S.K.MISHRA, J. G.A. NO.30 OF 1994 (Decided on 18.03.2011) STATE OF ORISSA …. ….. Appellant. .Vrs. MANOJ KUMAR SINGH …. ….. Respondent. PENAL CODE, 1860 (ACT NO. 45 OF 1860) – Ss.375, 376, 377. For Appellant - Addl. Government Advocate For Respondent - Mr. Abhijit Pal S.K. MISHRA, J. The State of Orissa, in this case, assails the acquittal of the respondent of the charges under Sections 376 and 377 of the Indian Penal Code, 1860, hereinafter referred to as the ‘IPC’ for brevity, in S.T. Case No.27/5 of 1994 of the court of Assistant Sessions Judge, Sambalpur. The learned Assistant Sessions Judge, while acquitting the respondent of the aforesaid two charges, convicted him for the offence under Section 354 of the IPC and sentenced him to undergo rigorous imprisonment for six months. Such judgment has been assailed in this appeal. 2. The respondent was charged for the aforesaid offences for committing rape and unnatural sexual intercourse with the victim girl, who was aged about six years old on 02.07.1993. It is alleged by the prosecution that, on the date of occurrence, in the afternoon, the respondent called the victim girl near a temple, removed her chaddi and lifted her frock. Then the accused pushed his penis into her vagina and anus, as a result of which, she sustained bleeding injury and cried. She came back to her house by wearing the chaddi and reported the incident to her parents. The matter was reported to the police after few hours. On such FIR, police took up investigation of the case and after completion of investigation finding a prima facie case against the respondent, charge-sheet was laid for the offences under Sections 376 and 377 of the IPC. 3. The respondent took the plea of denial. He further stated that he has been falsely implicated in this case. 4. In order to prove its case, the prosecution examined seven witnesses. The victim has been examined as P.W.1. P.Ws. 2 and 3 are her parents. P.W.4 is the witness to the seizure of the wearing apparels of the victim girl. P.W.5 is the doctor, who medically examined the victim. P.Ws. 7 and 6 are the Investigating Officer, out of whom, later submitted the charge sheet. 5. In course of hearing, the learned counsel for the State submitted that the materials on record point to the guilt of the respondent unerringly and in a perverse appreciation of the same, the learned Asst. Sessions Judge has acquitted the respondent of the charges and has punished him for a minor charge. The learned amicus curiae, on the other hand, submitted that the respondent is not guilty, and therefore, the judgment passed by the learned Asst. Sessions Judge is correct, which requires no interference. 6. The scope of the Appellate Court against acquittal has been discussed in detail by the Hon’ble Supreme Court in Ghurey Lal Vs. State of Uttar Pradesh, 2009(1) SCC (Cril) 60. In that reported case, the Supreme Court after taking into consideration all its previous decisions on the point has summarised the principles that govern appeals against acquittal. They are as follows: (1) The Appellate Court may review the evidence in appeals against acquittal u/ss 378 & 386 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Code” for brevity). Its power of reviewing evidence is wide & the Appellate Court can re-appreciate the entire evidence on record. It can review the Trial Court’s conclusion with respect to both facts and law. (2) The accused is presumed to be innocent until proven guilty and the accused possessed this presumption when he was before the Trial Court. The Trial Court’s acquittal bolsters the presumption that he is innocent. (3) Due or proper weight and consideration must be given to the Trial Court’s decision. This is especially true when a witnesses’ credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the Trial Court was wrong. Hon’ble Supreme Court further held that in view of the above, the High Court & other Appellate Courts should follow the well-settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the order of acquittal passed by the Trial Court. (1) The Appellate Court may only overrule or otherwise disturb the Trial Court’s acquittal if it has “very substantial and compelling reasons” for doing so. A number of instances arise in which the Appellate Court would have “very substantial and compelling reasons” to discard the Trial Court’s decision. “Very substantial & compelling reasons” exist when: (i) the Trial Court’s conclusion with regard to the facts is palpably wrong; (ii) the Trial Court’s decision was based on an erroneous view of law; (iii) the Trial Court’s judgment is likely to result in“ grave miscarriage of justice”. (iv) the entire approach of the Trial Court in dealing with the evidence was patently illegal; (v) the Trial Court’s Judgment was manifestly unjust and unreasonable; (vi) the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. (This list is intended to be illustrative, not exhaustive.) 2 (2) The Appellate Court must always give proper weight and consideration to the findings of the Trial Court. (3) If two reasonable views can be reached one leads to acquittal and the other to conviction the High Court/Appellate Court must rule in favour of the accused. ” Only when the aforesaid conditions are satisfied, the Appellate Court should interfere with the findings recorded by the trial court acquitting an accused. So, it is apposite to consider the evidence in the case in the light of the observations made by the Hon’ble Supreme Court in Ghurey Lal’s case. 7. The first error committed by the learned trial judge is that he framed charges under Section 376 of the IPC simplicitor. Instead, he should have framed charges under Section 376(2)(f) of the IPC. The charge which was read over and explained to the respondent also does not mention that the victim girl was less then twelve years of age on the date of the alleged rape. On this score alone the appeal could be remanded. However, the Court is of the view that after so many years remand of the case is inexpedient. 8. The P.W.1, the victim herself has been examined on 02.05.1994. It is borne out from the order-sheet that the trial was not conducted in camera as the learned Assistant Sessions Judge has not recorded the same in the order-sheet dated 02.05.1994. Further more, at paragraph-5 of the judgment the name of the victim has been reflected. Though it is settled principle of law that in a case of rape or sexual assault the name of the prosecutrix should be withheld, it stands to no reason why the learned Asst. Sessions Judge has reflected only the name of the victim girl, who was examined as P.W.1 and has not reflected names of the other witnesses in the judgment. It appears that the learned Asst. Sessions Judge was not sensitive while trying the case. In her statement, the victim has stated that on the date of occurrence in the afternoon while she was playing, the accused came to her and called her to Hanuman Mandir. There, he removed her chaddi and lifted the frock. Then he penetrated his penis in her anus and also into her vagina. Due to such penetration, blood came out from her vagina. She felt pain. She then came to her house crying and reported the incident to her mother and father. In the cross-examination she stated that she was playing with other children in the lane. The accused called her. Hence, she followed. Other children did not go. Some boys were playing at the temple. The accused turned her and from her back side in half bent position pushed his penis into her anus. She shouted. So the accused pressed her mouth and ran away. Other children came out. She has also stated that she did not know what is the meaning of vagina and penis, but she knew what is anus. When she came back her mother was present in her house. The children came with her also. She further stated she did not know the name of the accused prior to the occurrence and when her mother asked she could not say the name of the accused but she said ‘yes’ when her mother suggested the name of the accused. She denied the defence suggestion that the accused did not penetrate his penis to her vagina and anus. 9. She was examined by the doctor. So the doctor, P.W.5 has stated on oath that on 03.07.1993 she was the L.T.R.M.O. (Asst. Surgeon), District Headquarters Hospital, Sambalpur. On that day on police requisition, she examined the victim at about 1.30 p.m. She found the girl to be six years old from her appearance and her mother’s statement. She further stated the mental condition of the child was depressed and frightened. She found blood stains on her lower part of the frock. There was no mark of 3 violence on the body. The child was unable to walk because of severe pain on her perineal region. She complained pain around the anus. On examination of the private parts, she found redness and swelling of the labia majora, perineal tear, longitudinal, of size 1 c.m. x 1 c.m. x 1 c.m. in the mid-line midway between anus and vulva. There was bruising, laceration and swelling of the anus, the anus was oedematous and oozing. Ext.1 is the report prepared by the Doctor. In the report she has mentioned that a rape cannot be excluded. In cross-examination she has stated that there is possibility of corresponding injury on the private parts (penis) of the accused. The defence has proved the report of the pathologist, which has been marked as Ext. ‘A’, which reflected that no spermatozoa was found in the swab, which was sent for examination. 10. P.W.2 happens to be the father of the victim, who has stated about complaint made by her daughter. P.W.3 happens to be the mother of the victim, who has stated that about a year prior to her cross examination, at about 4.30 p.m., her daughter came crying and reported about the incident. She found stains of blood on her chaddi. She stated this matter to her husband and then they proceeded to the police station and lodged the report. In cross-examination, she has denied the suggestion that she had not stated before the Investigating Officer that her daughter reported to her that the accused penetrated his penis. A cross reference to the evidence of P.W.7 reveals that the witness stated before the I.O. that her daughter told her that the accused has committed “Pasabika Atyachar”. This is the sum and substance evidence on record. 11. While appreciating the evidence on record, the learned Assistant Sessions Judge has held that the victim only stated that the accused penetrated his penis to her anus. Thereafter, discussing the evidence of the doctor the learned Assistant Sessions Judge has come to the conclusion that the evidence of the doctor goes to show that there was no internal injury on the vagina or anus of the victim girl though there was redness and swelling of the libia majora and tears, bruises, laceration on the other part between valve and anus. The learned Assistant Sessions Judge further held that all these do not suggest that there was penetration. These injuries might have been caused by pressing the penis and rubbing it violently on the anus and vagina of the victim. In cross-examination the doctor could not opine if there was penetration of the penis into the vagina of the victim girl. The learned Assistant Sessions Judge further held that she deposed that there is possibility of the injury of the penis of the accused, in case of penetration into the private part of the girl. The learned trial court has further taken into consideration the report of the Pathologist, which shows there was no spermatozoa in the swab collected by the doctor. Thus, on the basis of such discussion, the learned Assistant Sessions Judge has come to the conclusion that the evidence does not reveal that there was actually penetration of the penis of the accused to the vagina and anus of the victim girl. He also gave much weightage to absence of semen on the chaddi of the victim girl. The learned trial court has further held that it is settled law that the penetration is essential in a case of rape and unnatural offences. The learned Sessions Judge acquitted the respondent of the offences under Sections 376 and 377 of the IPC but proceeded to convict him for the offence under Section 354 of the IPC. 12. The Hon’ble Supreme Court in State of Punjab vs. Gurmit Singh and others, (1996) 2 SCCs 384 has held that: 4 “ xxx….. The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman, who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type or rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable”. In the said case, the Hon’ble Supreme Court has further held that the court should shoulder greater responsibility while considering a case of rape. It should be considered with utmost sensitivity. The Court should examine the broader probabilities and should not be swayed away by minor contradiction or insignificant discrepancy in the statement of the prosecutrix. 5 12. It is settled principle of law that while appreciating evidence of a victim of sexual assault, the court should adopt rational approach and judge the evidence by its intrinsic worth animus of the witnesses in arriving at a conclusion about the truth. The court should not reject evidence of a victim of sexual assault by adopting hyper-technical approach. Considering these settled principles of law, this Court finds that the reasoning resorted to by the learned Sessions Judge is not only fallacious but also it is perverse. It is further seen that for constituting the offence of rape as defined under Section 375 of the IPC, it is not necessary that there should be a complete penetration, even a slight penetration is sufficient to hold that the victim was ravished. Moreover, in this case, the learned Asst. Sessions Judge has accepted that the respondent penetrated his penis in her anus. Then there is no reason why the accused was not convicted by the learned Sessions Judge for the offence under Section 377 of the IPC. 13. It is seen from the materials on record that the victim though a child witness is capable giving evidence, which is clear from the certificate given by the learned Assistant Sessions Judge to her before recording her evidence. Furthermore, she has very categorically implicated the accused-respondent to have ravished her both in the vagina as well as in her anus. Her evidence finds sufficient corroboration from the testimony of the doctor and it is not material that there was no spermatozoon in the swab collected from the vagina of the victim as it is not case of the prosecution that the respondent did actually ejaculated. The chemical examination report also reveals that the chaddi and the frock of the victim were stained with blood though semen was not found. It is nobody’s case that the respondent ejaculated after completion of the act. So non-finding of semen stains in the wearing apparels of the victim is of no consequence keeping in view the facts of the case. 14. Thus, keeping in view the materials on record and the perverse reasoning resorted to by the learned Asst. Sessions Judge while appreciating the evidence, this Court comes to the conclusion that this is a fit case where the findings recorded by the learned Asst. Sessions Judge should be reversed. Another aspect of the case, which requires attention of this Court, is that in the meanwhile the respondent has preferred a criminal appeal to the court of the Sessions Judge, Sambalpur against the order of his conviction under Section 354 of the IPC. Such appeal has already been dismissed and he has under-went the sentence. Thus, the argument of learned amicus curie in the appeal, wherein the findings are not challenged by the appellant, that there is doubt of identification of the accused is of no consequence. However, the period the accused- respondent has already undergone for the offence under Section 354 of the IPC requires set off against the sentence that is being passed in the appeal. 15. In the result, the appeal is allowed. The Judgment dated 21.05.1994 passed in S.T. Case No. 27/5 of 1994 is hereby set aside. The respondent is convicted for the offences under Sections 376 and 377 of the IPC. So, the conviction under Section 354 of the IPC, therefore, merges with the aforesaid conviction. The respondent is hereby sentenced to undergo R.I. for 7 years on each count for the offences under Sections 376 and 377 of the IPC. Sentences to run concurrently and the period undergone as U.T.P and as convict be set off. The learned Asst. Sessions Judge shall take expeditious steps for re- commitment. 6 Appeal allowed. 7