[2025:RJ-JP:38302] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Revision Petition No. 75/2003 Chirru @ Jairam S/o Shri Shivram @ Surkha, Resident of Mohalla Rath Khana, Alwar (Raj.) (Accused in District Jail, Alwar) ----Accused/Petitioner Versus The State of Rajasthan, through PP ----Respondent For Petitioner(s) : Mr. Shubham Khuteta for Mr. Deepak Chouhan For Respondent(s) : Mr. Devi Singh, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 16/07/2025 1. Instant criminal revision petition is preferred by the petitioner accused Chirru @ Jairam after dismissal of Criminal Appeal No.09/2002 by learned Special Judge, SC/ST (PoA) Act Cases, (Additional Sessions Judge), Alwar affirming the judgment of conviction and sentence dated 26.10.1999 in Criminal Case No.185/1999 (1267/1986) passed by learned Additional Chief Judicial Magistrate No.2, Alwar, whereby the petitioner accused was convicted for the offence under Sections 363 and 377 IPC further sentenced to undergo rigorous imprisonment for two years with fine of ₹500/- in each of the offence. 2. Learned counsel for the petitioner while referring and relying upon order passed by Hon’ble Suprme Court in case of Pooja Sharma Vs. Union of India and Anr. : Writ [2025:RJ-JP:38302] (2 of 12) [CRLR-75/2003] Petition(Criminal) No.398/2024 submitted that the provisions contained in Section 377 of IPC have not been incroporated in the corresponding provisions of Bhartiya Nyaya Sanhita (BNS) and the Government has deliberately deleted the provision of Section 377 IPC, which is enough to show intention to decriminalise offence under Section 377 IPC. He further submitted that report registered by PW-1 (father of victim) clearly indicate that accused is not known to 13 years old victim and no one has identified accused either at the time of incident or at the time of report. He further submitted that only on basis of hearsay information about alleged involvement of Chirru, his name was mentioned in the report. He also submitted that after arrest of present petitioner, no test identification parade (TIP) was conducted by the police, which is sufficient to show that the present petitioner accused was forwarded to face trial without ensuring involvement and identification. He also submitted that victim PW-3 is a 13 years old child and he is a child witness. He also submitted that the evidence of child witness is not trustworthy unless same is corroborated as there are chance of tutoring the witness. He placed reliance upon judgment of Hon’ble Supreme Court in case of Pradeep Vs. State of Haryana : 2023 SCC Online SC 777 and submitted that the evidence of PW-3 is not trustworthy and the present petitioner cannot be convicted with corroboration of evidence of PW-3. He also submitted that the prosecution story clearly suggested that Ishwari Prasad and Mool Chand were two eye-witnesses and both of [2025:RJ-JP:38302] (3 of 12) [CRLR-75/2003] them were not examined by prosecution. He further submitted that the evidence of PW-3 clearly suggested that he has not identified the petitioner accused from his presence rather he narrated the name, which is not sufficient to convict a person. He also referred evidence of PW-6 Dr. Ramanand Gupta and He submitted that there is no specific opinion about sodomy. He further referred the discrepancy in cross-examination of witnesses and submitted that the trial Court has ignored the material contradictions which are sufficient to dent the case of prosecution. He further referred provision of Section 118 of the Indian Evidence Act and submitted that it was the duty of trial Court to declare PW-3 as competent witness but it had failed to do so before recording statement of PW-3 victim. 3. Learned counsel further referred judgment in case of Panna Lal and Ors. Vs. The State of Rajasthan : S.B. Criminal Appeal No.541/1991 (order dated 19.09.2024), Munna alias Jaid and Another Vs. State of Rajasthan through Public Prosecutor : 2024 SCC OnLine Raj 1406, Nawal Kishore and Another Vs. State of Rajasthan : 2024 SCC OnLine Raj 447 and submitted that a Co-ordinate Bench of this Hon’ble Court has reduced the sentence to already undergone and alternatively he prays for reduction of sentence in case conviction is upheld as the petitioner has already undergone more than 35 days. He also referred judgment in case of Puran Masi Vs. State of UP : Criminal Appeal No.1260/2004 and submitted that the accused is granted benefit of probation even in an [2025:RJ-JP:38302] (4 of 12) [CRLR-75/2003] identical case by a Co-ordinate Bench of the Allahabad High Court. He also placed reliance upon judgment in case of A.K. Sarkar and Co. Vs. State of West Bengal and Ors. : 2024 SCC OnLine SC 248 and submitted that the sentence has not only reduced but the petitioner was not required to undergo further sentence as time period consumed during pendency of petition. 4. Aforesaid contentions were opposed by learned Public Prosecutor. 5. Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record and also perused the judgments as referred by learned counsel for the petitioner. 6. Brief facts of the case giving rise to the present petition are that on basis of a complaint Ex.P-1 lodged by PW-1 on 19.04.1986 about incident of unnatural penetrative sexual assault by an unknown person with his 13 years old son (PW-3), an FIR No.193/1986 is registered at PS Kotwali, Alwar. The person named in report was Chirru on basis of hearsay information. After registration of case, victim was medically examined and a Report Ex.P-5 is prepared. After inspection and preparation of site plan and recovery of underwear of both victim and petitioner accused, the petitioner accused is arrested and a charge-sheet has been filed against him. After framing the charge, the prosecution has examined 8 witnesses. The accused was examined under Section 313 CrPC but he has not submitted any defence evidence. The trial Court has convicted the petitioner [2025:RJ-JP:38302] (5 of 12) [CRLR-75/2003] accused under Sections 363 and 377 of IPC. An appeal preferred before learned Additional Sessions Judge, was dismissed affirming the judgment of conviction and sentence. 7. Here in this case, admittedly two witnesses Ishwari Prasad and Moolchand were not examined as Ishwari Prasad has expired whereas Moolchand has not appeared despite service of bailable warrant. The grounds were considered by the Appellate Court and after mentioning in impugned order the Appellate Court has opined that non examination of these witnesses has no impact. Injured victim is examined as PW-3 and his age was around 13 years. PW-1 is father of PW-3 who reported the matter without any delay to police. PW-2 Damodarlal and PW-4 Ramesh Chand are the witnesses who had seen PW-3 injured when he was crying, as there was bleeding from his anus. PW-6 Dr. Ramanand Gupta has examined victim for injures and prepared report Ex.P-5. It is also evident that the Investigating Officer was not examined by prosecution. 8. We have to consider sufficiency of evidence in light of arguments advanced by learned counsel for the petitioner. The only important witness is PW-3 victim who is a 13 years old boy. In case of Pradeep Vs. State of Haryana (supra), Hon’ble Supreme Court has held that a child witness easily susceptible to tutoring and conviction solely based on the testimony of child witness is unsafe. Section 118 of the Indian Evidence Act does not prescribe any minimum age or qualification to be a witness in any trial or in any case. It [2025:RJ-JP:38302] (6 of 12) [CRLR-75/2003] means a person of teenage can be a competent witness and in such a situation, the Court has to consider the evidence of child witness on basis of facts and circumstances of the case. 9. In case of the State of Madhya Pradesh Vs. Balveer Singh : 2025 INSC 261, Hon’ble Supreme Court has considered testimony of child witness and summarized the conclusion as under :- “(I) The Evidence Act does not prescribe any minimum age for a witness, and as such a child witness is a competent witness and his or her evidence and cannot be rejected outrightly. (II) As per Section 118 of the Evidence Act, before the evidence of the child witness is recorded, a preliminary examination must be conducted by the Trial Court to ascertain if the child-witness is capable of understanding sanctity of giving evidence and the import of the questions that are being put to him. (III) Before the evidence of the child witness is recorded, the Trial Court must record its opinion and satisfaction that the child witness understands the duty of speaking the truth and must clearly state why he is of such opinion. (IV) The questions put to the child in the course of the preliminary examination and the demeanour of the child and their ability to respond to questions coherently and rationally must be recorded by the Trial Court. The correctness of the opinion formed by the Trial Court as to why it is satisfied that the child witness was capable of giving evidence may be gone into by the appellate court by either scrutinizing the preliminary examination conducted by the Trial Court, or from the testimony of the child witness or the demeanour of the child during the deposition and cross-examination as recorded by the Trial Court. (V) The testimony of a child witness who is found to be competent to depose i.e., capable of understanding the [2025:RJ-JP:38302] (7 of 12) [CRLR-75/2003] questions put to it and able to give coherent and rational answers would be admissible in evidence. (VI) The Trial Court must also record the demeanour of the child witness during the course of its deposition and cross-examination and whether the evidence of such child witness is his voluntary expression and not borne out of the influence of others. (VII) There is no requirement or condition that the evidence of a child witness must be corroborated before it can be considered. A child witness who exhibits the demeanour of any other competent witness and whose evidence inspires confidence can be relied upon without any need for corroboration and can form the sole basis for conviction. If the evidence of the child explains the relevant events of the crime without improvements or embellishments, the same does not require any corroboration whatsoever. (VIII) Corroboration of the evidence of the child witness may be insisted upon by the courts as measure of caution and prudence where the evidence of the child is found to be either tutored or riddled with material discrepancies or contradictions. There is no hard and fast rule when such corroboration would be desirous or required, and would depend upon the peculiar facts and circumstances of each case. (IX) Child witnesses are considered as dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded and as such the courts must rule out the possibility of tutoring. If the courts after a careful scrutiny, find that there is neither any tutoring nor any attempt to use the child witness for ulterior purposes by the prosecution, then the courts must rely on the confidence-inspiring testimony of such a witness in determining the guilt or innocence of the accused. In the absence of any allegations by the accused in this regard, an inference as to whether the child has been tutored or not, can be drawn from the contents of his deposition (X) The evidence of a child witness is considered tutored if their testimony is shaped or influenced at the instance of someone else or is otherwise fabricated. Where there has been any tutoring of a witness, the [2025:RJ-JP:38302] (8 of 12) [CRLR-75/2003] same may possibly produce two broad effects in their testimony; (i) improvisation or (ii) fabrication. (i) Improvisation in testimony whereby facts have been altered or new details are added inconsistent with the version of events not previously stated must be eradicated by first confronting the witness with that part of its previous statement that omits or contradicts the improvisation by bringing it to its notice and giving the witness an opportunity to either admit or deny the omission or contradiction. If such omission or contradiction is admitted there is no further need to prove the contradiction. If the witness denies the omission or contradiction the same has to be proved in the deposition of the investigating officer by proving that part of police statement of the witness in question. Only thereafter, may the improvisation be discarded from evidence or such omission or contradiction be relied upon as evidence in terms of Section 11 of Evidence Act. (ii) Whereas the evidence of a child witness which is alleged to be doctored or tutored in toto, then such evidence may be discarded as unreliable only if the presence of the following two factors have to be established being as under: - ▪ Opportunity of Tutoring of the Child Witness in question whereby certain foundational facts suggesting or demonstrating the probability that a part of the testimony of the witness might have been tutored have to be established. This may be done either by showing that there was a delay in recording the statement of such witness or that the presence of such witness was doubtful, or by imputing any motive on the part of such witness to depose falsely, or the susceptibility of such witness in falling prey to tutoring. However, a mere bald assertion that there is a possibility of the witness in question being tutored is not sufficient. ▪ Reasonable likelihood of tutoring wherein the foundational facts suggesting a possibility of tutoring as established have to be further proven or cogently substantiated. This may be done by leading evidence [2025:RJ-JP:38302] (9 of 12) [CRLR-75/2003] to prove a strong and palpable motive to depose falsely, or by establishing that the delay in recording the statement is not only unexplained but indicative and suggestive of some unfair practice or by proving that the witness fell prey to tutoring and was influenced by someone else either by cross-examining such witness at length that leads to either material discrepancies or contradictions, or exposes a doubtful demeanour of such witness rife with sterile repetition and confidence lacking testimony, or through such degree of incompatibility of the version of the witness with the other material on record and attending circumstances that negates their presence as unnatural. (XI) Merely because a child witness is found to be repeating certain parts of what somebody asked her to say is no reason to discard her testimony as tutored, if it is found that what is in substance being deposed by the child witness is something that he or she had actually witnessed. A child witness who has withstood his or her cross-examination at length and able to describe the scenario implicating the accused in detail as the author of crime, then minor discrepancies or parts of coached deposition that have crept in will not by itself affect the credibility of such child witness. (XII) Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from the untutored part, in case such remaining untutored or untainted part inspires confidence.” 10. The principle applied by Hon’ble Supreme Court clearly indicate that a child witness is considered as tutored if there testimony is improvised or influenced at the instance of someone else or is otherwise fabricated. 11. Here in this case, it is apparent that PW-3 who is a 13 years old boy is also an injured and victim and on his hue and cry, his father PW-1 took him to police station to register a case. It is also evident that PW-2 and PW-4 have seen victim in [2025:RJ-JP:38302] (10 of 12) [CRLR-75/2003] post incident condition and moreover, PW-6 Dr. Ramanand Gupta has examined victim on 20.04.1986 and prepared a report Ex.P-5 indicating 8 injuries and further opined to sodomy though in cross-examination he admitted that in case in insertion of hard object, such injures may be caused. 12. Considering aforesaid supportive evidence, it cannot be said that evidence of PW-3 is a part of fabrication. There is no animosity between petitioner accused and PW-1, therefore, there is no chance of fabrication by the complainant in the instant case. Similarly, evidence of PW-3 is for act committed with him, as he is a victim, therefore, testimony of PW-3 confirms two factors as considered by Hon’ble Supreme Court. 13. The evidence of PW-3 clearly suggests that the petitioner accused was identified by him before the Court and at the time of testimony his age was 18 years which means when he made deposition before the trial Court he was competent enough to understand outcome of his evidence. His evidence clearly narrated the incident faced by him and same is further corroborated from evidence of PW-6. After the incident this victim was seen by PW-2 Damodar Lal and PW- 4 Ramesh Chand and also by his father PW-1. The petitioner accused is well identified and his act is proved from the evidence on record. There are no chance of false implication of petitioner accused. 14. As regard to order in case of Pooja Sharma (supra) is concerned, the writ petition was dismissed by Hon’ble Supreme Court on 14.10.2024. The petitioner accused was [2025:RJ-JP:38302] (11 of 12) [CRLR-75/2003] convicted on basis of offence committed on date of incident, therefore, the petitioner accused is not entitled for benefit of deletion of provision under Section 377 of IPC. Now a specific POCSO Act is enacted for sexual exploitation and offences against the child below the age of 18 years. In the present case, the age of victim is less than 18 years and for him the offence is already existing in another form of another law. 15. The petitioner accused remained in custody for a period of 35 days but considering the material on record that the age of victim was less than 14 years and moreover penetrative sexual assault is committed with him and it is a case of heinous nature, therefore, I am of the view that in such a case a liberal attitude is not sufficient to release the petitioner accused on sentence already undergone by him, therefore, the judgments as referred by learned counsel for the petitioner are not helpful in the facts and circumstances of the case in reducing the sentence to already undergone. 16. The petitioner accused has committed penetrative sexual assault with a 13 years old boy that too after forcible taking him and further caused injuries upon him. The ordeal faced by PW-3 was also noticed by PW-1, PW-2 and PW-4 after the incident, therefore, there is enough corroboration and even in absence of evidence of Investigating Officer, the evidence is sufficient to convict the present petitioner accused. The trial Court and the Appellate Court have not committed any error while convicting the present petitioner accused under Sections 363 and 377 of IPC and further, there is no ground [2025:RJ-JP:38302] (12 of 12) [CRLR-75/2003] to reduce the sentence of the present petitioner accused, thus, the revision petition is liable to be dismissed. 17. In view of the discussion made hereinabove, the instant criminal revision petition preferred by the petitioner accused is hereby dismissed. The petitioner accused is directed to surrender before the trial Court to undergo remaining part of the sentence. 18. Misc. application, pending if any, also stands disposed of. (ASHOK KUMAR JAIN),J MR/84