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TMI Blog1997 (8) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... ter was living without his family. The appellant then came home between 10 a.m. and 11. a.m. and on reaching the home directed PWs 1 and 2 to leave the house but detained the prosecutrix, PW-18 with the understanding that she can leave the house only after cleaning the utensils. Thereafter the appellant forced the prosecutrix for illicit intercourse and ultimately allowed her to go home at 3 p.m. The prosecutrix reached her house but did not find her mother who returned only in the evening. She immediately narrated the incident to her mother, PW-19, who in turn also informed a friend of her PW-17. The father of the prosecutrix was not there at home. Next day, early morning, PW-19, mother of the prosecutrix accompanied by PW-17 and PW-23 gave a written report at the Police Post Mahalta which was treated as F.I.R. in the Police Station, Ramnagar and a case was registered under Section 376/342 I.P.C. The police then started investigation and a charge-sheet was filed in the Court of Sub Judge, Judicial Magistrate, 1st Class, Ramnagar for the commission of offence under Section 376/511 I.P.C. read with 342. The accused denied the allegations. The prosecution examined as many as 24 witne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PW-21 was a Gynecologist in the District Hospital Udhampur. On 23.5.86 at 10.30 a.m., on police requisition, she examined Mst. Rajni, PW-18, and found that secondary sex characters were not well developed on her body. She had also taken the vaginal smear and sent for chemical examination and opined that no definite opinion could be given regarding the attempt of sexual intercourse. She had also stated in her evidence that the hymen of the prosecutrix was intact and a small penetration in case of a girl of 13 years old could rupture as well as injure the hymen. PW-22 was the investigating officer and PW-23 was the other lady who had accompanied the prosecutrix and her mother to the Police Station on 22.5.1986. 3. The learned Sessions Judge on scrutiny of the prosecution evidence came to the conclusion that the case hinges on the sole testimony of prosecutrix, PW-18. He also came to the conclusion that the prosecutrix and PWs 1 and 2 were absent from the school on the relevant day after 9 a.m. which could have been a corroborating circumstance has not been established. The learned Sessions Judge also found that even assuming that PW 18 and PWs 1 and 2 had absented themselves from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r period of 6 months imprisonment as already stated. In setting aside the order of acquittal the High Court came to the conclusion that the entire approach of the trial court in the matter of appreciation of evidence lacked of objectivity. The High Court on scrutiny of evidence apart from relying on the testimony of the prosecutrix, PW-18 came to hold that the fact that the prosecutrix narrated the story of the incident to her mother immediately when the mother was available in the evening; and that the Salwar of the prosecutrix which she was wearing at the time of occurrence was seized and on chemical analysis was found to be carrying stains of semen; and further that the prosecutrix as well as the accused were not seen in the school after the recess, corroborate the prosecutrix's statement and makes her statement acceptable and believable. So far as the conclusion of the learned Sessions Judge on the medical evidence of Doctor PW-19 is concerned the High Court observed that the Sessions Judge committed a serious error in not focusing his attention to the fact that the accused was facing a trial for the offence of attempt to commit rape and not for the offence of rape , and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that of the accused. That apart the seizure of the said salwar two days after the occurrence and absence of any explanation for such delayed seizure creates ample doubt in the prosecution case. Mr. Jain also vehemently contended that the evidence of the prosecutrix as well as her mother should be weighed from the admitted animosity between the accused and PWs 17 and 23, the two Mahila Samiti Mandal members who were bent upon teaching a lesson to the accused for some of their grievances. According to Mr. Jain conviction of the appellant, on account of such infirmities in the prosecution case and on account of unreliable evidence of the prosecutrix, is wholly unsustainable, though on a question of law there cannot be any dispute with the proposition that conviction can be based on the uncorroborated testimony of the prosecutrix provided the prosecutrix can be held to be reliable. 6. The learned Counsel appearing for the respondent - State on the other hand contended that the evidence of the prosecutrix has to be appreciated bearing in mind that a young girl has been molested and subjected to sexual assault by her own Head Master. Her evidence narrating the incident has to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittal to review the entire evidence and come to its conclusion. But in doing so the appellate court should consider every matter on record and the reasons given by the trial court in support of the order of acquittal. The essence of several decisions of this Court is the rule that in deciding appeals against acquittal the court of appeal must examine the evidence in a particular case: must also examine the reasons on which the order of acquittal was based: and should interfere on being satisfied that the view taken by the acquitting judge is unreasonable. If two views are possible on a set of evidence then the appellate court need not substitute its own view in preference to the view of the trial court who has recorded an order of acquittal. In other words, if an order of acquittal is based on proper appreciation of evidence then the same cannot be reversed. But when the acquittal by the Sessions Judge is found to be against the evidence or in disregard of the evidence or in violation of the principles of criminal justice then the appellate court will be fully justified in interfering with an order of acquittal since it is the duty of the court to convict a person ' when the gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he two material witnesses namely PW-1 and PW-2 not having supported the prosecution case in this regard the evidence of the prosecutrix in that respect is not believable. The learned Sessions Judge also came to the conclusion that though the fact that prosecutrix and PWs 1 and 2 had absented themselves from the school from 9 a.m. on the relevant day is established but the same cannot be an incriminating evidence against the accused. So far as the absence of the accused from the school after the recess is concerned, relying upon the evidence of PWs 3, 4 and 20 who were the school teachers, the learned Sessions Judge came to hold that the accused was present in the school till 1 p.m. So far as the contemporaries(sic) evidence of the mother to whom the prosecutrix narrated the incident immediately after the mother reached home, the learned Sessions Judge has not given any weight as according to him she was fully influenced by PWs 17 and 23 who had an axe to grind against the accused. On the evidence of Doctor, PW-21 the learned Sessions Judge came to the conclusion that the medical evidence has shaken the credibility of the prosecutrix version. On the question of seizure of salver of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittal passed by the learned Sessions Judge we are of the considered opinion that the High Court cannot be said to have exceeded the parameters indicated in several judgments of this Court for interference with an order of acquittal. 9. It will be appropriate at this stage to bear in mind that in assessing the testimonial potency of the victim's version, the human psychology and behavioral probability must be looked into. The inherent bashfulness and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication 1980CriLJ926 . In the case in hand a young girl was subjected to sexual harassment by her own Head Master inside a close room of that Head Master and one can well imagine her trauma after being subjected to such sexual harassment. It is in this context it would be appropriate to extract a sentence from the judgment of this Court in Krishan Lal v. State of Haryana 1980CriLJ926 a socially sensitized judge is a better statutory armour against gender outrage than long clauses of a complex section with all the protections writ into it . It must be remembered that no woman of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly she opined that no definite opinion could be given regarding the attempt to sexual intercourse. Mr. Jain's contention is that if the prosecutrix's statement is that there has been a penetration into the vagina to a depth of quarter of one inch or one inch and the prosecutrix being a young girl of 13 years the hymen could not have been intact and thus the entire story given by the prosecution is unbelievable. We do not think that the prosecutrix evidence can be examined by picking one sentence in the cross-examination to find out whether she is a truthful witness or not. Since the order of acquittal passed by the Sessions Judge has been set aside by the High Court and the accused has been convicted, we have ourselves carefully gone through the entire evidence of the prosecutrix. The prosecutrix in no uncertain terms while narrating the act of sexual assault on her by the accused, has stated the accused forcibly laid her on the blanket and the accused forcibly opened the cord of her salver and kept it apart and asked her to keep quite, he has permission from her mother Bholi. The accused forcibly ride upon her. The accused had caught hold her head with one hand and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted cannot but he held to be one of attempt to commit rape. The prosecutrix's evidence clearly establishes the fact that the accused spread the blanket on the floor and forcibly laid her on the blanket and thereupon the said accused forcibly opened the cord of the salver of the prosecutrix and kept it apart and then forcibly ride upon her and on that point of time caught hold of her head with one hand and closed her mouth with the other and had kept his penis qua her uterus and was doing some thing and then the accused was trying to penetrate his penis but it did not penetrate and had gripped his penis with his hand and was rubbing it against her uterus which he was doing by jumping. 12. The difference between preparation and an attempt to commit an offence consists chiefly in the greater degree of determination and what is necessary to prove for an offence of an attempt to commit rape has been committed is that the accused has gone beyond the stage of preparation. If an accused strips a girl naked and then making her flat on the ground undresses himself and then forcibly rubs his erected penis on the private part of the girl but fails to penetrate the same into vagina and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mical analysis and the Scientific Officer of the Jammu and Kashmir, Forensic Science Laboratory after examining the said salwar reported that chemical and microscopical tests revealed the presence of semen/Human Spermatozoa on the said salwar. This is also a strong corroborative piece of evidence to the prosecutrix version even if it has not been established that the Human Spermatozoa is that of the accused. The statement of the mother of the prosecutrix to the effect that the prosecutrix narrated the entire episode immediately when she arrived at home can also be held to be a corroborative piece of evidence which the learned Sessions judge excluded from consideration and in our view erroneously. 14. In this view of the matter it must be held that apart from the reliable testimony of the prosecutrix herself there has been sufficient corroborative pieces of evidence on which the High Court has relied upon in setting aside the order of acquittal passed by the learned Sessions Judge, In our view on the evidence on record the conclusion is irresistible that the prosecution has been able to establish the charge of attempt to commit rape beyond all reasonable doubts and consequently t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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