
Wheeler v. United States, 1895 SCC OnLine US SC 220
20
(2017) 2 SCC 51
Criminal Appeal No. 586/2017 Page 15 of 29
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.”
21
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
21
2023 SCC OnLine SC 777
Criminal Appeal No. 586/2017 Page 16 of 29
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.”
22
In Sooryanarayana v. State of Karnataka referred to by
23
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
22
(2001) 9 SCC 129
23
(2021) 4 SCC 345
Criminal Appeal No. 586/2017 Page 17 of 29
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
24
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
25 26
M.P v. Ramesh ; Panchhi v. State of U.P. ; and State of U.P. v.
27
Ashok Dixit , etc.
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
24
2025 SCC OnLine 390; 2025 INSC 261
25
(2011) 4 SCC 786
26
(1998) 7 SCC 177
27
(2000) 3 SCC 70
Criminal Appeal No. 586/2017 Page 18 of 29
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 cross-
examination, the prosecution would be entirely
within their rights to seek conviction even solely
relying thereon.
15 . This case rests also on circumstantial evidence. The law on
that count is crystal clear. When a conviction is based on
Criminal Appeal No. 586/2017 Page 19 of 29
circumstantial evidence, the chain of circumstances must be so
complete that it rules out all other possible hypotheses other than
the guilt of the accused. The most well-recognized judgment is
28
Sharad Birdhichand Sarda v. State of Maharashtra wherein
S. Murtaza Fazal Ali J., laid down the following Panchsheel
Principles :
“ 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 [(1973) 2
SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783]
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,
28
(1984) 4 SCC 116
Criminal Appeal No. 586/2017 Page 20 of 29
( 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 must
show that in all human probability the act must have
been done by the accused.”
16 . Also important to consider is the degree of certainty
required, in a given set of facts and circumstances, before a person
can be either convicted or acquitted of a crime. This question
29
engaged the Court in Ramakant Rai v. Madan Rai , wherein it
was observed :
“ 23. A person has, no doubt, a profound right not to be
convicted of an offence which is not established by the
evidential standard of proof beyond reasonable doubt.
Though this standard is a higher standard, there is,
however, no absolute standard. What degree of
probability amounts to “proof” is an exercise particular
to each case. Referring to ( sic ) of probability amounts to
“proof” is an exercise, the interdependence of evidence
and the confirmation of one piece of evidence by
another, as learned author says : [see The Mathematics
of Proof II : Glanville Williams, Criminal Law Review,
1979, by Sweet and Maxwell, p. 340 (342)]
“The simple multiplication rule does not apply
if the separate pieces of evidence are
dependent. Two events are dependent when
they tend to occur together, and the evidence
of such events may also be said to be
dependent. In a criminal case, different pieces
of evidence directed to establishing that the
29
(2003) 12 SCC 395
Criminal Appeal No. 586/2017 Page 21 of 29
defendant did the prohibited act with the
specified state of mind are generally
dependent. A juror may feel doubt whether to
credit an alleged confession, and doubt
whether to infer guilt from the fact that the
defendant fled from justice. But since it is
generally guilty rather than innocent people
who make confessions, and guilty rather than
innocent people who run away, the two doubts
are not to be multiplied together. The one
piece of evidence may confirm the other.”
24. Doubts would be called reasonable if they are free
from a zest for abstract speculation. Law cannot afford
any favourite other than the truth. To constitute
reasonable doubt, it must be free from an over emotional
response. Doubts must be actual and substantial doubts
as to the guilt of the accused persons arising from the
evidence, or from the lack of it, as opposed to mere
vague apprehensions. A reasonable doubt is not an
imaginary, trivial or a merely possible doubt; but a fair
doubt based upon reason and common sense. It must
grow out of the evidence in the case.
25. The concepts of probability, and the degrees of it,
cannot obviously be expressed in terms of units to be
mathematically enumerated as to how many of such
units constitute proof beyond reasonable doubt. There is
an unmistakable subjective element in the evaluation of
the degrees of probability and the quantum of proof.
Forensic probability must, in the last analysis, rest on a
robust common sense and, ultimately, on the trained
intuitions of the judge. While the protection given by the
criminal process to the accused persons is not to be
eroded, at the same time, uninformed legitimisation of
trivialities would make a mockery of the administration
of criminal justice. This position was illuminatingly
stated by Venkatachaliah, J. (as His Lordship then was)
in State of U.P. v. Krishna Gopal [(1988) 4 SCC 302
: 1988 SCC (Cri) 928 : AIR 1988 SC 2154].”
Criminal Appeal No. 586/2017 Page 22 of 29
16.1 Observations by O. Chinappa Reddy J., in K. Gopal
30
Reddy v. State of A.P. are also instructive. He observed :
“9. … “A reasonable doubt”, it has been remarked, “does
not mean some light, airy, insubstantial doubt that may
flit through the minds of any of us about almost anything
at some time or other; it does not mean a doubt begotten
by sympathy out of reluctance to convict; it means a real
doubt, a doubt founded upon reasons [ Salmon, J. in his
charge to the jury in R. v. Fantle reported in 1959
Criminal Law Review 584] . As observed by Lord
Denning in Miller v. Minister of Pensions [(1947) 2 All
ER 372] “Proof beyond a reasonable doubt does not
mean proof beyond a shadow of a doubt. The law would
fail to protect the community if it admitted fanciful
possibilities to deflect the course of justice. If the
evidence is so strong against a man as to leave only a
remote possibility in his favour, which can be dismissed
with the sentence “of course it is possible but not in the
least probable”, the case is proved beyond reasonable
doubt, but nothing short of that will suffice.” In Khem
Karan v. State of U.P. [(1974) 4 SCC 603 : 1974 SCC
(Cri) 689 : AIR 1974 SC 1567] this Court observed:
“Neither mere possibilities nor remote
possibilities nor mere doubts which are not
reasonable can, without danger to the
administration of justice, be the foundation
of the acquittal of an accused person, if there
is otherwise fairly credible testimony.”
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
30
(1979) 1 SCC 355
Criminal Appeal No. 586/2017 Page 23 of 29
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
31
Gujarat , 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
31
(2019) 17 SCC 523
Criminal Appeal No. 586/2017 Page 24 of 29
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
32
Maharashtra v. Bandu alias Daulat , 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
33
Patan Jamal Vali v. State of A.P. frowned upon an earlier
34
observation made by this Court in Mange v. State of Haryana ,
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
32
(2018) 11 SCC 163
33
(2021) 16 SCC 225
34
(1979) 4 SCC 349
Criminal Appeal No. 586/2017 Page 25 of 29
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.
18. Therefore, we move to the statement of the other
witnesses. The ground adopted by the High Court in disbelieving
the statement of PW-2 is that there was a material contradiction
between his statement which formed part of the FIR, and his
deposition before the Court. The FIR, as reproduced supra, states
that when PW-2 reached the spot of the offence, the garment
worn by the accused (Dhoti) was in loose, open condition and he
ran out upon seeing the deponent. Whereas, in the deposition
made before the Court, also reproduced supra, the statement is to
the effect that when he saw the accused, he was bent down and
Criminal Appeal No. 586/2017 Page 26 of 29
‘seated’ upon the victim, which he had allegedly mentioned to
the authorities, and they neglected to mention the same in the
report. At this juncture, it is important to note the testimony of
PW-2 does not reveal whether he is able to read/write, it does not
speak to the factum of who wrote the report, and neither is it clear
that if someone else, that is a scribe, wrote the report, as to
whether he was examined or not.
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
35
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 cross-
examination 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.
36
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
35
(1994) 3 SCC 569
36
(2015) 11 SCC 69
Criminal Appeal No. 586/2017 Page 27 of 29
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.
20. We have examined the evidence of PW-14. The version
suggested by the defence that the injury caused to the private part
of ‘V’ could not have been caused by a nail or an all-pin. Further
attempt to discredit the evidence of the Doctor by suggesting that
he had, in fact, given his findings, influenced by a bribe, is only
a mere allegation/statement, as the same is entirely
unsubstantiated by the record. Even on being queried by the
Court, the witness answered that the cause of injury to ‘V’ can be
through sexual intercourse, or an accident. That, coupled with the
finding of injury on the genital organ of the accused being
possible only due to forceful intercourse with a minor female,
leads to a circumstance pointing to the respondent-accused
having committed the offense against ‘V’.
21. The possibility of animosity between the accused and the
father of ‘V’ has not been established to the point that it would
Criminal Appeal No. 586/2017 Page 28 of 29
represent a crack in the wall of the prosecution case, giving rise
to reasonable doubt.
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,
th
Tonk, by judgment dated 19 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.
Pending Application(s) if any, shall stand closed.
Original records of the case be sent back to the concerned
Court.
.................................J.
(VIKRAM NATH)
..................................J.
(SANJAY KAROL)
New Delhi;
March 18, 2025.
Criminal Appeal No. 586/2017 Page 29 of 29
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.586 OF 2017
STATE OF RAJASTHAN … APPELLANT(S)
VERSUS
CHATRA … RESPONDENT(S)
J U D G M E N T
SANJAY KAROL, J.
rd
1. Nearly forty years ago, on 3 March 1986 happened an
incident, that forever altered the trajectory of a minor girl’s life,
1
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
Signature Not Verified
Digitally signed by
RAJNI MUKHI
Date: 2025.03.18
17:07:45 IST
Reason:
1
Identity concealed
Criminal Appeal No. 586/2017 Page 1 of 29
allegedly subjected her to sexual assault. The said Gulab Chand
th
filed a report with the concerned police station on 4 March,
2
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.
2. The State is before us, being aggrieved by the finding of
acquittal recorded by the learned Single Judge of the High Court
3
of Judicature for Rajasthan at Jaipur Bench, Jaipur , vide
th
judgment dated 12 July 2013 which set aside the finding of
4
conviction entered by learned Sessions Judge, Tonk vide
th
judgment dated 19 November 1987.
3. The FIR recorded the occurrence of incident in the
following terms:-
“To,
The S.H.O.
Uniyara.
Sir,
5
Subject : With regard to the rape with ‘V’ D/o ‘X’ .
It is respectfully submitted that it is incident of about
1:30 hours that I had gone to handle well on hut of
2
Crime No. 31/86
3
In S.B Criminal Appeal No. 503/1987
4
Sessions Trial 26/86
5
Name of the father of the victim is also redacted for the purpose of protection of identity
Criminal Appeal No. 586/2017 Page 2 of 29
Khadda in village Sureli, and as soon as I reached near
the house of Chhatra S/o Sukhdeva Jat then I heard
sound of cry of a little girl, where upon I entered into the
house then the dhoti of accused was in open condition
and he ran outside seeing me. I saw that ‘V’ who is
daughter of ‘X’ was lying unconscious and blood was
oozing from her private part, at that time Prabhu Kumhar
came there on camel Lattha from the side of Banatha, as
such I sit with girl over the Lattha of camel and brought
her to house because neither Mother of her was present
in house and nor ‘X’. After some time Savitri mother of
‘V’ came to our village but since any means of
conveyance was not available for going to police station
therefore report was not lodged. Primary treatment was
provided by calling nurse of Sureli and Private Sindhi
Doctor Siwad and thereafter today after coming from
there I had lodged report in police station.
Applicant – Gulab Chand
S/o Sunder Lal Caste Mahajan
R/o Sureli
Sd/-
Gulab Chand Gupta
Date 4.3.86”
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.
Criminal Appeal No. 586/2017 Page 3 of 29
TRIAL COURT JUDGMENT
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 PW-
2 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
Criminal Appeal No. 586/2017 Page 4 of 29
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
6 th
Code, 1860 , and he was, vide order of sentencing dated 19
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
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
6
Hereafter ‘IPC’
Criminal Appeal No. 586/2017 Page 5 of 29
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.
7
[See: Atley v. State of U.P . ; and Geeta Devi v. State of U.P.
8
etc. ]. Clearly, the same has not been followed. The discussion
on merits of the matter by the High Court is reproduced herein
below :
“The statement of PW-2 Gulab Chand, the central
witness of the prosecution, as recorded in Ex.D-1,
assumes importance. A bare perusal of that document
reveals that he is stated to have witnessed the appellant
to be engaged in the act of forcible sexual intercourse
with the victim, when he entered the room. This runs
counter to the narration made in his written report on
which the investigation was initiated as well as his
deposition at the trial. PW-10 Prabhu also has not
supported him in full. His statement that his attention
was drawn by the cries of the victim is belied by her
statement that she was found unconscious and unable to
speak.
9
Though the victim, ‘V’ was a child at the time of
her examination in Court, it is unlikely that if the
incident would have been true she would have been so
indifferent and inert as she happened to be when asked
about the same. It seems that no attempt as well had been
made to brief her in this regard. Though keeping her age
in mind, the incident even if had occurred in the manner
as projected by the prosecution, could have been
forgotten by her, it is not acceptable that if true, the
7
AIR 1955 SC 807
8
Criminal Appeal No.78 of 2022
9
Name redacted
Criminal Appeal No. 586/2017 Page 6 of 29
parents or her relations would have made no attempt to
have at least the skeletal facts narrated in court through
her. This assumes importance in view of the consistent
stand taken on behalf of the defence that the appellant
had been framed due to subsisting dispute between him
and the father of the victim. Though the medical
evidence proves injury on her private parts, the Forensic
Science Laboratory report does not show the presence of
semen in the frock of the victim, the lungi on which she
was laid by Gulab Chand (PW-2) and also the blood
smeared soil by the police. The varying versions of
Gulab Chand is also a factor which strikes at the
trustworthiness of the prosecution case.
On a cumulative consideration of all the above, I am
thus of the view that the prosecution has not been able to
prove the charge beyond all reasonable doubt, and that,
the appellant is entitled to the benefit thereof. The
impugned judgment and order is set aside. The appeal is
allowed. The appellant stands discharged from his bail
bonds.
While acknowledging the assistance rendered by Mr.
Raunak Singhvi, learned amicus curiae, this Court
directs payment of his professional fee of Rs.5000/- to
be borne by the State Government.”
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
Criminal Appeal No. 586/2017 Page 7 of 29
10 11
v. State of H.P . ; State of Karnataka v. Puttaraja ; and Dinesh
12
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
13
directions in Nipun Saxena v. Union of India 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.
10
(2003) 8 SCC 551
11
(2004) 1 SCC 475
12
(2006) 3 SCC 771
13
(2019) 2 SCC 703
Criminal Appeal No. 586/2017 Page 8 of 29
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 :
“Question : Are you studying.
Ans : Yes I am studying.
Question : In which standard are you studying.
st
Ans : I am studying in 1 standard.
Question : Do you know meaning of smell.
Ans : Yes.
Question : Should speak lie or should speak truth?
Ans : Should speak truth.
Note :- The witness knows meaning of truth, although
has small age. The mother of witness is present in the
court with the witness. The learned counsel for the
accused has objection that mother of witness will have
to go outside the court as she is also witness in the matter.
As the mother of the witness is not eye-witness of the
occurrence and is a witness of facts after the occurrence
and witness has small age and not capable in standing in
the court room in absence of mother, therefore, on the
prayer of P.P., the permission of presence of mother in
the court room granted and instructed not to suggest any
answer to the witness to the questions asked to the
witness.
Question : Do you know the accused?
Ans: Said yes by nodding neck
Question: Do you know the name of the accused?
Ans: Witness is not giving answers on aking repeatedly
and keeps silent.
Criminal Appeal No. 586/2017 Page 9 of 29
Question: What happens with you and when?
Ans: The learned P.P., her mother and Court repeatedly
explained to give answer, but witness keeps mum and
not speak a single word. Tears were flowing from eyes
on much pressure, but not speak from mouth”
PW-2 Gulab Chand :
“…when I open the door I have seen that accused Chatra,
he was present in the court was seating upon her on that
time. When accused saw me he ran away from the room
accused dhoti was open and lying on there. When I sent
to support her at that time she was in a unconscious
condition and the blood was oozing from her private
part, on back side of her body one white cloth was lying
down on which blood stain was there …
... On Exhibit B-1 there is no mentioing about the
accused seating upon the girl ‘V’, How they cannot
remember to write about this on their report I don’t
know. On Exhibit D-1 about this nothing is mentioned,
I told to the police about this. On Exhibit B-1, they did
not wrote on a report about the piece of cloth choke
inside the mouth of ‘V’, so that she cannot shout at that
time, when I opened the door accused saw me and ran
away at that time. Therefore, I cannot say that at that
time when accused was above [‘V’] at that time accused
arms was open or not.”
14
PW-10 Prabhu :
“… I came near the hut of Khadda to find that X’s
daughter was unconscious at the ‘Bayana Chabootri’. I
then went to drop off the load I was carrying on the cart,
and then proceeded towards Sureli, and then stopped of
at the house of PW-2 Gulabchand. There was no other
male with me, in the cart at that time. The child was in a
14
Translated from the original record
Criminal Appeal No. 586/2017 Page 10 of 29
bad state and her clothes were soiled with blood. There
was blood oozing out from her private parts. I did not see
the accused at the spot of the crime.
…
The police did not question me. It is wrong to say that
when I reached Khadda’s hut, at that time the accused
Vatar/Chatra was running away from the scene catching
a hold of his dhoti, towards the riverbank.”
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 inter-
course 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
Criminal Appeal No. 586/2017 Page 11 of 29
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.
12. Let us now consider pronouncements of this Court in cases
involving a child victim of sexual assault.
15
In State of Rajasthan v. Om Prakash this Court sounded
a warning against offences of sexual nature against children, in
the following terms:
15
(2002) 7 SCC 745
Criminal Appeal No. 586/2017 Page 12 of 29
“ 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 numerous cases, this Court as well as others, have
discussed the applicability of the statement of a child witness to a
case. We may notice a few of them:
16
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
16
(1997) 5 SCC 341
Criminal Appeal No. 586/2017 Page 13 of 29
reliable one and his/her demeanour must be like any
other competent witness and there is no likelihood of
being tutored…”
17
In Hari Om v. State of U.P. , a three-Judge Bench
reiterated the caution observed by this Court in
18
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] .”
17
(2021) 4 SCC 345
18
(2001) 9 SCC 129
Criminal Appeal No. 586/2017 Page 14 of 29
13. The rule regarding child witnesses was laid down by the
19
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
20
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
19
Wheeler v. United States, 1895 SCC OnLine US SC 220
20
(2017) 2 SCC 51
Criminal Appeal No. 586/2017 Page 15 of 29
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.”
21
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
21
2023 SCC OnLine SC 777
Criminal Appeal No. 586/2017 Page 16 of 29
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.”
22
In Sooryanarayana v. State of Karnataka referred to by
23
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
22
(2001) 9 SCC 129
23
(2021) 4 SCC 345
Criminal Appeal No. 586/2017 Page 17 of 29
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
24
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
25 26
M.P v. Ramesh ; Panchhi v. State of U.P. ; and State of U.P. v.
27
Ashok Dixit , etc.
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
24
2025 SCC OnLine 390; 2025 INSC 261
25
(2011) 4 SCC 786
26
(1998) 7 SCC 177
27
(2000) 3 SCC 70
Criminal Appeal No. 586/2017 Page 18 of 29
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 cross-
examination, the prosecution would be entirely
within their rights to seek conviction even solely
relying thereon.
15 . This case rests also on circumstantial evidence. The law on
that count is crystal clear. When a conviction is based on
Criminal Appeal No. 586/2017 Page 19 of 29
circumstantial evidence, the chain of circumstances must be so
complete that it rules out all other possible hypotheses other than
the guilt of the accused. The most well-recognized judgment is
28
Sharad Birdhichand Sarda v. State of Maharashtra wherein
S. Murtaza Fazal Ali J., laid down the following Panchsheel
Principles :
“ 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 [(1973) 2
SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783]
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,
28
(1984) 4 SCC 116
Criminal Appeal No. 586/2017 Page 20 of 29
( 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 must
show that in all human probability the act must have
been done by the accused.”
16 . Also important to consider is the degree of certainty
required, in a given set of facts and circumstances, before a person
can be either convicted or acquitted of a crime. This question
29
engaged the Court in Ramakant Rai v. Madan Rai , wherein it
was observed :
“ 23. A person has, no doubt, a profound right not to be
convicted of an offence which is not established by the
evidential standard of proof beyond reasonable doubt.
Though this standard is a higher standard, there is,
however, no absolute standard. What degree of
probability amounts to “proof” is an exercise particular
to each case. Referring to ( sic ) of probability amounts to
“proof” is an exercise, the interdependence of evidence
and the confirmation of one piece of evidence by
another, as learned author says : [see The Mathematics
of Proof II : Glanville Williams, Criminal Law Review,
1979, by Sweet and Maxwell, p. 340 (342)]
“The simple multiplication rule does not apply
if the separate pieces of evidence are
dependent. Two events are dependent when
they tend to occur together, and the evidence
of such events may also be said to be
dependent. In a criminal case, different pieces
of evidence directed to establishing that the
29
(2003) 12 SCC 395
Criminal Appeal No. 586/2017 Page 21 of 29
defendant did the prohibited act with the
specified state of mind are generally
dependent. A juror may feel doubt whether to
credit an alleged confession, and doubt
whether to infer guilt from the fact that the
defendant fled from justice. But since it is
generally guilty rather than innocent people
who make confessions, and guilty rather than
innocent people who run away, the two doubts
are not to be multiplied together. The one
piece of evidence may confirm the other.”
24. Doubts would be called reasonable if they are free
from a zest for abstract speculation. Law cannot afford
any favourite other than the truth. To constitute
reasonable doubt, it must be free from an over emotional
response. Doubts must be actual and substantial doubts
as to the guilt of the accused persons arising from the
evidence, or from the lack of it, as opposed to mere
vague apprehensions. A reasonable doubt is not an
imaginary, trivial or a merely possible doubt; but a fair
doubt based upon reason and common sense. It must
grow out of the evidence in the case.
25. The concepts of probability, and the degrees of it,
cannot obviously be expressed in terms of units to be
mathematically enumerated as to how many of such
units constitute proof beyond reasonable doubt. There is
an unmistakable subjective element in the evaluation of
the degrees of probability and the quantum of proof.
Forensic probability must, in the last analysis, rest on a
robust common sense and, ultimately, on the trained
intuitions of the judge. While the protection given by the
criminal process to the accused persons is not to be
eroded, at the same time, uninformed legitimisation of
trivialities would make a mockery of the administration
of criminal justice. This position was illuminatingly
stated by Venkatachaliah, J. (as His Lordship then was)
in State of U.P. v. Krishna Gopal [(1988) 4 SCC 302
: 1988 SCC (Cri) 928 : AIR 1988 SC 2154].”
Criminal Appeal No. 586/2017 Page 22 of 29
16.1 Observations by O. Chinappa Reddy J., in K. Gopal
30
Reddy v. State of A.P. are also instructive. He observed :
“9. … “A reasonable doubt”, it has been remarked, “does
not mean some light, airy, insubstantial doubt that may
flit through the minds of any of us about almost anything
at some time or other; it does not mean a doubt begotten
by sympathy out of reluctance to convict; it means a real
doubt, a doubt founded upon reasons [ Salmon, J. in his
charge to the jury in R. v. Fantle reported in 1959
Criminal Law Review 584] . As observed by Lord
Denning in Miller v. Minister of Pensions [(1947) 2 All
ER 372] “Proof beyond a reasonable doubt does not
mean proof beyond a shadow of a doubt. The law would
fail to protect the community if it admitted fanciful
possibilities to deflect the course of justice. If the
evidence is so strong against a man as to leave only a
remote possibility in his favour, which can be dismissed
with the sentence “of course it is possible but not in the
least probable”, the case is proved beyond reasonable
doubt, but nothing short of that will suffice.” In Khem
Karan v. State of U.P. [(1974) 4 SCC 603 : 1974 SCC
(Cri) 689 : AIR 1974 SC 1567] this Court observed:
“Neither mere possibilities nor remote
possibilities nor mere doubts which are not
reasonable can, without danger to the
administration of justice, be the foundation
of the acquittal of an accused person, if there
is otherwise fairly credible testimony.”
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
30
(1979) 1 SCC 355
Criminal Appeal No. 586/2017 Page 23 of 29
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
31
Gujarat , 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
31
(2019) 17 SCC 523
Criminal Appeal No. 586/2017 Page 24 of 29
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
32
Maharashtra v. Bandu alias Daulat , 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
33
Patan Jamal Vali v. State of A.P. frowned upon an earlier
34
observation made by this Court in Mange v. State of Haryana ,
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
32
(2018) 11 SCC 163
33
(2021) 16 SCC 225
34
(1979) 4 SCC 349
Criminal Appeal No. 586/2017 Page 25 of 29
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.
18. Therefore, we move to the statement of the other
witnesses. The ground adopted by the High Court in disbelieving
the statement of PW-2 is that there was a material contradiction
between his statement which formed part of the FIR, and his
deposition before the Court. The FIR, as reproduced supra, states
that when PW-2 reached the spot of the offence, the garment
worn by the accused (Dhoti) was in loose, open condition and he
ran out upon seeing the deponent. Whereas, in the deposition
made before the Court, also reproduced supra, the statement is to
the effect that when he saw the accused, he was bent down and
Criminal Appeal No. 586/2017 Page 26 of 29
‘seated’ upon the victim, which he had allegedly mentioned to
the authorities, and they neglected to mention the same in the
report. At this juncture, it is important to note the testimony of
PW-2 does not reveal whether he is able to read/write, it does not
speak to the factum of who wrote the report, and neither is it clear
that if someone else, that is a scribe, wrote the report, as to
whether he was examined or not.
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
35
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 cross-
examination 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.
36
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
35
(1994) 3 SCC 569
36
(2015) 11 SCC 69
Criminal Appeal No. 586/2017 Page 27 of 29
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.
20. We have examined the evidence of PW-14. The version
suggested by the defence that the injury caused to the private part
of ‘V’ could not have been caused by a nail or an all-pin. Further
attempt to discredit the evidence of the Doctor by suggesting that
he had, in fact, given his findings, influenced by a bribe, is only
a mere allegation/statement, as the same is entirely
unsubstantiated by the record. Even on being queried by the
Court, the witness answered that the cause of injury to ‘V’ can be
through sexual intercourse, or an accident. That, coupled with the
finding of injury on the genital organ of the accused being
possible only due to forceful intercourse with a minor female,
leads to a circumstance pointing to the respondent-accused
having committed the offense against ‘V’.
21. The possibility of animosity between the accused and the
father of ‘V’ has not been established to the point that it would
Criminal Appeal No. 586/2017 Page 28 of 29
represent a crack in the wall of the prosecution case, giving rise
to reasonable doubt.
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,
th
Tonk, by judgment dated 19 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.
Pending Application(s) if any, shall stand closed.
Original records of the case be sent back to the concerned
Court.
.................................J.
(VIKRAM NATH)
..................................J.
(SANJAY KAROL)
New Delhi;
March 18, 2025.
Criminal Appeal No. 586/2017 Page 29 of 29