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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION  

CRIMINAL     APPEAL     NO.      500     OF     2011   

K. VENKATESHWARLU             …APPELLANT

Versus

THE STATE OF ANDHRA PRADESH           … RESPONDENT

JUDGMENT

(SMT.)     RANJANA     PRAKASH     DESAI,     J.   

1. This appeal by special leave is directed against the  

judgment dated 20/10/2009 passed by the High Court of  

Andhra Pradesh in Criminal Appeal No.1037 of 2001  

whereby the High Court has reversed the judgment and  

order of the Additional Sessions Judge, Miryalguda acquitting  

the appellant of the offence punishable under Section 376 of  

the Indian Penal Code (for short, ‘the IPC’).  The High Court

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has sentenced the appellant to undergo rigorous  

imprisonment for a period of seven years and to pay a fine  

of Rs,1,000/-, in default, to suffer simple imprisonment for a  

period of one month.   

2. In short the prosecution case is that PW-1 Anjaiah and  

PW-3  Padma,  father and mother respectively of PW-2  

Aruna are residents of Vepalasingaram village of District  

Nalgonda.  PW-2 is physically handicapped due to Polio. On  

30th August, 1998, PWs 1 and 3 who work as coolies left for  

their work leaving PW-2 Aruna in the house.  PW-2 Aruna  

and other children played for sometime on the terrace of the  

house of the appellant who was working as police constable.  

At about 4.00 p.m., all the children decided to go down. It  

was, however, difficult for PW-2 Aruna to go down due to  

her physical handicap. At that time the appellant came  

there, PW-2 requested him to help her to go to the ground  

floor. According to the prosecution the appellant lifted her,  

took her in his house, laid her on a cot and committed rape  

on her. The children, who were present there, saw the  

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incident by peeping from the side of the door curtain.  They  

informed PW1 about the incident after he returned from his  

work. Thereafter PW-1 went to the police station and lodged  

FIR (Ex. P.1). PW-16 G. Madhusudan Rao, Sub-Inspector of  

Police, Huzurnagar Mandal, registered a crime against the  

appellant for the offence punishable under Section 376 of  

the IPC. PW-15 Dr. M. Lalitha Rao, Civil Assistant Surgeon of  

the Nalgonda District Headquarters Hospital examined the  

prosecutrix on 1.9.1998 at about 12.10 p.m. Vaginal slides  

were sent to the Forensic Science Laboratory. The appellant  

was arrested on 4.9.1998. He was examined at the  

Government Hospital, Huzurnagar.  After completion of the  

investigation the appellant was charged under Section 376  

of the IPC. In support of its case the prosecution examined  

as many as 18 witnesses.  The appellant contended that he  

was falsely implicated.  He claimed to be tried.  

3. The trial court acquitted the appellant basically on the  

ground that the victim and her mother did not speak  

anything about the rape and the child witnesses stated that  

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they were kept by the police in police station prior to giving  

evidence and therefore, their evidence cannot be relied  

upon.  The trial court observed that the appellant is entitled  

to benefit of doubt.   An appeal was carried by the State of  

Andhra Pradesh to the High Court.  The High Court came to  

a conclusion that there was no appreciation of evidence at  

all by the trial court.  The High Court re-appreciated the  

evidence and recorded a finding that the prosecution has  

proved its case beyond reasonable doubt. The High Court  

set aside the trial court’s order and convicted the appellant  

as aforesaid, which has led to this appeal.  

4. We have heard learned counsel for the appellant. He  

submitted that the High Court erred in setting aside the  

order of acquittal which was based on a correct appreciation  

of evidence. Counsel submitted that by no stretch of  

imagination the order of acquittal passed by the Sessions  

Court can be characterized as perverse warranting  

interference by the High Court.   Counsel submitted that  

PW-1 Anjaiah and PW-3 Padma, father and mother of the  

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victim have not supported the prosecution case.  PW-2  

Aruna the victim has also not stated that she was sexually  

assaulted by the appellant.  The child witnesses have  

admitted that they were at the police station for  

considerable period before they were brought to the court.  

It is evident, therefore, that they were tutored by the police.  

Counsel submitted that though medical evidence suggests  

that PW-2 Aruna had been sexually assaulted, there is no  

evidence on record to conclude that it is the appellant who  

had committed the heinous crime.   Counsel submitted that  

the view taken by the trial court is a reasonably possible  

view which ought not to have been disturbed by the High  

Court.  Learned counsel for the State supported the  

impugned order.  

5. The High Court has set aside order of acquittal.  This  

court has repeatedly stated what should be the approach of  

the High Court while dealing with an appeal against  

acquittal.  If the view taken by the trial court is a reasonably  

possible view, the High Court cannot set it aside and  

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substitute it by its own view merely because that view is  

also possible on the facts of the case.  The High Court has to  

bear in mind that presumption of innocence of an accused is  

strengthened by his acquittal and unless there are strong  

and compelling circumstances which rebut that presumption  

and conclusively establish the guilt of the accused, the order  

of acquittal cannot be set aside.  Unless the order of  

acquittal is perverse, totally against the weight of evidence  

and rendered in complete breach of settled principles  

underlying criminal jurisprudence, no interference is called  

for with it.  Crime may be heinous, morally repulsive and  

extremely shocking, but moral considerations cannot be a  

substitute for legal evidence and the accused cannot be  

convicted on moral considerations.  The present appeal  

needs to be examined in light of above principles.  

6. There can hardly be any doubt that PW-2 Aruna was  

sexually assaulted.  PW-15 Dr. M. Lalita, who had examined  

Aruna, has stated in her evidence that Aruna is affected by  

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polio on the right side.  She described the internal injuries  

suffered by Aruna as under:

“1. Abrasion on the right labia majora ½”x¼”  (inches) (scratch marks). Pergina vagina  examined. Hymen intact. Tip of the little  finger admitting. Congestion present.”

She stated that according to FSL report dated 6.11.1998  

(Exhibit P-20) there was semen spermatozoa detected on  

the skirt of Aruna, which was suggestive of sexual assault on  

the victim girl.  But, we find that there is no medical  

evidence on record to establish that the spermatozoa  

detected on the skirt of PW-2 Aruna was that of the  

appellant.  The appellant was arrested on 4.9.1998.  His  

lungi was seized.  As per FSL report blood found on the lungi  

was human but the blood group could not be identified.  

Besides, the panchas to seizure panchanams have turned  

hostile.  Positive FSL report would have provided a clinching  

circumstance against the appellant.  The appellant’s delayed  

arrest has added to the weakness of the prosecution case.

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7. PW-1 Anjaiah, father of the victim, has narrated how  

the children residing in the neighbourhood told him after he  

and his wife came from work at about 4.00 p.m. that the  

appellant had ravished their daughter Aruna.  He stated that  

he took this matter to the caste elders, who asked him to go  

to the police station, Huzurnagar.  He stated that  

accordingly he went to Huzurnagar police station and lodged  

the FIR, which is Exhibit P-1.  However, in the cross  

examination he has not supported the prosecution case.  He  

stated that the police kept him, his wife and the child  

witnesses in the police station at Garidepally without  

allowing them to go to their village and they were brought to  

the court directly from the police station to give evidence.  

He further stated that he was illiterate and could only sign  

and he did not know the contents of his statements recorded  

by the police.  Surprisingly, in the cross-examination he  

stated that the children of the neighbourhood did not inform  

him that his daughter was ravished.  Though, PW-1 turned  

hostile, curiously, the prosecution did not declare him  

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hostile.  What is more shocking in the fact that mother of  

PW-2 Aruna,  PW-3 Ch. Padma has also turned hostile.    

8. Evidence of PW-2 Aruna also does not take the  

prosecution case any further.  It is apparent from her  

evidence that she was extremely traumatized by the  

incident.  When she was asked by the court whether she  

knew the appellant, she nodded her head indicating she  

knew him.   When she was questioned as to why she had  

come to the court, she looked at the appellant.   The trial  

court then sent the appellant out.  When she was again  

asked why she had come to the court, she hesitantly looked  

around and with tears in her eyes she got down from the  

witness box and went outside inspite of the warning given  

by the court attendant not to do so.  Her parents brought  

her inside.  When she was questioned whether she was  

ravished by the appellant, she nodded her head approvingly.  

The court then put to her that the appellant did not ravish  

her.  She nodded indicating that she was not ravished by the  

appellant.  The court then asked her whether she wants to  

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speak anything, she nodded her head negatively.  Observing  

that the witness lacked mental maturity, the trial court  

discharged her.  The tears in PW-2’s eyes, her mental  

condition and the helpless look on her face, which the trial  

court has noted together with medical evidence establish  

beyond doubt that PW-2 Aruna was sexually assaulted.

9. Several child witnesses have been relied upon in this  

case.  The evidence of a child witness has to be subjected to  

closest scrutiny and can be accepted only if the court comes  

to the conclusion that the child understands the question put  

to him and he is capable of giving rational answers (see  

Section 118 of the Evidence Act).  A child witness, by reason  

of his tender age, is a pliable witness.  He can be tutored  

easily either by threat, coercion or inducement.  Therefore,  

the court must be satisfied that the attendant circumstances  

do not show that the child was acting under the influence of  

someone or was under a threat or coercion.  Evidence of a  

child witness can be relied upon if the court, with its  

expertise and ability to evaluate the evidence, comes to the  

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conclusion that the child is not tutored and his evidence has  

a ring of truth.  It is safe and prudent to look for  

corroboration for the evidence of a child witness from the  

other evidence on record, because while giving evidence a  

child may give scope to his imagination and exaggerate his  

version or may develop cold feet and not tell the truth or  

may repeat what he has been asked to say not knowing the  

consequences of his deposition in the court.  Careful  

evaluation of the evidence of a child witness in the  

background and context of other evidence on record is a  

must before the court decides to rely upon it.  

10. Evidence of child witnesses PW-4 D. Marry, PW-5  

Swapna, PW-6 Ch. Vijaya and PW-7 Ch. Borraiah have made  

prosecution case suspect.  It must be mentioned here that  

statements of these witnesses were recorded by PW-14 K.  

Prasad Rao, JFCM, Kodad, under Section 164 of the Code.  

But, these statements also cannot be relied upon because  

there is intrinsic evidence to show that all these witnesses  

were under the pressure of the police.  PW-4 D. Marry did  

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not say anything about the appellant.  She stated that she  

gave a statement before the Magistrate at Kodad but she  

could not state what statement she had given.  Because she  

was unable to answer the questions she was discharged.  

PW-5 Swapna also admitted that she was at the police  

station at Garidapalli for six days along with PWs 1 to 3 and  

others and she gave a statement before the Magistrate at  

the instance of the police.  The defence has produced a  

certificate (Annexure-P/8) from RCM High School,  

Vepalasingaram, where PW-4 and PW-5 were studying,  

which states that they did not attend the school from  

30.10.2000 to 7.11.2000 and 27.10.2000 to 06.11.2000  

respectively.  PW-6 Ch. Vijaya Kumar and PW-7 Ch. Borraiah  

narrated the incident in the examination-in-chief, but the  

similarity in their narration suggests tutoring by the police.  

PW-6’s effort to disown that he was detained at the police  

station along with others is belied by evidence of other  

witnesses.  PW-7 Ch. Borraiah stated in the cross-

examination that all of them were at the police station since  

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last Tuesday. From the evidence of the child witnesses it is  

clear that they were detained by the police at the police  

station.  Once this is established, the inevitable conclusion  

that they were tutored by the police must follow.   

11. Having perused the evidence of all the witnesses, we  

find it difficult to rely on them.  We feel that the trial court  

had rightly discarded their evidence as unworthy of reliance  

and the High Court erred in taking it into consideration.  

This, in our opinion, is a case where neither the evidence of  

parents of victim PW-2 Aruna nor the evidence of PW-2  

Aruna, nor the evidence of child witnesses, who claim to  

have witnessed the incident, nor the medical evidence  

supports the prosecution case. Besides, all the pancha  

witnesses have turned hostile, a fact which we have noted  

with some anguish.  A needle of suspicion does point out to  

the appellant because he is a police constable and in a small  

village where the incident took place, witnesses may be  

scared to depose against him because of his clout.  There  

are certain circumstances which do raise suspicion about the  

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appellant’s involvement in the crime.  The children were  

playing on the terrace of the appellant.  The appellant was  

not arrested by police till 4.9.1998.  The demeanour of PW-2  

Aruna, the tears in her eyes, her walking out of the court  

after looking at the appellant, pricks the judicial conscience.  

But convictions cannot be based on suspicion, conjectures  

and surmises.   We are unable to come to a conclusion that  

the trial court’s judgment is perverse.  For want of legal  

evidence we will have to set aside the appellant’s conviction  

and sentence.  But we make it clear that we are doing so  

only by giving him benefit of doubt.

12. In view of the above, we set aside the impugned  

judgment and order of the High Court dated 20.10.2009.  

The appellant is in jail.  He is directed to be released  

forthwith, unless required in some other case.

13. In R.P. Kapur   v.  Union of India and Anr. (AIR  

1964 SC 787) the Constitution Bench of this court has held  

that if the trial of a criminal charge results in conviction,  

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disciplinary proceedings are bound to follow against the  

public servant so convicted, but even in case of acquittal  

departmental proceedings may follow, when the acquittal is  

other than honourable.  We are not aware whether any  

disciplinary proceedings are pending against the appellant.  

But, if they are, the concerned authority shall proceed with  

them independently, uninfluenced by this judgment and in  

accordance with law.

14. The appeal is disposed of in the afore-stated terms.

……………………………………………..J. (AFTAB ALAM)

……………………………………………..J. (RANJANA PRAKASH DESAI)

NEW DELHI, AUGUST  17, 2012

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