Himachal Pradesh High Court
Reserved On: 25.02.2026 vs Of on 16 March, 2026
2026:HHC:7170
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.436 of 2015
.
Reserved on: 25.02.2026
Date of Decision: 16.03.2026.
State of H.P. ...Petitioner
Versus
of
Mohan Lal ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
rt
Whether approved for reporting?1 No.
For the Petitioner/State : Mr Prashant Sen, Deputy
Advocate General
For the Respondent : Mr Karan Sharma, Advocate,
vice Mr Atharv Sharma,
Advocate.
Rakesh Kainthla, Judge
The present revision is directed against the judgment
dated 12.03.2015, passed by learned Additional Sessions Judge-I,
Kangra at Dharamshala, H.P. (Circuit Court at Nurpur) (learned
Appellate Court), vide which the judgment dated 25.03.2010 passed
by learned Judicial Magistrate, First Class, Court No. 1, Nurpur,
District Kangra, H.P. (learned Trial Court) was upheld. (Parties shall
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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hereinafter be referred to in the same manner as they were arrayed
before the learned Trial Court for convenience.)
.
2. Briefly stated, the facts giving rise to the present
petition are that the police presented a challan before the learned
Trial Court against the accused for the commission of an offence
punishable under Section 377 of the Indian Penal Code (IPC). It
of
was asserted that the victim is the informant’s son. The victim
was aged 6 years and was studying in class two. The informant left
rt
his home to purchase medicine for his wife on 11.06.2009. He
returned to his home and found that his sons were not present. He
searched for them. The victim met him on the way, and he was
crying. The informant asked the victim about the reason for
crying, and he replied that the accused had taken him to a mango
orchard and had sexually penetrated his anus. The informant
asked the accused as to why he had done so. The accused
assaulted the informant. The informant narrated the incident to
the Ward Punch, Ram Lal (PW-1). He also narrated the incident to
Pardhan, Sat Pal(PW-6), who expressed his inability to do
anything in the matter. The informant went to the police station
and reported the matter to the police. The police registered the
F.I.R. (Ext.PW-2/A). Inspector/SHO Kamljeet Singh (PW-11) filed
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an application (Ext.PW-11/A) for medical examination of the
victim. Dr Shiv Darshan Singh (PW-12) examined the victim and
.
found abrasion marks in the perianal region. He sealed the
victim’s knickers and handed it over to the police official
accompanying the victim. He issued the MLC (Ext.PW-12/A).
Inspector/SHO Kamaljeet (PW-11) went to the spot and prepared
of
the site plan (Ext.PW-11/B). He arrested the accused and filed an
application (Ext.PW-11/D) for medical examination of the accused.
rt
Dr Ashutosh Joshi (PW-5) examined the accused and found that
there was nothing to suggest that the accused was incapable of
performing sexual intercourse. He issued the report
(Ext. PW-5/A). He preserved the pants of the accused, sealed it in a
parcel and handed over the parcel to the police official
accompanying the accused. The case property was sent to SFSL,
Junga, and the result (Ext.PA) was issued, stating that human
blood was found on the victim’s knickers. Suresh Kumar (PW-4)
issued an age certificate (Ext.PW-4/A) of the accused.
Inspector/SHO Kamaljeet Singh (PW-11) filed an application
(Ext.PW-11/E) for obtaining the birth certificate of the victim. Raj
Kumar (PW-7) issued the birth certificate (Ext.PW-7/A).
Statements of witnesses were recorded as per their version and
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after completion of the investigation, the challan was was
prepared and presented before the learned Trial Court.
.
3. The learned Trial Court found sufficient reasons to
summon the accused. When the accused appeared, he was charged
with the commission of an offence punishable under Section 377
of the IPC, to which he pleaded not guilty and claimed to be tried.
of
4. The prosecution examined twelve witnesses to prove its
case. Ram Lal (PW-1) was the Ward Punch to whom the incident
rt
was narrated. The victim’s father (PW-2) and mother (PW-3)
were told about the incident. Suresh Kumar (PW-4) issued the
birth certificate of the accused Mohan Lal. Dr Ashutosh Joshi
(PW-5) medically examined the accused. Sat Pal (PW-6) was the
Pardhan. Raj Kumar (PW-7) issued the victim’s birth certificate.
The victim (PW-8) narrated the incident. HC Bir Singh (PW-9)
was working as MHC with whom the case property was deposited.
HHC Ranjeet Singh (PW-10) carried the case property to SFSL
Junga. Inspector Kamaljeet (PW-11) investigated the matter. Dr
Shiv Darshan Singh (PW-12) examined the victim.
5. The accused, in his statement, recorded under Section
313 of Cr.P.C., denied the prosecution’s case in its entirety. He
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claimed that he was innocent, and witnesses deposed against him
because of the enmity. He did not produce any evidence in his
.
defence.
6. Learned Trial Court held that the victim admitted in his
cross-examination that he was making the statement at his
father’s instance. Dr Shiv Darshan (PW-12) admitted that the
of
injury noticed by him could be caused by scratching the anus with
the finger. The relationship between the victim’s father and the
accused was
rt strained. They had civil litigation. Sat Pal
(PW-6), Pardhan, had asked the father of the accused to keep
forty bags of cement, but he declined, which led to the
deterioration of the relationship between the victim’s father and
Sat Pal. The parcel produced before the Court did not have a legible
seal impression, and the integrity of the case property was not
established; hence, the learned Trial Court acquitted the accused
of the charged offence.
7 Being aggrieved by the judgment passed by the learned
Trial Court, the State filed an appeal which was decided by the
learned Additional Sessions Judge-I, Kangra, at Dharamshala, H.P.
(learned Appellate Court). Learned Appellate Court concurred
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with the findings recorded by the learned Trial Court that the
victim’s testimony was not reliable. He admitted that he was
.
tutored by his father. The Medical Officer admitted that the injury
noticed by him could have been caused by scratching the anus.
Learned Trial Court was justified in doubting the prosecution’s
case; hence, the appeal was dismissed.
of
8. Being aggrieved by the judgments passed by the
learned Courts below, the State has filed the present revision
rt
asserting that the learned Courts below failed to properly
appreciate the statements of the victim and his father. These
statements proved the prosecution’s case beyond a reasonable
doubt. They were corroborated by the medical evidence.
Therefore, it was prayed that the present revision be allowed and
the judgments passed by the learned Courts below be set aside.
9. I have heard Mr Prashant Sen, learned Deputy Advocate
General, for the petitioner-State and Mr Karan Sharma, learned
vice counsel representing the respondent/accused.
10. Mr Prashant Sen, learned Deputy Advocate General, for
the petitioner-State, submitted that the learned Courts below
erred in appreciating the evidence on record. The victim’s
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testimony proved the prosecution’s case. His testimony was
corroborated by the testimonies of his father, Ward Punch and
.
Pardhan. Learned Courts below rejected the statements of
prosecution witnesses because of the enmity, but the enmity is a
double-edged weapon: while it furnishes a motive for false
implication, it also furnishes a motive for the commission of a
of
crime. In the present case, enmity furnished a motive for the
commission of the crime. Therefore, he prayed that the present
rt
revision be allowed and the judgments passed by the learned
courts below be set aside.
11. Mr Karan Sharma, Advocate, vice counsel representing
the respondent/accused, submitted that the learned Courts below
have properly appreciated the material on record. They have
rightly held that the victim was tutored and his testimony could
not be accepted. There is no infirmity in the findings recorded by
the learned Courts below, and this Court should not interfere with
the concurrent findings of fact. Therefore, he prayed that the
present revision be dismissed.
12. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
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13. It was laid down by the Hon’ble Supreme Court in
Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204: (2022)
.
3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional court is
not an appellate court and it can only rectify the patent defect,
errors of jurisdiction or the law. It was observed at page 207: –
“10. Before adverting to the merits of the contentions, at
the outset, it is apt to mention that there are concurrentof
findings of conviction arrived at by two courts after a
detailed appreciation of the material and evidence brought
on record. The High Court in criminal revision against
rt
conviction is not supposed to exercise the jurisdiction like
the appellate court, and the scope of interference in revision
is extremely narrow. Section 397 of the Criminal ProcedureCode (in short “CrPC“) vests jurisdiction to satisfy itself or
himself as to the correctness, legality or propriety of any
finding, sentence or order, recorded or passed, and as to the
regularity of any proceedings of such inferior court. Theobject of the provision is to set right a patent defect or an
error of jurisdiction or law. There has to be a well-founded
error which is to be determined on the merits of individualcases. It is also well settled that while considering the same,
the Revisional Court does not dwell at length upon the factsand evidence of the case to reverse those findings.
14. This position was reiterated in State of Gujarat v.
Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294, wherein it was
observed:
“13. The power and jurisdiction of the Higher Court under
Section 397 Cr. P.C., which vests the court with the power to
call for and examine records of an inferior court, is for the
purposes of satisfying itself as to the legality and regularity
of any proceeding or order made in a case. The object of this::: Downloaded on – 16/03/2026 20:33:11 :::CIS
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2026:HHC:7170provision is to set right a patent defect or an error of
jurisdiction or law or the perversity which has crept into
such proceedings. It would be apposite to refer to the
judgment of this court in Amit Kapoor v. Ramesh Chandra,.
(2012) 9 SCC 460, where the scope of Section 397 has been
considered and succinctly explained as under:
“12. Section 397 of the Code vests the court with the
power to call for and examine the records of aninferior court for the purposes of satisfying itself as to
the legality and regularity of any proceedings or order
made in a case. The object of this provision is to setof
right a patent defect or an error of jurisdiction or law.
There has to be a well-founded error, and it may not
be appropriate for the court to scrutinise the orders,
rtwhich, upon the face of it, bear a token of careful
consideration and appear to be in accordance with the
law. If one looks into the various judgments of thisCourt, it emerges that the revisional jurisdiction can
be invoked where the decisions under challenge are
grossly erroneous, there is no compliance with the
provisions of law, the finding recorded is based on noevidence, material evidence is ignored, or judicial
discretion is exercised arbitrarily or perversely. These
are not exhaustive classes but are merely indicative.
Each case would have to be determined on its own
merits.
13. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one and
cannot be exercised in a routine manner. One of the inbuiltrestrictions is that it should not be against an interim or
interlocutory order. The Court has to keep in mind that the
exercise of revisional jurisdiction itself should not lead to
injustice ex facie. Where the Court is dealing with the
question as to whether the charge has been framed properly
and in accordance with law in a given case, it may be
reluctant to interfere in the exercise of its revisional
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2026:HHC:7170categories aforestated. Even the framing of a charge is a
much-advanced stage in the proceedings under the CrPC.”
15. It was held in Kishan Rao v. Shankargouda, (2018) 8 SCC
.
165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC OnLine
SC 651 that it is impermissible for the High Court to reappreciate
the evidence and come to its conclusions in the absence of any
perversity. It was observed at page 169:
of
“12. This Court has time and again examined the scope of
Sections 397/401 CrPC and the grounds for exercising the
revisional jurisdiction by the High Court. In State of Kerala v.
rt
Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452:
1999 SCC (Cri) 275, while considering the scope of the
revisional jurisdiction of the High Court, this Court has laid
down the following: (SCC pp. 454-55, para 5)
5. … In its revisional jurisdiction, the High Court can call
for and examine the record of any proceedings for thepurpose of satisfying itself as to the correctness, legality
or propriety of any finding, sentence or order. In other
words, the jurisdiction is one of supervisory jurisdictionexercised by the High Court for correcting a miscarriage
of justice. But the said revisional power cannot beequated with the power of an appellate court, nor can it
be treated even as a second appellate jurisdiction.
Ordinarily, therefore, it would not be appropriate for the
High Court to reappreciate the evidence and come to its
own conclusion on the same when the evidence has
already been appreciated by the Magistrate as well as the
Sessions Judge in appeal, unless any glaring feature is
brought to the notice of the High Court which would
otherwise tantamount to a gross miscarriage of justice.
On scrutinising the impugned judgment of the High
Court from the aforesaid standpoint, we have no
hesitation in coming to the conclusion that the High
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Court exceeded its jurisdiction in interfering with the
conviction of the respondent by reappreciating the oral
evidence. …”
13. Another judgment which has also been referred to and
.
relied on by the High Court is the judgment of this Court in
Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke,
(2015) 3 SCC 123: (2015) 2 SCC (Cri) 19. This Court held that
the High Court, in the exercise of revisional jurisdiction,
shall not interfere with the order of the Magistrate unless it
is perverse or wholly unreasonable or there is non-
consideration of any relevant material, the order cannot be
of
set aside merely on the ground that another view is
possible. The following has been laid down in para 14: (SCC
p. 135)
“14. … Unless the order passed by the Magistrate is
rt
perverse or the view taken by the court is wholly
unreasonable or there is non-consideration of any
relevant material or there is palpable misreading of
records, the Revisional Court is not justified in setting
aside the order, merely because another view is possible.
The Revisional Court is not meant to act as an appellate
court. The whole purpose of the revisional jurisdiction is
to preserve the power in the court to do justice in
accordance with the principles of criminal jurisprudence.
The revisional power of the court under Sections 397 to
401 CrPC is not to be equated with that of an appeal.
Unless the finding of the court, whose decision is sought
to be revised, is shown to be perverse or untenable in law
or is grossly erroneous or glaringly unreasonable or
where the decision is based on no material or where the
material facts are wholly ignored or where the judicial
discretion is exercised arbitrarily or capriciously, the
courts may not interfere with the decision in exercise of
their revisional jurisdiction.”
14. In the above case, also a conviction of the accused was
recorded, and the High Court set aside [Dattatray Gulabrao
Phalke v. Sanjaysinh Ramrao Chavan, 2013 SCC OnLine Bom
1753] the order of conviction by substituting its own view.
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This Court set aside the High Court’s order, holding that the
High Court exceeded its jurisdiction in substituting its
views, and that too without any legal basis.
16. This position was reiterated in Bir Singh v. Mukesh
.
Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ)
309: 2019 SCC OnLine SC 13, wherein it was observed at page 205:
“16. It is well settled that in exercise of revisional
jurisdiction under Section 482 of the Criminal Procedureof
Code, the High Court does not, in the absence of perversity,
upset concurrent factual findings. It is not for the Revisional
Court to re-analyse and re-interpret the evidence on record.
17. As held by this Court in Southern Sales & Services v.
rt
Sauermilch Design and Handels GmbH, (2008) 14 SCC 457, it is
a well-established principle of law that the Revisional Courtwill not interfere even if a wrong order is passed by a court
having jurisdiction, in the absence of a jurisdictional error.
The answer to the first question is, therefore, in the
negative.”
17. The present revision has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
18. The victim is the only witness to the incident. The
learned Courts below rejected his testimony on the ground that he
was tutored. Hence, it is necessary to re-appreciate his statement.
19. The victim stated that he knew the accused. The
accused had sexually penetrated his anus. He cried, but nobody
came, and he did not narrate the incident to any person. He was
permitted to be cross-examined as he had resiled from his earlier
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statement. He admitted that he and his brother were present at
home. He denied that the accused came to his home and told him
.
to accompany him to the mango orchard. He denied that he had
accompanied the accused to the orchard. He admitted that the
accused removed his knickers in the orchard and sexually
penetrated his anus. He admitted that he cried, and his anus
of
started bleeding. He admitted that he came to the house, and he
was crying. He admitted that his father met him on the way and
rt
he had narrated the incident to him. He admitted that his father
had taken him to the Police Station and hospital. He stated in his
cross-examination by the defence that his father was present in
the Court. He admitted that he was making the statement at the
instance of his father that the accused had taken him to the
orchard where he (accused) had removed his knickers and sexually
penetrated his anus.
20. The statement made by the victim in the cross-
examination that he was making the statement at his father’s
instance that the accused had taken him to the orchard where he
(the accused) had removed his knickers and sexually penetrated
his anus shows that he was tutored to state this fact. It was laid
down by the Hon’ble Supreme Court in Chhagan Dame v. State of
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Gujarat, 1995 SCC (Cri) 182, that where a child witness is found to
be tutored, no reliance can be placed upon his testimony. It was
.
laid down by the Hon’ble Supreme Court in Digamber Vaishnav v.
State of Chhattisgarh, (2019) 4 SCC 522: (2019) 2 SCC (Cri) 300: 2019
SCC OnLine SC 316 that evidence of a child witness must be
evaluated carefully, as the child may be swayed by what others tell
of
him and he is an easy prey to tutoring. It was observed at page
529:
rt
22. This Court has consistently held that evidence of a child
witness must be evaluated carefully, as the child may beswayed by what others tell him, and he is an easy prey to
tutoring. Therefore, the evidence of a child witness must
find adequate corroboration before it can be relied upon. It
is more a rule of practical wisdom than law.
[See Panchhi v. State of U.P. [Panchhi v. State of U.P., (1998) 7
SCC 177: 1998 SCC (Cri) 1561], State of U.P. v. Ashok Dixit [State
of U.P. v. Ashok Dixit, (2000) 3 SCC 70: 2000 SCC (Cri) 579]
and State of Rajasthan v. Om Prakash [State of
Rajasthan v. Om Prakash, (2002) 5 SCC 745: 2002 SCC (Cri)
1210].]
21. This position was reiterated in State of M.P. v. Balveer
Singh, (2025) 8 SCC 545: 2025 SCC OnLine SC 390, wherein it was
observed at page 587:
“43. From the above exposition of law, it is clear that the
evidence of a child witness for all purposes is deemed to be
on the same footing as any other witness, as long as the
child is found to be competent to testify. The only
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2026:HHC:7170evidence of a child witness is that such a witness must be a
reliable one due to the susceptibility of children by their
falling prey to tutoring. However, this in no manner means
that the evidence of a child must be rejected outrightly at.
the slightest of discrepancy, rather what is required is that
the same is evaluated with great circumspection. While
appreciating the testimony of a child witness, the courts are
required to assess whether the evidence of such a witness isits voluntary expression and not borne out of the influence
of others, and whether the testimony inspires confidence. At
the same time, one must be mindful that there is no ruleof
requiring corroboration to the testimony of a child witness
before any reliance is placed on it. The insistence of
corroboration is only a measure of caution and prudence
that the courts may exercise if deemed necessary in the
rt
peculiar facts and circumstances of the case.
******
67.10. 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 same may possiblyproduce 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 theversion of events not previously stated, must be
eradicated by first confronting the witness with that partof its previous statement that omits or contradicts the
improvisation by bringing it to its notice and giving thewitness 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 the police statement of the witness in question.
Only thereafter, may the improvisation be discarded
from evidence or such omission or contradiction be
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relied upon as evidence in terms of Section 11 of the
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 has to be
established being as under:
â–ª 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 beenof
tutored have to be established. This may be done
either by showing that there was a delay in recording
the statement of such a witness or that the presence
of such a witness was doubtful, or by imputing any
rt
motive on the part of such a witness to depose falsely,
or the susceptibility of such a witness in falling preyto tutoring. However, a mere bald assertion that there
is a possibility of the witness in question being
tutored is not sufficient.
â–ª 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 leadingevidence to prove a strong and palpable motive to
depose falsely, or by establishing that the delay inrecording the statement is not only unexplained but
indicative and suggestive of some unfair practice or
by proving that the witness fell prey to tutoring andwas 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.”
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22. In the present case, the victim admitted that he was
.
making the statement regarding sexual penetration at his father’s
instance. This is the core of the prosecution’s case, and any
admission regarding tutoring of the core of the prosecution’s case
will make the prosecution’s case doubtful.
of
23. The informant admitted in his cross-examination that
the accused is the son of Bansi. He admitted he had partition
rt
proceedings pending against Bansi. He admitted that Sat Pal
(PW-6) had a dispute with the father of the accused. Thus, the
learned Courts below had rightly held that the testimonies of
prosecuting witnesses were required to be seen with due care and
caution because of the enmity, and once there was an admission of
tutoring, the learned Courts below were justified in doubting the
prosecution’s case.
24. A heavy reliance has been placed upon the evidence of
the Medical Officer, who had found abrasion on the perianal
region. Dr Shiv Darshan Singh (PW-12) admitted in his cross-
examination that the abrasion could have been caused by
scratching the region with the finger. Thus, the medical evidence
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does not provide unequivocal corroboration of the prosecution’s
version.
.
25. Dr Ashutosh Joshi (PW-5) did not find any
scratch/injury on the penis of the accused. He specifically stated
that he had not found any blood or injury on the penis of the
accused. The presence of the injury would have corroborated the
of
victim’s version regarding sexual penetration by the accused, and
its absence will make the prosecution’s case suspect.
26.
rt
The other witnesses examined by the prosecution had
not witnessed the incident. The victim told his father about the
incident, and he told the other people. They are not eyewitnesses,
and at best their testimonies could have been used to corroborate
the victim’s testimony, but once the victim’s testimony is found to
be not credible, the testimonies of other witnesses will not prove
the prosecution’s case.
27. Therefore, there is no infirmity in the judgment of the
learned Courts below requiring any interference from this Court.
28. No other point was urged.
29. In view of the above, the present revision fails and is
dismissed. Pending applications, if any, also stand disposed of.
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30. In view of the provisions of Section 437-A of the Code
of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha
.
Sanhita, 2023) the respondent/accused is directed to furnish bail
bonds in the sum of ₹25,000/- with one surety of the like amount
to the satisfaction of the learned Trial Court which shall be
effective for six months with a stipulation that in the event of a
of
Special Leave Petition being filed against this judgment or on
grant of the leave, the respondent/accused on receipt of notice
rt
thereof shall appear before the Hon’ble Supreme Court.
31. A copy of the judgment, along with records of the
learned Courts, be sent back forthwith.
( Rakesh Kainthla )
16 March, 2026.
th
Judge
(ravinder)
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