R/CR.A/1149/2017 JUDGMENT DATED: 19/01/2026

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

Section

Sentence of

imprisonment

Fine

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:

3.1The 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.9Likhabhai Karsanbhai Rathod, Panch witness

PW 2 – Exh.12Rameshbhai Somabhai Rathod, Panch witness

PW 3 – Exh.16Natubhai Lalbhai Dimar, Panch witness

PW 4 – Exh.17Shaileshbhai Thakorbhai Rathod

PW 5 – Exh.18Dr. Ramiben Kashiyabhai Choudhari

PW 6 – Exh.25Dr. alok Shivdayal Goyal

PW 7 – Exh.29Champakbhai Ganpatbhai Rathod, Complainant

PW 8 – Exh.32Sathishbhai Rameshbhai Rathod

PW 9 – Exh.33Girishbhai Rameshbhai Rathod

PW 10 – Exh.34Shaileshbhai Sureshbhai Rathod

PW 11 – Exh.36Nimuben Babubhai Choudhari

PW 12 – Exh.37Rajubhai Sukhabhai Rathod

PW 13 – Exh.39Victim

PW 14 – Exh.40Sunil 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.

10.2Satishbhai 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.

10.3Dr. 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.

10.4Dr. 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.

10.5Champak 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.

10.6Rajubhai 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.

10.7Victim (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.

10.8Sunil 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

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