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[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1767 OF 2011

RAJA AND OTHERS …APPELLANTS

VERSUS

STATE OF KARNATAKA         …RESPONDENT

J U D G E M E N T

AMITAVA ROY, J.

Distressed  by  the  reversal  of  their  acquittal  from  the  charge  under

Sections 366/376(g)/392 read with Section 34 IPC, as recorded by the trial court, the

appellants have impeached the impugned judgement and order of their conviction

rendered by the High Court in the State appeal.   

2.   We have heard Mr. Basava Prabhu S. Patil, learned senior counsel for the

appellants and Mr. Joseph Aristotle S, learned counsel for the respondent-State.

3. The prosecution was set rolling by an oral report by the prosecutrix with

the  Sampangiramanagara   Police  Station  between  2.00  A.M.  and  3.00  A.M.  of

11.10.1997,  which was in  Tamil  language and was translated and recorded by S.

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Shiva Lingaia, ASI, whereafter a case was registered under Sections 366, 376(g), 392

r/w 34 IPC.   

4. The prosecutrix revealed that she was a resident of No.81, Jasari Kaleeli,

Rustum ji Compound, Richmond Road, Bangalore and was earning her livelihood by

rendering   services  as  a  maid  in  the  house  of   Shilpa  Shetty  at  Shanti  Nagar,

Bangalore.  According to her, because of the ill-treatment of her husband, she shifted

to Bangalore about 8 months prior to the incident by separating from him.  

She alleged that at about 7.30 P.M. in the previous evening, while she

was coming back from work and was at the Richmond Park, an auto rickshaw ,with

two persons  in it including the driver stopped by her side and she was pulled inside.

According to her, after travelling some distance, two other persons also got into the

auto rickshaw.  The miscreants then blindfolded her, by her chudidar cloth and took

her  to  an  auto  garage  where  there  was no light.   The  prosecutrix  stated  that  the

abductors lit a candle, spread 2 seats of the auto rickshaw on the ground, laid her

forcibly thereon and in spite of her resistance and objections, forcibly undressed her

and raped her by turn.  She disclosed that 3 of the four persons ravished her. Out of

them, two committed the act twice and the third only once.   

The prosecutrix further stated that one of the persons brought dosa and

idli and also offered the same to her,  whereafter they tried to repeat the same act, to

which she protested for which she was kicked and fisted and further they snatched

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her Tali  (mangalsootre)  gold ear-studs.   They then made her to wear her  clothes,

brought her in the auto rickshaw to a vacant place and discarded her.  According to

her, these violators  were addressing each other as Raju, Venu, Parkash and Francis

and claimed that she could identify them, if produced. Investigation followed and in

the course thereof, the appellants were apprehended.  The fourth person Francis could

not be nabbed as he absconded.  As a matter of fact,  after the submission of the

charge-sheet  against  the  appellants,  the  trial  was  conducted  by  segregating  the

absconding accused. They  denied the charge under the above provisions of law.   

5.           At  the  trial,  the  prosecution  examined  11 witnesses  and also  marked

several documents and exhibited material objects seized during the investigation. The

appellants  rendered  their  statements  under  Section  313  Cr.P.C.  reiterating  their

innocence and also examined one witness in defence.  The trial court, to reiterate,

acquitted the appellants of the charges levelled against them.  The High Court by the

impugned decision has reversed the acquittal and the appellants thus stand convicted

under Sections 376(g) and 392 IPC r/w 34 IPC and have been sentenced to suffer

rigorous imprisonment for 10 years.

6. The instant  adjudication being one  to examine  the tenability of  the

conviction  of  the  appellants  on  the  reversal  of  their  acquittal,  an  independent

assessment of the evidence on record is indispensable in the interest of justice, two

courts of facts having arrived at  irreconcilable conclusions on the same materials on

records.  It would thus be expedient, to analyse the evidence, oral and documentary

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before adverting to the rival arguments  based thereon.

7. PW1, the prosecutrix on oath stated that she has a female child through

her husband who lived separately with another lady and she and her daughter lived in

the compound of PW2 Geeta.  She deposed that she had been working in the house of

Shilpa Shetty for the last three years and that even prior to the incident, the appellants

used to tease her and pass remarks on the way.  She stated that in the evening of the

date of the incident along with the appellants,  another person had boarded the auto

and that the two persons sitting on her sides were appellants Venu Gopal and Parkash.

She testified that she also did peep out of the auto thinking that someone would save

her, for which the person with the beard in the auto slapped her and therefore she felt

frightened and sat behind.  She stated that the abductors then blindfolded her with her

own dupatta, molested her inside the auto and ultimately took her to an auto garage

and in spite of her objections, raped her one by one.  According to her, she was raped

by Venu Gopal, Parash and the bearded person in that order.

In her deposition, however she stated that appellant  Raja also assaulted

her  and  had  forcible  intercourse  with  her.   She  reiterated  that  the  violators  then

brought dosa and idlis and also offered some to her which she on being  assaulted, did

eat.  In a departure from her FIR, the prosecutrix deposed that thereafter all the four

performed one more round of intercourse by turn.  Thereafter according to her, the

bearded person snatched her Tali (mangalsootre) and the other, her ear studs.  They

did assault her by kicks and thereafter by making her wear her clothes, took her in the

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same auto and left her near a bridge.  She complained of having sustained injuries on

her thighs.     

She stated that thereafter she took water from a person near the garage

road and ascertained from him the area where she was situated.  According to her,

from the location of the place, she could understand the site of the garage and on

reaching there, she saw broken pieces of her glass bangles and also the litter and left

overs of the food taken in the garage and could convincingly identify the place.  She

deposed further that at that time, a man came in a bicycle to whom she narrated the

entire incident,  who asked her to wait  and went to the Hoysala  Police Station to

report, whereafter the police did come, inspect the place as shown by her and took her

to the Sampangiramanagara P.S. past midnight where she made her verbal complaint

which was reduced into writing and she put her thumb impression thereon.

The prosecutrix  proved the complaint/FIR as Ex. P1. According to her,

in the next morning at 6 A.M., the appellants  were brought to the police station.   She

admitted  to  have  been  taken  to  the  Vanivilas  Hospital  where  she  was  medically

examined. She also identified the ear studs, material Ex. 1 and also her inner-wear

material Ex. 2 and  broken pieces of glass bangles material Ex 3.  She also stated to

have identified the appellants in the test identification parade conducted in the central

jail. She also identified the seats of the auto rickshaw as material Ex P4 and P5.  

In  her  cross-examination,  the  prosecutrix  admitted  that  she  was  not

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married and that she had come to Bangalore with Saravana whom she had referred to

in her examination-in-chief, as her husband.  She stated that she lived with Saravana

for three years in Bangalore and that they used to earn their living as labourers.  She

stated that Saravana deserted her, following frequent quarrels with her, whereafter

PW2 Geeta  gave her and her daughter, shelter.  She testified that she used to earn Rs.

700 p.m. by working in the house of Shilpa Shetty and that  there was none in the

family or in her village  to  support her  financially. She admitted that from one week

prior  to the incident, the appellants  used to tease her and that from then she knew

them.   She  admitted  that  the  road  from  which  she  was  abducted  was  a  public

thorough  fare  but  asserted  that  she  could  not  scream  as  she  was  gagged.   She

admitted that though the auto travelled  for 10 minutes thereafter, she did not try to

get  down  as  she  was  scared  of  her  abductors.   She  further  disclosed  that  the

appellants used to speak to her from 2/3 days prior to the incident.

According to her, while she was near Fatima Bakery, which was opposite

to Johnson market, she was taken inside the auto. She admitted  to have known the

accused Francis then.  She claimed to have  identified two persons in the   auto

rickshaw when she was first  picked up from the road as  appellants Parkash and

Francis.  She admitted that none of the abductors did speak to her while in the auto

rickshaw.  She also conceded that she did not scream for help from the passers-by on

the road.  She was confronted with her disclosure in the FIR that only three persons

had committed rape on her  though four had been named therein.  She admitted that at

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the time when she was offered two idlis and a glass of water, she did not cry for help

and instead had made up her mind to teach the miscreants a lesson by informing the

police.  She also stated, by departing from the FIR that for the second time, three

persons committed sexual intercourse with her.  According to her, the ear studs had

been given to her by her husband who got them made at Kaveripattinam in Tamil

Nadu.  She claimed that her FIR was written by one Anthony in the police station

whom she came to know at that point of time.  

In her cross-examination, she further deviated by stating that apart from

the 4th person referred to by her, there was yet another person of short stature and that

she had forgotten to refer to  him in  her FIR. She admitted that her mouth was never

shut but  her abductors did threaten and scold her.  She admitted that after she was

abandoned  by the miscreants, she did alone return to the garage where the act was

committed.  She also stated to have  narrated her incident  to  five more persons at

different  places  before  the  police  had  intervened,  who  according  to  her,  were

watchmen.  She stated that she wanted to see the place  before informing the police

and, therefore she went in search thereof.  She  deposed that she saw the jeep of the

Hoysala police  and called for help whereafter she was taken in the jeep.  She took

the jeep near the garage  and from there, she was taken to two more police stations

before lodging the FIR at Sampangiramanagara Police Station.   

She contradicted herself by stating that the complaint was not written by

Anthony. She also stated that her report was typed, read out to her whereupon she put

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her left thumb impression.  When Ex. P1, FIR was shown to her, she admitted that it

was not typed. She admitted as well that while  narrating  the incident and lodging the

complaint, she did not disclose the names of the accused persons.  She conceded as

well  that when she was taken to the hospital, there were no wounds.

She admitted as well  that PW 2 Geeta  had  advised her to take money

and return to her native village and not to file a case as otherwise she would disclose

that  she was a prostitute.    She denied the suggestion that  she had requested for

financial help from the appellants and when they expressed their inability, she lodged

a false case against them to  wreak vengeance.   She also denied the suggestion that

the material exhibits,  more particularity ear studs and tali (mangalsootre) were not

hers and that the police had procured the same from elsewhere, to frame the accused

persons.    In  the  context  of  her   identification  of  the  appellants  in  the  TIP, she

admitted in her cross-examination that even prior to the incident, she had seen the

accused persons and that not only  they used to talk to her, she knew them as well.

8. PW2  Geeta,   on oath  stated  that  she  also  did  earn her  living as  a

labourer.  She admitted that  she knew  the prosecutrix  who was deserted by her

husband and that she had  accommodated her and her daughter and had provided

shelter to them about 7 years prior to the incident.  She stated that about four years

back (coinciding approximately with the date of the incident),  the prosecutrix had

disclosed to her that on her way back home, she had  been teased, on which she

advised her to be careful.  The witness stated that in the evening of the date of the

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incident, the prosecutirx did not return home and that at about mid-night, the police

brought  her  back.   She  stated  that  she  saw   marks  of  assault  on  the  body  of

prosecutrix and on being  enquired, she stated that “they did not pay me any money

but have snatched my ear studs.  They have extracted all the work needed”.  The

witness volunteered to explain “work” meant prostitution.

At this stage, the witness was declared hostile and was cross-examined.

In her cross-examination, she admitted that when the prosecutrix returned that night,

she had  suffered wounds and was limping.  She denied to have stated before the

police that the appellants had snatched her gold ornaments and had committed rape

on her. She also denied to have identified  the ear studs, as those of the prosecutrix

and instead  asserted  that the same were not hers. She denied the suggestion that  her

retraction from the statement made before the police was with a view to help the

accused persons.  She volunteered to state that  the reason for her husband to desert

the prosecutrix was her activities of prostitution which had come to his knowledge.   

The witness further disclosed in her cross-examination  by the defence

that  about  a  fortnight  before  the  incident,  the  prosecutrix   along  with  her  had

approached the accused persons for an amount of Rs. 10000 which she intended to

invest for living in a separate house, which was however declined.  PW2 testified that

this was not to the liking of the prosecutrix, who was enraged by such refusal and left

the place by intimidating them of adverse consequences.  The witness on oath stated

further  that  the  prosecutrix  after  returning   home   in  the  evenings   and  after

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completing  the  house  hold  work,  used  to  go  around  in  the  night  indulging  in

prostitution and when asked as to  why she had lodged the complaint  against  the

accused persons, she disclosed that  this would compel them to part with the money

that she wanted.

9. PW3 Dr. B.R.S. Kashyap  had examined the appellants and   opined that

there  was  nothing  to  suggest  that  they  were  incapable  of  performing  sexual

intercourse.  He also was of the view that the injury on the body of the appellant Raju

could have been sustained also in the course of attending his auto rickshaw or could

be self- inflicted as well.

10.          PW4 Muthu produced as a seizure witness of the ear studs  denied that same

had been seized in his presence and instead testified that on the insistence of the

police he put his signature on a paper.  This witness was declared hostile but did not

budge from his statement in his examination-in-chief.

11.           PW5 M.K. Srirangaiah was the Tehsildar, Bangalore North Taluk  at the

relevant time and he proved  the conduct of  TIP, in which the prosecutrix  identified

the appellants.

12. PW8 K.M.  Nandagopal  was  the  Assistant  Professor,  OBG,  Vanivilas

Hospital  on  11.10.1997  where  at  about  9  a.m.  on  that  day,  the  prosecutrix  was

medically examined.  He deposed that the prosecutrix was found to have sustained

red  colour  injury  on  her  left  thigh.   While  stating  that  the  vaginal  swab  of  the

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prosecutrix was sealed and sent to the Forensic Science Laboratory, he was of the

clear  opinion that  she  was  accustomed  to  the  act  of  sexual  intercourse.   In  his

cross-examination,  the  doctor  admitted  that  the  prosecutrix  did  not  reveal  any

evidence  or   sign  of  having  sexual  intercourse  at  the  time  of  her  examination.

Vis-a-vis the injuries on her thigh, the witness stated that this could happen due to

reasons other than sexual intercourse.

13.  PW11 B.S. Mudumadeviah, the Investigating Officer affirmed that the

FIR was lodged by the prosecutrix at 2 a.m. on 11.10.1997 at the police station.  He

deposed that after the medical examination of the prosecutrix, he accompanied her to

the place of occurrence and seized therefrom a red colour drawer, one box of Nirodh

(contraceptive),  two auto rickshaw seats,  two broken pieces of  black bangles and

three black bangles found strewn around.  He identified the seized articles in court.

He  referred  to  the  disclosure  statement  of  the  appellant  Parkash  leading  to  the

discovery of the ear studs of the prosecutrix  from his house which he identified in

the court as well. He also claimed to have seized the auto rickshaw identified by the

same appellant used for abducting the prosecutrix.  According to him, he had written

down the complaint of the prosecutrix made verbally

He conceded that the prosecutrix did not state that at that point of time,

that she had been abducted by five persons and raped by four.  She also did not

disclose that there was another short person who had raped her as well.  The witness

admitted  that  she  did  not  disclose  that  she  was  abducted  while  near  the  Fatima

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Bakery but referred to the spot as Richmond Park.  He denied the suggestion that the

prosecutrix  at the time of lodging of the complaint did not name the miscreants.  He

denied  the  suggestion as well  that  the ear  studs  were bought  from Man Pasand

Jewellers, Shanti Nagar  by taking  Rakesh, a friend of accused No. 3- Parkash for the

purpose. He denied the suggestion with regard to seizures from the spot and also the

identification by the prosecutrix at the test identification parade.

14.  The defence witness Rakesh deposed on oath that   after the incident,

while  one  day he  was  in  the  house  of  Parkash,  the  police  visited  the  place  and

threatened the grand-father of the appellant Parkash alleging that he (Parkash) had

snatched a pair of ear studs  from the prosecutrix, to which his grand-father objected.

The witness stated that  then the police took him and the grand-father of the appellant

Parkash to Man Pasand Jewellers, a local jewellery shop, where the police threatened

the old man to pay the amount to purchase a pair of ear studs for Rs. 4000.  The

witness identified the ear studs through the emblem “M.P.” thereon. He denied that

the material Ex. 1, the ear studs belonged to the prosecutrix  and that the same  had

been seized from the appellant Parkash.

15. Mr. Basava Prabhu S. Patil, learned senior counsel for the appellants has

insistently  argued that it  being patent on a combined reading of the FIR and the

testimony of the prosecutrix at the trial, that she is wholly untrustworthy and that the

appellants have been falsely implicated, the impugned judgement and order is liable

to be set aside lest it perpetuates gross injustice.  The learned senior  counsel has

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urged that  not only the prosecutrix's version of the incident as a whole  is inherently

improbable,  she has been wholly discredited as well by the medical evidence belying

the  accusation  of  forcible  sexual  intercourse  by  the  appellants  in  succession.

Castigating the  investigating agency for falsely foisting the articles claimed to have

been seized on the appellants in its desperate attempt to establish their culpability, Mr.

Patil  has  maintained that  as  the  prosecutrix  admittedly knew the  appellants  from

before, their so called identification by her at the TIP is also of no consequence. The

learned senior counsel asserted that PW2 Geeta, though having been declared hostile,

her  evidence  at  the  trial  otherwise  consistent  with  the  attendant  facts  and

circumstances bearing on the conduct and activities of the prosecutrix ought not to

have  been discarded and this  having  vitiated  the  impugned decision  as  well,  the

conviction and sentence recorded against the appellants is liable to be interfered with.

As the prosecution has failed to convincingly prove the charge levelled against the

appellants,  they  are  entitled  to  be  acquitted,  he  urged.   To buttress  these  pleas,

reliance has been placed on the decisions of this Court in Sunil Kumar Sambhudayal

Gupta (Dr.) and others. Vs. State of Maharashtra (2010) 13 SCC 657, Shyamal

Saha Vs. State of West Bengal (2014) 12 SCC 321. Himanshu alias Chintu Vs.

State (NCT of Delhi) (2011) 2 SCC 36 and Raju and Others Vs. State of Madhya

Pradesh (2008) 15 SCC 133.  

16. As against this, the learned state counsel wholly endorsed the impugned

decision contending that not only the testimony of the prosecutrix is true, cogent and

convincing, having regard to the charge levelled by her, the same is deserving of full

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credence to base the conviction of the appellants thereon. According to the learned

counsel, the minor inconsistencies in the FIR and the deposition of the prosecutrix, on

a consideration of the totality of the circumstances, are acceptably reconcilable.  As

the identity of the appellants, as the perpetrators of the crime, is not in doubt, they

having been identified by the prosecutrix in no uncertain terms, the prosecution case

ought not to be jettisoned by relying on the evidence of PW2,  a hostile witness, he

urged.  While contending that the medical evidence is not mutilative of the charge

and that the seizures made in course of the investigation do undeniably establish the

complicity of the appellants, their conviction is legally valid and does not merit any

interference in the instant appeal, he maintained.

17.     We have lent our anxious consideration to the materials on record as well as the

competing  arguments  based  thereon.   Having  regard  to  the  charge  levelled,  the

fulcrum  of  the  prosecution  case  logically  is  the  testimony  of  the  prosecutrix.

Undeniably therefore  the credibility and trustworthiness of the victim’s version is the

decisive factor to adjudge the culpability of the appellants.   

18.     Filtering the unnecessary factual details, suffice it is to recount that the incident

allegedly  had  occurred  at  7.30  p.m.  on  a  public  road  while  the  prosecutrix  was

returning home after the day's work. Her version is that while she was on the way, an

auto rickshaw with two persons therein pulled up by her side and she was dragged in

forcibly.  After moving for about 10 minutes, the abductors were joined by two more

persons,  whereafter she was taken to a garage and was molested against her  will

forcibly.   

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19. To start with, the prosecutrix has contradicted herself qua the place of

alleged kidnapping.  In the complaint, she mentioned the spot to be near Richmond

park, whereas in her evidence she referred to the same as opposite Johnson market.  It

is more or less authenticated by the evidence on record that after her abduction and

on the way to the garage as narrated by her, she did not scream or cry for help.  This

is of utmost significance as it is not alleged by her that the abductors had put her

under fear on the point of any weapon threatening physical injury thereby.  This is

more so, as admittedly the prosecutrix at the relevant time was a major and could

very well foresee the disastrous consequences to follow.  She has admitted in her

deposition as well that while she was ravished inside the garage and even during the

intermittent breaks, she did not shout for any help.  Her version in the complaint with

regard to the offending act and the number of persons, who had committed the same,

is inconsistent with her testimony on oath at the trial.  Notably in the complaint she

mentioned about four persons of whom three raped and out of them, two committed

the act twice.  She did not disclose in her complaint that the accused persons were

known to her from before and disclosed that they during the time had been referring

to themselves as Raju, Venu, Parkash and Francis.  This, however has been denied by

the investigation officer.   On oath, she however introduced a fifth person as well.

She accused all the four persons to have committed sexual intercourse with her for

the second time.   Though grudgingly,  as admitted by her, she also consumed the

food as offered to her by her molesters.   

In cross-examination, she admitted that she was not married to Sarvana

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though she claimed him to be her husband in her examination-in-chief.  She disclosed

more than once that the accused persons used to tease her for about 5-6 months prior

to the incident and that she used to talk to them as well. In view of this admission of

hers , the identification by the prosecutrix  of the accused persons in the TIP pales

into insignificance.  She contradicted herself in the cross-examination by stating that

three of the four did rape her for the second time.  She was also inconsistent with

regard to the writer of her complaint.   

Her conduct during the alleged ordeal is also unlike a victim of forcible

rape and betrays somewhat submissive and consensual disposition.  From the nature

of the exchanges between her and the accused persons as narrated by her, the same

are not at all consistent with those of an unwilling, terrified and anguished victim of

forcible intercourse, if  judged by the normal human conduct.   

Her post incident conduct and movements are also noticeably unusual.

Instead of hurrying back home in a distressed, humiliated and a devastated state, she

stayed back in and around the place of occurrence, enquired about the same from

persons whom she claims to have met in the late hours of night, returned to the spot

to identify the garage and even look at the broken glass bangles, discarded litter etc.

According to her, she wandered around the place and as disclosed by her  in  her

evidence,  to collect  information so as to teach the accused persons a lesson.  Her

avengeful  attitude  in  the  facts  and  circumstances,  as  disclosed  by  her,  if  true,

demonstrably evinces a conduct manifested by a feeling of frustration stoked by an

intense  feeling  of  deprivation  of  something  expected,  desired  or  promised.  Her

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confident movements alone past midnight, in that state are also out of the ordinary.

Her testimony that she met a cyclist to whom  she narrated her tale of woe  and that

on his information, the Hoysala police came to the spot and that thereafter she was

taken  to  successive  police  stations  before  lodging  the  complaint  at

Sampangiramanagara police station  as well   has to be accepted with a grain of salt.  

20.          PW8,  who medically examined her, opined in clear terms that  she was

accustomed  to  sexual  intercourse  and  that  no  sign  of  forcible  intercourse  was

discernible.  This assumes great significance  in view of the allegation of forcible

rape  by 3 to 4  adult persons more than once.  The medical opinion that she was

accustomed to sexual inter course when admittedly she was living separately  from

her husband for 1 and ½ years before the incident also has its own implication.  The

medical evidence as such  in the attendant facts and circumstances in a way belies the

allegation of gang rape.

21.      The evidence of PW2 Geeta who admittedly had offered shelter to the

prosecutrix and her minor daughter, though  had been declared hostile, her testimony

as a whole cannot be brushed aside.  In her testimony, this witness indicated that the

prosecutrix  used to take financial help from the accused persons and that she used to

indulge in dubious late night activities for which her husband had deserted her.  The

defence plea of false implication as the accused persons had declined  to oblige the

prosecutrix  qua her demand for financial help therefore cannot be lightly discarded

in the overall factual scenario. Her version therefore is a plausible one and thus fit in

with the defence plea  to  demolish the prosecution case.  

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22.     That  the  evidence  of  a  hostile  witness  in  all  eventualities  ought  not  stand

effaced altogether and that the same can be accepted to the extent found dependable

on  a careful scrutiny was reiterated by this Court in Himanshu @ Chintu (supra) by

drawing sustenance of the proposition amongst others from Khujii vs. State of M.P.

(1991) 3 SCC 627  and Koli Lakhman Bhai Chanabhai vs. State of Gujarat (1999) 8

SCC 624.  It was enounced that the evidence of a hostile witness remains admissible

and is open for a Court to rely on the dependable part thereof as found acceptable and

duly corroborated by other reliable evidence available on record.   

23. The seizures  said to have been effected by the investigating agency also

do not inspire confidence. Not only PW 4 Muthu denied that the seizure of ear studs

had been made in his presence,  DW1  on oath had stated that  this item of jewellery

had in fact been purchased by the police from a local shop which he could identify on

the basis of  the symbol ‘MP’  inscribed thereon.  In any view of the matter, the

seized articles per se in absence of any evidence of  corroboration of charge would

not, irrefutably prove the involvement of the appellants in the offence alleged.

24.          This Court in  Raju  (supra),  while reiterating that  the evidence of  the

prosecutrix  in  cases  of  rape,  molestation  and  other  physical  outrages  is  to  be

construed  to  be  that  of  an  injured  witness  so  much  so  that  no  corroboration  is

necessary, ruled that an accused must also be protected against the possibility of false

implication.  It was underlined that the testimony of the victim in such cases, though

commands  great  weight  but  the  same,  cannot  necessarily  be  universally  and

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mechanically  accepted  to  be  free  in  all  circumstances  from  embellishment  and

exaggeration. It was ruled that the presumption of absence of consent of the victim,

where sexual intercourse by the accused is proved as contemplated in Section 114A

of  the  Evidence  Act,  was  extremely  restricted  in  its  application  compared to  the

sweep and ambit of the presumption under Sections 113A and 113B of the Indian

Evidence Act.  It was exposited that insofar as the allegation of rape is concerned, the

evidence of the prosecutrix must  be examined as that of a injured witness whose

presence at the spot is probable  but  it can never be presumed that her statement

should always  without exception, be taken  as gospel truth.   

The essence of this verdict which has stood the test of time proclaims

that though generally the testimony of a victim of rape or non-consensual physical

assault  ought to be accepted as true and unblemished, it would still be subject to

judicial  scrutiny lest  a casual,  routine and automatic acceptance thereof results  in

unwarranted conviction of the person charged.

25. Vis-a-vis the scope of  interference with a judgment of acquittal,  this

Court   in  Sunil  Kumar  Shabukumar  Gupta  (Dr.)  (supra) echoed  the  hallowed

proposition that if two views are possible, the appellate court should not ordinarily

interfere therewith though its view may appear to be the more probable one.  While

emphasizing that the trial court has the benefit of watching the demeanour  of the

witnesses and is thus  the best judge of their credibility, it was held that every accused

is presumed to be innocent unless his guilt is proved and that his presumption of

innocence  gets  reinforced  with  his  acquittal  by  the  trial  court's  verdict.   It  was

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reiterated  that  only  in  exceptionable  cases  and  under  compelling  circumstances,

where the judgement of acquittal is found to be perverse i.e. if the  findings have been

arrived at by ignoring  or excluding relevant materials or by taking into consideration

irrelevant/inadmissible material and are against  the weight of  evidence or   are so

outrageously  in defiance of logic so as to suffer from the vice of irrationality,  that

interference by the appellate court would be called for.

26.       That the appellate court is under an obligation to consider and identify the

error in the decision of the trial court and then to decide whether the error is gross

enough  to  warrant  interference  was  underlined   by  this  Court  in  Shyamal  Saha

(supra).   It  was  emphasized  that  the  appellate  court  is  not  expected  to  merely

substitute  its  opinion   for  that  of   the  trial  court  and  that  it  has  to  exercise  its

discretion very cautiously  to correct an error of law or fact, if any and significant

enough to warrant reversal of the verdict of the trial court.

27. The prosecution  case, when judged on the touchstone of  totality  of the

facts and circumstances, does not generate the unqualified and unreserved satisfaction

indispensably required  to enter a finding  of guilt against the appellants.   Having

regard to the evidence on record as a whole,   it  is not possible for this Court to

unhesitatingly hold  that the charge levelled against the appellants   has been proved

beyond reasonable doubt. In our estimate, the view taken by the Trial Court  is the

overwhelmingly  possible  one.  In  contrast,   the  findings  of  the  High  Court   are

decipherably     strained  in  favour  of  the  prosecution  by  overlooking  many

irreconcilable inconsistencies, anomalies  and omissions   rendering  the prosecution

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case unworthy of credit.  Noticeably, the High Court has exonerated the appellants of

the charge of abduction under Section 366 IPC, which is an inseverable component of

the string of offences alleged against them.   Judged by the known parameters of law,

the view adopted by the High Court  is not  a plausible one when juxtaposed to that of

the Trial Court.   We are of the unhesitant opinion that the prosecution has failed to

prove the charge against the appellants to the hilt as obligated in law  and thus, they

are entitled to the benefit of doubt. The appeal thus succeeds and is allowed. The

impugned judgement and order is set-aside.  The appellants are on bail.  Their bail

bonds are discharged.

)

NEW DELHI;  OCTOBER 4, 2016.

……....……………………..….J.  (PINAKI CHANDRA GHOSE)

……....……………………..….J.  (AMITAVA ROY)

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