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SUPREME COURT OF INDIA
AFTAB ALAM & RANJANA PRAKASH DESAI, JJ.
K. VENKATESHWARLU - Appellant
VERSUS
STATE OF ANDHRA PRADESH - Respondent
Criminal Appeal No. 500 of 2011
Decided on : 17-08-2012.
Appeal against acquittal-If the view taken by the trial court is a reasonably possible view, High Court cannot set it aside and substitute it by its own view merely because that view is also possible on the facts of the case- High Court has to bear in mind that presumption of innocence of an accused is strengthened by his acquittal and unless there are strong and compelling circumstances which rebut that presumption and conclusively establish the guilt of the accused, order of acquittal cannot be set aside- Unless the order of acquittal is perverse, totally against the weight of evidence and rendered in complete breach of settled principles underlying criminal jurisprudence, no interference is called for with it (Para 5)
Evidence of a child witness -Admissibility of - Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth- It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the court-Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the court decides to rely upon it (Para 9)
Facts of the Case :
Appellant was prosecuted herein in the instant case for committing rape on PW2. Trial Court acquitted appellant giving him benefit of doubt. Appeal thereagainst was allowed by High Court convicting appellant.
B. Present appeal has been filed against said order of High Court.
Findings of the Court :
For want of legal evidence appellants conviction and sentence was held liable to be set aside.
Result : Appeal disposed of
JUDGMENT
(Smt.) Ranjana Prakash Desai, J.
This appeal by special leave is directed against the judgment dated 20/10/2009 passed by the High Court of Andhra Pradesh in Criminal Appeal No.1037 of 2001 whereby the High Court has reversed the judgment and order of the Additional Sessions Judge, Miryalguda acquitting the appellant of the offence punishable under Section 376 of the Indian Penal Code (for short, ‘the IPC’). The High Court has sentenced the appellant to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs,1,000/-, in default, to suffer simple imprisonment for a period of one month.
2. In short the prosecution case is that PW-1 Anjaiah and PW-3 Padma, father and mother respectively of PW-2 Aruna are residents of Vepalasingaram village of District Nalgonda. PW-2 is physically handicapped due to Polio. On 30th August, 1998, PWs 1 and 3 who work as coolies left for their work leaving PW-2 Aruna in the house. PW-2 Aruna and other children played for sometime on the terrace of the house of the appellant who was working as police constable. At about 4.00 p.m., all the children decided to go down. It was, however, difficult for PW-2 Aruna to go down due to her physical handicap. At that time the appellant came there, PW-2 requested him to help her to go to the ground floor. According to the prosecution the appellant lifted her, took her in his house, laid her on a cot and committed rape on her. The children, who were present there, saw the incident by peeping from the side of the door curtain. They informed PW1 about the incident after he returned from his work. Thereafter PW-1 went to the police station and lodged FIR (Ex. P.1). PW-16 G. Madhusudan Rao, Sub-Inspector of Police, Huzurnagar Mandal, registered a crime against the appellant for the offence punishable under Section 376 of the IPC. PW-15 Dr. M. Lalitha Rao, Civil Assistant Surgeon of the Nalgonda District Headquarters Hospital examined the prosecutrix on 1.9.1998 at about 12.10 p.m. Vaginal slides were sent to the Forensic Science Laboratory. The appellant was arrested on 4.9.1998. He was examined at the Government Hospital, Huzurnagar. After completion of the investigation the appellant was charged under Section 376 of the IPC. In support of its case the prosecution examined as many as 18 witnesses. The appellant contended that he was falsely implicated. He claimed to be tried.
3. The trial court acquitted the appellant basically on the ground that the victim and her mother did not speak anything about the rape and the child witnesses stated that they were kept by the police in police station prior to giving evidence and therefore, their evidence cannot be relied upon. The trial court observed that the appellant is entitled to benefit of doubt. An appeal was carried by the State of Andhra Pradesh to the High Court. The High Court came to a conclusion that there was no appreciation of evidence at all by the trial court. The High Court re- appreciated the evidence and recorded a finding that the prosecution has proved its case beyond reasonable doubt. The High Court set aside the trial court’s order and convicted the appellant as aforesaid, which has led to this appeal.
4. We have heard learned counsel for the appellant. He submitted that the High Court erred in setting aside the order of acquittal which was based on a correct appreciation of evidence. Counsel submitted that by no stretch of imagination the order of acquittal passed by the Sessions Court can be characterized as perverse warranting interference by the High Court. Counsel submitted that PW-1 Anjaiah and PW-3 Padma, father and mother of the victim have not supported the prosecution case. PW-2 Aruna the victim has also not stated that she was sexually assaulted by the appellant. The child witnesses have admitted that they were at the police station for considerable period before they were brought to the court. It is evident, therefore, that they were tutored by the police.
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