2025 INSC 360 Criminal Appeal No. 586/2017 Page 1 of 29

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.586 OF 2017

STATE OF RAJASTHAN … APPELLANT(S)

VERSUS

CHATRA … RESPONDENT(S)

J U D G M E N T

SANJAY KAROL, J.

1. Nearly forty years ago, on 3

rd

March 1986 happened an

incident, that forever altered the trajectory of a minor girl’s life,

who for the purposes of this judgment, shall be referred to as ‘V’

1

.

She was discovered unconscious and bleeding from her private

parts, by one Gulab Chand, after the respondent-accused had

1

Identity concealed

Criminal Appeal No. 586/2017 Page 2 of 29

allegedly subjected her to sexual assault. The said Gulab Chand

filed a report with the concerned police station on 4

th

March,

1986

2

- and now by way of this judgment, the matter shall be

finally laid to rest. It is a matter of great sadness that this minor

girl and her family have to go through nearly four decades of life,

waiting to close this horrific chapter of her/their lives.

2. The State is before us, being aggrieved by the finding of

acquittal recorded by the learned Single Judge of the High Court

of Judicature for Rajasthan at Jaipur Bench, Jaipur

3

, vide

judgment dated 12

th

July 2013 which set aside the finding of

conviction entered by learned Sessions Judge, Tonk

4

vide

judgment dated 19

th

November 1987.

3. The FIR recorded the occurrence of incident in the

following terms:-

“To,

The S.H.O.

Uniyara.

Sir,

Subject : With regard to the rape with ‘V’ D/o ‘X’

5

.

It is respectfully submitted that it is incident of about

1:30 hours that I had gone to handle well on hut of

2

Crime No. 31/86

3

In S.B Criminal Appeal No. 503/1987

4

Sessions Trial 26/86

5

Name of the father of the victim is also redacted for the purpose of protection of identity

Criminal Appeal No. 586/2017 Page 3 of 29

Khadda in village Sureli, and as soon as I reached near

the house of Chhatra S/o Sukhdeva Jat then I heard

sound of cry of a little girl, where upon I entered into the

house then the dhoti of accused was in open condition

and he ran outside seeing me. I saw that ‘V’ who is

daughter of ‘X’ was lying unconscious and blood was

oozing from her private part, at that time Prabhu Kumhar

came there on camel Lattha from the side of Banatha, as

such I sit with girl over the Lattha of camel and brought

her to house because neither Mother of her was present

in house and nor ‘X’. After some time Savitri mother of

‘V’ came to our village but since any means of

conveyance was not available for going to police station

therefore report was not lodged. Primary treatment was

provided by calling nurse of Sureli and Private Sindhi

Doctor Siwad and thereafter today after coming from

there I had lodged report in police station.

Applicant – Gulab Chand

S/o Sunder Lal Caste Mahajan

R/o Sureli

Sd/-

Gulab Chand Gupta

Date 4.3.86”

4. After completion of the investigation, the challan was

presented to the Court for trial. To prove its version of events, the

prosecution examined 15 witnesses and exhibited 19 documents.

The respondent-accused termed it to be a false case that Gulab

Chand had concocted since he wanted the father of ‘V’ to vacate

the house of the respondent-accused. He put forth 2 witnesses

and four documents in his defence.

Criminal Appeal No. 586/2017 Page 4 of 29

TRIAL COURT JUDGMENT

5. The sole issue before the Trial Court was whether the

respondent-accused had sexually assaulted ‘V’ or not. A perusal

of the judgments reveals that the complainant, Gulab Chand who

was examined as PW-2 has been greatly relied on, supported by

the deposition of PW-14, Dr. Vasudev. Regarding the

commission of sexual assault against ‘V’, the finding is as

under :

“39. In such situation when we again believe on

deposition of PW-2 Gulabchand then his such evidence

that accused committed forcible rape with PW-1 ‘V’

becomes believable and in this regard deposition of PW-

2 Gulabchand stands corroborated from deposition of

PW-14 Vasudev that what injury in vagina of PW-1 ‘V’

was caused, that was caused by forcible sexual

intercourse and that sexual intercourse was forcibly

committed by accused with PW-1. PW-14 Dr. Vasudev

has stated even to the extent that the hymen of PW-1 ‘V’

was completely fresh ruptured and her forshite and

posterior commissions ruptured and doctor has also

stated that if there was slight more penetration then the

penis would have reached in stomach of girl after

rupturing uterus and by which death of girl might have

caused. Thus from the evidence of this doctor it is clear

that what penetration was done by accused in vagina of

PW-1 that was grievous and from doing such whatever

ingredients in section 375 IPC are told are fulfilled.”

There was an issue of motive raised by the counsel for the

accused. However, neither that nor the possibility that the injury

Criminal Appeal No. 586/2017 Page 5 of 29

sustained by ‘V’ was as a result of injury by a nail found favour

with the Court. There was also the aspect of the FIR being lodged

on the next day. On this issue, the Trial Court held that given P.S.

Uniyara, was situated 14 kms. away from the village where the

incident took place, i.e., Sureli, and that the injuries sustained by

‘V’ were quite severe, the delay was held to be justified. It was

finally held that the respondent-accused had indeed committed

the offence punishable under Section 376 of the Indian Penal

Code, 1860

6

, and he was, vide order of sentencing dated 19

th

November 1987 sentenced to 7 years rigorous imprisonment

instead of 10 years given that he was a first-time offender and at

the relevant time of the offence he was aged only 21 years. He

was further sentenced to pay a fine of Rs.500/- in default and one

month of simple imprisonment.

IMPUGNED JUDGMENT

6. The respondent-accused aggrieved by the sentence

awarded to him, carried the matter in appeal to the High Court.

By way of a judgment running into all of 6 pages, the findings of

guilt returned by the Trial Court were upturned and the

respondent-accused was acquitted of the charges against him.

Suffice it to say that we are surprised with the manner in which

6

Hereafter ‘IPC’

Criminal Appeal No. 586/2017 Page 6 of 29

this matter was dealt with by the High Court. As the First

Appellate Court, the High Court is expected to independently

assess the evidence before it before confirming or disturbing the

findings of the Court below. This is the settled position of law.

[See: Atley v. State of U.P.

7

; and Geeta Devi v. State of U.P.

etc.

8

]. Clearly, the same has not been followed. The discussion

on merits of the matter by the High Court is reproduced herein

below :

“The statement of PW-2 Gulab Chand, the central

witness of the prosecution, as recorded in Ex.D-1,

assumes importance. A bare perusal of that document

reveals that he is stated to have witnessed the appellant

to be engaged in the act of forcible sexual intercourse

with the victim, when he entered the room. This runs

counter to the narration made in his written report on

which the investigation was initiated as well as his

deposition at the trial. PW-10 Prabhu also has not

supported him in full. His statement that his attention

was drawn by the cries of the victim is belied by her

statement that she was found unconscious and unable to

speak.

Though the victim, ‘V’

9

was a child at the time of

her examination in Court, it is unlikely that if the

incident would have been true she would have been so

indifferent and inert as she happened to be when asked

about the same. It seems that no attempt as well had been

made to brief her in this regard. Though keeping her age

in mind, the incident even if had occurred in the manner

as projected by the prosecution, could have been

forgotten by her, it is not acceptable that if true, the

7

AIR 1955 SC 807

8

Criminal Appeal No.78 of 2022

9

Name redacted

Criminal Appeal No. 586/2017 Page 7 of 29

parents or her relations would have made no attempt to

have at least the skeletal facts narrated in court through

her. This assumes importance in view of the consistent

stand taken on behalf of the defence that the appellant

had been framed due to subsisting dispute between him

and the father of the victim. Though the medical

evidence proves injury on her private parts, the Forensic

Science Laboratory report does not show the presence of

semen in the frock of the victim, the lungi on which she

was laid by Gulab Chand (PW-2) and also the blood

smeared soil by the police. The varying versions of

Gulab Chand is also a factor which strikes at the

trustworthiness of the prosecution case.

On a cumulative consideration of all the above, I am

thus of the view that the prosecution has not been able to

prove the charge beyond all reasonable doubt, and that,

the appellant is entitled to the benefit thereof. The

impugned judgment and order is set aside. The appeal is

allowed. The appellant stands discharged from his bail

bonds.

While acknowledging the assistance rendered by Mr.

Raunak Singhvi, learned amicus curiae, this Court

directs payment of his professional fee of Rs.5000/- to

be borne by the State Government.”

7. We note with some surprise that the High Court has

referred to the victim by name throughout. This Court in

judgments, going at least a decade further back from the date of

the impugned judgment, has highlighted the importance of

abiding by such a restriction, preserving the privacy of the

unfortunate victim, even though the restriction does not expressly

apply to the High Court or this Court. [See: Bhupinder Sharma

Criminal Appeal No. 586/2017 Page 8 of 29

v. State of H.P.

10

; State of Karnataka v. Puttaraja

11

; and Dinesh

v. State of Rajasthan

12

] We have redacted the name of the child

victim. The record as it is before us, does not conceal the name

of the prosecutrix, however, considering the fact that the

directions in Nipun Saxena v. Union of India

13

were issued in

the pendency of this appeal, her name stands redacted even in the

portion quoted from the record.

8. In ordinary circumstances, given the fleeting

consideration bestowed on the merits of the matter, an order of

remand to the High Court for consideration afresh, could have

been a permissible view, however as already noted supra the

genesis of this case is 40 years old, and, therefore, justice would

not be served by adopting this approach, especially taking note

of the fact that an appeal of the year 1987 was disposed of by the

impugned judgment in the year 2013. In other words, it took

twenty-six years for the criminal appeal to be disposed of. As

such, we now proceed to examine the evidence on record.

10

(2003) 8 SCC 551

11

(2004) 1 SCC 475

12

(2006) 3 SCC 771

13

(2019) 2 SCC 703

Criminal Appeal No. 586/2017 Page 9 of 29

ANALYSIS AND FINDINGS

9. The mainstay of the reasoning of the High Court are the

statements of PW-1, ‘V’, PW-2, and PW-10.

The relevant extract of the statement of the victim (PW -1)

is as follows :

“Question : Are you studying.

Ans : Yes I am studying.

Question : In which standard are you studying.

Ans : I am studying in 1

st

standard.

Question : Do you know meaning of smell.

Ans : Yes.

Question : Should speak lie or should speak truth?

Ans : Should speak truth.

Note :- The witness knows meaning of truth, although

has small age. The mother of witness is present in the

court with the witness. The learned counsel for the

accused has objection that mother of witness will have

to go outside the court as she is also witness in the matter.

As the mother of the witness is not eye-witness of the

occurrence and is a witness of facts after the occurrence

and witness has small age and not capable in standing in

the court room in absence of mother, therefore, on the

prayer of P.P., the permission of presence of mother in

the court room granted and instructed not to suggest any

answer to the witness to the questions asked to the

witness.

Question : Do you know the accused?

Ans: Said yes by nodding neck

Question: Do you know the name of the accused?

Ans: Witness is not giving answers on aking repeatedly

and keeps silent.

Criminal Appeal No. 586/2017 Page 10 of 29

Question: What happens with you and when?

Ans: The learned P.P., her mother and Court repeatedly

explained to give answer, but witness keeps mum and

not speak a single word. Tears were flowing from eyes

on much pressure, but not speak from mouth”

PW-2 Gulab Chand :

“…when I open the door I have seen that accused Chatra,

he was present in the court was seating upon her on that

time. When accused saw me he ran away from the room

accused dhoti was open and lying on there. When I sent

to support her at that time she was in a unconscious

condition and the blood was oozing from her private

part, on back side of her body one white cloth was lying

down on which blood stain was there …

... On Exhibit B-1 there is no mentioing about the

accused seating upon the girl ‘V’, How they cannot

remember to write about this on their report I don’t

know. On Exhibit D-1 about this nothing is mentioned,

I told to the police about this. On Exhibit B-1, they did

not wrote on a report about the piece of cloth choke

inside the mouth of ‘V’, so that she cannot shout at that

time, when I opened the door accused saw me and ran

away at that time. Therefore, I cannot say that at that

time when accused was above [‘V’] at that time accused

arms was open or not.”

PW-10 Prabhu

14

:

“… I came near the hut of Khadda to find that X’s

daughter was unconscious at the ‘Bayana Chabootri’. I

then went to drop off the load I was carrying on the cart,

and then proceeded towards Sureli, and then stopped of

at the house of PW-2 Gulabchand. There was no other

male with me, in the cart at that time. The child was in a

14

Translated from the original record

Criminal Appeal No. 586/2017 Page 11 of 29

bad state and her clothes were soiled with blood. There

was blood oozing out from her private parts. I did not see

the accused at the spot of the crime.

…

The police did not question me. It is wrong to say that

when I reached Khadda’s hut, at that time the accused

Vatar/Chatra was running away from the scene catching

a hold of his dhoti, towards the riverbank.”

10. At this stage, let us consider the other witnesses relevant

to the prosecution case. PW-14, the doctor, testified as follows:

“....I medically examine the accused Chatra on 13.03.86,

On his penis top, scratch spot was found and on his penis

swelling was found, and scratch was also found. These

type of wound can only be found by forcefully inter-

course with minor girl.....

.....

“....At the time of examination there was no blood

oozing from the private part of ‘V’ but the blood spot

was found all round the private part. In ‘V’ private

inside by seeing from microscope I did not find

spermatozoa. In 3 years old child the distance between

the private part inside inner kennel and uterus, are very

less the if the penetration will be more, then the pennies

will torn the uterus and penetrate till the stomach of the

girl due to which the girl can die. There was injury in

inner kennel but there is no injury in uterus….”

11. PW-3, Savitri, the mother of ‘V’ testified that she had to go

to a neighbouring village since someone there had passed away.

When she left her village, she had entrusted the care of ‘V’ to the

respondent accused. When she returned from having attended the

Criminal Appeal No. 586/2017 Page 12 of 29

funeral procession in the neighbouring village, she was informed

by the women of her village that ‘V’ had been injured and taken

to Sureli. She also went there subsequently and found that ‘V’ was

unconscious. She has positively identified the clothes worn by the

victim. The nurse at the hospital informed her that ‘V’ had been

raped.

DW-1 is the brother of the respondent-accused. He testified

that ‘X’ was a tenant of theirs and had been asked to vacate said

dwelling, but he refused to do so. He further testified that PW-2

Gulab Chand had bribed the doctor with Rs.4,000/-, for him to

say in the report that ‘V’ had been sexually assaulted. Further, it

was said that the doctor asked him to pay Rs.7,000/- and if paid,

so the report was to say that ‘V’ was not raped. He did not pay the

money and instead lodged complaints which fell on deaf ears. He

denies that Savitri, PW-3 had left ‘V’ in the care of the accused

and that he had committed sexual assault against her.

12. Let us now consider pronouncements of this Court in cases

involving a child victim of sexual assault.

In State of Rajasthan v. Om Prakash

15

this Court sounded

a warning against offences of sexual nature against children, in

the following terms:

15

(2002) 7 SCC 745

Criminal Appeal No. 586/2017 Page 13 of 29

“19. Child rape cases are cases of perverse lust for sex

where even innocent children are not spared in pursuit of

sexual pleasure. There cannot be anything more obscene

than this. It is a crime against humanity. Many such cases

are not even brought to light because of the social stigma

attached thereto. According to some surveys, there has

been a steep rise in child rape cases. Children need

special care and protection. In such cases, responsibility

on the shoulders of the courts is more onerous so as to

provide proper legal protection to these children. Their

physical and mental immobility call for such protection.

Children are the natural resource of our country. They

are the country's future. Hope of tomorrow rests on them.

In our country, a girl child is in a very vulnerable position

and one of the modes of her exploitation is rape besides

other modes of sexual abuse. These factors point towards

a different approach required to be adopted…”

In numerous cases, this Court as well as others, have

discussed the applicability of the statement of a child witness to a

case. We may notice a few of them:

In Dattu Ramrao Sakhare v. State of Maharashtra

16

this

Court held :

“5….A child witness if found competent to depose to the

facts and reliable one such evidence could be the basis

of conviction. In other words even in the absence of oath

the evidence of a child witness can be considered under

Section 118 of the Evidence Act provided that such

witness is able to understand the questions and able to

give rational answers thereof. The evidence of a child

witness and credibility thereof would depend upon the

circumstances of each case. The only precaution which

the court should bear in mind while assessing the

evidence of a child witness is that the witness must be a

16

(1997) 5 SCC 341

Criminal Appeal No. 586/2017 Page 14 of 29

reliable one and his/her demeanour must be like any

other competent witness and there is no likelihood of

being tutored…”

In Hari Om v. State of U.P.

17

, a three-Judge Bench

reiterated the caution observed by this Court in

Suryanarayana v. State of Karnataka

18

, that “corroboration of

the testimony of a child witness is not a rule but a measure of

caution and prudence”. It was further observed therein :

“6. This Court in Panchhi v. State of

U.P. [Panchhi v. State of U.P., (1998) 7 SCC 177 : 1998

SCC (Cri) 1561] held that the evidence of the child

witness must be evaluated more carefully and with

greater circumspection because a child is susceptible to

be swayed by what others tell him and thus an easy prey

to tutoring. The evidence of the child witness must find

adequate corroboration before it is relied upon, as the

rule of corroboration is of practical wisdom than of law

(vide Prakash v. State of M.P. [Prakash v. State of

M.P., (1992) 4 SCC 225 : 1992 SCC (Cri) 853]; Baby

Kandayanathil v. State of Kerala [Baby Kandayanathil

v. State of Kerala, 1993 Supp (3) SCC 667 : 1993 SCC

(Cri) 1084]; Raja Ram Yadav v. State of Bihar [Raja

Ram Yadav v. State of Bihar, (1996) 9 SCC 287 : 1996

SCC (Cri) 1004] and Dattu Ramrao Sakhare v. State

of Maharashtra [Dattu Ramrao Sakhare v. State of

Maharashtra, (1997) 5 SCC 341 : 1997 SCC (Cri)

685]).

7. To the same effect is the judgment in State of

U.P. v. Ashok Dixit [State of U.P. v. Ashok Dixit,

(2000) 3 SCC 70 : 2000 SCC (Cri) 579] .”

17

(2021) 4 SCC 345

18

(2001) 9 SCC 129

Criminal Appeal No. 586/2017 Page 15 of 29

13. The rule regarding child witnesses was laid down by the

US Supreme Court as far back as 1895

19

in the following terms :

“5. … While no one would think of calling as a witness

an infant only two or three years old, there is no precise

age which determines the question of competency. This

depends on the capacity and intelligence of the child, his

appreciation of the difference between truth and

falsehood, as well as of his duty to tell the former. The

decision of this question rests primarily with the trial

Judge, who sees the proposed witness, notices his

manner, his apparent possession or lack of intelligence,

and may resort to any examination which will tend to

disclose his capacity and intelligence as well as his

understanding of the obligations of an oath. As many of

these matters cannot be photographed into the record the

decision of the trial Judge will not be disturbed on review

unless from that which is preserved it is clear that it was

erroneous.”

In interpreting the evidence given by a child victim of

sexual assault, this Court in State of H.P. v. Sanjay Kumar

20

, held

that social realities have to be given due attention. It was observed

by Sikri J., writing for the Court that :

“30. By no means, it is suggested that whenever such

charge of rape is made, where the victim is a child, it has

to be treated as a gospel truth and the accused person has

to be convicted. We have already discussed above the

manner in which the testimony of the prosecutrix is to be

examined and analysed in order to find out the truth

therein and to ensure that deposition of the victim is

trustworthy. At the same time, after taking all due

precautions which are necessary, when it is found that

19

Wheeler v. United States, 1895 SCC OnLine US SC 220

20

(2017) 2 SCC 51

Criminal Appeal No. 586/2017 Page 16 of 29

the prosecution version is worth believing, the case is to

be dealt with all sensitivity that is needed in such cases.

In such a situation one has to take stock of the realities

of life as well. Various studies show that in more than

80% cases of such abuses, perpetrators have

acquaintance with the victims who are not strangers. The

danger is more within than outside. Most of the time,

acquaintance rapes, when the culprit is a family member,

are not even reported for various reasons, not difficult to

fathom. The strongest among those is the fear of

attracting social stigma. Another deterring factor which

many times prevents such victims or their families to

lodge a complaint is that they find whole process of

criminal justice system extremely intimidating coupled

with absence of victim protection mechanism.

Therefore, time is ripe to bring about significant reforms

in the criminal justice system as well. Equally, there is

also a dire need to have a survivor-centric approach

towards victims of sexual violence, particularly, the

children, keeping in view the traumatic long-lasting

effects on such victims.”

In Pradeep v. State of Haryana

21

, it was held that the role

of the trial Judge, when a case involves a child witness, becomes

heightened. The Court recorded :

“10. Before recording evidence of a minor, it is the duty

of a Judicial Officer to ask preliminary questions to him

with a view to ascertain whether the minor can

understand the questions put to him and is in a position

to give rational answers. The Judge must be satisfied that

the minor is able to understand the questions and respond

to them and understands the importance of speaking the

truth. Therefore, the role of the Judge who records the

evidence is very crucial. He has to make a proper

preliminary examination of the minor by putting

appropriate questions to ascertain whether the minor is

capable of understanding the questions put to him and is

21

2023 SCC OnLine SC 777

Criminal Appeal No. 586/2017 Page 17 of 29

able to give rational answers. It is advisable to record the

preliminary questions and answers so that the Appellate

Court can go into the correctness of the opinion of the

Trial Court.”

In Sooryanarayana v. State of Karnataka

22

referred to by

a Bench of three Judges in Hari Om v. State of U.P.

23

, it has been

held thus :

“5. Admittedly, Bhavya (PW 2), who at the time of

occurrence was about four years of age, is the only

solitary eyewitness who was rightly not given the oath.

The time and place of the occurrence and the attending

circumstances of the case suggest no possibility of there

being any other person as an eyewitness. The evidence

of the child witness cannot be rejected per se, but the

court, as a rule of prudence, is required to consider such

evidence with close scrutiny and only on being

convinced about the quality of the statements and its

reliability, base conviction by accepting the statement of

the child witness. The evidence of PW 2 cannot be

discarded only on the ground of her being of tender age.

The fact of PW 2 being a child witness would require the

court to scrutinise her evidence with care and caution. If

she is shown to have stood the test of cross-examination

and there is no infirmity in her evidence, the prosecution

can rightly claim a conviction based upon her testimony

alone. Corroboration of the testimony of a child witness

is not a rule but a measure of caution and prudence.

Some discrepancies in the statement of a child witness

cannot be made the basis for discarding the testimony.

Discrepancies in the deposition, if not in material

particulars, would lend credence to the testimony of a

child witness who, under the normal circumstances,

would like to mix-up what the witness saw with what he

or she is likely to imagine to have seen. While

appreciating the evidence of the child witness, the courts

22

(2001) 9 SCC 129

23

(2021) 4 SCC 345

Criminal Appeal No. 586/2017 Page 18 of 29

are required to rule out the possibility of the child being

tutored. In the absence of any allegation regarding

tutoring or using the child witness for ulterior purposes

of the prosecution, the courts have no option but to rely

upon the confidence inspiring testimony of such witness

for the purposes of holding the accused guilty or not.”

Recently, a coordinate Bench of this Court in State of

Madhya Pradesh v. Balveer Singh

24

speaking through J.B.

Pardiwala, J., considered a large number of prior decisions of this

Court to lay down guidelines for the appreciation of the evidence

of a child witness. We have perused through the same.

Reference can also be made to other judgments in State of

M.P v. Ramesh

25

; Panchhi v. State of U.P.

26

; and State of U.P. v.

Ashok Dixit

27

, etc.

14. The principles that can be adduced from an overview of

the aforesaid decisions, are:

a. No hard and fast rule can be laid down qua

testing the competency of a child witness to

testify at trial.

b. Whether or not a given child witness will testify

is a matter of the Trial Judge being satisfied as

to the ability and competence of said witness. To

24

2025 SCC OnLine 390; 2025 INSC 261

25

(2011) 4 SCC 786

26

(1998) 7 SCC 177

27

(2000) 3 SCC 70

Criminal Appeal No. 586/2017 Page 19 of 29

determine the same the Judge is to look to the

manner of the witness, intelligence, or lack

thereof, as may be apparent; an understanding of

the distinction between truth and falsehood etc.

c. The non-administration of oath to a child

witness will not render their testimony doubtful

or unusable.

d. The trial Judge must be alive to the possibility of

the child witness being swayed, influenced and

tutored, for in their innocence, such matters are

of ease for those who may wish to influence the

outcome of the trial, in one direction or another.

e. Seeking corroboration, therefore, of the

testimony of a child witness, is well-placed

practical wisdom.

f. There is no bar to cross-examination of a child

witness. If said witness has withstood the cross-

examination, the prosecution would be entirely

within their rights to seek conviction even solely

relying thereon.

15. This case rests also on circumstantial evidence. The law on

that count is crystal clear. When a conviction is based on

Criminal Appeal No. 586/2017 Page 20 of 29

circumstantial evidence, the chain of circumstances must be so

complete that it rules out all other possible hypotheses other than

the guilt of the accused. The most well-recognized judgment is

Sharad Birdhichand Sarda v. State of Maharashtra

28

wherein

S. Murtaza Fazal Ali J., laid down the following Panchsheel

Principles :

“153. A close analysis of this decision would show that

the following conditions must be fulfilled before a case

against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt

is to be drawn should be fully established.

It may be noted here that this Court indicated that the

circumstances concerned “must or should” and not “may

be” established. There is not only a grammatical but a

legal distinction between “may be proved” and “must be

or should be proved” as was held by this Court in Shivaji

Sahabrao Bobade v. State of Maharashtra [(1973) 2

SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783]

where the observations were made: [SCC para 19, p.

807: SCC (Cri) p. 1047]

“Certainly, it is a primary principle that the

accused must be and not merely may be guilty

before a court can convict and the mental

distance between ‘may be’ and ‘must be’ is long

and divides vague conjectures from sure

conclusions.”

(2) the facts so established should be consistent only

with the hypothesis of the guilt of the accused, that is to

say, they should not be explainable on any other

hypothesis except that the accused is guilty,

28

(1984) 4 SCC 116

Criminal Appeal No. 586/2017 Page 21 of 29

(3) the circumstances should be of a conclusive nature

and tendency,

(4) they should exclude every possible hypothesis except

the one to be proved, and

(5) there must be a chain of evidence so complete as not

to leave any reasonable ground for the conclusion

consistent with the innocence of the accused and must

show that in all human probability the act must have

been done by the accused.”

16. Also important to consider is the degree of certainty

required, in a given set of facts and circumstances, before a person

can be either convicted or acquitted of a crime. This question

engaged the Court in Ramakant Rai v. Madan Rai

29

, wherein it

was observed :

“23. A person has, no doubt, a profound right not to be

convicted of an offence which is not established by the

evidential standard of proof beyond reasonable doubt.

Though this standard is a higher standard, there is,

however, no absolute standard. What degree of

probability amounts to “proof” is an exercise particular

to each case. Referring to (sic) of probability amounts to

“proof” is an exercise, the interdependence of evidence

and the confirmation of one piece of evidence by

another, as learned author says : [see The Mathematics

of Proof II : Glanville Williams, Criminal Law Review,

1979, by Sweet and Maxwell, p. 340 (342)]

“The simple multiplication rule does not apply

if the separate pieces of evidence are

dependent. Two events are dependent when

they tend to occur together, and the evidence

of such events may also be said to be

dependent. In a criminal case, different pieces

of evidence directed to establishing that the

29

(2003) 12 SCC 395

Criminal Appeal No. 586/2017 Page 22 of 29

defendant did the prohibited act with the

specified state of mind are generally

dependent. A juror may feel doubt whether to

credit an alleged confession, and doubt

whether to infer guilt from the fact that the

defendant fled from justice. But since it is

generally guilty rather than innocent people

who make confessions, and guilty rather than

innocent people who run away, the two doubts

are not to be multiplied together. The one

piece of evidence may confirm the other.”

24. Doubts would be called reasonable if they are free

from a zest for abstract speculation. Law cannot afford

any favourite other than the truth. To constitute

reasonable doubt, it must be free from an over emotional

response. Doubts must be actual and substantial doubts

as to the guilt of the accused persons arising from the

evidence, or from the lack of it, as opposed to mere

vague apprehensions. A reasonable doubt is not an

imaginary, trivial or a merely possible doubt; but a fair

doubt based upon reason and common sense. It must

grow out of the evidence in the case.

25. The concepts of probability, and the degrees of it,

cannot obviously be expressed in terms of units to be

mathematically enumerated as to how many of such

units constitute proof beyond reasonable doubt. There is

an unmistakable subjective element in the evaluation of

the degrees of probability and the quantum of proof.

Forensic probability must, in the last analysis, rest on a

robust common sense and, ultimately, on the trained

intuitions of the judge. While the protection given by the

criminal process to the accused persons is not to be

eroded, at the same time, uninformed legitimisation of

trivialities would make a mockery of the administration

of criminal justice. This position was illuminatingly

stated by Venkatachaliah, J. (as His Lordship then was)

in State of U.P. v. Krishna Gopal [(1988) 4 SCC 302

: 1988 SCC (Cri) 928 : AIR 1988 SC 2154].”

Criminal Appeal No. 586/2017 Page 23 of 29

16.1 Observations by O. Chinappa Reddy J., in K. Gopal

Reddy v. State of A.P.

30

are also instructive. He observed :

“9. … “A reasonable doubt”, it has been remarked, “does

not mean some light, airy, insubstantial doubt that may

flit through the minds of any of us about almost anything

at some time or other; it does not mean a doubt begotten

by sympathy out of reluctance to convict; it means a real

doubt, a doubt founded upon reasons [ Salmon, J. in his

charge to the jury in R. v. Fantle reported in 1959

Criminal Law Review 584] . As observed by Lord

Denning in Miller v. Minister of Pensions [(1947) 2 All

ER 372] “Proof beyond a reasonable doubt does not

mean proof beyond a shadow of a doubt. The law would

fail to protect the community if it admitted fanciful

possibilities to deflect the course of justice. If the

evidence is so strong against a man as to leave only a

remote possibility in his favour, which can be dismissed

with the sentence “of course it is possible but not in the

least probable”, the case is proved beyond reasonable

doubt, but nothing short of that will suffice.” In Khem

Karan v. State of U.P. [(1974) 4 SCC 603 : 1974 SCC

(Cri) 689 : AIR 1974 SC 1567] this Court observed:

“Neither mere possibilities nor remote

possibilities nor mere doubts which are not

reasonable can, without danger to the

administration of justice, be the foundation

of the acquittal of an accused person, if there

is otherwise fairly credible testimony.”

17. Having considered the principles of law as above, let us

now proceed further. We have independently examined the

evidence of the witness, by placing reliance on whom the Trial

Court recorded the conviction of respondent-accused, which was

erroneously appreciated by the High Court, the same was

30

(1979) 1 SCC 355

Criminal Appeal No. 586/2017 Page 24 of 29

reversed by the High Court. The child witness (victim), it is true,

has not deposed anything about the commission of the offence

against her. When asked about the incident, the trial Judge

records that ‘V’ was silent, and upon being further asked, only

shed silent tears and nothing more. Nothing could be elicited

from the testimony regarding the commission of the offence.

This, in our view, cannot be used as a factor in favour of the

respondent. The tears of ‘V’, have to be understood for what they

are worth. This silence cannot accrue to the benefit of the

respondent. The silence here is that of a child. It cannot be

equated with the silence of a fully realised adult prosecutrix,

which again would have to be weighed in its own circumstances.

It has been held in Hemudan Nanbha Gadhvi v. State of

Gujarat

31

, that a nine-year-old prosecutrix turning hostile would

not be a fatal blow to the prosecution case when other evidence

can establish the guilt of the accused. In these facts, ‘V’ has not

turned hostile. Trauma has engulfed her in silence. It would be

unfair to burden her young shoulders with the weight of the entire

prosecution. A child traumatized at a tender age by this ghastly

imposition upon her has to be relieved of being the basis on

which her offender can be put behind bars. In almost all other

cases, the testimony of the prosecutrix is present and forms an

essential part of the conviction of an accused, but at the same

31

(2019) 17 SCC 523

Criminal Appeal No. 586/2017 Page 25 of 29

time, there is no hard and fast rule that in the absence of such a

statement a conviction cannot stand, particularly when other

evidence, medical and circumstantial, is available pointing to

such a conclusion. Reference can be made to State of

Maharashtra v. Bandu alias Daulat

32

, wherein the prosecutrix

was “deaf and dumb and mentally retarded”. The Court held that

even in the absence of her being examined as a witness, other

evidence on record was sufficient to record conviction of the

accused. The principle of law, therefore, is that if the prosecutrix

is unable to testify, or for some justifiable reason remains

unexamined, the possibility of conviction is automatically

excluded. At this stage, it is important to record that we should

not for a moment be understood saying that a person with a

disability is by definition an incompetent witness. This Court in

Patan Jamal Vali v. State of A.P.

33

frowned upon an earlier

observation made by this Court in Mange v. State of Haryana

34

,

wherein the Court observed “apart from being a child witness,

she was also deaf and dumb and no useful purpose would have

been served by examining her.” It was held in para 48 as under :

“48. This kind of a judicial attitude stems from and

perpetuates the underlying bias and stereotypes against

persons with disabilities. We are of the view that the

testimony of a prosecutrix with a disability, or of a

disabled witness for that matter, cannot be considered

32

(2018) 11 SCC 163

33

(2021) 16 SCC 225

34

(1979) 4 SCC 349

Criminal Appeal No. 586/2017 Page 26 of 29

weak or inferior, only because such an individual

interacts with the world in a different manner, vis-à-vis

their able-bodied counterparts. As long as the testimony

of such a witness otherwise meets the criteria for

inspiring judicial confidence, it is entitled to full legal

weight. It goes without saying that the court appreciating

such testimony needs to be attentive to the fact that the

witness' disability can have the consequence of the

testimony being rendered in a different form, relative to

that of an able-bodied witness. In the case at hand, for

instance, PW 2's blindness meant that she had no visual

contact with the world. Her primary mode of identifying

those around her, therefore, is by the sound of their

voice. And so PW 2's testimony is entitled to equal

weight as that of a prosecutrix who would have been able

to visually identify the appellant.”

(Emphasis supplied)

We fully endorse this view. The upshot of the discussion is that

the absence of evidence of the prosecutrix is, not in all cases, a

negative to be accounted for in the prosecution case.

18. Therefore, we move to the statement of the other

witnesses. The ground adopted by the High Court in disbelieving

the statement of PW-2 is that there was a material contradiction

between his statement which formed part of the FIR, and his

deposition before the Court. The FIR, as reproduced supra, states

that when PW-2 reached the spot of the offence, the garment

worn by the accused (Dhoti) was in loose, open condition and he

ran out upon seeing the deponent. Whereas, in the deposition

made before the Court, also reproduced supra, the statement is to

the effect that when he saw the accused, he was bent down and

Criminal Appeal No. 586/2017 Page 27 of 29

‘seated’ upon the victim, which he had allegedly mentioned to

the authorities, and they neglected to mention the same in the

report. At this juncture, it is important to note the testimony of

PW-2 does not reveal whether he is able to read/write, it does not

speak to the factum of who wrote the report, and neither is it clear

that if someone else, that is a scribe, wrote the report, as to

whether he was examined or not.

19. The question that arises for consideration is whether this

contradiction in the FIR versus the statement made in Court is

material, in as much as, to discredit his statement, thereby landing

a fatal blow to the prosecution case. A Constitution Bench of this

Court in State of Punjab v. Kartar Singh

35

speaking through

Pandian J., held that the purpose of cross-examination is to

discredit the witness/elicit facts from such person, which may

favour the other party, etc. Having gone through the cross-

examination of this witness, we find none of these criteria to have

been met. Even this discrepancy was not put to him so as to get

an answer from the witness in this regard. That apart, we may

also take note of what has been held in Sanjeev Kumar Gupta v.

State of U.P.

36

. In the said case, a coordinate Bench of this Court

was confronted with a similar situation while deciding an appeal

arising from the High Court of Uttarakhand. There was a

35

(1994) 3 SCC 569

36

(2015) 11 SCC 69

Criminal Appeal No. 586/2017 Page 28 of 29

discrepancy in the statement made in the FIR and the deposition

in Court. It was held that whether the discrepancy is material or

not so, is a determination to be made in the facts and

circumstances of the case. It was held that since evidence of

other nature, such as the medical evidence, supports the

prosecution case, then the contradiction is to be judged in that

light, as was done in that case.

20. We have examined the evidence of PW-14. The version

suggested by the defence that the injury caused to the private part

of ‘V’ could not have been caused by a nail or an all-pin. Further

attempt to discredit the evidence of the Doctor by suggesting that

he had, in fact, given his findings, influenced by a bribe, is only

a mere allegation/statement, as the same is entirely

unsubstantiated by the record. Even on being queried by the

Court, the witness answered that the cause of injury to ‘V’ can be

through sexual intercourse, or an accident. That, coupled with the

finding of injury on the genital organ of the accused being

possible only due to forceful intercourse with a minor female,

leads to a circumstance pointing to the respondent-accused

having committed the offense against ‘V’.

21. The possibility of animosity between the accused and the

father of ‘V’ has not been established to the point that it would

Criminal Appeal No. 586/2017 Page 29 of 29

represent a crack in the wall of the prosecution case, giving rise

to reasonable doubt.

22. As a consequence of the above discussion, the appeal is

allowed. The judgment of acquittal entered by the learned Single

Judge of the High Court of Judicature for Rajasthan at Jaipur

Bench, Jaipur, in S.B Criminal Appeal No.503/1987 is set aside,

and the judgment of conviction returned by the Sessions Judge,

Tonk, by judgment dated 19

th

November 1987 in Sessions Trial

No.26/86 is restored. The respondent-accused is directed to

surrender before the competent authority within four weeks from

the date of this judgment, to serve out the sentence as awarded

by the learned Trial Court, if not already served.

Pending Application(s) if any, shall stand closed.

Original records of the case be sent back to the concerned

Court.

.................................J.

(VIKRAM NATH)

..................................J.

(SANJAY KAROL)

New Delhi;

March 18, 2025.