State Of Gujarat vs Vs Vashram Prabhatbhai Rabari

Divyesh a. Joshi, J

By way of present appeal under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC” for short), the appellant – State of Gujarat has challenged the judgment and order of acquittal dated 28.10.1994 passed by the learned Additional Sessions Judge, Ahmedabad (Rural), Mirzapur, Ahmedabad in Sessions Case No.45/1994, whereby the respondent – accused has been acquitted by the learned Judge for the offences under Sections 376 and 506(2) of the Indian Penal Code (hereinafter referred to as “IPC” for short).

The brief facts leading to filing of the present appeal are as under,

2.1 On 13.10.1993 in the evening, when the complainant was doing agriculture activity in the farm, she heard the screams of the victim and, hence, he proceeded towards the place of occurrence and saw the respondent – accused fleeing away towards village and also saw that the victim girl was crying and blood stains were there on the ghaghari of the victim girl and upon making inquiry, she learnt that the respondent – accused committed rape upon her and, hence, as the Sarpanch of the village was not available on that day, he was contacted on the next day and, thereafter, FIR has been lodged against the respondent – accused.

2.2 After registration of the FIR, the investigation was carried out and on conclusion of investigation, the chargesheet came to be filed before the court of the concerned learned Magistrate.

2.3. Since the case registered against the respondent - accused was exclusively triable by the Court of Sessions, the learned Judicial Magistrate after making inquiry about the suppliance of copies of papers, free of cost to the accused as provided under Section 208 of the Code of Criminal Procedure and upon satisfaction that the accused have engaged own Advocate for defence committed the case to the Court of Session Judge, Ahmedabad (Rural) under Section 209 of the Code of Criminal Procedure, which came to be registered as Session Case No.45 of 1994.

2.4 On committal, the case was transferred and placed for trial before the Learned Sessions Judge, Ahmedabad (Rural), who had initially framed charge against the accused vide Exh.5 for the alleged offences. The charge was read over and explained to them. Plea of accused came to be recorded, wherein he pleaded not guilty to the charge and claimed to be tried.

2.5 Thereafter in order to bring home the charges leveled against the respondent – accused, the prosecution has examined 15 prosecution witnesses and also produced documentary evidence, details of which are mentioned in the impugned order.

2.6 After recording of the evidence of the prosecution witnesses was over, the learned Sessions Court explained to the respondent - accused the circumstances appearing against him in the evidence of the prosecution witnesses and recorded his further statement under Section 313 of the Criminal Procedure Code. In his further statement, he denied the case of the prosecution in entirety. According to him, he has been roped in a false case.

2.7 At the end of trial, the learned Sessions Judge acquitted the respondent – accused by impugned judgment and order for the charges leveled against him.

Heard APP Mr. Hardik Mehta for the appellant – State of Gujarat and learned advocate, Mr. Karan Vyas for the respondent – accused.

Learned APP Mr. Hardik Mehta submitted that impugned judgment and order of acquittal passed by the learned Judge is contrary to law and against the evidence on record. Learned APP submitted that it is settled proposition of law that in criminal proceeding, the prosecution has to prove its case beyond reasonable shadow of doubt. Learned APP submitted that it is the specific case of the prosecution that on 12.10.1993 around about 03:30 p.m., the respondent – accused has committed rape upon the victim girl, who was aged about 10 years at the time of commission of crime and to prove the guilt against the respondent – accused, the prosecution has examined total 19 witnesses and all the witnesses have supported the case of the prosecution and cumulative effect of the evidence available on record clearly goes on to show that the respondent – accused has committed crime. Learned APP submitted that in short, the prosecution has successfully proved the charges leveled against the respondent – accused, however at the time of considering and appreciating the evidence available on record, the learned Judge has given undue weightage to non-important material and evidence, whereas not given weightage to important material and evidence and thereby discarded the important evidence and ultimately resultant effect would failure of justice despite the fact that the prosecution has proved its case beyond reasonable shadow of doubt.

Learned APP submitted that learned Judge has given undue weightage upon the incident of late registration of FIR i.e. the FIR has been lodged after 48 hours of the occurrence of the incident. Learned APP, however, submitted that law on this issue is settled and the Hon’ble Supreme Court as well as this Hon’ble Court in number of cases have succinctly held that in the offence of rape, generally due to scar of incident and orthodox family member of nature, the person concerned is reluctant to register complaint against the accused because there are number of reasons not to register complaint and/or delay in registering the complaint, however if the FIR is registered belatedly after 48 hours, it would not fatal the case of the prosecution on the count that as per the designed structure of the society, it would be considered as natural conduct on the part of the person concerned because after registration of the FIR, the victim as well as other family members have to suffer a lot of difficulty, which would also affect them in future.

Learned APP submitted that it is the specific case of the prosecution that the victim girl had come to reside at the residence of the complainant, who is her aunt (masI) just two months before the date of incident and the said witness was knowing the respondent – accused and at the time of registration of the FIR, specific name of the respondent – accused was mentioned. Learned APP further submitted that not only that, just to remove any doubt from the mind of all concerned, the concerned Investigating Officer has conducted Test Identification Parade in the presence of panch witnesses and in the said TI Parade, the victim girl has identified the respondent – accused at the first instance. Learned APP submitted that even the Executive Magistrate, who had conducted TI Parade, has also been examined by the prosecution as PW No.1 at Exh.8 and in his deposition, he has described the evidence in crystallize manner and during cross-examination, nothing contrary has come on record.

Learned APP submitted that to prove the guilt against the respondent – accused, the prosecution has also examined Sarpanch of the village as PW No.2 at Exh.11 and the said witness has also supported the case of the prosecution. Learned APP submitted that if the Hon’ble Court would go through the the deposition of said witness, in that event, it would be found out that along with the Sarpanch, the complainant and victim had gone for medical treatment and in his presence, FIR has been lodged against the respondent – accused. Learned APP submitted that even the driver of the tractor, in whose tractor the victim was taken to the hospital for the purpose of getting preliminary treatment, has also been examined by the prosecution and the said witness has also supported the case of the prosecution. Learned APP submitted that in the present case, the panch witnesses, in whose presence the panchnamas have been drawn by the Police, have deposed in a very categorical terms and the contents of the panchnamas have been proved by them through their deposition and those witnesses have been cross-examined by the defence in a great detailed but nothing contrary has come on record. Learned APP, however, submitted that the learned Judge has put much emphasis upon minor contradictions and irregularities as well as defects in the depositions of the witnesses, which were required to be discarded and wrongly passed an order of acquittal in favour of the respondent – accused and, hence, the said view adopted by the learned Judge is required to be set aside and the respondent – accused may be convicted for the offences charged leveled against him.

Learned APP further submitted that on the very next day, the victim girl was taken to hospital for the purpose of getting preliminary treatment and the doctor, who had examined the victim girl, has deposed in a very categorical terms that the victim girl has sustained total four injuries and in his deposition, he has described the said injuries and, thereafter, due to non-availability of certain instruments, the victim girl was referred to another hospital and, hence, the victim was taken to another hospital. Learned APP submitted that the doctor concerned, who had examined the victim girl, was also examined by the prosecution and if the Hon’ble Court would go through the deposition of said witness, in that event, it would be found out that it is clearly stated by him that the victim has sustained serious injuries on her private part. Learned APP submitted that both the doctors examined by the prosecution have fully supported the case of the prosecution and nothing contrary has come on record during their cross-examination. Learned APP submitted that the evidence of both these doctors are also corroborated with the orgal evidence of the complainant as well as victim girl.

Learned APP further submitted that the complainant is the real aunt of the victim girl and on the fateful day of incident, the complainant had gone to her farm for the purpose of agriculture activity and she had instructed the victim girl to come there after sometime and in pursuance thereto, when the victim girl was proceeding towards the field and reached the place of occurrence (na5Iyu), the respondent – accused caught hold of the victim and threatened her to develop physical relationship, which was refused by the victim girl and, hence, the respondent – accused took her to nearby bushes and committed rape upon the victim girl and on raising screams, the complainant proceeded towards the place of occurrence and in between she saw the respondent – accused fleeing away from the place of occurrence, however in the meantime, because of the rape committed by the respondent – accused, the victim girl became unconscious and was not in fit state of mind, therefore, the victim girl was taken to home by the complainant. Learned APP submitted that the distance to reach the Primary Health Centre from the place of occurrence is round about 45 Kms. away from their village if one travels to vehicle and as the victim girl became unconscious and was in trauma, she was taken to home instead of hospital as stated above. Learned APP submitted that in fact, in small villages, if any incident occurs, the village people first inform to the Sarpanch about the incident and after taking the Sarpanch in confidence, they would go to the Police Station concerned along with Sarpanch and lodge the FIR. Learned APP submitted that in the facts of the present case also, on the day of incident, when the incident had occurred, the complainant had tried to contact the Sarpanch but as he was not available and out of station, they waited for him and on the next day, when he came back, all have gone to the Sarpanch and narrated entire incident and, thereafter, decided the lodge the FIR against the respondent – accused. Learned APP submitted that because of the above facts, delay has occurred in registration of the FIR but the conduct of the complainant was natural one.

Learned APP submitted that with an intent to bring the charge leveled against the accused at home, the prosecution has also examined the victim girl herself, who was aged about 10 years at the time of commission of crime and before recording her deposition, her mental capability and ability to depose was also examined and assessed by the learned Judge and after jumping to a conclusion that she is in fit state of mind, her deposition was recorded. Learned APP submitted that in her deposition, the victim girl has narrated entire sequence of incident of events in a very graphical manner and she has disclosed the fact in a vernacular language specifically stating that first the respondent – accused had threatened her to develop physical relationship and as she denied it, the respondent – accused took her to nearby bushes by lifting her and committed rape upon her. Learned APP submitted that after registration of FIR, she was taken to the office of the Mamlatdar, where the concerned Investigating Officer has carried out TI Parade and in the said TI Parade, she has identified the respondent – accused. Leaned APP submitted that the victim girl was cross-examined in a great detail but nothing contrary has come on record and on the basis of said evidence, which is reliable, trustworthy and believable, the learned Judge ought to have recorded conviction of the respondent – accused for such serious offences but instead of that, the learned Judge has passed an order of acquittal by giving undue weightage to the non-important material, therefore, the said order of acquittal requires to be quashed and set aside by converting into conviction.

Learned APP submitted that in the present case, Police Officers have been examined by the prosecution and they have fully supported the case of the prosecution. Learned APP submitted that if the deposition of the Investigating Officer is read then, it is found out that the concerned Investigating Officer has collected the clothes of the respondent – accused as well as victim girl by drawing necessary panchnama and after collecting the same, same were sent to FSL for analysis and copy of the FSL report is produced on record, which clearly goes on to show that there were blood stains of the victim girl on the clothe of the respondent – accused. Learned APP submitted that officer of the FSL is also examined by the prosecution and the said set of evidence is proved by the prosecution by adducing evidence.

Learned APP submitted that at the time of assigning reasons and delivering judgment, the learned Judge has given undue weightage to non-important aspects. Learned APP submitted that one of the defences of the respondent – accused was that at the time of recording the deposition of the complainant, she has narrated the fact that the respondent – accused had worn lengha on the date of incident, whereas the Investigating Officer has recovered pant of the respondent – accused. Learned APP submitted that at the time of recording examination-in-chief of the complainant, she has narrated that at the time of incident, she saw the respondent – accused fleeing away from the place of occurrence and at that point of time, he had worn lengha. Learned APP submitted that the said witness (complainant) was thoroughly cross-examined by the defence by asking specific query but nothing contrary has come on record. Learned APP submitted that it is true that there was some contradiction with regard to the cloth worn by the respondent – accused at the time of commission of crime but that would not fatal the case of the prosecution and on the contrary, on the cloth seized by the Investigating Officer from the house of the respondent - accused, blood stain of the victim girl was found and there is no explanation offered by the respondent – accused in that regard and the said fact is supported by the FSL report, which is part and parcel of the record. Learned APP, therefore, submitted that the learned Judge ought not to have given much weightage to those minor contradictions and omissions in the deposition of the complainant.

Learned APP submitted that it is also settled proposition of law that the evidence of the victim girl is always to be considered as on higher pedestal than the injured witness because the incident of rape would destabilize the mental and physical strength of the victim girl because of the act faced by her and as stated above, in the present case, the victim girl is minor aged about 10 years, who would not have much sense of the nature of anyone. Learned APP submitted that as stated above, because of the forceful rape upon the victim girl, she became unconscious and was not in fit state of mind and was under trauma. Learned APP submitted that in the present case, minor girl aged about 10 years has been raped by the respondent – accused just to satisfy his lust and the said fact is proved by the prosecution by leading oral as well documentary evidence including medical evidence, however, same have not been properly considered by the learned Judge and wrongly passed an order of acquittal, which is required to be quashed and set aside and the respondent – accused may be convicted for the charges leveled against him.

Learned APP has put reliance upon following decisions,

(1) the judgment of the Hon’ble Supreme Court in case of Rajendra @ Rajappa Vs. State of Karnataka, reported in (2021) 6 SCC 178;

(2) the judgment of the Hon’ble Supreme Court in case of State of Himachal Pradesh Vs. Asha Ram, reported (2005) 13 SCC 766;

(3) the judgment of the Hon’ble Supreme Court in case of State of Himachal Pradesh Vs. Shreekant Shekari, reported in (2004) 8 SCC 153;

(4) the judgment of the Hon’ble Supreme Court in case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, reported in (1983 (3) SCC 217;

Referring the ratio enunciated by the Hon’ble Supreme Court in the aforesaid decisions, this appeal may be allowed.

On the other hand, learned advocate, Mr. Vyas appearing for the respondent – accused has opposed the present appeal with a vehemence and submitted that the impugned judgment and order is just, fair, reasonable and based upon sound principle of law and does not require any interference at the hands of this Hon’ble Court. Learned advocate submitted that it is the settled proposition of law that in criminal proceedings, the prosecution has to prove its case beyond reasonable shadow of doubt and admittedly in the present case, the prosecution is miserably failed to lead evidence to the effect that the guilt of the respondent – accused is proved without reasonable doubt as there are so many infirmities, discrepancies, errors, improvements and contradictions in the evidence of all the witnesses. Learned advocate submitted that if the Hon’ble Court would go through the evidence of all the witnesses in juxtaposition as a whole, in that event, cumulative effect of the evidence available on record clearly goes on to show that involvement of the accused in the commission of crime could not have been found out and there are number of contradictions, omissions and discrepancies found out in the evidence of prosecution witnesses. Learned advocate submitted that it is also settled proposition of law that in acquittal matters, if at the end of re-appreciation of evidence, if two views are possible, in that event, view taken in favour of the accused is required to be adopted. Learned advocate submitted that it is the specific case of the prosecution that at the time of incident, the complainant had seen the respondent– accused at the place of occurrence wearing langha but during investigation, the concerned Investigating Officer has collected pant from the house of the respondent – accused and thus, both are quite dissimilar and that is why, two different names have been given to these cloths. Learned advocate submitted that the conduct of the complainant and the victim is not natural one because as per the case of the prosecution, so-called incident occurred on 12.10.1993, whereas FIR has been registered on 14.10.1993, therefore, there is gross delay of 48 hours in registration of FIR. Learned advocate submitted that everybody knows that if any incident of gruesome nature occurs, in that event, FIR is required to be lodged at the earliest and delay in registration of FIR would always become fatal for the case of the prosecution. Learned advocate submitted that here in this, situation is very alarming that as per the case of the prosecution, the victim was unconscious and blood was oozed out from the body of the victim and despite the said fact, she was not taken to hospital for the purpose of getting preliminary treatment and, hence, the said conduct of the complainant cannot be said to be natural one and they have waited for 48 hours for Sarpanch to come in the village and after his arrival, they narrated the incident and then, decided the lodge the FIR and the said fact is also coming out from the evidence of Sarpanch as well as complainant, wherein they have stated in a very categorical terms that first they have narrated the incident and decided to lodge FIR against the respondent – accused and, thereafter, FIR has been lodged. Learned advocate submitted that admittedly, there was dispute between the members of two communities and it is also found out from the record that one member of the complainant side has been convicted by the court concerned and due to said on going rivalry between the members of two communities, admittedly there was inimical terms between two groups and that is why, possibility of false implication of the accused cannot be ruled out.

Learned advocate submitted that during the course of recording of the evidence, it has come on record that at the place of occurrence, blood was found within the radius of 2-3 ft., whereas as per the deposition of the panch witnesses, they have seen certain drops of blood at the place of occurrence, therefore, there is gross contradictions in the evidence of prosecution witnesses.

Learned advocate submitted that it has come on record that the victim girl was unconscious and continuously blood was coming out from her body, still she was not taken to hospital for the purpose of treatment. Learned advocate submitted that for the purpose of proving charge leveled against the respondent – accused, the prosecution has examined two different doctors, one who had given preliminary treatment and another, who had given treatment thereafter and major contradictions are found in the evidence of these expert witnesses so far as the injuries sustained by the victim girl. Learned advocate submitted that therefore considering all those major contradictions, infirmities, omissions and improvement in the version of narration of facts in the evidence of important prosecution witnesses, the learned Judge has rightly passed an order of acquittal, which does require any interference at the hands of this Hon’ble Court, that too, after a lapse of more than 35 years.

Learned advocate has put reliance upon following decisions,

(1) the judgment of the Hon’ble Supreme Court in case of Santosh Prasad Vs. The State of Bihar, reported in (2020) 3 SCC 443;

(2) the judgment of the Hon’ble Supreme Court in case of Chandrappa & Ors. Vs. State of Karnataka, reported in (2007) 4 SCC 415;

Relying upon the ratio enunciated in the aforesaid decisions by the Hon’ble Supreme Court, learned advocate submitted that the aforesaid decisions are squarely applicable to the case of the respondent – accused and, hence, the present appeal may be dismissed.

Heard learned advocates appearing for the rival parties and also gone through the impugned judgment and order of acquittal passed by the learned Judge as well as material available on record.

Before adverting to the facts of the case, it would be worthwhile to refer to the scope in acquittal appeals. It is well settled by catena of decisions that an Appellate Court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice in favour of the accused, firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial court.

Before adverting to the issue involved in the present matter, we would like to refer to and rely upon the principle of law enunciated by the Hon’ble Supreme Court in catena of judicial pronouncement.

The Hon’ble Supreme Court in case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, reported in (1983) 3 SCC 217 has observed in Paragraph Nos.5, 6, 9, 10, 11 and 12 as under, “5. It appears that the parents of P.W.I as well as parents of P.W. 2 wanted to hush up the matter. Some unexpected developments however forced the issue. The residents of the locality somehow came to know about the incident. And as an alert woman social worker, P.W. 5 Kundanben, President of the Mahila Mandal in Sector 17, Gandhinagar, took up the cause. She felt indignant at the way in which the appellant had misbehaved with two girls of the age of his own daughter, who also happened to be friends of his daughter, taking advantage of their helplessness, when no one else was present. Having ascertained from P.W. 1 and P.W. 2 as to what had transpired, she felt that the appellant should atone for his infamous conduct. She therefore called on the appellant at his house. It appears that about 500 women of the locality had also gathered near the house of the appellant. Kundanben requested the appellant to apologize publicly in the presence of the women who had assembled there. If the appellant had acceded to this request possibly the matter might have rested there and might not have come to the Court. The appellant, however, made it a prestige issue and refused to apologize. Thereupon the police was contacted and a complaint was lodged by P.W. 1 on 19th September, 1975. P.W. 1 was then sent to the Medical Officer for medical examination. The medical examination disclosed that there was evidence to show that an attempt to commit rape on her had been made a few days back. The Sessions Court as well as the High Court have accepted the evidence and concluded hat the appellant was guilty of sexual misbehaviour with P.W. 1 and P.W. 2 in the manner alleged by the prosecution and established by the evidence of P.W. 1 and P.W.2. Their evidence has been considered to be worthy of acceptance. It is a pure finding of fact recorded by the Sessions Court and affirmed by the High Court. Such a concurrent finding of fact cannot be reopened in an appeal by special leave unless it is established: (1) that the finding is based on no evidence or (2) that the finding is perverse, it being such as no reasonable person could have arrived at even if the evidence was taken at its face value or (3) the finding is based and built on inadmissible evidence, which evidence, if excluded from vision, would negate the prosecution case or substantially discredit or impair it or (4) some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded, or wrongly discarded. The present is not a case of such a nature. The finding of guilt recorded by the Sessions Court as affirmed by the High Court has been challenged mainly on the basis of the minor discrepancies in the evidence. We do not consider it appropriate or permissible to enter upon a reappraisal or re-appreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned Counsel for the appellant. 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 videotape 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 there- fore, 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 re- produce the very words used by them or heard by them. They can only re- call the main purport of the conversation. It is unrealistic to expect a witness to be a 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 sequence 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 overawed 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.]

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.

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. We must analyze the argument in sup- port of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focused on the Indian horizon. We must not be swept off the feet by the approach made in the western world Which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the back- drop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turn-key basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. The solution of problems cannot, therefore, be identical. It is conceivable in the western society that a female may level false accusation as regards sexual molestation against a male for several reasons such as :

[(1) The female may be a 'gold digger' and may well have an economic motive - to extract money by holding out the gun of prosecution or public exposure.]

[(2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted, and chased by males.]

[(3) She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account.]

[(4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta.]

[(5) She may do. so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self-importance in the context of her inferiority complex.]

[(6) She may do so on account of jealousy.] [(7) She may do so to win sympathy of others.]

[(8) She may do so upon being re- pulsed.]

By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban cities. Because (1) 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, (2) 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, (3) She would have to brave the whole world. (4) 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. (5) 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. (6) It would almost inevitably and almost invariably result in mental torture and suffering to here self. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition-bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the Court, to face the cross-examination by Counsel for the culprit, and the risk of being disbelieved, act as a deterrent.

In view of these factors the victims and their relatives are not too keen to bring the cutprit to books. 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-infected) 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 (obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion that 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.

Now we return to the facts of the present case. Testing the evidence from this perspective, the evidence of P.W. 1 and P.W. 2 inspires confidence. The only motive suggested by defence was that there was some history of past trade union rivalry between the father of P.W. 2 and the appellant. It must be realized that having regard to the prevailing mores of the Indian society, it is inconceivable that a girl of 10 or 12 would invent on her own a false story of sexual molestation. Even at the age of 10 or 12 a girl in India can be trusted to be aware of the fact that the reputation of the entire family would be jeopardised upon such a story being spread. She can be. trusted to know that in the Indian society her own future chances of getting married and settling down in a respectable or acceptable family would be greatly marred if any such story calling into question her chastity were to gain circulation in the society. It is also unthinkable that the parents would tutor their minor daughter to invent such a story in order to wreak vengeance on some one. They would not do so for the simple reason that it would bring down their own social status in the society apart from ruining the future prospects of their own child. They would also be expected to be conscious of the traumatic effect on the psychology of the child and the disastrous consequences likely to ensue when she grows up. She herself would prefer to suffer the injury and the harassment, rather than to undergo the harrowing experience of lodging a complaint in regard to a charge reflecting on her own chastity. We therefore refuse to countenance the suggestion made by the defence that the appellant has been falsely roped in at the instance of the father of P.W. 2 who was supposed to have some enmity against the appellant. It is unthinkable that the parents of P.W. 2 would tutor her to invent a story of sexual misbehaviour on the part of the appellant merely in order to implicate him on account of past trade union rivalry. The parents would have also realized the danger of traumatic effect on the psychology of their daughter. In fact it would have been considered to be extremely distasteful to broach the subject. It is unthinkable that the parents would go to the length of inventing a story of sexual assault on their own daughter and tutor her to narrate such a version which would bring down their own social status and spoil their reputation in society. Ordinarily no parents would do so in Indian society as at present. Under the circumstances the defence version that the father of P.W. 2 had tutored her to concoct a false version in order to falsely implicate the appellant must be unceremoniously thrown overboard. Besides, why should the parents of P.W. 1 mar the future prospects of their own daughter- It is not alleged that P.W. 1 had any motive to falsely implicate the appellant. So also it is not even suggested why P.W. 1 should falsely implicate the appellant. From the standpoint of probabilities it is not possible to countenance the suggestion that a false story has been concocted in order to falsely implicate the appellant. The medical evidence provided by P.W. 6, Dr. Hemangini Desai, fully supports the finding of the High Court that there was an attempt to commit rape on P.W. 1. Under the circumstances the conclusion reached by the High Court cannot be successfully assailed.”

The Hon’ble Supreme Court in case of State of Himachal Pradesh Vs. Shreekant Shekari, reported in (2004) 8 SCC 153 has observed in Paragraph Nos.16, 17, 18, 19 & 21 as under,

“16. The High Court has also committed error in making hypothetical calculations regarding dates to doubt the testimony of the victim and her mother. What the witnesses had stated were approximate dates or periods and not that they were to be reckoned with exactitude. The victim is not an intelligent girl as the evidence on record shows. She passed out Class 3 on the third attempt. Her mother, a rustic woman is practically illiterate. To examine their evidence with microscopic approach would be an insult to justice oriented judicial system. It would be totally detached from the realities of life.

The High Court has also disbelieved the prosecution version for the so-called delay in lodging the FIR. The prosecution has not only explained the reasons but also led cogent evidence to substantiate the stand as to why there was delay. The trial Court in fact analysed the position in great detail and had come to a right conclusion that the reasons for the delay in lodging the FIR have been clearly explained.

The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had be fallen to her. That being so, the mere delay in lodging of first information report does not in any way render prosecution version brittle. These aspects were highlighted in Tulshidas Kanolkar V/s. State of Goa (2003(8) SCC 590).

The High Court by hypothetical calculations has concluded that there were discrepancies and has come to the presumptuous conclusion on mere surmises and conjectures that there was unexplained delay in lodging the FIR. In view of the above, conclusions of the

It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is physical as well as psychological and emotional. However, if the court on facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would suffice.”

The Hon’ble Supreme Court in case of Rajendra @ Rajappa Vs. State of Karnataka, reported in (2021) 6 SCC 178 has observed in Paragraph Nos. 9 and 10 as under,

“9. The learned counsel for the appellants placed reliance on judgments of this Court in the case of Shivaji Sahabrao Bobade1 wherein the scope of the appeal preferred against acquittal is considered by this Court. In the said case this Court has considered the scope of appeal against acquittal, as a matter of practice. Incidentally, in the said case, this Court has also held that while appreciating evidence in criminal trials, as far as the nature of depositions by rural witnesses is concerned, courts not to judge their evidence by same standard of exactitude and consistency as that of urban witnesses. In the judgment in the case of V.N. Ratheesh3 power of the appellate court in appeals against acquittal is considered by this Court. Similarly in the judgment in the case of Kanhaiya Lal2 this Court has held that while dealing with appeals against acquittals unless there are substantial and compelling reasons and good and sufficient grounds and very strong circumstances, interference is not called for.

It is true that in various authoritative pronouncements, this Court has circumscribed the scope of appeal under Section 378 of the Cr.PC, in cases where appeal is preferred against acquittal recorded by the trial court. Further, it is also settled proposition that unless the view taken by the trial court is not a possible view, normally the High Court should not interfere with the acquittal recorded by the trial court. There cannot be any straightjacket formula to apply readily for the cases in appeals arising out of acquittal recorded by the trial court. Whether the view taken by the trial court is a possible view or not; whether the findings recorded by the trial court are in conformity with the evidence or not; are the matters which depend upon facts and circumstances of each case and the evidence on record. By reappreciating evidence on record if appellate court comes to conclusion that findings recorded by the trial court are erroneous and contrary to law, it is always open for the appellate court, by recording good and compelling reasons for interference and overturn the judgment of acquittal by converting the same to that of conviction.

In this case, it is to be noted that the deceased; PWs1 to 3; and accused were closely related. The trial court has disbelieved the evidence of PWs1 to 3 only on the ground that they are relatives of the deceased, forgetting the fact that PW1 Smt. Sheshamma is the daughter of accused no.1 and PW3 is no other than the wife of accused no.1. It is clear from the evidence on record that they are rustic villagers and incident happened when they were returning to their house after attending the coolie work. In Ex.P1 itself PW1 has stated that there was dispute between her deceased husband and his elder brother Husanayya (PW2) on one side and her father (accused no.1 - Devendrappa) and his brothers on other side in respect of sharing of tapping of toddy trees. As a result of such dispute, her senior and junior uncles were telling her that she should not come towards the side of their house. Further, PW1 Smt. Sheshamma, who was accompanying the deceased at the time of the incident, has stated in her evidence that at about 06:00 a.m. she, her deceased husband and also PW2 - Husanayya, together went to attend coolie work and when they were returning to their house, at about 11:30 a.m. assault was made near the hostel. It is quite natural that in rural areas, going to work in early hours and coming back to their home around 1111: 30 a.m. to have their food. She has also clearly stated in her deposition that A1 - Devendrappa (who is now dead) hit with axe on the left cheek of the deceased, A3 - Dattayya hit the deceased with bedaga (a sharpedged agricultural instrument) on his head, A4 - Manik assaulted with club on the head of the deceased, and A5 - Basayya also assaulted the deceased with axe on his head. If we examine the testimony of PW1 closely, it is clear that it is consistent with her allegations in her complaint - Ex.P1. Ex.P6 is the postmortem examination report in which the external injuries on the dead body of the deceased were mentioned. If the complaint made by PW1 and her testimony are considered along with the injuries found in Ex.P6 - postmortem report, it makes it clear that the said injuries referred in the postmortem report are attributable to overt acts of the accused nos.2 to 5, as stated in the complaint. PW1 has not made any improvements, omission or contradiction, so far as it relates to details of occurrence of the incident in the manner alleged in the complaint - Ex.P1 and as deposed by her in the examinationinchief. As PW1 is a rustic villager, discrepancies in timelines, as to the time when she was examined by PW14 (doctor) for the said injuries cannot go to the root of the prosecution case and further it is to be noted that she sustained injury on the said date and she was examined by PW14. The deposition of PW1 appears to be truthful and trustworthy. PW2 - Husanayya, the elder brother of the deceased has also stated in his evidence narrating the incident in the same lines as that of PW1. PW2 is also an injured witness in the incident and PW10 (doctor) examined him for the said injury and Ex.P4 is the wound certificate pertaining to injuries suffered by PW2, issued by PW10 - Dr. M.S. Dhadave, Senior Specialist in District Hospital, Gulbarga. The contents of the wound certificate and oral evidence of PW2 also establish that the injured PW2 - Husanayya was brought to the hospital by his wife with a history of assault on him on the same day by Devendrappa (A1) and others. PW3 - Smt. Sayamma is none other than the wife of accused no.1 - Devendrappa who died during the pendency of trial and mother of PW1. There is absolutely no reason for PW3 to depose against her own husband making such serious allegations. If the depositions of PW1 to PW3 are considered along with the documentary evidence on record and medical evidence of PWs10 and 14, it is crystal clear that their evidence is natural, trustworthy and acceptable. The trial court has disbelieved their testimony by referring to some minor contradictions. This Court, in the case of Narayan Chetanram Chaudhary & Anr. v. State of Maharashtra, (2000) 8 SCC 457 has considered the minor contradictions in the testimony, while appreciating the evidence in criminal trial. It is held in the said judgment that only contradictions in material particulars and not minor contradictions can be a ground to discredit the testimony of the witnesses. Relevant portion of Para 42 of the judgment reads as under:

"42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW 2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness. ... ... …"

Though the evidence of PWs1 to 3 is consistent, reliable and trustworthy, the trial court, only by referring to minor contradictions, disbelieved the whole of their testimony. Thus, we are of the view that the findings, as recorded by the trial court in support of the acquittal, are contrary to evidence on record and the testimony of PWs1, 2 and 3. Thus such findings, being perverse and erroneous, it is always open for the appellate court to reverse such findings on reappreciation of evidence on record. As regards the contradictory portion of the statement of PW14 pointed out by learned counsel with reference to entries under Ex.P6 wherein it was recorded that undigested food was found in the stomach, it is to be noticed that in Ex.P6 itself reveals that the intestine of the deceased was full of faecal matter, therefore, death must have occurred between 3 to 12 hours prior to the postmortem examination, which supports the prosecution case. In that view of the matter, the contradictory portion of the statement of PW14 needs to be discarded and not significant to discard total evidence on record. In view of the foregoing, we are of the view that the judgments relied on by the learned counsel for the appellants would not render any assistance in support of her case that the High Court has committed error in reversing the acquittal recorded by the trial court. Having regard to evidence on record, as we are of the view that the view taken by the trial court was not at all a possible view and the findings run contrary to the evidence on record, the High Court has rightly reversed the judgment of the trial court by convicting the appellants (A2 to A5). Further we also do not find any merit in the contention of the appellants that in any case it is not a case for conviction under Section 302, IPC and same be modified to that of conviction under Section 304II, IPC. From the evidence on record, it is clear that the assault was intentional which resulted in the death of the deceased and all accused - A2 to A5 - had a common object, as such the High Court has rightly convicted the accused for offence punishable under Section 302/149, IPC etc. Thus, we endorse the view of the High Court.”

The Hon’ble Supreme Court in case of K. Gopal Reddy Vs. State of Andhra Pradesh, reported in (1979) 1 SCC 355 has observed in Paragraph No.9 as under,

“9. The principles are now well settled. At one time it was thought that an order of acquittal could be set aside for "substantial and compelling reasons" only and Courts used to launch on a search to discover those "substantial and compelling reasons". However, the 'formulae' of "substantial and compelling reasons", "good and sufficiently cogent reasons" and "strong reasons" and the search for them were abandoned as a result of the pronouncement of this Court in Sanwat Singh V/s. State of Rajasthan, (AIR 1961 SC 715). In Sanwat Singh's case, this Court harked back to the principles enunciated by the Privy Council in Sheo Swarup V/s. Emperor (61 Ind App 398) : (AIR 1934 PC 227 (2)), and re-affirmed those principles. After Sanwat Singh V/s. State of Rajasthan, this Court has consistently recognised the right of the Appellate Court to review the entire evidence and to come to its own conclusions, bearing in mind the considerations mentioned by the Privy Council in Sheo Swarups case. Occasionally phrases like 'manifestly illegal', 'grossly unjust', have been used to describe the orders of acquittal which warrant interference. But, such expressions have been used more, as flourishes of language, to emphasise the reluctance of the Appellate Court to interfere with an order of acquittal than to curtail the power of the Appellate Court to review the entire evidence and to come to its own conclusion. In some cases (Ramabhupala Reddy V/s. The State of Andhra Pradesh AIR 1971 SC 460; Bhim Singh Rup Singh V/s. State of Maharashtra, AIR 1974 SC 286 etc.), it has been said that to the principles laid down in Sanwat Singh's case may be added the further principle that "if two reasonable conclusions can be reached on the basis of the evidence on record, the Appellate Court should not disturb the finding of the trial Court." This, of course, is not a new principle. It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonably doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. "A reasonable doubt", it has been remarked, "does not mean some light, airy, insubstantial doubt that any flit through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reason. As observed by Lord Denning in Miller V/s. Ministry of Pensions ((1947) 2 All ER 372) "Proof beyond a reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable' the case is proved beyond reasonable doubt, but nothing short of that will suffice." In Khem Karan V/s. State of Uttar Pradesh (AIR 1974 SC 1567), this Court observed.

"Neither mere possibilities nor remote possibilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony."

At this stage, we would like to refer to the depositions of prosecution witnesses, who have fully supported the case of the prosecution.

PW No.1 viz., Chandrakantbhai Ranchhodlal Soni has been examined at Exh.8. This witness was working as Executive Magistrate at the relevant point of time and under his supervision, Test Identification Parade was conducted. This witness has described the entire sequence of procedure followed at the time of conducting TI Parade. This witness has stated that first, the panchnama has been prepared in the presence of panchas and, thereafter, the victim girl was asked to identify the accused out of six person standing in a queue and out of those six persons, the victim girl identified the respondent – accused and entire procedure conducted by him was reduced into writing by drawing necessary panchnama. This witness was cross-examined by the defence and question relating to the doctor as well as procedure to carry out TI Parade were asked. Further, the issue regarding the disclosure of the identity of the accused is not at all challenged by asking question to the said witness. In short, the evidence of the this witness clearly goes on to show that in his presence, TI Parade was conducted in normal way and the accused was identified by the victim girl and entire proceedings were reduced into writing in the presence of panchas by preparing report of TI Parade. Despite detailed cross-examination, nothing contrary has come on record. It is also found out from the record that at the time of registration of the complaint, the name of the accused and identity of the accused was disclosed by the complainant and, hence for the sake of argument without admitting that there is no question of identity of the accused and as such, there is no need to carry out TI Parade of the accused.

PW No.2 viz., Raysangji Kuberji Thakor has been examined at Exh.11. This witness was the Sarpanch of the village at the relevant point of time. This witness has deposed that he learnt about the occurrence of the incident through villagers and on the day of incident, he was not available in village, however, he was called by the complainant and, hence, he had gone to the house of the complainant and at that point of time, number of persons were present there and in the presence of all, the complainant has narrated entire sequence of events of incident and ultimately, they have decided to lodge the complaint and at the time of registration of the FIR, this witness was present along with the complainant. This witness stated that to reach the Police Station at Detroj, we had gone in the tractor of one Gandaji Keshaji and after registration of the FIR, we came back to village. This witness was cross-examined by the defence but nothing contrary has come on record.

PW No.3 viz., Rushaji Shivaji has been examined at Exh.12. This witness deposed that on the date of incident, he was informed about the occurrence of the incident and when he reached the place of occurrence, number of persons were assembled there and it was found that blood oozing out from the body of the victim girl and she was unconscious and on the next day, the victim girl was taken to hospital at Detroj for the purpose of medical treatment as well as for registration of the FIR. This witness was cross-examined by the defence but nothing contrary has come on record.

PW No.4 viz., Smt. Meenaben Rajanikant Dave has been examined at Exh.13. This witness was working as Scientific Officer at Forensic Science Laboratory. This witness stated that at the relevant point of time, muddamal articles were brought before her and test was carried out upon the same and report to that effect is prepared, which is placed on record and this witness has identified the signature of the author of the report and also certified the serological report. This witness was cross-examined by the defence on the count that they have not disclosed the mode of operation of the procedure followed at the time of analysis including the apparatus or instrument or machinery used at the time of analysis, however, nothing contrary has come on record.

PW No.5 viz., Bhanukumar Shivlal Patel has been examined at Exh.18. This witness was discharging his duty as Medical Officer at Detroj. This witness has stated that on 14.10.1993, the victim girl was brought before him along with police yadi for medical examination and in pursuance thereto, this witness has examined the victim girl. This witness, upon examination of the victim girl, has specifically opined that the injuries were found on the private part of the victim girl including hymen injuries and teared in multiple tears. This witness also stated that there were injuries on her knee. This witness has specifically deposed that there was blood stain on her lower clothe (2a2rI). This witness after examination issued certificate, which is produced at Exh.19. Thus from the deposition of this witness, it is found out that her hymen is teared and multiple tears have been found and injury was also found in the hymen. This witness has stated that as there was shortage of some equipment, the victim girl was referred to Civil Hospital, Ahmedabad for further medical examination. This witness was extensively cross-examined by the defence but nothing contrary has come on record. On the contrary, from the evidence of this witness, it is found out that the victim girl has sustained injuries on her private part and blood stains were also found on the cloth of the victim girl.

PW No.11 viz., Dr. Surendra Mahendrakumar Sharma has been examined at Exh.28. This witness was discharging his duty as Medical Officer, Civil Hospital, Ahmedabad. This witness stated that on 14.10.1993, the victim girl was brought before him by the Police Officer of Detroj Police Station along with police yadi for the purpose of medical examination and after taking consent of her parents, the victim girl was examined by him. This witness, after examination of the victim girl, has narrated the injuries sustained by her because of the act committed by the respondent – accused. This witness has stated that the internal and external body parts of the victim girl are developed. This witness has stated that on examination of her private part, one finger very painfully admitted and hymen is torn. This witness also stated that as per the case papers, the age of the victim is 10 years but he has not carried out any test to know her actual age. This witness was cross-examined by the defence but nothing contrary has come on record. The evidence of this witness clearly goes on to show that the victim has sustained injury on her private part and there was pain also.

PW No.6 viz., Samjuben Gabhaji Thakor has been examined at Exh.20. This witness is the complainant in the present case and she has narrated the entire sequence of incident of events in a very graphical manner. This witness stated that she knows the accused and also identified the accused in the Court. This witness stated that at time of incident, the respondent – accused has administered threats to the victim by showing knife. This witness stated that the distance between the place of occurrence and the farm is 50 ft. and on hearing screams of the victim girl, she proceeded towards the place of occurrence and saw the respondent – accused fleeing away from the place of occurrence wearing lengha and when she reached the place of occurrence, she found blood stain there and the victim was lying there in unconscious condition and, hence in that condition, the victim girl was taken to home. This witness was cross-examined in a great detail by the defence and certain questions in the form of suggestions were being asked to the complainant by the defence, which are exaggerated in nature so far as occurrence of incident is concerned and in turn, she has given affirmative answer to those suggestions and on the strength of the said evidence, the defence has come with a specific case that there were infirmities and contradictory versions in the evidence of the prosecution witnesses. It is also found out that one of the basic defence raised by the defence is that as per the evidence of the prosecution, at the time of incident, the respondent – accused had worn lengha, whereas during the course of investigation, the concerned IO has recovered pant from the house of the respondent – accused, therefore, there was glaring inconsistency in the evidence of the prosecution witnesses. The learned Judge has put much emphasis upon the said evidence at the time of delivering the impugned judgment and order. However, it is an admitted position of fact that as per the say of the complainant, she was around 50 ft. away from the place of occurrence and she had seen the respondent – accused fleeing away from the place of occurrence wearing lengha. It seems that this witness has seen the accused from far away distance and she is rustic villagers and at the time of recording her statement, she has disclosed the said fact but during the course of cross-examination, a very particular query was being asked and she has stated that she has not stated the said fact before the police officer, therefore, at the most, it can be said that there was improvisation on the part of the witness at the time of recording evidence but the said improvisation cannot affect the case of the prosecution because it was found out that the IO has recovered the clothes of the accused in the presence of panchas and those clothes were sent to FSL for analysis and as per the report, the blood stains of the victim were found out from the said pant, therefore, benefit cannot be extended to other solely on the count of said minor discrepancies and omissions. It is true that during the course of cross-examination, certain minor contradictions, omissions and improvisation have been found out but the said evidence would not affect the core issue and benefit cannot be extended to the respondent – accused. It is an admitted position of fact that the incident has occurred in the year 1993 and at that point of time, the distance of village and the Primary Health Centre is around 45 Kms. away from the place of occurrence and because of the injuries received by the victim girl, who is rustic illiterate villagers, she was taken to home but immediately thereafter, they tried to contact the Sarpanch to discuss the issue but he was not available and on the next day, when the Sarpanch came, they narrated entire sequence of incident of events and then, FIR has been lodged. It is required to be noted that the defence was much harping upon the conduct of the said witness, who is real aunt of the victim girl contending that despite grave injuries sustained by the victim, she was not immediately taken to the hospital for the purpose of preliminary treatment as the blood was oozing out from the body of the victim and she was unconscious and despite the said fact, instead of taking prompt action to register an FIR, the complainant has waited for Sarpanch to come. It is required to be noted that as contended by learned APP, generally in villages, as and when any untoward incident happens, all the villagers first gather and meet the Sarpanch, where they narrates entire sequence of incident of events and after hearing them, the Sarpanch concerned accompany them to Police Station for registration of the FIR, which in the facts of the present case has been done by the complainant, which resulted into delay of 48 hours but it cannot be said to fatal to the case of the prosecution and thus, it was a general and usual conduct of the complainant. It is also required to be noted that defence has raised query with regard to finding of blood stain at the place of occurrence, which has been believed by the learned Judge at the time of delivering the impugned judgment but the fact remains that the rape was committed by the accused upon the victim girl, who is aged about 10 years and the said fact is supported by the medical evidence available on record. Over and above that, certain question in the form of suggestions were put to the complainant and she gave affirmative answer and supported the said story of the defence and, therefore, it is found out from the evidence of the said witness that certain exaggerations and improvement in the theory of prosecution case is found out but the evidence of the said witness would not affect the core of the case of the prosecution and on the strength of the evidence of the said witness, entire case of the prosecution cannot be thrown out. This witness was subjected to lengthy cross-examination but the substance of the statement made in examination-in-chief remains totally unimpeached. A suggestion was put that a false case has been foisted against the accused as there was inimical terms between the members of two communities but nothing contrary has come on record.

PW No.7 viz., Jayanti Bhuraji has been examined at Exh.21. PW No.8 viz., Ambaram Rajuji Thakor has been examined at Exh.23. PW No.9 viz., Kamaji Raghuji has been examined at Exh.25. All these witnesses are the panch witnesses, in whose presence, panchnamas have been prepared and they have supported the case of the prosecution.

PW No.12 i.e. the victim has been examined at Exh.30. The deposition of this witness is very short and simple but very crystallize. In her deposition, she has deposed as to how the incident has occurred and name and identity of the accused is disclosed by her. She has stated that on the day of incident, she was passing through naliya, at that point of time, the accused interrupted her and administered threats to allow him to develop physical relationship, which she denied and, hence, the accused took her to nearby bushes and committed rape upon her and because of which, she sustained serious injuries and, thereafter, she became unconscious and the accused fled away from the place of occurrence and she was taken to home by her aunt. This witness was cross-examined in detail by the defence to bring on record contradictions, omissions and improvement in the evidence but nothing contrary has come on record. However, the evidence of this witness is prima facie found to be reliable, believable and trustworthy. It is also found out from the evidence of this witness that she has sustained injuries on her knee and the said fact is also corroborated with the medical evidence. This witness is also admitted that after registration of the FIR, she was taken to the office of the Mamlatdar for the purpose of identification of the accused and in the presence of police officials, she has identified the accused. The testimony of the said witness is also corroborated with the material evidence as well as other attending circumstances available on record. It is and admitted position of fact that the victim girl was minor aged about 10 years at the time of incident as well as at the time of recording deposition, she was subjected to very extensive cross-examination by the defence but the substance of the statement made in the examination in chief remains totally unimpeached and nothing could be elicited to dislodged the creditworthiness of her testimony in examination in chief.

By perusing the oral evidence together with the documentary evidence available on record, it is found out that the evidence adduced by the prosecution inspires confidence and merited acceptance. It is now well settled principle of law that conviction can be founded on the testimony of the victim girl alone unless there are compelling reasons for seeking corroboration. The evidence of a victim girl is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration.

As stated above, submission has been made with regard to delay in registration of the FIR. It is, however, required to be noted that it is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity, it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Over and above that, in fact, the prosecution has offered sufficient explanation for delay in registration of FIR, which would not fatal to the case of the prosecution. Hence, the submission made by learned advocate for the respondent – accused on this aspect is misconceived.

At this stage, it is required to be noted that there is no dispute about some improvement in the deposition of the complainant but admittedly it would not affect the core of the case of the prosecution. Upon examination of the evidence of complainant, it is found out that at the time of registration of FIR, the complainant has stated about the cloth worn by the respondent – accused to the effect that the respondent – accused fled away from the place of occurrence wearing lengha but during the course of investigation, the concerned IO has collected pant from the house of the respondent – accused, that too, at the instance of the respondent – accused, which were found with blood stains and when the questions were asked to the respondent – accused with regard to the same, he was failed to give proper explanation. Over and above that, medical evidence also supports the case of the prosecution to the effect that the blood stains found on the pant were of the victim girl. Therefore because of minor improvement in the evidence of the complainant would not fatal the core of the case of the prosecution but there are other corroborative evidence available on record, which connect the respondent – accused with the commission of crime. However in the facts of the case on hand, as stated above, all the witnesses have supported the case of the prosecution and the case of the prosecution rest upon the testimonies of the complainant as well as Medical Officers read with various documents including medical evidence, which clearly goes on to show that the accused has committed offence as alleged and the prosecution has proved its case beyond reasonable shadow of doubt. Therefore only view, which is available for this Court on appreciation of material and evidence available on record, is of conviction as the material and evidence available on record inspires confidence because while passing an order of acquittal, the learned Judge has adopted hypothetical view and passed an order of acquittal on the basis of conjunctures and surmises.

Thus in view of the ratio enunciated by the Hon’ble Supreme Court in the aforesaid decisions and on re-appreciation and re-evaluation of the oral as well as documentary evidence available on record, it is found out that the prosecution has proved its case beyond reasonable shadow of doubt against the respondent – accused as the ingredients of the alleged offences are fulfilled. We have gone through the impugned judgment and order in detailed and it is found out that the learned Judge has failed to consider the evidence on record in its true spirit and proper perspective and came to the wrong conclusion that the prosecution has failed to prove the case against the respondent – accused beyond reasonable shadow of doubt. Therefore the impugned judgment and order of acquittal cannot be sustained, otherwise, it would amount to miscarriage of justice and, hence, the respondent – accused is required to be convicted for the offences under Sections 376 and 506(2) of the IPC.

Accordingly, the present Criminal Appeal is allowed. The respondent – accused is held guilty for the offences under Sections 376 and 506(2) of the IPC.

Accordingly, we issue Notice to the respondent – accused on the sentence to be imposed for the offences under Sections 376 and 506(2) of the IPC, returnable on 2nd August, 2024 to be served through Destroj Police Station. The Registry is directed to issue bailable warrant in the sum of Rs.10,000/- (Rupees Ten Thousand Only) to be served through the concerned police station upon the respondent – accused.