1997 Supreme(SC) 1070

1997(7) Supreme 556
SUPREME COURT OF INDIA
G.N. Ray And G.B. Pattanaik, JJ.
Madan Lal -Appellant
versus
State of Jammu & Kashmir -Respondent
Criminal Appeal No. 503 of 1993
Decided on 6-8-1997

Headnote:(i) Criminal Procedure Code, 1973-Section 378-Appeal against acquittal-Scope-Power of appellate court to review entire evidence and come to its own conclusion-While reversing order of acquittal, High Court must give sufficient grounds-Expressions substantial and compelling reasons or good and sufficiently cogent reasons -Meaning of-If two views are possible on a set of evidence-Appellate court need not substitute its own views in preference to the view of the trial Court.

       Held that in deciding appeals against acquittal the court of appeal must examine the evidence in a particular case: must also examine the reasons on which the order of acquittal was based; and should interfere on being satisfied that the view taken by the acquitting judge is unreasonable. If two views are possible on a set of evidence then the appellate court need not substitute its own view in preference to the view of the trial court who has recorded an order of acquittal. In other words, if an order of acquittal is based on proper appreciation of evidence then the same cannot be reversed. But when the acquittal by the Sessions Judge is found to be against the evidence or in disregard of the evidence or in violation of the principles of criminal justice then the appellate court will be fully justified in interfering with an order of acquittal since it is the duty of the court to convict a person when the guilt is established beyond reasonable doubt. If the Sessions Judge acquits an accused by giving undue importance to minor discrepancies and making a suspicion on evidence based on conjectures then the High Court will be fully justified in interfering with the order of acquittal. But all the same while reversing an order of acquittal the High Court must give sufficient grounds for holding that the appreciation of evidence by the trial court is unsupportable. The High Court must consider the reasons advanced by the trial Judge in recording the order of acquittal and indicate while reversing the same the grounds of reversal. If, however, the appellate court finds the conclusions established at by the lower court are based on evidence and are plausible then it will not substitute its views on the evidence and interfere with an order of acquittal. It is in this sense the expressions "substantial and compelling reasons" or "good and sufficiently cogent reasons" used by this Court while dealing with the power of an appellate court to interfere with an order of acquittal has to be understood. (Para 8)

       (ii) Indian Penal Code, 1860-Section 376/511-Attempt to commit rape-Offence of-Difference between preparation and an attempt to commit rape-For offence of an attempt to commit rape, it is necessary to prove that accused has gone beyond stage of preparation-If an accused strips a girl naked, making her flat on ground undresses himself, forcibly rubs his erected penis on private part of girl, ejaculates himself-Not a case of merely assault under Section 354-It is an attempt to commit rape under Section 376/511. (Para 12)

       (iii) Indian Penal Code, 1860-Section 376/511-Conviction for offence under-Appeal-Appellant being headmaster of prosecutrix-Trustworthy evidence of prosecutrix, aged 13 years-Several circumstances as found by High Court corroborate prosecutrix evidence-Chemical examination of salwar of prosecutrix reported presence of semen on salwar-It has not been established that semen is that of accused-Statement of mother of prosecutrix-Prosecutrix narrated entire episode immediately to her mother when she arrived at home-Conclusion irresistible that prosecution established charge of attempt to commit rape-Conviction recorded by High Court does not require interference being legally sustainable.

       Held that in assessing the testimonial potency of the victim s version, the human psychology and behavioural probability must be looked into. The inherent bashfulness and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication (See (1980) 3 SCC 159). In the case in hand a young girl was subjected to sexual harassment by her own Head Master inside a close room of that Head Master and one can well imagine her trauma after being subjected to such sexual harassment. It is in this context it would be appropriate to extract a sentence from the judgment of this court in Krishan Lal v. State of Haryana, (1980) 3 SCC 159, "a socially sensitized judge is a better statutory armour against gender outrage than long clauses of a complex section with all the protections writ into it". It must be remembered that no woman of honour will accused another of committing rape since she sacrifices thereby what is dearest to her. It has to be borne in mind that the learned Sessions Judge discarded the evidence of the mother of the prosecutrix on the ground that she was influenced by PWs 17 and 23 who had an axe to grind against the accused. It is indeed unthinkable that the mother just to oblige her friends like PWs 17 and 23 would make serious allegations of sexual assault by the accused against her daughter. In our considered opinion, therefore, the High Court on review of the evidence on record and on examining the reasons given by the learned Sessions Judge for according an order of acquittal was fully justified in interfering with the said order of acquittal. (Para 9)

       It is thus apparent from the entire reading of the prosecutrix evidence that the accused had rubbed his penis with vagina of the prosecutrix and tried to penetrate but could not succeed in penetrating and ultimately got himself discharged and the hot semen fell on the thighs of the prosecutrix. The statement made by the prosecutrix on which Mr. Jain relied upon might have been made on account of the inexperience of the young girl who was being subjected to sexual harassment for the first time and the same cannot be read in isolation bereft of what she stated just previous to the aforesaid statement. Having given our anxious consideration and having scrutinized the evidence of the prosecutrix we are in agreement with the High Court that her evidence is that of truthful witness, which gives an account of the incident that happened to a rustic girl who was traumatized on account of sexual harassment meted out to her by none other than her own school Head Master. Her evidence can be unhesitatingly accepted by court and has rightly been accepted by the High Court for sustaining a conviction for the charge under attempt to commit rape. (Para 10)

       Apart from the trustworthy evidence of the prosecutrix herself we also find several circumstances as found by the High Court which corroborates the prosecutrix evidence and makes her statement wholly reliable. On the relevant date after 9 a.m. the prosecutrix as well as the accused were absent from the school. This lends credence to the story of the prosecutrix that she was sent to the house of the accused for cooking and thereafter the accused came to the house and committed the sexual assault. This would undoubtedly be a corroborating piece of evidence which the High Court has rightly relied upon. Then again the salwar of the prosecutrix was seized and had been sent to the Chemical Examiner for chemical analysis and the Scientific Officer of the Jammu and Kashmir, Forensic Science Laboratory after examining the said salwar reported that chemical and microscopical tests revealed the presence of semen/Human Spermatozoa on the said salwar. This is also a strong corroborative piece of evidence to the prosecutrix version even if it has not been established that the Human Spermatozoa is that of the accused. The statement of the mother of the prosecutrix to the effect that the prosecutrix narrated the entire episode immediately when she arrived at home can also be held to be a corroborative piece of evidence which the learned Sessions Judge excluded from consideration and in our view erroneously. (Para 13)