JUDGMENT [ENTITY], J.
1.The State has preferred this appeal against the judgment of acquittal rendered by the Additional Assistant Sessions Judge, Srikakulam in [CASE NUMBER] on 29.9.1997 for the offence under [SECTION], [SECTION] and [SECTION] [ACT].
2.The story of the prosecution can be briefly stated as follows:
On 3.6.1996 P.W.1, the victim was sleeping on her bed on the pial of her house at about 8.00 p.m., after taking food. During the mid-night, P.W.1 woke up after sensing that her saree was lifted. She saw the accused at her legs kept his hands on her and pressed to the ground without giving her an opportunity to get up. Her bangles were broken. The accused kept P.W.1 pressed to the ground, tore her saree, widened her legs and committed sexual intercourse without her consent and against her will. On hearing cries, her father P.W.2, who was sleeping nearby, came there and tried to pull away the accused. The accused got up after completing the act and beat P.W.2 with a stick on his left upper arm and left leg. P.W.3, [ENTITY] and [ENTITY], who were sleeping by the side of the victim woke up and noticed the accused. The accused left the place and after entering into his house closed the doors. P.Ws.1 and 2 went to Saravakota police station and gave Ex.P-1 report, which was registered as Ex.P-8, F.I.R by P.W.9. He sent intimation to P.W.10, Circle Inspector of Police. P.W.10 took up investigation, visited the scene of offence, recovered the properties and laid charge sheet for the offence under [SECTION], [SECTION] and [SECTION] [ACT]. The plea of the accused is one of denial for the charges under [SECTION], [SECTION] and [SECTION] [ACT]. The prosecution examined the prosecutrix as P.W.1. Her father is examined as P.W.2. P.W.3 is the mother of P.W.1. She supported the version of P.W.1. P.W4, Village Administrative Officer at Jaladhi group turned hostile and stated that nothing was recovered in his presence even though he admitted his signature on the mediatornama. P.W.5. Ex-Sarpanch of Madanapuram village also denies about observing the scene of offence. But he states that he has written the mediators report. He has been treated as hostile. P.W.6, Dr. [ENTITY], who examined P.W.2, found the following injuries:
1. A contusion of 3" x 2" on the left upper arm
2. A contusion on the left eye 3" x 2"
He opined that the injuries are simple in nature and might have been caused by a stick. He issued Ex.P-2 wound certificate. He also deposed that he examined the accused on 28.6.1996 with regard to determining his potency and he opined that the accused was potent. He issued Ex.P-3 certificate. P.W.7, Dr. [ENTITY] examined P.W.1 and noticed the following injuries:
1. An abrasion 1" x 1/4" on the right forearm, reddish brown in colour.
2. A contusion 2" x 2" size on the right dorsum of the hand, reddish brown in colour.
3. An abrasion of 1/2" x 1/4" over the middle half anterior surface of right fore arm, reddish in brown colour.
4. An abrasion of 1/2" x 1/2" on the middle of the left forearm.
He observed that the injuries are external injuries. On examination he found the external genetelia is healthy. In hymen old tear present, vagina is loose admitting two fingers easily, uterus normal in size mobile and no signs of disease inside. After receipt of chemical examiner's report, he opined that intercourse had taken place prior to the examination. It is also in his evidence that injuries 1 to 4 can be possible when the victim averted forcible intercourse. He issued Exs.P-4 and P-5 wound certificates. P.W.8 deposes regarding receipt of case property and final analyst report under Exs.P-6 and P-7. P.W.9 deposes about the receipt of Ex.P-1 complaint from the prosecutrix at about 12 noon along with M.O.1 and registering the same as F.I.R., Ex.P-8 and informing the same to the Circle Inspector of Police by wireless set. P.W.10, the Circle Inspector of Police, deposes about taking over investigation after receipt of intimation, visiting the scene of offence, seizing the bangle pieces at the scene, examination of witnesses and filing of charge sheet. After appraisal of the entire evidence, the Additional Assistant Sessions Judge, Srikakulam, found the accused not guilty for the charges under [SECTION], [SECTION] and [SECTION] [ACT] and acquitted him. Aggrieved by the same, the State has preferred this appeal.
3. The points that arise for consideration are: 1. Whether the judgment of acquittal is perverse. 2. Whether there is proper appraisal of the evidence and whether any miscarriage of justice occurred.
4. It is stated by the Apex Court in [PRECEDENT] at para 14 as under:
"It is true that an order of acquittal should not be lightly interfered with. Though the Appellate Court has full power to review the evidence upon which the order of acquittal is founded, still while exercising such an appellate power in a case of acquittal, the Appellate Court should not only consider every matter on record having a bearing on the question of fact and the reasons given by the Courts below in support of its order of acquittal. It must express its reasons in the judgment which led it to hold that the acquittal is not justified".
It is also further observed at para 15 as follows:
"It is obligatory on the High Court while reversing an order of acquittal to consider and discuss each of the reasons given by trial court to acquit the accused and then to dislodge those reasons."
In [PRECEDENT] the Apex Court has also observed at paras 18 and 19 which are as follows:
"18. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law [PRECEDENT] . Prosecution is not required to meet any and every hypothesis put forward by the accused [PRECEDENT] . A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence of the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rate innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish - [PRECEDENT] - . Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties". (Per [ENTITY] in [PRECEDENT] quoted in [PRECEDENT] . Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
19. In matters such as this, it is appropriate to recall the observations of this Court in [PRECEDENT] :
" The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt
The evil of acquitting a guilty person light-heartedly as a learned author [ENTITY] in 'Proof of Guilt' has sapiently observed, goes much beyond the simple fact, that, just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless
a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent "(p.492)."
5. It is clear from the above observations of the Supreme Court that a Judge presides over the criminal trial shall not only to see that no innocent person is punished, but also to see that a guilty man does not escape. It is also observed by the Supreme Court that both are public duties. The prosecutrix categorically states that on 3.6.1996 she was sleeping on one side and her mother and sister were sleeping adjacent to her. During mid-night time, she found her saree was being lifted. It is in the evidence of P.W.1 that the accused pressed her tightly and did not allow her to move. He removed the gochi type saree, widened her leg and did intercourse with her. She raised cries. P.W.2 who was sleeping outside came inside. P.W.3 also woke up on hearing the cries. They tried to separate the accused. After completing the act of intercourse the accused got up and took a stick and hit P.W.2 causing injuries and went into his house, adjacent to the house of P.W.2 and closed the doors. Thereafter, in the morning they went to the police station and presented Ex.P-1 report. P.Ws.2 and 3 also corroborates the same in all material particulars.
6. The learned Public Prosecutor contends that there is corroboration in the evidence of P.Ws.1 to 3 in all material particulars which is supported by medical evidence as well as analyst report. Hence the Additional Assistant Sessions Judge totally ignored the said evidence and due to which miscarriage of justice occurred.
7. The learned counsel for the accused contends that the loincloth (gochi) like saree worn by a woman is very tight and it is impossible for anybody to remove it. It is also contended that it is impossible to have an intercourse without the consent of a woman when she was sleeping along with her mother, P.W.3 and sister. It is also contended by the counsel for the accused that there was a quarrel in the morning between the women folk of P.W.2 and the wife of the accused in respect of a dispute with regard to the compound wall and due to that reason this case had been foisted. It is also stated that a report was also presented by the wife of the accused before the police and they registered the same.
8. The question that falls for consideration is whether P.W.1 was speaking truth or falsehood in order to take revenge due to the quarrel that took place in the morning. The evidence of P.W.1 has been disbelieved on the ground that the loincloth like saree cannot be removed easily and it is impossible to have intercourse without the consent of a woman. It is also stated by the Additional Assistant Sessions Judge that it is impossible to have sexual intercourse with a sleeping woman without her consent that too woman like P.W.1, who was accustomed to do hard work. It is also pointed out that non-finding of injuries on P.W.1 goes to show that there might be consent for intercourse. The learned Judge also disbelieved her version on the ground that there is a motive to give this report in view of the quarrel that took place during morning time.
9. The learned counsel for the accused also contends that P.W.1 is a divorcee, she is a woman of easy virtues and bad character and placed reliance on the evidence of D.W.1, who earlier married P.W.1 and divorced her. On that ground, the learned counsel for the accused wanted this Court to discard the evidence of P.W.1 as unreliable and untrustworthy being the woman of easy virtues.
10. Adverting to the said contentions, it is now well settled that bad character is not relevant as can be seen from the provisions of [SECTION] and [SECTION] of the [ACT]. It is clear that if the bad character is itself a fact in issue then only evidence can be placed. It is not a case where bad character is relevant in issue. It is a case of rape said to have been committed on P.W.1. In that view of the matter, the evidence of D.W.1 will not be relevant in this case which has been placed by the accused. Moreover, the evidence of D.W.1 shows that he married another woman, who is a neighbour after giving divorce. A suggestion is put to him that because of his acts towards P.W.1, she gave divorce. In any view of the matter, that is going besides the point in issue. The question that falls for consideration in this case is only regarding commission of rape, causing of injuries and trespass during night time. Even assuming that P.W.1 is a woman of easy virtues which led to giving divorce by her husband, it does not ipso facto lead to the conclusion that she gave a consent for having intercourse at that odd hour. It is a case where P.W.1 was sleeping adjacent to her mother and sister. She noticed that a person is lifting her saree. Immediately she realized that something was happening and thereafter the accused was said to have pressed her hands tightly. It appears that she kicked him with legs. It is in the evidence of P.W.1 that she raised cries and immediately P.W.2 sleeping out side rushed there and noticed the accused. P.W.3, mother and sister, who were sleeping adjacent, also woke up and saw the accused. If really she gave consent for intercourse, there is no need for her to raise alarm, she could have gone out and had sexual intercourse and come back. The narration of events of P.W.1 is natural. The analyst report Ex.P-7 shows that semen and spermatozoa were found on the cloths. P.W.7 has perused the opinion of the analyst and stated that P.W.1 had forcible intercourse. The contention canvassed by the counsel for the accused that P.W.1 might have taken bath and there is no possibility of finding semen and spermatozoa on the slides taken and the report of analyst cannot be relied upon. It is clear from the evidence of P.W.1 that she handed over the saree to P.W.9 and P.W.10 in turn sent the same to the expert for opinion and the analyst found semen and spermatozoa on the saree. No doubt injuries were not found when she had intercourse. She is a married woman. P.W.7 examined her and found the vagina loose and admits two fingers easily. Unfortunately, it has become a habit of the doctors to get examined the private parts of female by male doctors in spite of availability of female persons in the hospital. It is the duty of the prosecution to inform the court that she was examined with the help of a female person and not by a male person directly. Time and again this Court has observed that female person should not be examined by a male person in rape cases unless in exceptional circumstances where there is no possibility of securing female assistance. But that does not in any way have an impact on the reliability of the evidence of P.W.7. If really she has given consent, there is no need for her to raise an alarm. In fact, P.W.10, who visited the scene of offence, noticed broken bangle pieces at the scene. Moreover, when the quarrel took place in between the women folk during morning hours, there was no possibility of this woman to have sexual intercourse with the accused in her house. That part of the evidence will only indicate that no prudent person will invite the neighbour when quarrel took place to have sexual intercourse by giving consent. If it is viewed through this angle, the contention canvassed by the learned counsel for the accused that she may be a consenting party for sexual intercourse does not hold water. I also state that the evidence of the prosecutrix is corroborated by the evidence of P.W.2 and P.W.3. The incident was said to have taken place during midnight when she was sleeping in her house. P.W.2 spoke about the injuries caused by the accused. P.W.6 examined him and noticed two contusions on left upper arm and left eye. It is also clear that it cannot be said that he will self-inflict those injuries for the purpose of launching the false case. There is no artificiality in the evidence of P.W.1 except some exaggerations. The entire narration of events, which is corroborated by medical evidence and the evidence of P.Ws.2 and 3, will only probabilise that the incident of rape did take place. It is not a falsehood. The court has to judge the evidence on the touch-stone of the truth and arrive at the truth. It is stated by the Supreme Court that the only favourite for the court is to arrive at the truth and nothing else. I am of considered view that simply because some report is given in the morning does not mean that no incident has taken place during night time. Each incident has to be judged on its own merits. In that view of the matter, the lower court has misread the evidence and has not made an attempt to arrive at the truth. The appellate court has got ample power to review the evidence to arrive at the truth and judge whether the reasoning given by the lower court is correct or not. It is a case where there is no proper approach in judging the evidence of rape. The medical evidence clearly points out that there is forcible intercourse. It clearly points that injuries were sustained by P.W.2. They can only be best explained when the version of prosecution is accepted. In that view of the matter, I am of considered view that the evidence placed on defence side looses its value, as bad character is irrelevant. Even bad character people may give consent or may not give consent for sexual intercourse.
11. Coming to the aspect of woman of hard work etc., much can be said on both sides. There is no hard and fast rule to show that woman accustomed to hard work will give more resistance than a person who are delicate. It all depends on the circumstances and human psychology of the persons. In that view of the matter, the evidence given out by the prosecution appears to be truthful and trustworthy as it is supported by medical evidence. The non-examination of neighbours does not in any way improbabilise the version of the prosecution witness. The non-production of the stick also does not in any way show that no incident took place.
12. On a reappraisal of the entire evidence, I am of considered view that the evidence of prosecution is reliable and trustworthy. I also find that there was no proper approach made by the Additional Assistant Sessions Judge in appreciating the evidence. The prosecution is not required to meet any and every hypothesis put forward by the accused. Proof beyond doubt is a guideline and not fetish. Hence, I find that the accused was responsible for entering into the house as well as committing the offence of rape and beating P.W.2 and causing injuries. I find the accused guilty for the charges under [SECTION], [SECTION] and [SECTION] [ACT]. The judgment of acquittal is liable to be set aside as miscarriage of justice occurred and I, accordingly, set aside the same. The accused has to be examined about the quantum of sentence. He is not before this Court. Under the said circumstances, imposing of sentence has to be postponed. It can be done only after hearing the accused. Hence, the matter is sent back to the Additional Assistant Sessions Judge, Srikakulam for the limited purpose of examination of the accused regarding the quantum of sentence. He shall resubmit the record with the answers recorded. Thereupon, this Court will hear about the quantum of sentence and award the sentence. The Registrar (Judicial) shall see that the Additional Assistant Sessions Judge, Srikakulam, examine the accused about the quantum of sentence in [CASE NUMBER] for the alleged offence and resubmit the answers to this Court, so that this Court can proceed with the further hearing of the case and award the sentence.
The criminal appeal is ordered accordingly.
List out the case soon after receipt of the record from the lower court.
13. The matter is once again listed out today for hearing the case and awarding the appropriate sentence. The Additional Sessions Judge, Srikakulam, has examined the accused and sent the answers. The accused has stated that he has compromised with the defacto-complainant, and he is an agricultural coolie and the case has been launched due to the political disputes.
14. The learned Counsel appearing for the respondent/accused contends that a lenient view may be taken in view of the compromise entered in between the parties.
15. The learned Public Prosecutor contends that a deterrent punishment has to be given to the respondent/accused as it is a case of trespass and also committing rape over P.W-1 as well as causing injuries to P.W-2.
16. Adverting to the said contentions, the Apex Court as long back as in [PRECEDENT] provided guidelines for consideration of the factors before awarding the sentence. The relevant portion is at para No.3 which reads as follows:-
This new provision in [SECTION] is in consonance with the modern trends in prenology and sentencing procedures. There was no such provision in the old Code. Under the old Code, whatever be accused wished to submit in regard to the sentence had to be stated by him before the arguments concluded and the judgment was delivered. There was no separate stage for being heard in regard to sentence. The accused had to produce material and make his submissions in regard to sentence on the assumption that he was ultimately going to be convicted. This was most unsatisfactory. The legislature, therefore, decided that it is only when the accused is convicted that the question of sentence should come up for consideration and at that stage, an opportunity should be given to the accused to be heard in regard to the sentence. Moreover, it was realized that sentencing is an important stage in the process of administration of criminal justice - as important as the adjudication of guilt - and it should not be consigned to a subsidiary position as if it were a matter of not much consequence. It should be a matter of some anxiety to the Court to impose an appropriate punishment on the criminal and sentencing should, therefore, receive serous attention of the Court. In most of the countries of the world, the problem of sentencing the criminal offender is receiving increasing attention and that is largely because of the rapidly changing attitude towards crime and criminal. There is in many of the countries, intensive study of the sociology of crime and that has shifted the focus from the crime to the criminal, leading to a widening of the objectives of sentencing and, simultaneously of the range of sentencing procedures. Today, more than ever before, sentencing is becoming a delicate task, requiring an inter-disciplinary approach and calling for skills and talents very much different from those ordinarily expected of lawyers. This was pointed out in clear and emphatic words by Mr. Justice [ENTITY]."
"I myself think that the Bench- we lawyers become judges - are not very competent, are not qualified by experience to impose sentences where any discretion is to be exercised. I do not think it is in the domain of the training of lawyers to know what to do with a fellow after you find out he is a thief. I do not think legal training gives you any special confidence. I, myself, hope that one of these days, and before long, we will divide the functions of criminal justice. I think the lawyers or people who are competent to ascertain whether or not a crime has been committed. The whole scheme of common law judicial machinery - the rule of evidence, the ascertainment of what is relevant and what is irrelevant and what is fair, the whole question of whether you can introduce prior crimes in order to prove intent - I think lawyers are peculiarly quitted for that task. But all the questions that follow upon ascertainment of guilt, I think require very different and much more diversified talents than the lawyers and judges are normally likely to possess."
The reason is that a proper sentence is amalgam of many factors such as the nature of the offence, the circumstances - extenuating or aggravating - of the offence, the prior criminal record, if any, of the offender, the age of the offender, the record of the offender as to employment, the back ground of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospects for the rehabilitation of the offender, the possibility of return of the offender to normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent in respect to the particular type of offence. These are factors which have to be taken into account by the Court in deciding upon the appropriate sentence, and, therefore, the legislature felt that, for this purpose, a separate stage should be provided after conviction when the Court can hear the accused in regard to these factors bearing on sentence and then pass proper sentence on the accused. Hence, the new provision in [SECTION].
17. It is now to be considered whether a lenient view can be taken when a non-compoundable offence of serious nature has been compounded due to compromise. Obviously, the offence of rape is being committed against a woman. The current need of the society is to come down heavily upon those persons who are guilty of committing rape as deterrence is required to prevent recurrence of the offence of rape. The offence of rape is a most heinous crime that is being purpertrated into the society slowly and the guilty persons want to escape under the guise of a compromise. This should not be allowed. The society requires that such crimes should be dealt with deterrent sentence so that other persons may not emulate and follow in the foot steps of the offenders.
18. Coming to the background of age, the accused is aged 33 years at the time of commencement of trial. He is now 40 years. He is young and is in prime of youth at the time of commission of offence. The offence of rape is the result of the mental condition of the offender. Unless such people are treated with the correctional methods, it is unsafe to release them into law-abiding society. Compromise should not be a ground to release those persons without awarding any sentence. Only when sentence is awarded, such people can be detained and correctional methods can be applied to them and a change in their outlook can be brought about. That can only be done in jail clinics and nowhere else. Hence, imposition of sentence of rigorous imprisonment for ten years will meet the ends of justice in this case as the respondent/accused is in prime youth and needs the application of correctional methods in jail clinics.
19. Hence, I convict and sentence the respondent/accused to undergo rigorous imprisonment for ten years for the offence under [SECTION] of the [ACT] and he is also convicted and sentenced to pay a fine of Rs.100/- in default to suffer Simple imprisonment for a week. Coming to the sentence to be awarded for the offences under [SECTION] and [SECTION] of the [ACT] are concerned, for the offence under [SECTION] of the [ACT] he is convicted and sentenced to undergo rigorous imprisonment for one year and shall pay a fine of Rs.100/- in default to suffer Simple imprisonment for a week. I do not propose to impose any sentence with respect to the offence under [SECTION] of the [ACT] as the imprisonment for ten years is being imposed for rape. Both the sentences shall run concurrently. In so far as the order relating to property is concerned, the order of the Court below is confirmed.
20. The Criminal Appeal is accordingly allowed.