Small Or Insignificant Omissions Can’t Be Basis For Treating Witnesses Hostile: Supreme Court While Upholding Conviction In Minor Girl’s Rape Case

While upholding the conviction of a man in minor girl’s rape case, the Supreme Court held that small or insignificant omissions cannot be the basis for treating the witnesses hostile.

The Court was hearing a Criminal Appeal filed by the accused against the Judgment of the Chhattisgarh High Court, which confirmed his conviction and sentence imposed by the Special Judge.

The two-Judge Bench comprising Justice B.V. Nagarathna and Justice K.V. Viswanathan observed, “… this Court has held that the contingency of cross examining the witness by the party calling, is an extraordinary phenomenon and permission should be given only in special cases. Small or insignificant omissions cannot be the basis for treating the witnesses hostile and the Court before exercising its discretion must scan and weigh the circumstances properly and ought not to exercise its discretion in a casual or routine manner.”

The Bench reiterated that before a witness can be declared hostile and the party examining the witnesses is allowed to cross-examine, there must be some material to show that the witnesses are not speaking the truth or has exhibited an element of hostility to the party for whom he is deposing.

Advocate Kaushal Yadav appeared on behalf of the Appellant/Accused, while Deputy Advocate General (DAG) Rishabh Sahu appeared on behalf of the Respondent/State.

Brief Facts

As per the prosecution case, the father of the victim lodged a report in 2018, stating that his daughter, a minor, had served food to everyone inside the house and then she left the house saying that she will return. When she did not return, a search was carried out, but she could not be found. The father suspected that the Appellant-accused would have lured away the victim. An offence under Section 363 of the Indian Penal Code, 1860 (IPC) was registered and investigation was carried out. The victim was then recovered and on questioning, it was found that the accused had lured her away by promising marriage and after taking her forcibly, allegedly subjected her to sexual intercourse.

Offences under Sections 366, 376, and 506 of the IPC and Section 4 of the POCSO Act (Protection of Children from Sexual Offences Act, 2012) were added. Since the victim belonged to the Scheduled Caste, Section 3(2)(v) of the SC/ST Act [Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989] was also added. The Trial Court convicted the accused for the said offences and sentenced him. Being aggrieved, he approached the High Court, which affirmed his conviction. Hence, he was before the Apex Court.

Reasoning

The Supreme Court in view of the facts and circumstances of the case, noted, “PW-1, the father of the victim, corroborates the prosecution story. He deposes that they were having dinner when the victim left to serve food to his father (victim’s grandfather). The victim did not return and then he lodged the report and informed the police about his suspicion on the appellant. For some strange reason, the prosecutor treated the complainant as hostile and sought permission to put leading questions.”

The Court added that it is at a loss to understand as to why the witness was treated as hostile in the first place.

“We are frequently coming across cases where the prosecutor, for no ostensible reason, wants to treat the witnesses hostile and the Court indiscriminately grants permission”, it remarked.

The Court said that the circumstances under which the Court will exercise the discretion under Section 154 of the Evidence Act, 1872 (Section 157 of the Bharatiya Sakshya Adhiniyam (BSA), 2023) and permit the party calling the witness to put any question which might be put in cross-examination by the adverse party will depend on the facts and circumstances of each case.

“… merely because a witness is declared hostile does not make him unreliable”, it reiterated.

The Court further took note of the fact that the witness deposed that the father of the victim has not mentioned the date of birth at the time of admission but immediately the witness himself stated that the father mentioned her age as six years on the date of the admission.

“The evidence of the father PW-1, the evidence of the teacher PW-9 and the school admission register seized under Ext.P-11 and marked by PW-9, inspires confidence in us to hold that the victim as on the date of the incident, namely, 14.05.2018 was a minor. We have no reason to disbelieve the finding of the trial Court and the High Court having independently considered the evidence and perused the trial court records”, it also said.

Conclusion

Furthermore, the Court enunciated that Section 8(c) of the SC/ST Act clearly indicates that the acquaintance of the accused with the family of the victim is enough to presume that the accused was aware of the caste and identity of the victim, unless proved otherwise.

“In the present case, the evidence on record clearly establishes that the accused was well acquainted with the victim and her family prior to the incident and was fully aware of their caste status. PW-1 categorically stated that the accused was their neighbour and used to frequently visit their house, which initially made him suspicious that he might have been involved in the abduction of his daughter”, it added.

The Court concluded that the accused had prior familiarity with the family and knowledge of their caste, which satisfies the requirement under Section 3(2)(v) of the SC/ST Act.

Accordingly, the Apex Court dismissed the Appeal and upheld the conviction.

Cause Title- Shivkumar @ Baleshwar Yadav v. The State of Chhattisgarh (Neutral Citation: 2025 INSC 1231)

Appearance:

Appellant: AOR Sushil Balwada, Advocates Kaushal Yadav, Nandlal Kumar Mishra, Ajay Kumar, and Naina Garg.

Respondent: DAG Rishabh Sahu, AOR Apoorv Shukla, and Advocate Prabhleen A. Shukla.

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