REPORTABLE

                  IN THE SUPREME COURT OF  INDIA             CRIMINAL APPELLATE JURISDICTION   

             CRIMINAL APPEAL NO. 802    OF 2004

BHAIYAMIYAN @ JARDAR KHAN & ANR. ..  APPELLANT(S)

vs.

STATE OF MADHYA PRADESH ..  RESPONDENT(S)

O  R D E R

This appeal arises out of the following facts:

At  about  10.00  a.m.  on  the  30th August  1984  the  

prosecutrix (PW.1) had gone to relieve herself and as she  

was returning home, she was waylaid by the appellants who  

carried her to a nearby field and thereafter  raped her and  

while leaving threatened her with dire consequences if she  

revealed what had happened to anyone. She however returned

home and told her parents about the rape. Accompanied by  

her parents she then went to the police outpost at Pathriya  

to lodge a report but no police official was found present  

therein.  A report was then lodged the next day at about  

12.15 p.m. by PW.1  at Sironj Police Station about 22 k.m.  

away from the place of incident though the police station  

of village Kasbatal was Unarasital only 7 k.m. away..  The  

prosecutrix  was  accordingly  sent  for  her  medical  

examination to the hospital at   Vasoda.  Information was  

also sent to police Station Unarasital along with the  

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medical  examination  report  Ex.P.A.  and  the  subsequent

investigation  was  conducted  by  the   police  of  police  

station  Unarasital  who  seized  the  petticoat  of  the  

prosecutrix and  sent it for examination.

On the completion of the investigation the accused  

were charged under Sec.376 (2)(g) of the  IPC for having  

committed  gang  rape  on  PW.1.  The  Trial  Court,  vide  its  

judgment dated the 6th January, 1992 observed that in the  

light of the fact that the FIR had been lodged after a  

delay  of  about  60  hours  and  that  the  statement  of  the  

prosecutrix  was  full  of  contradictions  and  as  the  

statements of her father and mother (PW2 and PW.3) were  

based on the information given by her to them, no reliance  

could be placed on their evidence as well. The Court also  

found that in the light of the fact that the prosecutrix  

had declined to be medically examined at Sironj,  where the  

First Information Report had been lodged, and had insisted

that she be examined at Vasoda which was 55 k.ms. away,  

cast a doubt on the prosecution story.    The court further  

observed that as per the medical evidence no injury had  

been found on her person though she had been raped by two  

persons and as such there was no evidence to suggest that  

rape had been committed.  On a cumulative assessment of the  

prosecution evidence the Trial Court acquitted the accused.  

An appeal was thereafter filed  by the State before  

the High Court.  The High Court has given a finding that  

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the decision of the Trial Court was perverse and called for  

interference. The High Court has relied on the evidence of  

PW.1 and her parents   as also on some part of the evidence

of Dr. Mamta Sthapak-PW.7 who had medically examined the  

prosecutrix  after  about   24  hours.  The  High  Court  has  

accordingly allowed the appeal and sentenced the accused  

to 10 years R.I. with a fine of Rs.25,000/- under Section  

376(2)(g) of the IPC, and in default of payment of fine, RI  

for two years.

The matter is before us in the above background.

At the very outset we must remark that the High  

Court's  interference  in  an  appeal  against  acquittal  is  

somewhat circumscribed and if the view taken by the Trial  

Court was possible on the evidence, the High Court should  

stay  its  hands  and  not  interfere  in  the  matter  in  the  

belief that if it had been in Trial Court, it might have  

taken a different view.  In other words, if two views are  

possible and the Trial Court has taken one, the High Court  

should not interfere in the judgment of the Trial Court.

We have examined the evidence  in the light of the  

above principle. We first see that the First Information  

Report  had  been  lodged  after  about  60  hours  of  the  

incident.  The prosecution case is that PW.1 accompanied by  

her parents had gone to police post Patharia attached to  

Police Station Unarasital immediately after the incident  

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but had found no police official present therein and had  

then gone   to police station Sironj  and lodged a report  

at 12 noon the next day. We find that the explanation for  

this delay is somewhat difficult to believe.  A police post

may have a few police officials posted in it, but police  

station Unarasital was a full fledged police station which  

would invariably be manned.  Moreover,  even if no one  was  

found  in  the  police  post  on  the  first  day,  at  that  

particular  point  of  time  the  effort  of  the  prosecutrix  

ought to have been to lodge a report later  at Police  

Station Unarasital, but she chose to go to  police Station  

Sironj and recorded her statement and the investigation was  

thereafter referred to police station Unarasital.  We are  

also indeed surprised that the High Court has made light of  

the fact that the prosecutrix had declined to undergo her  

medical  examination  at  Sironj  and  had  insisted  for  her  

medical  examination  at  Vasoda,   55  k.m.  away.   The  

prosecution has not been able to furnish any explanation as  

to why the prosecutrix had insisted on being examined at  

Vasoda.

We have also examined the medical report. Dr. Mamta  

Sthapak-PW.7 found no injury on her genetalia and deposed  

that there was no evidence to show that she had been raped  

as the tear in her  hymen was an old one. The prosecutrix  

also stated that at the time of her medical examination at  

Vasoda her vagina had been stitched. The doctor found no  

stitch on her person.

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We are therefore of the opinion that on a cumulative  

assessment of the evidence, as given above, the finding of  

the  Trial  Court  could  have  been  given  under  the  

circumstances  and  the  High  Court's  interference  was,  

therefore,  not  called  for.  The  appeal  is  accordingly

allowed, the conviction of the appellants is set aside and  

they are acquitted.

The appellants are on bail; their bail bonds shall  

stand discharged.

                   .................J.         (HARJIT SINGH BEDI)

       ....................J.                                   (CHANDRAMAULI KR. PRASAD)

New Delhi, May 3, 2011.