Supreme Court of India
JUGENDRA SINGHversusSTATE OF U.P.
- Citation
- 2012 INSC 253
- Decided
- 29 May 2012
- Disposal
- Dismissed
- Bench
- B S CHAUHAN
Holding
The appellate court correctly reversed the acquittal, as the trial court had unreasonably emphasized minor discrepancies and failed to appreciate the substantive evidence of attempt to rape and death by throttling.
Summary
The appellant, Jugendra Singh, was charged with attempting to rape a nine‑year‑old girl and causing her death by strangulation. The trial court acquitted him, citing minor discrepancies in witness testimonies, but the High Court reversed the acquittal, convicting him under IPC sections 302, 376 and 511 and imposing life imprisonment and ten years' rigorous imprisonment. On appeal, the Supreme Court examined whether the appellate court could overturn an acquittal by re‑appreciating the evidence and whether the alleged discrepancies were material. Relying on medical evidence of asphyxia due to throttling and the consistency of eyewitness accounts, the Court held that the trial judge had given undue weight to trivial inconsistencies and erred in his assessment. The Court affirmed the High Court's power to review the entire evidence and to set aside an acquittal when the view is unreasonable or perverse. Consequently, the appellant's appeal was dismissed and the conviction upheld.
Issues considered
- Whether an appellate court may overturn an acquittal on re‑appreciation of the evidence.
- Whether minor discrepancies in witness testimony warrant reversal of an acquittal.
- Whether the evidence establishes the offence of attempt to rape and death by strangulation under IPC sections 302, 376 and 511.
- Whether the trial court's reasoning was perverse and unreasonable.
Legislation cited
- Code of Criminal Procedure, 1908s. 161
- Indian Penal Code, 1860s. 302, s. 376, s. 511
Subjects
attempt to rapemurderacquittal reversalappellate reviewevidence discrepanciesIPC 302IPC 376IPC 511child victimcriminal law
Judgment
[2012] 6 S.C.R. 193
JUGENDRA SINGH A
v.
STATE OF U.P.
(Criminal Appeal No. 82 of 2008)
MAY 29, 2012
B
[DR. B. S. CHAUHAN AND DIPAK MISRA, JJ.]
Penal Code, 1860:
ss. 302 and 376 read with s. 511 - Accused causing c
death of a 9 year old girl by strangulation in an attempt to
commit rape on her - Acquittal by trial court - Conviction by
High Court - Life imprisonment awarded - Held: Medical
report clearly says that the death was caused due to asphyxia
as a result of throttling - From the evidence of witnesses and 0
the medical evidence, only a singular view is possible that the
accused had made an attempt to commit rape and he was
witnessed while he was strangulating the child with a shirt -
The trial Judge had given unnecessary importance to
absolutely minor discrepancies which do not go to the root of E
the matter and the High Court has correctly treated such
analysis to be perverse - Sentence/Sentencing - Appeal
against acquittal - Evidence - Minor discrepancies in.
Sentence/Sentencing:
F
Punishment for attempt to commit rape on a 9 year old
girl and causing her death - Held: Rape or an attempt to rape
is a crime not only against an individual but a crime which
destroys the basic equilibrium of the social atmosphere - The
consequential death of a child is more horrendous and has G
a devastating effect on her family and, in the ultimate,
eventuates on the collective at large - The cry of the collective
has to be answered and respected and that is what exactly
193 H
194 SUPREME COURT REPORTS [2012] 6 S.C.R.
A the High Court has done by converting the decision of acquittal
to that of conviction and imposing the sentence as per law.
CODE OF CRIMINAL PROCEDURE, 1908:
Appeal against acquittal - Power of appellate court -
B Explained.
The accused-appellant was prosecuted for attempt
to commit rape on a nine year old girl and causing her
death. The prosecution case was that on the day of the
c incident when the victim and her younger brother, were
bathing in a pond near their house, the accused took her
to the nearby field. They were followed by the younger
brother of the victim. The accused took off the
undergarment of the girl and flung her on the ground. The
0 cries of the girl and her brother attracted PW-2 and
another, who had seen the accused taking the girl to the
field. They rushed to the place. Soon thereafter PW-1, the
father of the victim, and his elder son also rushed to the
plot and saw the accused pressing the neck of the girl.
E By the time the witnesses could reach the spot the girl
was dead. The accused was apprehended at the spot.
The trial court taking note of some discrepancies in the
testimony of the witnesses, acquitted the accused.
However, the High Court convicted the accused u/s. 302
and s. 376 read with s.511 IPC and sentenced him to
F imprisonment for life and 10 years RI, respectively, under
the two counts.
Dismissing the appeal of the accused, the Court
G HELD: 1.1. This Court has consistently taken the view
that in an appeal against acquittal, the High Court has full
power to review at large all the evidence and to reach the
conclusion that upon that evidence the order of acquittal
should be reversed. (para 18] (204-C]
H
JUGENDRA SINGH v. STATE OF U. P. 195
Jadunath Singh and Others v. State of UP. AIR 1972 SC A
116; Oamodar Prasad Chandrika Prasad and Others v. State
of Maharashtra 1972 (2) SCR 622 = AIR 1972 SC 622; State
of Bombay v. Rusy Mistry, AIR 1960 SC 391; Shivaji
Sahebrao Bobade and another v. State of Maharashtra 1974
(1) SCR 489 =AIR 1973 SC 2622; State of Karnataka v. K. B
Gopala Krishna AIR 2005 SC 1014; Ayodhya Singh v. State
of Bihar and others (2005) 9 SCC 584; Anil Kumar v. State
of U.P. 2004 (4) Suppl. SCR 449 = (2004) 13 SCC 257; Girija
Prasad (dead) by LRs. v. State of M. P. 2007 (9) SCR 483 =
(2007) 7 SCC 625; State of Goa v. Sanjay Thakran 2007 (3) c
SCR 507 = (2007) 3 SCC 755; State of U P. v. Ajai Kumar
2008 (2) SCR 552 =AIR 2008 SC 1269; State of Rajasthan
=
v. Sohan Lal 2004 (1) Suppl. SCR 480 (2004) 5 SCC 573;
Chandrappa v. State of Karnataka 2007 (2) SCR 630 = (2007)
4 SCC 415; S. Ganesan v. Rama Raghuraman and others D
2011 (1) SCR 27 = (2011) 2 SCC 83; Sunil Kumar
Sambhudaya/ Gupta (Or.) v. State of Maharashtra 2010 (15)
SCR 452 = (2010) 13 SCC 657; Balak Ram v. State of UP.
1975 (1) SCR 753 = (1975) 3 SCC 219; Budh Singh v. State
u
of P. 2006 (2) Suppl. SCR 715 = (2006) 9 sec 731;
Rama Krishna v. S. Rami Reddy 2008 (6) SCR 1236 = (2008) E
5 SCC 535; Aruvelu v. State 2009 (14) SCR 1081 = (2009)
10 SCC 206; Babu v. State of Kera/a 2010 (9) SeR 1039 =
(2010) 9 sec 189;· Ranjitham v. Basvaraj & Ors. (2012) 1
SCC 414; State of Rajasthan v. Shera Ram@ Vishnu Dutta
(2012) 1 sec 602 - relied on. F
1.2. In the instant case, the medical report clearly
says that the death was caused due to asphyxia as a
result of throttling. PW-4, the surgeon, who conducted
the autopsy, stated that the deceased was wearing a G
shirt. In the FIR, it was clearly mentioned that the accused
strangulated the deceased with the help of her shirt. The
medical report supports the same. [para 30] (209-E-H]
1.3. The trial Judge has doubted the testimony of PW-
2 that he had not seen the children taking the bath. The H
196 SUPREME COURT REPORTS [2012] 6 S.C.R.
A High Court has treated PW-2 as a natural and neutral
witness and it has also observed that his evidence could
not have been thrown overboard on the ground of
absence of precise description of distance and the fact
that he had not seen the children bathing in the water.
B As regards the inference by the trial court that when PW-
2 and other witnesses had arrived on the scene, the
accused could not have been laying on the deceased in
their presence, the High Court has found that the
reasoning ascribed by the trial court to disbelieve the
c version of PW-2 is unacceptable. Similarly, with reference
to the discrepancies regarding blood seen on the spot,
the colour of the underwear of the victim, the time of the
lodging of the FIR, the High Court has observed that the
said discrepancies, by no stretch of imagination, could
be treated as of any significance; and have no bearing
0
on the case of the prosecution. [para 30-33) [210-A-B;
210-D-G; 211-C-F]
State of UP. v. MK. Anthony AIR 1985 SC 48; Rammi
alias Rameshwar v. State of Madhya Pradesh 1999 (3)
E Suppl. SCR 1 =AIR 1999 SC 3544; Appabhai and another
v. State of Gujarat AIR 1988 SC 696 - relied on.
1.4. The trial Judge had given unnecessary
importance to absolutely minor discrepancies which do
not go to the root of the matter and the High Court has
F correctly treated the analysis to be perverse. Besides, it
is noticeable from the judgment of the trial court that it
has proceeded on a wrong footing by saying that the
case of the prosecution was that the accused had
committed rape on the deceased, whereas on a perusal
G of the FIR, it is quite clear that the accused had acted with
the intention to commit rape. There can be no doubt that
the view taken by the trial Judge was absolutely
unreasonable, perverse and on total erroneous
appreciation of evidence contrary to the settled principles
H of law. It can never be treated as a plausible view. In the
JUGENDRA SINGH v. STATE OF U. P. 197
considered opinion of this Court, only a singular view is A
possible that the accused had made an attempt to commit
rape and he was witnessed while he was strangulating
the child with a shirt. The result was that a nine year old
child breathed her last. [para 37-38) [213-C, F-H]
B
1.5. Nothing has been brought on record to show
that there was any kind of enmity between the family of
the deceased and that of the accused. There is no reason
why the father of the deceased and the other witnesses
would implicate the accused in the crime and would C
spare the real culprit. On the other hand, the accused was
apprehended on the spot. There was no motive on the
part of any of the witnesses to falsely involve the accused
in the crime. Therefore, the High Court was right in its
view. [para 38) [214-A-C]
D
2. Rape or an attempt to rape is a crime not against
an individual but a crime which destroys the basic
equilibrium of the social atmosphere. The consequential
death of a child is more horrendous and has a
devastating effect on her family and, in the ultimate, E
eventuates on the collective at large. When a family
suffers in such a manner, the society as a whole is
compelled to suffer as it creates an incurable dent in the
fabric of the social milieu. The cry of the collective has
to be answered and respected and that is what exactly F
the High Court has done by converting the decision of
acquittal to that of conviction and imposing the sentence
as per law. [para 39] [214-D-G]
Case Law Reference:
G
1972 AIR 116 cited para 18
1972 (2) SCR 622 cited para 19
AIR 1960 SC 391 cited para 19
1974 (1) SCR 489 cited para 20 H
198 SUPREME COURT REPORTS [2012] 6 S.C.R.
A 2005 AIR 1014 cited para 21
2005 (9) sec 584 cited para 21
2004 (4) Suppl. SCR 449 cited para 22
2007 (9) SCR 483 cited para 23
B
2007 (3) SCR 507 cited para 24
2008 (2) SCR 552 cited para 24
2004 (1) Suppl. SCR 480 cited para 25
c
2007 (2) SCR 630 cited para 26
2011 (1) SCR 27 cited para 27
2010 (15) SCR 452 cited para 27
D 1975 (1) SCR 753 cited para 27
2006 (2) Suppl. SCR 715 cited para 27
2008 (6) SCR 1236 cited para 27
E 2009 (14) SCR 1081 cited para 27
2010 (9) SCR 1039 cited para 27
2012 (1) sec 414 cited para 27
2012 (1) sec 602 cited para 27
F
1985 AIR 48 relied on para 34
1999 (3) Suppl. SCR1 relied on para 35
1988 AIR 696 relied on para 36
G
CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 82 of 2008.
From the Judgment & Order dated 9.8.2005 of the High
Court of Allahabad in Government No. 2644 of 1998.
H
JUGENDRA SINGH v. STATE OF U. P. 199
Lav Kumar Agrawal, Rupesh Kumar, Dr. Kailash Chand A
for the Appellant.
R.K. Dash, Abhisth Kumar, Gaurav Dhingra for the
Respondent.
The Judgment of the Court was delivered by B
DIPAK MISRA, J. 1. From the days of yore, every civilised
society has developed various kinds of marriages to save the
man from the tyranny of sex, for human nature in certain
circumstances has the enormous potentiality of exhibiting c
intrigue, intricacy and complexity, in a way, a labyrinth. Instances
do take place where a man becomes a slave to this tyrant and
exposes unbridled appetite and lowers himself to an
unimaginable extent for gratification of his carnal desire. The
case at hand graphically exposes the inferior endowments of D
nature in the appellant who failed to husband his passion and
made an attempt to commit rape on a nine year old girl and
the tears of the child failed to have any impact on his emotion
and even an. iota of compassion did not surface as if it had been
atrophied and eventually he pressed her neck which caused
E
instant death of the nervous young girl.
2. Presently, we shall proceed with the narration. The facts
as unfolded by the prosecution, in brief, are that on 24.06.1994,
Vineshwari along with her brother, Dharam Veer, aged about
five years, was having a bath in the water that had accumulated F
in front of the house of the informant, Pitambar, their father, due
to a crack in the nearby canal. Kali Charan and Ganeshi, PW
2, were grazing their cattle in the field situate at a short
distance. The accused-appellant, a resident of the village,
cajoled Vineshwari to accompany him to the nearby field G
belonging to one Layak Singh. The younger brother, Dharam
Veer, innocently followed them. At that juncture, the appellant
took off her undergarment and with the intention to have
intercourse flung her on the ground. The young girl cried aloud
and her brother, the five year old child, raised an alarm. Kali H
200 SUPREME COURT REPORTS [2012] 6 S.C.R.
A Charan and Ganeshi who had seen the accused taking the girl
followed by the brother to the field of Layak Singh rushed to
the place and shouted for Pitambar, PW-1. Hearing the shout,
Pitambar with his elder son Harpal rushed to the spot and
witnessed that the accused was pressing the neck of
B Vineshwari. By the time they could reach the spot, the accused
made an effort to run away but he was apprehended. However,
unfortunately by that time, the girl had already breathed her last. .
Leaving the accused in the custody of the villagers, Pitambar
went to the police station and lodged an FIR.
c 3. After the criminal law was set in motion, the accused
was arrested and the investigating officer, Balvir Singh, PW 7,
reached the spot and carried out the investigation. The dead
body of the deceased was sent for post mortem. The
Investigating Officer seized the garment of the deceased, the
D clothes of the accused and certain other articles and prepared
the seizure memo. After recording the statements of the
witnesses under Section 161 of the Code of Criminal
Procedure and c€lmpleting further investigation, the prosecution
submitted the chargesheet under Sections 302 and 376 read
E with 511 of the Indian Penal Code (for short "the IPC") before
the competent court which in turn committed the matter to the
Court of Session wherein it was registered as S.T. No. 1098
of 94.
F 4. The plea of the defence was one of denial and false
implication.
5. The accused chose not to adduce any evidence.
6. In order to prove its case, the prosecution examined
G eight witnesses, namely, Pitamber @ Pita, PW-1 (father of the
deceased), Ganeshi, PW-2, Dharam Veer, PW-3, Dr. S.K.
Sharma, PW-4, Head Constable Mahfooj Khan, PW-5, Dr.
S.R.P. Mishra, PW-6, Balvir Singh, S.I., PW-7 and Constable
Vinod Kumar, PW-8.
H
JUGENDRA SINGH v. STATE OF U. P. 201
[DIPAK MISRA, J.]
7. Pitamber@ Pita PW-1 stated on oath that the accused A
influenced his daughter Vineshwari, who was taking bath in the
canal water to accompany him to the nearby field. He has
further stated that the accused attempted to commit rape on
his daughter and ultimately strangulated her throat that caused
her death. Ganeshi, PW-2 deposed that he along with Kali B
Charan was there. On hearing the cry of the girl, he and Kali
Charan went to the field of Layak Singh and found that the
accused was trying to commit rape on Vineshwari and tied a
shirt on her neck. Dharam Veer, PW-3, could not be examined
because he was unable to grasp the questions. c
8. Dr. S.K. Sharma, PW-4 conducted the post mortem of
Vineshwari and found the following anti-mortem injuries:-
( 1) Abrasion 5 cm. X 1 cm. over Rt. Ramus of jaw
extending neck region. D
(2) Abrasion 3 cm. X 1 cm. over left Supra Clovicular
region.
No injury was found on the private parts and/or thighs nor
on chest and buttocks. However, two vaginal smears were E
i)repared and sent for pathological examination.
Over eternal pericardium larynxes and both the lungs of the
deceased, deposits of blood were found. Except this, the liver,
pancreas, spleen and both kidneys were filled with blood. On F
interior examination, Larynx, Trachea, Bronchi and Lungs were
found congested. According to Dr. S.K. Sharma, the death of
the deceased took place due to asphyxia as a result of
throttling.
9. Dr. S.R.P. Mishra, PW-6 examined the accused G
Jugendra and found certain contusions, abrasions and
superfluous injuries on his body.
10. Balvir Singh, S.I., PW-7 proved the site plan, recovery
H
202 SUPREME COURT REPORTS [2012] 6 S.C.R.
A memo of underwear of Vineshwari, panchnama, report to
C.M.O. and chargesheet.
11. The learned trial Judge appreciating the evidence on
record found that there were discrepancies and contradictions
8 in the testimony of the witnesses; that it was difficult to believe
that the accused was laying upon the deceased in the presence
of Kali Charan and Ganeshi; that the deposition of witnesses
that they had found blood on the spot had not received
corroboration from the examination of Dr. S. K. Sharma, P. W.
4, who had deposed that the blood had not oozed out from the
C body of the deceased girl; that the colour oft~~ under garment
of the girl as stated by her father did not tal'ly with ~he colour
described in the recovery memo; that as per the medical report
there was no injury on the private parts of the deceased; that
there was difference in the time mentioned by the witnesses
D as regards the lodging of the FIR inasmuch as the investigating
officer arrived at the spot between 1.30 to 2.00 p.m. whereas
the FIR was lodged at 2.45 p.m.; and that the colour of the shirt
was not properly stated by the witnesses. Because of the
aforesaid findings, the trial court came to the conclusion that
E the prosecution had failed to prove its case beyond reasonable
doubt and accordingly acquitted the accused of the charge.
12. The aforesaid judgment of acquittal came to be
challenged before the High Court in Criminal Appeal No.
F 2644of 1998 on the ground that the view expressed by the
learned trial Judge was totally perverse since minor
discrepancies and contradictions had been magnified and the
real evidence had been ignored. It was also put forth that the
trial court failed to appreciate the fact that the accused was
G apprehended at the spot and nothing had been brought on
record to dislodge the same. It was also urged that the view
expressed by the trial court was totally unreasonable and defied
logic in the primary sense.
13. The High Court perused the evidence on record and
H opined that unnecessary emphasis had been laid on minor
JUGENDRA SINGH v. STATE OF U. P. 203
[DIPAK MISRA, J.]
discrepancies by the trial court and the view expressed by it A
was absolutely perverse and remotely not a plausible one.
Being of this view, it over-turned the judgment of acquittal to
that conviction and sentenced the accused to undergo life
imprisonment for the offence under Section 302 IPC and to
undergo rigorous imprisonment for ten years for the offence B
under Section 376 read with 511 of IPC with the stipulation that
both the sentences shall run concurrently.
14. We have heard Mr. Lav Kumar Agrawal, learned
counsel for the appellant, and Mr. R. K. Dash, learned counsel C
for the State.
15. It is contended by Mr. Agrawal that the High Court has
not kept in view the parameters on which the judgment of
acquittal is to be interfered with and has converted one of
acquittal to conviction solely by stating that the judgment is D
perverse. It is urged by him that the discrepancies and
contradictions have been discussed in detail by the trial court
and he has expressed a well reasoned opinion that the
prosecution has failed to bring home the charge, but the said
conclusion has been unsettled by the High Court by stating that E
the said discrepancies are minor in nature. It is his further
submission that the ocular evidence has not received any
corroboration from the medical evidence and further the material
particulars have been totally overlooked and hence, the
judgment of conviction is sensitively vulnerable. F
16. Mr. Dash, learned senior counsel appearing for
respondent, has canvassed that. the learned trial judge had
treated the ordinary discrepancies which are bound to occur
when rustic witnesses have been accentuated as if they are in
the realm of high degree of contradiction and inconsistency. It G
is submitted by him that when the judgment of the trial court
suffers from perversity of approach especially in relation to the
appreciation of evidence and the view cannot be treated to be
a possible one, no flaw can be found with the judgment of
reversal by the High Court. H
204 SUPREME COURT REPORTS [2012] 6 S.C.R.
A 17. To appreciate the submissions raised at the bar and
to evaluate the correctness of the impugned judgment, we think
it appropriate to refer to certain authorities in the field which
deal with the parameters for reversing a judgment of acquittal
to that of conviction by the appellate court.
B
18. In Jadunath Singh and Others v. State of UP., 1 a three
Judge Bench of this Court has held thus:-
"This Court has consistently taken the view that an appeal
against acquittal the High Court has full power to review
c at large all the evidence and to reach the conclusion that
upon that evidence the order of acquittal should be
reversed. This power of the appellate court in an appeal
against acquittal was formulated by the Judicial
Committee of the Privy Council in Sheo Swarup v. King
D Emperor2, and Nur Mohammad v. Emperor. These two
decisions have been consistently referred to in judgments
of this Court as laying down the true scope of the power
of an appellate court in hearing criminal appeals: see
Surajpa/ Singh v. State4 and Sanwat Singh v. State of
E Rajasthan 5. "
I
19. In Damodar Prasad Chandrika Prasad and Others v.
State of Maharashtra6 it has been held that once the Appellate
Court comes to the conclusion that the view of the trial court is
unreasonable, that itself provides a reason for interference. The
F two-Judge Bench referred to the decision in State of Bombay
v. Rusy Mistry 7 , to hold that if the finding shocks the
I
1. AIR1972SC116.
G 2. 61 Ind App 398 =AIR 1934 PC 227.
3. AIR 1945 PC 151.
4. 1952 SCR 193 =AIR 1952 SC 52.
5. (1961) 3 SCR 120 =AIR 1961 SC 715.
6. AIR 1972 SC 622.
H 7. AIR 1960 SC 391.
JUGENDRA SINGH v. STATE OF U. P. 205
[DIPAK MISRA, J.]
conscience of the Court or has disregarded the norms of legal A
process or substantial and grave injustice has been done, the
same can be interfered with.
20. In Shivaji Sahebrao Bobade and another v. State of
Maharashtra 8 , the three-Judge Bench opined that there are no B
fetters on the plenary power of the Appellate Court to review
the whole evidence on which the order of acquittal is founded
and, indeed, it has a duty to scrutinise the probative material
de novo, informed, however, by the weighty thought that the
rebuttable innocence attributed to the accused having been C
converted into an acquittal the homage of our jurisprudence
owes to individual liberty constrains the higher court not to upset
the finding without very convincing reasons and comprehensive
consideration. This Court further proceeded to state that the
cherished principles of golden thread to prove beyond
reasonable doubt which runs through the wave of our law D
should not be stretched morbidly to embrace every hunch,
hesitancy and degree of doubt. Emphasis was laid on the
aspect that a balance has to be struck between chasing chance
possibilities as good enough to set the delinquent free and
chopping the logic of preponderant probability to punish the E
marginal innocents.
21. In State of Kamataka v. K. Gopa/a Krishna 9, it has
been held that where the findings of the Court below are fully
unreasonable or perverse and not based on the evidence on F
record or suffer from serious illegality and in.elude ignorance
and misreading of record, the Appellate Court will be justified
in setting aside such an order of acquittal: If two views are
reasonably possible al)ct the view favouring the accused has
been accepted by t,9etourts below, that is sufficient for G
upholding the order of ac4tJittal. Similar view was reiterated in
Ayodhya Singh v. State of Bihar and others10 .
8. AIR 1973 SC 2622.
9. AIR 2005 SC 1014.
10. 2005 9 sec 584. H
206 SUPREME COURT REPORTS (2012] 6 S.C.R.
A 22. In Anil Kumar v. State of UP., 11 it has been stated that
interference with an order of acquittal is called for if there are
compelling and substantial reasons such as where the
impugned judgment is clearly unreasonable and relevant and
convincing materials have been unjustifiably eliminated.
B
23. In Girija Prasad (dead) by LRs. v. State of M. P., 12 it
has been observed that in an appeal against acquittal, the
Appellate Court has every power to re-appreciate, review and
reconsider the evidence as a whole before it. It is, no doubt,
C true that there is a presumption of innocence in favour of the
accused and that presumption is reinforced by an order of
acquittal recorded by the trial court, but that is not the end of
the matter. It is for Appellate Court to keep in view the relevant
principles of law to re-appreciate and reweigh as a whole and
to come to its own conclusion in accord with the principle of
D criminal jurisprudence.
24. In State of Goa v. Sanjay Thakran, 13 it has been
reiterated that the Appellate Court can peruse the evidence and
interfere with the order of acquittal only if the approach of the
E lower court is vitiated by some manifest illegality or the decision
is perverse.
25. In State of U. P. v. Ajai Kumar, 14 the principles stated
in State of Rajasthan v. Sohan la/1 5 were reiterated. It is worth
F noting that in the case of Sohan Lal, it has been stated thus:-
"This Court has repeatedly laid down that as the first
appellate court the High Court, even while dealing with an
appeal against acquittal, was also entitled, and obliged as
well, to scan through and if need be reappreciate the entire
G
11. 2004 13 sec 257.
12. 2007 7 sec 625.
13. 2007 3 SC 755.
14. AIR 2008 SC 1269.
H 15. (2004) 5 sec 573.
JUGENDRA SINGH v. STATE OF U. P. 207
[DIPAK MISRA, J.]
evidence, though while choosing to interfere only the court A
should find an absolute assurance of the guilt on the basis
of the evidence on record and not merely because the High
Court could take one more possible or a different view
only. Except the above, where the matter of the extent and
depth of consideration of the appeal is concerned, no B
distinctions or differences in approach are envisaged in
dealing with an appeal as such merely because one was
against conviction or the other against an acquittal."
26. In Chandrappa v. State of Kamataka 16, this Court held
~under:- C
"42 From the above decisions, in our considered view, the
following general principles regarding powers of the
appellate court while dealing with an appeal against an
order of acquittal emerge:
D
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the
order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such power E
and an appellate court on the evidence before it may reach
its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient grounds", "very
strong circumstances", "distorted conclusions", "glaring F
mistakes", etc. are not intended to curtail extensive powers
of an appellate court in an appeal against acquittal. Such
phraseologies are more in the nature of "flourishes of
language" to emphasise the reluctance of an appellate
court to interfere with acquittal than to curtail the power of G
the court to review the evidence and to come to its own
conclusion.
(4) An appellate court, however, 1)1USt bear in mind
- -----
16. (2007) 4 sec 415. H
208 SUPREME COURT REPORTS [2012] 6 S.C.R.
A tf:lat in case of acquittal, there is double presumption in
favour of the accused. Firstly, the presumption of
innocence is available to him under the fundamental
principle of criminal jurisprudence that every person shall
be presumed to be innocent unless he is proved guilty by
B a competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by the trial
court.
(5) If two reasonable conclusions are possible on the
C basis of the evidence on record, the appellate court should
not disturb the finding of acquittal recorded by the trial
court."
27. In S. Ganesan v. Rama Raghuraman and others, 17
one of us (Dr. B.S. Chauhan,J.), after referring to the decision
D in Suni/ Kumar Sambhudaya/ Gupta (Dr.) v. State of
Maharashtra, 18 considered various aspects of dealing with a
case of acquittal and after placing reliance upon earlier
judgments of this Court, particularly in Balak Ram v. State of
UP., 19 Budh Singh v. State of UP., 20 Rama Krishna v. S.
E Rami Reddy, 21 Aruvelu v. State 22 and Babu v. State of
Kera/a, 23 held that unless there are substantial and compelling
circumstances, the order of acquittal is not required to be
reversed in appeal. Similar view has been reiterated in
Ranjitham v. Basvaraj & Ors. 24 and State of Rajasthan v.
F Shera Ram @ Vishnu Dutta. 25
11. (2011) 2 sec 83.
10. (2010) 13 sec 657.
19. (1975) 3 sec 219.
G 20. (2006) 9 sec 731.
21. c2000) 5 sec 535.
22. c2009) 10 sec 206.
23. (2010) 9 sec 189.
24. c2012) 1 sec 414.
H 25. (2012) 1 sec 602.
JUGENDRA SINGH v. STATE OF U. P. 209
[DIPAK MISRA, J.]
28. Keeping in view the aforesaid well-settled principles, A
we are required to scrutinize whether the judgment of the High
Court withstands the close scrutiny or conviction has been
recorded because a different view can be taken. First we shall
refer to the ante mortem injuries wh_ich were found on the
deceased - (i) abrasion 5 cm x 1 cm over right ramus of jaw B
extending to the neck and (ii) abrasion 3 cm x 1 cm over left
supra clavicular region. On internal examination, larynx, trachea
and bronchi were found congested. Both the lungs were
congested. Brain was congested. Partially digested food was
found in the stomach. Small and large intestine were half full. c
The doctor who conducted the post mortem has opined that the
cause of death was due to asphyxia as a result of throttling.
29. PW-6 Dr. S.R.P. Mishra had examined the accused
and had found four contusions and two abrasions on his
forehead, left ear, neck, left side chest and right shoulder. The D
learned trial Judge has given some emphasis on these injuries
but the High Court has expressed the view that when the
accused was apprehended at the spot by the witnesses, he had
been given a beating for the criminal act and hence, the minor
injuries had no significance. E
30. The question is whether the trial court was justified in
coming to hold that there were discrepancies and contradictions
in the evidence of the witnesses and, therefore, the case of the
prosecution did not deserve acceptance. The discrepancies F
that have been found have been described while we have dealt
with the trial court judgment. The medical report clearly says that
the death was caused due to asphyxia as a result of throttling.
PW-4, the surgeon, who has conducted the autopsy, stated that
the deceased was wearing a shirt. PW-1, the father, has stated· G
that she was strangulated by a bush shirt. The learned trial
Judge has given much emphasis by drawing a distinction
between a shirt and a bush shirt. The High Court has treated
that it is not a material contradiction. In the FIR, it was clearly
mentioned that the accused strangulated the deceased with the
H
help of her shirt. The medical report supports the same and,
210 SUPREME COURT REPORTS [2012] 6 S.C.R.
A therefore, the nature of the shirt which has been given
importance by the learned trial Judge, in our considered
opinion, has been rightly not accepted. The learned trial Judge
has doubted the testimony of Ganeshi, PW-2, that he had not
seen the children taking the bath and further he has also opined
B that it would not have been possible for the accused to lay upon
the deceased in their presence. In this regard, the distance has
been taken into consideration to discard the testimony. The
High Court has perused the testimony or deposition of PW-2
wherefrom it is evincible that the spot was at the distance of
c 100 paces where he was grazing the cattle. The Investigating
Officer has deposed that there was water in about half kilometre
area as there was a crack in the canal as a consequence of
which water was flowing in front of the house of the informant.
Thus, the High Court has opined that the variance with regard
0 to the details of distance cannot be made the edifice to discard
their testimony. The High Court has treated Ganeshi as a
natural and neutral witness and it has also observed that his
evidence could not have been thrown overboard on the ground
of absence of precise description of distance and the fact that
he had not seen the children bathing in the water. That apart,
E the inference by the trial court is that when they had arrived on
the scene, the accused could not have been laying on the
deceased in their presence. On a perusal of his deposition as
well as analysis made by the learned trial Judge, it is evident
that there was some time gap and distance. The accused was
F laying on the deceased and throttled her neck with the shirt. The
other witnesses had arrived after five to ten minutes. The High
Court has taken note of the distance, time and the age of the
deceased and has found that the reasoning ascribed by the trial
·court to disbelieve the version of PW-2 is unacceptable.
G
31. The learned trial Judge has noticed that both Pitambar
and Ganeshi had deposed thafthey had seen blood on the spot,
though the medical report clearly showed that there was no
oozing of blood from any part of the body of the deceased and
H further that there was no injury on the private parts of the girl. It
' ..
JUGENDRA SINGH v. STATE OF U. P. 211
[DIPAK MISRA, J.]
is apt to note here that there was some frothy liquid coming out A
from the nose of the deceased. The High Court, while analysing
the said evidence, has observed that the witnesses though had
stated to have seen blood on the spot in their cross-
examination, yet that would not really destroy the version of the
prosecution regard being had to the many other facts which 8
have been proven and further there was no justifiable reason
to discard the testimony of the father and others who were eye
witnesses to the occurrence.
32. The learned trial Judge has taken note of the fact that
PW-1 had stated in his cross-examination that the underwear C
of the deceased was printed green in colour while PW-2 had
stated that the colour of the underwear was red in colour and
according to the recovery memo, the colour was red, white and
yellow. The High Court has perused the memo, Ext. Ka2,
prepared by the Investigating Officer wherein it has been D
described that the printed underwear was of red, white, yellow
and black colour. That apart, when the witnesses were deposing
almost after a span of three years, it was not expected of them
to remember the exact colour of the printed underwear. In any
case, the High Court has observed that the said discrepancy, E
by no stretch of imagination, could be treated as a discrepancy
of any significance.
33. Another aspect which has weighed with the learned trial
Judge was about the time of the lodging of the FIR. The said
F
timing has no bearing on the case of the prosecution inasmuch
as rustic and uneducated villagers could not have been precise
on the time concept.
34. At this juncture, we may remind ourselves that it is the
duty of the court to shift the chaff from the grain and find out G
the truth from the testimony of the witnesses. A testimony of the
witness is required to inspire confidence. It must be
creditworthy. In State of U.P. v. M.K. Anthony26, this Court has
observed that in case of minor discrepancies on trivial matters
26. AIR 1985 SC 48. H
212 SUPREME COURT REPORTS [2012] 6 S.C.R.
A not touching the core of the case, hypertechnical approach by
taking the sentences torn out of context here or there from the
evidence, attaching importance to some technical error
committed by the investigating officer and not going to the root
of the matter would not ordinarily permit rejection of the evidence
8 as a whole.
35. In Rammi alias Rameshwar v. State of Madhya
Pradesh, 27 this Court has held as follows: -
"24. When eye-witness is examined at length it is quite
c possible for him to make some discrepancies. No true
witness can possibly escape from making some
discrepant details. Perhaps an untrue witness who is well
tutored can successfully make his testimony totally non-
discrepant. But Courts should bear in mind that it is only
when discrepancies in the evidence of a witness are so
D
incompati~le with the credibility of his version that the Court
is justified in jettisoning his evidence. But too serious a
view to be adopted on mere variations falling in the
narration of an incident (either as between the evidence
of two witnesses or as between two statements of the
E same witness) is an unrealistic approach for judicial
scrutiny."
36. In Appabhai and another v. State of Gujarat28, this
Court has ruled thus: -
F 'The Court while appreciating the evidence must not attach
undue importance to minor discrepancies. The
discrepancies which do not shake the basic version of the
prosecution case may be discarded. The discrepancies
which are due to normal errors of perception or observation
G should not be given importance. The errors due to lapse
of memory may be given due allowance. The Court by
calling into aid its vast experience of men and matters in
different cases must evaluate the entire material on record
27. AIR 1999 SC 3544.
H 28. AIR 1988 SC 696.
JUGENDRA SINGH v. STATE OF U. P. 213
[DIPAK MISRA, J.]
by excluding the exaggerated version given by any A
witness. When a doubt arises in respect of certain facts
alleged by such witness, the' proper course is to ignore that
fact only unless it goes into the root of the matter so as to
demolish the entire prosecution story. The witnesses
nowadays go on adding embellishments to their version B
perhaps for the fear of their testimony being rejected by
the Court. The courts, however, should not disbelieve the
evidence of such witnesses altogether if they are otherwise
trustworthy."
37. Judged on the aforesaid principles of law, we are of C
the considered opinion that the learned trial Judge had given
unnecessary importance on absolutely minor discrepancies
which do not go to the root of the matter and the High Court
has correctly treated the analysis to be perverse. Quite apart
from that, it is noticeable from the judgment of the trial court that o
the learned trial Judge has proceeded on a wrong footing by
saying that the case of the prosecution was that the accused
had committed rape on the deceased whereas on a perusal
of the FIR, it is quite clear that the allegation was that the
accused has pulled the underwear of the girl with the intention E
to commit rape. Similar is the testimony of Ganeshi (PW-1) who
has stated that the accused was laying on the girl. It is difficult
to understand how the learned trial Judge has conceived that
the case of the prosecution was that the accused had
committed rape.
F
38. Thus, from the aforesaid analysis, there can be no trace
of doubt that the view taken by the learned trial Judge was
absolutely unreasonable, perverse and on total erroneous
appreciation of evidence contrary to the settled principles of
law. It can never be treated as a plausible view. In our G
considered opinion, only a singular view is possible that the
accused had made an attempt to commit rape and he was
witnessed while he was strangulating the child with a shirt. The
result was that a nine year old child breathed her last The
reasoning ascribed by the learned trial Judge that she did not H
· die because of any injury makes the decision more perverse
214 SUPREME COURT REPORTS [2012] 6 S.C.R.
A rather than reasonable. That apart, nothing has been brought
on record to show, that there was any kind of enmity between
the family of the deceased and that of the accused appellant.
There is no reason why the father and the other witnesses would
implicate the accused appellant in the crime and would spare
B the real culprit. Quite apart from the above, he was apprehended
on the spot. The accused had taken the plea that the deceased
had died as she had drowned in the water. The medical report
runs absolutely contrary inasmuch there was no water in her
stomach or in any internal part of the body. There was no motive
c on the part of any of the witnesses to falsely involve the accused
in the crime. In view of our aforesaid analysis, we entirely agree
with the view expressed by the High Court.
39. Before parting with the case, we may note that the
appellant has created a situation by which a nine year old girl
o who believed in him as a co-villager and went with him in total
innocence breathed her last before she could get into her
blossom of adolescence. Rape or an attempt to rape is a crime
not against an individual but a crime which destroys the basic
equilibrium of the social atmosphere. The consequential death
E is more horrendous. It is to be kept in mind that an offence
against the body of a woman lowers her dignity and mars her
reputation. It is said that one's physical frame is his or her
temple. No one has any right of encroachment. An attempt for
the momentary pleasure of the accused has ca~sed the deat~
F of a child and had a devastating effect on her family and, in the
ultimate eventuate, on the collective at large. When a famil~
suffers in such a manner, the society as a whole is compelled.
to suffer as it creates an incurable dent in the fabric of the social
milieu. The cry of the collective has to be answered and
respected and that is what exactly the High C<;>urt has done by
G converting the decision of acquittal to that of conviction and
imposed the sentence as per law.
40. Consequently, the appeal, being sans merit, stands
dismissed.
H R.P. Appeal dismissed.
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