LawforAll

advocatemmmohan

My photo
since 1985 practicing as advocate in both civil & criminal laws

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - SHARE THE KNOWLEDGE

Saturday, December 15, 2012

There was no sexual intercourse between the appellant and the victim. The prosecution has not been able to establish any link between the commission of the alleged offence and the appellant. 4. The case of the prosecution is based upon the sole testimony of the victim. All these circumstances, examined cumulatively, entitle the accused for an order of acquittal. 5. Lastly, the punishment awarded to the accused is too harsh.-Once the Trial Court has ignored material piece of evidence and failed to appreciate the prosecution evidence in its correct perspective, particularly when the prosecution has proved its case beyond reasonable doubt, then it would amount to failure of justice. - the Trial Court attempted to create a serious doubt in the case of the prosecution on the basis of the statement of PW3, that he does not know what PW2 narrated to PW1, when he made inquiries. We do not think that this was a proper way to appreciate the evidence on record.-The statement of a witness must be read in its entirety. Reading a line out of context is not an accepted canon of appreciation of evidence.-the course of appreciation of evidence and application of law adopted by the Trial Court was not proper. It was expected of the Trial Court to examine the cumulative effect of the complete evidence on record and case of the prosecution in its entirety.- In our considered opinion, the learned Trial Court has failed to appreciate the evidence on record cumulatively and in its correct perspective by ignoring the material piece of evidence and improper appreciation of evidence. It has recorded findings which are on the face of it unsustainable. This error was rightly corrected by the High Court, and we see no reason to interfere with the judgment of conviction recorded by the High Court. 43. We find no merit in the present appeal and the same is dismissed.


                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                      CRIMINAL APPEAL NO. 1707 OF 2009


Radhakrishna Nagesh                                …Appellant

                             Versus

State of Andhra Pradesh                           …Respondent

                               J U D G M E N T


Swatanter Kumar, J.


1.    The present  appeal  is  directed  against  the  judgment  dated  23rd
January, 2009 passed by the Division Bench of the High Court  of  Judicature
at Hyderabad, Andhra Pradesh whereby  the  order  of  acquittal  dated  11th
February, 1999 passed by the  Trial  Court  was  reversed.   The  appellant,
while  impugning  the  judgment   under   appeal,   raised   the   following
contentions: -
   1.  The High Court  could  not  have  interfered  with  the  judgment  of
      acquittal of the Trial Court which was very well-reasoned, based  upon
      proper appreciation of evidence and was in consonance with the settled
      principles  of  law.   The  High  Court,  thus,   has   exceeded   its
      jurisdiction by interfering with the  judgment  of  acquittal  of  the
      Court of Sessions.
   2. There are serious contradictions between the ocular  and  the  medical
      evidence  which  materially  affect  the  case  of  the   prosecution.
      Therefore, the accused is entitled to a reversal of  the  judgment  of
      the High Court.
   3. There was no sexual intercourse between the appellant and the  victim.
      The prosecution has not been able to establish any  link  between  the
      commission of the alleged offence and the appellant.
   4. The case of the prosecution is based upon the sole  testimony  of  the
      victim.  All these circumstances, examined cumulatively,  entitle  the
      accused for an order of acquittal.
   5. Lastly, the punishment awarded to the accused is too harsh.
2.    These contentions have been raised with reference to the case  brought
on record by the prosecution.  The factual matrix of the  case  as  per  the
prosecution is:


3.    The accused/appellant was working as a ball picker in S.V.  University
tennis court, Tirupati, and in that capacity he was having  the  custody  of
the key to the storeroom situated on the south-east  of  the  tennis  court.
The tennis net and other  articles  were  stored  in  this  place.   On  7th
September, 1997 at about  7.00  p.m.,  the  accused  saw  a  girl  named  A.
Haritha, who was  standing  alone  outside  the  red  building.  It  may  be
noticed, that the mother of the victim girl,  namely  Sampuramma,  PW5,  was
working as a maid-servant in the red building attached to the University.
4.    A. Haritha, the victim belonged to the Scheduled  Caste  category  and
was about 11 years of age at the time of the  incident.  The  accused  asked
her to come along with him.  At first she refused but  the  accused  enticed
her on the pretext of purchasing gold colour  plastic  bangles.    When  she
agreed to accompany him, he bought her the bangles and then took her to  the
store room near the tennis court, the key to which he  was  possessing.   He
opened the lock and took the victim inside the room and  committed  rape  on
her against her will.  In fact, he even  threatened  to  assault  her.   One
Narayanaswamy, PW3, a rickshaw puller, who was waiting by the side  of  Gate
No. 3 of the S.V. University noticed the accused taking the victim into  the
store room and thus, became suspicious.  He  went  to  the  store  room  and
tapped the door several times.  However, the accused did not open  the  door
at first, but upon further insistence of  PW3,  he  did  so.   PW3  saw  the
victim girl weeping.  The accused slammed the door.    Suspecting  that  the
accused might have done some wrong to  the  minor  girl,  Narayanswami,  PW3
bolted the door from outside and ran to inform the  authorities  and/or  the
police. On his way he met Sub-Inspector of Police, Traffic  P.S.,  Tirupati,
Sh. S.M. Ramesh, PW1, who was standing near the  NCC  Office  traffic  point
and informed him of the  incident.   Immediately,  PW1  along  with  another
Traffic R.S.I, R. Sivanandakishore, PW4, accompanied  by  PW3  went  to  the
said storeroom, opened the door from outside and found the  victim  girl  A.
Haritha.  She complained of pain  in  her  vaginal  region.   PW1  took  the
victim girl as well as the accused to the  SVU  Campus  Police  Station  and
made a complaint, Ex. P.1, based upon which  FIR,  Ex.  P.7  was  registered
under Sections 363 and 376 (2)(f) of the Indian Penal Code 1860  (for  short
‘IPC’) and Section 3(2)(v) of the Schedule Castes and  the  Schedule  Tribes
(Prevention of Atrocities) Act, 1989.


5.    Upon  this  report,  Sub-Inspector  of  Police,  B.  Katamaraju,  PW10
undertook the  investigation.   The  accused  was  sent  to  the  SV  RR  GG
Hospital, Tirupati for medical examination.  The victim  girl  was  sent  to
the Government Maternity Hospital, Tirupati, for the same purpose  and  also
for the assessment of her age.  Certain articles, including the  cut  drawer
of accused containing seminal stains, skirt of the  victim  girl  etc.  were
seized and were sent  to  the  laboratory.   The  Assistant  Director,  RFSL
Anantpur, after analysing  the  material  objects,  detected  semen  on  the
clothes and on the vaginal swabs of the victim, collected and  preserved  by
the Medical Officer,  and  also  on  the  underwear  of  the  accused.   The
Investigating Officer  recorded  the  statement  of  various  witnesses  and
completed the investigation.  Upon  completion  of  the  investigation,  the
Inspector of Police, PW11 presented a report under  Section  173(2)  of  the
Code of Criminal Procedure 1973 (for short ‘the  CrPC)  for  offences  under
Sections 363 and 376 (2)(f) of IPC.  As the alleged  offences  were  triable
exclusively by the Court of Sessions,  the  accused  was  committed  to  the
Court of Sessions, where he faced the trial.  The  prosecution  examined  12
witnesses being PW1 to PW12 and exhibited documents P1 to  P9  and  material
objects (M.Os.) 1 to 3 in  its  effort  to  bring  home  the  guilt  of  the
accused.  As already noticed the Trial Court vide its  judgment  dated  11th
February, 1999 held the accused not guilty  of  any  offence  and  acquitted
him.  While recording the  finding  of  acquittal,  the  Trial  Court  found
certain material improbabilities and contradictions  in  the  statements  of
the witnesses.  Since we have to deal with the judgment of  reversal  of  an
order of acquittal, it will  be  useful  for  us  to  notice  some  relevant
extracts of the judgment which would indicate  as  to  what  really  weighed
with the Trial Court while granting acquittal to the accused.
           “32)  In the evidence of P.W.3, he says that he  does  not  know
           what P.W.2 informed  to  P.W.1  when  he  made  enquiries.   The
           evidence of P.W.4 is of no use.  As seen from his  evidence,  it
           is manifest that he is unable to identify the accused person who
           was present in the court on the date  of  his  giving  evidence.
           Even he has not divulged  anything  about  P.W.2  informing  the
           incident to P.W.1.  As such,  the  evidence  of  PW.1  that  the
           victim girl narrated the incident to him, is not corroborated by
           any one of the witnesses.


           33)   It is an admitted fact that at the scene of offence, P.W.1
           did not prepare any statements, and he simply brought  both  the
           accused and P.W.2 to the Police Station.  But, it is  (sic)  not
           unnatural on the part of P.W.1 and other  police  personnel  who
           went to the scene of offence without any pen or papers on  their
           hand,  as  it  is  evident  from  the  evidence  of  P.W.3  that
           immediately after informing the incident to P.W.1 they  went  to
           the scene of offence.  In such case we cannot  expect  P.W.1  to
           procure paper and pen to prepare  any  statement  on  the  spot.
           Hence, in this context,  the  version  of  learned  counsel  for
           accused, that as P.W.1 failed to record any  police  proceedings
           or statement at the spot,  cannot  go  against  the  prosecution
           case.


           34)   Nextly, it may be pointed out that though P.W.10 the  S.I.
           of the Police registered the case, he did not try to record  the
           statements of P.Ws 1 to 3 though they  were  available  at  that
           juncture.  Till arrival of P.W.11, the Inspector of Police,  the
           statements were not recorded.  When  P.W.10  himself  registered
           the case,  why  he  has  not  recorded  the  statements  of  the
           witnesses available at the spot, was not explained by him.,   it
           is only P.W.11 who received express F.I.R. from P.W.10  recorded
           statements of P.Ws. 1 and 2, and later sent the victim  girl  to
           the hospital for medical examination.


           35)   When coming to the evidence of P.W.2, though she  narrated
           the incident and stated in her  chief  –  examination  that  the
           accused removed his pant and underwear and laid her on the floor
           and passed liquid like urine in her private part, her  admission
           in the cross-examination that Narayanswamy P.W.3 tutored her  to
           depose in this case and  also  at  the  request  of  P.W.1,  she
           deposed about purchasing of bangles by the accused and taken her
           to the room, makes her entire evidence lack of  credibility  and
           inadmissible.


           36)  In this context, the learned counsel for accused  submitted
           that in view of the particular admission made by P.W.2 that  she
           was tutored by P.W.3, the evidence of  P.W.2  becomes  worthless
           and inadmissible.  In this regard, he  placed  reliance  upon  a
           decision reported in  “Ramvilas  and  others,  Appellants.   Vs.
           State of Madhya Pradesh, Respondent” (1985 Crl.L.J. Page  1773),
           wherein Their  Lordships  held  that,  when  the  statement  was
           narrated to the witness just before entering  into  the  witness
           box, the evidence of such witness is  inadmissible  in  view  of
           section 162  Cr.P.C.  because  the  fact  remains  that  it  was
           narrated to the witness for the purpose of  giving  evidence  at
           the trial and that tantamounts to making use of the statement at
           the trial which is prohibited by section 162 Cr.P.C.


           XXXX  XXXX  XXXX  XXXX XXXX


           38)   When coming to the evidence of P.W.3, it goes to show that
           he noticed the accused taking away a minor girl along  with  him
           to the tennis court.  Though he suspected some foul play, he did
           not try to prevent the accused from taking  the  girl  into  the
           room of tennis court.  This conduct of P.W.3 is not  natural  in
           those circumstances.


           39)   The evidence of P.W.5, the mother of victim girl  goes  to
           show that she came to know the incident after  the  victim  girl
           and the accused were brought to Police Station.  Hence,  she  is
           also not a direct eye-witness.


           XXXX  XXXX  XXXX  XXXX XXXX
           43)   Hence, it is manifest that for  sustaining  tenderness  on
           the private parts of the victim girl, there could be some  other
           reasons  and  those  reasons  are  not  ruled  out   by   P.W.9.
           Admittedly, in the wound  certificate  furnished  by  her  under
           Ex.P.5, she has not mentioned that there was an attempt  on  the
           person of P.W.2 victim girl.  Further, there  is  no  record  to
           show that  she  obtained  acknowledgment  from  the  police  for
           handing over the material objects collected by her at  the  time
           of examination.  She collected vaginal  swab  and  also  vaginal
           washings.  Further, on her examination, she found the  hymen  of
           the victim girl was  intact  and  there  was  no  laceration  or
           congestion on fourchette.


           59)   But, in this case on  hand,  the  evidence  of  P.W.2  the
           prosecutrix is of no avail in view of her admission that she was
           tutored by P.W.3 before her giving evidence.  Hence,  the  above
           said citation also cannot be  made  applicable  to  the  present
           facts of the case.


           70)   In this case, what is important  is,  that,  though  P.W.2
           narrated the incident and stated that the accused  took  her  to
           the tennis room and passed urine like substance on  her  private
           part,  her  own  admission  that  she  was  tutored  by   P.W.3,
           demolishes the credibility of the victim girl.  Hence, when  the
           very direct evidence is doubtful  in  nature,  the  evidence  of
           P.W.3 that he saw the accused taking away the  girl  along  with
           him, and also P.W.1 and other noticing  the  victim  girl  along
           with the accused in the tennis court  room,  it  also  not  much
           helpful.


           71)   Further as seen from the record, though P.Ws. 1 to 5  were
           examined by P.W.11 on the date of incident itself, all the  said
           statements were sent  to  the  court  only  on  28.1.1998.   The
           alleged  occurrence  is  on  7.9.1997.    Hence,   the   sending
           statements to the court at a belated stage, has  the  effect  of
           losing the spontaneity of the statements and further, admittedly
           the statement of P.W.2 recorded by P.W.1 was also not read  over
           to her.  Hence, in these circumstances,  the  benefit  of  doubt
           should be given to the accused.  Hence, this point  is  answered
           against the prosecution.”



6.    Besides the above, the Trial Court had also  expressed  its  doubt  in
relation to the authenticity of Ex.P.9, the wound  certificate  of  accused,
issued by the Chief Medical Officer, SV RR GG Hospital, Dr.  V.V.  Pandurana
Vittal, PW12.  There were certain corrections as referred  to  in  paragraph
52 of the judgment in this regard.   The  High  Court  disturbed  the  above
judgment of the Trial Court and found the accused guilty under Sections  363
and 376(2)(f) of IPC and convicted him to undergo rigorous imprisonment  for
three years and to pay a fine of Rs.1000/- and in  default  of  payment,  to
undergo simple imprisonment for three  months  under  Section  363  of  IPC.
Accused was sentenced to undergo rigorous  imprisonment  for  10  years  and
also to pay a fine of Rs.2000/-, and  in  default  of  payment,  to  undergo
simple imprisonment for six months for the offence under Section 376  (2)(f)
of IPC.  The substantive sentences were directed to run concurrently.
7.    Aggrieved from the  judgment  of  conviction  and  order  of  sentence
passed by the High Court, the accused has filed the present appeal.


8.    We would prefer to discuss the first argument advanced  on  behalf  of
the appellant as the last because it would primarily depend  upon  the  view
we take upon appreciation of the evidence and the case  of  the  prosecution
in its entirety.


9.    The second contention on behalf of the appellant is that  there  is  a
clear conflict between the medical evidence and the  ocular  evidence  which
creates a serious doubt in the case of the prosecution.   To  buttress  this
contention,  reference  has  been  made  to  the  statement  of   PW2,   the
prosecutrix, where she states that she was subjected to rape, but  according
to the doctor, PW9 and  the  Medical  Report,  Ext.  P.5,  neither  was  she
subjected to sexual intercourse nor was there any penetration.
10.   PW2 was 11 years old at the time  of  occurrence,  while  she  was  12
years old, when her statement was recorded in the  Court.  After  the  Court
was convinced of the fact that she is competent to make the  statement,  the
same was recorded. In her statement, she stated that she was  working  as  a
maid in the staff quarters of S.V. University, known as  the  red  building.
According to her, she knew the accused and he was in the habit of  escorting
children to the school. The accused had  taken  her  to  the  tennis  court,
promised her that he would buy bangles for  her  and  after  purchasing  the
bangles the accused took her to a room in the tennis  court.    The  accused
closed the door of the room, lifted her langa,  removed  his  own  pant  and
underwear, put her on the floor of the room and  passed  liquid  like  urine
into her private parts.  In the meanwhile, she  stated  that  she  felt  the
starch in her private parts.  At that time, one rickshaw  puller,  PW3  came
and knocked at the door. The accused abused him in  a  filthy  language  and
later the police came to the room.  She further narrated  that  it  was  PW1
who had taken her and the accused to  the  police  station,  where  she  was
examined by the Police.
11.   Her langa was seized by the  police  and  was  sent  to  hospital  for
examination. She stated that her mother was also working as a  maid  in  the
red  building  itself.   We  must  notice  that  despite  a  lengthy  cross-
examination, she stood to her statement and did not cast any  doubt  on  the
statement made by her in her examination-in-chief.   When she was  taken  to
the hospital, she was examined by Dr. G. Veeranagi Reddy,  PW8,  who  stated
that he was working as a Professor of Forensic Medicine in the S.V.  Medical
College, Tirupati and that on 13th September, 1997, he had examined  a  girl
A. Haritha for the  purposes  of  finding  out  her  age.     He  stated  as
follows:-
            “2.   On physical mental and radiological examination I  am  of
            the opinion of that the age of Haritha is  between  10  and  11
            years.   Ex. P.4 is the certificate.”




12.   She was  also  examined  by  Smt.  Dr.  P.  Vijayalakshmi,  Assistant
Professor in Maternity Hospital, Tirupati,  PW9  on  7th  September,  1997.
According to PW9, the girl had washed herself  after  the  incident.    PW9
made the following remarks:- “There are no marks of violence nape of  neck,
front and back of the body.   The abdomen was soft. Liver  and  spleen  not
palpable. The breasts are not developed. There was no axilliary pubic hair.
The hymen was intact. No laceration or congestion in fourchette, the  parts
were tender to touch, which according to the doctor was  an  indication  of
attempt  to  rape  with  the  girl.”  The  doctor,  PW9  also  stated  that
considering the age of the victim and on seeing that the parts were  tender
to touch, she could say that there was an attempt to rape the  victim  girl
A. Haritha.  Since, according to PW9, the girl had washed herself after the
incident, the doctor had to reserve her final  opinion  till  the  Chemical
Analyst’s  Report  (FSL  Report).    The  vaginal  swab  and  washing  were
preserved for chemical analysis. The FSL Report was  Ext.  P.6,  while  the
Wound Certificate of victim girl was  Ext.  P.5.    According  to  the  FSL
Report, semen was detected on Items 1, 2, 4, 5 and 6 and the  same  was  of
human origin. Saliva of human origin was  detected  on  Item  No.  3.   The
Chemical Analyst also detected semen and spermatozoa on Item Nos. 1, 2,  4,
5 and 6 and on Item No. 3 saliva was found.

13.   Item No. 1 was torn brown colour polyester langa  with  dirty  stains
which the girl was wearing.  Item No. 2 was a torn grey  colour  mill  made
cut drawer with dirty stains which the accused was wearing.  Item No. 3 and
Item No. 4 were the turbid liquid which was present on the cloth and  in  a
bottle respectively. Item No. 5 was a cotton swab and Item No. 6  were  two
glass slides which were sent for opinion and via FSL Report, Ext. P.6,  the
opinion was received.

14.   From the above evidence, it is not feasible to state  with  certainty
that there is any conflict between the medical  and  the  ocular  evidence.
One cannot find any fault in the statement of Dr. P. Vijyalakshmi, PW9, who
waited to give  her  final  opinion  till  she  received  the  FSL  Report.
According to her, an attempt  to  rape  the  young  girl  was  made,  while
according to PW2, she was subjected to rape  and  the  accused  person  had
discharged some liquid like urine in her private parts.

15.   It is a settled principle of law that  a  conflict  or  contradiction
between the ocular and the medical evidence has to be direct  and  material
and only then the same can be pleaded.  Even where it is so, the Court  has
to examine as to which of the two is more reliable, corroborated  by  other
prosecution evidence and gives the most balanced happening of events as per
the case of the prosecution.


16.   The absence of injuries on the back and neck of the victim  girl  can
safely be explained by the fact that she was lured into the offence  rather
than being taken by using physical force on her.  The preparation,  attempt
and actual act on the part of the accused is further clear  from  the  fact
that he had purchased bangles which he had promised to her  and  thereafter
had taken her into the tennis court store room, the key of which  was  with
him.   This is also corroborated from the fact that even vide Ext. P.3, the
langa as well as the bangles, coated with golden colour were  recovered  by
the Investigating Officer, S.M. Khaleel, PW11.

17.   An eleven year old girl and that too from a small place  and  serving
as a maid could hardly be aware of such technicalities of law  in  relation
to an offence of sexual assault.   She  felt  very  shy  while  making  her
statement in the Court, which fact was duly noticed by  the  Court  in  its
Order dated 9th November, 1998.

18.   In order to establish a conflict between the ocular evidence and  the
medical evidence, there has to be  specific  and  material  contradictions.
Merely because, some fact was not recorded or stated by  the  doctor  at  a
given point of time and subsequently  such  fact  was  established  by  the
expert report, the FSL Report, would not by itself substantiate the plea of
contradiction or variation.   Absence  of  injuries  on  the  body  of  the
prosecutrix, as already explained, would not be of  any  advantage  to  the
accused.
19.   In any case, to establish a conflict  between  the  medical  and  the
ocular evidence, the law  is  no  more  res  integra  and  stands  squarely
answered by the recent judgment of this Court in the case  of  Dayal  Singh
and Others v State of Uttaranchal [(2012) 7 SCALE 165]

          “29.   This brings us to an ancillary issue as to  how  the  Court
          would appreciate the evidence in such cases.  The  possibility  of
          some variations in  the  exhibits,  medical  and  ocular  evidence
          cannot be ruled out.  But it is not that every minor variation  or
          inconsistency would tilt the balance  of  justice  in  favour  the
          accused.  Of course, where contradictions and variations are of  a
          serious nature, which apparently or impliedly are  destructive  of
          the substantive case sought to be proved by the prosecution,  they
          may provide an advantage to the accused.   The  Courts,  normally,
          look at expert evidence with a greater sense of acceptability, but
          it is equally true that the courts are not  absolutely  guided  by
          the  report  of  the  experts,  especially  if  such  reports  are
          perfunctory, unsustainable and are  the  result  of  a  deliberate
          attempt to misdirect the prosecution.  In Kamaljit Singh v.  State
          of  Punjab  [2004  Cri.LJ  28],  the  Court,  while  dealing  with
          discrepancies between ocular and medical evidence,  held,  “It  is
          trite law that  minor  variations  between  medical  evidence  and
          ocular evidence do not  take  away  the  primacy  of  the  latter.
          Unless medical evidence in its term goes so far as  to  completely
          rule out all possibilities whatsoever of injuries taking place  in
          the manner stated  by  the  eyewitnesses,  the  testimony  of  the
          eyewitnesses cannot be thrown out.”

          30.    Where  the  eye  witness  account  is  found  credible  and
          trustworthy, medical opinion pointing to alternative possibilities
          may not be accepted as conclusive.  The expert witness is expected
          to put before the Court all materials inclusive of the data  which
          induced him to come to the conclusion and enlighten the  court  on
          the technical aspect  of  the  case  by  examining  the  terms  of
          science, so that the court, although not an expert, may  form  its
          own judgment on those materials after giving  due  regard  to  the
          expert’s opinion, because once the expert opinion is accepted,  it
          is not the opinion of the medical officer but that of  the  Court.
          {Plz. See Madan Gopal Kakad v. Naval Dubey & Anr.  [(1992)  2  SCR
          921 : (1992) 3 SCC 204]}.”


20.   In light of the above settled canon  of  criminal  jurisprudence,  we
have no hesitation in concluding that we find no merit  in  the  contention
raised on behalf of the appellant with regard to discrepancy in the medical
and the ocular evidence.


21.   Further, it is argued by  the  appellant  that  there  is  no  direct
evidence connecting the accused to the commission of  the  crime  and  that
there was no penetration, therefore, the  accused  has  not  committed  the
offence punishable  under  Section  376  IPC.    As  already  noticed,  the
prosecution had examined  nearly  12  witnesses  and  produced  documentary
evidence on record including Medical and FSL Report in support of its case.


22.   Firstly, there is no reason for the Court to disbelieve the statement
of PW2 that she knew the accused and that the accused incited her and lured
her to buying bangles and then took her to the storeroom where he committed
rape on her even threatened her of physical  assault.   PW3,  the  rickshaw
puller who was standing at the gate of the University, had seen the accused
taking the young girl towards the tennis  court  store  room.    Suspecting
that he would do something wrong with the girl, he went  to  the  room  and
knocked the door.   The door was not opened by  the  accused,  however,  he
persisted with the knocking.  Thereafter the accused opened  the  door  and
abused him, but PW3 maintained his presence of mind  and  bolted  the  door
from outside, leaving the accused and the prosecutrix inside the  room  and
went to report the matter.   On his way, he  met  PW1,  S.M.  Ramesh,  Sub-
Inspector of Police, Traffic P.S., Tirupati  who  accompanied  him  to  the
store room, brought both the accused and the victim to the police  station,
got an FIR registered on his own statement, the investigation of which  was
conducted by PW11, S.M. Khaleel, the Inspector of Police.


23.   We see  no  reason  as  to  why  this  Court  should  disbelieve  the
statements of PW1, PW2, PW3, PW5 and PW11, particularly when they stood the
lengthy cross-examination without any material damage to the  case  of  the
prosecution.


24.   According to the medical evidence and statements of PW8 and PW9,  the
victim was 11 years old at the time of occurrence  and  her  private  parts
were tender to touch.  The doctor,  PW9  had  reserved  her  final  opinion
awaiting the FSL Report.   According to the FSL Report, the  langa  of  the
girl as well as the drawer of the accused were containing  semen  of  human
origin.  The slides which contained the swab taken from the vagina  of  the
girl also showed presence of semen of human origin.    It  may  be  noticed
that these reports, in relation to Items 1, 2, 4, 5 and 6 came despite  the
fact that the girl had washed herself after the occurrence.


25.   The mere fact that the hymen was intact and there was no actual wound
on her private parts is not  conclusive  of  the  fact  that  she  was  not
subjected to rape.   According to PW9, there was a definite  indication  of
attempt to rape the girl.   Also, later semen of human origin was traceable
in the private parts of the girl, as indicated  by  the  FSL  Report.  This
would  sufficiently  indicate  that  she  had  been  subjected   to   rape.
Penetration itself proves the offence of rape, but the contrary is not true
i.e. even if there is no penetration, it does  not  necessarily  mean  that
there is no rape.  The Explanation to Section 375 IPC has  been  worded  by
the legislature so as to presume that if there was penetration, it would be
sufficient to constitute sexual intercourse necessary for  the  offence  of
rape.  Penetration may not always result in tearing of the  hymen  and  the
same will always depend upon the facts and circumstances of a  given  case.
The Court must examine the evidence of the prosecution in its entirety  and
then see its cumulative effect to determine whether the offence of rape has
been committed or it is a case  of  criminal  sexual  assault  or  criminal
assault outraging the modesty of a girl.


26.   At this stage, we may make a reference to the judgments of this Court
which would support the view that we have taken.   Firstly, in the case  of
Guddu @ Santosh v. State of Madhya Pradesh [(2006) Supp. 1 SCR 414],  where
the Court was dealing with somewhat similar circumstances, this Court  made
a finding that the High  Court  had  failed  to  notice  that  even  slight
penetration was sufficient to constitute the offence of rape and upheld the
conviction of accused, though the sentence was reduced.  It held as under:-
             “It is  not  a  case  where  merely  a  preparation  had  been
             undergone  by  the  appellant  as  contended  by  the  learned
             Counsel.  Evidently,  the  appellant  made   an   attempt   to
             criminally assault the prosecutrix. In fact, from  the  nature
             of the medical evidence an inference  could  'also  have  been
             drawn by the High Court that there had been  penetration.  The
             High Court failed to notice that even slight  penetration  was
             sufficient to constitute an offence of rape.  The  redness  of
             the hymen would not have been possible but for penetration  to
             some  extent.  In  Kappula  Venkat  Rao  (supra),  this  Court
             categorically made a distinction between the  preparation  for
             commission of an offence and attempt to commit  the  same,  in
             the following terms:
                  Attempt to commit an offence can be said to begin when the
                  preparations are complete and the culprit commences to  do
                  something with the intention of committing the offence and
                  which is a step towards the commission of the offence. The
                  moment he commences  to  do  an  act  with  the  necessary
                  intention, he commences his attempt to commit the offence.
                  The word  'attempt'  is  not  itself  defined,  and  must,
                  therefore, be taken  in  its  ordinary  meaning.  This  is
                  exactly what the provisions of  Section  511  require.  An
                  attempt to commit a crime is to be distinguished  from  an
                  intention to commit it, and from preparation made for  its
                  commission. Mere  intention  to  commit  an  offence,  not
                  followed by any act, cannot  constitute  an  offence.  The
                  will is not to be taken for the deed unless there be  some
                  external act which shows that progress has  been  made  in
                  the direction of it, or towards maturing and effecting it.
                  Intention is the direction of conduct towards  the  object
                  chosen upon considering  the  motives  which  suggest  the
                  choice. Preparation consists in devising or arranging  the
                  means or measure  necessary  for  the  commission  of  the
                  offence. It differs  widely  from  attempt  which  is  the
                  direct movement towards the commission after  preparations
                  are made. Preparation to commit an offence  is  punishable
                  only when the  preparation  is  to  commit  offence  under
                  Section 122 (waging war against the Government  of  India)
                  and Section  399  (preparation  to  commit  dacoity).  The
                  dividing line between a mere preparation and an attempt is
                  sometimes thin and has to be decided on the facts of  each
                  case.
                                                        (Emphasis supplied)”


27.   Secondly, in the case of Tarkeshwawr Sahu  v.  State  of  Bihar  (now
Jharkhand) [(2006) 8 SCC 560], the Court held as under:-


             10. Under Section 375 IPC, six categories indicated above  are
             the basic  ingredients  of  the  offence.  In  the  facts  and
             circumstances of this case, the prosecutrix was about 12 years
             of age, therefore, her consent was irrelevant.  The  appellant
             had forcibly taken her to his  gumti  with  the  intention  of
             committing  sexual  intercourse  with   her.   The   important
             ingredient of the offence under Section 375  punishable  under
             Section 376 IPC is penetration which is altogether missing  in
             the instant case. No offence under Section 376 IPC can be made
             out unless there  was  penetration  to  some  extent.  In  the
             absence of penetration to any extent, it would not  bring  the
             offence of the appellant within the four  corners  of  Section
             375 of the Penal Code. Therefore, the  basic  ingredients  for
             proving a charge of rape are the  accomplishment  of  the  act
             with force. The other important ingredient is  penetration  of
             the male organ within the labia majora or the vulva or pudenda
             with or without any emission of semen or even  an  attempt  at
             penetration into the private part of  the  victim  completely,
             partially or slightly would  be  enough  for  the  purpose  of
             Sections 375 and 376 IPC. This Court had an occasion  to  deal
             with the basic ingredients of this offence in State of U.P. v.
             Babul Nath. In this case, this  Court  dealt  with  the  basic
             ingredients of the offence under Section 375 in the  following
             words: (SCC p. 34, para 8)




                  “8. It may here be noticed that Section  375  IPC  defines
                  rape and the Explanation to Section 375 reads as follows:

                  ‘Explanation.—Penetration is sufficient to constitute  the
                  sexual intercourse necessary to the offence of rape.’

                  From the Explanation reproduced  above  it  is  distinctly
                  clear that ingredients which are essential for  proving  a
                  charge of rape are the  accomplishment  of  the  act  with
                  force and resistance. To constitute the  offence  of  rape
                  neither Section  375  IPC  nor  the  Explanation  attached
                  thereto require that there should necessarily be  complete
                  penetration of the penis into  the  private  part  of  the
                  victim/prosecutrix.  In  other  words  to  constitute  the
                  offence of rape it is not  at  all  necessary  that  there
                  should be complete penetration  of  the  male  organ  with
                  emission of semen and rupture of hymen.  Even  partial  or
                  slightest penetration of the male organ within  the  labia
                  majora or  the  vulva  or  pudenda  with  or  without  any
                  emission of semen or even an attempt at  penetration  into
                  the private part of the victim would be quite  enough  for
                  the purpose of Sections 375 and 376 IPC. That being so  it
                  is quite possible to commit legally the  offence  of  rape
                  even without causing any injury to the genitals or leaving
                  any seminal stains. But in the present case before  us  as
                  noticed  above  there  is  more   than   enough   evidence
                  positively showing that there was sexual activity  on  the
                  victim and she was subjected  to  sexual  assault  without
                  which she would not have sustained injuries of the  nature
                  found on her private part by the doctor who examined her.”


                  xxxxx      xxxxx xxxxx      xxxxx


          12. The word “penetrate”, according to Concise  Oxford  Dictionary
          means “find access into or through, pass through”.




          13. In order to constitute rape, what Section 375 IPC requires  is
          medical evidence of penetration, and this may occur and the  hymen
          remain intact. In view of the Explanation  to  Section  375,  mere
          penetration of penis in vagina is an offence  of  rape.  Slightest
          penetration is sufficient for conviction under Section 376 IPC.




28.   In light of the above judgments, it  can  safely  be  concluded  that
there was limited penetration due to which probably the hymen of the victim
girl was  not  ruptured.   The  Court  should  adhere  to  a  comprehensive
approach, in order to examine the case of the prosecution. But  as  regards
the facts and circumstances of  the  present  case,  the  presence  of  the
element of mens rea on part of the accused cannot be denied.  He had  fully
prepared himself.    He first lured the girl not only by inciting her,  but
even by actually purchasing bangles for her.   Thereafter, he took the girl
to a room where he threatened her of physical assault as a  consequence  of
which the girl did not raise protest. This is  why  no  marks  of  physical
injury could be noticed on her body.   Absence of injuries in  the  context
of the present case would not justify  drawing  of  any  adverse  inference
against the prosecution, but on the contrary would support the case of  the
prosecution.


29.   It will be useful to refer to the judgment of this Court in the  case
of O.M. Baby (Dead) by L.Rs. v. State of Kerala [JT 2012 (6) SC 117], where
the Court held as follows:-
        “16. A prosecutrix of a sex offence cannot be put on a par  with  an
        accomplice. She is in fact a victim of the crime. The  Evidence  Act
        nowhere says that her evidence  cannot  be  accepted  unless  it  is
        corroborated in material particulars. She is undoubtedly a competent
        witness under Section 118 and her evidence  must  receive  the  same
        weight as is attached to an injured in cases of  physical  violence.
        The same degree of care and caution must attach in the evaluation of
        her evidence as in the case of an injured complainant or witness and
        no more. What is necessary is that the court must be  alive  to  and
        conscious of the fact that it is dealing  with  the  evidence  of  a
        person who is interested in the outcome of the  charge  levelled  by
        her. If the court keeps this in mind and feels satisfied that it can
        act on the evidence of the prosecutrix, there is no rule of  law  or
        practice incorporated in the Evidence Act  similar  to  Illustration
        (b) to Section 114 which requires it to look for  corroboration.  If
        for some reason the court is hesitant to place implicit reliance  on
        the testimony of the prosecutrix it may look for evidence which  may
        lend assurance to her testimony short of corroboration  required  in
        the case of an accomplice. The nature of evidence required  to  lend
        assurance to the  testimony  of  the  prosecutrix  must  necessarily
        depend on the facts  and  circumstances  of  each  case.  But  if  a
        prosecutrix is an adult and  of  full  understanding  the  court  is
        entitled to base a conviction on her evidence  unless  the  same  is
        shown to be infirm and not  trustworthy.  If  the  totality  of  the
        circumstances appearing on the record of the case disclose that  the
        prosecutrix does not have a strong motive  to  falsely  involve  the
        person charged, the court should ordinarily have  no  hesitation  in
        accepting her evidence.
        14. We would further like to observe  that  while  appreciating  the
        evidence of the prosecutrix, the court must keep in mind that in the
        context of the values prevailing in  the  country,  particularly  in
        rural India, it would be unusual for a woman to come up with a false
        story of being a victim of sexual assault  so  as  to  implicate  an
        innocent person. Such a view has been expressed by the  judgment  of
        this Court in the case of State of Punjab v. Gurmit Singh  (1996)  2
        SCC 384 and has found reiteration in a recent judgment in Rajinder @
        Raju v. State of H.P. (2009) 16 SCC  69,  para  19  whereof  may  be
        usefully extracted:


             19. In the context of Indian culture,  a  woman  -  victim  of
             sexual aggression -  would  rather  suffer  silently  than  to
             falsely implicate  somebody.  Any  statement  of  rape  is  an
             extremely humiliating experience for a woman and until she  is
             a victim of sex crime, she would not blame anyone but the real
             culprit. While appreciating the evidence of  the  prosecutrix,
             the courts must always keep in mind  that  no  self-respecting
             woman would put  her  honour  at  stake  by  falsely  alleging
             commission of rape on her and therefore, ordinarily a look for
             corroboration of her testimony  is  unnecessary  and  uncalled
             for. But for high improbability in the prosecution  case,  the
             conviction in the case of sex crime may be based on  the  sole
             testimony of the prosecutrix. It has been  rightly  said  that
             corroborative evidence  is  not  an  imperative  component  of
             judicial credence in every case of rape  nor  the  absence  of
             injuries on the private parts of the victim can  be  construed
             as evidence of consent.”

30.   Reference can also be made to the judgment of this Court in the  case
of State of Himachal Pradesh v Asha Ram [AIR 2006 SC 381].
31.   Thus, as per the facts and circumstances of the present  case,  there
is a direct link of the accused with the commission of  the  crime.    Such
conclusion can well be established by the statement of the  witnesses,  the
recoveries made, the Medical Report and the FSL Report.  It does not  leave
any doubt in our mind that the accused has committed the offence with which
he was charged.


32.   Still, another argument was advanced to contend that  the  conviction
of the appellant cannot be based on the sole statement of prosecutrix  PW2,
because it is not reliable.  We have already discussed above at some length
that there is nothing on record to show that the statement of PW2 is either
unreliable or untrustworthy.  On the contrary, in light of the given facts,
the statement of PW2 is credible, truthful and, thus, can safely be  relied
upon.


33.   Statement of PW2 is fully corroborated by the statements of  PW1  and
PW3.   They are independent witnesses and  have  no  personal  interest  or
motive of falsely implicating the accused or supporting  the  case  of  the
prosecution.  PW2 is a poor young girl who works as a maid  servant.    PW3
coming to her rescue and PW1 reaching the spot without any delay, saved the
girl from further assault and serious  consequences.    Firstly,  the  High
Court has not based the conviction of the accused solely on  the  statement
of PW2.   Even if it were so, still the judgment of the High Court will not
call for any interference  because  the  statement  of  PW2  was  reliable,
trustworthy and by itself sufficient to convict the accused, by  virtue  of
it being the statement of the victim herself.


34.   Lastly, coming back to the first contention raised on behalf  of  the
accused, it is true that the appellate Court has to be more cautious  while
dealing  with  the  judgment  of  acquittal.  Under  the  Indian   criminal
jurisprudence, the accused has two fundamental protections available to him
in a criminal trial or investigation.    Firstly,  he  is  presumed  to  be
innocent till proved guilty and secondly that he  is  entitled  to  a  fair
trial  and  investigation.   Both  these   facets   attain   even   greater
significance where the accused has a judgment of acquittal in  his  favour.
A judgment of acquittal  enhances  the  presumption  of  innocence  of  the
accused and in some cases, it may even indicate a false  implication.   But
then, this has to be established on record of the Court.


35.   When we mention about the Court being cautious, it does not mean that
the appellate Court cannot disturb the finding of acquittal.   All that  is
required is that there should be a compelling rationale and also clear  and
cogent evidence, which has been ignored by the Trial  Court  to  upset  the
finding of acquittal.   We need not deliberate on  this  issue  in  greater
detail.  Suffice it to notice the recent judgment of this Court in the case
of Ravi Kapur v. State of Rajasthan [JT 2012(7) SC 480], where  the  Court,
after discussing various other judgments of this Court held on the facts of
that case that interference with the judgment  of  acquittal  by  the  High
Court was justified.    The Court explained the law as under:-

             37. Lastly, we may proceed to  discuss  the  first  contention
             raised on behalf of the  accused.   No  doubt,  the  Court  of
             appeal would normally  be  reluctant  to  interfere  with  the
             judgment of acquittal but this is not an absolute rule and has
             a number of well accepted exceptions.  In the case of State of
             UP v. Banne & Anr. [(2009) 4 SCC 271],  the  Court  held  that
             even the Supreme Court would be justified in interfering  with
             the judgment of acquittal of the  High  Court  but  only  when
             there are very substantial and compelling reasons  to  discard
             the High Court’s decision.  In the case of  State  of  Haryana
             v.  Shakuntala & Ors. [2012 (4) SCALE 526], this Court held as
             under :



                  “36. The High  Court  has  acquitted  some  accused  while
                  accepting the plea of alibi taken by them.    Against  the
                  judgment of acquittal, onus is on the prosecution to  show
                  that the finding recorded by the High  Court  is  perverse
                  and requires correction by this Court, in exercise of  its
                  powers under Article 136 of  the  Constitution  of  India.
                  This Court has repeatedly held  that  an  appellate  Court
                  must bear in mind that in case of acquittal,  there  is  a
                  double presumption in favour of the accused.  Firstly, the
                  presumption of innocence  is  available  to  such  accused
                  under   the    fundamental    principles    of    criminal
                  jurisprudence,   i.e., that every person shall be presumed
                  to be innocent unless proved guilty before the  court  and
                  secondly, that a lower court, upon due appreciation of all
                  evidence has found in favour of  his  innocence.    Merely
                  because another view is possible, it would  be  no  reason
                  for this Court to interfere with the order of acquittal.




                37.    In Girja Prasad (Dead) By Lrs. v. State of M.P.
                [(2007) 7 SCC 625], this Court held as under:-

                  “28. Regarding setting aside acquittal by the High  Court,
                  the learned Counsel for the appellant  relied  upon  Kunju
                  Muhammed v. State of Kerala (2004) 9 SCC 193, Kashi Ram v.
                  State of M.P. AIR 2001 SC  2902  and  Meena  v.  State  of
                  Maharashtra 2000 Cri LJ 2273.   In our opinion, the law is
                  well settled.   An appeal against  acquittal  is  also  an
                  appeal under the Code and an  Appellate  Court  has  every
                  power to reappreciate, review and reconsider the  evidence
                  as a whole before it.   It is, no doubt, true  that  there
                  is presumption of innocence in favour of the  accused  and
                  that presumption is reinforced by an  order  of  acquittal
                  recorded by the Trial Court.   But that is not the end  of
                  the matter.   It is for the Appellate  Court  to  keep  in
                  view the relevant principles of law, to  reappreciate  and
                  reweigh the evidence as a whole and to  come  to  its  own
                  conclusion  on  such  evidence  in  consonance  with   the
                  principles of criminal jurisprudence.”

             38. In Chandrappa v. State of Karnataka [(2007) 4 SCC 415],
             this Court held as under:-

                  “42. From the above decisions, in our considered view, the
                  following  general  principles  regarding  powers  of  the
                  appellate court while dealing with an  appeal  against  an
                  order of acquittal emerge:




                       (1) An appellate court  has  full  power  to  review,
                       reappreciate and reconsider the evidence  upon  which
                       the order of acquittal is founded.

                       (2) The Code of  Criminal  Procedure,  1973  puts  no
                       limitation, restriction or condition on  exercise  of
                       such power and an appellate  court  on  the  evidence
                       before it may  reach  its  own  conclusion,  both  on
                       questions of fact and of law.

                       (3) Various expressions, such  as,  “substantial  and
                       compelling reasons”, “good and  sufficient  grounds”,
                       “very strong circumstances”, “distorted conclusions”,
                       “glaring mistakes”, etc. are not intended to  curtail
                       extensive powers of an appellate court in  an  appeal
                       against acquittal. Such phraseologies are more in the
                       nature of “flourishes of language” to  emphasise  the
                       reluctance of an appellate court  to  interfere  with
                       acquittal than to curtail the power of the  court  to
                       review  the  evidence  and  to  come   to   its   own
                       conclusion.

                       (4) An appellate court, however, must  bear  in  mind
                       that  in  case  of   acquittal,   there   is   double
                       presumption in favour of the  accused.  Firstly,  the
                       presumption of innocence is available  to  him  under
                       the fundamental principle of  criminal  jurisprudence
                       that every person shall be presumed  to  be  innocent
                       unless he is proved guilty by a  competent  court  of
                       law.  Secondly,  the  accused  having   secured   his
                       acquittal,  the  presumption  of  his  innocence   is
                       further reinforced, reaffirmed  and  strengthened  by
                       the trial court.

                       (5) If two reasonable conclusions are possible on the
                       basis of the evidence on record, the appellate  court
                       should not disturb the finding of acquittal  recorded
                       by the trial court.”




             39. In C. Antony v. K.G. Raghavan Nair [(2003) 1 SCC 1], this
             Court held :-

                      “6. This Court in a number  of  cases  has  held  that
                      though the appellate court has full  power  to  review
                      the evidence upon which  the  order  of  acquittal  is
                      founded, still  while  exercising  such  an  appellate
                      power in a case of  acquittal,  the  appellate  court,
                      should not only consider every matter on record having
                      a bearing on the question  of  fact  and  the  reasons
                      given by the courts below in support of its  order  of
                      acquittal, it must express its reasons in the judgment
                      which led  it  to  hold  that  the  acquittal  is  not
                      justified. In those line of cases this Court has  also
                      held that the appellate court must also bear  in  mind
                      the fact that the  trial  court  had  the  benefit  of
                      seeing the  witnesses  in  the  witness  box  and  the
                      presumption of innocence is not weakened by the  order
                      of acquittal, and in  such  cases  if  two  reasonable
                      conclusions  can  be  reached  on  the  basis  of  the
                      evidence on record, the  appellate  court  should  not
                      disturb the finding of  the  trial  court.  (See  Bhim
                      Singh Rup Singh v. State of Maharashtra1 and Dharamdeo
                      Singh v. State of Bihar.)”

             40. The State has  not  been  able  to  make  out  a  case  of
             exception to the above settled principles.   It  was  for  the
             State to show that the High Court  has  completely  fallen  in
             error of law or that judgment in relation to these accused was
             palpably erroneous, perverse  or  untenable.   None  of  these
             parameters are satisfied in the appeal preferred by the  State
             against the acquittal of three accused.”





         38.      In the  present  case,  there  are  more  than  sufficient
         reasons for the High  Court  to  interfere  with  the  judgment  of
         acquittal recorded by the Trial Court.  Probably,  this  issue  was
         not even raised before the High Court and that is why we find  that
         there are hardly any reasons recorded in the judgment of  the  High
         Court impugned in the present appeal.
 Be that as it  may,  it  was
         not a case of non-availability of evidence or presence of  material
         and serious  contradictions  proving  fatal  to  the  case  of  the
         prosecution. 
There was no plausible reason before the  Trial  Court
         to disbelieve the eye account given by PW2 and PW4  and  the  Court
         could not have ignored the fact that  the  accused  had  been  duly
         identified at the place of occurrence and even in the  Court.  
The
         Trial Court has certainly fallen in error of law  and  appreciation
         of evidence.
Once the Trial Court has ignored  material  piece  of
         evidence and failed to appreciate the prosecution evidence  in  its
         correct perspective, particularly when the prosecution  has  proved
         its case beyond reasonable doubt, then it would amount  to  failure
         of justice.  
In some cases, such error in appreciation of  evidence
         may even amount to recording of  perverse  finding.   We  may  also
         notice at the cost of repetition that the  Trial  Court  had  first
         delivered its judgment on 24th June, 1999 convicting the accused of
         the offences.  However, on appeal, the matter was remanded  on  two
         grounds, i.e.,  considering  the  effect  of  non-holding  of  test
         identification parade and not examining the doctor.   Upon  remand,
         the Trial Court had taken a different view than what was  taken  by
         it earlier and vide judgment dated 11th May, 2006, it had acquitted
         the accused.  This itself became a ground for interference  by  the
         High Court in the judgment  of  acquittal  recorded  by  the  Trial
         Court.  From the judgment of the Trial Court, there does not appear
         to be any substantial discussion on the effect  of  non-holding  of
         the test  identification  parade  or  the  non-examination  of  the
         doctor.  On the contrary, the Trial Court passed  its  judgment  on
         certain assumptions.  None of the witnesses, not even the  accused,
         in his statement, had stated that the jeep was at a fast speed  but
         still the Trial Court recorded a finding that the  jeep  was  at  a
         fast speed and was not being driven properly.  The Trial Court also
         recorded that a suspicion arises  as  to  whether  Ravi  Kapur  was
         actually driving the bus at the time of the  accident  or  not  and
         identification was very important.

         39.      We are unable to understand as  to  how  the  Trial  Court
         could ignore the statement of the eye-witnesses, particularly  when
         they were reliable, trustworthy and gave the most  appropriate  eye
         account  of  the  accident.   The  judgment  of  the  Trial  Court,
         therefore, suffered from errors  of  law  and  in  appreciation  of
         evidence both.   The  interference  by  the  High  Court  with  the
         judgment of acquittal passed by the Trial  Court  does  not  suffer
         from any jurisdictional error.”


36.   Reverting to the facts of  the  present  case,  the  High  Court  has
recorded reasons while interfering with the judgment of  acquittal  by  the
Trial Court.  We may also notice that the Trial Court attempted to create a
serious doubt in the case of the prosecution on the basis of the  statement
of PW3, that he does not know what  PW2  narrated  to  PW1,  when  he  made
inquiries. We do not think that this was a proper  way  to  appreciate  the
evidence on record.


37.   The statement of a witness must be read in its entirety.   Reading  a
line out of context is not an accepted canon of appreciation of evidence.


38.   Another aspect of the statement of PW3 which the Trial  Court  had  a
doubt with, was, as to how PW3 had noticed  the  accused  taking  away  the
minor girl along with him to the tennis store room  and  how  he  suspected
some foul play.


39.   PW3 admittedly was a rickshaw puller and was standing at the gate  of
the University.   The tennis store room was quite near to  the  gate.  PW3,
quite obviously knew the accused as well as PW2.   The conduct  of  PW3  in
the given circumstances of the case was precisely as it would have been  of
a person of normal behaviour and was not at all extra-ordinary  in  nature,
particularly in the late hours of evening.
40.   Still, another fact that was taken into consideration  by  the  Trial
Court while acquitting the accused was that Ext.  P.5  neither  showed  any
injuries on the body nor reflected that rape was attempted on  the  victim.
In our  considered  view,  the  course  of  appreciation  of  evidence  and
application of law adopted by the Trial  Court  was  not  proper.   It  was
expected of the Trial  Court  to  examine  the  cumulative  effect  of  the
complete evidence on record and case of the prosecution in its entirety.
41.   Equally without merit is the  contention  that  
Ext.  P.5  which  was
authored by PW9  upon  examination  of  the  victim  neither  recorded  any
injuries on her person nor the fact that she was raped.    It  is  for  the
reason that PW9 had not recorded any final  opinion  and  kept  the  matter
pending, awaiting the FSL Report.   
 Furthermore,  in  Ext.  P.5,  she  had
noticed that her parts were tender to touch.  The vaginal swabs and vaginal
wash were taken and slides were  preserved.   She  was  also  sent  to  the
hospital for further examination.  
Thus, Ext. P.5 cannot be looked into  in
isolation and must be examined in light of  other  ocular  and  documentary
evidence. 
In the peculiar facts and circumstances of the case, it  was  not
even expected of PW1 or the  Investigating  officer  PW11  to  examine  the
victim particularly in relation to her  private  parts.  
 Absence  of  such
recording does not cause any infirmity to the case of the prosecution  much
less a reason for acquitting the accused.


42.   In our considered opinion, the learned  Trial  Court  has  failed  to
appreciate  the  evidence  on  record  cumulatively  and  in  its   correct
perspective by  ignoring  the  material  piece  of  evidence  and  improper
appreciation of evidence.   It has recorded findings which are on the  face
of it unsustainable.  This error was rightly corrected by the  High  Court,
and we see no reason to interfere with the judgment of conviction  recorded
by the High Court.


43.   We find no merit in the present appeal and the same is dismissed.

                                        ………...….…………......................J.
                                                           (Swatanter Kumar)




                                        ………...….…………......................J.
                                      (Gyan Sudha Misra)
New Delhi,
December 13, 2012