K. VENKATESHWARLU Vs STATE OF A.P.
Bench: AFTAB ALAM,RANJANA PRAKASH DESAI
Case number: Crl.A. No.-000500-000500 / 2011
Diary number: 32931 / 2010
Advocates: Vs
D. MAHESH BABU
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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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