[Cites 24, Cited by 0]
Gujarat High Court
Kedarbhai Ishwarbhai Rathod vs State Of Gujarat on 19 January, 2026
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1149 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
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Approved for Reporting Yes No
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KEDARBHAI ISHWARBHAI RATHOD
Versus
STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MR PRATIK B BAROT(3711) for the Appellant(s) No. 1
MR BHARGAV PANDYA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 19/01/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. This conviction appeal is filed by the appellant -sole accused -
Kedar Rathod, against the judgment of conviction and order of
sentence dated 11.05.2017, passed by the learned Additional Sessions
Judge, Bardoli at Surat in Sessions Case No.93 of 2015, wherein the
appellants came to be tried for the offences punishable under Sections
363, 365 and 376 of the IPC.
2. At the end of the trial, the appellant came to be convicted and
sentenced as tabulated hereunder:
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Conviction under Sentence of Fine
Section imprisonment
S.363 of IPC RI for 07 years Rs.1000/-, in default to
undergo 1 month
simple imprisonment
S.365 of IPC RI for 07 years Rs.1000/-, in default to
undergo 1 month
simple imprisonment
S.376 of IPC Life Imprisonment Rs.2000/- in default to
undergo 02 months
simple imprisonment
The Trial Court ordered the sentences imposed on the appellant
to run concurrently.
3. The case of the prosecution leading to conviction of the
appellants accused is as follows:
3.1 The appellant-accused was tried and prosecuted for the offence
of kidnapping and rape allegedly committed upon the victim aged
about 4 years. The offence was occurred on 17.10.2012 to 18.10.2012
between 17:00 hours to 1:30 hours at Village: Pardi, Bardoli. On the
next day, the FIR by the father of the victim with the Bardoli Police
Station, came to be registered. It is the case of prosecution that, the
accused Kedar, resident of Village: Pardi, kidnapped the victim aged
about 4 years and raped on the pretext of feeding wafer. The wafer was
purchased from the shop of PW.12 - Rajubhai Rathod and the victim
was lastly seen by Rajubhai in the company of the accused. in the night
hours, the victim was raped and she was abandoned at the secluded
place on the roadside of the village. She was seen by PW.4 - Shailesh
Rathod and others as he being a tractor driver, was returning back from
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the field with other labourers. The victim was profusely bleeding from
the private parts and she was taken by the witness (PW.4) from the
place and handed over to her father - Champakbhai Rathod (PW.7).
The father was in search of victim and after extensive search, before
victim could come to house, it was learnt from the witness Rajubhai
(PW.12) that, the victim was taken away by Kedar after purchasing
wafer from the shop. The investigation of the case was entrusted to
PW.14. The I.O. during the investigation, recorded the statements of
the witnesses, sent the victim for medical examination at Local
Medical Centre and Hospital at Bardoli and obtained necessary blood
samples from the body of the victim for chemical analysis. The
accused came to be arrested on 07.12.2012. The I.O. after due
investigation, filed a chargesheet against the accused for the offences
punishable under Sections 363, 366 and 376 of the IPC before
Jurisdictional Magistrate.
4. As the case was exclusively triable by Court of Sessions, it was
committed to the Court of sessions at Bardoli, District: Surat.
5. The learned Sessions Court framed the charge against the
appellant accused which he did not admit the charge and claimed to be
tried.
6. The prosecution, in order to prove the charge adduced the
following oral as well as documentary evidence in support of its case:
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Oral evidence -14
PW 1 - Exh.9 Likhabhai Karsanbhai Rathod, Panch witness
PW 2 - Exh.12 Rameshbhai Somabhai Rathod, Panch witness
PW 3 - Exh.16 Natubhai Lalbhai Dimar, Panch witness
PW 4 - Exh.17 Shaileshbhai Thakorbhai Rathod
PW 5 - Exh.18 Dr. Ramiben Kashiyabhai Choudhari
PW 6 - Exh.25 Dr. alok Shivdayal Goyal
PW 7 - Exh.29 Champakbhai Ganpatbhai Rathod, Complainant
PW 8 - Exh.32 Sathishbhai Rameshbhai Rathod
PW 9 - Exh.33 Girishbhai Rameshbhai Rathod
PW 10 - Exh.34 Shaileshbhai Sureshbhai Rathod
PW 11 - Exh.36 Nimuben Babubhai Choudhari
PW 12 - Exh.37 Rajubhai Sukhabhai Rathod
PW 13 - Exh.39 Victim
PW 14 - Exh.40 Sunil Chandrakant Tarade, IO
Documentary evidence -21
Exh.10 Panchnama of place of offence
Exh.13 Panchnama of clothes of victim
Exh.14 Arrest Panchnama
Exh.15 Panchnama of S.27
Exh.19 Yadi for medical treatment of accused
Exh.20 Medical certificate of accused
Exh.21 Medical certificate of victim
Exh.22 Yadi for medical certificate of victim
Exh.26 Yadi for medical treatment of victim
Exh.27 Medical certificate of victim
Exh.30 Complaint
Exh.41 Forwarding notes
Exh.42 FSL visitation report
Exh.43 FSL visitation report
Exh.44 List
Exh.45 FSL Letter
Exh.46 FSL receipt of articles
Exh.47 FSL forwarding letter
Exh.48 FSL Biological report
Exh.49 FSL Serological report
Exh.50 Copy of articles
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7. After closure of the prosecution evidence, the statement of the
accused under Section 313 of the Cr.P.C. was recorded to which he
stated that, he has been falsely implicated in the offence and he is
innocent and has not committed any offence.
8. Though opportunity was extended, no oral evidence being
adduced by the accused in his defence.
Trial Court findings:
9. After hearing the parties and upon appreciation of the material
evidence, the accused Kedar Rathod held guilty for the offences of
kidnapping and rape and was sentenced to undergo life imprisonment
and while recording the conviction passing of the order of sentence, the
trial court mainly relied on the testimony of the victim (PW.13),
supported by other evidence like medical etc. The trial court found the
version of the victim credible, truthful, reliable and natural which does
not require further corroboration on the aspect of alleged rape and
complicity of the accused in the crime.
10. Evidence adduced by the prosecution:
10.1 Shailesh Thakorbhai Rathod (PW.4): This witness, after the
incident, saw the victim on the roadside when he was returning back by
driving his tractor from the field. At relevant time, the other persons
were there in the tractor as they were employed as labourers to carry
out the work of loading and unloading of farm produces. It is the case
of prosecution that, when the witness had seen the accused near the
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body of the victim and he was in a process to run away from the place.
However, this witness in his deposition, on the aspect of involvement
of the accused did not have supported to the case of prosecution and on
the aspect of handing over the victim to his father, has been deposed by
the witness. The witness in his chief-examination has stated that, on the
day of incident, in the night hours, he along with other labourers were
transporting the farm produces in the tractor and after proceeding from
the farm, he saw the daughter of Champakbhai Ganpatbhai Rathod
near the small canal of the roadside and she was profusely bleeding
from her vagina and the blood stains were found on the frock of the
victim. The victim thereafter, taken by the witness to her house and
handed over her to the grandfather and mother.
10.2 Satishbhai Rathod (PW.8), Girishbhai Rathod (PW.9), Shailesh
Rathod (PW.10): All three witnesses being labourers of the tractor
belong to PW.4 - Shailesh Rathod, have deposed on the line of PW.4
and on the aspect of presence of the accused at the scene of crime,
being not deposed by them and on that particular aspect, they have
been declared hostile.
10.3 Dr. Ramiben Chaudhary (PW.5): This witness being a
Medical Officer of Community Health Centre at Bardoli, had
examined the victim on 18.10.2012 at about 11:00 a.m. in the morning.
The witness in her chief-examination has stated that, she has noticed
injury over the private part of the deceased and blood was profusely
bleeding from vagina and it was painful. The witness after giving a
primary treatment to the victim, she was referred to New Civil
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Hospital, Surat for further treatment.
This witness had also examined the accused when he was
brought on 07.12.2012 and took necessary blood samples and other
samples from his body.
10.4 Dr. Alok Shivdayal Goyal: This witness being a Medical
Officer of New Civil Hospital, Surat had examined the victim, brought
before him on 18.10.2012 with police yadi. On examination, the
witness found multiple abrasion marks over her back and upon further
examination of the private part, he noticed that, her hymen was torn
which extend up to the anal and she had a complaint of pain over the
private part. According to opinion of the doctor, the possibility of rape
by adult person cannot be ruled out. The doctor had taken necessary
blood samples and samples of vaginal swabs and other things for FSL
purpose.
10.5 Champak Ganpatbhai Rathod (PW.7): This witness is the
father of the victim. He has stated in his chief-examination that, the
accused Kedar kidnapped her daughter and then committed rape upon
her. It is stated that, the accused took the victim under the pretext of
feeding wafer. He has further stated that, he learnt about taking away
of his daughter by Kedar from witness Rajubhai (PW.12) as from his
shop, the accused Kedar purchased the wafer. The witness - father has
further stated that, after knowing the kidnapping of his daughter by the
accused, he went to his house, but the accused was not available at
home and thereafter, he made extensive search of his daughter. The
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witness has further stated that, in the midnight, his daughter was seen
by witness Shaileshbhai and others and after taking her daughter, she
was dropped at our home by them. The witness has further stated that,
due to the incident, the victim was in shock and unable to speak about
the incident. The witness then contacted the Village Sarpanch and then,
taken the victim at the Village Health Centre, Bardoli and after taking
primary treatment over there, as per the advice, she was referred to
New Civil Hospital, Surat where she was admitted and remained in the
hospital for about 8 to 9 days. The witness has stated that, he being a
father, lodged an FIR before Bardoli Police which he produced at
Exh.30.
In the cross-examination, the witness - father has admitted that,
he has not seen the incident. He also admitted that, before the incident,
he had a quarrel with the accused. The witness has denied to the
suggestion that, on the basis of suspicion and due to prior dispute with
the accused, the false FIR giving his name being lodged with the
police. The witness has denied that, her daughter sustained injuries
while playing.
10.6 Rajubhai Rathod (PW.12): This witness being an owner of
the grocery shop, had sold a wafer pouch to the accused. This witness
in his chief-examination has stated that, on 17.10.2012, in the
afternoon, the accused came to his shop and purchased a pouch of the
wafer and then, he left the shop. The witness has denied that, the
accused Kedar along with the victim came to his shop for purchasing a
wafer pouch. The witness was declared hostile and in the chief-
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examination, he did not admit that, the victim was also with the
accused when he purchased the wafer pouch from his shop.
10.7 Victim (Prosecutrix aged about 5 years)(PW.13): On the issue of
maturity of the witness to understand the proposed questions and
answers, the trial court made inquiry after questioning certain
questions to the victim and on the basis of her reply, the court was
satisfied that, the witness was competent witness to testify and without
giving her oath, her testimony came to be recorded.
The victim in her chief-examination stated that, at the time of
incident, she was playing at the play area situated nearby her house and
at that time, Kedar came there and gave her wafer and then, she had
been taken at the sugarcane field where he did wrong thing with her
and then, leaving her alone near the canal of the roadside of the village,
he ran away. The victim has further stated that, she was dropped at
home by one Dinesh. The victim has further stated that, she has
informed her parents about the incident. The victim has identified the
accused in the court.
In the cross-examination, it was asked to the victim that, was she
being tutored by anyone to depose against the accused. In the response
to the said question, the victim has stated that, her father has told her
that you have to say in the court what happened to you.
10.8 Sunil Chandrakant Tarde (PW.14): This witness being a Police
Inspector, attached with Bardoli Police Station, had investigated the
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case and filed a chargesheet against the accused. The witness had
stated that, on 18.10.2012, the complainant Champakbhai Rathod
lodged an FIR at the C.H.C., Bardoli with respect to the alleged rape of
her daughter allegedly committed by the accused Kedar. The witness
has further stated that, after registration of the offence, the case was
handed over to him for investigation and during the investigation, he
prepared the spot panchnama, recorded the statements of the witnesses,
sent the victim for medical examination and collected the necessary
case papers as well as certificates, sent the muddamal seized articles at
FSL, Surat, arrested the accused and after due investigation, he has
filed the chargesheet before the court concerned.
In the cross-examination, the I.O. has admitted that, during the
investigation, he did not have recorded the statement of the victim
which he explained that, due to age of the victim, it could not be
recorded. The I.O. has further admitted that, during the investigation,
he has not seized the pouch of the wafer. The I.O. has denied to the
suggestion that, the accused was arrested on the basis of suspicion and
despite of insufficient evidence, he has filed the chargesheet against the
accused.
11. Submissions of the parties:
12. Mr.Pratik Barot, learned advocate appearing for and on behalf of
the appellant accused while assailing the judgment of conviction and
order of sentence, contended that the prosecution has failed to prove its
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case beyond reasonable doubt and findings of conviction being
recorded on the basis of conjectures and surmises on the basis of the
conviction is suspicion and it is settled legal position of law that
suspicion however strong cannot basis for conviction.
13. It was submitted that the learned Trial Court grossly erred while
convicting the accused without appreciating the evidence in the right
perspective.
14. It was further submitted that the prosecution case rested its case
mainly upon the evidence of victim PW:13 aged about 4 years and her
evidence is full of contradiction and improvement and she cannot be
accepted as wholly reliable witness and considering her age, her
evidence has to be subjected to close scrutiny and can be accepted if
the Court comes to the conclusion that child understands the question
put to her and she is capable of giving rational answers. Referring to
her testimony, it was submitted that after the incident, she did not
disclose about the incident and name of the accused to her parents or
anyone and the said facts being admitted by her father PW:7 Champak
Rathod. The witnesses who were instrumental in bringing back the
victim from the place of occurrence have not stated a single word that
the accused was found at the place of incident. The witness PW:12
Rajubhai Rathod did not have stated in his testimony that the accused
along with the victim came to his shop for purchasing a wafer pouch.
In such circumstances, the sole testimony of child victim does not
inspire confidence and her version cannot be accepted as truthful and
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reliable because she being a tutored witness, deposed against the
accused and at the tender age of five, she could not understand the
meaning of intercourse which she had deposed in chief examination.
The evidence of child witness does not have corroboration from the
medical evidence as to prove the complicity of the accused, no any
bloodstain or spermatozoa found from the samples collected. In such
circumstances, it was submitted that the uncorroborated testimony of
the victim child, it is difficult to accept her version as truthful and in
that view of the matter, the conviction as recorded by the Trial Court is
not sustainable in law.
15. In view of the aforesaid submissions, learned counsel Mr.Barot
submitted that the judgment of conviction and order of sentence are not
sustainable in law and the same may be set aside and the appellant be
acquitted from all the charges.
16. On the other hand, learned APP Mr.Bhargav Pandya,
vehemently opposed the appeal. He submitted that the Trial Court has
not committed any error while holding the appellant accused guilty of
the offence of rape. The appellant accused is resident of same village
where the victim resided with her family and therefore, on the question
of identity of the accused, the I.O. has rightly not conducted T.I.
Parade. The testimony of child witness was victim of sexual assault is
reliable, truthful and does inspire confidence about the act of rape
committed by the accused. The victim in her testimony has clearly
described the incident and house she was sexually abused by the
accused. In the cross examination, she did not have accepted that under
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the influence of family members, she deposed against the accused. The
defence of the accused about his false involvement on the basis of
animosity between him and father of the victim has not been
established. The medical evidence proves that the victim was sexually
abused and there were serious injuries on her private part and in that
view of the matter, corroboration of the victim's statement does not
prerequisite and in absence of any corroboration in the form of FSL
report, does not discredit victim's version. Thus, therefore, it was
prayed that the prosecution has proved charge against the accused by
adducing sufficient, cogent and acceptable evidence and thus, it was
prayed that there being no merits in the appeal and the same may be
dismissed.
17. Having regard to the evidence on record, the only question that
arises for our consideration is as to whether the evidence on record is
sufficient to record the conviction against the appellant accused and if
the answer is yes, then what should be the appropriate punishment to
be imposed on the accused.
18. Before the proceed with the analysis of the evidence and dealing
with the contentions of the rival parties, we may aptly refer the settled
position of law regarding the evidence of child witness and how to
appreciate the solitary evidence of the victim of sexually offence.
(1) In Krishankumar Malik Vs. State of Haryana (2011 (7) SCC
130):
It was held that to hold an accused guilty for commission of
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offence of rape, the solitary evidence of the prosecutrix is sufficient
provided the same inspires confidence and appears to be absolutely
trustworthy, unblemished and should be of sterling quality.
(2) In State of Punjab Vs. Gurmitsingh (1996 (2) SCC 384):
The evidence of victim in a case of rape is of the same value as
that of an injured witness and conviction can be made on the basis of
sole testimony of victim provided her evidence inspires confidence and
it must be relied upon without seeking corroboration of her statement
in material particulars and her testimony must be appreciated in the
background of the entire case and the Trial Court must be alive to its
responsibility and be sensitive while dealing with cases involving in
sexual molestation.
(3) In a recent decision in Raju @ Umakant Vs. State of Madhya
Pradesh (2025 SCC Online 997), the Supreme Court made following
observations:
The woman or a girl subjected to sexual assault is not an
accomplice but a victim of another person's lust and it will be
improper and undesirable to test her evidence with suspicion. All that
the law mandates is that the Court should be alive to and conscious of
the fact that it is dealing with a person who is interested in the outcome
of the charge levelled by her and if after keeping that aspect in mind, if
the Court is thereafter satisfied that the evidence is trustworthy, there is
nothing that can stop the Court from acting on the sole testimony of the
prosecutrix.
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(4) Recently, the Supreme Court in State of Madhya Pradesh Vs.
Balvirsingh (2025 Livelaw Supreme Court 243), considered a large
number of prior decision of the Apex Court to lay down guidelines for
appreciation of the evidence of the child witness and test for passing
tutored testimony. Paras-25 to 37 are relevant and necessary which
reads as under:
"25. The High Court, while setting aside the conviction, found the
testimony of the child witness, Rani (PW6), to be unreliable and tutored.
Before we proceed to undertake the analysis of PW6, Rani's oral
evidence it is essential to understand how the testimony of a child
witness should be looked into and appreciated.
26. The Indian Evidence Act, 1872 (in short, the "Evidence Act")
does not prescribe any particular age as a determinative factor to treat
a witness to be a competent one. On the contrary, Section 118 of the
Evidence Act envisages that all persons shall be competent to testify,
unless the court considers that they are prevented from understanding
the questions put to them or from giving rational answers to these
questions, because of tender years, extreme old age, disease - whether
of mind, or any other cause of the same kind. A child of tender age can
be allowed to testify if he has intellectual capacity to understand
questions and give rational answers thereto.
27. In Dattu Ramrao Sakhare v. State of Maharashtra reported in
(1997) 5 SCC 341 this Court held that as long as a child witness is
found to be competent to depose i.e., capable of understanding the
questions put to it and able to give rational answers, the testimony of
such witness can be considered as evidence in terms of Section 118 of
the Evidence Act, irrespective of their tender age or absence of any
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oath. The only additional factor to be considered is that the witness
must be found to be reliable, exhibiting the demeanour of any other
competent witness, with no likelihood of having been tutored. It further
clarified that there is no requirement or condition that the evidence of a
child witness must be corroborated before it can be considered, and
rather the insistence of any corroboration is only a rule of prudence
that would depend upon the peculiar facts and circumstances of each
case. The relevant observation reads as under: -
"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. There is no rule or practice that in every
case the evidence of such a witness be corroborated before a conviction
can be allowed to stand but, however as a rule of prudence the court
always finds it desirable to have the corroboration to such evidence
from other dependable evidence on record." (Emphasis supplied)
28. Similarly in Pradeep v. State of Haryana reported in 2023 SCC
OnLine SC 777 this Court emphasized on the importance of
preliminary examination of a child witness. It held that although oat
cannot be administered to a child witness under 12-years of age yet, as
per Section 118 of the Evidence Act it is the duty of a Trial Judge to
conduct a preliminary examination before recording the evidence of the
child witness to ascertain if the child is able to understand the questions
put to him and that he is able to give rational answers to the questions
put to him. It held that the Trial Judge must record its opinion and
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satisfaction that the child witness understands the duty of speaking the
truth and state why he is of the opinion that the child understands the
duty of speaking the truth. It further held that the questions put to the
child in the preliminary examination must also be recorded so that the
appellate court can go into the correctness of the opinion of the Trial
Court. The relevant observations read as under: -
"8. Under the proviso to sub-Section (1) of Section 4, it is laid down
that in case of a child witness under 12 years of age, unless satisfaction
as required by the said proviso is recorded, an oath cannot be
administered to the child witness. In this case, in the deposition of PW-1
Ajay, it is mentioned that his age was 12 years at the time of the
recording of evidence. Therefore, the proviso to Section 4 of the Oaths
Act will not apply in this case. However, in view of the requirement of
Section 118 of the Evidence Act, the learned Trial Judge was under a
duty to record his opinion that the child is able to understand the
questions put to him and that he is able to give rational answers to the
questions put to him. The Trial Judge must also record his opinion that
the child witness understands the duty of speaking the truth and state
why he is of the opinion that the child understands the duty of speaking
the truth.
9. It is a well-settled principle that corroboration of the testimony
of a child witness is not a rule but a measure of caution and prudence. A
child witness of tender age is easily susceptible to tutoring. However,
that by itself is no ground to reject the evidence of a child witness. The
Court must make careful scrutiny of the evidence of a child witness. The
Court must apply its mind to the question whether there is a possibility
of the child witness being tutored. Therefore, scrutiny of the evidence of
a child witness is required to be made by the Court with care and
caution.
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
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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."
29. In Ratansinh Dalsukhbhai Nayak v. State of Gujarat reported
in (2004) 1 SCC 64, this Court explained that although child witnesses
are considered as dangerous witnesses as they are pliable and liable to
be influenced easily, shaped and moulded yet it is an accepted norm that
if after careful scrutiny their testimony is found to inspire confidence
and truthful, then there is no obstacle in accepting the evidence of such
child witness. The relevant observation reads as under: -
"7. [...] The decision on the question whether the child witness has
sufficient intelligence primarily rests with the trial Judge who notices
his manners, his apparent possession or lack of intelligence, and the
said Judge may resort to any examination which will tend to disclose his
capacity and intelligence as well as his understanding of the obligation
of an oath. The decision of the trial court may, however, be disturbed by
the higher court if from what is preserved in the records, it is clear that
his conclusion was erroneous. This precaution is necessary because
child witnesses are amenable to tutoring and often live in a world of
make-believe. Though it is an established principle that child witnesses
are dangerous witnesses as they are pliable and liable to be influenced
easily, shaped and moulded, but it is also an accepted norm that if after
careful scrutiny of their evidence the court comes to the conclusion that
there is an impress of truth in it, there is no obstacle in the way of
accepting the evidence of a child witness."
30. In Panchhi v. State of U.P. reported in (1998) 7 SCC 177, this
Court held that the evidence of a child witness should not be outrightly
rejected but the evidence must be evaluated carefully and with greater
circumspection because a child is susceptible to be swayed by what
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others tell him and an easy prey to tutoring. The relevant observations
read as under: -
"11. Shri R.K. Jain, learned Senior Counsel, contended that it is very
risky to place reliance on the evidence of PW 1, he being a child
witness. According to the learned counsel, the evidence of a child
witness is generally unworthy of credence. But we do not subscribe to
the view that the evidence of a child witness would always stand
irretrievably stigmatized. It is not the law that if a witness is a child, his
evidence shall be rejected, even if it is found reliable. The law is that
evidence of a 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 a child witness is an easy prey to tutoring.
12. Courts have laid down that evidence of a child witness must find
adequate corroboration before it is relied on. It is more a rule of
practical wisdom than of law."
31. This Court in Suryanarayana v. State of Karnataka reported in
(2001) 9 SCC 129 held that the evidence of a child witness who has
withstood the test of cross-examination should not be rejected per se if
his testimony is found to be free from any infirmity. It reiterated that
corroboration to the testimony of a child witness is not a rule but a
measure of caution and prudence. The Court further held that while
assessing the evidence of a child witness, courts must rule out the
possibility of tutoring. However, in the absence of any allegation of
tutoring or an attempt to use the child witness for ulterior purposes by
the prosecution, the courts must rely on the confidence-inspiring
testimony of such a witness in determining the guilt or innocence of the
accused. The relevant observation reads as under: -
"5. [...] 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
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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."
32. In Arbind Singh v. State of Bihar reported in (1995) Supp (4) SCC
416 this Court found the testimony of the child witness therein to be
tutored due to the various inconsistencies and contradiction in her
statements as regards the cause of death of the deceased therein, and
due to the fact that the child witness was residing with her maternal
uncle immediately after the incident occurred. This Court further held
that implicit faith and reliance cannot be placed on a testimony that
betrays traces of tutoring and the court must look for corroboration
before relying on the same. The relevant observation reads as under: -
"3. The entire case hinges on the evidence of the child witness PW 2
Poonam Kumari, the daughter of the deceased and appellant Arbind
Singh. The incident occurred late in the night and she claims she was
awakened by the noise of quarrelling. She further claims to have seen
her father tying and nailing her mother before hanging her. At the date
of the incident she was aged about 5 years. When her evidence was
recorded she was aged about 9 years. The learned Trial Judge did not
undertake a 'voir dire' before recording her evidence on oath although
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he notes that she was capable of understanding and answering the
questions. Be that as it may, the fact remains that there was a gap of 4
years between the incident and the date on which her evidence was
recorded. Immediately after the incident she was interrogated but as she
was weeping her statement was not recorded. Thereafter her statements
were recorded on October 25, 1984, October 28, 1984 and November 5,
1984, the last being under Section 164 of the Criminal Procedure Code.
In her first statement she did not say that her mother was hanged.
Subsequently she said she was hanged by electric wire. She later said
she was hanged with the help of a jute string. In her statement recorded
under Section 164 of the Code of Criminal Procedure on November 5,
1984, she stated that her father had thrown a jute string around the
neck of her mother and killed her. It will, therefore, appear from these
statements that she has not been consistent in her version. That apart,
we have carefully perused the evidence of this witness and we find
traces of tutoring on certain aspects of the case. It appears from her
evidence that she was very close to her maternal uncle with whom she
was living when her mother had gone to Deoghar for training.
Immediately after the incident she was taken away by her maternal
uncle who happens to be a fairly important figure. In her evidence she
stated that there used to be quarrels between her father and mother and
the former used to ill-treat the latter without any rhyme or reason. Then
she adds that her father wanted to remarry and, therefore, he was
illtreating her mother. Now the case put up was that the husband was
ill-treating the wife as he wanted to sell her jewellery to purchase a
scooter. Therefore, the statement made by PW 2 that her father was
illtreating her mother because he wanted to remarry could only be the
result of tutoring. She also tried to involve all the other family members
including her uncle Shambhoo whom she could not even recognize in
the dock. This she could have done only at the behest of someone else.
She also stated that neither her father nor her grandfather met her
mother's expense at Deoghar, a fact of which ordinarily a child under
five years of age would not be aware. She even tried to involve her
father's sister whose name she had not mentioned earlier. There are
also certain other statements made in the course of her deposition which
would suggest that possibility of tutoring could not be ruled out. Having
taken a careful look at the evidence of this child witness we are of the
opinion that implicit faith and reliance cannot be placed on her
testimony since it is not corroborated by any independent and reliable
evidence. It is well-settled that a child witness is prone to tutoring and
hence the court should look for corroboration particularly when the
evidence betrays traces of tutoring. We, therefore, think that appellant 1
was entitled to benefit of doubt."
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33. Similarly in Digamber Vaishnav v. State of Chhattisgarh
reported in (2019) 4 SCC 522 this Court discarded the testimony of the
child witness therein on the ground of being tutored as it found the same
to be fraught with inconsistencies and in direct contradiction of the
ocular evidence of other prosecution witnesses.
34. This Court in State of M.P. v. Ramesh reported in (2011) 4 SCC
786 summarized the principles pertaining to the appreciation of
evidence of a child witness as under: -
(i) First, it held that that a child witness must be able to understand the
sanctity of giving evidence on oath and the import of the questions that
were being put to him. The evidence of a child witness must reveal that
he was able to discern between right and wrong, and the court may
ascertain his suitability as a witness through either cross-examination
or by putting questions to the child in terms of Section 165 of the
Evidence Act or by determining the same from the evidence or testimony
of the child itself. The relevant observation reads as under: -
"11. The evidence of a child must reveal that he was able to discern
between right and wrong and the court may find out from the cross-
examination whether the defence lawyer could bring anything to
indicate that the child could not differentiate between right and wrong.
The court may ascertain his suitability as a witness by putting questions
to him and even if no such questions had been put, it may be gathered
from his evidence as to whether he fully understood the implications of
what he was saying and whether he stood discredited in facing a stiff
crossexamination. A child witness must be able to understand the
sanctity of giving evidence on oath and the import of the questions that
were being put to him. (Vide Himmat Sukhadeo Wahurwagh v. State of
Maharashtra (2009) 6 SCC 712.)"
(ii) Secondly, if the evidence of the child explains the relevant events of
the crime without improvements or embellishments, and the same
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inspire confidence of the court, his deposition does not require any
corroboration whatsoever. The relevant observation reads as under: -
"12. In State of U.P. v. Krishna Master (2010) 12 SCC 324 this Court
held that there is no principle of law that it is inconceivable that a child
of tender age would not be able to recapitulate the facts in his memory.
A child is always receptive to abnormal events which take place in his
life and would never forget those events for the rest of his life. The child
may be able to recapitulate carefully and exactly when asked about the
same in the future. In case the child explains the relevant events of the
crime without improvements or embellishments, and the same inspire
confidence of the court, his deposition does not require any
corroboration whatsoever. The child at a tender age is incapable of
having any malice or ill will against any person. Therefore, there must
be something on record to satisfy the court that something had gone
wrong between the date of incident and recording evidence of the child
witness due to which the witness wanted to implicate the accused falsely
in a case of a serious nature."
(iii) Thirdly, even if the courts find that the child witness had been
tutored, even then the statement of a child witness can be relied upon if
the tutored part can be separated from the untutored part and the
remaining untutored part inspires confidence. In such cases, the
untutored part can be believed or at least taken into consideration for
the purpose of corroboration as in the case of a hostile witness. The
relevant observation reads as under: -
"13. Part of the statement of a child witness, even if tutored, can be
relied upon, if the tutored part can be separated from the untutored
part, in case such remaining untutored part inspires confidence. In such
an eventuality the untutored part can be believed or at least taken into
consideration for the purpose of corroboration as in the case of a
hostile witness. (Vide Gagan Kanojia v. State of Punjab (2006) 13 SCC
516.)"
(iv) Lastly, it held that an inference as to whether child has been
tutored or not, can be drawn from the contents of his deposition. If the
deposition of a child witness inspires the confidence of the court and
there is no embellishment or improvement therein, the court may rely
upon his evidence. The evidence of a child witness must be evaluated
more carefully with greater circumspection because he is susceptible to
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tutoring. Only in case there is evidence on record to show that a child
has been tutored, the court can reject his statement partly or fully and
look for corroboration. The relevant observation reads as under: -
"14. In view of the above, the law on the issue can be summarised to
the effect that the deposition of a child witness may require
corroboration, but in case his deposition inspires the confidence of the
court and there is no embellishment or improvement therein, the court
may rely upon his evidence. The evidence of a child witness must be
evaluated more carefully with greater circumspection because he is
susceptible to tutoring. Only in case there is evidence on record to show
that a child has been tutored, the court can reject his statement partly or
fully. However, an inference as to whether child has been tutored or not,
can be drawn from the contents of his deposition."
35. From the above exposition of law, it is clear that the evidence of
a child witness for all purposes is deemed to be on the same footing as
any other witness as long the child is found to be competent to testify.
The only precaution which the court should take while assessing the
evidence of a child witness is that such witness must be a reliable one
due to the susceptibility of children by their falling prey to tutoring.
However, this in no manner means that the evidence of a child must be
rejected outrightly at the slightest of discrepancy, rather what is
required is that the same is evaluated with great circumspection. While
appreciating the testimony of a child witness the courts are required to
assess whether the evidence of such witness is its voluntary expression
and not borne out of the influence of others and whether the testimony
inspires confidence. At the same time, one must be mindful that there is
no rule requiring corroboration to the testimony of a child witness
before any reliance is placed on it. The insistence of corroboration is
only a measure of caution and prudence that the courts may exercise if
deemed necessary in the peculiar facts and circumstances of the case.
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36. In Ratansinh Dalsukhbhai Nayak (supra) this Court observed
that merely because a child witness is found to be repeating certain
parts of what somebody asked her to say is no reason to discard her
testimony as tutored, if it is found that what is in substance being
deposed by the child witness is something that he or she had actually
witnessed. It added that a child witness who has withstood his or her
cross-examination at length and able to describe the scenario
implicating the accused in detail as the author of crime, then minor
discrepancies or parts of coached deposition that have crept in will not
by itself affect the credibility of such child witness. The relevant
observation reads as under: -
"8. The learned trial Judge has elaborately analysed the evidence of the
eyewitness. There is no reason as to why she would falsely implicate the
accused. Nothing has been brought on record to show that she or her
father had any animosity so far as the accused is concerned. The
prosecution has been able to bring home its accusations beyond the
shadow of a doubt. Further, the trial court on careful examination was
satisfied about the child's capacity to understand and to give rational
answers. That being the position, it cannot be said that the witness (PW
11) had no maturity to understand the import of the questions put or to
give rational answers. This witness was cross-examined at length and in
spite thereof she had described in detail the scenario implicating the
accused to be the author of the crime. The answers given by the child
witness would go to show that it was only repeating what somebody else
asked her to say. The mere fact that the child was asked to say about the
occurrence and as to what she saw, is no reason to jump to a conclusion
that it amounted to tutoring and that she was deposing only as per
tutoring what was not otherwise what she actually saw. The learned
counsel for the accused appellant has taken pains to point out certain
discrepancies which are of very minor and trifle nature and in no way
affect the credibility of the prosecution version."
37. Similarly in State of M.P. v. Ramesh reported in (2011) 4 SCC 786
it was held that even if the statement of a child witness is found to be
tutored it can be relied upon, if the same is found to be believable or
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inspire confidence after separating the tutored part from the untutored
portion. The relevant observation reads as under: -
"13. Part of the statement of a child witness, even if tutored, can be
relied upon, if the tutored part can be separated from the untutored
part, in case such remaining untutored part inspires confidence. In such
an eventuality the untutored part can be believed or at least taken into
consideration for the purpose of corroboration as in the case of a
hostile witness."
19. Having considered the principle of law as above, let us now
proceed further as to whether the accused appellant had sexually
assaulted the victim PW:13 or not.
20. The entire case of the prosecution is rested on the testimony of
the PW:13, PW:7, PW:5 and PW:6. These witnesses are victim, father
of the victim, the doctors, who had examined the victim as well as the
accused.
21. According to the prosecution case, on 17.10.2012, the victim
was abducted and was remained with the accused upto midnight 01:30
p.m., dated 18.10.2012. It is not in dispute that in the midnight, i.e.
18.10.2012, the PW:4, and other witnesses saw the victim on the road
side of the village and her custody was given to her grandfather and
mother. The medical evidence is also not in dispute as she was
bleeding profusely from her vagina and the injuries on the private parts
which extended upto anal and in that circumstances, the possibility of
committing the rape by adult person cannot be ruled out. The accused
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Kedar belongs to same village where the parents of the victim are
residing and therefore, the accused was not unknown to the villagers
and for his identity, there is no need to hold T.I. Parade.
22. We have closely scrutinized the evidence of PW:13 - aged about
4 years. The evidence of grocery shop keeper PW:12 proves that on the
day of incident, the accused purchased a wafer pouch from his shop.
The victim on this aspect has in clear terms stated that the accused met
him at the place of playing and gave her a pouch of wafer and took her
towards the Sugarcane Field where she was sexually abused and
thereafter, she was dropped near Village Canal and then he ran away
and she was dropped by villager Dinesh. We do not find any infirmity
in the evidence of the victim about the factum of sexual assault and
identity of the accused. We have also examined the possibility of
animosity between the accused and father of the victim as the father
has admitted in his deposition that prior to the incident, there was a
dispute with the accused. It is relevant to note that nothing further
elicited from the father of the victim about the nature of dispute and
where the dispute was occurred and why the father come up with a
false story of being victim of sexual assault, so as to complicate the
accused. In such circumstances, the possibility of animosity between
the parities has not been established to the point that in order to take
revenge, the accused was falsely implicated. It is also admitted position
that despite of receiving the serious injuries by the victim over her
private parts, there is no evidence in the form of forensic science to
prove the guilt of the accused. However, there is no reason why the
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victim and her father tell lie against the accused.
23. In the aforesaid discussions, having regard to the nature of
evidence and circumstances of the case, the child was able to
understand a question put to her and she was capable of giving rational
answers and that test being inquired and conducted by the Trial Court
and therefore, without administered the oath a testimony being a
competent witness recorded by the Trial Court. The victim was sufferer
and at the relevant time, she was in trauma and considering the
attending circumstances, we do not find any ground or the reason that
the victim was acting under the influence of someone and there is ring
of truth in the version of the victim about the act of sexual assault
allegedly committed by the appellant accused. Thus, the version of the
victim about the incident and act of rape committed by the accused is
credible, trustworthy and does inspire confidence and in that
circumstances, there would be no need for further corroboration to the
testimony of the victim on the material particulars. However, the
factum of injuries as referred by the treating doctors would further lend
support to the version of the victim and therefore, plain version of the
victim being seen with all circumstances does inspire confidence and
her evidence is worthy of credence so as to hold that the appellant
accused after giving wafer pouch, to the victim, she was taken to the
secluded place and then, abused sexually her.
24. It was the contention that on the basis of suspicion, the accused
was closely implicated in the offence. We do not accept the
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contentions as after few hours of the incident, the father came to know
from the shopkeeper PW:12 that the victim was lastly seen with the
accused when he purchased a wafer pouch from his shop. The accused
was known to all the village people and therefore, the defence of false
implication appears to be improbable and not acceptable.
25. For the foregoing reasons, the prosecution has proved its case
with sufficient oral and documentary evidence, beyond all reasonable
doubt and we are satisfied that the trial Court has rightly found the
appellant guilty and convicted him under Sections 363, 365 and 376 of
the IPC. So far as sentence is concerned, we do not find any reason or
scope for interference with the findings of sentence as having regard to
the nature of offence, age of the victim and the manner in which the
offence alleged to have been committed, we do not find any ground to
reduce and/or alter the sentence of life imprisonment awarded by the
Trial Court.
26. In the result, present Criminal Appeal stands dismissed. The
conviction and sentence are upheld. R&P, if any, be sent back to the
trial Court forthwith.
(ILESH J. VORA,J)
(R. T. VACHHANI, J)
Rakesh
