P RAMESH versus STATE REP BY INSPECTOR OF POLICE
[2019] 10 S.C.R. 875, Supreme Court of India, 2019
Outcome: Dismissed (Dismissed)
Segment: Ratio
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        P  RAMESH
    v.
   STATE REP BY INSPECTOR OF POLICE
   (Criminal Appeal No.1013 of 2019)
   JULY 09, 2019
 [DR DHANANJAYA  Y CHANDRACHUD AND
INDIRA BANERJEE, JJ.]
Evidence Act, 1872 – s.118 – Competency of child witness –
Appellant was tried for the murder of his wife – Convicted by the
Sessions Judge for offences u/ss.302, 498A – During the course of
the trial, the prosecution sought to adduce the evidence of PW-3
and PW-4, the children of the appellant and the deceased – When
their evidence was to be recorded, PW-3 was eight-years-old while
PW-4 was six-years-old – Trial judge posed certain initial queries
to them for assessing whether they were capable of deposing in
evidence and concluded that their testimony could not be recorded
as they were not competent witnesses – High Court set aside the
judgment of the Trial Court and remanded the case to the Trial
Court with a direction to examine PW-3 and PW-4 after objectively
ascertaining their capacity to depose – On appeal, held: Question
which weighed with the Trial Court in coming to the conclusion that
PW-3 and PW-4 were incapable of deposing was whether the children
knew the person they were standing before – To these questions,
PW-3 and PW-4 stated that they were unaware of that person –
Trial judge, purely on this basis, found that the testimonies of the
child witnesses would be unacceptable on the ground that the
witnesses did not know the judge and the lawyers – Reason which
weighed with
the trial judge in preventing the evidence of PW-3
and PW-4 from being recorded was manifestly erroneous and would
result in a miscarriage of justice – Significantly, both PW-3 and
PW-4 were aware of the reason for their presence in the court – A
child of tender age can be allowed to testify if she/he has the
intellectual capacity to understand questions and give rational
answers thereto –  A child becomes incompetent only in case the
court considers that the child was unable to understand the questions
and answer them in a coherent and comprehensible manner –If the
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child understands the questions put to her/him and gives rational
answers to those questions, it can be taken that she/he is a competent
witness to be examined – Grounds which weighed with the trial
judge were erroneous – Penal Code, 1860 – ss.302, 498A – Oaths
Act, 1969 – s.4.
Code of Criminal Procedure, 1973 – s.374 – Appellate
jurisdiction – Power of High Court – Discussed.
The Appellant was tried for the murder of his wife. He was
convicted by the Sessions Judge for offences under Sections 302,
498A, IPC. During the course of the trial, the prosecution sought
to adduce the evidence of PW-3 and PW-4, the children of the
appellant and the deceased. When their evidence was to be
recorded, PW-3 was eight-years-old while PW-4 was six-years-
old. Trial judge posed certain initial queries to both of them to
assess whether they were capable of deposing in evidence and
concluded that their testimony could not be recorded as they
were not competent witnesses. The High Court set aside the
judgment of the Trial Court and remanded the case to the Trial
Court with a direction to examine PW-3 and PW-4. Hence, the
present appeal.
Dismissing the appeal, the Court
HELD: 1.1 The question which weighed with the Trial Court
in coming to the conclusion that both of them were incapable of
deposing was whether the children knew the person they were
standing before. To these questions, PW-3 and PW-4 stated that
they were unaware of that
person. The trial judge, purely on this
basis, found that the testimonies of the child witnesses would be
unacceptable on the ground that the witnesses did not know the
judge and the lawyers. The reason which weighed with the trial
judge in preventing the evidence of PW-3 and PW-4 from being
recorded was manifestly erroneous and would result in a
miscarriage of justice. Significantly, both PW-3 and PW-4 were
aware of the reason for their presence in the court. They stated
before the trial judge that they were in court to tender evidence
in regard to the circumstances pertaining to the death of their
mother. What the trial judge was required to determine was
whether the children were in a fit and competent state of mind to
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depose and were able to understand the purpose for being present
on the occasion. Prior to the recording of evidence of a child
witness, the Trial Court must undertake the exercise of posing
relevant questions to determine the capacity of the child witness
to provide rational answers. This exercise would allow the court
to determine whether the child has the intellectual and cognitive
skills to recollect and narrate the incidents of the crime.
[Paras 11, 12] [884-G-H; 885-A-C]
1.2 Section 118 of the Evidence Act 1872 deals with the
competence of a person to testify before the court. Section 4 of
the Oaths Act 1969 requires all witnesses to take oath or
affirmation, with an exception for child witnesses under the age
of twelve years. Therefore, if the court is satisfied that the child
witness below the age of twelve years is a competent witness,
such a witness can be examined without oath or affirmation. A
child has to be a competent witness first, only then is her/his
statement admissible. In order to determine the competency of
a child witness, the judge has to form her or his opinion. The
judge is at the liberty to test the capacity of a child witness and
no precise rule can be laid down regarding the degree of
intelligence and knowledge which will render the child a
competent witness. The competency of a child witness can be
ascertained by questioning her/him to find out the capability to
understand the occurrence witnessed and to speak the truth
before the court. In criminal proceedings, a person of any age is
competent to give evidence if she/he is able to (i) understand
questions put as a witness; and (ii) give such answers to the
questions that can be understood. A child of tender age can be
allowed to testify if she/he has the intellectual capacity to
understand questions and give rational answers thereto. A child
becomes incompetent only in case the court considers that the
child was unable to understand the questions and answer them in
a coherent and comprehensible manner. If the child understands
the questions put to her/him and gives rational answers to those
questions, it can be taken that she/he is a competent witness to
be examined. The grounds which weighed with the learned trial
judge were erroneous. In the circumstances, the High Court was
justified in coming to the conclusion that the non-recording of
     P  RAMESH  v. STATE REP BY INSPECTOR OF POLICE
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the testimonies of PW-3 and PW-4 was on account of a palpably
erroneous approach on the part of the trial judge.
[Paras 13-16] [885-D; 886-A-B, E; 887-F-G; 888-A-B]
1.3 Section 374 of the CrPC provides for appeals against
convictions and allows any person convicted by a Sessions Judge
or an Additional Sessions Judge to appeal before the High Court.
Section 386 of the CrPC defines the powers of the Appellate Court
while disposing of an appeal against an order of conviction or
acquittal. The power under this section is not unlimited. The
provision is to be taken as giving the power to do only that which
the lower court could and should have done in a criminal case.
[Para 17] [888-D; 889-A]
1.4 In the present case, the High Court in the considered
exercise of its appellate jurisdiction remanded the proceedings
back to the Trial Court to assess objectively the capacity of the
two child witnesses and if the evidence is recorded, to furnish an
opportunity to the accused to offer evidence in rebuttal. The
accused will also be entitled to cross examine them. The
submissions made on the part of the appellant in regard to the
fact that there has been some lapse of time has been taken due
note of. As on date, though a little over four years have elapsed
since the exclusion of their evidence by the trial judge, both the
witnesses continue to be minors. Hence, the High Court has
issued necessary directions to the trial judge to
assess objectively
the capacity of the two child witnesses before recording their
evidence. It would be appropriate for the trial judge to ensure
that the evidence of PW-3 and PW-4 is recorded in a child friendly
environment. The appellant would undoubtedly have a right to
cross-examine the witnesses once their evidence is recorded by
the trial judge.  [Paras 20-22] [892-F-H; 893-A-B]
Dattu Ramrao Sakhare v State of Maharashtra (1997)
5 SCC 341; Ratansinh Dalsukhbhai Nayak v State of
Gujarat (2004) 1 SCC 64 : [2003] 4 Suppl. SCR 1030;
Mohd Hussain v State (Govt of NCT of Delhi) (2012) 9
SCC 408 : [2012] 10  SCR 480;  Ajay Kumar Ghoshal
v State of Bihar (2017) 12 SCC 699 : [2017] 1 SCR
469; Atma Ram and Ors. v State of Rajasthan 2019 SCC
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OnLine SC 523 ; State of Maharashtra v Bandu alias
Daulat (2018) 11 SCC 163 – relied on.
Nivrutti Pandurang Kokate v State of Maharashtra
(2008) 12 SCC 565 : [2008] 3 SCR 44 – referred to.
Sarkar, “Law of Evidence” 19th Edition, Volume 2,
Lexis Nexis, p. 2678 citing DPP v M (1977) 2 All ER
749 (QBD) – referred to.
Wheeler v United States 159 U.S. 523 (1895) –
referred to.
 Case Law Reference
(1997) 5 SCC 341
           relied on        Para  13
[2003] 4 Suppl. SCR 1030
relied on
Para 14
[2008] 3 SCR 44
referred to
Para 14
[2012] 10 SCR 480
relied on
Para 18
[2017] 1 SCR 469
relied on
Para 18
(2018) 11 SCC 163
relied on
Para 21
CRIMINAL APPELLATE JURISDICTION : Criminal  Appeal
No. 1013 of 2019
From the Judgment and Order dated 27.03.2018 of the Madurai
Bench of Madras High Court  in Criminal Appeal (MD) No. 351 of 2016
A. Selvin Raja, Aniruddha P. Mayee, Rajinder Singh,  Advs. for
the Appellant.
M. Yogesh Kanna, S. Partha Sarathi, S. Raja Rajeshvaran , Advs.
for the Respondent.
The  Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J.
1.  Leave granted.
2. This appeal arises from a judgment dated 27 March 2018 of
the High Court of Judicature at Madras at its Madurai Bench.
     P  RAMESH  v. STATE REP BY INSPECTOR OF POLICE
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3.  The appellant was tried for the murder of his wife. Besides the
offence under Section 302, he was also tried for the commission of an
offence under Section 498A of the Indian Penal Code1. On 24 June
2016, the appellant was convicted by the Sessions Judge, Fast Track
Mahila Court, Virudhunagar District at Srivilliputtur for offences under
Section 302 and Section 498A. He was sentenced to life imprisonment
for the offence punishable under Section 302 and to imprisonment for
three years for the offence under Section 498A.
4.  During the course of the trial, the prosecution sought to adduce
the evidence of PW-3 ‘S’ and PW-4 ‘H’, the children of the appellant
and the deceased2.  On 19 May 2015 when their evidence was to be
recorded, PW-3 was eight-years-old while PW-4 was six-years-old. The
trial judge posed certain initial queries to both the witnesses to assess
whether they were capable of deposing in evidence. One of the questions
which was posed was whether they were aware of the person before
whom they were standing. Both the witnesses stated that they were
unaware of the person before whom they were standing in the court. At
the same time, the child witnesses had stated that they had come to
depose in evidence about the circumstances leading to the death of their
mother.
5. The trial judge came to the conclusion that the testimony of
PW-3 could not be recorded as PW-3 as a witness did not know the
judge and the
lawyers. Similarly, in regard to PW-4 the trial judge observed
that he was unable to state who the judge was.  As a result, he was
considered to be incapable to depose in evidence.  No evidence of PW-
3 and PW-4 was recorded.
6. The exchange between the learned trial judge and PW-3 and
PW-4, respectively is extracted below:
“Name: ‘S’

Father’s Name : Ramesh

Village : Virudhunagar  
Taluk : Virudhunagar

Cast : BC

Calling :

Religion : Hindu

Age : 8

Solemnly affirmed in accordance with provisions of Act X 
of 1873 on the day of : 19.05.2015 
1  “IPC”
2   The identity of the children, who are minors is withheld in this judgment.

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Question : What is your name?

Answer  : ‘S’

Question : What is your age?

Answer  : 08-15

Question:  What is your father’s name?

Answer   : Ramesh

Question :  What is your village name?

Answer  :  Chinna Perali

Question : What are you doing?

Answer : I am studying.

Question : Do you know where have you come?

Answer : Court

Question : Do you know why you are being brought?

Answer : To give evidence

Question : Do you know before whom you are standing?

Answer : Do not know
Even though the witness answered all the questions, I asked 
her why have you come to depose evidence and she replied I 
have come to depose about my mother’s death. Further 
replied that I do not know who is standing in front of me in 
court and the persons besides me. The court considers that 
the witness testimony is unacceptable as the witness does not 
know the judge and lawyers.” (sic)

And

P  RAMESH  v. STATE REP BY INSPECTOR OF POLICE
[DR. DHANANJAYA Y CHANDRACHUD, J.]

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“Name: ‘H’

Father’s Name : Ramesh

Village : Virudhunagar  
Taluk : Virudhunagar

Cast: BC

Calling :

Religion : Hindu

Age : 6 
Solemnly affirmed in accordance with provisions of Act X 
of 1873 on the date of : 19.05.2015

Question: 
What is your Name?

Answer : 
‘H’

Question: 
What is your age?

Answer: 06-15

Question: What is your father’s Name?

Answer: Ramesh

Question:  What is your Village Name?

Answer:  Perali

Question:  What are you doing?

Answer:  I am studying in 1st standard

Question:  Did you know where have you come?

Answer:  I do not know where I stand

Question:  Did you know what have you been brought for?

Answer: I have come to tell about my mother’s killing

Question: Do you know who are you standing in front of?

Answer:  He stated that he has come to depose evidence 
before you. I asked him, who I am, he replied that I do not 
know who you are.
The court did not allow him to depose evidence because he 
was considered as incapable to depose evidence.” (sic)
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7. The trial judge came to the conclusion that there was sufficient
evidence on the record to sustain the charge under Section 302 as well
as that under Section 498A and that the prosecution had brought home
the guilt of the accused beyond reasonable doubt. Aggrieved by the
judgment of conviction, the accused appealed before the High Court.
8.  The High Court came to the conclusion that the grounds which
weighed with the trial judge in declining to allow the recording of the
evidence of PW-3 and PW-4 after initial questions were put to them
were erroneous. The High Court also observed that while on one hand,
the Trial Court had adverted to the statements of the two child witnesses
which were recorded under Section 164 of the Code of Criminal
Procedure 19733, yet the trial judge had refused to allow the evidence of
the child witnesses to be recorded on the ground that they were unable
to identify the person before whom they were deposing. The High Court
set aside the judgment of the Trial Court and remanded the case to the
Trial Court with a direction to examine PW-3 and PW-4 after objectively
ascertaining their capacity to depose. The High Court has also directed
that the Trial Court shall thereafter; furnish an opportunity to lead evidence
in rebuttal to the accused.
9. Mr A Selvin Raja, learned counsel appearing on behalf of the
appellant submitted that:
(i)  After the incident took place on 18 January 2014, the appellant
surrendered on 20 January 2014;
(ii) Though between 19 January 2014 and 21 January 2014, the
investigating officer recorded 21 statements, the statement of
the child witnesses under Section 164 of the CrPC were recorded
by the Chief Judicial Magistrate belatedly on 10 March 2014;
(iii) After the trial judge on 19 May 2015 held that the two child
witnesses were incompetent to depose, no revision was filed by
the prosecution; and
(iv) Over five years have elapsed since the date of the incident and
the direction to record the evidence of the two witnesses will
cause serious prejudice to the accused-appellant particularly since
the children have been in the custody of their maternal
grandmother in the meantime.
3 “CrPC”
sh
X 
ce 
ot 
he 
     P  RAMESH  v. STATE REP BY INSPECTOR OF POLICE
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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On the above grounds, it was submitted that there was no
justification on the part of the High Court to issue an order of remand.
Hence, it was urged that it would be appropriate and proper if the High
Court is directed to evaluate the appeal filed by the accused-appellant
on the basis of the evidence available on the record. Learned counsel
submitted that if he has the opportunity of doing so before the High
Court, the appellant would be able to establish that the chain of
circumstances is not complete and that having regard to the well settled
principles governing the appreciation of circumstantial evidence, the
appellant would be entitled to press for acquittal before the High Court.
10. On the other hand, while supporting the decision of the High
Court, Mr M Yogesh Kanna, learned counsel appearing on behalf of the
State submitted that the submission on part of the appellant is based on
a hypothesis that the child witnesses, if they are permitted to depose at
this stage, could advance an account which would cause prejudice to
the appellant. The statements of PW-3 and PW-4 were recorded under
Section 164 of CrPC by the Judicial Magistrate. Moreover, the appellant
would be entitled to cross-examine the witnesses. Learned counsel
submitted that the order passed by the High Court should be affirmed in
order to prevent a miscarriage of justice since the reasons which weighed
with the Trial Court in declining to allow
the recording of the testimonies
of PW-3 and PW-4 were manifestly erroneous. As a consequence of
the exclusion of their evidence, the prosecution has been disabled from
adducing the evidence of the two children who were natural witnesses
to the crime.
11. In assessing the rival submissions, we must at the outset advert
to the grounds which weighed with the trial judge in coming to the
conclusion that PW-3 and PW-4 were not competent witnesses and
their testimonies ought not to be recorded. PW-3, the daughter of the
accused and the deceased, was eight years of age while PW-4, their
son, was six-years-old. The trial judge addressed certain preliminary
questions to the witnesses.The question which weighed with the Trial
Court in coming to the conclusion that both of them were incapable of
deposing was whether the children knew the person they were standing
before. To these questions, PW-3 and PW-4 stated that they were
unaware of that person. The trial judge, purely on this basis, found that
the testimonies of the child witnesses would be unacceptable on the
ground that the witnesses did not know the judge and the lawyers.
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12. We are in agreement with the view of the High Court that the
reason which weighed with the trial judge in preventing the evidence of
PW-3 and PW-4 from being recorded was manifestly erroneous and
would result in a miscarriage of justice. Significantly, both PW-3 and
PW-4 were aware of the reason for their presence in the court. They
stated before the trial judge that they were in court to tender evidence in
regard to the circumstances pertaining to the death of their mother. What
the trial judge was required to determine was whether the children were
in a fit and competent state of mind to depose and were able to understand
the purpose for being present on the occasion. Prior to the recording of
evidence of a child witness, the Trial Court must undertake the exercise
of posing relevant questions to determine the capacity of the child witness
to provide rational answers. This exercise would allow the court to
determine whether the child has the intellectual and cognitive skills to
recollect and narrate the incidents of the crime.
13. Section 1184 of the Evidence Act 1872 deals with the
competence of a person to testify before the court. Section 45 of the
4  Section 118. Who may testify.—
All persons shall be competent to testify unless the Court considers that they are
prevented from understanding the question put to them, or from giving rational
answers to those questions, by tender years, extreme old age, disease, whether of body
or mind, or any
other cause of the same kind.
Explanation – A lunatic is not incompetent to testify, unless he is prevented by his
lunacy from understanding the questions put to him and giving rational answers to
them.
 5Section 4.Oaths or affirmations to be made by witnesses, interpreter and
jurors.—
(1) Oaths or affirmations shall be made by the following persons, namely:— (a) all
witnesses, that is to say, all persons who may lawfully be examined, or give, or be
required to give, evidence by or before any court or person having by law or consent of
parties authority to examine such persons or to receive evidence; (b) interpreters of
questions put to, and evidence given by, witnesses; and (c) jurors: Provided that where
the witness is a child under twelve years of age, and the court or person having authority
to examine such witness is of opinion that, though the witness understands the duty of
speaking the truth, he does not understand the nature of an oath or affirmation, the
foregoing provisions of this section and the provisions of section 5 shall not apply to
such witness; but in any such case the absence of an oath or affirmation shall not render
inadmissible any evidence given by such witness nor affect the obligation of the witness
to state the truth.
(2) Nothing in this section shall render it lawful to administer, in a criminal proceeding,
an oath or affirmation to the accused person, unless he is examined as a witness for the
defence, or necessary to administer to the official
interpreter of any court, after he has
entered on the execution of the duties of his office, an oath or affirmation that he will
faithfully discharge those duties.
     P  RAMESH  v. STATE REP BY INSPECTOR OF POLICE
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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Oaths Act 1969 requires all witnesses to take oath or affirmation, with
an exception for child witnesses under the age of twelve years.
Therefore, if the court is satisfied that the child witness below the age of
twelve years is a competent witness, such a witness can be examined
without oath or affirmation. The rule was stated in Dattu Ramrao
Sakhare v State of Maharashtra6, where this Court, in relation to child
witnesses, held thus:
“5. … 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
circumstances 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.”
14. A child has to be a competent witness first, only then is her/his
statement admissible. The rule was laid down in a decision of the US
Supreme Court in Wheeler v United States7, wherein it was held thus:
“… While no one would think of calling as a witness an infant
only two or three years old, there is no precise age which
determines the question of competency. This depends on the
capacity and intelligence of the child, his appreciation of
the difference between truth and falsehood, as well as of
his duty to tell the former. The decision of this question
rests primarily with the trial judge, who sees the proposed
witness, notices his manner, his apparent possession or lack
of intelligence, and may resort to any examination which-
will tend to disclose his capacity and intelligence as well as
his understanding of the obligations of an oath. As many of
these matters cannot be photographed into the record the decision
6 (1997) 5 SCC 341
7 159 U.S. 523 (1895)
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of the trial judge will not be disturbed on review unless from that
which is preserved it is clear that it was erroneous…”
   (emphasis supplied)
In Ratansinh Dalsukhbhai Nayak v State of Gujarat8, this Court
held thus:
 “7. … 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.”
    (emphasis supplied)
15. In order to determine the competency of a child witness, the
judge has to form her or his opinion. The judge is at the liberty to test the
capacity of a child witness and no precise
rule can be laid down regarding
the degree of intelligence and knowledge which will render the child a
competent witness. The competency of a child witness can be ascertained
by questioning her/him to find out the capability to understand the
occurrence witnessed and to speak the truth before the court. In criminal
proceedings, a person of any age is competent to give evidence if she/he
is able to (i) understand questions put as a witness; and (ii) give such
8 (2004) 1 SCC 64. Subsequently, relied upon in Nivrutti Pandurang Kokate v State of
Maharashtra (2008) 12 SCC 565
9 Dalsukhbhai Nayak v State of Gujarat (2004) 1 SCC 64
     P  RAMESH  v. STATE REP BY INSPECTOR OF POLICE
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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answers to the questions that can be understood. A child of tender age
can be allowed to testify if she/he has the intellectual capacity to
understand questions and give rational answers thereto.9 A child becomes
incompetent only in case the court considers that the child was unable to
understand the questions and answer them in a coherent and
comprehensible manner.10 If the child understands the questions put to
her/him and gives rational answers to those questions, it can be taken
that she/he is a competent witness to be examined.
16. We are satisfied that the grounds which weighed with the
learned trial judge were erroneous. In the circumstances, the High Court
was in our view, justified in coming to the conclusion that the non-recording
of the testimonies of PW-3 and PW-4 was on account of a palpably
erroneous approach on the part of the learned trial judge.
17. We are mindful of the fact that the decision of the High
Court was in an appeal preferred by the accused. In such a situation it is
necessary to discuss the scope of the High Court’s powers in an appeal
filed against conviction. Section 37411   of the CrPC povides for appeals
against convictions and allows any person convicted by a Sessions Judge
or an Additional Sessions Judge to appeal before the High Court. Section
10 Sarkar, “Law of Evidence” 19th Edition, Volume 2, Lexis Nexis, p. 2678 citing DPP v
M (1977) 2 All ER 749 (QBD)
11Section 374.— Appeals
from convictions
(1) Any person convicted on a trial held by a High Court in its extraordinary original
criminal jurisdiction may appeal to the Supreme Court.
(2) Any person convicted on a trial held by a Sessions Judge or an Additional
Sessions Judge or on a trial held by any other Court in which a sentence of
imprisonment for more than seven years has been passed against him or against any
other person convicted at the same trial; may appeal to the High Court.
(3) Save as otherwise provided in sub-section (2), any person,-
(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge
or Magistrate of the first class or of the second class, or
(b) sentenced under section 325, or
(c) in respect of whom an order has been made
or a sentence has been passed under section 360 by any Magistrate,
may appeal to the Court of Session.
(4) When an appeal has been filed against a sentence passed under section 376, section
376A, section 376AB, section 376B, section 376C, section 376D, section 376DA,
section 376DB or section 376E of the Indian Penal Code (45 of 1860), the appeal shall
be disposed of within a period of six months from the date of filing of such appeal.
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386 of the CrPC12  defines the powers of the Appellate Court while
disposing of an appeal against an order of conviction or acquittal. The
power under this section is not unlimited. The provision is to be taken as
giving the power to do only that which the lower court could and should
have done in a criminal case.
18. A three judge Bench decision of this Court in Mohd Hussain
v State (Govt of NCT of Delhi)13  while dealing with the powers of the
Appellate Court to order a retrial under Section 386(b) of the CrPC,
held thus:
“41. The appellate court hearing a criminal appeal from a judgment
of conviction has power to order the retrial of the accused under
12  Section 386.— Powers of the Appellate Court
After perusing such record and hearing the appellant or his pleader, if he appears, and
the Public Prosecutor, if he appears, and in case of an appeal under section 377 or
section 378, the accused, if he appears, the Appellate Court may, if it considers that
there is no sufficient ground for interfering, dismiss the appeal, or may—
(a) in an appeal from an order of acquittal, reverse such order and direct that further
inquiry be made, or that the accused be re-tried or committed for trial, as the case may
be, or find him guilty and pass sentence on him according to law;
(b) in an appeal from a conviction—
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to
be re-tried by a Court of competent jurisdiction subordinate to
such Appellate Court or
committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and
extent, of the sentence, but not so as to enhance the same;
(c) in an appeal for enhancement of sentence—
(i) reverse the finding and sentence and acquit or discharge the accused or order him to
be re-tried by a Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and
extent, of the sentence, so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse such order;
(e) make any amendment or any consequential or incidental order that may be just or
proper;
Provided that the sentence shall not be enhanced unless the accused has had an
opportunity of showing cause against such enhancement:
Provided further that the Appellate Court shall not inflict greater punishment for the
offence which in its opinion the accused has committed, than might have been inflicted
for that offence by the Court passing the order or sentence under appeal.
13(2012) 9 SCC 408
     P  RAMESH  v. STATE REP BY INSPECTOR OF POLICE
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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Section 386 of the Code. That is clear from the bare language of
Section 386(b). Though such power exists, it should not be
exercised in a routine manner. A de novo trial or retrial of the
accused should be ordered by the appellate court in exceptional
and rare cases and only when in the opinion of the appellate court
such course becomes indispensable to avert failure of justice.
Surely this power cannot be used to allow the prosecution to
improve upon its case or fill up the lacuna. A retrial is not the
second trial; it is continuation of the same trial and same
prosecution. The guiding factor for retrial must always be demand
of justice. Obviously, the exercise of power of retrial under Section
386(b) of the Code, will depend on the facts and circumstances
of each case for which no straitjacket formula can be formulated
but the appeal court must closely keep in view that while protecting
the right of an accused to fair trial and due process, the people
who seek protection of law do not lose hope in legal system and
the interests of the society are not altogether overlooked.”
A similar position was adopted by this Court in Ajay Kumar
Ghoshal v State of Bihar14, where it was held thus:
“11. Though the word “retrial” is used under Section 386(b)(i)
CrPC, the powers conferred by this clause is to be exercised only
in exceptional cases, where the appellate court is satisfied that
the omission or irregularity has
occasioned in failure of justice.
The circumstances that should exist for warranting a retrial must
be such that where the trial was undertaken by the court having
no jurisdiction, or trial was vitiated by serious illegality or irregularity
on account of the misconception of nature of proceedings. An
order for retrial may be passed in cases where the original
trial has not been satisfactory for some particular reasons
such as wrong admission or wrong rejection of evidences
or the court refused to hear certain witnesses who were
supposed to be heard.”
               (emphasis supplied)
19. The power of an Appellate Court to order a retrial on the
limited point of re-recording statements of witnesses was recently
discussed in Atma Ram and Ors v State of Rajasthan15, where the
14(2017) 12 SCC 699
15 2019 SCC OnLine SC 523 : Crl. Appeal No. 656-657 of 2019
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Trial Court had convicted the accused persons of offences under Section
302, 307, 452, 447, 323, 147, 148 and 149 IPC and sentenced them to
death. During the trial, the court had recorded the evidence of twelve
witnesses in absence of the accused persons. In an appeal against
conviction preferred by the accused persons, the High Court exercised
its powers under Section 386(b) of CrPC to quash and set aside the
judgment of the Trial Court and remanded the matter back to Trial Court
to the extent of recording statements of the twelve witnesses afresh
after securing presence of the accused in the court. The High Court
held in the following terms:
“In view of the discussion made hereinabove and looking to the
glaring facts of the case at hand, we feel that in order to do
complete justice to the accused as well as to the victims, the entire
case cannot be thrown out by holding the proceedings to be vitiated
on account of the mistakes committed by the trial Judge or the
prison authorities concerned. A fresh trial/de-novo has to be ordered
by directing the trial court to lawfully re-record statements of the
witnesses indicated above whose evidence was recorded in the
first round without ensuring presence of the accused in the
court.”16
 The accused persons preferred a Special Leave Petition before
this Court, challenging the High Court’s order of a de-novo trial for re-
recording of statements of witnesses. Affirming the view taken by the
High Court, this Court
held thus:
“22. … Section 386 then enumerates powers of the Appellate
Court which inter alia includes the power to “reverse the finding
and sentence and acquit or discharge the accused, or order him to
be re-tried by a Court of competent jurisdiction subordinate to
such Appellate Court or committed for trial”. The powers of
Appellate Court are equally wide. The High Court in the present
case was exercising powers both under Chapters XXVIII and
XXIX of the Code. If the power can go to the extent of
ordering a complete re-trial, the exercise of power to a
lesser extent namely ordering de novo examination of
twelve witnesses with further directions as the High Court
16D.B. Criminal Appeal No. 33/2018
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has imposed in the present matter, was certainly within the
powers of the High Court. There is, thus, no infraction or
jurisdictional error on the part of the High Court.”
“25. ... If there was an infraction, which otherwise does not vitiate
the trial by itself, the attempt must be to remedy the situation to
the extent possible, so that the interests of the accused as well as
societal interest are adequately safeguarded. The very same
witnesses were directed to be de novo examined which
would ensure that the interest of the prosecution is
subserved and at the same time the accused will have every
right and opportunity to watch the witnesses deposing
against them, watch their demeanor and instruct their
counsel properly so that said witnesses can be effectively
cross-examined. In the process, the interest of the accused
would also stand protected. On the other hand, if we were to
accept the submission that the proceedings stood vitiated and,
therefore, the High Court was powerless to order de novo
examination of the concerned witnesses, it would result in great
miscarriage of justice. The persons who are accused of committing
four murders would not effectively be tried. The evidence against
them would not be read for a technical infraction resulting in great
miscarriage. Viewed thus, the order and directions passed by the
High Court completely ensure that a fair procedure is adopted
and the depositions of the
witnesses, after due distillation from
their cross-examination can be read in evidence.”
   (emphasis supplied)
20. In the present case, the High Court in the considered exercise
of its appellate jurisdiction has remanded the proceedings back to the
Trial Court to assess objectively the capacity of the two child witnesses
and if the evidence is recorded, to furnish an opportunity to the accused
to offer evidence in rebuttal. The accused will also be entitled to cross
examine them. We have taken due note of the submissions which have
been made on the part of the appellant in regard to the fact that there
has been some lapse of time.  As on date, though a little over four years
have elapsed since the exclusion of their evidence by the trial judge,
both the witnesses continue to be minors.  Hence, the High Court has
issued necessary directions to the learned trial judge to assess objectively
the capacity of the two child witnesses before recording their evidence.
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21. Consistent with the law which has been laid down by this
Court in State of Maharashtra v Bandu alias Daulat17, it would be
appropriate for the learned trial judge to ensure that the evidence of
PW-3 and PW-4 is recorded in a child friendly environment.
22. The appellant would undoubtedly have a right to cross-examine
the witnesses once their evidence is recorded by the trial judge.
23. For the above reasons, we find no merit in the appeal. The
appeal is accordingly dismissed. Pending application(s), if any, shall stand
disposed of.
Divya Pandey
                                                              Appeal dismissed
17(2018) 11 SCC 163
     P  RAMESH  v. STATE REP BY INSPECTOR OF POLICE
[DR. DHANANJAYA Y CHANDRACHUD, J.]