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 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 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 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 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
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 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.
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
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 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 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 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
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 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, 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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