Karnataka High Court
State Of Karnataka By The Kadur Police vs Revannaiah on 25 February, 2005
Equivalent citations: 2005CRILJ2676, ILR2005KAR2232, 2005(4)KARLJ404, 2005 CRI. L. J. 2676, 2005 AIR - KANT. H. C. R. 1255, (2005) ILR (KANT) 2232, (2005) 2 KCCR 1447, (2005) 3 ALLCRILR 739, (2005) 4 KANT LJ 404, (2005) 3 RECCRIR 862, (2005) 4 CURCRIR 466, (2005) 4 CRIMES 268
Author: A.C. Kabbin
Bench: S.R. Bannurmath, A.C. Kabbin
JUDGMENT A.C. Kabbin, J.
1. The main point for consideration in this appeal preferred by the State challenging the acquittal of the respondent for offences of rape and criminal intimidation, is to what extent inconsistencies in depositions of prosecution witnesses, and doubts entertained by the Trial Judge in view of such inconsistencies or any lapse in investigation would affect the acceptability of that evidence.
2. The prosecution of the respondent was preceded by the following events. On the evening of 6-3-92, the complainant (PW1) look his daughter (referred to as PW2) aged about 6 years, to the Government Hospital, Kadur, alleging rape on her by the accused/ respondent. (In this judgment names of the witnesses are omitted to avoid identity of the victim and they are referred to as prosecution witnesses). The girl (PW2) had pain in her private parts and her labia majora was swollen. That had been first noticed by PW2's aunt (PW 4) on the evening of that day when PW 2 had complained to her. On enquiry, PW 2 is stated to have revealed to PW 4 that on the afternoon of 5-3-92, the accused (respondent) had induced her and taken her to his back yard (Hittalu) and after making her to lie down, had lied on her and had sexually assaulted by putting his organ into her private part. That information had been conveyed to PW2's mother (PW3) by PW4 and that is how the complainant had ascertained about the incident on the evening of 6-3-92 The girl was examined by the medical officer (PW 6) and also by lady medical officer (PW 5). They found labia majora swollen with edematous bruises and abrasions. There was foul smelling discharge from the private part of the girl. Vulva smear was collected and it was sent later for chemical analysis. The complainant went to the police station and lodged a complaint (Ex.P1), which was received by the P.S.I. (PW 12). He registered a case for offences under Sections 376 and 506 I.P.C. and later seized petticoat and frock of PW 2 as evidence. He enquired with PW 2 on the morning of 7-3-92 and with the permission of the doctor, took PW 2 to show the place of incident. Amahazar was conducted there in the presence of the witnesses PWs 8 and CW 9. The gunny bag, on which PW 2 had been allegedly made to lie down before sexual assault by the respondent, was seized. Statements of certain witnesses were recorded by the PSI and further investigation was handed over the CPI (PW 13). The respondent was absconding. He was arrested on 9-5-92. After further investigation, a charge sheet was placed against the accused.
3. The respondent pleaded not guilty and claimed to be tried. The prosecution examined in all 13 witnesses and closed its case. PW-2 is the victim of the alleged sexual assault; and PWs 1 and 3 are her parents. PW-4 is her aunt, being the sister of PW-1. PW5, lady medical officer and PW 6, medical officer examined PW 2 on 6-3-92 and gave treatment. PWs 10 to 12 are police officers. PW-7 was the Head Master of the school where the child was studying and he has given a certificate regarding PW-2 attending the school on 5-3-1992 and not attending the school on 6-3-92 onwards for some time. PW 8 is a panch for spot mahazar and PW 9 is a panch for recovery of undergarments of the respondent. After the case of the prosecution was closed, the respondent was examined Under Section 313 of Cr.P.C. to explain the circumstances arising out of the evidence. He denied the allegations of the prosecution witnesses. Though he did not choose to examine any witness, he filed a written statement. The gist of his contention may be briefly stated as under:-
"The complainant's sister (PW-4) is a neighbour of the accused. There was no good understanding between her and her husband, who was an attender in a High School. In that connection during 1992, there was a Panchayat and in the said Panchayat, the accused took active role. Since then, PW-4 has a grouse against the accused, PW-4 has instigated her brother PW-2, her sister-in-law PW-3 and also PW-2 (the child) and has got a false case filed against the accused.
PW-5, who is alleged to have medically examined PW-2 is not an honest doctor. She had been trapped twice and charge sheets in Special Case No. 8/95 and 22/96 have been filed before this Court by Lokayukta police which are pending. The doctor in connivance with interested witnesses has issued a false certificate."
4. After hearing the prosecution and the accused, the learned Sessions Judge, mainly referring to the difference between the depositions of PW-1 and P.S.I. (PW 12) regarding origin of the complaint, correctness of the date of complaint, suspicious circumstances in which victim's garments were seized and uncertainty of the happening of rape if one takes into consideration the opinion of the medical officer, entertained doubt about the acceptability of prosecution case and opining that the benefit of the same has to be given to the accused, he acquitted the respondent of both the offences, challenging which the present appeal has been preferred by the State.
5. Sri Rajendra Reddy, learned Government Pleader representing the State submits that the infirmity or inconsistencies in the evidence of the prosecution as recorded by the learned Sessions Judge on the basis of which acquittal has been awarded, were minor in nature not touching the core of the incident and that therefore the learned Sessions Judge was not right in concluding that the charge had not been proved. He further submits that the opinion of the medical officer that there was no sexual intercourse was based solely on the fact that hymen had not been ruptured, which factor the learned Trial Judge did not notice. He submits that therefore, accepting the depositions of PWs 1 to 4 and the injuries in private part of PW-2 as found by the medical officers, it may be held that charge of rape and criminal intimidation have been proved,
6. Replying to this, Sri J. Chandrashekaraiah, learned counsel for the respondent submits that in a case of an allegation by a child witness, the evidence has to be serutinised with caution and keeping that the principles of law in mind, the learned Sessions Judge has properly serutinised the evidence and considering certain in consistencies in the evidence of prosecution witnesses, and improvements they have made during evidence, the learned Sessions Judge has rightly come to the conclusion that reliance cannot be placed on such evidence. He submits that therefore the appeal is liable to be dismissed.
7. We have carefully considered the entire evidence on record and have heard both the learned Addtional S.P.P and also learned counsel for the respondent. We have also gone through the impugned judgment in detail. Though depositions of PWs 1 to 6 coupled with that of PW-12 sufficiently support the charge, mainly on nine grounds the learned Sessions Judge has declined to accept those depositions and has disbelieved the prosecution case. Those grounds have been highlighted by the learned counsel for the respondent in his arguments. We will consider those grounds one by one to find out as to whether the reasoning adopted by the learned Trial Judge was justified or not
8. The first two grounds are regarding origin and genuineness of the complaint Ex.Pl. According to the learned Judge, it is not certain as to whether the complaint was written in the police station or in the hospital and as to which of the police officials wrote the complaint. Second ground is that the complaint Ex.Pl does not contain any endorsement of the police official who recorded it which gives an impression that it was written by PW-1 himself. The learned Sessions Judge concludes that there is infirmity with regard to the very origin of the complaint Ex.P1.
9. On going through the evidence of PW-1 and the investigating officer PW-12, it is clear that the complaint was written in the police station and that PW-1's complaint as narrated by him to a police official was reduced into writing. The fact that the complainant did not know the name of the police official who scribed the complaint does not mean that such a complaint had not been given. Therefore these two grounds on the basis of which doubt has been entertained by the learned Sessions Judge regarding the origin of Ex.P1 are baseless.
10. The third ground referred to by the learned Trial Judge is that PW 6, medical officer states in his deposition that after he admitted PW-2 in the hospital on 6-3-92, he sent a requisition to the police station and then referred PW-2 to the lady medical officer. When asked in the cross-examination, the P.S.I. (PW-12) says that he did not receive any intimation regarding medico-legal case from the hospital for having treated PW-2. This does not make any differences since even if it is presumed that an intimation had been given by PW-6 to the police and that it had been received by P.S.I. (PW-12) before he received complaint Ex.P1, that intimation was based on the relevant entries in accident register (Ex.P3) and inpatient register (Ex.P2). In Ex.P3, it is clearly stated that the child had been brought with the history of rape by this respondent and in both Ex.P2 and P3, it has been mentioned that it was so told by the parents i.e. PWs 1 and 3. In Ex.P3 it is further stated that the girl herself told regarding the said incident. Therefore contents of Ex.Pl having been mentioned in accident register of which relevant entry has been marked as Ex.P3, on the basis of which intimation was sent to the police, even if that intimation is taken as F.I.R., the same allegations against the respondent would be avilable for police. This doubt of the learned Trial Judge also is of no consequence.
11. The fourth circumstance referred to by the learned Sessions Judge is about the person from whom the complainant learnt about the incident. The complainant says that on 6-3-92 his daughter (PW-2) had gone to PW-4's house and in the evening PW-4 brought PW-2 and told about the incident learnt by her from PW-2. The learned Trial Judge mentions this and observing that the complaint (Ex.P1) shows that PW-1 learnt about the incident from PW-2, he says that this contradiction throws much more doubt on Ex.Pl. Though the complaint does not mention that PW-4 had ascertained this factor from PW-2, statements of PWs 1 and 3 recorded on 1-3-92 had mentioned this factor. Even otherwise, this discrepancy at the most may raise doubt about PW-4's knowledge about the incident and nothing more.
12. The learned Sessions Judge has entertained doubt about the complaint Ex.Pl on another point. At the end of the complaint, date of complaint is written. On a perusal of the same, it is seen that originally the date written was 7-3-92. It has been corrected as 6-3-92. The P.S.I. also admits similar correction of the date in printed F.I.R. from (Ex.P7). The date below his endorsement on the Ex.Pl, as put by him was 7-3-92. Since endorsement of the learned Magistrate regarding time of receipt of F.I.R is 3 a.m. on 7-3-92, the only conclusion one can draw is that this complaint was written after the mid night of 6-3-92 and before 3 a.m. When it reached the Magistrate. Since F.I.R. was received by the learned Magistrate at 3 a.m. on 7-3-92, it must have been despatched from the police station around 2 or 2.30 a.m. on 7-3-92. Even in that event, complaint had been recorded within 4 to 5 hours from the time the complainant came to know of the incident and the hospital entries having been made at 10.45 p.m. on 6-3-92, wherein the incident of rape by the respondent had been mentioned, as rightly argued by the learned High Court Government Pleader it cannot be said that complaint is anti dated or concocted or that after much deliberations, it was drafted.
13. The learned Sessions Judge has next analysed the evidence of the victim (PW-2). Since she is a child witness, he has taken into consideration the principle of law that evidence of a child witness has to be carefully considered. He has referred to the principles in C.R FERNANDES v. UNION TERRITORY, , RAHM BAIG v. STATE OF U.P., , PRIVY COUNCIL, AIR 1946 P.C. 3 CAETANO PIEDADE FARNANDES AND ANR. v. UNION TERRITORY OF GOA, DAMAN AND DIU, . It is also to be noted that different decisions of High Courts and Supreme Court have crystalised the principle that the evidence of a child witness though cannot be brushed aside only on the ground that evidence needs corroboration, such evidence has to be carefully considered keeping in view the demeanour of the witness, likelihood of tutoring and inhability to understand certain acts of the accused.
14. As regards acceptability of the version of a rape victim, he has referred to the decision in the case of STATE OF PUNJAB v. GURMIT SINGH AND ORS., 1996 SC (Criminal) 316 which lays down a principle that the testimony of the victim of sexual assault is vital and unelss there are compelling reasons, which necessitate looking for corroboration of her statement, the Court should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused when her testimony inspires confidence and is found to be reliable. He has also referred to the decision in the case of STATE OF KARNATAKA v. DEVIDAS, 1994 (2) KLJ 46 wherein the observation is that evidence of a victim of alleged rape shall be assessed as evidence of any other witness and that such evidence cannot be accepted on the face value and has to be tested with touch stone of probabilities and her conduct.
15. In the leading decision of BHARWADA BHOGINIBHAI HIRIBHAI v. STATE OF GUJARAT, which dealt with a similar incident of alleged rape on a 10 years girl, the observation made is that:
"Corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society.
A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours. She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. In view of these and similar factors the victims and their relatives are not too keen to bring the culprit to book. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated.
On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the Western World. If the evidence of the victim does not suffer from any basic infirmity, and the 'probabilities-factor' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the 'probabilities factor' is found to be out of tune."
16. Keeping in view the above mentioned principles, we have carefully considered the evidence of PW-2 and also depositions of other witnesses. The learned Trial Judge noticed the following matters to doubt the truthfulness of the version of PW-2 and that of PWs 1,3 and 4.
i. In the cross-examination, PW-2 says that when the accused sexually assaulted her, she experienced pain, that blood came out from her private part and that when she struggled, she sustained scratch injuries. No scratch injury was noticed on her body either by PWs 1,3 and 4 or by medical officers.
i In the cross examination PW-2 says that PW-2's petticoat had been stained with blood, but PW-3 did not notice it on that night and found PW-2 active on that day and the next day.
iii. The incident is stated to have happened at about 6.30 p.m., but that PW-2 says in her deposition that it happened at 1 p.m. iv. Certain improvements made by PWs 3 and 4 in their evidence had not been told before police which make their testimony doubtful.
v. PW-2 says that she told about the incident on date of the incident itself. But the version of PWs 1,3 and 4 is that she revealed about the incident only the next day evening.
vi. According to PW-2, the incident happened in the yard (Hittalu) of the respondent, whereas according to P.S.I. (PW-12) it is a threshing yeard.
17. Depositions of PWs 1,2 and 4 to 6 show that except in her private part, PW-2 had not sustained any injury. If PW2, who was a child of six years at the time of incident and was about 9 or 10 years, when her deposition was recorded replies in the affirmative to a question in the cross-examination as to whether she struggled when she was sexually assaulted and suffered any scratches or abrasions, but she had no scratches, that reply itself does not render her testimony unacceptable. Failure on the part of PW-3 to notice on 5-3-92 blood stains on the garments of PW-2 also is of no consequence to decide the acceptability of deposition. The circumstances disclose that time of incident as disclosed on 6-3-92 was 6.30 p.m. on 5-3-92. Evidence was recorded in 1996 and therefore child would have been confused about the exact timing. With regard to contradiction, in consistencies in evidence, in a similar matter of child rape, the Supreme Court in the case of BHARWADA BHOGINIBHAI HIRBHAI v. STATE OF GUJARAT observed as under:
"Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:-
1. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
2. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
3. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
4. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be human tape recorder.
5. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
6. Ordinarily a witness cannot be expected to recall accurately the sequences of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
7. A witness, though wholly truthful, is liable to be overwed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses".
18. We have to keep in our mind that PW-2 was only six years old when the incident happened and her evidence was taken in 1996. The child could not be expected to keep in mind an unsavoury incident. She was at such an age, when she could not comprehend as to what was happening to her. We have to mainly rely on what she had disclosed to other adult witnesses immediately after they came to know of the incident which facts those adult witnesses had got confirmed. The evidence of PWs 1,2 and 4 having given the correct picture of the incident, this difference of time of actual incident given by PW-2 looses significance.
19. As to how evidence of a witness has to be appreciated, the Supreme Court observes as follows in STATE OF U.P. v. M.K. ANTHONY, .
"While appreciating oral evidence of a witness, the approach must be whether the evidence of the witness read as whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in evidence as a whole, and evaluate them to find out whether it is agains the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief,"
20. In SARDUL SINGH v. STATE OF HARYANA, .
"There cannot be a prosecution case with a cast iron perfection in all respects and it is obligatory for the Courts to analyse, sift and assess the evidence on record, with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting an objective and reasonable appreciation of the same, without being obsessed by an air of total suspicion of the case of the prosecution. What is to be insisted upon is not implicit proof. It has often been said that evidence of interested witnesses should be scrutinized more carefully to find out whether it has a ring of truth and if found acceptable and seems to inspire confidence, too, in the mind of the Court, the same cannot be discarded totally merely on account of certain variations or infirmities pointed or even additions and embellishments noticed, unless they are of such nature as to undermine the substratum of the evidence and found to be tainted to the core. Courts have a duty to undertake a complete and comprehensive appreciation of all vital features of the case and the entire evidence with reference to the broad and reasonable probabilities of the case also in their attempt to find our proof beyond reasonable doubt".
22. As regards the allegation of sexual assault on the child, the learned counsel for the respondent submits that the evidence of the doctor rules out the possibility of any such act. In her evidence, the lady medical officer (PW-5) has opined that according to her examination, there was no sexual intercourse as she found the hymen intact. It is therefore, clear that her opinion that there was no sexual intercourse is based only on the fact that hymen of the child was intact. Her presumption about rape appears to be based on common perception of full entry of male organ in the private part of the victim. In AMAN KUMAR v. STATE OF HARYANA, 2004 SCC (Cri) 1266. It is observed that:
"Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little. The depth of penetration is immaterial in an offence punishable Under Section 376 I.P.C. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary.
23. At page 439 of the book, Medical Jurisprudence and Toxicology by Dr. K.S. Narayana Reddy, with regard to rape on children, the following information is given.
"In young children there are few or no signs of general violence, for the child usually has no idea of what is happening, and also incapable of resisting. The hymen is deeply situated, and as the vagina is very small, it is impossible for the penetration of the adult organ to take place. Usually, the penis is placed either within the vulva or between the thighs. As such, the hymen is usually intact and there may be little redness and tenderness of the vulva.
As the penis enters the genitals, it tends to compress the labia both anteriorly and laterally, producing bruising of both the labia minora and the labia majora. The amount of bruising will depend upon the force used".
24. The evidence of the medical officer PW-5 shows the following facts noticed by the medical officer on examination of the private part of PW-2.
"There was foul smell discharge. Hymen intact. Not even possible to insert the tip of the little finger. I collected the discharge with the swab. Labia majoral swelling, edeniatous bruised, and abrasion (I noticed bruise and abrasions) at the time of the examination".
25. In the further examination-in-chief she has stated that the swelling, bruises and abrasions which she noticed on the vulva could be caused while in the act of attempting to rape. This therefore indicates sexual force used by the respondent on the child.
26. Learned counsel for the respondent submits that the report of the Scientific Officer of the F.S.L. shows that no trace of semen was detected in the samples sent. Absence of semen only indicates that there was no ejaculation. That does not nullify the sexual assault described by PW-2.
27. Two other matters dealt with by the learned Trial Judge were regarding absence of blood stains on the gunny bag and non-examination of the accused/respondent to find out whether he had any injury on his private part. As already stated, the say of the child in the cross-examination that there were blood stains on the gunny bag is of not much consequence, since though there are no blood stains on gunny bag considering the time gap between the date of incident and evidence of PW-2, some consistencies are bound to occur.
28. As regards non-examination of the respondent by a medical officer, the learned counsel for the respondent has placed reliance on the decision in the case of RAHIM BEG v. STATE OF U.P., Wherein it is observed that in a case of an alleged rape on a tender aged girl, absence of injuries on the male organ of the accused would point to his innocence. Failure of investigating officer to get the accused medically examined has been taken by the learned Trial Judge as one of factors to entertain doubt. According to the prosecution the accused was absconding and he was arrested only on 9-5-02. The version of investigating officer that the accused was absconding has been rejected by the learned Trial Judge solely on the ground that report of the police official to prove the arrest of the accused had not been placed before the Court. The file shows that the respondent had moved the High Court in Criminal Petition No. 758/1992 for anticipatory bail and was granted on 28-4-92 interim anticipatory bail. Therefore when he was not available for arrest until then, the investigating officer could not get him examined by a medical officer to find out whether he had any injury on his private part. The incident had taken place on 5-3-92. Therefore, the question of medically examining him on 9-5-92 does not arise since there would not be any traces of the incident on his private part after two months. Since he was a married man and had two children, there was no need to get him medically examined to ascertain his capacity to sexually perform.
29. As already discussed, the doubts entertained by the learned Trial Judge were based on minor discrepancies and inconsistencies. With regard to doubts entertained by Courts, the observations of the Supreme Court in the case of STATE OF V.P. v. KRISHNA GOPAL, are as under:
"A person has, no doubt, a profound right not to he convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof is an exercise particular to each case. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substntial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense.
The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constite proof beyond reasonable doubt. There is an unmistakable subjective element in the evalution of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust commonsense and, ultimately, on the trained intutions of the judge. While the protection given by the criminal process to the accused persons is not be eroded, at the same time, uniformed legitimisation of trivalities would make a mockery of administration of criminal justice".
30. The following observations of the Supreme Court in the case of SHIVAJl SAHEBRAO BOBADE AND ANR. v. STATE OF MAHARASHTRA, need to be kept in mind by all Trial Courts while appreciating evidence in criminal trials.
"Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs tro: the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lost credibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public deamdn for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent..." In short our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."
31. The last point urged by the learned counsel for the respondent is regarding malice or ill-will. According to him, PW-4 had ill-will with the accused on account of which a false case has been foisted against the respondent. It is also contended that evidence of PW-5 lady medical officer is not reliable since he is a corrupt medical officer.
32. In cases, where the accused claims that a false case has been foisted against him, often suggestions are made to some of the prosecution witnesses alleging malice on their part of ill-will against the accused. Suggestion may be also with regard to the ill-will between the accused and the victim or the complainant in whom the witness may be interested. When there are materials to support such allegation, eviedence of such witness has to be either considered with caution or may be rejected as tainted depending on the acceptability of such material. But, where there are no materials to support such suggestion, evidence of a witness cannot be rejected only on suspicion. It is only if the malice or ill-will suggested is so strong as to probabalise the possibility of the victim or the complainant hoisting a false case, that, suggestion assumes importance and the deposition of the witness has to be carefully scrutinised to decide about the acceptability or otherwise of the evidence of such witness.
33. With, regard to malice or ill-will, mere suggestion without any supporting material will be insufficient to discard the testimony of PW-4. PW-4 appears to have been deserted by her husband and suggestion made on behalf of the respondent that in the dispute between PW-4 and her husband, the accused had taken a leading part presumably in favour of PW-4s husband and that PW-4 had malice towards the respondent had been denied by the PW4. Even otherwise also, there is no material to presume that the dispute generated such resentment on the part of PW-4 towards the respondent that she planned to implicate the respondent by inducing PW-2 to make a false allegation. Under these circumstances, the contention of the respondent in this regard cannot be accepted.
34. Evidence of lady medical officer (PW-5) has been assailed on the ground that she has been trapped twice by Lokayukta and has been prosecuted in two prevention of corruption cases. In support of this contention copies of charge sheets have been produced. This contention cannot be accepted on two grounds. The first one is that the incident is of the year 1992 and the alleged traps were in 1995 and 1996. The fate of prosecution is not known. Secondly, this allegation was not put to PW-5, when she was examined. Even otherwise, (his additional contention was taken at the time of recording 313 statement. Even if the testimony of PW-5 is not taken into consideration in view of accused's contention, the evidence of medical officer PW-6 and entries made in Ex.P2 and P3 proved the injury and confirmed sexual assault on PW-2.
35. As already stated, the evidence of PWs 1, 3 and 4 showed that the respondent had assaulted sexually PW-2. There were no injuries on the knee or hands of PW-2. Therefore, there is no possibility of PW-2 sustaining injury in her private part due to a fall or in an accident. The injuries indicate only a sexual assault and there is no reason to reject the version of PW-2 who disclosed the incident to PW-4 and it was brought to the notice of police by PWs 1, 2 and 4 when pain in her private part came to the knowledge of PW-4.
36. On reasseessment of evidence, we find that the reasoning adopted by the learned Sessions Judge was not proper. He has magnified inconsistencies; and the doubts entertained by him were not reasonable.
37. We have tested the evidence of PWs 1 to 4 in the light of the principles enunciated by the Supreme Court in many decisions referred to above. The event as disclosed by PW-2 indicating sexual assault on her by the respondent has not been affected by any of the matters as referred by the learned Sessions Judge. Her evidence inspires confidence. The evidence of her parents (PWs 1 and 3) and that of her aunt (PW-4) corroborate the incident.
38. Taking into consideration the implication that such incident may have on the life of PW-2, it is inconceivable that PW-4 would tutor her against the respondent and PWs 1 and 3 would accept such invented story. If PW-2 had sustained such an injury accidentally, it is inconceivable that she, a child of six years imagined an event of sexual assault. The parents of PW-2 would not have gone to the police if the injury had been accidental; for they would be conscious of traumatic effect on psychology of the child and disastrous consequences likely to ensue when the child grows up. We therefore decline to accept the defence theory that the complaint was in furtherance of ill-will between PW-4 and the respondent and that lady medical officer was not honest in the present case.
39. The medical evidence indicates the attempt on the part of the respondent to commit rape and consequently we had that the respondent is guilty of an offence of attempting to commit rape punishable Under Section 376 r/w 511 of the I.P.C.
40. As regards the other offence of criminal intimidation, the alleged threat is not such as to presume any offence Under Section 506 of the I.P.C. Therefore, we do not wish to interfere in the order of acquittal for that offence.
41. In the result and for the reasons stated above, we allow the appeal and set aside the acquittal of the respondent and convict him for an offence punishable Under Section 376 r/w 511 of I.P.C.
42. Now coming to the aspect of sentencing, learned counsel for the respondent prays for time to keep the respondent present. List the appeal during next week to hear regarding sentence.
Order Regarding Sentence Heard both the learned Additional State Public Prosecutor and the learned counsel for the respondent regarding sentence. Whereas the plea of the prosecution is for a stringent punishment of not less than five years, the prayer of the learned counsel for the respondent is for a lenient view, taking into consideration the pathetic health condition of the respondent at present.
On the last occasion, the respondent had appeared with the plea that he was suffering from tuberculosis and had been affected by paralysis. We had noticed his condition and had noted his disability to move without the assistance of another person. Therefore by order dated 11-3-2005 we had directed that he should appear before the Superintendent of Victoria Hospital, Bangalore, for medical checkup. In furtherance of the same, the Medical Board has sent a report which shows that he is suffering from pulmonary tuberculosis, which though has considerably healed, has weakened him. He is also suffering from paralysis and in the opinion of the Medical Board, the disability is to the extent of 65% in relation to his left upper limb and left lower limb. The certificate shows that this disability is not likely to improve.
Though on facts of the case, we are of the opinion that maximum sentence of five years imprisonment and fine may be imposed on the respondent, in view of his poor health condition which requires constant attendance by an attendant, we feel that no purpose will be served in sending him to prison; for that would require the prison authorities to keep him in prison hospital and look after him. The nature itself has punished him sufficiently requiring no further punishment by the Court, except imposing fine, which we fix at Rs. 10,000/-. A verification of the records shows that the respondent was in custody for about twenty-three days.
For the abovesaid reasons, we sentence the respondent to simple imprisonment for the period equivalent to the period of detention he has undergone, and to pay a fine of Rs. 10,000/- (Rupees Ten Thousand only) in default to undergo simple imprisonment for six months. If the fine amount is realised, an amount of Rs. 8,000/- shall be paid to the victim, i.e., P.W.2