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Chand Bibi vs State & Anr. on 8 January, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 01.08.2018

% Judgment delivered on: 08.01.2019

+ Crl. A. No.592/ 2018

CHAND BIBI ….. Appellants
Through: Mr. Roshan Santhaila and Mr.
Chandra Suman Kumar, Advocates

versus

STATE ANR. ….. Respondents
Through: Ms. Kusum Dhalla, APP for State
Mr. Ibad Mushtaq and Mr. Jawad
Tariq, Advocates

+ Crl. A. No.594/ 2018

STATE ….. Appellant
Through: Mr. Rajat Katyal, APP for State with
Mr. Ashray Behura, Advocate

versus

AKRAM ….. Respondent
Through: Mr. Ibad Mushtaq and Mr. Jawad
Tariq, Advocates

CORAM:
HON’BLE MR. JUSTICE VIPIN SANGHI
HON’BLE MR. JUSTICE I.S. MEHTA

JUDGMENT

Crl. A. Nos. 592/2018 594/2018 Page 1 of 43

VIPIN SANGHI, J.

1. The present appeals have been preferred by the complainant- mother
of the victim (Crl. A No.592/ 2018) and the State (Crl A No.594/ 2018)
upon grant of leave to assail the judgment dated 04.01.2017 rendered by the
learned Additional Sessions Judge-01, (Designated Special Court Under the
POCSO Act’ 2012) South East District, New Delhi in Case No. 1385/16,
Sessions Case No.212/13, arising out of FIR No. 673/2013 registered at
Police Station- Govindpuri under Sections 376 IPC and Section 6 of the
POCSO Act.

2. By the impugned judgment, the Trial Court has acquitted the
Respondent/ Accused- Akram, inter alia, on the premise that the testimony
of the prosecutrix was untrustworthy due to many variations, contradictions
and inconsistencies. The trial court held that the accused was able to
discharge his onus by casting serious doubts on the case of the prosecution,
and raising doubts about possibility of his false implication.

3. The case of the prosecution is that on 25.09.2013 at 11:13 PM, vide
DD. No. 102B, the police received an information on telephone that about
4/5 days back, rape had been committed upon a girl aged 7 years. W/ SI
Seema (PW-6) reached the address where the complainant- Chand Bibi
(PW2) met her and got recorded her statement. In her statement to the
police, the complainant alleged committal of rape upon her daughter by the
accused. She stated that on 22.09.2013, at about 06:00PM, when she went to
the market to buy vegetables, her daughter aged 7 years was playing outside
their house and the accused- Akram upon finding the prosecutrix alone, took
her to the roof of the building where he used to reside and committed rape

Crl. A. Nos. 592/2018 594/2018 Page 2 of 43
upon her. She stated that her daughter did not tell her anything for 3 days,
and instead kept weeping and waking up during the nights due to fear of the
occurrence which had happened with her.

4. On the statement of the complainant, the case was registered and
investigated. The prosecutrix and the accused were got medically examined.
Samples were collected during examination of the accused and the victim,
which were also seized. The accused was arrested and produced before the
Court. The statement of the victim was also got recorded before the learned
Magistrate under section 164 Cr.P.C. Upon completion of investigation, the
charge- sheet for the offences punishable under section 376 IPC and Section
6 of the POCSO Act was filed. The court framed charge against the accused
under section 376 IPC and section 6 POCSO Act, to which the accused
pleaded not guilty and claimed trial.

5. To prove the charge, the prosecution examined 13 witnesses in all,
including PW1- victim/ prosecutrix; PW2 Chand Bibi- the complainant and
mother of the prosecutrix; PW3 Dr. Hari Prasad- the doctor who examined
the accused; PW5 Dr. Kavita Kaniwal- the doctor who examined the victim/
prosecutrix; PW6 Sushma- counsellor who examined the victim/
prosecutrix; PW12 Neeta Khaturia- School Principal; and PW13 W/SI
Seema- IO.

6. The statement of the accused was recorded under Section 313 Cr.P.C
and the evidence led by the prosecution was put to the accused. The accused
denied the same. He alleged false implication on account of a dispute with
the complainant- mother of prosecutrix. He led defence evidence of three

Crl. A. Nos. 592/2018 594/2018 Page 3 of 43
witnesses, viz. Hazi Mohammad (DW-1), Rehmat Ali (DW-2) and, Kalaam
(DW-3). The trial court, as aforesaid, has acquitted the respondent accused,
and thus, the present appeals.

7. In Sheo Swarup Ors. v. The King-Emperor, AIR 1934 PC 227 (2),
the Privy Council laid down the following principles that the High Court
should follow while examining the judgment of acquittal:

“… … … the High Court should and will always give proper
weight and consideration to such matters as (1.) the views of
the trial judge as to the credibility of the witnesses; (2.) the
presumption of innocence in favour of the accused, a
presumption certainly not weakened by the fact that he has
been acquitted at his trial; (3.) the right of the accused to the
benefit of any doubt; and (4.) the slowness of an appellate
Court in disturbing a finding of fact arrived at by a judge who
had the advantage of seeing the witnesses. To state this,
however, is only to say that the High Court in its conduct of the
appeal should and will act in accordance with rules and
principles well known and recognized in the administration of
justice.

8. The Supreme Court has ever since applied the said principles and
elaborated further on the same from time to time. In Ghurey Lal v. State of
U.P., (2008) 10 SCC 450, after analyzing the earlier decisions, the Supreme
Court in para 70 crystallised the principles that the High Court should follow
if it is going to overrule, or otherwise disturb the Trial Court’s acquittal.
Para 70 of the said judgment reads:

―70. In light of the above, the High Court and other appellate
courts should follow the well-settled principles crystallised by
number of judgments if it is going to overrule or otherwise
disturb the trial court’s acquittal:

Crl. A. Nos. 592/2018 594/2018 Page 4 of 43

1. The appellate court may only overrule or otherwise disturb
the trial court’s acquittal if it has ―very substantial and
compelling reasons‖ for doing so.

A number of instances arise in which the appellate court would
have ―very substantial and compelling reasons‖ to discard the
trial court’s decision. ―Very substantial and compelling
reasons‖ exist when:

(i) The trial court’s conclusion with regard to the facts is
palpably wrong;

(ii) The trial court’s decision was based on an erroneous view
of law;

(iii) The trial court’s judgment is likely to result in ―grave
miscarriage of justice‖;

(iv) The entire approach of the trial court in dealing with the
evidence was patently illegal;

(v) The trial court’s judgment was manifestly unjust and
unreasonable;

(vi) The trial court has ignored the evidence or misread the
material evidence or has ignored material documents like dying
declarations/report of the ballistic expert, etc.

(vii) This list is intended to be illustrative, not exhaustive.

2. The appellate court must always give proper weight and
consideration to the findings of the trial court.

3. If two reasonable views can be reached–one that leads to
acquittal, the other to conviction–the High Courts/appellate
courts must rule in favour of the accused.‖

9. We proceed to examine the issue whether the impugned judgment calls
for interference by us in the present appeal in the light of the above
parameters.

Crl. A. Nos. 592/2018 594/2018 Page 5 of 43

Submissions on behalf of the Complainant of the Ld. APP

10. The submission of Ld. Counsel for the complainant and the learned
APP is that the learned ASJ has grossly erred in appreciation of the evidence
in this case. They have argued that the date of birth of the prosecutrix was
established on record as 14.03.2007. This has been accepted by the trial
court. Thus on the date of occurrence, the prosecutrix was six and a half
years old only.

11. Ld. Counsels submit that the prosecutrix PW-1 and her
mother/complainant PW-2 were consistent in their statements, and the
statement of PW-1 stands corroborated by the statement of PW-2, and also
by the earlier statement of PW1 recorded under Section 164 Cr.P.C.; her
MLC, and; the evidence led by the Counsellor Sushma PW-6.

12. Ld. Counsels submit that the MLC of the prosecutrix Ex PW-5/A
corroborates her statement. It is argued that the trial court has neglected the
observation of Dr. Kavita Kaniwal (PW-5) that the victim was having
difficulty in walking. The Ld. ASJ has failed to appreciate the medical
opinion which records- ―no external injury marks seen, hymen congested,
appears intact, vagina congested‖ (emphasis supplied). In her cross
examination, PW-5 explained that ―It is not necessary in every case that
hymen will be ruptured on penetration. Hymen will remain intact if the
penetration of penis is not beyond hymen. I did not prescribe any medicine
to patient.‖ (emphasis supplied)

Crl. A. Nos. 592/2018 594/2018 Page 6 of 43

13. Ld. Counsels further submits that the Ld. ASJ disregarded the medical
literature by authoritative authors relied upon by the prosecution. Reliance
is placed on Modi’s “A Textbook of Medical Jurisprudence and Toxicology”
24th edition page 668 wherein the Ld. Author observed-

―in small children, the hymen is not usually ruptured, but may
become red and congested along with the inflammation and
bruising of the labia. If considerable violence is used, there is
often laceration of the fourchette and the perineum.‖ (emphasis
supplied)

14. Reliance is also placed on Parikhs’s textbook of “Medical
Jurisprudence, Forensic Medicine and Toxicology” 6th edition page 5.38,
wherein the Ld. Author observes:

“in young children as the vagina is very small and hymen
deeply situated, the adult penis cannot penetrate it. In rare
cases of great violence, the organs may be forcibly introduced,
causing rupture of the vaginal vault and associated visceral
injuries. Usually, violence is not used and the penis placed
either within the vulva or between the thighs. And as such,
only redness and tenderness of the vulva may be caused. The
hymen is usually intact…………. There may be no signs or very
few signs of general violence, since the child has no idea of the
act is also unable to offer resistance.‖ (emphasis supplied)

15. Thus, the statement of PW-5 in the initial part of her statement that if
a man aged 20/22 years has intercourse with a child aged about 7 years,
hymen cannot remain intact is, in fact, contrary to the medical literature, and
was liable to be ignored. But her opinion that the hymen was congested is
evidence of penetrative sexual assault.

Crl. A. Nos. 592/2018 594/2018 Page 7 of 43

16. In this regard, ld. counsels place reliance on Nirmal Kumar v. State,
2002 (2) RCR (Cri) 341. Reference is also made to the statement of the
counselor Ms. Sushma, Counselor working with Sehyog Charitable trust
(NGO), who was examined as PW-6). The evidence of PW-6 shows that the
prosecutrix suffered bleeding from her private parts. She, inter alia, stated:
“… Prosecutrix was bleeding from her private parts and was under severe
pain and she was not inclined to talk.‖

17. Ld. Counsels submit that the Ld. ASJ has acquitted the accused only
on the account of minor inconsistencies found in the statement of PW-1 and
PW-2. He failed to appreciate that minor inconsistencies are common and
natural, and unless the inconsistencies shake the core of the case of the
prosecution, the same would not be material to the decision of the case. The
trial court also failed to raise the mandatory legal presumption against the
accused of commission of offence under sections 29 and 30 of the POCSO
Act. It was for the accused to dislodge the said presumption, which he
failed to do. It is argued that in the statement of the accused recorded under
section 313 of Cr.P.C, he nowhere mentions that he was not present at the
spot of the incident, or the room where the offence was allegedly committed
was not his room. The alibi set up by the accused – through the mouth of
DW-2 and DW-3 was not taken in his statement recorded under Section 313
Cr.P.C. and was not proved. There is no plausible explanation offered by
him as to why the complainant and the prosecutrix would falsely implicate
him in such a case – even at the cost of facing ignominy, harassment and
embarrassment for the prosecutrix, who was not even 7 years of age on the
date of occurrence.

Crl. A. Nos. 592/2018 594/2018 Page 8 of 43

18. Ld. Counsels places reliance on Hari Om v. State, 167(2010) DLT
682 and Brij Lal v. State, 2017 (1) JCC 583 to submit that in such cases,
false implication is not likely to be made, as it involves the honour and
reputation of the child victim. The parents would not drag a minor child into
such a case – unless it is true, for no rhyme or reason. The parents are not
likely to subject their own child to the trauma of police interrogation,
medical examination, and court exposure involving the recording of the
child’s statement and cross examination, by foisting a false allegation
against the accused, without any reason.

Submissions on behalf of the Accused-

19. Ld. Counsel for the respondent supports the impugned judgment. He
submits that there are serious contradictions in the statements of the
prosecution witnesses, which make the story of the prosecution doubtful.
He submits that the statement of PW-6 Ms. Sushma, Counselor, that the
prosecutrix was bleeding from her private parts, and was under severe pain
is contradicted by the testimony of PW-5 Dr. Kavita Kaniwal. In her cross
examination, PW-5 – the examining doctor stated:

―I did not notice any burn injury on the legs of the
patient/prosecutrix during my examination. During my
examination of the patient, I did not find any cut marks from a
knife on the private parts/vagina of the prosecutrix. I did not
find any injury marks or black marks on the legs or the waist of
the prosecutrix during her examination.‖

Had the prosecutrix suffered any bleeding from her private parts,
the same would have been noticed, and would have been recorded.

Crl. A. Nos. 592/2018 594/2018 Page 9 of 43

20. DW-1 the landlord had disclosed the previous acrimony between the
complainant and the accused. Ld. Counsel for the accused further submits
that the accused was falsely implicated. He places reliance on the testimony
of DW-2 and DW-3.

21. Ld. Counsel submits that there are serious contradiction in the
statements of the prosecutrix PW-1, her mother/ complainant PW-2, and the
I.O. SI Seema PW-13, which shows that these witnesses gave different
versions of the incident at different points of time. We shall deal with this
submission a little later.

DISCUSSION

22. The initial statement of the complainant – Chand Bibi which forms
the rukka Ex. PW2/A may first be seen. She, inter alia, stated that on the
day of the incident i.e. 22.09.2013, in the evening at about 06.00P.M., she
had gone to the bazaar to get vegetables and the prosecutrix was playing at
home. Above her room on the second floor, the accused lived. Finding the
prosecutrix alone, he seized the opportunity and took her to the terrace and
raped her. The prosecutrix did not narrate the incident to her due to fear but
she kept on crying in the night. Even after she slept, she would repeatedly
wake up due to fear. She further stated that when she inquired from her
daughter – the prosecutrix, on the date of the complaint i.e. 25.09.2013, the
prosecutrix narrated the entire incident to her and she even identified the
accused as the person who had taken her to the terrace and raped her. What
emerges from the rukka Ex. PW2/A is that in the very first statement of the
complainant, she stated that the prosecutrix kept crying on the day of the

Crl. A. Nos. 592/2018 594/2018 Page 10 of 43
incident; she would wake up from her sleep due to fear repeatedly and; she
did not narrate the incident to her on the same day. What further emerges is
that on the date of the complaint i.e. 25.09.2013, the prosecutrix on the
asking of the complainant – her mother, narrated the entire incident and also
identified the accused as the person who had taken her to the terrace and
raped her. It is well settled that delay in making of complaint in such like
cases is not fatal, or looked upon with same suspicion, as in other cases.
What is relevant is that on the date the complainant learnt of the incident,
she did not thereafter wait to report the matter to the police.

23. The medical examination of the prosecutrix Ex. PW5/A reveals the
following important aspects. Firstly, the history given and recorded is of
sexual assault by neighbor of around 30 years of age on Sunday i.e.
22.09.2013 at 06.30PM. Secondly, it also records that the child is having
difficulty in walking and micturition i.e. urination. The hymen was found
congested, though it appeared to be intact. The vagina was congested and
the doctor also raised a doubt that she could be having vaginitis – which is
inflammation of the vagina and which causes discharge, itching and pain.
Firstly, we may observe the fact that the prosecutrix was having difficulty in
walking and urination, coupled with the fact that the hymen was found
congested, the vagina was found congested, and there was a possibility of
her suffering from vaginitis, are all pieces of evidence which corroborate the
statement of the prosecutrix of her being subjected to sexual assault. As
pointed out by learned counsels for the appellants, in the case of a rape of a
minor, who is not even 7 years old, rupture of hymen is not normal. Modi’s
Textbook of Medical Jurisprudence and Toxicology extracted hereinabove

Crl. A. Nos. 592/2018 594/2018 Page 11 of 43
records that in small children, the hymen is not usually ruptured but may
become red and congested along with the inflammation and bruising of the
labia. This position is also noted in Parikhs’s textbook of Medical
Jurisprudence, Forensic Medicine and Toxicology.

24. We may next refer to the statement of the prosecutrix recorded
contemporaneously under Section 164Cr.P.C. Ex. PW4/A. A perusal of the
said statement shows that she was innocent and oblivious even about her
age; and where she had been taken to. However, she gave her name; her
father’s name; class she studied in correctly, and also that she understood the
difference between speaking truth and lie; that she was making her statement
voluntarily; that she was under no pressure or coercion from any person to
make her statement, and; that she wanted to get her statement recorded.

25. Pertinently, the Ld. MM PW- 4, who recorded the statement under
Section 164 Cr.P.C., recorded the fact that the complainant – mother was
present with the prosecutrix during recording of statement as the prosecutrix
was unable to sit down due to infection in her thigh, and the prosecutrix was
also crying. This recording also corroborates the recording made in the
MLC that the prosecutrix was having difficulty in walking. The prosecutrix
in her statement names her two friends – Ansha and Tannu, with whom she
was playing on the fateful evening. She stated that she was playing with her
friends on the terrace. Thereafter, they came down. She describes the
person who dragged her to the room, as the person wearing a red colored
shirt. She states that the said person burnt her foot. He bolted the room
from inside and tied her hands and legs, whereafter he removed her clothes.
She further stated that the person cut her with a knife at her “susu wali

Crl. A. Nos. 592/2018 594/2018 Page 12 of 43
jagah”, and that the man also removed his clothes. She goes on to describe
the act done by the person – that he inserted his penis in her “susu wali
jagah” i.e. the vagina. She states that she suffered pain. She states that the
man had stuffed her mouth with a cloth. She states that the man threatened
her that he would kill and throw her, in case, she made a police complaint.
She responded to the query – whether she knew the man, by stating that he
stayed above her house. She did not know his name, but stated that he is
called master. She further stated that the police had apprehended him. They
had brought the accused to her and she had identified him. This statement
of the prosecutrix substantially corroborates her statement made before the
Court which we shall extract shortly.

26. At the time when her statement was recorded before the Court on
11.03.2014, she was again asked several preliminary questions by the Ld.
ASJ in order to understand her maturity, and whether she was a competent
witness. On this occasion, she was aware of the fact that she had come to
the Court; she was also aware of her age, and; she was also aware that she
had been brought to the Court to record her statement. The statement of the
prosecutrix recorded before the Court – in so far as it is relevant, reads as
follows:

―It was the evening time I alongwith Ansha and Tannu was
playing on the terrace. My mother had gone to the market to
take the vegetables. While playing the accused took me to his
room the accused tied my hands and legs and also burnt the
upper side of my right foot.

Thereafter, the accused inserted his private parts into my
private part (apna shushu karne wala mere shushu karne wale
me daal diya). Thereafter, the accused intimidated me by

Crl. A. Nos. 592/2018 594/2018 Page 13 of 43
threatening that in case I shared the incident to my mother after
two days. Thereafter, the police came to our house as well as
to the house of the accused and the police inquired about the
incident from me. The police apprehended the accused and
asked me by showing the accused if he was the person who had
committed abovementioned act with me. I had identified the
accused who was apprehended by the police and is present in
the court today.‖

27. In her statement recorded before the Court, she narrated that she was
playing with the same two friends Ansha and Tannu on the terrace. She also
narrated that her mother had gone to the market to take vegetables. She also
states that while playing, the accused took her to his room – whom she
identified in Court correctly, and that the accused tied her hands and legs
and also burnt the upper side of her right foot. Pertinently, the prosecutrix
also showed to the Court the scar mark on the upper side of her right foot
stating that this was the scar mark on account of the burns given by the
accused. She also describes the incident of rape in her testimony before the
Court and that, in case, the prosecutrix spoke about the incident, he would
kill her. She explains that she did not share the incident with her mother for
two days due to fear. She also states that the police came to her house and
to the house of the accused and enquired about the incident from her. The
police apprehended the accused and she identified him before the police.
She also states that she was got medically examined and she returned late in
the night at about 11 p.m. She also speaks about her statement recorded
under Section 164 Cr.P.C. and exhibits the same as PW1/A.

28. The accused has sought to raise a doubt on the statement of the
prosecutrix, inter alia, on the plea that even though the prosecutrix claimed

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that her foot had been burnt by the accused, there was no burn injury on her
foot noticed by the doctor PW-5 who examined her while preparing the
MLC.

29. We may deal with this aspect at this stage itself. The consistent
position which emerges from the statement of the complainant recorded in
the rukka as well as before the Court, and from the statement of the
prosecutrix recorded under Section 164 Cr.P.C. and before the Court, is that
the prosecutrix, out of fear, did not narrate the incident to her mother for few
days. It also emerges that she was weeping and was waking up in the night
repeatedly due to fear. It has also been established from the MLC, as well as
the statement recorded under Section 164 Cr.P.C., that the prosecutrix was
not in a position to walk when she was taken to the hospital for her medical
examination; when she was counseled by the counselor PW-6, and; also
before the Ld. MM for recording of her statement under Section 164 Cr.P.C.

30. The statement of the complainant recorded in the rukka shows that
there was no mention of burn injury given to the prosecutrix by the accused
on her foot. The possibility of the prosecutrix not having disclosed the said
injury to the mother PW-2 at that stage cannot be ruled out, since she was
averse to even talk about her traumatic experience. It is also possible that
she may have mentioned the same to the mother but that being a small injury
in comparison to the offence of rape, it may have receded into background
in her mind when she recorded her statement forming the rukka. The
primary and central allegation made against the accused was of rape. This,
in our view, offers an explanation as to why the MLC is silent on the injury
that the prosecutrix claims to have suffered in her foot on account of her foot

Crl. A. Nos. 592/2018 594/2018 Page 15 of 43
being burnt by the accused during commission of the offence. Pertinently,
the Ld. ASJ who recorded her statement in Court saw the scar for herself.
The possibility of the burn injury caused on the foot of the prosecutrix being
missed out during conduct of the MLC, cannot be ruled out. Thus, the said
omission cannot be treated as an improvement made by the prosecutrix
while recording her statement before the Court, and would not be a reason
enough to discredit her. One cannot lose sight of the fact that the
prosecutrix was not even 7 years of age at the time of the incident. She was
obviously in a state of fear and shock and may not have expressed and
articulated all her injuries before the doctor who examined her. It appears
that the mother was either not aware of the burn injury suffered by her
daughter in her foot as given by the accused, or may have been so
overwhelmed by the injury caused by the sexual assault that the same was
not mentioned by her to the examining doctor. For this reason, it may have
escaped the attention of even the examining doctor PW-5 who prepared the
MLC. We may also add that PW-5 does not appear to be amongst the most
competent in the field, since she initially stated in her testimony that “If a
male aged around 20/22 years commits intercourse with a girl aged 7 years,
in normal circumstances the hymen cannot remain intact”. This statement
does not reflect well on her professional knowledge and competence in her
own filed, as her statement is contrary to well established medical opinion.
One can also not lose sight of the fact that the prosecutrix and her mother
come from a very poor strata, and their ability to appreciate and articulate
the relevance and importance of each and every injury suffered by the
prosecutrix at the hands of the accused, would also not be the same, as that
of another person who is better placed in terms of financial, social and

Crl. A. Nos. 592/2018 594/2018 Page 16 of 43
educational background. The way PW-2 – the mother of the prosecutrix
conducted herself in taking four days to get her child – the prosecutrix, to
speak up, and in not becoming suspicious despite noticing blood stains on
her undergarment, also reflects on her levels of awareness. Thus, we cannot
rule out the possibility of the burn injury on the foot of the prosecutrix going
unnoticed by PW-2 and by the examining doctor PW-5 when she prepared
the MLC.

31. Pertinently, when the prosecutrix was cross examined on this aspect,
she again stated that the accused had burnt the upper side of her right foot by
putting a hot knife on her right foot. He got the knife heated on the gas
before putting it on her foot. She denied the suggestion that the accused had
not burnt her foot by the hot knife, nor the knife was heated on the gas
before putting it on her foot. She also denied that the suggestion that the
police had tutored her to make the statement in the Court. She also denied
the suggestion that her mother had asked her to falsely implicate the accused
on account of the quarrel due to the waste water coming from the room of
the accused from the pipe. The prosecutrix, thus stood her ground.

32. In any event, even if the said part of the statement of the prosecutrix is
to be considered as an improvement that, by itself, is no ground to reject her
statement altogether since that part of her statement can be separated from
the rest of it. In Rameshwar s/o Kalyan Singh v. The State of Rajasthan,
AIR 1952 SC 54, the Supreme Court, inter alia, observed:

―12. Part of the statement of a child witness, even if tutored,
can be relied upon, if the tutored part can be separated from
untutored part, in case such remaining untutored part inspires

Crl. A. Nos. 592/2018 594/2018 Page 17 of 43
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 Anr. v. State of Punjab, (2006) 13 SCC 516)‖.
(emphasis supplied)”

33. Thus, the entire testimony of the prosecutrix could not have been
discarded. Pertinently, the Trial Court does not even come to the conclusion
that the prosecutrix was a tutored witness. There are no indications found
from her demeanor, her statement, her cross examination, or the statement of
the other prosecution witnesses of her having been tutored. Thus, we reject
this submission of the respondent.

34. The statement of PW2 – the complainant is relevant with regard to the
condition in which she found the prosecutrix after the incident on the fateful
evening, and about the behavior and the condition of the prosecutrix
following the incident. In her statement she states that when she looked for
her daughter after returning from the bazar, she did not find her despite her
being called by her name. She started going upstairs and she had covered 5
or 6 steps when she saw the prosecutrix coming down from the staircase by
sitting slowly on the staircase. The manner in which the prosecutrix was
seen coming down was not normal as the prosecutrix, who was above 6
years of age, would normally have been walking down the steps and not
coming down by sitting on the stairs. She would come down sitting on the
steps, only if she has suffered some injury on her foot or legs. PW2 stated
that she picked up the prosecutrix into her lap and took her to the room. The
prosecutrix was weeping a lot. Despite being put on the bed and covered by
a blanket, she continued to cry and was not responding while she was

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cooking food for her children. The prosecutrix continued to weep, she went
to sleep only to wake up repeatedly due to fear and to start weeping loudly
again. She appeared to be in a state of shock and was not responding to the
queries of PW2. Her trauma continued for 2 days, whereafter she disclosed
the incident to PW2 and identified the accused as the perpetrator of the
crime. In her cross examination, PW2, inter alia stated:

―I had not seen any injury on the person of my daughter nor I
tried to see nor she disclosed anything about the injury. My
daughter was wearing baniyan and panty on that day. I do not
remember the colour of her clothes as the incident had
happened six months back. I had not noticed any blood oozing
out from the private part of my daughter nor I noticed if her
clothes were soaked with blood or not. I never tried to check the
blood though my daughter was weeping throughout. I had
changed the clothes including the panty on Wednesday and
washed the clothes. There were blood stains on the panty of
my daughter. I tried to inquire from my daughter about the
same but she was not in a position to tell as she was
traumatized and weeping. I did not check the private part of my
daughter to ascertain about the blood. I did not take my
daughter to any doctor on the day of the incident. It is wrong to
suggest that the scar mark shown by my daughter due to the
burn given by the accused is a scar mark due to old injury. It is
wrong to suggest that my daughter did not disclose the injuries
given by burns by the accused to her. It is wrong to suggest that
I have falsely implicated the accused though my daughter on
account of quarrels due to the falling of the waste from the
waste pipe.”(emphasis supplied)

35. The conduct of PW2 shows that she could not imagine, and did not
suspect that her daughter might have been subjected to sexual assault on the
fateful evening. Though she found blood stains on the panty of her daughter
and she inquired about the same from her daughter, she got no response as

Crl. A. Nos. 592/2018 594/2018 Page 19 of 43
the prosecutrix was in no position to tell her, out of her trauma. She states
that she did not check the private parts of the prosecutrix to ascertain blood
and she did not take her daughter to the doctor on the day of the incident.
Once again, to us, it appears that the mother of the prosecutrix, on account
of her backwardness and penury remained oblivious of the condition of her
daughter – the prosecutrix, and exhibited naivety. It appears that it was
beyond her comprehension that her 6 year old daughter may have been
subjected to sexual assault.

36. PW6 – the Counselor is a completely independent witness. In her
statement she states that on 26.09.2013, as per the instructions of the I.O.,
she reached the Police Station. She was accompanied by SI Seema to the
house of the victim where she met the victim. The victim/ prosecutrix was
bleeding from her private parts and was under severe pain. She was not
inclined to talk. During conversation with the prosecutrix, the prosecutrix
stated that she used to play with the other children on the terrace and about 2
days prior to the incident; the accused had hanged her from the terrace.
Thereafter, the accused had intimidated her not to state the same to anybody.
She was very scared as the accused had hanged her. On the day of the
incident also the accused had hanged her from the terrace, due to which she
became scared. Thereafter, he took her into the room and removed the panty
of the prosecutrix and kept knife on her private parts and under intimidation,
he committed rape with the prosecutrix and after committing rape, he left the
prosecutrix. Thereafter, the prosecutrix came down weeping from the stairs.
In her cross examination on behalf of the accused, she stated that she found
that the panty of the prosecutrix was getting wet due to blood from her

Crl. A. Nos. 592/2018 594/2018 Page 20 of 43
private parts time and again. She herself got the panty of the prosecutrix
changed. The prosecutrix was complaining of severe pain in her abdomen.
She denied the suggestion that she had deposed falsely in the Court. Even if
the narration of the incident by the prosecutrix to PW-6 is discarded as here

– say, the fact that the prosecutrix was bleeding from her private parts is
spoken of by PW-6 in her capacity as an eye witness.

37. PW6 exhibited the Confidential Report Ex. PW6/A prepared by the
counselor on 26.09.2013 which, inter alia, mentions the fact that the
prosecutrix was having an infection. The “Details of Report” in the said
Confidential Report also narrates the incident which, in its material part, is
in consonance with the statement of the prosecutrix made under Section 164
Cr.P.C. and before the Court. The accused has not explained why, PW6 –
an independent witness, would depose falsely, inter alia, with regard to the
physical condition of the prosecutrix seen by PW6 herself during her visit at
the house of the prosecutrix on 26.09.2013.

38. The statement of the prosecutrix, thus, stood more than sufficiently
corroborated and would have been enough to secure the conviction of the
respondent accused. The POCSO Act raises a presumption in Section 29
that when a person is prosecuted for committing or abetting or attempting to
commit an offence under Sections 3,5,7 and Section 9 of the said Act, the
Special Court shall presume, that such person has committed or abetted or
attempted to commit the offence, as the case may be, unless the contrary is
proved.

Crl. A. Nos. 592/2018 594/2018 Page 21 of 43

39. In the present case, the offence of aggravated penetrative sexual
assault, as defined under Section 5 is alleged against the accused, and he was
being prosecuted for the same. Thus, a legal presumption arose under
Section 29 that he was guilty of the offence. It was for him to rebut the
presumption by proving to the contrary. The Trial Court has held that the
accused has been able to rebut the presumption by raising doubts on the case
of the prosecution. Thus, we may now examine the reasoning of the Trial
Court which led the Trial Court to hold that the prosecution had failed to
establish the charge against the accused beyond all reasonable doubt.

40. Firstly, we may observe that the Trial Court was completely oblivious
of the legal presumption that the Court is bound to raise against an accused
being tried, inter alia, for an offence under Section 5 of the POCSO Act.
There is not a whisper in the impugned judgment about the same. In fact, a
perusal of the impugned judgment shows that the evidence in the case has
not been appreciated keeping in view the legal presumption raised under
Section 29 and 30 of the POCSO Act. This lacuna is fatal to the
sustainability of the impugned judgment.

41. The reasoning found in the impugned judgment reads as follows:

―9.1 As per victim testimony made during cross-examination
blood has oozed out from her private part and the police had
also collected her undergarments having blood stains. The
prosecution has examined the counsellor who was called to
counsel the victim as PW6. As per this witness on 26.09.2013
she went with police to the house of victim and the prosecutrix
was bleeding from her private parts and was under severe pain.
But the mother of the victim with whom the girl remained for
almost four days has not noticed any blood on her private parts

Crl. A. Nos. 592/2018 594/2018 Page 22 of 43
nor the doctor who examined her on 25.09.2013. The blood
stained garments of the victim has not been produced in the
trial. The testimony of the witnesses is also having variations
about the place of incident. In the statement made to the police
it was stated that the victim was taken to roof but in the court it
is stated that she was taken to a room.

9.2 The doctor who examined the victim medically has
appeared in the court as PW5. She deposed that she prepared
the MLC of the victim and opined that the hymen of the
prosecutrix congested, appears intact, vagina congested. She in
her cross-examination stated that ―If a male aged around 20/22
years commits intercourse with a girl aged 7 years, in normal
circumstances the hymen cannot remain intact. I did not notice
any bum injury on the legs of the patient/prosecutrix during my
examination. During my examination of the patient, I did not
find any cut marks from a knife on the private parts/vagina of
the prosecutrix. I did not find any injury marks or black marks
on the legs or the wrist of the prosecutrix during her
examination.‖

9.3 It is submitted by the learned counsel for complainant that
as per medical literature the hymen in case of rape upon a child
usually remains intact and the fact that in the MLC doctor
observed that the hymen appears intact does not make the case
false. But in view of the testimony of the doctor who examined
the victim personally and has specifically stated about the
status of hymen, her version will prevail upon general
observations. Thus the medical evidence also is not
corroborating the case and version of the victim. The defence
witnesses examined by the accused have claimed that the
accused was with them on 22.09.2013 and they all were playing
cricket but considering their testimonies that they were not able
to tell the dates of main festivals in that year it may be possible
that they have just deposed in the court being friends of the
accused.

10. The accused is required to cast a doubt on the case and to
raise a possibility of false implication. In the facts of present

Crl. A. Nos. 592/2018 594/2018 Page 23 of 43
case, uncorroborated testimony of victim who has improved her
case does not inspire the confidence and cannot be said reliable
and trustworthy and so is not sufficient to believe that the
accused committed penetrative sexual assault upon her.
Considering the testimonies of prosecution witnesses having
inconsistencies and contradictions which go to the root of
matter it can be said that the accused is able to discharge his
onus and have raised a doubt on the case of prosecution. The
inconsistencies and contradictions observed as above raise
doubt that no such offence has occurred as deposed by the
witnesses. Thus, the accused is entitled for acquittal as the
charge against him is not proved. Accordingly the accused
Akram is acquitted from the charges framed against him.‖

42. The aforesaid reasoning given by the Trial Court, in our view, borders
on perversity and the Trial Court has miserably failed to appreciate the
evidence led by the prosecution in the case in the right perspective. The
approach of the Trial Court is hyper technical, and ignores the well settled
principle that minor variations in the statements of the witnesses – which do
not affect the crux of the case of the prosecution, are natural and not
sufficient to discredit the prosecution witnesses. While observing that a
child witness is susceptible to tutoring, and his evidence must be evaluated
more carefully and with greater circumspection, the ld. ASJ has failed to
state as to what is there in the evidence to even remotely suggest that the
child witness PW1 was tutored; or that her statement was not corroborated.
In a recent decision delivered by this Court in State of NCT OF Delhi v.
Dharmender, Crl. A. 1184/2017, decided on 23.03.2018, this Court had
occasion to deal with the law on the subject of reliability of the testimony of
a child witness. We may extract the relevant paragraphs from Dharmender
(supra) here under:

Crl. A. Nos. 592/2018 594/2018 Page 24 of 43

45. The learned ASJ evaluated the testimony of the victim
PW-11 in the background that ―a child witness is susceptible to
tutoring and his evidence must be evaluated more carefully and
with greater circumspection and that evidence of a child
witness must find adequate corroboration before it is relied
upon‖. On this aspect, we consider it appropriate to notice
some of the decisions of the Supreme Court.

46. We may first notice Rameshwar v. State of Rajasthan,
1952 (3) SCR 377. In this case, the appellant was charged with
committing rape of an eight year old girl. He was convicted by
the Assistant Sessions Judge and sentenced. In appeal before
the Sessions Judge, the learned Sessions Judge held that the
evidence was sufficient for ―moral conviction‖ but fell short of
―legal proof‖ because, in his opinion, the law requires
corroboration of the story of the prosecution in such cases as a
matter of precaution, and the corroborative evidence – in so far
as it sought to connect the appellant with the crime, was legally
insufficient though morally enough. Accordingly, the accused
was acquitted giving him the benefit of the doubt. The State
appealed to the High Court and the High Court held that the
law requires corroboration in such cases, but held that the
statements made by the prosecutrix to her mother was legally
admissible as corroboration, and considering that to be
sufficient, the High Court set aside the acquittal and restored
the conviction and sentence of the appellant.

47. The Supreme Court, inter alia, considered the question
whether the law requires corroboration of the statement of the
victim/ prosecutrix in such like cases. The Supreme Court
observed that the Evidence Act does not prescribe that the
statement of the victim/ prosecutrix in the case of rape requires
corroboration. The Supreme Court referred to Section 114 (b)
of the Evidence Act – which states that the Court may presume
that an accomplice is unworthy of credit unless he is
corroborated in material particulars, and Section 133 of the
Evidence Act – which states that an accomplice shall be a
competent witness against an accused person, and a conviction
is not illegal merely because it proceeds upon the

Crl. A. Nos. 592/2018 594/2018 Page 25 of 43
uncorroborated testimony of an accomplice. The Supreme
Court observed that a woman, who has been raped, is not an
accomplice. She is the victim of an outrage. If she consented,
there is no offence unless she is a married woman, in which
case questions of adultery may arise. However, adultery
presupposes consent and so is not on the same footing as rape.
The Supreme Court, inter alia, observed as follows in its
decision:

―… … In the case of a girl who is below the age of
consent, her consent will not matter so far as the
offence of rape is concerned, but if she consented
her testimony will naturally be as suspect as that
of an accomplice. So also in the case of unnatural
offences. But in all these cases a large volume of
case law has grown up which treats the evidence
of the complainant somewhat along the same
lines as accomplice evidence though often for
widely differing reasons and the position now
reached is that the rule about corroboration has
hardened into one of law. But it is important to
under- stand exactly what the rule is and what
the expression “hardened into a rule of law”
means.‖ (emphasis supplied)

48. Vivian Bose, J, who authored the judgment, observed that
in this branch of law, the legal position is the same in India as
in England. He relied upon The King v. Baskerville, (1916) 2
K.B. 658. Baskerville (supra) was a case where the accused
was convicted of committing acts of gross indecency with the
two boys. The two boys were accomplices because they were
freely consenting parties and there was no use of force. In
Baskerville (supra), the learned Chie Justice observed:

“There is no doubt that the uncorroborated
evidence of an accomplice is admissible in
law…… But it has long been a rule of practice at
common law for the judge to warn the jury of the
danger of convicting a prisoner on the

Crl. A. Nos. 592/2018 594/2018 Page 26 of 43
uncorroborated testimony of an accomplice or
accomplices, and, in the discretion of the judge,
to advise them not to convict upon such evidence;
but the judge should point out to the jury that it is
within their legal province to convict upon such
unconfirmed evidence……

This rule of practice has become virtually
equivalent to a rule of law, and since the Court of
Criminal Appeal came into operation this Court
has held that, in the absence of such a warning by
the judge, the conviction must be quashed…… If
after the proper caution by the judge the jury
nevertheless convict the prisoner, this Court will
not quash the conviction merely upon the ground
that the accomplice’s testimony was
uncorroborated.” (emphasis supplied)

49. Justice Bose held that the law was exactly the same in
India. He held:

―That, in my opinion, is exactly the law in India so
far as accomplices are concerned and it is
certainly not any higher in the case of sexual
offences. The only clarification necessary for
purposes of this country is where this class of
offence is sometimes tried by a judge without the
aid of a jury. In these cases it is necessary that
the judge should give some indication in his
judgment that he has had this rule of caution in
mind and should proceed to give reasons for
considering it unnecessary to require
corroboration on the facts of the particular case
before him and show why he considers it safe to
convict without corroboration in that particular
case. I am of opinion that the learned High Court
Judges were wrong in thinking that they could not,
as a matter of law, convict without corroboration.

Crl. A. Nos. 592/2018 594/2018 Page 27 of 43

There is a class of cases which considers that
though corroboration should ordinarily be
required in the case of a grown-up woman it is
unnecessary in the case of a child of tender years.
Bishram. v. Emperor, A.I.R. 1944 Nag. 363 is
typical of that point of view. On the other hand, the
Privy Council has said in Mohamed Sugal Esa v.
The King A.I.R. 1946 P.C. 3 at 5 that as a matter
of prudence a conviction should not ordinarily be
based on the uncorroborated evidence of a child
witness. In my opinion, the true rule is that in
every case of this type the rule about the
advisability of corroboration should be present to
the mind of the judge. In a jury case he must tell
the jury of it and in a non-jury case he must show
that it is present to his mind by indicating that in
his judgment. But he should also point out that
corroboration can be dispensed with if, in the
particular circumstances of the case before him,
either the jury, or, when there is no jury, he
himself, is satisfied that it is safe to do so. The
rule, which according to the cases has hardened
into one of law, is not that corroboration is
essential before there can be a conviction but that
the necessity of corroboration, as a matter of
prudence, except where the circumstances make
it safe to dispense with it, must be present to the
mind of the judge, and in jury cases, must find
place in the charge, before a conviction without
corroboration can be sustained. The tender years
of the child, coupled with other circumstances
appearing in the case, such, for example, as its
demeanour, unlikelihood of tutoring and so forth,
may render corroboration unnecessary but that is
a question of fact in every case. The only rule of
law is that this rule of prudence must be present
to the mind of the judge or the jury as the case
may be and be understood and appreciated by

Crl. A. Nos. 592/2018 594/2018 Page 28 of 43
him or them. There is no rule of practice that
there must, in every case, be corroboration before
a conviction can be allowed to stand‖. (emphasis
supplied)

50. Thus, as early as in 1952, the Supreme Court made the
legal position clear that, firstly, a woman subjected to rape is
not an accomplice and, secondly, the rule of corroboration is
not a mandatory rule, but a rule of prudence and caution,
which could be dispensed with in the facts and circumstances of
a given case. All that is required is that it should be present to
the mind of the Judge, that it is advisable to look for
corroboration of the statement of the prosecutrix/ victim. The
Judge may dispense with the need for corroboration if he thinks
that it is safe to do so. The tender years of the child, coupled
with other circumstances appearing in the case, for example,
his demeanour and unlikelihood of tutoring and so forth may
render corroboration unnecessary, but that is a question of fact
in every case.

51. The Supreme Court then considered the nature and
extent of corroboration required when it is not considered safe
to dispense with it. Once again, the Supreme Court referred to
Baskerville (supra). The Supreme Court held that it is not
independent confirmation of every material circumstance in the
sense that the independent evidence in the case, apart from the
testimony of the complainant or the accomplice, should in itself
be sufficient to sustain conviction. All that is required is that
there must be some additional evidence rendering it probable
that the story of the complainant (who is treated like an
accomplice) is true, and that it is reasonably safe to act upon it.
The independent evidence must not only make it safe to believe
that the crime was committed, but must in some way reasonably
connect or tend to connect the accused with it by confirming in
some material particular the testimony of the accomplice or
complainant that the accused committed the crime. However,
this does not mean that the corroboration as to identity must
extend to all the circumstances necessary to identify the
accused with the offence. All that is necessary is that there

Crl. A. Nos. 592/2018 594/2018 Page 29 of 43
should be independent evidence which will make it reasonably
safe to believe the witnesses story that the accused was the one,
who committed the offence.

52. The Supreme Court proceeded to observe that the
corroboration must come from independent sources, and that
the testimony of one accomplice would not be sufficient to
corroborate that of another. There may, however, be
circumstances which may make it safe to dispense with the
necessity of corroboration, and in such cases a conviction
based on the statement of the victim/ prosecutrix, without
corroboration, would not be illegal. The Supreme Court also
observed that corroboration need not be direct evidence that
the accused committed the crime. It is sufficient if it is merely
circumstantial evidence of his connection with the crime. Were
it otherwise, “many crimes which are usually committed
between accomplices in secret, such as incest, offences with
females” (or unnatural offences) “could never be brought to
justice”.

53. The Supreme Court then proceeded to consider whether
a previous statement of an accomplice/ complainant/
prosecutrix/ victim could be accepted as corroboration? In this
regard, the Supreme Court drew the attention to illustration (j)
to Section 8 of the Evidence Act, which reads – “The question is
whether A was ravished. The facts that, shortly after the alleged
rape, she made a complaint relating to the crime, the
circumstances under which, and the terms in which, the
complaint was made are relevant.”

54. The Supreme Court also referred to Section 157 of the
Evidence Act, which reads:

“In order to corroborate the testimony of a
witness, any former statement made by such
witness relating to the same fact at or about the
time when the fact took place, or before any
authority legally competent to investigate the fact,
may be proved.”

Crl. A. Nos. 592/2018 594/2018 Page 30 of 43

55. The Supreme Court concluded that where the conditions
prescribed in the said section are fulfilled, the statement of the
prosecutrix/ victim would be legally admissible in India as
corroboration.

56. The Supreme Court then considered the question whether
the mother of the victim/ prosecutrix could be regarded as an
―independent‖ witness. The Supreme Court held that there was
no legal bar to exclude the mother of the prosecutrix/ victim
from being considered as an independent witness, merely on the
ground of their relationship. It observed:

―… … Independent merely means independent of
sources which are likely to be tainted. In the
absence of enmity against the accused there is no
reason why she should implicate him falsely. It is
true the accused suggested that they were on bad
terms but that has not been believed by anyone‖.

57. The Supreme Court held that the testimony of the mother
provided independent corroboration connecting the accused
with the crime in the facts of the case, and considering the
conduct of the victim/ prosecutrix and her mother from start to
finish, the Supreme Court held that no corroboration beyond
the statement of the child to her mother was necessary.

58. In Prakash Anr. v. State of Madhya Pradesh, (1992)
4 SCC 225, the fourteen year old minor was the brother of the
deceased. The minor Ajay Singh was stated as an eye witness
to the crime. The Trial Court discarded the evidence of the
minor Ajay Singh, being influenced by the fact that he was of
tender of age and that he was likely to be tutored. The Supreme
Court did not accept this reasoning of the Trial Court. The
Supreme Court observed:

―11. … … In discarding the evidence of the
brother of the deceased namely Ajay Singh the
learned Additional Sessions Judge was influenced
by the tender age of Ajay (about 14 years) and was
of the view that he was likely to be tutored. We do

Crl. A. Nos. 592/2018 594/2018 Page 31 of 43
not think that a boy of about 14 years of age
cannot give a proper account of the murder of his
brother if he has an occasion to witness the same
and simply because the witness was a boy of 14
years it will not be proper to assume that he is
likely to be tutored. The High Court has given very
convincing reasons for accepting the evidence of
Ajay Singh as an eyewitness of the murderous act
and we do not find any infirmity in the finding
made by the High Court … …‖. (emphasis
supplied)

59. Thus, it cannot be assumed that a witness who is a minor
is tutored. There should be evidence/ material on record to
conclude that a child witness has been tutored. At the same
time, the Court has to be satisfied that there is no likelihood of
the child witness being tutored.

60. In Ratansinh Dalsukhbhai Nayak v. State of Gujarat,
(2004) 1 SCC 64, the child was an eye witness to the murder of
the two deceased persons. Relying on the testimony of the child
witness, the Trial Court convicted the accused under Section
302 IPC and, accordingly, sentenced them. Before the Supreme
Court, the appellant placed reliance on Arbind Singh v. State
of Bihar, 1995 (4) SCC 416 to contend that where the Court
finds traces of tutoring, corroboration is a must before the
evidence of the child witness could be acted upon. The
Supreme Court referred to Dattu Ramrao Sakhare v. State of
Maharashtra, (1997) 5 SCC 341, wherein it had been held:

―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

Crl. A. Nos. 592/2018 594/2018 Page 32 of 43
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.‖ (emphasis supplied)

61. The Supreme Court went on to observe:

―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‖. (emphasis supplied)

62. While dealing with the merits of the case before it, the
Supreme Court held that there was no reason for false
implication by the child witness. 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 child witness had no

Crl. A. Nos. 592/2018 594/2018 Page 33 of 43
maturity to understand the import of the questions put to her, or
to give rational answers. The child witness had been cross-
examined at length and she stood her ground. The Supreme
Court held that the evidence of the child witness was credible,
which revealed her truthful approach and that her evidence had
the ring of the truth. Consequently, the Supreme Court
accepted the said evidence of the child witness and dismissed
the appeal.

63. In State of Madhya Pradesh v. Ramesh Anr., 2011 (3)
Scale 619, the daughter of the deceased, aged about eight
years, was a witness to the crime. On the basis of the statement
of the child witness, the two accused were convicted under
Section 302 IPC. Accused no.2 was convicted with the aid of
Section 120B IPC. The High Court, however, reversed the said
judgment and acquitted the accused on the premise that the eye
witness PW-1 was a child witness and was, therefore,
disbelieved. The Supreme Court reversed the decision of the
High Court and restored the conviction of the accused. On the
aspect of admissibility of the evidence of a child witness, the
Supreme Court referred to several earlier decisions. The
relevant passage from this decision of the Supreme Court being
instructed, is reproduced herein below:

―6. In Rameshwar S/o Kalyan Singh v. The State
of Rajasthan, AIR 1952 SC 54, this Court
examined the provisions of Section 5 of Indian
Oaths Act, 1873 and Section 118 of Evidence Act,
1872 and held that every witness is competent to
depose unless the court considers that he is
prevented from understanding the question put to
him, or from giving rational answers by reason of
tender age, extreme old age, disease whether of
body or mind or any other cause of the same kind.
There is always competency in fact unless the
Court considers otherwise.

The Court further held as under:

Crl. A. Nos. 592/2018 594/2018 Page 34 of 43

―…..It is desirable that Judges and magistrates
should always record their opinion that the
child understands the duty of speaking the truth
and state why they think that, otherwise the
credibility of the witness may be seriously
affected, so much so, that in some cases it may
be necessary to reject the evidence altogether.
But whether the Magistrate or Judge really
was of that opinion can, I think, be gathered
from the circumstances when there is no formal
certificate….‖

7. In Mangoo Anr. v. State of Madhya
Pradesh, AIR 1995 SC 959, this Court while
dealing with the evidence of a child witness
observed that there was always scope to tutor the
child, however, it cannot alone be a ground to
come to the conclusion that the child witness
must have been tutored. The Court must
determine as to whether the child has been
tutored or not. It can be ascertained by
examining the evidence and from the contents
thereof as to whether there are any traces of
tutoring.

8. In Panchhi Ors. v. State of U.P., AIR
1998 SC 2726, this Court while placing reliance
upon a large number of its earlier judgments
observed that the testimony of a child witness
must find adequate corroboration before it is
relied on. However, it is more a rule of practical
wisdom than of law. It cannot be held 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

Crl. A. Nos. 592/2018 594/2018 Page 35 of 43
what others tell him and thus a child witness is an
easy prey to tutoring.‖

9. In Nivrutti Pandurang Kokate Ors. v. State of
Maharashtra, AIR 2008 SC 1460, this Court
dealing with the child witness has observed as
under: ―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.‖

10. 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 crossexamination
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

Crl. A. Nos. 592/2018 594/2018 Page 36 of 43
was saying and whether he stood discredited in
facing a stiff cross-examination. A child witness
must be able to understand the sanctity of giving
evidence on a oath and the import of the questions
that were being put to him. (Vide: Himmat
Sukhadeo Wahurwagh Ors. v. State of
Maharashtra, AIR 2009 SC 2292).

11. In State of U.P. v. Krishna Master Ors., AIR
2010 SC 3071, 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.

12. Part of the statement of a child witness, even if
tutored, can be relied upon, if the tutored part can
be separated from 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 Anr. v. State of

Crl. A. Nos. 592/2018 594/2018 Page 37 of 43
Punjab, (2006) 13 SCC 516)‖. (emphasis
supplied)

64. The Supreme Court, in view of the aforesaid legal
position, summarized the law in the following words:

―13. In view of the above, the law on the issue can
be summarized 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‖. (emphasis supplied)

65. Thus, 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.
Evaluation of the evidence of a child witness requires more
care and greater circumspection, because he is susceptible to
tutoring. Only in case there is evidence on record to show that
the child has been tutored, the Court may reject his statement
partly or fully. An inference as to whether the child has been
tutored or not, can be drawn from the content of his deposition.

43. The failure of the prosecution in not examining the children with
whom the prosecutrix was playing may, at the highest, be treated as a lapse
on the part of the prosecution. It is a well known and well recognized fact
that people in society stay away, and do not like to get embroiled in cases as

Crl. A. Nos. 592/2018 594/2018 Page 38 of 43
witnesses – to avoid harassment or face the wrath of the perpetrator of the
crime. Since the other two – with whom the prosecutrix was playing were
also children, their parents may not have been willing to let them be
examined and be subjected and exposed to harassment, trauma and threats.
However, the failure of the prosecution to cite them as witnesses, by itself, is
not sufficient to disbelieve the case of the prosecution. It was not even the
case of the prosecution that the other two children – who were consistently
named by the prosecutrix as her friends, and with whom she was playing
before the incident of rape occurred, were eye witness to the incident of
rape. Thus, their non-examination is not fatal to the case of the prosecution
and is not a circumstance which raises a doubt on the truth of the same.

44. The ld. ASJ observes that even though the prosecutrix claimed that
she had blood oozing out from her private parts; that her undergarments with
the blood stains were collected by the police, and; that her bleeding was
noticed by the counselor PW6 on 26.09.2013, her mother had not noticed
any blood on her private parts. This is not true. As noticed above, PW2 in
her cross examination, inter alia, stated that she had changed the clothes of
the prosecutrix, including panty on Wednesday and washed the clothes. She
stated: “There were blood stains on the panty of my daughter”. She states
that she tried to inquire from the prosecutrix about the same, but she was not
in a position to tell as she was traumatized and weeping. She did not check
the private parts of her daughter to ascertain about the blood. Thus, the Trial
Court has proceeded on a factually wrong premise that the mother of the
prosecutrix PW2 had not noticed any blood.

Crl. A. Nos. 592/2018 594/2018 Page 39 of 43

45. So far as the doctor PW-5 who examined the prosecutrix on
25.09.2013 is concerned, though she did not find an external injury mark,
she did find the hymen congested and the vagina also congested. No doubt,
the MLC does not mention the presence of blood on the private parts of the
prosecutrix but that, in our view, is not sufficient to discredit the statement
of PW6, who is an independent witness and had no reason to falsely
implicate the accused. The prosecutrix was medically examined after 4 days
of the occurrence of the incident. It could well be that she was not bleeding
from her private parts at that point of time. It appears that she had a fluid
discharge from her private parts, which led to PW-5 suspecting vaginitis. It
is well settled that the failure of the police in carrying out proper
investigation, or failure of the prosecution in properly prosecuting the case,
is not sufficient to discredit the case of the prosecution and, if on the basis of
the evidence brought on record, the guilt of the accused is established in
accordance with law, such failure would not be a reason to reject the case of
the prosecution.

46. The Trial Court has also sought to raise an issue with regard to the
place of the incident. He observes that as per the statement of the
prosecutrix, she had been taken to a room where she was raped, whereas,
according to the police the incident took place on the roof. In this regard we
may, firstly, notice the statement of the prosecutrix recorded under Section
164 Cr.P.C. Ex. PW1/A. She stated that the accused took her to the room
and bolted the same from inside. She did not state that the incident of rape
took place on the open terrace. Even when her statement was recorded
before the Court, she clearly stated that while she was playing, the accused

Crl. A. Nos. 592/2018 594/2018 Page 40 of 43
took her to his room where he tied her hand and legs and also burnt the
upper side of her right foot. During her cross examination, it was not
suggested to the prosecutrix that there was no room on the terrace which was
occupied by the accused, or she had never been in that room. It was not
suggested to her that she had only been on the terrace on the roof, and not
the room.

47. Though the Ld. ASJ has not particularized as to which of the
witnesses of the police stated that the incident took place on the roof, a
careful examination of the testimonies of the prosecution witnesses shows
that it was PW11 SI Rambir Singh, who, inter alia stated that during his
cross examination ―It was roof of the top floor where the incident had taken
place. I had informed the SHO that I had gone to the roof of the fourth floor
where the rape was committed‖.

48. Pertinently, in the said statement made during his cross examination,
PW 11 SI Rambir Singh did not state that he was either informed by the
complainant, or by the prosecutrix, or by any other person that the incident
had taken place on the roof of the top floor. He was not an eye witness to
the incident. Thus, his statement to the aforesaid effect is neither here, nor
there. His statement has to be seen in the light of the site plan Ex. PW13/B,
prepared by the I.O. PW13 W/SI Seema. The said site plan Ex. PW13/B
marks the place of incident at Point A, which is a room situated on the
terrace. Thus, the testimony of PW11 SI Rambir Singh that the incident
occurred on the roof of the top floor has to be appreciated in the light of the
fact that on the terrace/ roof itself, the room of the accused was situated.

Crl. A. Nos. 592/2018 594/2018 Page 41 of 43

Unfortunately, this simple aspect has not been appreciated by the Trial Court
and, inter alia, on that basis, the case of the prosecution has been doubted.

49. Ld. ASJ has also relied upon the testimony of PW5 – the doctor who
prepared the MLC of the victim. She, inter alia, during her cross
examination stated that if a male aged 20/22 years commits intercourse with
a girl aged 7 years, in normal circumstances, the hymen cannot remain
intact. This statement of PW5 has been preferred by the Ld. ASJ in contrast
to authoritative works on medical jurisprudence relied upon by the
prosecution and taken note of hereinabove, as well as the further statement
of PW-5 herself.

50. In our view, this approach of the Ld. ASJ was wholly incorrect. We
fail to appreciate as to how the Ld. ASJ could have ignored the subsequent
statement of PW-5 and the medical jurisprudence placed before him, which
shows that the rupture of the hymen of a child of 7 years would normally not
take place in the case of rape, unless the rape is committed violently. The
said medical literature also shows that rape of a minor child of that age is
more likely to result in a congested hymen and congested vagina – which is
the case in hand.

51. So far as defence evidence is concerned, the same has been rejected
by the Ld. ASJ and, in our view, rightly so. DW-1 is the landlord. He
merely states that there used to be some quarrel between the accused and the
complainant regarding the waste in the pipe dropping in front of the room of
the complainant. Even if that be so, it could not be a reason to falsely
implicate the accused in such a serious case. This does not explain the

Crl. A. Nos. 592/2018 594/2018 Page 42 of 43
medical condition of the prosecutrix and her consistent statement. DW-2
Rehmat Ali is the friend of the accused. He claims that the accused was
with him till 09.30 P.M, on 22.09.2013. Pertinently, that was not the
defence set up by the accused either during cross examination of PW1 or
PW2, or in his statement recorded under Section 313 Cr.P.C. His testimony
stands completely discredited. He was an interested witness and his
statement was not corroborated with any independence evidence. DW 3
Kalaam is another friend of the accused. He has deposed in the same
manner as DW-2, that the accused was with them till 10.00 P.M. For the
same reason, his testimony is unworthy of reliance. It is rejected.

52. For all the aforesaid reasons, we are of the considered view that the
impugned judgment cannot be sustained and the evidence led by the
prosecution conclusively establishes the guilt of the respondent accused.
The impugned judgment borders on perversity and has led to serious
miscarriage of justice. Accordingly, we set aside the impugned judgment
and convict the respondent accused for the offences as charged.

(VIPIN SANGHI)
JUDGE

(I.S. MEHTA)
JUDGE

JANUARY 08, 2019

Crl. A. Nos. 592/2018 594/2018 Page 43 of 43

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