Dipak Misra, J.— From the days of yore, every civilised society has developed various kinds of marriages to save the man from the tyranny of sex, for human nature in certain circumstances has the enormous potentiality of exhibiting intrigue, intricacy and complexity, in a way, a labyrinth. Instances do take place where a man becomes a slave to this tyrant and exposes unbridled appetite and lowers himself to an unimaginable extent for gratification of his carnal desire.
2. The case at hand graphically exposes the inferior endowments of nature in the appellant who failed to husband his passion and made an attempt to commit rape on a nine-year-old girl and the tears of the child failed to have any impact on his emotion and even an iota of compassion did not surface as if it had been atrophied, and eventually he pressed her neck which caused instant death of the nervous young girl.
3. Presently, we shall proceed with the narration. The facts as unfolded by the prosecution, in brief, are that on 24-6-1994, Vineshwari along with her brother, Dharam Veer, aged about five years, was having a bath in the water that had accumulated in front of the house of the informant, Pitambar, their father, due to a crack in the nearby canal. Kali Charan and Ganeshi, PW 2, were grazing their cattle in the field situate at a short distance. The appellant-accused, a resident of the village, cajoled Vineshwari to accompany him to the nearby field belonging to one Layak Singh. The younger brother, Dharam Veer, innocently followed them. At that juncture, the appellant took off her undergarment and with the intention to have intercourse flung her on the ground. The young girl cried aloud and her brother, the five-year-old child, raised an alarm.
4. Kali Charan and Ganeshi who had seen the accused taking the girl followed by the brother to the field of Layak Singh rushed to the place and shouted for Pitambar, PW 1. Hearing the shout, Pitambar with his elder son Harpal rushed to the spot and witnessed that the accused was pressing the neck of Vineshwari. By the time they could reach the spot, the accused made an effort to run away but he was apprehended. However, unfortunately by that time, the girl had already breathed her last. Leaving the accused in the custody of the villagers, Pitambar went to the police station and lodged an FIR.
5. After the criminal law was set in motion, the accused was arrested and the investigating officer, Balvir Singh, PW 7, reached the spot and carried out the investigation. The dead body of the deceased was sent for post-mortem. The investigating officer seized the garment of the deceased, the clothes of the accused and certain other articles and prepared the seizure memo.
6. After recording the statements of the witnesses under Section 161 of the Code of Criminal Procedure and completing further investigation, the prosecution submitted the charge-sheet under Sections 302 and 376 read with Section 511 of the Penal Code, 1860 (for short “IPC”) before the competent court which in turn committed the matter to the Court of Session wherein it was registered as ST No. 1098 of 1994.
7. The plea of the defence was one of denial and false implication. The accused chose not to adduce any evidence.
8. In order to prove its case, the prosecution examined eight witnesses, namely, Pitambar alias Pita, PW 1 (father of the deceased), Ganeshi, PW 2, Dharam Veer, PW 3, Dr S.K Sharma, PW 4, Head Constable Mahfooj Khan, PW 5, Dr S.R.P Mishra, PW 6, Balvir Singh, SI, PW 7 and Constable Vinod Kumar, PW 8.
9. Pitambar alias Pita, PW 1 stated on oath that the accused influenced his daughter Vineshwari, who was taking bath in the canal water to accompany him to the nearby field. He has further stated that the accused attempted to commit rape on his daughter and ultimately strangulated her throat that caused her death. Ganeshi, PW 2 deposed that he along with Kali Charan was there. On hearing the cry of the girl, he and Kali Charan went to the field of Layak Singh and found that the accused was trying to commit rape on Vineshwari and tied a shirt on her neck. Dharam Veer, PW 3, could not be examined because he was unable to grasp the questions.
10. Dr S.K Sharma, PW 4 conducted the post-mortem of Vineshwari and found the following ante-mortem injuries:
(1) Abrasion 5 cm × 1 cm over right ramus of jaw extending to the neck region.
(2) Abrasion 3 cm × 1 cm over left supraclavicular region.
No injury was found on the private parts and/or thighs nor on chest and buttocks. However, two vaginal smears were prepared and sent for pathological examination. Over external pericardium, larynx and both the lungs of the deceased, deposits of blood were found. Except this, the liver, pancreas, spleen and both kidneys were filled with blood. On interior examination, larynx, trachea, bronchi and lungs were found congested. According to Dr S.K Sharma, the death of the deceased took place due to asphyxia as a result of throttling.
11. Dr S.R.P Mishra, PW 6 examined the accused Jugendra and found certain contusions, abrasions and superfluous injuries on his body.
12. Balvir Singh, SI, PW 7 proved the site plan, recovery memo of underwear of Vineshwari, panchnama, report to CMO and charge-sheet.
13. The learned trial Judge appreciating the evidence on record found that there were discrepancies and contradictions in the testimony of the witnesses; that it was difficult to believe that the accused was lying upon the deceased in the presence of Kali Charan and Ganeshi; that the deposition of the witnesses that they had found blood on the spot had not received corroboration from the examination of Dr S.K Sharma, PW 4, who had deposed that the blood had not oozed out from the body of the deceased girl; that the colour of the undergarment of the girl as stated by her father did not tally with the colour described in the recovery memo; that as per the medical report there was no injury on the private parts of the deceased; that there was difference in the time mentioned by the witnesses as regards the lodging of the FIR inasmuch as the investigating officer arrived at the spot between 1.30 to 2.00 p.m whereas the FIR was lodged at 2.45 p.m; and that the colour of the shirt was not properly stated by the witnesses. Because of the aforesaid findings, the trial court came to the conclusion that the prosecution had failed to prove its case beyond reasonable doubt and accordingly acquitted the accused of the charge.
14. The aforesaid judgment of acquittal came to be challenged before the High Court in Criminal Appeal No. 2644 of 1998 on the ground that the view expressed by the learned trial Judge was totally perverse since minor discrepancies and contradictions had been magnified and the real evidence had been ignored. It was also put forth that the trial court failed to appreciate the fact that the accused was apprehended on the spot and nothing had been brought on record to dislodge the same. It was also urged that the view expressed by the trial court was totally unreasonable and defied logic in the primary sense.
15. The High Court perused the evidence on record and opined 2005 All LJ 3652 that unnecessary emphasis had been laid on minor discrepancies by the trial court and the view expressed by it was absolutely perverse and remotely not a plausible one. Being of this view, it overturned the judgment of acquittal to that of conviction and sentenced the accused to undergo life imprisonment for the offence under Section 302 IPC and to undergo rigorous imprisonment for ten years for the offence under Section 376 read with Section 511 IPC with the stipulation that both the sentences shall run concurrently.
16. We have heard Mr Lav Kumar Agrawal, learned counsel for the appellant and Mr R.K Dash, learned counsel for the State.
17. It is contended by Mr Agrawal that the High Court has not kept in view the parameters on which the judgment of acquittal is to be interfered with and has converted one of acquittal to conviction solely by stating that the judgment is perverse. It is urged by him that the discrepancies and contradictions have been discussed in detail by the trial Judge and he has expressed a well-reasoned opinion that the prosecution has failed to bring home the charge, but the said conclusion has been unsettled by the High Court by stating that the said discrepancies are minor in nature. It is his further submission that the ocular evidence has not received any corroboration from the medical evidence and further the material particulars have been totally overlooked and hence, the judgment of conviction is sensitively vulnerable.
18. Mr Dash, learned Senior Counsel appearing for the respondent, has canvassed that the learned trial Judge had treated the ordinary discrepancies, which are bound to occur when rustic witnesses, have been accentuated as if they are in the realm of high degree of contradiction and inconsistency. It is submitted by him that when the judgment of the trial court suffers from perversity of approach especially in relation to the appreciation of evidence and the view cannot be treated to be a possible one, no flaw can be found with the judgment of reversal by the High Court.
19. To appreciate the submissions raised at the Bar and to evaluate the correctness of the impugned judgment, we think it appropriate to refer to certain authorities in the field which deal with the parameters for reversing a judgment of acquittal to that of conviction by the appellate court.
20. In Jadunath Singh v. State of U.P (1971) 3 SCC 577, AIR 1972 SC 116, a three-Judge Bench of this Court has held thus:
“22. This Court has consistently taken the view that in an appeal against acquittal the High Court has full power to review at large all the evidence and to reach the conclusion that upon that evidence the order of acquittal should be reversed. This power of the appellate court in an appeal against acquittal was formulated by the Judicial Committee of the Privy Council in Sheo Swarup v. King Emperor (1933-34) 61 IA 398, AIR 1934 PC 227 and Nur Mohammad v. Emperor AIR 1945 PC 151. These two decisions have been consistently referred to in the judgments of this Court as laying down the true scope of the power of an appellate court in hearing criminal appeals (see Surajpal Singh v. State AIR 1952 SC 52, 1952 SCR 193 and Sanwat Singh v. State of Rajasthan AIR 1961 SC 715, (1961) 3 SCR 120).”
21. In Damodarprasad Chandrikaprasad v. State of Maharashtra (1972) 1 SCC 107, AIR 1972 SC 622 it has been held that once the appellate court comes to the conclusion that the view of the trial court is unreasonable, that itself provides a reason for interference. The two-Judge Bench referred to the decision in State of Bombay v. Rusy Mistry AIR 1960 SC 391, 1960 Cri LJ 532 to hold that if the finding shocks the conscience of the Court or has disregarded the norms of legal process or substantial and grave injustice has been done, the same can be interfered with.
22. In Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793, AIR 1973 SC 2622 the three-Judge Bench opined that:
“5. … there are no fetters on the plenary power of the appellate court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de novo, informed, however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted into an acquittal, the homage our jurisprudence owes to individual liberty constrains the higher court not to upset the finding without very convincing reasons and comprehensive consideration.”
23. This Court in Shivaji Sahabrao Bobade case (1973) 2 SCC 793, AIR 1973 SC 2622 further proceeded to state that the cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The emphasis was laid on the aspect that a balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish the marginal innocents.
24. In State of Karnataka v. K. Gopalakrishna (2005) 9 SCC 291, AIR 2005 SC 1014, it has been held that where the findings of the court below are fully unreasonable or perverse and not based on the evidence on record or suffer from serious illegality and include ignorance and misreading of record, the appellate court will be justified in setting aside such an order of acquittal. If two views are reasonably possible and the view favouring the accused has been accepted by the courts below, that is sufficient for upholding the order of acquittal. Similar view was reiterated in Ayodhya Singh v. State of Bihar (2005) 9 SCC 584.
25. In Anil Kumar v. State of U.P (2004) 13 SCC 257, it has been stated that interference with an order of acquittal is called for if there are compelling and substantial reasons such as where the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated.
26. In Girja Prasad v. State of M.P (2007) 7 SCC 625, it has been observed that:( f-g)
“In an appeal against acquittal the 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 a 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 [in accord] with the principles of criminal jurisprudence.”
27. In State of Goa v. Sanjay Thakran (2007) 3 SCC 755, it has been reiterated that the appellate court can peruse the evidence and interfere with the order of acquittal only if the approach of the lower court is vitiated by some manifest illegality or the decision is perverse.
28. In State of U.P v. Ajai Kumar (2008) 3 SCC 351, AIR 2008 SC 1269, the principles stated in State of Rajasthan v. Sohan Lal (2004) 5 SCC 573 were reiterated. It is worth noting that in Sohan Lal (2004) 5 SCC 573, it has been stated thus:
“3. … This Court has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal.”
29. 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.”
30. In S. Ganesan v. Rama Raghuraman (2011) 2 SCC 83, one of us (Dr B.S Chauhan, J.), after referring to the decision in Sunil Kumar Sambhudayal Gupta v. State of Maharashtra (2010) 13 SCC 657, considered various aspects of dealing with a case of acquittal and after placing reliance upon earlier judgments of this Court, particularly in Balak Ram v. State of U.P (1975) 3 SCC 219, Budh Singh v. State of U.P (2006) 9 SCC 731, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206 and Babu v. State of Kerala (2010) 9 SCC 189, held that unless there are substantial and compelling circumstances, the order of acquittal is not required to be reversed in appeal. Similar view has been reiterated in Ranjitham v. Basavaraj (2012) 1 SCC 414 and State of Rajasthan v. Shera Ram (2012) 1 SCC 602.
31. Keeping in view the aforesaid well-settled principles, we are required to scrutinise whether the judgment of the High Court withstands the close scrutiny or conviction has been recorded because a different view can be taken.
32. First, we shall refer to the ante-mortem injuries which were found on the deceased—(i) abrasion 5 cm × 1 cm over right ramus of jaw extending to the neck, and (ii) abrasion 3 cm × 1 cm over left supraclavicular region. On internal examination, larynx, trachea and bronchi were found congested. Both the lungs were congested. Brain was congested. Partially digested food was found in the stomach. Small and large intestines were half-full. The doctor who conducted the post-mortem has opined that the cause of death was due to asphyxia as a result of throttling.
33. PW 6 Dr S.R.P Mishra had examined the accused and had found four contusions and two abrasions on his forehead, left ear, neck, left side chest and right shoulder. The learned trial Judge has given some emphasis on these injuries but the High Court has expressed the view that when the accused was apprehended at the spot by the witnesses, he had been given a beating for the criminal act and hence, the minor injuries had no significance.
34. The question is whether the trial court was justified in coming to hold that there were discrepancies and contradictions in the evidence of the witnesses and, therefore, the case of the prosecution did not deserve acceptance. The discrepancies that have been found have been described while we have dealt with the trial court judgment.
35. The medical report clearly says that the death was caused due to asphyxia as a result of throttling. PW 4, the surgeon, who had conducted the autopsy, stated that the deceased was wearing a shirt. PW 1, the father, has stated that she was strangulated by a bush shirt. The learned trial Judge has given much emphasis by drawing a distinction between a shirt and a bush shirt. The High Court has treated that it is not a material contradiction. In the FIR, it was clearly mentioned that the accused strangulated the deceased with the help of her shirt. The medical report supports the same and, therefore, the nature of the shirt which has been given importance by the learned trial Judge, in our considered opinion, has been rightly not accepted.
36. The learned trial Judge has doubted the testimony of Ganeshi, PW 2, that he had not seen the children taking the bath and further he has also opined that it would not have been possible for the accused to lie upon the deceased in their presence. In this regard, the distance has been taken into consideration to discard the testimony. The High Court has perused the testimony or deposition of PW 2 wherefrom it is evincible that the spot was at the distance of 100 paces where he was grazing the cattle. The investigating officer has deposed that there was water in about half kilometre area as there was a crack in the canal as a consequence of which water was flowing in front of the house of the informant. Thus, the High Court has opined that the variance with regard to the details of distance cannot be made the edifice to discard their testimony. The High Court has treated Ganeshi as a natural and neutral witness and it has also observed that his evidence could not have been thrown overboard on the ground of absence of precise description of distance and the fact that he had not seen the children bathing in the water. That apart, the inference by the trial court is that when they had arrived on the scene, the accused could not have been lying on the deceased in their presence. On a perusal of his deposition as well as analysis made by the learned trial Judge, it is evident that there was some time gap and distance. The accused was lying on the deceased and throttled her neck with the shirt. The other witnesses had arrived after five to ten minutes. The High Court has taken note of the distance, time and the age of the deceased and has found that the reasoning ascribed by the trial court to disbelieve the version of PW 2 is unacceptable.
37. The learned trial Judge has noticed that both Pitambar and Ganeshi had deposed that they had seen blood on the spot, though the medical report clearly showed that there was no oozing of blood from any part of the body of the deceased and further that there was no injury on the private parts of the girl. It is apt to note here that there was some frothy liquid coming out from the nose of the deceased. The High Court, while analysing the said evidence, has observed that the witnesses though had stated to have seen blood on the spot in their cross-examination, yet that would not really destroy the version of the prosecution regard being had to the many other facts which have been proven and further there was no justifiable reason to discard the testimony of the father and others who were eyewitnesses to the occurrence.
38. The learned trial Judge has taken note of the fact that PW 1 had stated in his cross-examination that the underwear of the deceased was printed green in colour while PW 2 had stated that the colour of the underwear was red, and according to the recovery memo, the colour was red, white and yellow. The High Court has perused the memo, Ext. Ka-2, prepared by the investigating officer wherein it has been described that the printed underwear was of red, white, yellow and black colour. That apart, when the witnesses were deposing almost after a span of three years, it was not expected of them to remember the exact colour of the printed underwear. In any case, the High Court has observed that the said discrepancy, by no stretch of imagination, could be treated as a discrepancy of any significance.
39. Another aspect which has weighed with the learned trial Judge was about the time of the lodging of the FIR. The said timing has no bearing on the case of the prosecution inasmuch as rustic and uneducated villagers could not have been precise on the time concept.
40. At this juncture, we may remind ourselves that it is the duty of the court to sift the chaff from the grain and find out the truth from the testimony of the witnesses. A testimony of the witness is required to inspire confidence. It must be creditworthy.
41. In State of U.P v. M.K Anthony (1985) 1 SCC 505, AIR 1985 SC 48 this Court has observed that in case of
“[m]inor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole”.
42. In Rammi v. State of M.P (1999) 8 SCC 649, AIR 1999 SC 3544 this Court has held as follows:
“24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.”
43. In Appabhai v. State of Gujarat 1988 Supp SCC 241, AIR 1988 SC 696 this Court has ruled thus:
“13. … The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.”
44. Judged on the aforesaid principles of law, we are of the considered opinion that the learned trial Judge had given unnecessary importance to absolutely minor discrepancies which do not go to the root of the matter and the High Court has correctly treated the analysis to be perverse.
45. Quite apart from that, it is noticeable from the judgment of the trial court that the learned trial Judge has proceeded on a wrong footing by saying that the case of the prosecution was that the accused had committed rape on the deceased whereas on a perusal of the FIR, it is quite clear that the allegation was that the accused had pulled down the underwear of the girl with the intention to commit rape. Similar is the testimony of Ganeshi (PW 1) who has stated that the accused was lying on the girl. It is difficult to understand how the learned trial Judge has conceived that the case of the prosecution was that the accused had committed rape.
46. Thus, from the aforesaid analysis, there can be no trace of doubt that the view taken by the learned trial Judge was absolutely unreasonable, perverse and on total erroneous appreciation of evidence contrary to the settled principles of law. It can never be treated as a plausible view. In our considered opinion, only a singular view is possible that the accused had made an attempt to commit rape and he was witnessed while he was strangulating the child with a shirt. The result was that a nine-year-old child breathed her last. The reasoning ascribed by the learned trial Judge that she did not die because of any injury makes the decision more perverse rather than reasonable.
47. That apart, nothing has been brought on record to show that there was any kind of enmity between the family of the deceased and that of the appellant-accused. There is no reason why the father and the other witnesses would implicate the appellant-accused in the crime and would spare the real culprit. Quite apart from the above, he was apprehended on the spot. The accused had taken the plea that the deceased had died as she had drowned in the water. The medical report runs absolutely contrary inasmuch there was no water in her stomach or in any internal part of the body. There was no motive on the part of any of the witnesses to falsely involve the accused in the crime. In view of our aforesaid analysis, we entirely agree with the view expressed by the High Court.
48. Before parting with the case, we may note that the appellant has created a situation by which a nine-year-old girl who believed in him as a co-villager and went with him in total innocence breathed her last before she could get into the blossom of her adolescence.
49. Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one's physical frame is his or her temple. No one has any right of encroachment. An attempt for the momentary pleasure of the accused has caused the death of a child and had a devastating effect on her family and, in the ultimate eventuate, on the collective at large. When a family suffers in such a manner, the society as a whole is compelled to suffer as it creates an incurable dent in the fabric of the social milieu. The cry of the collective has to be answered and respected and that is what exactly the High Court has done by converting the decision of acquittal to that of conviction and imposed the sentence as per law.
50. Consequently, the appeal, being sans merit, stands dismissed.