Dinesh Debbarma VsState of Tripura

S.C. Das, J.—This criminal appeal u/s 374 of Cr.P.C. is directed against the judgment and order of conviction and sentence, dated 09.06.2009 passed by learned Additional Sessions Judge(First Track Court), Kailashahar, North Tripura, incase No. S.T. 65 (NT/K) of 2008. Learned Additional Sessions Judge found the accused appellant guilty of coordinating offence punishable u/s 376(1) of IPC and sentenced him to suffer RI for ten years and to pay a fine of Rs. 3,000/- (rupees three thousand), in default of payment of fine, to suffer S.I. for two months. Heard learned counsel, Mr. R. Datta for the petitioner and learned Addl. P.P., Mr. R.C. Debnath for the State respondent.

Prosecution case, so far brought on record, is that on 06.07.2007, a Friday, at noon time, Kumari Sabita Das (P.W. 1) (actual name kept withheld), aged about 14 (fourteen) years, a resident of Gakulnagar Colony under Manu PS of North Tripura District, daughter of P.Ws. 2 and 3, was instructed by her father (P.W. 3) to bring some iron nails(in Bengali called as ''parek'') on purchase from Manubazar for some carpentry work in their house, and accordingly Sabita (hereinafter mentioned as ''victim prosecutrix'') went to Manubazar market, purchased the iron nails, and thereafter was returning home. On way to home, at about 1.00/1.30 pm, when she reached Baliapara, accused appellant, Dinesh Debbarma, a resident of village-Manu Block Tilla, caught her and forcefully dragged her away from the road inside the jungle in a lunga land, kept her mouth pressed, and thereafter undressed her and forcefully committed rape on her. After committing rape the accused threatened her and then left the place. Thereafter, she came out of the jungle and on the road and got Subhash Das (P.W. 5) of her village and narrated the incident to him and sought his help for going to her home. At that time two other tribal persons were passing through the road and Subhash Das instructed her to go home with those two tribal persons, and accordingly she returned home with them. After returning home she narrated the incident to her parents (P.Ws. 2 and 3) and they first took her to the party office at Manu and some people of that party office advised them to lodge a complaint at PS, and accordingly they went to Manu PS and Sabita narrated the incident to the O/C. of the PS, who recorded the same as F.I.R., and accordingly registered Manu PS Case No. 29 of 2007 u/s 376 of IPC and SI, Kamal Kar Chowdhury (P.W. 7) was entrusted with the charge of investigation, who on completion of investigation, submitted charge sheet against the accused for commission of offence punishable u/s 376(1) of IPC.

2.1. In course of trial, learned Additional Sessions Judge on 03.01.2009 framed charge against the accused u/s 376(1) of IPC to which the accused pleaded not guilty and claimed to be tried.

2.2. Prosecution examined eight witnesses including the victim prosecutrix as P.W. 1, her mother as P.W. 2 and father as P.W. 3. P.W. 4 is the aunt of the prosecutrix. P.W. 5, an independent witness, who was first reported about the occurrence immediately after the prosecutrix came out of the jungle, i.e. lunga land, where she was alleged to have sexually molested. P.W. 6 is a woman constable of police, who handed over the vaginal swab of the victim prosecutrix and the testis swab of the accused to the I.O. after she was handed over of the same by the medical officers, who conducted medical examination of the victim prosecutrix and the accused appellant. As already stated, P.W. 7 is the I.O. of the case and P.W. 8 is one of the medical officers, who conducted medical examination of the victim prosecutrix and the accused appellant.

2.3. Prosecution also proved the following documents and materials:

F.I.R. has been proved as Exbt. 6 and signature of the prosecutrix in the F.I.R. has been proved as Exbt. 1. Exbt. 8 is the seizure list of wearing apparels of the victim prosecutrix, which is proved by P.Ws. 1, 2 and 3 and the seized wearing apparels marked as Exbt. M.O. 1 series. The statement of the prosecutrix recorded u/s 164(5) of Cr.P.C. and signature of the prosecutrix in the statement are marked as Exbt. 3. Exbt. 7 is the seizure list of vaginal swab of the prosecutrix and the testis swab of the accused. Exbts. 9 and 10 are the hand sketch map and index of the place of occurrence prepared by the I.O. Exbt. 11 is the medical examination report of the victim prosecutrix and Exbt. 12 is the medical examination report of accused appellant, Dinesh Debbarma.

2.4. Defence cross-examined all the prosecution witnesses. After closure of the prosecution evidence the accused was examined u/s 313 of Cr.P.C. and in his turn he adduced no defence evidence. The case of the accused appellant is nothing but mere denial of the prosecution case.

2.5. Learned Additional Sessions Judge on conclusion of trial found the accused appellant guilty of the charge and, subsequently convicted and sentenced him as stated hereinbefore and hence, this appeal.

Learned counsel, Mr. Datta appearing for the appellant has submitted that the accused could not engage a lawyer of his own and an advocate as amicus curiae was engaged on his behalf, who conducted the case casually and also cross-examined the witnesses very superficially. He has further contended that the material witnesses, i.e. two tribal persons, who accompanied the prosecutrix to her house, have not been examined. The shopkeeper from which the prosecutrix alleged to have purchased the iron nails has also not been examined. Except P.W. 5 none else found the prosecutrix to go to the market as alleged by the prosecution. So an adverse inference may be drawn against the prosecution for non-examination of those material witnesses.

3.1. The next argument advanced by learned counsel, Mr. Datta is that the allegation made by the prosecutrix has been shattered and fallen false by the medical evidence of P.W. 8. Exbt. 11 clearly indicates that there was no sign of rape as alleged.

3.2. Mr. Datta, learned counsel has further drawn our attention to the vaginal swab report and testis swab report submitted by the State Forensic Science Laboratory (SFSL), which completely negatived the allegation of rape.

3.3. It is also contended by learned counsel, Mr. Datta that the prosecutrix is a virgin and where her oral evidence is not supported by the medical evidence it is dangerous to punish the accused for rape only relying on her oral evidence.

Learned counsel, therefore, prayed for an order of acquittal.

Learned Addl. P.P., Mr. Debnath, on the other hand has contended that there is no legal requirement of corroboration of the evidence of the prosecutrix. The evidence of the prosecutrix is to be treated at par as an injured witness and if her evidence is not shaken in any manner the Court can rely upon it and punish the accused. It has been further contended by learned Addl. P.P. that except suggestion there is nothing in the defence case that the accused has been falsely implicated by the prosecutrix, a minor girl. Since her statement inspires all confidence, the medical evidence may be ignored and may not be attached with undue importance. Sole testimony of the prosecutrix may be relied on for the purpose of conviction of rape. The prosecutrix since has been corroborated by her parents and P.W. 5, an independent witness, the trial Court rightly appreciated the evidence and learned Addl. P.P., therefore prayed for dismissal of the appeal.

Let us first have a glimpse to the evidence on record.

5.1. In her deposition P.W. 1, the prosecutrix has stated that she lodged the F.I.R. before the police officer of Manu PS. On a day about one and half years ago at noon time her father sent her to Manubazar for bringing iron nails (parek) for the purpose of repairing of their house by carpenter, and accordingly she went to Manubazar and thereafter while she was on way back to home, on the way at Baliapara she met accused Dinesh Debbarma, who suddenly caught her and forcefully took her to the nearby lunga land inside the jungle and thereafter undressed her forcefully and denying her request raped her. Blood came out from her private parts after the rape. Thereafter, the accused left the place. She then dressed herself and came on the road and met Subhash Das (P.W. 5) of their village and requested him to take her to her house. She told the occurrence of rape to P.W. 5. At that time two tribal persons were also proceeding through the said road and P.W. 5 told her to go to home with those two persons, who were the residents of Chichingcharra. On reaching home she told her parents about the occurrence of rape committed by accused Dinesh Debbarma. Her parents took her to Manu party office where some persons advised them to lodge F.I.R. at P.S. Thereafter, they went to Manu PS and she narrated the occurrence, which darogababu recorded, read over to her and she put her signature. She duly proved her signature in the F.I.R., marked as Exbt. 1. On that night darogababu took her to Manu Primary Health Centre (PHC) where the medical officer examined her. As directed by darogababu on the next morning her parents took her again to Manu PS and darogababu seized her wearing apparels which she was wearing at the time of occurrence, marked as Exbt. M.O. 1 series. She also put her signature in the seizure list of wearing apparels, marked as Exbt. 2. On that day, darogababu produced her before the Court at Kailashahar and she gave her statement to the Court, which was duly recorded by the Judicial Magistrate, First Class, Kailashahar and she put her signature in the statement, marked as Exbt. 3. She identified the accused appellant in the dock.

In her cross-examination she stated that after reaching the house she washed her pant and inner and thereafter on that day with the same wearing apparels she went to the party office and then to Manu PS. She further stated that she told darogababu (police officer) that she washed her inner and pant in the house on that day at the time of writing of her complaint. Her attention was drawn to the F.I.R. and it has been recorded that no such statement was made in the F.I.R. She further stated that she did not tell the doctor that she washed her inner and pant. She received mark of injury on her back while the accused was committing rape on her in the lunga land. She also stated that the accused had bitten her breasts and mouth but no visible marks were available. She further stated that the accused penetrated his private part into her private parts while committing rape on her. The accused discharged his semen and a little bit of semen was dropped in her wearing apparels and she washed her private parts and wearing apparels on that day. She denied the suggestion that the accused did not commit rape on her on that day as stated by her and that the accused did not discharge any semen in her private parts and wearing apparels. She also denied the suggestion that there was enmity between her father and the accused and so she lodged a false complaint against the accused at the instance of her father.

5.2. P.Ws. 2 and 3, parents of the prosecutrix corroborated the incident what was stated by the prosecutrix and there is nothing in the cross-examination except a suggestion that because of enmity the accused has been falsely entangled in the case.

5.3. P.W. 4 is the maternal aunt of the prosecutrix and she stated that at Manu PS she was told by P.W. 2 about the occurrence.

5.4. P.W. 5 is an independent witness and in his deposition he stated that he was a resident of Jarulchara village at the relevant point of time and he knew the prosecutrix and her parents. On a day about one and half years ago at about 2.00 p.m. while he was on way to his house with some firewood, at Baliapara he met the prosecutrix and she told him that one tribal boy committed rape on her by taking her into the lunga nearby the road and requested him to take her to her house. At that time two tribal persons were passing through the road and he told her to go home with them. The prosecutrix also told him the name of the person who committed rape on her as Dinesh Debbarma. The accused was known to him and he identified the accused.

In cross-examination he stated there were persons named as Dinesh Debbarma in his locality. He also stated that he could not say whether accused Dinesh Debbarma (present in the dock) committed rape on the victim or not. He could not say the name of the two tribal persons with whom the prosecutrix was sent to her house and that he knew them by face. He denied the suggestion that the prosecutrix did not tell him about the commission of rape by accused Dinesh and that he deposed falsely against the accused.

Let us now examine the evidence of P.W. 8, the medical officer who examined the prosecutrix as well as the accused on the night of the date of occurrence itself.

6.1. In his deposition P.W. 8 stated that on 06.07.2007, he and Dr. Souvik Debbarma of Manu hospital examined the prosecutrix on her production by the police officer of Manu PS after taking consent of her parents. On examination they found no injury on the body of the victim. On examination of her private parts they found tenderness on the fourchette and posterior vaginal wall. Cervix and os were found healthy and tendered. In their opinion, whether the victim was raped or not, might be ascertained after examination of the sample of vaginal swab and other circumstantial evidence. They opined that the victim was capable of having sexual intercourse. Medical examination report in three pages has been marked as Exbt. 11.

P.W. 8 has further stated that he and Dr. Souvik Debbarma also examined accused Dinesh Debbarma, who was produced by police at the same time and on examination they found Dinesh Debbarma was potent and able to perform sexual intercourse. The report submitted by the doctors on examination of the accused has been marked as Exbt. 12.

In cross-examination he stated that the wearing apparels of the victim at the time of her examination were not in torn condition. In the report it has been mentioned that the clothes dressed by her were not washed after the incident of rape. No mark of blood, seminal stains or earth was found on her wearing apparels. There was minimum possibility of receiving tenderness in the private parts of a girl if she fell down on the ground while running. They found no semen within the private parts of the victim. Hymen ruptured when private parts of the rapist entered forcefully inside the prate parts of the victim. He denied the suggestion that the medical report was not prepared properly after thorough examination of the victim.

6.2. Details of the finding recorded by the medical officers in Exbts. 11 and 12, on examination of the victim prosecutrix and the accused, have not been recorded in the deposition of P.W. 8. It was the duty of the trial Judge to record the detailed finding of the medical officer in his deposition for a fair and proper appreciation. Recording of the gist of the medical report and the opinion thereof are not sufficient in such a case of rape. Trial Judges should not take such an easy course of ignoring the other findings of the medical report.

6.3. We have meticulously gone through the medical report of the victim prosecutrix. It is found that the victim prosecutrix was examined on the date of occurrence, i.e. on 06.07.2007 itself at night time (11.55 p.m.) in presence of her parents and other witnesses by two medical officers. At the time of examination, a history of rape on that day at about 1.30 p.m. was given by the victim and the investigating officer. On external examination they found that the clothes which she was wearing were alright. The clothes were not torn. She was wearing an orange colour T-shirt and a read colour school shirt. Inside she was wearing a netted inner shirt and a violet colour panty. The clothes were not washed after the incident of rape. There were no stains of blood, seminal stain or earth.

6.4. Doctors opined that on general examination, the victim prosecutrix was found normal, cooperative, well oriented to time, place and person and was not under any mental pressure. After removing of her clothes in presence of the medical board no external injury (abrasion or bruise) was seen. No bite mark and scratch mark was seen in the neck, chest, arms, abdomen, legs and thigh and in the inner side of the thigh and breasts. The victim complained mild pain in the lower abdomen.

6.5. Samples of vaginal swab and blood for blood grouping were also collected, properly sealed and handed over to the police personal. Per vaginal examination:

No injury of abrasion was seen in the inner pubis.

No injury seen in both the labia majora and labia minora. No foreign articles seen in the private parts.

No bruise or laceration seen in the vagina.

Hyman was not torn.

Vaginal swab taken 2 (two) number which was kept in the tube sealed, properly labeled for further investigation.

On vaginal examination:

Two fingers can be inserted.

On insertion of two fingers there was slight tenderness, mild tenderness in the fourchette and posterior wall of vagina. Os and cervix healthy, mild tender.

Uterus nulliparous. No bleeding was seen.

They opined that after overall examination of the victim prosecutrix she was found capable of having sexual intercourse and whether she was raped or not could be declared after thorough investigation and after examination of the samples handed over to the police personal and also in the evidence of the circumstantial evidence.

6.6. In Exbt. 12, i.e. the examination report of the accused also, the medical officers submitted a detailed report stating that there was no injury found in the person and private parts of the accused and no seminal stains also found in his wearing apparels. No public hair of female was found. On examination they found that he was capable of having sexual intercourse. Testis swab was collected in one vial and in another vial blood was collected and handed over to the police for chemical examination.

6.7. The vaginal swab of the prosecutrix, testis swab of the accused and the wearing apparels of the prosecutrix were examined in the SFSL and the report was also placed on record but that report has not been exhibited at the time of trial though it was already on record. In the argument of defence as well as in the judgment of the trial court the report was referred. We have a glimpse to the report submitted by the SFSL and observed that no spermatozoa was found in the vaginal swab of the victim prosecutrix as well as in her wearing apparels. No seminal stains or spermatozoa also found in the testis swab of the accused.

The prosecutrix is a virgin aged about fourteen years. The virginity and the age of the prosecutrix have not been disputed in cross-examination. The F.I.R. was lodged on the very date of the incident at about 2105 hrs., i.e. within 6/7 hours of the alleged occurrence by the prosecutrix herself narrating the occurrence. The accused was also arrested on the same night after the F.I.R. was lodged and both the prosecutrix as well as the accused were produced before the medical officer at Manu PHC for medical examination. The prosecutrix made a consistent statement in the F.I.R. In her statement recorded u/s 164 of Cr.P.C. (on the following day of the date of occurrence) and in her deposition she stated that at noon time about 1.00/1.30 p.m. while she was on way back to her house from Manubazar after purchasing iron nails, the accused caught her on the road at Baliapara, dragged her in the nearby lunga land inside the jungle and forcefully committed rape on her. In her statement recorded u/s 164 of Cr.P.C. the prosecutrix stated that she was raped by the accused twice. Her allegation made in the F.I.R. that she narrated the occurrence to P.W. 5 on her return to the road from the place of occurrence has been corroborated by P.W. 5. Evidence of P.W. 5 has not been shaken. A mere suggestion was given at the time of cross-examination of the prosecutrix and her parents that because of enmity the accused has been entangled in a false case. Neither in the cross-examination of the witnesses nor in his statement at the time of examination u/s 313 of Cr.P.C. the accused put forward any story as to what was the enmity between him and the parents of the prosecutrix for which the false allegation was made against him. A mere suggestion not supported by any specific statement made by the accused person and not supported by any evidence on record would be of no evidentiary value. No importance can be attached to such suggestion made during cross-examination.

It is settled law that if the evidence of the victim prosecutrix is not shaken in cross-examination or otherwise and if such evidence inspires confidence, it is sufficient to record a conviction. A rape victim is not an accomplice. She should be treated at par as an injured witness of an occurrence. There is no rule of law that the victim''s evidence is to be corroborated by other items of evidence. But it is a rule of prudence that the courts in a given circumstance of a case may look for some corroboration here and there.

In the present case, since the victim prosecutrix is a minor girl aged about fourteen years and is a virgin, in case of forceful penetration by a grownup man there might be some injury and definite sign of rape in her person including her private parts. A careful reading of the medical evidence does not support the prosecution case of rape as alleged by the prosecutrix. No mark of injury was found anywhere in her body or private parts externally. Her hymen was not torn. No injury or abrasion was found in the inner pubis. No injury was found in both the labia majora and labia minora. No foreign article was found in the private parts. No bruise or laceration was seen in the vagina. All these findings of the medical officers are against the allegation of rape.

In Modi''s Medical Jurisprudence (21st Edition) the author has observed--

In nubile virgins the hymen, as a result of complete sexual intercourse, is usually lacerated, having one or more radiate tears, (more so in posterior half) the edges of which are red, swollen and painful, and bleed on touching, if examined within a day or two after the act. These tears heal with five or six days, and after eight to ten days become shrunken and look like small tags of tissue. Frequent sexual intercourse and parturition completely destroy the hymen, which is represented by several small tags of tissue, which are called carunculae hymenealis or myrtiformes.

The prosecutrix made a categorical statement that the accused committed rape on her. In her cross-examination she clearly stated that the accused penetrated his male organ into her female organ and there was discharge of semen and a little quantity of semen also fell in her private parts and in her undergarment. She stated that there was bleeding in her vagina after the rape. Had there was bleeding and had her statement was correct, the doctors would definitely found the source of bleeding at the time of examination and therefore, it appears, she exaggerated the fact since no such finding is in the medical evidence. Neither in the F.I.R., nor in her statement recorded u/s 164 of Cr.P.C. the prosecutrix stated that she washed her private parts and her undergarment but before the court she made a statement in that she washed her undergarment and her private parts before going to the police station. But she stated that she was wearing the same undergarment when went to the police station and hospital which she had been wearing at the time of occurrence. The medical officer in the report clearly mentioned that the clothes were not washed after the incident of rape. The doctor''s observation, therefore, makes a doubt on the authenticity of the victim''s statement that the wearing apparels (undergarment) were washed after the incident. The chemical examination report submitted by the SFSL further negatived the statement of the prosecutrix that she was raped. Had she been raped, even if it is believed that she washed her private parts, spermatozoa likely to be present in her vagina swab. The medical examination and chemical examination report therefore does not support the case of the prosecutrix that she was raped by the accused as alleged.

The prosecutrix is a minor girl of fourteen years, a virgin. Her statement that she was dragged by the accused in the lunga land inside the jungle and, thereafter, the accused forcefully undressed her, etc., has not been shaken. It is rather corroborated by the evidence of P.W. 5, who is an independent witness. The victim has no reason to come out with a false case of alleged rape against the accused who is neither her neighbour nor of the same community. As already discussed hereinbefore, except suggestion there is nothing in the evidence on record that the parents of the prosecutrix planted her with a false allegation of rape taking the risk of the future of their virgin minor daughter.

An unmarried girl in our society would be extremely reluctant even to admit that any incident which is likely to be inflicted on her chastity had been occurred, she, being conscious of the danger of being ostracized by the society or being looked down by the society. It is also extremely rare that the parents will plant their unmarried daughter with such an allegation of rape against a person with whom even there is no enmity or ill relation

The evidence on record makes it abundantly clear that the accused dragged the victim prosecutrix from the road to the lunga land in the jungle, undressed her and thereafter made attempt to commit rape, penetrate his penis inside her vagina The victim prosecutrix being an unmarried virgin might have thought that the accused already committed rape on her. It might happen that the accused ejaculated semen over the private parts of the victim and she washed it. The total evidence of the prosecutrix and the prosecution case, as a whole, cannot be thrown away on the ground that there was no positive sign of rape. The presumption that the accused might have made an attempt to commit rape has a support in the medical report where the medical officers opined that they inserted two fingers and on insertion of fingers slight tenderness and mild tenderness on the fourchette and posterior wall of vagina were found which supposes that the accused might rub his penis in the posterior wall of the vagina and might discharge semen thereafter and there was no visible penetration as alleged.

Learned counsel, Mr. Datta in course of his argument has referred the cases of

Md. Jamiruddin Ahmed Vs. State of Assam reported in : 2008 Cri. L.J. 586

and

Bibhishan Vs. State of Maharashtra reported in : 2008 Cri. L.J. 721

and submitted that since the medical evidence did not support the prosecution case as alleged by the prosecutrix the accused is entitled to get an order of acquittal.

14.1. In the case of Md. Jamiruddin Ahmed (supra) we find that it was a case of rape on a girl aged about seven years and no injury was found on her person. The circumstance under which the allegation of rape was made was not at all believable in the given facts of the case and the Court observed that the prosecution case was doubtful as a whole and, hence, the accused was acquitted.

14.2. In the case of Bibhishan (supra), in paras. 6 and 7 of the judgment, the apex Court observed thus--

We have gone through the judgment of both the Courts below and also perused the necessary record. As per the evidence of the doctor, there was no injury on the body of the prosecutrix Anita. There was no sign of semen on the private part of the body. Neither her clothes were torn nor there was any presence of hair of the accused on the private part of the prosecutrix. The doctor after examining the prosecutrix deposed that the girl was habituated to sexual intercourse. In view of this evidence, we are of the opinion that the High Court as well as the trial Court has not correctly appreciated the evidence and has wrongly convicted the accused-appellant. The accused who has been charged u/s 376 read with Section 511 , IPC is entitled to benefit of doubt.

In the facts and circumstances of the case, we give the benefit of doubt to the appellant-accused as the charges framed against him are not proved beyond reasonable doubt.

The fact of that reported case and the facts and circumstances of the present case are quite distinguishable and cannot be placed at par. In that reported case, the doctor after examining the prosecutrix found her habitual to sexual intercourse. But in the case at hand, the prosecutrix is a virgin and a minor girl having no animosity with the accused in any manner.

The evidence of the prosecutrix since not completely shaken in cross-examination or otherwise, we may apply the principle, "separating the grains from the chaff" and depending on the grains may arrive at a reasonable conclusion about the offence alleged.

The Supreme Court in the case of

Ugar Ahir Vs. State of Bihar reported in : AIR 1965 SC 277

has observed that the maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the Court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.

Relying on Ugar Ahir (supra) the Supreme Court in a latest decision in the case of

Ranjit Singh Vs. State of M.P. reported in (2011) 4 SCC 336 in paras. 15 to 21

had held thus:

Falsus in Uno, Falsus in Omnibus:

In

Balaka Singh v. State of Punjab (1975) 4 SCC 511 : 1975 SCC (Cri) 601

, this Court observed as under: (SCC p. 517, para. 8)

8..........It is true that, as laid down by this Court in

Zwinglee Ariel v. State of Madhya Pradesh : AIR 1954 SC 15 : 1954 Cri. L.J. 230

and other cases which have followed that case, the court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply.

In

Ugar Ahir and Ors. v. State of Bihar : AIR 1965 SC 277 (1965) 1 Cri. L.J. 256

this Court held as under: (AIR p. 279, para. 6)

The maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.

A similar view was taken in

Nathu Singh Yadav v. State of M.R. (2002) 10 SCC 366 : 2003 SCC (Cri.) 1461

.

The maxim has been explained by this Court in

Jakki v. State (2007) 9 SCC 589 (2000 3 SCC (Cri.) 574

, observing: (SCC p. 591, para. 8)

51.....The maxim falsus in uno, falsus in omnibus......has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is, that in such cases testimony may be disregarded, and not that it must be (discarded). The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence".

It is well settled in law that the maxim falsus in uno, falsus in omnibus (false in one false in all) does not apply in criminal cases in India, as a witness may be partly truthful and partly false in the evidence he gives to the Court. (Vide

Kulwinder Singh v. State of Punjab (2007) 10 SCC 455 (2008) 1 SCC (Cri) 51

,

Ganesh v. State of Karnataka (2008) 17 SCC 152 (2010) 4 SCC (Cri) 474

,

Jayaseelan v. State of T.N. (2009) 12 SCC 275 (2010) 1 SCC (Cri) 224

,

Mani v. State (2009) 12 SCC 288 (2010) 1 SCC (Cri) 563

and

Balraje v. State of Maharashtra (2010) 6 SCC 673 (2010) 3 SCC (Cri) 211

.

This position of law has been reiterated by this Court in

Prem Singh v. State of Haryana (2009) 14 SCC 494 (2010) 1 SCC (Cri) 1423

wherein the Court clearly held as under:(SCC p. 498, para. 14)

It is now a well-settled principle of law that the doctrine ''falsus in uno, falsus in omnibus'' has no application in India.

In view of the above, the law can be summarised to the effect that the aforesaid legal maxim is not applicable in India and the court has to assess to what extent the deposition of a witness can be relied upon. The court has to separate the falsehood from the truth and it is only in exceptional circumstances when it is not possible to separate the grain from the chaff because they are inextricably mixed up, that the whole evidence of such a witness can be discarded.

The defence argument regarding non-examination of two tribal persons who accompanied the prosecutrix to the house is of no consequence at all to draw an adverse inference. We find no reason at all to attach any importance to this argument advanced by learned counsel, Mr. Datta.

The medical evidence did not support the prosecution case of rape but on scrutiny of the evidence on record, especially, the evidence of the prosecutrix, which is supported by the evidence of P.W. 5, in the given facts and circumstances of the case we may safely arrive at a conclusion that the accused attempted to commit rape by rubbing his penis on the vagina of the prosecutrix though there was no penetration. We may gainfully refer here the decision of the apex Court in the case of

Arjun Singh Vs. State of Himachal Pradesh reported in (2009) 4 SCC 18

. In that reported case the version of the prosecutrix about rape was not supported by the medical evidence and in the given facts and circumstances of the case a punishment u/s 376 read with Section 511 of IPC for attempt to commit rape was recorded and was upheld by the Apex Court.

After a meticulous scrutiny of the evidence on record and having considered the facts and circumstances of the case, we are of the considered opinion that the charge of rape u/s 376(1) has not been established, and accordingly the accused is acquitted from that charge but a charge of attempt to commit rape u/s 376 read with Section 511 of IPC has been established, and accordingly the accused appellant is convicted u/s 376 read with Section 511 of IPC for attempt to commit rape and we sentence him to suffer RI for five years and to pay a fine of Rs. 5,000/- (rupees five thousand), in default, to suffer further S.I. for six months.

With the above modification of conviction and sentence the appeal is disposed of. Send back the L.C. record along with a copy of the judgment.