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  

23rd January, 2009 passed by the Division Bench of the High  

Court of Judicature at Hyderabad, Andhra Pradesh whereby the  

order of acquittal dated 11th 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  

1

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:

2

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 7th 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  3

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.

4

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  5

Page 6

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

its judgment dated 11th 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  

6

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.  

7

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  

8

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.”

9

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  

10

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  

11

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 13th  

September,  1997, he had examined a girl  A.  Haritha for the  

purposes of finding out her age.    He stated as follows:-

“2.   On physical mental and radiological  examination I am of the opinion of that  

12

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 7th  

September,  1997.    According  to  PW9,  the  girl  had  washed  

herself after the incident.   PW9 made the following remarks:-  

“There are no marks of violence nape of neck, front and back of  

the  body.    The  abdomen  was  soft.  Liver  and  spleen  not  

palpable. The breasts are not developed. There was no axilliary  

pubic hair. The hymen was intact. No laceration or congestion in  

fourchette, the parts were tender to touch, which according to  

the doctor 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.  13

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.    

14

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  

15

Page 16

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

noticed by the Court in its Order dated 9th November, 1998.  

18. In order to establish a conflict between the ocular evidence  

and the medical evidence, there has to be specific and material  

contradictions. Merely because, some fact was not recorded or  

stated by the doctor at a given point of time and subsequently  

such fact was established by the expert report, the FSL Report,  

would  not  by  itself  substantiate  the  plea  of  contradiction  or  

variation.   Absence of injuries on the body of the 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  

16

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.  

17

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  

18

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.  19

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  

20

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  

21

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  

22

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  

23

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  

24

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  

25

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  

27

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  28

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  29

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:-

30

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  

31

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  

32

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  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  

33

Page 34

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.”

39.In C. Antony v. K.G. Raghavan Nair  [(2003) 1 SCC 1], this Court held :-

“6.  This  Court  in  a  number  of  cases  has  held  that  though  the  appellate court  has full  power to  review the  evidence  upon  which  the order of acquittal is founded,  still  while  exercising  such  an  appellate  power  in  a  case  of  acquittal,  the  appellate  court,  should  not  only  consider  every  matter on record having a bearing  on  the  question  of  fact  and  the  reasons given by the courts below  in support of its order of acquittal,  it must express its reasons in the  judgment which led it to hold that  the  acquittal  is  not  justified.  In  those line of cases this Court has  also held that the appellate court  must  also  bear  in  mind  the  fact  that the trial court had the benefit  

34

Page 35

of  seeing  the  witnesses  in  the  witness box and the presumption  of innocence is not weakened by  the order of acquittal, and in such  cases  if  two  reasonable  conclusions can be reached on the  basis  of  the  evidence  on record,  the  appellate  court  should  not  disturb  the  finding  of  the  trial  court. (See Bhim Singh Rup Singh  v.  State  of  Maharashtra1  and  Dharamdeo  Singh  v.  State  of  Bihar.)”

40.The State has not been able to make  out  a  case  of  exception  to  the  above  settled principles.  It was for the State to  show that the High Court has completely  fallen in error of law or that judgment in  relation  to  these  accused  was  palpably  erroneous, perverse or untenable.  None  of these parameters  are satisfied in  the  appeal preferred by the State against the  acquittal of three accused.”

38. In the present case, there are more than  sufficient reasons for the High Court to interfere  with  the  judgment  of  acquittal  recorded by the  Trial  Court.   Probably,  this  issue  was  not  even  raised before the High Court and that is why we  find that there are hardly any reasons recorded in  the judgment of the High Court impugned in the  present appeal.  Be that as it may, it was not a  case of non-availability of evidence or presence of  material and serious contradictions proving fatal  to  the  case  of  the  prosecution.  There  was  no  plausible  reason  before  the  Trial  Court  to  disbelieve the eye account given by PW2 and PW4  and the Court could not have ignored the fact that  the accused had been duly identified at the place  of occurrence and even in the Court.  The Trial  

35

Page 36

Court  has  certainly  fallen  in  error  of  law  and  appreciation  of  evidence.   Once  the  Trial  Court  has ignored material piece of evidence and failed  to  appreciate  the  prosecution  evidence  in  its  correct  perspective,  particularly  when  the  prosecution  has  proved  its  case  beyond  reasonable doubt, then it would amount to failure  of  justice.   In  some  cases,  such  error  in  appreciation  of  evidence  may  even  amount  to  recording of perverse finding.  We may also notice  at the cost of repetition that the Trial Court had  first  delivered  its  judgment  on  24th June,  1999  convicting the accused of the offences.  However,  on  appeal,  the  matter  was  remanded  on  two  grounds, i.e., considering the effect of non-holding  of  test  identification  parade  and  not  examining  the  doctor.   Upon  remand,  the  Trial  Court  had  taken a different view than what was taken by it  earlier and vide judgment dated 11th May, 2006, it  had acquitted the accused.  This itself became a  ground for interference by the High Court in the  judgment of acquittal recorded by the Trial Court.  From the judgment of the Trial Court, there does  not appear to be any substantial discussion on the  effect  of  non-holding  of  the  test  identification  parade or the non-examination of the doctor.  On  the contrary, the Trial Court passed its judgment  on certain assumptions.  None of the witnesses,  not  even  the  accused,  in  his  statement,  had  stated that the jeep was at a fast speed but still  the Trial  Court recorded a finding that  the jeep  was  at  a  fast  speed  and  was  not  being  driven  properly.   The  Trial  Court  also  recorded  that  a  suspicion  arises  as  to  whether  Ravi  Kapur  was  actually  driving  the  bus  at  the  time  of  the  accident  or  not  and  identification  was  very  important.   

39. We are  unable  to  understand  as  to  how  the Trial Court could ignore the statement of the  eye-witnesses,  particularly  when  they  were  reliable,  trustworthy  and  gave  the  most  appropriate  eye  account  of  the  accident.   The  

36

Page 37

judgment  of  the  Trial  Court,  therefore,  suffered  from errors of law and in appreciation of evidence  both.  The interference by the High Court with the  judgment  of acquittal  passed by the Trial  Court  does not suffer from any jurisdictional error.”

36. Reverting to the facts of the present case, the High Court  

has  recorded  reasons  while  interfering  with  the  judgment  of  

acquittal by the Trial Court.  We may also notice that the Trial  

Court attempted to create a serious doubt in the case of the  

prosecution on the basis of the statement of PW3, that he does  

not know what PW2 narrated to PW1, when he made inquiries.  

We do not think that this was a proper way to appreciate the  

evidence on record.

37. The statement of a witness must be read in its entirety.  

Reading  a  line  out  of  context  is  not  an  accepted  canon  of  

appreciation of evidence.

38. Another  aspect  of the statement  of PW3 which the Trial  

Court had a doubt with, was, as to how PW3 had noticed the  

accused taking away the minor girl along with him to the tennis  

store room and how he suspected some foul play.  

39. PW3 admittedly was a rickshaw puller and was standing at  

the gate of the University.   The tennis store room was quite  

37

Page 38

near to the gate. PW3, quite obviously knew the accused as well  

as PW2.   The conduct of PW3 in the given circumstances of the  

case was precisely as it would have been of a person of normal  

behaviour  and  was  not  at  all  extra-ordinary  in  nature,  

particularly in the late hours of evening.   

40. Still, another fact that was taken into consideration by the  

Trial  Court  while  acquitting  the  accused  was  that  Ext.  P.5  

neither showed any injuries on the body nor reflected that rape  

was  attempted  on  the  victim.   In  our  considered  view,  the  

course  of  appreciation  of  evidence  and  application  of  law  

adopted by the Trial Court was not proper.  It was expected of  

the Trial Court to examine the cumulative effect of the complete  

evidence on record and case of the prosecution in its entirety.  

41. Equally without merit is the contention that Ext. P.5 which  

was authored by PW9 upon examination of the victim neither  

recorded any injuries on her person nor the fact that she was  

raped.   It is for the reason that PW9 had not recorded any final  

opinion and kept the matter pending, awaiting the FSL Report.  

Furthermore, in Ext. P.5, she had noticed that her parts were  

tender  to  touch.   The vaginal  swabs and vaginal  wash were  

taken  and slides  were preserved.   She  was also sent  to  the  

hospital  for  further  examination.   Thus,  Ext.  P.5  cannot  be  38

Page 39

looked into in isolation and must be examined in light of other  

ocular  and  documentary  evidence. In  the  peculiar  facts  and  

circumstances of the case, it was not even expected of PW1 or  

the Investigating officer PW11 to examine the victim particularly  

in relation to her private parts.  Absence of such recording does  

not cause any infirmity to the case of the prosecution much less  

a reason for acquitting the accused.  

42. In our considered opinion, the learned Trial Court has failed  

to appreciate the evidence on record cumulatively and in  its  

correct perspective by ignoring the material piece of evidence  

and  improper  appreciation  of  evidence.    It  has  recorded  

findings which are on the face of it unsustainable.  This error  

was rightly corrected by the High Court, and we see no reason  

to interfere  with the  judgment  of conviction recorded by the  

High Court.

43. We find no merit in the present appeal and the same is  

dismissed.  

………...….…………......................J.                                           (Swatanter Kumar)

………...….…………......................J. 39

Page 40

                         (Gyan Sudha Misra) New Delhi, December 13, 2012  

40