Allahabad High Court
Kallu Verma @ Arvind vs State Of U.P. on 16 April, 2025
Author: Gautam Chowdhary
Bench: Saumitra Dayal Singh, Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:55236-DB RESERVED ON 10.03.2025. DELIVERED ON 16.04.2025. Court No. - 45 Case :- CRIMINAL APPEAL No. - 1196 of 2021 Appellant :- Kallu Verma @ Arvind Respondent :- State of U.P. Counsel for Appellant :- Balram Singh,Deshraj Garg Counsel for Respondent :- G.A. Hon'ble Saumitra Dayal Singh,J.
Hon’ble Dr. Gautam Chowdhary,J.
(Per : Hon’ble Dr. Gautam Chowdhary, J.)
1. Heard Sri Shad Khan, learned Amicus Curiea for the appellant and Sri L. D. Rajbhar, learned A.G.A.-I for the State and perused the lower Court record.
2. The present appeal arises from the judgment and order dated 08.01.2021 passed by Shri Pawan Kumar Sharma, learned Additional Sessions Judge-IV/ Special Judge (POCSO) Act, Banda in Special Case No. 104 of 2018 (State of U.P. Vs. Kallu Verma alias Arvind), arising out of Case Crime No. 452 of 2018, under Sections 363, 376 I.P.C. and Section 6 of Protection of Children From Sexual Offences Act, Police Station Kotwali Nagar, District Banda, whereby the accused-appellant has been convicted and awarded sentence under Section 6 of Protection of Children From Sexual Offences Act to undergo for rigorous imprisonment for life along with fine of Rs. 50,000/- and in default in payment of fine to further undergo for additional simple imprisonment of one year, and under Section 363 I.P.C. to undergo rigorous imprisonment of five years along with fine of Rs. 5,000/- and in default in payment of fine to further undergo for additional simple imprisonment of one month.
3. The F.I.R. emerges on a written report dated 06.07.2018, written and submitted by the informant ‘A’, who is the father of the minor child ‘B’ aged about 5 years. That written report was written and submitted by ‘A’ to the Station House Officer of Police Station Kotwali, District Banda. On that written report the First Information Report came to be lodged on the same day as Case Crime No. 452 of 2018, under Sections 363, 376 I.P.C. and Section 6 of Protection of Children From Sexual Offences Act, Police Station Kotwali Nagar, District Banda. According to the F.I.R., the informant ‘A’ was sleeping outside his house next to the road in the intervening night of 05/06.07.2018. At around 01:00 hours in the night he went inside his house to drink water. When he came out he saw, Kallu Verma (appellant) taking away his daughter aged about 5 years in his E-Rickshaw towards Attara. Some persons shouted that someone is running away with the young girl in E-Rickshaw. They tried to chase him but failed. When the informant ‘A’ and other persons reached near Shukla Dhaba at Beni Purwa Crossing, they found that E-Rickshaw was standing there. When they steps ahead in an agricultural field they found Kallu was standing and his daughter in blood was crying. He committed rape on his daughter. When they reached he ran away from there.
4. After lodging of the F.I.R., the Investigating Officer recovered the clothes (panty) of the victim and prepared Recovery Memo. She was medically examined. Thereafter, investigation was conducted. During the course of investigation the statement of the victim ‘B’ under Section 164 Cr.P.C. was recorded. After investigation the charge sheet was filed in the matter. Whereafter charges were framed against the appellant on 03.07.2019. The appellant denied his accusation and demanded trial.
5. During the course of trial following documentary evidences have been adduced by the prosecution:
(i) Statement of the victim ‘B’ recorded under Section 164 Cr.P.C. dated 21.07.2018 (Ex.Ka.-1); (ii) Written report dated 06.07.2018 (Ex.Ka.-2); (iii) Recovery Memo of clothes of victim dated 06.07.2018 (Ex.Ka.-3); (iv) Medical Examination Report of the victim dated 06.07.2018 (Ex.Ka.-4); (v) X-Ray Report of the victim (Ex.Ka.-5); (vi) Radiologial Report for age determination of the victim (Ex.Ka.-6); (vii) Charge sheet (Ex.Ka.-7); (viii) F.S.L. Report of the vaginal smear of the victim (Ex.Ka.-8); and (ix) F.S.L. Report of the clothes of the victim (Ex.Ka.-9).
6. In addition to above, the prosecution has also placed on record the testimony of the victim ‘B’ as P.W.1; testimony of the informant ‘A’ as P.W.2; Dr. Usha Singh, who conducted medical examination of the victim as P.W.3; and C.P. Anup Sachan, who proved police papers as P.W.4.
7. The above evidence was confronted to the accused-appellant, who stated that the evidence adduced is false and he has been falsely implicated.
8. After the examination of prosecution witnesses the statement of the accused-appellant under Section 313 Cr.P.C. was recorded, as per which he has been falsely implicated.
9. Further, the defence led evidence in the shape of one witness namely Babulal as D.W.1. He claimed that in the night of 05/06.07.2018 when he was returning home after shutting down Dhaba where he worked, he saw that that two persons in drunken condition were running after leaving a young girl aged about five years in the E-Rickshaw of accused-Kallu. He saw that those two persons were beating Kallu and abusing him, and accused-Kallu while crying was asking them to give his fare and took their girl but they did not listen and fled away while hurling abuses.
10. At the trial, victim ‘B’ was examined as P.W.1. In her statement she has stated that on the date of occurrence she was sleeping outside her home. When she woke up, she saw that accused-Kallu was lying her in a Rickshaw and beating her. While beating her Kallu took off her panty. He pressed her mouth. Blood was oozing from her private parts. Then, Kallu put her in a sack and was going to throw her. At that moment police came, who pulled out her from the sack and arrested Kallu. Police took her to hospital and admitted her. She also proved her statement recorded under Section 164 Cr.P.C. On seeing the accused-Kallu, the victim ‘A’ also stated that he is the person who took her while she was sleeping at her home. He committed wrong with her and was going to throw her by putting her in the sack.
11. In her cross-examination, the victim ‘B’ has stated that she was sleeping outside the house in between her mother and father. When she was abducted her mother and father did not wake up. Her father had not caught Kallu. When her father reached at the place of occurrence the police also reached there. Police personnel had also beaten Kallu. Thereafter, she went to the police station and thereafter went to the doctor.
12. At the trial informant ‘A’, who is father of P.W.1, has deposed as P.W.2. He has stated that on the date of occurrence he was sleeping outside the house along with his wife, daughter ‘B’ and his sons. When he woke up to drink water at about 01:00 hours in the night, he saw that Kallu Verma was taking his daughter away. He was catching hold of his daughter in the E-Rickshaw. He made noise. His wife also ran after on hearing noise but they could not catch him. On hearing the noise, neighbourers gathered and made phone call to the police. When they reached Attarra Road Shukla Dhaba, they found that the E-Rickshaw was parked there and Kallu was standing in the agricultural fields at some distance. His daughter was unconscious. There were no clothes on her body. Blood was oozing from her private parts. At that time, the police reached there and arrested Kallu. Thereafter, he reached the police station along with his daughter and got registered the case. He proved written report (Ex.Ka.-2). The Inspector took the panty of the victim and made recovery memo (Ex.Ka.3).
13. In his cross-examination, P.W.2 has submitted that he did not know the date of occurrence. He reached the police station in the morning on the date of occurrence. When he was going to police station Sub Inspector Rohit was along with him. Rohit had caught the accused red handed. Other police personnel were also along with Rohit. He don’t know the accused. He saw him first at the time of his arrest. He did not know him by his face either. He did not know, who called the police. Kallu was arrested at the place of occurrence. P.W.2 further stated that in the F.I.R. he had written that on seeing them the accused fled towards Benipurwa, for which he cannot give any reason. It is wrong to say that accused Kallu had not committed rape on his daughter and he had not taken her from her house in the E-Rickshaw.
14. Dr. Usha Singh, who medically examined ‘B’ had appeared at the trial as P.W.3. She stated that on 06.07.2018 she was posted as C.M.S. at Women District Hospital. She had medically examined ‘B’ on the consent given by her mother. ‘B’ was found to be four years of age. The statement of victim was recorded by her mother. There was no external injury found on her body. In the internal examination of the victim her urethral was found lacerated, labia minora was inflamed. Her hymen was torn and perineum was torn. Vaginal swab slides were prepared. The panty of the victim was handed over to the police in a sealed cover envelope. Dr. Sagar, who is now retired, had conducted X-Ray and the Board that was so constituted had opined the age of the victim as four years. She had proved signatures of Dr. Sagar. She had also proved medical examination report (Ex.Ka.-4), X-Ray report (Ex.Ka.-5) and Report of the Board for determination of age of the victim as Ex.Ka.-6. This prosecution witness had not been cross-examined at the trial.
15. C.P. Anoop Sachan, who is Court Pairokar, had appeared at the trial as P.W.4. He stated that on 06.07.2018 he was posted at the police station as Court Pairokar. Shri Niwas Yadav was posted as S.H.O. He knows his writing and signature. He proved the signature of the Investigating Officer on the charge sheet (Ex.Ka.-7).
16. In his cross examination P.W.4 had submitted that the Investigating Officer had neither prepared any paper nor put his signature in his presence. He don’t know when the charge sheet was filed nor signature was made in his presence.
17. On such evidence, the trial court found testimony of the victim ‘B’ creditworthy, trustworthy, unimpeached and inspires confidence. The learned trial court further observed that the testimony made by the victim has remained un-shattered in cross-examination which unequivocally reveals that the commission of offence by the accused is described in clear and unambiguous words and her testimony has remained consistent during her cross-examination. The victim has clearly stated that the accused took her away and committed rape on her. Thus, the trial court has convicted the appellant for the offence as noted above and he has been sentenced, accordingly.
18. Submission of learned counsel for the appellant is, whole conviction is based on the testimony of the victim ‘B’. In her statement recorded under Section 161 and 164 Cr.P.C. the victim has not taken the name of appellant and she only states that one Rikshawallah (rickshaw puller). Further, after arrest of the appellant no identification parade was done and he was not put before the victim to identify the accused. It has further been submitted that the incident is of 05/06.07.2018 and the victim ‘B’ deposed her evidence at the trial on 04.02.2020, i.e., almost one and half year of the occurrence, where she identified the accused. She stated that on the date of occurrence she was sleeping outside her house. When she woke up she saw that accused-Kallu was lying her in Rickshaw and was beating her. While beating her Kallu took off her panty. He pressed her mouth. Blood was oozing from her vagina. Then, Kallu put her in a sack and was going to throw her. At that moment police came who pull out her from the sack and arrested Kallu. Police took her to hospital and admitted her. Learned counsel submits that at the time of occurrence as per her medical examination report the victim ‘B’ was aged about four years and on 04.02.2020 when she deposed, she saw the accused first time, at that time she was about six years. Thus, it is unbelievable that a child who was four years of age at the time of occurrence she could identify the accused after a lapse of more than one year when accused was not put for identification after his arrest. That itself renders the prosecution story wholly doubtful.
19. Secondly, it has been emphasized that there are material contradictions in the F.I.R. as well as in the testimony of P.W.1 and P.W.2. It has been asserted, in the F.I.R., P.W.1 had alleged that in the night of 05/06.07.2018 when he along with other persons reached at the place of occurrence, on seeing them the accused fled away, whereas, at the trial he had stated that when they reached at the place of occurrence police also reached there and arrested Kallu. Moreover, in his cross-examination, when P.W.2 was confronted with the version of F.I.R. in that very context, then he had not given any plausible explanation. Similarly, P.W.1 at the trial had specifically stated that on the date of occurrence the appellant was arrested by the police, but as per arrest memo dated 06.07.2018 (not exhibited) the accused was arrested by the police at about 22:45 hours on 06.07.2018, i.e., next day of the occurrence. The arrest of the appellant is also recorded in C.D.A.1, as per which the appellant was arrested by the police on 06.07.2018 at about 10:45 hours in the night near Medical College. Thus, the presence of appellant has been doubted at the place of occurrence.
20. Thirdly, it has been emphasized that though P.W.3-Dr. Usha Singh, who medically examined the victim ‘B’, she found no external injury on the body of the victim. In the internal examination of the victim she found her urethral was lacerated, labia minora was inflamed. Her hymen was torn and perineum was torn. Her vaginal swab slides were also prepared, but as per forensic report (Ex.Ka.-8) though human blood and sperm was found on the clothing of the victim which was sent for forensic test, but no D.N.A. test of the appellant was conducted to trace the same.
21. Lastly, it has been submitted that since there are material inconsistencies in the testimony of P.W.1 and P.W.2 regarding arrest of the accused from the place of occurrence; the accused was not put for identification after his arrest; for the first time the victim ‘B’ saw him at the trial on 04.02.2020 after more than one and half year of the incident, and moreover as per arrest memo the accused was arrested on 06.07.2018 at about 10:45 p.m., thus, the entire testimony of P.W.2 is unreliable and untrustworthy. Thus, even if the testimony of the victim ‘B is to be read, to any extent, the prosecution wholly failed to establish that the appellant had committed rape upon the victim when no such D.N.A. test of the appellant was conducted to trace the sperm and human blood on the samples prepared, sent for forensic test.
22. With regard to the test identification parade not conducted soon after the arrest of the appellant renders the prosecution story wholly doubtful, learned counsel for the appellant has placed reliance upon the judgment of Hon’ble Supreme Court in the case of Venkatesha & Ors. Vs. State of Karnataka : 2025 LawSuit (SC) 148, wherein in para-15, it has been observed as below:
“[15] Furthermore, no identification parade has been conducted in the present matter. While identification by a witness in a given case for the first time in witness box would be permissible, the substantial gap of approximately eight years raises serious concern regarding identification. If no identification parade of the unknown accused persons took place, their identification in the Trial Court, for the first time, would cast a serious doubt on the veracity of the prosecution case.”
23. Further reliance has been placed upon another judgment of Supreme Court in Amrik Singh Vs. State of Punjab : 2022 9 SCC 402, wherein in paras-11 to 21, it has been observed as below:
11. At the outset, it is required to be noted that the appellants – accused have been convicted mainly on the identification of the accused by PW1 in the Court Room and on the recovery of Rs.1 lakh each from the accused persons which were recovered from the places suggested by the accused. Thus, the conviction of the accused in the present case is solely on the identification of the accused by PW1 in the court room. Prior thereto no TIP has been conducted by the investigating agency.
12. Now so far as the conviction based on the recovery of Rs.1 lakhs each from the accused is concerned, at the outset it is required to be noted that even the learned Trial Court has also specifically given the finding that the prosecution has failed to prove that the original complainant and the deceased were carrying Rs.5 lakhs cash in the dicky of the scooter as alleged. To connect the accused for having conducted the evidence of loot of Rs.5 lakhs, primarily the prosecution was required to establish and prove that the person from whom the amount which was having to have looted.
13. Thereafter the prosecution is required to establish and prove that the amount which is recovered from the accused is the very amount which the complainant/the person from whom the amount is looted. Even the learned Trial Court has also not given much stress on the recovery of Rs.1 lakh each from the accused. Be that it may we are of the opinion that when the prosecution has failed to prove that the complainant and the deceased were carrying Rs.5 lakhs cash in the dicky of the scooter and it was the very looted amount which was recovered from the accused, the accused cannot be convicted on the basis of recovery of some cash.
14. Now so far as the conviction of the accused on the PW1 – eyewitness identifying the accused in the Court Room and non-conducting the TIP is concerned, while appreciating the said aspect the averments in the FIR which was given by PW1-eyewitnesses are required to be referred to. It may be true that as per the settled position of law the FIR cannot be encyclopedia. However, at the same time when no TIP was conducted the first version of the complainant reflected in the FIR would play an important role. It is required to be considered whether in the FIR and/or in the first version the eyewitness either disclosed the identity and/or description of the accused on the basis of which he can recollect at the time of deposition and identify the accused for the first time in the courtroom?
15. Having gone through the FIR on the identity of the accused it is stated as under:
“I was driving the scooter and Gian Chand was sitting behind me. When we were at link road shaterwala from Fazilka A bohar G.T. road about 1-1-1/2 kilometre ahead, three young persons reached with us on a scooter from the backside, out of them, two clean shaven young persons having ages of 3035 year and one Sikh (sardar) who had tied a (Thathi) a piece of cloth having the age of about 3032 years, who was sitting in the middle was having a 12 bore gun of small barrel all these three young persons while reaching with us tried us to stop. When we did not stop then a cleanshaven young person who was sitting on the rear seat of the scooter thrown chilly powder on our faces and eyed with his hand as a result of which we could not see and we stopped our scooter being helpless a and opened our eyes after placing hand on the eyes. In the meantime these young persons stopped their scooters ahead of our scooter and came forward to snatch our scooter. We tried to prevent them, in the meantime, a Sikh Youngman fired a shot at Gian Chand in a strength way with his .12 bore gun hitting him on the chest as a result of which he fell down on the ground.”
Thus, from the aforesaid it is seen that except stating that the accused were three young persons out of which two were clean shaven and the one Sikh (sardar) who had tied a (Thathi) having the age of 30-32 years no further description had been given by the complainant – PW1. Nothing has been mentioned in his first statement that he had seen the accused earlier and that he will be able to identify the accused.
16. In light of the above, the deposition of PW1 in the Court and his identifying the accused for the first time in the Court is required to be appreciated. In the examination-in-chief, PW1 has stated as under:
“When at about 1.30 p.m. when we had covered a distance of about eight k.m.s from G.T. road and were going on the link road of Shaterwala, three young persons came from our back side on a scooter. They tried to stop us but we did not stop. They over took our scooter and put chillies powder in my eyes. That chilly powder entered in my right eye and I had to stop my scooter. After rubbing the eye I opened the same. Gain Chand alighted from my scooter.”
* * *
“Out of three young persons, two young boys tried to snatch my scooter. Gian Chand came parallel to me and tried to prevent those boys from snatching the scooter. One of those boys fired a shot at Gian Chand which hit him at his chest on the seat of heart. All the three said young persons are the accused who are present in the court today (witness has pointed towards one of the accused as the person who had fired at Gian Chand and that accused has disclosed his name as Amrik Singh). The accused who is standing on one side had put the chili powder in my eyes (the name of the accused pointed out by the witness has been disclosed as Subhash Chand).”
17. In the cross-examination PW1 had deposed as under:
“I had not stated before the police that the chilli powder had effected only my right eye and I opened the same after rubbing it. I had stated before the police that chilli powder was put in our eyes as a result of which were not in position to see.”
* * *
“In connection with the investigation of this case I had been going to the police station quite often. The accused were never shown to me during investigation. Before the occurrence, I had seen them in the City on one or two occasions. I After the occurrence I have seen, them in the court today for the first time. At the time of occurrence their names were not known to me. I do not know where they had been residing before the occurrence. When I made my statement before police I had only disclosed the age of accused and not their description. It is incorrect that I have deposed falsely, lit is incorrect that accused were known the earlier. It is further incorrect that accused have been falsely implicated in this case as Pritpal Singh had filed writ petition against the police in the month of August/ September 2001.”
18. From the aforesaid it can be seen that as such there are some contradictions in the first statement of the complainant recorded in the form of FIR and in the deposition before the Court. In the deposition before the Court, he has tried to improve the case by deposing that he had seen the accused in the city on one or two occasions. The aforesaid was not disclosed in the FIR. Even in the cross-examination as admitted by PW1 he did not disclose any description of the accused. At this stage it is to be noted that PW1 has specifically and categorically admitted in the cross-examination that it is incorrect that the accused were known earlier. He disclosed only the age of the accused. In that view of the matter conducting of TIP was necessitated and, therefore in the facts and circumstances of the case, it is not safe to convict the accused solely on their identification by PW1 for the first time in the Court.
19. Now so far as the reliance placed upon the decision of this Court in the case of Malkhansingh v. State of M.P., (2003) 5 SCC 746 relied upon by learned counsel appearing on behalf of the State in support of her submissions that the TIP is not substantive evidence and in fact the substantive evidence is that of identification in Court is concerned, on facts the said decision shall not be applicable to the facts of the case on hand. Even in the said decision it is observed what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. In the case before this Court, it was found that the crime was perpetrated in broad daylight; the prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other; before the rape was committed, she was threatened and intimated by the accused; after the rape was committed, she was again threatened and intimidated by them. On such facts it was found that it was not a case where the identifying witness had only a fleeting glimpse of the accused on a dark night.
20. Similarly, another decision of this Court in the case of Mohd. Kalam v. State of Rajasthan, (2008) 11 SCC 352 relied upon by learned counsel appearing on behalf of the State also shall not be applicable to the facts of the case on hand. It is observed in the said decision that the evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. It is observed that the purpose of TIP therefore is to test and strengthen the trustworthiness of that evidence. It is observed that it is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. It is further observed that the said rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration. Therefore, on facts it was observed that failure to hold a TIP would not make inadmissible the evidence of identification in Court. It is further observed that the weight to be attached to such identification should be a matter for the courts of fact.
21. Even applying the law laid down by this Court in the aforesaid decisions and looking to the facts narrated hereinabove, we are of the opinion that it would not be safe and/or prudent to convict the accused solely on the basis of their identification for the first time in the Court.
24. On the other hand, learned A.G.A. would submit, wholly credible prosecution evidence exists in the shape of statement of ‘B’ and ocular evidence led by her father ‘A’ (P.W.2). Reference has also been made to the testimony of ‘A’ (P.W.2), who is the father of the victim girl to submit that all ocular/ oral evidence are wholly corroborated and consistent. No other conclusion may have been drawn by the learned trial Court except the guilt of appellant under Section 6 of Protection of Children From Sexual Offences Act and Section 363 I.P.C. As to the sentence, learned A.G.A. would submit, considering the fact that the appellant had attained majority and was aged about 35 years on the date of occurrence, whereas victim ‘B’ was a vulnerable infant about four years of age, no leniency may be shown.
25. Having heard the learned counsel for the parties and having perused the record, the F.I.R. narration noted above was reiterated by P.W.2. From the testimony of P.W.1 and P.W.2 it is crystal clear that that there are material contradictions in the F.I.R. as well as in the testimony of P.W.1 and P.W.2. In the F.I.R., P.W.1 had alleged that in the night of 05/06.07.2018 when he along with other persons reached at the place of occurrence, on seeing them the accused fled away, whereas, at the trial he states that when they reached at the place of occurrence police also reached there and arrested the appellant. In his cross-examination, when P.W.2 was confronted with the version of F.I.R. in that regard, then he could not give any plausible explanation. Similarly, P.W.1 at the trial has specifically stated that on the date of occurrence the appellant was arrested by the police, but as per arrest memo dated 06.07.2018 (not exhibited) the accused was arrested by the police at about 22:45 hours on 06.07.2018, i.e., next day of the occurrence. The arrest of the appellant is also recorded in C.D.A.1, as per which the appellant was arrested by the police on 06.07.2018 at about 10:45 hours in the night near Medical College. Thus, the presence of appellant at the place of occurrence is doubtful.
26. So far as identification of accused by the victim ‘B’ is concerned, what we find that in her statement recorded under Section 161 and 164 Cr.P.C. she had not taken the name of appellant and had only stated that one ‘Rikshawallah’ (E-Rickshaw driver). The incident is of 05/06.07.2018 and that time the victim ‘B’ was four years of age. When the victim ‘B’ deposed her evidence at the trial on 04.02.2020, i.e., more than one and half year of the occurrence, she was about six years, where she identified the accused. At that time, she saw the accused first time. Thus, first identification made by a child after more than one and half year is an unnatural behaviour as it is not expected from a child of six years of age to be able to identify the assailant after such a long gap. Therefore, the evidence of victim ‘B’ requires very careful examination. While a child witness may not be disbelieved if his/ her account is consistent and trustworthy and at the same time as to principle, it has been laid down in Vadivelu Thevar Vs. State of Madras : AIR 1957 SC 614, wherein the Supreme Court has observed as below :-
“The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution.”
27. Then, in Joseph vs State of Kerala, (2003) 1 SCC 465, with respect to testimony of single eye-witness, the Supreme Court further observed:
To our mind, it appears that the High Court did not follow the aforesaid standard but went on to analyse evidence as if the material before them was given for the first time and not in appeal. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when the prosecution case rests mainly on the sole testimony of an eyewitness, it should be wholly reliable. Even though such witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable.
28. Again, in Bhimapa Chandappa Hosamani vs State of Karnataka, (2006) 11 SCC 323, word of caution was added by the Supreme Court, a Court may pass the order of conviction, solely on that testimony. It observed as below:
“We have undertaken a very close and critical scrutiny of the evidence of PW 1 and the other evidence on record only with a view to assess whether the evidence of PW 1 is of such quality that a conviction for the offence of murder can be safely rested on her sole testimony. This Court has repeatedly observed that on the basis of the testimony of a single eyewitness a conviction may be recorded, but it has also cautioned that while doing so the court must be satisfied that the testimony of the solitary eyewitness is of such sterling quality that the court finds it safe to base a conviction solely on the testimony of that witness. In doing so the court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the court as wholly truthful, must appear to be natural and so convincing that the court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness.”
29. Applying the above test, we are further mindful that the victim ‘B’ was about four years of age at the time of occurrence and six years of age on the date when her statement was recorded by the trial court. In that regard, the law on that point has been discussed by the Supreme Court in various decisions. In Dattu Ram Sakhare Vs. State of Maharashtra : (1997) 5 SCC 341 the Hon’ble Supreme Court was pleased to observe as under :-
“The entire prosecution case rested upon the evidence of Sarubai (P.W.2) a child witness aged about 10 years. It is, therefore, necessary to find out as to whether her evidence is corroborated from other evidence on record. A child 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 question and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record. In the light of this well settled principle we may proceed to consider the evidence of Sarubai(P.W.2).”
30. Then, again in Ratansinh Dalsukhbhai Nayak vs State of Gujarat, (2004) 1 SCC 64, after relying on Dattu Ramrao Sakhare (supra), the Supreme Court further elaborated on the vulnerability of a child witness and observed that a child witness may remain amenable to tutoring. Therefore, a more careful scrutiny is required- of such evidence. In that regard, it was observed as below:
“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.”
31. Then, in Golla Yelugu Govindu Vs. State of A.P., (2008) 16 SCC 769, again, reliance was placed on Dattu Ramrao Sakhare (supra). Thereafter, principle laid in Dattu Ramrao Sakhare (supra) and Ratansinh Dalsukhbhai Nayak (supra) was reiterated. Last, in Alagupandi vs State of T.N., (2012) 10 SCC 451, again the principal laid down in Dattu Ramrao Sakhare (supra) and Ratansinh Dalsukhbhai Nayak (supra) was reiterated.
32. Applying the above tests, we note that though in her statement recorded under Section 161 Cr.P.C. the victim ‘B’ made allegation of rape against the appellant, but in her statement recorded under Section 164 Cr.P.C. she made allegation of beating by the accused with slipper on her back. She also states that blood was oozing from her leg, though as per P.W.4-Dr. Usha Singh no external injury was found on the medical examination of ‘B’. Further, in both the statements recorded under Section 161 and 164 Cr.P.C. she stated that an unnamed Rickshaw Wallah took her, but when she deposed her evidence before the trial court on 04.02.2020, i.e., after more than one and half year, she saw the accused first time and identified him. Thus, deposition of victim ‘B’ regarding identification of the appellant is lacking in material parts. First, the accused was not put for identification by the victim ‘B’ soon after his arrest and he was identified by the victim first time when she appeared before the trial court on 04.02.2020, i.e., after more than one and half year. Unless the account offered by the child victim ‘B’ did indicate to the Court that the accused was put for identification soon after his arrest or after the occurrence was caused, it would be conjectural to reach a firm conclusion that the child victim had correctly and clearly identified the accused-appellant.
33. In such quality of evidence led by the prosecution, it cannot be said that the prosecution was able to prove beyond reasonable doubt that the appellant was correctly identified by the victim ‘B’ who was four years of age at the time of occurrence and six years of age at the time when she appeared before the trial court to adduce her evidence and saw the accused first time. For the reasons not known to us, but is relevant that though the forensic report disclosed presence of human sperm on the clothing of the deceased, but no D.N.A. test was conducted on those samples and no D.N.A. match was attempted with the appellant, to trace the same of him. No other recovery is related to the appellant and no corroboration material exists to trust the prosecution claim of evidence of last seen.
34. On one hand, there exists duty to bring home the guilt of an offender and on the other hand, prosecution is equally responsible to prove beyond reasonable doubt. The completed chain of evidence must support the prosecution story that the accused alone could have caused the occurrence. Merely because offence involves a minor and the occurrence is of heinous offence, it did not absolve the prosecution of its responsibility to conduct itself with all sincerity-to adduce and collect hard evidence and to prove it, to establish that the appellant had caused the occurrence.
35. For the reasons noted above, we find that the order of conviction cannot be sustained. Reasonable doubt exists that the occurrence was caused otherwise than narrated by the prosecution. It is not clear that the accused was present at the place of occurrence. Thus, no corroborative material exists to establish that the offence of taking the child victim by the appellant from her home, or commission of rape, or both were caused by the appellant. No recovery, whatsoever, exists to corroborate the prosecution story.
36. Consequently, this appeal succeeds and is allowed. The judgment and order dated 08.01.2021 passed by Shri Pawan Kumar Sharma, learned Additional Sessions Judge-IV/ Special Judge (POCSO) Act, Banda in Special Case No. 104 of 2018 (State of U.P. Vs. Kallu Verma alias Arvind), arising out of Case Crime No. 452 of 2018, under Sections 363, 376 I.P.C. and Section 6 of Protection of Children From Sexual Offences Act, Police Station Kotwali Nagar, District Banda, is set aside. The appellant is acquitted from the charges of offence framed against him, on a benefit of doubt. The accused-appellant is in jail since 06.07.2018. Let him be released, forthwith, unless he is wanted in any other case, subject to compliance of Section 437-A Cr.P.C.
37. The trial Court record along with the copy of this judgment and order be transmitted to the court concerned, forthwith.
38. Let a copy of this judgment be sent to the Jail Authorities concerned and the court concerned for compliance.
39. In view of the aforesaid, the pending application, if any, of this appeal also stands disposed of.
40. Shri Shad Khan, learned Amicus Curiae has rendered his valuable assistance to the Court. He be paid Rs. 25,000/- towards fee for the able assistance provided by him in hearing the present appeal.
Order Date :- 16.04.2025
Mustaqeem.
(Dr. Gautam Chowdhary, J.)
I agree.
(S. D. Singh, J.)