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Radhakrishna Nagesh Vs. State of Andhra Pradesh

Supreme Court Of India Criminal Appeal /1707/2009

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This case involves an appeal against a High Court judgment that reversed the acquittal of Radhakrishna Nagesh, originally decided by the Trial Court. The Trial Court had acquitted the appellant ...

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Page 1 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

January, 2009 passed by the Division Bench of the High

Court of Judicature at Hyderabad, Andhra Pradesh whereby the

order of acquittal dated 11

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

Page 2 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:

Page 3 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 7

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

Page 4 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.

Page 5 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

Page 6 the guilt of the accused. As already noticed the Trial Court vide

its judgment dated 11

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

Page 7 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.

Page 8 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

Page 9 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.”

Page 10 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

Page 11 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

Page 12 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 13

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

Page 13 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 7

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.

Page 14 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.

Page 15 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

Page 16 while making her statement in the Court, which fact was duly

noticed by the Court in its Order dated 9

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

Page 17 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.

Page 18 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

Page 19 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.

Page 20 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

Page 21 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

Page 22 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

Page 23 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

Page 24 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

Page 25 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

Page 26 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

Page 27 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

Page 28 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

Page 29 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

Page 30 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:-

Page 31 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

Page 32 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

Page 33 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

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