JUDGMENT :- The short question, which arises for consideration in this revision, is how far the evidence of a child witness aged 2-3 can be relied on. 2. This revision petition is directed against the judgment dated June 28, 1999 on the file of the Addl. Sessions Court, Alappuzha in S.C. No.126 of 1998 convicting the revision petitioner/accused under section 376 of IPC and sentencing him to undergo rigorous imprisonment for three years and to pay a fine of Rs.2,000/- in default to undergo simple imprisonment for one month, which was confirmed in appeal by the Addl. Sessions Court, Adhoc-I (Fast Track), Alappuzha by judgment dated July 6, 2002 in Crl.A.No. 175/1999. 3. The case of the prosecution, as shaped in evidence before the trial court, in brief, is this:- PW15, de facto complainant was a girl aged 2 years and 10 months on the date of the incident. Pws.1 and 2 are her parents. Accused is their neighbour. PW6 is the brother-in-law of the accused. On November 17, 1996 at about 6.30 p.m. PW1, father of PW15, went to the house of one Unnikrishnan for watching TV programme. PW2, mother of PW15, went to the house of one Chellappan for watching TV programme along with PW15. Before the end of a film PW15 went out side the house. After some time PWs.1 and 2 returned to their house and enquired about PW15. As she was missing, they searched for her. PW6 on searching found PW15 lying injured in the compound of ‘Kids Balawadi’ nearby in a helpless condition. She was unable to talk. She was bleeding from the vagina and lips. Pws.1 and 2 took her to the Medical College Hospital, Alappuzha. On the next morning PW15 revealed to PWs.1, 2 and 3 (wife of elder brother of PW1) that the accused had sexually assaulted her. 4. PW9 the then Medical Officer of the Medical College, Alappuzha examined PW15 on the same day at about 7.05 p.m. and issued the wound certificate Ext.P6. On examination, he noted the injuries mentioned therein on PW15. He intimated the police. PW14 the then Sub Inspector of Police, Alappuzha Police Station, on receipt of the intimation, went to the hospital, recorded the statement of PW1 (Ext.P1) and registered the case under section 376 IPC. Ext.P1(a) is the body mahazar of PW15. On examination, he noted the injuries mentioned therein on PW15. He intimated the police. PW14 the then Sub Inspector of Police, Alappuzha Police Station, on receipt of the intimation, went to the hospital, recorded the statement of PW1 (Ext.P1) and registered the case under section 376 IPC. Ext.P1(a) is the body mahazar of PW15. She had sustained injuries and she was unable to speak at that time. PW14 conducted initial investigation in this case. He questioned the witnesses and recorded their statements. He arrested the accused on November 19, 1996 at about 10.30 am. PW16 the then Station House Officer, Alappuzha Police Station laid the charge before the committal court, Judicial Magistrate of the First Class-I, Alappuzha, after completing the investigation. He got the accused identified by PW15. 5. When the accused appeared before the committal court, copies of documents relied on by the prosecution were furnished to him. As the offence under section 376 IPC is exclusively triable by a Court of Sessions, the case was committed to the Sessions Court, Alappuzha from where it was made over to the trial court for trial and disposal. 6. The accused on appearance before the trial court pleaded not guilty to the charge under section 376 IPC. PWs.1 to 15 were examined and Exts.P1 to P11 and MOs.1 to 5 were marked on the side of the prosecution. When question under section 313 Cr.P.C., the accused denied the entire incident. Exts.D1 and D2 were marked on the side of defence. 7. The trial court, on an appreciation of the evidence, found the accused guilty of the offence punishable under section 376 IPC, convicted him thereunder and sentenced him as afore said, which was confirmed in appeal by the lower appellate court. The accused has come up in revision challenging his conviction and sentence. 8. Heard the counsel for the revision petitioner and the Public Prosecutor. 9. The counsel for the revision petitioner/accused argued that there is only an uncorroborated evidence of PW15 regarding the incident that as she was aged only 2 years and 10 months, chance of her being tutored by PWs.1 and 2 cannot be ruled out and that therefore her evidence should not have been relied on by both the courts below. The Public Prosecutor on the other hand supported the judgment of both the courts below. 10. The Public Prosecutor on the other hand supported the judgment of both the courts below. 10. The following points arise for consideration:- 1) Whether the trial court as well as the lower appellate court is justified in believing the evidence of PW15 who was only a child at the time of the accident? 2) Whether the conviction of the revision petitioner/accused under section 376 IPC can be sustained? 3) Whether the sentence imposed is excessive or unduly harsh? 11. Point Nos.1 and 2:- The charge against the accused is that on November 17, 1996 at about 6.30 p.m. he committed rape of PW15, a girl aged 2 years and 10 months from the compound of ‘Kids Balavady’ in Mullakkal Village, Alappuzha and thereby committed an offence punishable under section 376 ICP. PWs. 1 to 17 were examined to prove the guilt of the accused. PWs.1 and 2 are her parents. PW3 is the wife of brother of PW1. In the morning on the next day of the incident PW15 disclosed to PWs.1 to 3 the identity of the assailant. PWs.4 and 5 are independent witnesses who had allegedly saw PW6 bringing the child PW15. They turned hostile and did not support the prosecution case. PW6 is a neighbour of PWs.1 and 2 who found PW15 in the compound of nearby Balavady lying injured and brought her to PWs.1 and 2. The accused is his brother-in-law. PW7 is a witness to scene mahazar Ext.P4. PW8 is a witness to seizure of MOs.4 and 5, pants and shirt of the accused. PW9 is the Medical Officer of Medical College Hospital, Alappuzha who treated PW15 and issued Ext.P6 wound certificate. PW10 is the another Medical Officer of the same hospital who collected vaginal swab from PW15 and sent the same for chemical analysis. The Chemical Analyst did not find any semen or spermatozoa in the said sample. PW11 is the then Assistant Professor of Forensic Medicine and Deputy Police Surgeon, Medical College Hospital, Alappuzha who examined the accused on November 19, 1996 and issued the wound certificate Ext.P7. PW12 is the then Village Officer who prepared Ext.P8 sketch of the place of incident. PW13 is the Registrar of Births and Deaths, Changanassery Municipality who produced Ext.P13 birth certificate of PW15. PWs.14 to 16 are investigating officers. PW17 is the then Circle Inspector of Police who laid the charge before the committal court. 12. PW12 is the then Village Officer who prepared Ext.P8 sketch of the place of incident. PW13 is the Registrar of Births and Deaths, Changanassery Municipality who produced Ext.P13 birth certificate of PW15. PWs.14 to 16 are investigating officers. PW17 is the then Circle Inspector of Police who laid the charge before the committal court. 12. The prosecution mainly relied on the evidence of PW15 and PWs.1 to 3 and the evidence of Medical Officers PWs.9 and 10. The learned counsel for the revision petitioner has argued that as PW15, the victim, was a girl aged 2 years and 10 months at the time of the incident her evidence cannot be accepted without any corroboration. Therefore, I shall first consider the question of law regarding the reliability of the evidence of a child witness. 13. The position in law relating to a child witness has been elaborately dealt with by the Apex Court in the following decisions:- State of Karnataka V. Shantappa Madivalappa Galapuji & Ors. (AIR 2009 SC 2144), Nivrutti Pandurang Kokate and others V. State of Maharashtra ((2008) 12 SCC 565) and Dattu Ramrao Sakhare and others V. State of Maharashtra ((1997) SCC 341). 14. In State of Karnataka V. Shantappa Madivalappa Galapuji & Ors. (Supra) the Apex Court has held thus:- “6. The Indian Evidence Act, 1872 (in short “the Evidence Act”) does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease – whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer, J., in Wheeler V. United States (159 US 523). The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. This position was concisely stated by Brewer, J., in Wheeler V. United States (159 US 523). The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. (See Suryanarayana V State of Karnataka (2001 (9) SCC 129))” In the above decisions the Apex Court has referred a previous decision in Dattu Ramrao Sakhare and others case (Supra) wherein it has been held thus:- “A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstance of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.” 15. In State of Karnataka V. Shantappa Madivalappa Galapuji & Ors. (Supra) the Apex Court has further observed thus: “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. 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, shaken 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.” 16. In the light of the principles laid down in the above decisions, I shall first consider whether in the present case the trial court as well as the lower appellate court is justified in accepting the evidence of PW15. For several reasons I am inclined to hold that both the courts below are right in believing the evidence of PW15. The trial Judge put preliminary question to PW15 and satisfying that she was answering questions intelligently without any fear whatsoever proceeded to record the evidence. In chief-examination, she identified the accused as the person who assaulted her. She withstood the cross-examination by the defence counsel. The accused was known to her even prior to the incident. She or her parents have no special motive to implicate the accused falsely in this case. There was also sufficient light and opportunity to PW15 to identify the accused at the time of the incident. Therefore, I find no reason to doubt her evidence. 17. That apart evidence of PWs.1, 2, 3 and 6 and the medical evidence corroborated the evidence of PW15 on material aspects. PW6 found her lying injured on the compound of the nearby “Balavady”. On the next day morning she told PWs.1 to 3 about the incident and revealed the identity of the accused, which is sufficient corroboration as held by the Apex Court in Rameshwar, S/o. Kalyan Singh V. The State of Rajasthan (AIR 1952 SC 54). 18. The medical evidence also supported the case of the prosecution. PW9 the Medical Officer who treated PW15 found the following injuries on her:- 1) Distal 2 cms. of posterior vaginal wall lacerated. 2) Laceration extends 5 cms. 18. The medical evidence also supported the case of the prosecution. PW9 the Medical Officer who treated PW15 found the following injuries on her:- 1) Distal 2 cms. of posterior vaginal wall lacerated. 2) Laceration extends 5 cms. Provisionally on the left lateral wall and 3) Laceration extends to anterior part of anal canal and on either sides. PW11 the then Police Surgeon of the Medical Hospital, Alappuzha found the corresponding injuries on the accused: - 1) Abrasion 1 x 0.8 cm. on the middle of right palm. 2) Abrasion 0.5 x 0.5 cm. on back of right elbow. 3) Abrasion 1 x 1 cm. on front of right knee. 4) Abrasion 2 x 1 cms. On back of right heel. 5) Abrasion 1 x 0.5 cm. on back of right heel. 6) Abrasion 0.5 x 0.5 cm. on the back of left forearm, 2 cms. Below injury No.5. 7) Abrasion 0.5 x 0.5 cm. on front of left knee and 8) Abrasion 1 x 1 cm. on the top of left middle toe.” 19. The accused was unable to explain how he sustained the above injuries when question under section 313 Cr.P.C. by the Trial court. All these proved facts prove beyond doubt that it was the accused who committed rape on PW15 as alleged by the prosecution. 20. PWs.1, 2 and 3 gave a consistent version regarding the fact that PW6 brought PW15 and on the next day morning PW15 told them about the incident and revealed the identity of the accused. I have gone through their evidence. I find no reason to suspect the credibility of these witnesses. They have no enmity towards the accused to implicate him falsely in this case. Therefore, both the courts below are perfectly justified in believing their evidence. No other point is argued before me. 21. In the light of the above discussion, the findings of the courts below that the accused committed rape on PW15, as alleged by the prosecution, are liable to be upheld. Accordingly the conviction of the revision petitioner under section 376 IPC is confirmed. 22. Point No.3:- As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for 3 years and to pay a fine of Rs. 2,000/- in default to undergo simple imprisonment for one month. Accordingly the conviction of the revision petitioner under section 376 IPC is confirmed. 22. Point No.3:- As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for 3 years and to pay a fine of Rs. 2,000/- in default to undergo simple imprisonment for one month. The learned counsel for the revision petitioner has submitted that at the time of the incident the accused was only aged 18 and that the incident happened on November 18, 1996 and therefore, a lenient view may be taken. The accused has committed very heinous crime. Further the trial court has took a very lenient view and imposed a sentence of rigorous imprisonment for 3 years and to pay a fine of Rs.2,000/- in default to undergo simple imprisonment for one month. I find no special reason to reduce the sentence. 23. In the result, confirming the conviction and sentence of the revision petitioner under section 376 IPC, the revision petition is dismissed. The revision petitioner shall surrender before the trial court on or before June 15, 2011 to suffer the sentence. His bail bonds are cancelled. Send the records to the lower court forthwith. The revision petition is accordingly dismissed.