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TMI Blog2012 (12) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 stand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the Code of Criminal Procedure 1973 (for short 'the Code of Criminal Procedure) for offences under Sections 363 and 376 of Indian Penal Code. 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 Febr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ors. Appellants. v. State of Madhya Pradesh, Respondent 1985 Crl.L.J. 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 Code of Criminal Procedure because the fact remains that it was narrated to the witness for the purpose of giving evidence at the trial and that tantamou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged 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 of Indian Penal Code 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 Indian Penal Code. Accused was sentenced to undergo rigorous imprisonment for 10 years and also to pay a fine of Rs. 2000/-, and in default of pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Indian Penal Code. 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 wro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring 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 ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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 Indian Penal Code is penetration which is altogether missing in the instant case. No offence under Section 376 Indian Penal Code 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 Indian Penal Code. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 argum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and 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 and 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 cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 ..... 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