# 'lo MADAN LAL v. STATE OF JAMMU AND KASHMIR

- **Citation:** [1997] Supp. 3 S.C.R. 337
- **Court:** Supreme Court of India
- **Decided:** 1997-08-06
- **Case number:** Criminal Appeal No. D 503 of 1993
- **Bench:** G.N. Ray, G.B. Pattanaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lo-madan-lal-v-state-of-jammu-and-kashmir-15752
- **Pages:** 19

## Headnote

B
Indian Penal Code, 1860 :
Section 376 read with Section 511-Attempt to commit rape-Order of
acquittaf-Interference by appellate court-When-Held, there is no /imitation C
on the part of the appellate court to review the evidence upon which an order
of acquittal is founded-Appellate Court should interfere on being satisfied
that the view taken by the trial court is unreasonable-If two views are possible
on a set of evidence, the appellate court should not disturb the order of
acquittal-Criminal Proce<fure Code, 1973, Section 386.
D
Section 376-0ffence of attempt to commit rape-Completion
of-When-Accused failed to penetrate the erected penis into vagina but
ejaculated upon robbing the private part of the victim-Held, the accused
must have gone beyond the stage of preparatio11-Vnder the facts and circumstanc~s. the offence of an attempt to commit rape has been clearly E
established.
Criminal Triaf-Sections 376 read with 511 !PC-Attempt to commit
rape-Testimonial potency of victim's version-Assessment of-Held, the
human psychology and behavioural probability must be looked into-No p
woman of honour would falsely accuse a person of committing rape since she
sacrifices thereby what is dearest to her.
Criminal Triaf-Sections 376 read with 511 !PC-Attempt to commit
rape-Evidence of prosecutrix-Evaluation of-Held, the whole evidence has
to be looked into and it cannot be examined by picking one statement in the G
cross-examination to find out whether she is a trnthful witness or 1101.
Appellant - accused was the Head Master of a School and was
charged under Sections 376/511 I.P.C. read with S.342 for the commission
of offence of "attempt to commit rape" of the prosecutrix, a student of the H
337
338
SUPREME COURT REPORTS (1997) SUPP. 3 S.C.R.
A same school. It was alleged that the appellant sent to prosecutrix and two
other girls students, PWs 1 and 2, to his residence at about 9 A.M. for
cooking his meal. The appellant came home between 10 A.M. and 11 A.M.
and directed PWs 1 and 2 to leave but detained the prosecutrix for cleaning
the utensils. Thereafter the appellant forced the prosecutrix for illicit
B sexual intercourse and allowed her to go home at 3 P.M. The mother of
the prosecutrix, came only in the evening and the prosecutrix immediately
narrated the incident to her mother, who accompanied by PWs 17 and 23
gave a written report early morning on the next day to the police and a
case was registered against the accused under Section 376/342 I.P.C. The
C Doctor who examined the prosecutrix found the hymen of the p~secutrlx
intact and opined that no definite opinion could be given regarding the
attempt of sexual intercourse.
Trial Court acquitted the appellant ·accused of the said charges on
the ground that the two material witnesses, PWs-1 and 2, have not supD ported the prosecution case; that the prosecutrix and PWs 1 and 2 were
absent from the school on the relevant day after 9 A.M. has not been
established and even if their absence is assumed, the said circumstance
cannot be an incriminating evidence against the accused; that the accused
was present in the school till 1 P.M. as per the evidence of 3 school
E teachers; that the evidence of the Doctor, has shaken the credibility of the
prosecution version; that the presence of semen on the salwar of the
prosecutrix has not been estabiished to be that of the accused and there
is no explanation for the delayed seizure of salwar in question; that the
evidence of mother was rejected as she was influenced by PWs 17 and 23,
F who had accompanied her to the Police Station, as they were partisan and
had animus with the accused; and that since the testimony of the
prosecutrix did not inspire confidence, it is unworthy of acceptance and is
contradicted by the medical evidence itself.
State appealed to the High Court against the order of acquittal. The
G Division Bench of the High Court reversed the order of acquittal and
convlcti!d the appellant in respect of the said charges on the gro

## Text

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-'lo
MADAN LAL
A
v.
STATE OF JAMMU AND KASHMIR
AUGUST 6, 1997
[G.N. RAY AND G.B. PATTANAIK, JJ.]
B
Indian Penal Code, 1860 :
Section 376 read with Section 511-Attempt to commit rape-Order of
acquittaf-Interference by appellate court-When-Held, there is no /imitation C
on the part of the appellate court to review the evidence upon which an order
of acquittal is founded-Appellate Court should interfere on being satisfied
that the view taken by the trial court is unreasonable-If two views are possible
on a set of evidence, the appellate court should not disturb the order of
acquittal-Criminal Proce<fure Code, 1973, Section 386.
D
Section 376-0ffence of attempt to commit rape-Completion
of-When-Accused failed to penetrate the erected penis into vagina but
ejaculated upon robbing the private part of the victim-Held, the accused
must have gone beyond the stage of preparatio11-Vnder the facts and circumstanc~s. the offence of an attempt to commit rape has been clearly E
established.
Criminal Triaf-Sections 376 read with 511 !PC-Attempt to commit
rape-Testimonial potency of victim's version-Assessment of-Held, the
human psychology and behavioural probability must be looked into-No p
woman of honour would falsely accuse a person of committing rape since she
sacrifices thereby what is dearest to her.
Criminal Triaf-Sections 376 read with 511 !PC-Attempt to commit
rape-Evidence of prosecutrix-Evaluation of-Held, the whole evidence has
to be looked into and it cannot be examined by picking one statement in the G
cross-examination to find out whether she is a trnthful witness or 1101.
Appellant - accused was the Head Master of a School and was
charged under Sections 376/511 I.P.C. read with S.342 for the commission
of offence of "attempt to commit rape" of the prosecutrix, a student of the H
337
338
SUPREME COURT REPORTS (1997) SUPP. 3 S.C.R.
A same school. It was alleged that the appellant sent to prosecutrix and two
other girls students, PWs 1 and 2, to his residence at about 9 A.M. for
cooking his meal. The appellant came home between 10 A.M. and 11 A.M.
and directed PWs 1 and 2 to leave but detained the prosecutrix for cleaning
the utensils. Thereafter the appellant forced the prosecutrix for illicit
B sexual intercourse and allowed her to go home at 3 P.M. The mother of
the prosecutrix, came only in the evening and the prosecutrix immediately
narrated the incident to her mother, who accompanied by PWs 17 and 23
gave a written report early morning on the next day to the police and a
case was registered against the accused under Section 376/342 I.P.C. The
C Doctor who examined the prosecutrix found the hymen of the p~secutrlx
intact and opined that no definite opinion could be given regarding the
attempt of sexual intercourse.
Trial Court acquitted the appellant ·accused of the said charges on
the ground that the two material witnesses, PWs-1 and 2, have not supD ported the prosecution case; that the prosecutrix and PWs 1 and 2 were
absent from the school on the relevant day after 9 A.M. has not been
established and even if their absence is assumed, the said circumstance
cannot be an incriminating evidence against the accused; that the accused
was present in the school till 1 P.M. as per the evidence of 3 school
E teachers; that the evidence of the Doctor, has shaken the credibility of the
prosecution version; that the presence of semen on the salwar of the
prosecutrix has not been estabiished to be that of the accused and there
is no explanation for the delayed seizure of salwar in question; that the
evidence of mother was rejected as she was influenced by PWs 17 and 23,
F who had accompanied her to the Police Station, as they were partisan and
had animus with the accused; and that since the testimony of the
prosecutrix did not inspire confidence, it is unworthy of acceptance and is
contradicted by the medical evidence itself.
State appealed to the High Court against the order of acquittal. The
G Division Bench of the High Court reversed the order of acquittal and
convlcti!d the appellant in respect of the said charges on the ground that
the entire approach of the trial court in the matter of appreciation of
evidence lacked objectivity; that the circumstances proved by the prosecution evidence corroborated the version of the prosecutrix and made her
H statement acceptable and believable, the circumstances being • (i) the
MADANLALv. STATE
339
absence of the prosecutrix and PWs 1 and 2 as well as the accused from A
the school after recess, (ii) the presence of semen on the salwar of the
prosecutrix, and (iii) the statement of the prosecutrix to her mother about
the incident when her mother reached home in · the evening; that the
medical evidence was not appreciated in the proper context as the basic
approach of the trial court was erroneous as it failed to notice that the B
accused was facing trial for the offence of "attempt to commit rape" and
not for the offence of "rape"; that there was absolutely no animus between
the prosecutrix and accused; and that the statement of the prosecutrix was
convincing and did not require any corroboration. Against the order of
conviction by the High Court, the appellant has filed the present appeal. c
The appellant contended that the Trial court's view was a reasonable
view on the materials on record and the High Court was not justified in
interfering with an order of acquittal by re- appreciating the entire
evidence; that the evidence of the prosecutrix was wholly unreliable and
inconsistent with the medical report; that the presence ,of semen on the
salwar of the prosecutrix has not been established to be that of the accused D
. and there has been no explanation of the delayed seizure of the salwar;
that the evidence of the prosecutrix and her mother should have been
weighed from the admiUed animus between the accused and PWs 17 and
23; and that the accused should have been at the most charged with an
offence of indecent assault under Section 354 I.P .C. as the hymen of the E
prosecutrix was found intact by the doctor, instead of the offence of an
attempt to commit rape.
The respondent State contended that the evidence of the prosecutrix
has to be appreciated bearing in mind that an inexperienced young girl
not aware of the ingredient. of the offence of rape is making her statement; F
that there is absence of any animosity between the prosecutrix and the
accused; and that evidence of the prosecutrix is truthful and there are no
material contradictions and it is. supported by the circumstances of the
case.
Dismissing the appeal, the Court
G
HELD : 1. There is no limitation on the part of the appellate court
to review the evidence upon which an order of acquittal is founded. The
appellate court should consider every matter on record and the reasons
given by the trial court in support of the order of acquittal. In deciding H
340
SUPREME COURT REPORTS (1997] SUPP. 3 S.C.R.
A 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 arqultting judge Is unreasonable. If two views are possible on
a set of evidence then the appellate court need not substitute its own view
B 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
C 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
D 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 by the lower court are based on
E evidence and are plausible then it will not substitute its views on the
evidence and interfere with an order of acquittal. The High Court cannot
be said to have exceeded the parameters indicated for interference with an
order of acquittal. [348-C-H; 349·A·B]
p
State of U.P. v. Krishna Gopal and Anr., [1988] 4 SCC. 302, Harichand
v. State of Delhi, [1996] 9 SCC 112; Beta/ Singh v. State of M.P., [1996] 8
SCC 205, Tallurri Venkaiah Naidu v. Public Prosecutor, High Court of A.P.,
[1996] 11 sec 355, relied on.
G
2. In assessing the testimonial potency of the victim's version, the
human psychology and behavioural probability must be looked into. The
inherent hashfulness and the feminine tendency to conceal the outrage of
masculine sexual aggression are factors which are relevant to improbabilise
the hypothesis of false implication. In the present case a young girl was
subjected to sexual harassment by her own Head Master inside a closed
H room of that Head Master and one can well imagine her trauma after being
< ..
MADAN LAL v. STATE
341
subjected to such sexual harassment. It must be remembered that no woman A
of honour will falsely accused a person of committing rape since she
sacrifices thereby what is dearest to her. It has to be borne in· mind that the
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 B
her friends 'like PWs 17 and 23 would make serious allegations of sexual
assault by the accused against her daughter. (351-C·F]
Krishan Lal v. State of Haryana, [1980) 3 SCC 159, referred to • •
3. It is apparent from the entire reading of the prosecutrix evidence C
that the accused had rubbed his penis with vagina of the prosecutrix and
tried to pei,tetrate but could not succeed in penetrating and ultimately got
himself discharged and the hot semen fell on the thighs of the prosecutrix.
The statement by the prosecutrix regarding penetration into her vagina
might have been made on account of the innocence of the young girl who D
was being subjected to sexual harassment for the first time and the same
cannot be read in isolation bereft of what she stated earlier. The
prosecutrix evidence cannot be examined by picking one statement in the
cross-examination to find out whether she is a truthful witness or not. The
evidence of the prosecutrix is that of truthful witness, which gives an
account of the incident that happened to a rustic girl who was traumatized E
on account of sexual harassment meted out to her by none other than her
own school Head Master. [353·B·Dl
4. The difference between preparation and an attempt to commit an
offence consists chiefly in the greater degree of determination and what is F
necessary to prove for the commissi.on of an offence of an attempt to
commit rape is that the accused has gone beyond the stage of preparation.
If an accused strips a girl naked and then making her flat on the ground
undresses himself and then forcibly rubs his erected penis on the private
part of the girl but fails to penetrate the same into vagina and on such
rubbing ejaculates himself then it is difficult to hold that it was a case of G
merely assault under Section 354 l.P.C. and not an attempt to commit rape
under Section 376 read with Section 5111.P.C. In the facts and circumstan·
ces of the present case the offence of an attempt to commit rape by accused
has been clearly established and the High Court rightly convicted the
accused. [354-A-C]
H
342
SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.
A
5. Apart from the trustworthy evidence of the prosecutrix herself
there are several circumstances as found by the High Court which corroborates the evidence of the prosecutrix and makes her statement wholly
reliable. There are - the evidence of several class mates of the prosecutrix
which support her version that the accused, the prosecutrix as well as PWs
B 1and2 were absent from the school on the relevant date after 9. A.M.; the
presence of semen on the salwar of the prosecutrix even though it has not
been established that the semen is that of the accused; the statement of
the mother of the prosecutrix to the effect that the prosecutrix narrated
the enyre episode immediately when she arrived home; and the evidence
of the prosecutrix which does not run counter to the evidence of the
C teachers of the school that the accused was in the school .till 1 P.M., upon
which the trial court heavily relied, as according to the prosecutrix she was
confined to the house of the accused till 3 P.M. (354-D-H; 355-A-C]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
D 503 of 1993.
E
From the Judgment and Order date<t 2.3.93 of the Jammu & Kashmir
High Court in 10-Acquittal Appeal of 1988.
R.K. Jain, Anees Ahmad and R. Sasipiabhu for the Appellant.
Jagdev Singh Manhas for the Respondent.
The Judgment of the Court was delivered by
PATTANAIK, J. This appeal is directed against the judgment of the
p
High Court of Jammu and Kashmir dated 2.3.1983; convicting the appellant
under Section 376 read with 511 l.P.C. and sentencing him to undergo
rigorous imprisonp1ent for a period of 5 years and pay a fine of Rs. 2,000
in default a further simple imprisonment for 6 months, after setting aside
the order of acquittal passed by the Sessions Judge, Udhampur, in Sessions
case No. 12 of 1986.
G
The appellant who was the Head Master of Middle School, Khun, in
Tehsil Ram Nagar at the relevant point of time stood charged for the
offence of "attempt to commit rape" under Section 376/511 l.P.C. of the
prosecutrix Mst. Rajni, a student of the same school. It was alleged by the
H prosecution that on 21.5.1986 at about 9 a.m. the appellant sent the
MADANLALv. STATE[PATIANAIK,J.)
343
prosecutrix Mst. Rajni, PW-18 and two other girl students Mst. Sunita, A
PW-1 and Mst. Krishna, PW-2 to his residence for cooking his meal as the
Head Master was living without his family. The appellant then came home
between 10 a.m. and 11.00 a.m. and on reaching the home directed PWs .1
and 2 to leave the house but detained the prosecutrix, PW-18 with the
understanding that she can leave the house only after cleaning the utensils. B
Thereafter the appellant forced the prosecutrix for illicit intercourse and
ultimately allowed her to go home at 3 p.m. The prosecutrix reached her
house but did not find her mother who return only in the evening. She
immediately narrated the incident to her mother, PW-19, who in turn also
informed a friend of her PW-17. The father of the prosecutrix was not there C
at home. Next day, early morning, PW-19, mother of the prosecutrix
accompanied by PW 17 and PW-23 give a written report at the Police Post
Mahalta which was treated as F.I.R. in the Police Station, Ramnagar and
a case was registered under Section 376/342 I.P.C. The police then started
investigation and a charge-sheet was filed in the Court of Sub Judge, D
Judicial Magistrate, 1st Class, Ramnagar for the commission of offence
under Section 376/5111.P .C. read with 342. The accused denied the allegations. The prosecution examined as many as 24 witnesses of whom PWs 1
and 2 were supposed to have gone with the prosecutrix to the house of the
Head Master for cooking food but they did not, however, during trial E
support the prosecution case. PW-3, PW-4 and PW-5, teachers of the
school, also did not support the prosecution during trial inasmuch as they
stated that on the relevant date the accused had not left the school during
the recess period and they were also dedared hostile and were crossexamined by the prosecution. PWs 8, 9, 10 and 11 are the students of the F
school where the prosecutrix was studying and they also did not support
the prosecution and on the other hand· stated in their evidence that the
prosecutrix was present in the school through out the day on the date of
occurrence, accordingly they were also declared hostile and were cross-examined by the prosecution. PW-13 and PW-14, however, two other students G
of the same sc~ool who were studying in the same class where the
prosecutrix was studying, supported the prosecution case to the extent that
on the relevant date PW-1, PW-2 and PW-18 were absent from the school
after 9 a.m. PW-15, another classmate of the prosecutrix did support the
prosecution case to the effect that PW-1, PW-2 and PW-18 had left the H
344
SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.
A school after the recess period and PW-1 and PW-2 had told her that the
Head Master had sent them earlier to his house for cooking food for him.
PW-17 is a teacher by profession and according t.o her evidence on the
morning of 22.5.1986 prosecutrix - PW-18, her mother, PW-19 and PW-23
came to her house and told that accused had raped on PW-18 and they
B also requested her to lend support on behalf of 'Mahila Manda!'. Thereafter, she went with them to the Police Station to lodge the F.I.R. The
prosecutrix, PW-18 gave a detailed account of what had happened to her
on the fateful day of 21.5.1986. PW-19, the mother of the prosecutrix stated
to the effect that she came home late on 21.5.1986 when she found her
C daughter Mst. Rajni in a depressed mood. Seeing her, Mst. Rajni started
weeping. On being enquired, Mst. Rajni narrated the incident. She also
stated during her evidence that Mst. Rajni was examined by the lady
doctor, the said doctor while examining her expressed the opinion that this
is a false case and on this score PW-19 requested the police to get Mst.
D Rajni medically examined from another doctor but that request was not
acceded to. PW-21 was a Gynecologist in the District Hospital Udhampur.
On 23.5.86 at 10.30 a.m., on police requisition, she examined Mst. Rajni,
PW-18, and found that secondary sex characters were not well developed
on her body. She had also taken the vaginal smear and sent for chemical
E examination and opined that no definite opinion could be given regarding
the attempt of sexual intercourse. She had also stated in the evidence that
the hymen of the prosecutrix was intact and a small penetration in case of
a girl of 13 years old could rupture as well as injure the hymen. PW-22 was
the investigating officer and PW-23 was the other lady who had accomF panied the prosecutrix and her mother to the Police Station on 22.5.1986.
The learned Sessions Judge on scrutiny of the prosecution evidence
came to the conclusion that the case hinges on the sole testimony of
prosecutrix, PW-18. He also came to the conclusion that the prosecutrix
and PWs 1 and 2 were absent from the school on the relevant day after 9
G a.m. which could have been a corroborating circumstance has not been
established. The learned Sessions Judge also found that even assuming that
PW18 and PWs 1 and 2 had absented themselves from the school on the
relevant day after 9 a m., the said circumstance cannot be an incriminating
circumstance against the accused with the commission of the crime. The
learned Sessions Judge relying upon the evidence of the 3 school teachers,
H
MADANLALv. STATE[PATIANAIK,J.]
345
PWs 3, 4 and 20 came to hold that accused was absent from the school A
after 9 a.m. has also not been established. On consideration of the medical
evidence of the Doctor PW-21, the learned Sessions Judge came to hold
that the medical evidence instead of lending support to the prosecution
story has shaken the credibility of tlie prosecution version. So far as the
presence of semen on the salwar of the prosecutrix, the learned Sessions
Judge did not. attach any importance since the same was seized only on B
24.5.86 and there is no explanation for the delayed seizure of thi< salwar in
question. The evidence of the mother of the prosecutrix, PW-19 as well as
those of PWs 17 and 23 who had accompanied the prosecutrix to the Police
Station on the morning hours of 22.5.86 have been brushed aside on the
ground of animosity and partisan character of the two members of the C
Mahila Samiti Manda! namely PW-17 and PW-23. So far as the evidence
of the prosecutrix herself is concerned the learned Sessions Judge was of
the opinion that she has been contradicted in material particulars by the
medical evidence of Dr. Vijay Sharma, PW-21 and further she has attempted to improve her version in the court regarding the commission of
rape which she has not stated under Section 161 Cr. P.C. The learned D
Sessions Judge found out some contradictions between her statement to
the police under Section 161 Cr. P.C. and ultimately came to the conclusion
that the statement of the prosecutrix does not inspire any confidence and
the said statement is unworthy of acceptance. With these findings the
learned Sessions Judge acquitted the accused of the charge leveled against E
him:
On an appeal being carried by the State against the said order of
acquittal,, the Division Bench of the High Court by the impugned judgment
reversed the order of acquittal and came to hold that the charge against
the accused under Section 376 read with 511 I.P.C. h<!s been proved beyond F
reasonable doubt and accordingly the accused has been convicted thereunder and has been sentenced to undergo rigorous imprisonment for a
period of 5 years with a fine of Rs. 2,000, in default, a further period of 6
months imprisonment as already stated. In setting aside the order of
acquittal the High Court came to the conclusion that the entire approach
of the trial court in the matter of appreciation of evidence lacked of G
objectivity. The High Court on scrutiny of evidence apart from relying on
the testimony of the ptosecutrix, PW-18 came to hold that the fact that the
prosecutrix narrated the story of the incident to her mother immediately
when the mother was available in the evening; and that the Salwar of the
prosecutrix which she was wearing at the time of occurrence was seized
and on chemical analysis was found to be carrying stains of semen; and H
\
346
SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.
A further that the prosecutrix as well as the accused were not seen in the
school after the recess, corroborate the; prosecutrix's statement and makes
her statement acceptable and believable. So far as the conclusion of the
learned Sessions Judge on the medical evidence of Doctor PW-19 is
concerned the High Court observed that the Sessions Judge committed a
serious error in not focusing his attention to the fact that the accused was
B facing a trial for the offence of "attempt to commit rape" and not for the
offence of "rape", and therefore, the medical evidence has not been appreciated in the context of the plain statement and language of the
prosecutrix herself. The learned Judges of the High Court also took into
account the fact that there was absolutely no animus between the
prosecutrix and accused-respondent. So far as the evidence of prosecutrix
C herself is concerned the High Court after scrutinizing the same came to
hold that'the statement of the prosecutrix was so convincing that it did not
require any corroboration though as a fact there are sufficient circumstances proved in the case which fully corroborate the version of the
prosecutrix. The High Court also commented on the fact that the Sessions
D Judge took refuse on minor discrepancies here and there in the evidence
of the prosecutrix and thereby landed into an error by misappreciating the
evidence. Ultimately the High Court convicted the appellant as already
stated, and thus the present appeal has been preferred.
Mr. Jain, the learned senior counsel appearing for the appellant
E contended that the High Court was fully unjustified in interfering with an
order of acquittal passed by the learned Sessions Judge by reappreciating
the entire evidence not bearing in mind the principle that the view taken
by the Sessions Judge is a reasonable view on the materials on record and
as such should not be interfered with. Mr. Jain further contended that the
evidence of prosecutrix which apparently is the sole evidence on which the
F conviction has be.en based bristles with such inconsistencies and inherent
improbabilities that the prosecutrix can be held to be a wholly unreliable
witness and as such no credence can be given to her statement and no
conviction can be based on her testimony. With reference to the medical
evidence, Mr. Jain, contended that the findings of the doctor that hymen
G was intact and there has been no rupture or any injury to the hymen, who!ly
improbabilises the version of the prosecutrix that the accused had committed rape on her on two occasions and there has been a penetration of
the private part of the accused to an extent of quarter of an inch on one
occasion and one inch on the other occasion. Mr. Jain, the learned senior
coun,sel also urged that the presence of semen on the salwar of the
H prosecutrix cannot be said to be an incriminating piece of evidence until
MADANLALv.STATE[PATTANAIK,J.)
347
and unless it is established that the semen is that of the accused. That apart A
the seizure of the said salwar two days after the occurrence and absence
of any explanation for such delayed seizure creates ample doubt in the
prosecution case. Mr. Jain also vehemently contended that the evidence of
the prosecutrix as well as her mother should be weighed from the admitted
animosity between the accused and PWs 17 and 23, the two Mahila Samiti B
Manda! members who were bent upon teaching a lesson to the accused for
some of their grievances. According to Mr. Jain conviction of the appellant,
on account of such infirmities in the prosecution case and on account of
unrealiable evidence of the prosecutrix, is wholly unsustainable, though on
a question of law there cannot be any dispute with the proposition that
conviction can be based on the uncorroborated testimony of the C
prosecutrix provided the prosecutrix can be held to be reliable.
The learned counsel appearing for the respondent - State on the
other hand contended that the evidence of the prosecutrix has to be
appreciated bearing in mind that a young girl has been molested and
subjected tci sexual assault by her own Head Master. Her evidence narrat- D
ing the incident has to be appreciated from the stand-point that an inexperienced young girl is making her statement of commission of rape not
being aware of the ingredients of the offence of rape. According to the
learned counsel the evidence of the . said prosecutrix has been properly
appreciated by the High Court and the High Court has pointed out the E
basic erroneous approach committed. by the learned Sessions !udge and
the conviction based on her evidence does not call for any interference by
this Court. According to the learned counsel in the absence of any
animosity between the prosecutrix and the accused it is unimaginable that
a young girl would subject herself to the ignoming and embarrassment in
the society by making an allegation to the fact that her own Head Master
attempted to commit rape on her. According to the learned counsel a plain
reading of her evidence would unequivocally indicate that the girl has
_narrated the incident truthfully and the so called minor discrepancies·here
and there cannot be held to be any material contradiction in her statement
F
so as not to rely on the same. The counsel further contended that the G
circumstances as found by the High Court have fully corroborate tire
evidence of the prosecutrix and establishes the truthfulness of the
prosecutrix's version.
In view of the rival submission at the Bar, the questions arise for our H
348
SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.
A consideration are :
1 Whether in the facts and circumstances of the case the Higli Court
was justified in interfering with an order of acquittal passed by the learned
Sessions Judge?;
B
2. Whether the evidence of the prosecutrix can be safely relied
upon?; and
3. Whether any other circumstances found in the case .corroborate
the version of the prosecutrix?
C
Coming to the first question it may be stated that the power of the
appellate court in an appeal against acquittal has been discussed in a
catena of cases by this Court and it has been indicated that there is no
limitation on the part of the appellate court to review the evidence upon
which an order of acquittal is founded. The different expressions used in
I
D different judgments of this Court to the effect that there must be "sufficient
and compelling reasons" or "good and sufficiently cogr.nt reasons" for the
appellate coui:t to alter an order of acquittal to one of conviction, by no
manner curtail the power of an appellate court in an appeal against
_acquittal to review the entire evidence and come to its conclusion. But in
E doing so the appellate court should consider every matter on record and
the reasons given by the trial court in support of the order of acquittal.
The essence of several decisions of this Court is the rule that. in deciding
appeals against acquittal the court of appeal must examine the evidence in
a particular case: must also examine the reason on which the order of
F
acquittal was based : and shou_ld 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
G 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
H an accused by giving undue importance to minor discrepancies and making
MADANIALv. STATE(PATIANAIK,J.)
349
a suspicion on evidence based on conjectures then the High Court will be A
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 . B
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 C
.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. This
Court in the case of State of U.P. v. Krishna Gopal and Anr., [1988] 4 SCC
302 observed that the principles relating to limitations of the appellate
court in an appeal against acquittal do not detract from the plenitude of
the power of the appellate court to review and reappreciate the evidence D
if the order of acquittal on a review of the evidence is found to be grossly
erroneous. There is, thus no immunity to an erroneous order from a strict
appellate scrutiny but it must record reasons in support. To the same effect
also is the observations of this Court in Hari Chand v. State of Delhi, (1996]
9 SCC 112, Beta/ Singh v. State of M.P., (1996) 8 SCC 205 and Tallurri E
Venkaiah Naidu v. Public Prosecutor, High Court of A.P., [1996) 11 SCC
355.
It is not necessary to multiply authorities and the question no longer
remains res integra. Bearing in mind the aforesaid principle it would be F
necessary to examine the reasons which weighed with the learned Sessions
Judge to order an acquittal and the reasons which weighed with the High
Court in reversing the said order of acquittal. The learned Sessions Judge
came to the conclusion that there is no cogent evidence to establish that
the accused had sent the prosecutrix, PW-18 and two other classmates
PW-1 and PW-2 to his house for cooking the meal and the two material G
witnesses namely PW-1 and PW-2 not having supported the prosecution
case in this regard the evidence of the prosecutrix in that respect is not
believable. The learned Sessions Judge also came to the conclusion that
though the fact that prosecutrix and PW s 1 and 2 had absented themselves
from the school from 9 am. on the relevant day is established but the same H
350
SUPREME COURT REPORTS [1997) SUPP. 3 S.C.R.
A cannot be an incriminating evidence against the accused. So far as the
absence of the accused from the school after the recess is concerned,
relying upon the evidence of PWs 3, 4 and 20 who were the school teachers,
the learned Sessions Judge came to hold that the accused was present in
tli.e school till 1 p.m. So far as the contemporarious evidence of the mother
B to whom the prosecutrix narrated the incident immediately after the
mother reached home, the learned Sessions Judge has not given any weight
as according to him she was fully influenced by PWs 17 and 23 who had
an axe to grind against the accused. On the evidence of Doctor, PW-21 the
learned Sessions Judge came to the conclusion that the medical evidence
has. shaken the credibility of the prosecutrix version. On the question of
C seizure of salwar of the prosecutrix and the presence of semen on the same
the learned sessions Judge is of the opinion that since semen found thereon
has not been established to be that of the accused the same cannot be held
to be an incriminating evidence and finally the evidence of the prosecutrix
has been held to be unworthy of acceptance because the same is found to
D be replete with infirmities, improvements and contradictions and found to
be contradicted by the medical evidence itself. It is on these reasoning the
learned Sessions Judge recorded the order of acquittal of the accused. The
High Court, however, on re-appreciating the evidence came to hold that
the basic approach of the Sessions Judge was erroneous inasmuch as the
E charge was not for "commission of offence of rape" but for the "commission
of offence of attempt to commit rape". The High Court also considered the
circumstances proved by the prosecution evidence and came to hold that
those circumstances proved sufficiently and corroborates the story of the
prosecutrix and makes the statement of the prosecutrix believable. The said
F
G
circumstances enumerated by the High Court in its judgment are: the
absence of the prosecutrix and PW s 1 and 2 as well as the accused from
the school after the recess; the· presence of semen on the salwar of the
prosecutrix as reported by the Chemical Examiner on analysis; the statement of the prosecutrix to her mother when her mother reached home in
the evening; and the total mis-.appreciation of the medical evidence by the
Sessions Judge. One of the main reasons that had influenced the Sessions
Judge is the finding of the doctor on examining the prosecutrix that there
has been no rupture of hymen and as such the offence of rape could not
be said to have been established. The High Court on reading the evidence
of the prosecutrix has come to the finding that the prosecutrix's evidence
H was cogent and clear to the effect that there has been no penetration of
MADANLALv. STATE[PATIANAIK,J.]
351
the organ of the accused into the vagina of the prosecutrix and on the other A
hand the accused merely rubbed his digital organ as a result of which there
was discharge of hot white liquid substance which fell on the thighs of the
prosecutrix. We would examine in greater detail the evidence of the
prosecutrix and the medical evidence later but on going through the
reasoning advanced by the High Court for interfering with an order of B
acquittal passed by the learned Sessions Judge we are of'the considered
opinion that the High Court cannot be said to have exceeded the parameter
indicated in several judgments of this Court for interference with ari order
of acquittal.
It will be appropriate at this stage to bear in mind that in assessing C
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 sec 159). In the case in hand a young,girl was D
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 in a better statutory armour against gender outrage than long clauses E
of a complex section with all the protections writ into it". It must be
remembered that no woman of honour will accuse 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 F
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 jus- G
tified in interfering with the said order of acquittal.
The next question that would crop up for consideration is whether
the evidence of the prosecutrix can be relied upon? The entire argument
of Mr. Jain, the learned senior counsel appearing for the appellant is that H
352
SUPREME COURT REPORTS (1997] SUPP. 3 S.C.R.
A
the prosecutrix's evidence is wholly believed by the evidei:11;:e of the Doctor,
and therefore, she must be held to be a wholly unbelievable witness and
consequently no part of her statement can be acted upon. Learned counsel
for the State on the other hand submitted that reading of the prosecutrix
evidence would indicate that she has narrated the entire incident truthfully
B
and cogently to her mother and if any part of her statement in the· course
of narration is belied by the medical evidence the said part cati be ignored
from consideration. The entire argument centres around her statement in
the cross-examination to the effect"first time when the accused entered his
penis into her vagina, it went inside about one inch. So much, the witness
exhibited her finger which comes to some quarter of inch. The accused
C
continued thrusting his penis some time into her vagina and some time
pulled it out. When the accused after having stood up his penis again
started rubbing it against her vagina, which he conducted about two
minutes, even then the penis might have gone in about quarter to inch."
The Doctor who examined the prosecutrix on 23.5.86 at 10.30 am.