Supreme Court of India
RADHAKRISHNA NAGESHversusSTATE OF ANDHRA PRADESH
- Citation
- 2012 INSC 595
- Decided
- 13 December 2012
- Disposal
- Dismissed
- Bench
- SWATANTER KUMAR
Holding
The High Court was correct in overturning the acquittal; the cumulative ocular, forensic, and circumstantial evidence established the accused's guilt beyond reasonable doubt.
Summary
The appellant, a ball‑picker at a university tennis court, was convicted under Sections 363 and 376(2)(f) IPC for raping an 11‑year‑old maid after luring her with the promise of bangles and taking her into a storeroom. The trial court had acquitted him, but the High Court reversed that judgment on the basis of eye‑witness testimony, forensic evidence showing semen on the victim’s clothing and the accused’s garments, and the victim’s consistent statement. On appeal, the Supreme Court examined whether the High Court could rightly interfere with an acquittal, whether there were material contradictions between ocular and medical evidence, and whether the prosecution’s case established a direct link and penetration despite an intact hymen. The Court held that the ocular evidence was credible, the forensic findings corroborated the victim’s account, and any minor variations between medical and ocular evidence did not create reasonable doubt. Consequently, the conviction was upheld and the appeal dismissed.
Issues considered
- The appellate court's power to interfere with a trial court's acquittal.
- Whether contradictions between ocular and medical evidence materially affect the prosecution's case.
- Whether there is direct evidence linking the accused to the commission of the crime, including proof of penetration.
- Whether a conviction can rest on the sole testimony of the victim in a rape case involving a minor.
- Whether the absence of physical injuries or an intact hymen negates the occurrence of rape.
Legislation cited
- Code of Criminal Procedure, 1973s. 118, s. 162, s. 173(2), s. 511
- Indian Penal Code, 1860s. 363, s. 375, s. 376(2)(f)
Subjects
rapeminorsexual assaultocular evidencemedical evidenceforensic science laboratory reportconvictionappeal against acquittalmens reapenetrationevidence appraisal
Judgment
[2012] 11 S.C.R. 1114
A RADHAKRISHNA NAGESH
v.
STATE OF ANDHRA PRADESH
(Criminal Appeal No.1707 of 2009)
DECEMBER 13, 2012
B
[SWATANTER .KUMAR AND GYAN SUDHA MISRA, JJ.]
Penal Code, 1860 - ss.376(2)(f) and 363 - Rape - Of
minor girl - Conviction of accused-appellant - Challenge to
C - Plea of accused that serious contradictions between ocular
and medical evidence materially affected the case of the
prosecution - Held: Not tenable - In order to establish conflict
between the ocular evidence and the medical evidence, there
has to be specific and material contradictions - Absence of
D injuries on the body of the victim girl (PW2) not of any
advantage to the accused - Absence of injuries on her back
and neck can be safely explained by the fact that she was
lured into the offence rather than being taken by using
physical force on her - Preparation, attempt and actual act
E on the part of the accused clear from the fact that he had
purchased bangles which he had promised to her and
thereafter had taken her into the tennis court store room, the
key of which was with him - This is also corroborated from the
recovery evidence - Merely because, some fact was not
F recorded or stated by the doctor at a given point of time and
subsequently such fact was established by the expert report,
the FSL Report, would not by itself substantiate the plea of
contradiction or variation - No reason to disbelieve the
statement of PW2 that she knew the accused and that he
G incited her and lured her to buying bangles and then took her
to the storeroom where he committed rape on her - PW3 had
seen the accused taking PW2 inside the tennis court store
room and bolted the door from outside, and then went to report
the matter - On way, he met PW1 (a police official), who
H 1114
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1115
PRADESH
accompanied him to the store room, brought both the A
accused and PW2 to the police station, and got an FIR
registered on his own statement, the investigation of which was
conducted by PW11 - No reason to disbelieve the
statements of PW1, PW2, PW3, PW5(mother of PW2) and
PW11, particularly when they stood lengthy cross-examination B
without any material damage to the case of the prosecution.
Penal Code, 1860 - ss.376(2)(f) and 363 - Rape - Of
minor girl - Conviction of accused-appellant - Challenge to
- Plea of accused that there was no direct evidence
connecting him to the commission of the crime - Held: Not C
tenable - On facts, presence of the element of mens rea on
part of the accused cannot be denied - He had fully prepared
himself - He first lured the victim girl (PW2) not only by
inciting her, but even by actually purchasing bangles for her
- Thereafter, he took the girl to a room where he threatened D
her of physical assault as a consequence of which the girl did
not raise protest - This is why no marks of physical injury
could be noticed on her body - Absence of injuries in the
context of the present case would not justify drawing of any
adverse inference against the prosecution, but on the contrary E
would support the case of the prosecution - Direct link of the
accused with the commission of the crime well established by
the statement of the witnesses, the recoveries made, the
Medical Report and the FSL Report -Statement of PW2
credible, truthful and, thus, can safely be relied upon - Such F
statement fully corroborated by the statements of PW1 and
PW3, who were independent witnesses and had no personal
interest or motive of falsely implicating the accused or
supporting the case of the prosecution.
G
Penal Code, 1860 - s.376 and Explanation to s.375 -
Rape - Penetration - Intact hymen - Inference - Held: The
mere fact that the hymen was intact and there was no actual
wound on her private parts not conclusive of the fact that she
was not subjected to rape - Penetration itself proves the H
1116 SUPREME COURT REPORTS [2012] 11 S.C.R.
A offence of rape, but the contrary is not true i.e. even if there
is no penetration, it does not necessarily mean that there is
no r8pe - Penetration may not always result in tearing of the
hymen and the same will always depend upon the facts and
circumstances of a given case - In the case at hand, it was
B clear that there was limited penetration due to which probably
the hymen of the victim girl (PW2) was not ruptured.
Appeal - Appeal against acquittal - Interference with -
Principles - Held: The appellate Court has to be more
C cautious while dealing with the judgment of acquittal -
However, it does not mean that the appellate Court cannot
disturb the finding of acquittal - All that is required is that there
should be a compelling rationale and also clear and cogent
evidence, which was ignored by the Trial Court to upset the
finding of acquittal - On facts, the course of appreciation of
D evidence and application of law adopted by the Trial Court
was not proper - Trial Court failed to appreciate the evidence
on record cumulatively and in its correct perspective by
ignoring the material piece of evidence and by improper
appreciation of evidence - It recorded findings which are on
E the face of it unsustainable - This error was rightly corrected
by the High Court - No reason to interfere with the judgment
of conviction recorded by the High Court.
The prosecution case was that the accused-
F appellant, a ball picker in the University tennis court,
enticed PW2, a maid working in the staff quarters of the
University, on the pretext of purchasing gold colour
plastic bangles for her and when she agreed to
accompany him, he bought her the bangles and then
G took her inside the store room near the tennis court and
committed rape on her against her will. The appellant was
charged with having committed offences under Sections
363 and 376 (2)(f) IPC. The trial court acquitted the
appellant, but the High Court reversed the order of
H
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1117
PRADESH
acquittal and convicted him under Sections 363 and A
376(2)(f) IPC, and therefore the instant appeal.
The appellant challenged his conviction inter a/ia on
the following grounds: 1) that the High Court exceeded
its jurfsdiction by interfering with the judgment of 8
acquittal of the Trial Court which was very well-reasoned,
based upon proper appreciation of evidence and in
consonance with the settled principles of law; 2) that
there were serious contradictions between the ocular and
the medical evidence which materially affected the case C
of the prosecution; 3) that there was no sexual
intercourse between the appellant and the victim and the
prosecution had not been able to establish any link
between the commission of the alleged offence and the
appellant and 4) that the case of the prosecution was
based upon the sole testimony of the victim. D
Dismissing the appeal, the Court
HELD: 1.1. There is no merit in the contention raised
on behalf of the appellant with regard to discrepancy in E
the medical and the ocular evidence. [Para 20] [1138-D]
1.2. PW2 was 11 years old at the time of occurrence,
while she was 12 years old, when her statement was
recorded in the Court. After the Court was convinced of
the fact that she is competent to make the statement, the F
same was recorded. In her statement, she stated that she
was working as a maid in the staff quarters of the
University, known as the red building. According to her,
she knew the accused-appellant and he was in the habit
of escorting children to the school. The accused had G
taken her to the tennis court, promised her that he would
buy bangles for her and after purchasing the bangle$.the
accused took her to a room in the tennis court. The
accused closed the door of the room, lifted her /anga,
removed his own pant and underwear, put her on the H
1118 SUPREME COURT REPORTS [2012] 11 S.C.R.
A floor of the room and passed liquid like urine into her
private parts. In the meanwhile, she stated that she felt
the starch in her private parts. At that time, one rickshaw
puller, PW3 came and knocked at the door. The accused
abused him in a filthy language and later the police came
B to the room. She further narrated that it was PW1 (Sub-
Inspector of Police, Traffic P.S.) who had taken her and
the accused to the police station, where she was
examined by the Police. The /anga of PW2 was seized by
the police and was sent to hospital for examination. She
c stated that her mother (PW5) was also working as a maid
in the red building itself. Despite a lengthy cross-
examination, she stood to her statement and did not cast
any doubt on the statement made by her in her
examination-in-chief. [Paras 10, 11] [1134-B-G]
D 1.3. When PW2 was taken to the hospital, she was
examined ·by Dr. PWB, a Professor of Forensic Medicine
in a Medical College and also by PW9, an Assistant
Professor in a Maternity Hospital. According to PW9, the
girl had washed herself after the incident. PW9 also stated
E that considering the age of the victim and on seeing that
the parts were tender to touch, she could say that there
was an attempt to rape the victim girl. Since, according
to PW9, the girl had washed herself after the incident, the
doctor had to reserve her final opinion till the Chemical
F Analyst's Report (FSL Report). The FSL Report was Ext.
P.6, while the Wound Certificate of victim girl was Ext.
P.5. According to the FSL Report, semen was detected
on Items 1, 2, 4, 5 and 6 and the same was of human
origin. Saliva of human origin was detected on Item No.
G 3. The Chemical Analyst also detected semen and
spermatozoa on Item Nos. 1, 2, 4, 5 and 6 and on Item No.
3 saliva was found. Item No. 1 was torn brown colour
polyester langa with dirty stains which the girl was
wearing. Item No. 2 was a torn grey colour mill made cut
H drawer with dirty stains which the accused was wearing.
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1119
PRADESH
Item No. 3 and Item No. 4 were the turbid liquid which was A
present on the cloth and in a bottle respectively. Item No.
5 was a cotton swab and Item No. 6 were two glass slides
which were sent for opinion and via FSL Report, Ext. P.6,
the opinion was received. From the above evidence, it is
not feasible to state with certainty that there is any conflict B
between the medical and the ocular evidence. No fault
can be found in the statement of Dr. PW9, who waited to
give her final opinion till she received the FSL Report.
[Paras 11, 12, 13 and 14] [1134-G; 1135-A-H; 1136-A]
1.4. According to the medical evidence and
c
statements of PWS and PW9, the victim was 11 years old
at the time of occurrence and her private parts were
tender to touch. The doctor, PW9 had reserved her final
opinion awaiting the FSL Report. According to the FSL
Report, the langa of the girl as well as the drawer of the 0
accused were containing semen of human origin. The
slides which contained the swab taken from the vagina
of the girl also showed presence of semen of human
origin. Noticeably these reports, in relation to Items 1, 2,
4, 5 and 6 came despite the fact that the girl had washed E
.
herself after the occurrence. [Para 24] [1139-D-E]
1.5. It is a settled principle of law that a conflict or
contradiction between the ocular and the medical
evidence has to be direct and material and only then the F
same can be pleaded. Even where it is so, the Court has
to examine as to which of the two is more reliable,
corroborated by other prosecution evidence and gives
the most balanced happening of events as per the case
of the prosecution. [Para 15] [1136-8-C] G
1.6. The absence of injuries on the back and neck of
the victim girl can safely be explained by the fact that she
was lured into the offence rather than being taken by
using physical force on her. The preparation, attempt and H
1120 SUPREME COURT REPORTS [2012] 11 S.C.R.
A actual act on the part of the accused is further clear from
the fact that he had purchased bangles which he had
promised to her and thereafter had taken her into the
tennis court store room, the key of which was with him.
This is also corroborated from the fact that even vide Ext.
B P.3, the langa as well as the bangles, coated with golden
colour were recovered by the Investigating Officer, PW11.
[Para 16] [1136-D-F]
1.7. An eleven year old girl and that too from a small
place and serving as a maid could hardly be aware of the
C technicalities of law in relation to an offence of sexual
assault. She felt very shy while making her statement in
the Court, which fact was duly noticed by the Court. [Para
17] [1136-F-G]
D 1.8. In order to establish a conflict between the ocular
evidence and the medical evidence, there has to be
specific and material contradictions. Merely because,
some fact was not recorded or stated by the doctor at a
given point of time and subsequently such fact was
E established by the expert report, the FSL Report, would
not by itself substantiate the plea of contradiction or
variation. Absence of injuries on the body of the
prosecutrix would not be of any advantage to the
accused. [Para 18] [1136-G-H; 1137-A-B]
F 1.9. The possibility of some variations in the exhibits,
medical and ocular evidence cannot be ruled out. But it is
not that every minor variation or inconsistency would tilt
the balance of justice in favour the accused. Where the eye
witness account is found credible and trustworthy, medical
G opinion pointing to alternative possibilities may not be
accepted as conclusive. [Para 19] [1137-C-D; 1138-A]
1.10. There is no reason for the Court to disbelieve
the statement of PW2 that she knew the accused and that
H the accused incited her and lured her to buying bangles
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1121
PRADESH
and then took her to the storeroom where he committed A
rape on her even threatened her of physical assault.
PW3, the rickshaw puller who was standing at the gate
of the University, had seen the accused taking the young
girl towards the tennis court store room. Suspecting that
he would do something wrong with the girl, he went to B
the room and knocked the door. The door was not
opened by the accused, however, he persisted with the
knocking. Thereafter the accused opened the door and
abused him, but PW3 maintained his presence of mind
and bolted the door from outside, leaving the accused c
and the prosecutrix inside the room and went to report
the matter. On his way, he met PW1, who accompanied
· him to the store room, brought both the accused and the
.: .victim to the police station, got an FIR registered on his
own statement, the investigation of which was conducted 0
by PW11, the Inspector of Police. [Para 22] [1138-F-H;
1139-A-B]
1.11. There is no reason as to why this Court should
disbelieve the statements of PW1, PW2, PW3, PWS and
PW11, particularly when they stood the lengthy cross- E
examination without any material damage to the case of
the· prosecution. [Para 23] [1139-B-C]
Dayal Singh and Others v. State of Uttaranchal [(2012) 7
SCALE: 165] - relied on. · F
•..
. 2.1. The mere fact that the hymen was intact and there
was no actual. wound oil her private parts is not
conclusive.of the fact that she was not subjected to rape.
According to PW9, there was a definite indication of
attempt to rape the. girl: AISo, la~r semen of h~man origin G
was traceable in the private parts of the girl, ·as indicated
by the FSL Report.. This woi.ild sufficiently indicate. that
she had b~en ~ubjected to ra.pe: Penetration .i~elf proves
the offence of riJpe, but the contrary ·is !lOt true _t.e. even
if there is no penetration, it does not necessarily'.mean H
1122 SUPREME COURT REPORTS [2012] 11 S.C.R.
A that there is no rape. The Explanation to Section 375 IPC
has been worded by the legislature so as to presume that
if there was penetration, it would be sufficient to
constitute sexual intercoursr necesr ~ry for the offence
of rape. Penetration may not always re" . in .earing of
B the hymen and the same will always de.,end upon the
facts and circumstances of a given case. The Court must
examine the evidence of the prosecution in its entirety
and then see its cumulative effect to determine whether
the offence of rape has been committed or it is a case of
c criminal sexual assault or criminal assault outraging the
modesty of a girl. [Para 25] [1139-F-H; 1140-A-B]
2.2. It can safely be concluded in the case at hand
that there was limited penetration due to which probably
the hymen of the victim girl was not ruptured. [Para 28]
D [1143-F]
Guddu @ Santosh v. State of Madhya Pradesh (2006)
Supp. 1 SCR 414; Tarkeshwawr Sahu v. State of Bihar (now
Jharkhand) (2006) 8 sec 560: 2006 (7) Suppl. SCR 10 -
E relied on.
3.1. The Court should adhere to a comprehensive
approach, in order to examine the case of the
prosecution. But as regards the facts and circumstances
F of the present case, the presence of the element of mens
rea on part of the accused cannot be denied. He had fully
prepared himself. He first lured the girl not only by inciting
her, but even by actually purchasing bangles for her.
Thereafter, he took the girl to a room where he threatened
her of physical assault as a consequence of which the
G girl did not raise protest. This is why no marks of physical
injury could be noticed on her body. Absence of injuries
in the context of the present case would not justify
drawing of any adverse inference against the
prosecution, but on the contrary would support the case
H of the prosecution. [Para 28] [1143-F-H; 1144-A]
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1123
PRADESH
3.2. As per the facts and circumstances of the A
present case, there is a direct link of the accused with the
commission of the crime. Such conclusion can well be
established by the statement of the witnesses, the
recoveries made, the Medical Report and the FSL Report.
It does not leave any doubt that the accused has B
committed the offence with which he was charged. [Para
31] [1146-B-C]
3.3. There is nothing on record to show that the
statement of PW2 is either unreliable or untrustworthy.
On the contrary, in light of the given facts, the statement C
of PW2 is credible, truthful and, thus, can safely be relied
upon. Statement of PW2 is fully corroborated by the
statements of PW1 and PW3. They are independent
witnesses and have no personal interest or motive of
falsely implicating the accused or supporting the case of D
the prosecution. PW2 is a poor young girl who works as
a maid servant. PW3 coming to her rescue and PW1
reaching the spot without any delay, saved the girl from
further assault and serious consequences. The. High
Court has not based the conviction of the accused solely E
on the statement of PW2. Even if it were so, still the
judgment of the High Court will not call for any
interference because the statement of PW2 was reliable,
trustworthy and by itself sufficient to convict the accused,
by virtue of it being the statement of the victim herself. F
[Para 32, 33] [1146-D-G]
O.M. Baby (Dead) by L.Rs. v. State of Kera/a JT 2012
(6) SC 117 and State of Himachal Pradesh v. Asha Ram AIR
2006 SC 381: 2005 (5) Suppl. SCR 280 - relied on.
G
4.1. It is true that the appellate Court has to be more
cautious while dealing with the judgment of acquittal.
Under the Indian crimi1'1al jurisprudence, the accused has
two fundamental protections available to him in a criminal
trial or investigation. Firstly, he is presumed to be H
1124 SUPREME COURT REPORTS [2012] 11 S.C.R.
A innocent till proved guilty and secondly that he is entitled
to a fair trial and investigation. Both these facets attain
even greater significance where the accused has a
judgment of acquittal in his favour. A judgment of
acquittal enhances the presumption of innocence of the
B accused and in some cases, it may even indicate a false
implication. But then, this has to be established on
record of the Court. However when one mentions about
the Court being cautious, it does not mean that the
appellate Court cannot disturb the finding of acquittal. All
c that is required is that there should be a compelling
rationale and also clear and cogent evidence, which has
been ignored by the Trial Court to upset the finding of
acquittal. [Paras 34, 35] [1147-A-D]
4.2. In the facts of the present case, the High Court
D has recorded reasons while interfering with the judgment
of acquittal by the Trial Court. The Trial Court attempted
to create a serious doubt in the case of the prosecution
on the basis of the statement of PW3, that he does not
know what PW2 narrated to PW1, when he made
E inquiries. This was not a proper way to appreciate the
evidence on record. The statement of a witness must be
read in its entirety. Reading a line out of context is not
an accepted canon of appreciation of evidence. Another
aspect of the statement of PW3 which the Trial Court had
F a doubt with, was, as to how PW3 had noticed the
accused taking away the minor girl along with him to the
tennis store room and how he suspected some foul play.
PW3 admittedly was a rickshaw puller and was standing
at the gate of the University. The tennis store room was
G quite near to the gate. PW3, quite obviously knew the
accused as well as PW2. The conduct of PW3 in the given
circumstances of the case was precisely as it would have
been of a person of normal behaviour and was not at all
extra-ordinary in nature, particularly in the late hours of
H evening. Still, another fact tha.t was taken into
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1125
PRADESH
consideration by the Trial Court while acquitting the A
accused was that Ext. P.5 neither showed any injuries on
the body nor reflected that rape was attempted on the
victim. In the considered view of this Court, the course
of appreciation of evidence and application of law
adopted by the Trial Court was not proper. It was B
expected of the Trial Court to examine the cumulative
effect of the complete evidence on record and case of the
prosecution in its entirety. [Paras 36 to 40] [1152-F-H;
1153-A·E]
4.3. Equally without merit is the contention that Ext. C
P.5 which was authored by PW9 upon examination of the
victim neither recorded any injuries on her person nor the
fact that she was raped. It is for the reason that PW9 had
not recorded any final opinion and kept the matter
pending, awaiting the FSL Report. Furthermore, in Ext. D
P.5, she had noticed that her parts were tender to touch.
The vaginal swabs and vaginal wash were taken and
slides were preserved. She was also sent to the hospital
for further examination. Thus, Ext. P.5 cannot be looked
into in isolation and must be examined in light of other E
ocular and documentary evidence. In the peculiar facts
and circumstances of the case, it was not even expected
of PW1 or the Investigating officer PW11 to examine the
victim particularly in relation to her private parts. Absence
of such recording does not cause any infirmity to the F
case of the prosecution much less a reason for acquitting
the accused. [Para 41] [1153-E-H; 1154-A]
4.4. The trial Court has failed to appreciate the
evidence on record cumulatively and in its correct G
perspective by ignoring the material piece of evidence
and improper appreciation of evidence. It has recorded
findings which are on the face of it unsustainable. This
error was rightly corrected by the High Court, and there
is no reason to interfere with the judgment of conviction
H
1126 SUPREME COURT REPORTS [2012] 11 S.C.R.
A recorded by the High Court. [Para 42] [1154-A-C]
Ravi Kapur v. State of Rajasthan JT 2012(7) SC 480 -
relied on.
Case Law Reference:
B
(2012) 7 SCALE 165 relied on Para 18
(2006) Supp. 1 SCR 414 relied on Para 26
2006 (7) Suppl. SCR 10 relied on Para 27
c JT 2012 (6) SC 117 relied on Para 29
2005 (5) Suppl. SCR 280 relied on Para 30
JT 2012(7) SC 480 relied on Para 35
D CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1707 of 2009.
From the Judgment & Order dated 23.1.2009 of the High
Court of Judicature of Andhra Pradesh at Hyderabad in
E Criminal Appeal No. 1007 of 1999.
Ch. Leela Sarveswar, V. Sridhar Re,ddy and V.N.
Raghupathy for the Appellant.
D. Mahesh Babu, Suchitra, Amit, Balashivdu and D.
F Bharathi Reddy for the Respondent.
The Judgment of the Court was delivered by
SWATANTER KUMAR, J. 1. The present appeal is
directed against the judgment dated 23rd January, 2009
G passed by the Division Bench of the High Court of Judicature
at Hyderabad, Andhra Pradesh whereby the order of acquittal
dated 11th February, 1999 passed by the Trial Court was
reversed. The appellant, while impugning the judgment under
appeal, raised the following contentions: -
H
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1127
PRADESH [SWATANTER KUMAR, J.]
1. The High Court could not have interfered with the A
judgment of acquittal of the Trial Court which was
very well-reasoned, based upon proper
appreciation of evidence and was in consonance
with the settled principles of law. The High Court,
thus, has exceeded its jurisdiction by interfering with 8
the judgment of acquittal of the Court of Sessions.
2. There are serious contradictions between the
ocular and the medical evidence which materially
affect the case of the prosecution. Therefore, the
accused is entitled to a reversal of the judgment of C
the High Court.
3. There was no sexual intercourse between the
appellant and the victim. The prosecution has not
been able to establish any link between the o
commission of the alleged offence and the
appellant.
4. The case of the prosecution is based upon the sole
testimony of the victim. All these circumstances,
examined cumulatively, entitle the accused for an E
order of acquittal.
5. Lastly, the punishment awarded to the accused is
too harsh.
F
2. These contentions have been raised with reference to
the case brought on record by the prosecution. The factual
matrix of the case as per the prosecution is:
3. The accused/appellant was working as a ball picker in
S.V. University tennis court, Tirupati, and in that capacity he was G
having the custody of the key to the storeroom situated on the
south-east of the tennis court. The tennis net and other articles
were stored in this place. On 7th September, 1997 at about
7.00 p.m., the accused saw a girl named A. Haritha, who was
H
r· ·,C--
·',,:. :..t
1128 SUPREME COURT REPORTS (2012] 11 S.C.R.
A standing alone outside the red building. It may be noticed, that
the mother of the victim girl, namely Sampuramma, PWS, was
working as a maid-servant in the red building attached to the
University.
4. A. Haritha, the victim belonged to the Scheduled Caste
8 category and was a!:>out 11 years of age at the time of the
incident. The accused asked her to come along with him. At
first she refused but the accused enticed her on the pretext of
purchasing gold colour plastic bangles. When she agreed to
accompany him, he bought her the bangles and then took her
C to the store room near the tennis court, the key to which he was
possessing. He opened the lock and took the victim inside the
room and committed rape on her against her will. In fact, he
even threatened to assault her. One Narayanaswamy, PW3, a
rickshaw puller, who was waiting by the side of Gate No. 3 of
D the S.V. University noticed the accused taking the victim into
the store room and thus, became suspicious. He went to the
store room and tapped the door several times. However, the
accused did not open the door at first, but upon further
insistence of PW3, he did so. PW3 saw the victim girl weeping.
E The accused slammed the door. Suspecting that the accused
might have done some wrong to the minor girl, Narayanswami,
PW3 bolted the door from outside and ran to inform the
authorities and/or the police. On his way he met Sub-Inspector
of Police, Traffic P.S., Tirupati, Sh. S.M. Ramesh, PW1, who
F was standing near the NCC Office traffic point and informed
him of the incident. Immediately, PW1 along with another Traffic
R.S.I, R. Sivanandakishore, PW4, accompanied by PW3 went
to the said storeroom, opened the door from outside and found
the victim girl A. Haritha. She complained of pain in her vaginal
G region. PW1 took the victim girl as well as the accused to the
SVU Campus Police Station and made a complaint, Ex. P.1,
based upon which FIR, Ex. P.7 was registered under Sections
363 and 376 (2)(f) of the Indian Penal Code 1860 (for short
'IPC') and Section 3(2)(v) of the Schedule Castes and the
H Schedule Tribes (Prevention of Atrocities) A,ct, 1989.
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1129
PRADESH [SWATANTER KUMAR, J.]
5. Upon this report, Sub-Inspector of Police, B. A
Katamaraju, PW10 undertook the investigation. The accused
was sent to the SV RR GG Hospital, Tirupati for medical
examination. The victim girl was sent to the Government
Maternity Hospital, Tirupati, for the same purpose and also for
the assessment of her age. Certain articles, including the cut B
drawer of accused containing seminal stains, skirt of the victim
girl etc. were seized and were sent to the laboratory. The
Assistant Director, RFSL Anantpur, after analysing the material
objects, detected semen on the clothes and on the vaginal
swabs of the victim, collected and preserved by the Medical c ,
Officer, and also on the underwear of the accused. The
Investigating Officer recorded the statement of various
witnesses and completed the investigation. Upon completion
of the investigation, the Inspector of Police, PW11 presented
a report under Section 173(2) of the Code of Criminal D
Procedure 1973 (for short 'the CrPC) for offences under
Sections 363 and 376 (2)(f) of IPC. As the alleged offences
were triable exclusively by the Court of Sessions, the accused
was committed to the Court of Sessions, where he faced the
trial. The prosecution examined 12 witnesses being PW1 to E
PW12 and exhibited documents P1 to P9 and material objects
(M.Os.) 1 to 3 in its effort to bring home the guilt of the accused.
As already noticed the Trial Court vide its judgment dated 11th
February, 1999 held the accused not guilty of any offence and
acquitted him. While recording the finding of acquittal, the Trial
Court found certain material improbabilities and contradictions F
in the statements of the witnesses. Since we have to deal with
the judgment of reversal of an order of acquittal, it will be useful
for us to notice some relevant extracts of the judgment which
would indicate as to what really weighed with the Trial Court
while granting acquittal to the accused. G
"(32) In the evidence of P.W.3, he says that he does not
know what P.W.2 informed to P.W.1 when he made
enquiries. The evidence of P.W.4 is of no use. As seen
from his evidence, it is manifest that he is unable to identify H1
1130 SUPREME COURT REPORTS [2012] 11 S.C.R.
A the accused person who was present in the court on the
date of his giving evidence. Even he has not divulged
anything about P.W.2 informing the incident to P.W.1. As
such, the evidence of PW.1 that the victim girl narrated the
incident to him, is not corroborated by any one of the
B witnesses.
(33) It is an admitted fact that at the scene of offence,
P.W.1 did not prepare any statements, and he simply
brought both the accused and P.W.2 to the Police Station.
But, it is (sic) not unnatural on the part of P.W.1 and other
c police personnel who went to the scene of offence without
any pen or papers on their hand, as it is evident from the
evidence of P.W.3 that immediately after informing the
incident to P.W.1 they went to the scene of offence. In such
case we cannot expect P.W.1 to procure paper and pen
D to prepare any statement on the spot. Hence, in this
context, the version of learned counsel for accused, that
as P.W.1 failed to record any police proceedings or
statement at the spot, ca~not go against the prosecution
case.
E
(34) Nextly, it may be pointed out that though P.W.10 the
S.I. of the Police registered the case, he did not try to
record the statements of P.Ws 1 to 3 though they were
available at that juncture. Till arrival of P.W.11, the
F Inspector of Police, the statements were not recorded.
When P.W.10 himself registered the case, why he has not
recorded the statements of the witnesses available at the
spot, was not explained by him., it is only P.W.11 who
received express F.1.R. from P.W.10 recorded statements
of P.Ws. 1 and 2, and later sern the victim girl to the
G
hospital for medical examination.
(35) When coming to the evidence of P.W.2, though she
narrated the incident and stated in her chief - examination
that the accused removed his pant and underwear and laid
H
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1131
PRADESH [SWATANTER KUMAR, J.]
her on the floor and passed liquid like urine in her private A
part, her admission in the cross-examination that
Narayanswamy P.W.3 tutored her to depose in this case
and also at the request of P.W.1, she deposed about
purchasing of bangles by the accused and taken her to the
room, makes her entire evidence lack of credibility and 8
inadmissible.
(36) In this context, the learned counsel for accused
submitted that in view of the particular admission made by
P.W.2 that she was tutored by P.W.3, the evidence of C
P.W.2 becomes worthless and inadmissible. In this regard,
he placed reliance upon a decision reported in "Ramvilas
and others, Appellants. Vs. State of Madhya Pradesh,
Respondent" (1985 Crl.L.J. Page 1773), wherein Their
Lordships held that, when the statement was narrated to
the witness just before entering into the witness box, the D
evidence of such witness is inadmissible in view of section
162 Cr.P.C. because the fact remains that it was narrated
to the witness for the purpose of giving evidence at the trial
and that tantamounts to making use of the statement at the
trial which is prohibited by section 162 Cr.P.C. E
xxxx xxxx xxxx xxxx xx xx
(38) When coming to the evidence of P.W.3, it goes to ·
show that he noticed the accused taking away a minor girl F
along with him to the tennis court. Though he suspected
some foul play, he did not try to prevent the accused from
taking the girl into the room of tennis court. This conduct
of P.W.3 is not natural in those circumstances.
G
(39) The evidence of P.W.5, the mother of victim girl goes
to show that she came to know the incident after the victim
girl and the accused were brought to Police Station.
Hence, she is also not a direct eye-witness.
H
1132 SUPREME COURT REPORTS (2012] 11 S.C.R.
A xxxx xxxx xxxx xxxx xx xx
(43) Hence, it is manifest that for sustaining tenderness on
the private parts of the victim girl, there could be some
other reasons and those reasons are not ruled out by
P.W.9. Admittedly, in the wound certificate furnished by her
B
under Ex.P.5, she has not mentioned that there was an
attempt on the person of P.W.2 victim girl. Further, there
is no record to show that she obtained acknowledgment
from the police for handing over the material objects
collected by her at the time of examination. She collected
c vaginal swab and also vaginal washings. Further, on her
examination, she found the hymen of the victim girl was
intact and there was no laceration or congestion on
fourchette.
D (59) But, in this case on hand, the evidence of P.W.2 the
prosecutrix is of no avail in view of her admission that she
was tutored by P.W.3 before her giving evidence. Hence,
the above said citation also cannot be made applicable
to the present facts of the case.
E
(70) In this case, what is important is, that, though P.W.2
narrated the incident and stated that the accused took her
to the tennis room and passed urine like substance on her
private part, her own admission that she was tutored by
F P.W.3, demolishes the credibility of the victim girl. Hence,
when the very direct evidence is doubtful in nature, the
evidence of P.W.3 that he saw the accused taking away
the girl along with him, and also P.W.1 and other noticing
the victim girl along with the accused in the tennis court
G room, it also not much helpful.
(71) Further as seen from the record, though P.Ws. 1 to 5
were examlhed by P.W.11 on the date of incident itself,
all the said statements were sent to the court only on
28.1.1998. The alleged occurrence is on 7.9.1997. Hence,
H
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1133
PRADESH [SWATANTER KUMAR, J.]
the sending statements to the court at a belated stage, has A
the effect of losing the spontaneity of the statements and
further; admittedly the statement of P.W.2 recorded by
P.W.1 was also not read over to her. Hence, in these
circumstances, the benefit of doubt should be given to the
accused. Hence, this point is answered against the B
prosecution.•
6. Besides the above, the Trial Court had also expressed
its doubt in relation to the authenticity of Ex.P.9, the wound
certificate of accused, issued by the Chief Medical Officer, SV c
RR GG Hospital, Dr. V.V. Pandurana Vittal, PW12. There were
certain corrections as referred to in paragraph 52 of the
judgment in this regard. The High Court disturbed the above
judgment of the Trial Court and found the accused guilty under
Sections 363 and 376(2)(f) of IPC an.d· convicted him to
undergo rigorous imprisonment for ihree years and to pay a fine D
of Rs.1000/- and in default of payment,· to undergo simple
imprisonment for three months under Sectio.il ·363 of IPC.
Accused was sentenced to undergo rigorous imprisonment for
10 years and also to pay a fine of Rs.2000/-, and in default of
payment, to undergo simple imprisonment for six months for the E
offence under Section 376 (2)(f) of IPC. The substantive
sentences were directed to run concurrently.
7. Aggrieved from the judgment of conviction and order of
sentence passed by the High Court, the accused has filed the F
present appeal.
8. We would prefer to discuss the first argument advanced
on behalf of the appellant as the last because !t would primarily
depend upon the view we take upon appreciation of the G
evidence and the case of the prosecution in its entirety.
9. The second contention on behalf of the appellant is that
there is a clear conflict between the medical evidence and the
ocular evidence which creates a serious doubt in the case of
the prosecution. To buttress this contention, reference has been H
1134 SUPREME COURT REPORTS [2012] 11 S.C.R.
A made to the statement of PW2, the prosecutrix, where she
states that she was subjected to rape, but according to the
doctor, PW9 and the Medical Report, Ext. P.5, neither was she
subjected to sexual intercourse nor was there any penetration.
B 10. PW2 was 11 years old at the time of occurrence, while
she was 12 years old, when her statement was recorded in the
Court. After the Court was convinced of the fact that she is
competent to make the statement, the same was recorded. In
her statement, she stated that she was working as a maid in
C the staff quarters of S.V. University, known as the red building.
According to her, she knew the accused and he was in the
habit of escorting children to the school. The accused had taken
her to the tennis court, promised her that he would buy bangles
for her and after purchasing the bangles the accused took her
to a room in the tennis court. The accused closed the door of
D the room, lifted her /anga, removed his own pant and
underwear, put her on the floor of the room and passed liquid
like urine into her private parts. In the meanwhile, she stated
that she felt the starch in her private parts. At that time, one
rickshaw puller, PW3 came and knocked at the door. The
E accused abused him in a filthy language and later the police
came to the room. She further narrated that it was PW1 who
had taken her and the accused to the police station, where she
was examined by the Police.
F 11.Her langa was seized by the police and was sent to
hospital for examination. She stated that her mother was also
working as a maid in the red building itself. We must notice that
despite a lengthy cross-examination, she stood to her
statement and did not cast any doubt on the statement made
G by her in her examination-in-chief. When she was taken to the
hospital, she was examined by Dr. G. Veeranagi Reddy, PW8,
who stated that he was working as a Professor of Forensic
Medicine in the S.V. Medical College, Tirupati and that on 13th
September, 1997, he had examined a girl A. Haritha for the
H purposes of finding out her age. He stated as follows:-
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1135
PRADESH [SWATANTER KUMAR, J.]
'2. On physical mental and radiological examination A
I am of the opinion of that the age of Haritha is between
10 and 11 years. Ex. P.4 is the certificate."
12. She was also examined by Sm!. Dr. P. Vijayalakshmi,
Assistant Professor in Maternity Hospital, nrupati, PW9 on 7th
8
September, 1997. According to PW9, the girl had washed
herself after the incident. PW9 made the following remarks:-
"There are nr:: marks of violence nape of neck, front and back
of the body. The abdomen was soft. Liver and spleen not
palpable. The breasts are not developed. There was no axilliary
pubic hair. The hymen was intact. No laceration or congestion C
in fourchette, the parts were tender to touch, which according
to the doctor was an indication of attempt to rape with the girl."
The doctor, PW9 also stated that considering the age of the
victim and on seeing that the parts were tender to touch, she
could say that there was an attempt to rape the victim girl A. D
Haritha. Since, according to PW9, the girl had washed herself
after the incident, the doctor had to reserve her final opinion till
the Chemical Analyst's Report (FSL Report). The vaginal swab
and washing were preserved for chemical analysis. The FSL
Report was Ext. P.6, while the Wound Certificate of victim girl E
was Ext. P.5. According to the FSL Report, semen was
detected on Items 1, 2, 4, 5 and 6 and the same was of human
origin. Saliva of human origin was detected on Item No. 3. The
Chemical Analyst also detected semen and spermatozoa on
Item Nos. 1, 2, 4, 5 and 6 and on Item No. 3 saliva was found. F
13. Item No. 1 was torn brown colour polyester langa with
dirty stains which the girl was wearing. Item No. 2 was a torn
grey colour mill made cut drawer with dirty stains which the
accused was wearing. Item No. 3 and Item No. 4 were the G
turbid liquid which was present on the cloth and in a bottle
respectively. Item No. 5 was a cotton swab and Item No. 6 were
two glass slides which were sent for opinion and via FSL
Report, Ext. P.6, the opinion was received.
14. From the above evidence, it is not feasible to state with H
1136 SUPREME COURT REPORTS [2012] 11 S.C.R.
A certainty that there is any conflict between the medical and the
ocular evidence. One cannot find any fault in the statement of
Dr. P. Vijyalakshmi, PW9, who waited to give her final opinion
till she received the FSL Report. According to her, an attempt
to rape the young girl was made, while according to PW2, she
B was subjected to rape and the accused person had discharged
some liquid like urine in her private parts.
15. It is a settled principle of law that a conflict or
contradiction between the ocular and the medical evidence has
to be direct and material and only then the same can be
C pleaded. Even where it is so. the Court has to examine as to
which of the two is more reliable, corroborated by other .
prosecution evidence and gives the most balanced happening
of events as per the case of the prosecution. . ·
D 16. The absence of injuries on the back and neck of the
victim girl can safely be explained by the fact that she was lured
into the offence rather than being taken by using physical force
on her. The preparation, attempt and actual act on the p~rt of
the accused is further clear from the fact that he had purchased
E bangles which he had promised to her and thereafter had taken
her into the tennis court store room, the key of which was with
him. This is also corroborated from the fact that even vide Ext.
P.3, the langa as well as the bangles, coated with golden colour
were recovered by the Investigating Officer, S.M. Khaleel,
F PW11.
17. An eleven year old girl and that too from a small place
and serving as a maid could hardly be aware of such
technicalities of law in relation to an offence of sexual assault.
She felt very shy while making her statement in the Court, which
G fact was duly noticed by the Court in its Order dated 9th
November, 1998.
18. In order to establish a conflict between the ocular
evidence and the medical evidence, there has to be specific
H and material contradictions. Merely because, some fact was
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1137
PRADESH ISWATANTER KUMAR. J.l
not recorded or stated by the doctor at a given point of time A
and subsequently such fact was established by the expert
report, the FSL Report, would not by itself substantiate the plea
of contradiction or variation. Absence of injuries on the body
of the prosecutrix, as already explained, would not be of any
advantage to the accused. B
19. In any case, to establish a conflict between the medical
and the ocular evidence, the law is no more res integra and
stands squarely answered by the recent judgment of this Court
in the case of Dayal Singh and Others v. State of Uttaranchal C
((2012) 7 SCALE 165]
"29. This brings us to an ancillary issue as to how the Court
would appreciate the evidence in such cases. The
possibility of some variations in the exhibits, medical and
ocular evidence cannot be ruled out. But it is not that every D
minor variation or inconsistency would tilt the balance of
justice in favour the accused. Of course, where
contradictions and variations are of a serious nature, which
apparently or impliedly are destructive of the substantive
case sought to be proved by the prosecution, they may E
provide an advantage to the accused. The Courts,
normally, look at expert evidence with a greater sense of
acceptability, but it is equally true that the courts are not
absolutely guided by the report of the experts, especially
if such reports are perfunctory, unsustainable and are the F
result of a deliberate attempt to misdirect the prosecution.
In Kamaljit Singh v. State of Punjab (2004 Cri.LJ 28], the
Court, while dealing with discrepancies between ocular
and medical evidence, held, "It is trite law that minor
variations between medical evidence and ocular evidence G
do not take away the primacy of the latter. Unless medical
evidence in its term goes so far as to completely rule out
all possibilities whatsoever of injuries taking place in the
manner stated by the eyewitnesses, the testimony of the
eyewitnesses cannot be thrown out.•
H
1138 SUPREME COURT REPORTS [2012] f1 S.C.R.
A 30. Where the eye witness account is found credible and
trustworthy, medical opinion pointing to alternative
possibilities may not be accepted as conclusive. The
expert witness is expected to put before the Court all
materials inclusive of the data which induced him to come
B to the conclusion and enlighten the court on the technical
aspect of the case by examining the terms of science, so
that the court, although not an expert, may form its own
judgment on those materials after giving due regard to the
expert's opinion, because once the expert opinion is
c accepted, it is not the opinion of the medical officer but
that of the Court. {Plz. See Madan Gopa/ Kakad v. Naval
Dubey & Anr. [(1992) 2 SCR 921 : (1992) 3 sec 204]}."
20. In light of the above settled canon of criminal
jurisprudence, we have no hesitation in concluding that we find
D no merit in the contention raised on behalf of the appellant with
regard to discrepancy in the medical and the ocular evidence.
21. Further, it is argued by the appellant that there is no
direct evidence connecting the accused to the commission of
E the crime and that there was no penetration, therefore, the
accused has not committed the offence punishable under
Section 376 IPC. As already noticed, the prosecution had
examined nearly 12 witnesses and produced documentary
evidence on record including Medical and FSL Report in
F support of its case.
22. Firstly, there is no reason for the Court to disbelieve
the statement of PW2 that she knew the accused and that the
· accused incited her and lured her to buying bangles and then
took her to the storeroom where he committed rape on her even
G threatened her of physical assault. PW3, the rickshaw puller
who was standing at the gate of the University, had seen the
accused taking the young girl towards the tennis court store
room. Suspecting that he would do something wrong with the
girl, he went to the room and knocked the door. The door was
H not opened by the accused, however, he persisted with the
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1139
PRADESH [SWATANTER KUMAR, J.]
knocking. Thereafter the accused opened the door and abused A
him, but PW3 maintained his presence of mind and bolted the
door from outside, leaving the accused and the prosecutrix
inside the room and went to report the matter. On his way, he
met PW1, S.M. Ramesh, Sub-Inspector of Police, Traffic P.S.,
Tirupati who accompanied him to the store room, brought both 8
the accused and the victim to the police station, got an FIR
registered on his own statement, the investigation of which was
conducted by PW11, S.M. Khaleel, the Inspector of Police.
23. We see no reason as to why this Court should
disbelieve the statements of PW1, PW2, PW3, PW5 and C
PW11, particularly when they stood the lengthy cross-
examination without any material damage to the case of the
prosecution.
24. According to the medical evidence and statements of o
PW8 and PW9, the victim was 11 years old at the time of
occurrence and her private parts were tender to touch. The
doctor, PW9 had reserved her final opinion awaiting the FSL
Report. According to the FSL Report, the langa of the girl as
well as the drawer of the accused were containing semen of E
human origin. The slides which contained the swab taken from
the vagina of the girl also showed presence of semen of human
origin. It may be noticed that these reports, in relation to Items
1, 2, 4, 5 and 6 came despite the fact that the girl had washed
herself after the occurrence.
F
25. The mere fact that the hymen was intact and there was
no actual wound on her private parts is not conclusive of the
fact that she was not subjected to rape. According to PW9,
there was a definite indication of attempt to rape the girl. Also,
later semen of human origin was traceable in the private parts G
of the girl, as indicated by the FSL Report. This would
sufficiently indicate that she had been subjected to rape.
Penetration itself proves the offence of rape, but the contrary
is not true i.e. even if there is no penetration, it does not
necessarily mean that there is no rape. The Explanation to.. H
1140 SUPREME COURT REPORTS [2012] 11 S.C.R.
A Section 375 IPC has been worded by the legislature so as to
presume that if there was penetration, it would be sufficient to
constitute sexual intercourse necessary for the offence of rape.
Penetration may not always result in tearing of the hymen and
the same will always depend upon the facts and circumstances
8 of a given case. The Court must examjne the evidence of the
prosecution in its entirety and then see its cumulative effect to
determine whether the offence of rape has been committed or
it is a case of criminal sexual assault or criminal assault
outraging the modesty of a girl.
C 26. At this stage, we may make a reference to the
judgments of this Court which would support the view that we
have taken. Firstly, in the case of Guddu @ Santosh v. State
of Madhya Pradesh [(2006) Supp. 1 SCR 414}, where the
Court was dealing with somewhat similar circumstances, this
D Court made a finding that the High Court had failed to notice
that even slight penetration was sufficient to constitute the
offence of rape and upheld the conviction of accused, though
the sentence was reduced. It held as under:-
E "It is not a case where merely a preparation had been
undergone by the appellant as contended by the learned
Counsel. Evidently, the appellant made an attempt to
criminally assault the prosecutrix. In fact, from the nature
of the medical evidence an inference could 'also have been
drawnlby the High Court that there had been penetration.
F 0
The High Court fa iled to notice that even slight penetration
was sufficient to constitute an offence of rape. The redness
of the hymen would not have been pos.sib!e. but for
penetration to some extent. In Kappu(a Venkat Rao
(supra), this Court categorically made a distinction between
G the preparation for commission of an offence and attempt
to commit the same, in the following terms: ·
Attempt to commit an offence can be said to begin when
the preparations are complete and the culprit commences
H to do something with the intention of committing the
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1141
PRADESH [SWATANTER KUMAR, J.]
offence and which is a step towards the commission of the A
offence. The moment he commences to do an act with the
necessary intention, he commences his attempt to commit
the offence. The word 'attempt' is not itself defined, and
must, therefore, be taken in its ordinary meaning. This is
exactly what the provisions of Section 511 require. An B
attempt to commit a crime is to be distinguished from an
intention to commit it, and from preparation made for its
commission. Mere intention to commit an offence, not
followed by any act, cannot constitute an offence. The wiH
is not to be taken for the deed unless there be some c
external act which shows that progress has been made in
the direction of it, or towards maturing and effecting it.
Intention is the direction of conduct towards the object
chosen upon considering the motives which suggest the
choice. Preparation consists in devising or arranging the 0
means or measure necessary for the commission of the
offence. II differs widely from attempt which is the direct
movement towards the commission after preparations are
made. Preparation to commit an offence is punishable
only when the preparation is to commit offence under
Section 122 (waging war against the Government of India) E
and Section 399 (preparation to commit dacoity). The
dividing line between a mere preparation and an attempt
is sometimes thin and has to be decided on the facts of
each case.
F
(Emphasis supplied)"
27. Secondly, in the case of Tarkeshwawr Sahu v. State
of Bihar (now Jharkhand) [(2006) 8 SCC 560], the Court held
as under:- G
1o. Under Section 37!nPc, six categories indicated above
are the basic ingredients of the offence. In the facts and
circumstances of this case, the prosecutrix was about 12
years of age, therefore, her consent was irrelevant. The
appellant had forcibly taken her to his gumti with the H
1142 SUPREME COURT REPORTS [2012] 11 S.C.R.
A intention of committing sexual intercourse with her. The
important ingredient of the offence under Section 375
punishable under Section 376 IPC is penetration which is
altogether missing in the instant case. No offence under
Section 376 IPC can be made out unless there was
B penetration to some extent. In the absence of penetration
to any extent, it would not bring the offence of the appellant
within the four corners of Section 375 of the Penal Code.
Therefore, the basic ingredients for proving a charge of
rape are the accomplishment of the act with force. The
c other important ingredient is penetration of the male organ
within the labia majora or the vulva or pudenda with or
without any emission of semen or even an attempt at
penetration into the private part of the victim completely,
partially or slightly would be enough for the purpose of
Sections 375 and 376 IPC. This Court had an occasion
D
to deal with the basic ingredients of this offence in State
of U.P. v. Babu/ Nath. In this case, this Court dealt with
the basic ingredients of the offence under Section 375 in
the following words: (SCC p. 34, para 8)
E "8. It may here be noticed that Section 375 IPC defines
rape and the Explanation to Section 375 reads as follows:
'Explanation.-Penetration is sufficient to constitute the
sexual intercourse necessary to the offence of rape.'
F From the Explanation reproduced above it is distinctly clear
that ingredients which are essential for proving a charge
of rape are the accomplishment of the act with force and
resistance. To constitute the offence of rape neither
Section 375 IPC nor the Explanation attached thereto
G require that there should necessarily be complete
penetration of the penis into the private part of the victim/
prosecutrix. In other words to constitute the offence of rape
it is not at all necessary that there should be complete
penetration of the male organ with emission of semen and
H rupture of hymen. Even partial or slightest penetration of
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1143
PRADESH [SWATANTER KUMAR, J.]
the male organ within the labia majora or the vulva or A
pudenda with or without any emission of semen or even
an attempt at penetration into the private part of the victim
would be quite enough for the purpose of Sections 375 and
376 IPC. That being so it is quite possible to commit legally
the offence of rape even without causing any injury to the B
genitals or leaving any seminal stains. But in the present
case before us as noticed above there is more than
enough evidence positively showing that there was sexual
activity on the victim and she was subjected to sexual
assault without which she would not have sustained injuries c
of the nature found on her private part by the doctor who
examined her."
xxxxx xxxxx xxxxx xxxxx
12 The word "penetrate", according to Concise Oxford D
Dictionary means "find access into or through, pass
through".
13. In order to constitute rape, what Section 375 IPC
requires is medical evidence of penetration, and this may E
occur and the hymen remain intact. In view of the
Explanation to Section 375, mere penetration of penis in
vagina is an offence of rape. Slightest penetration is
sufficient for conviction under Section 376 IPC.
28. In light of the above judgments, it can ~afely be F
concluded that there was limited penetration due to which
probably the hymen of the victim girl was not ruptured. The
Court should adhere to a comprehensive approach, in order
to examine the case of the prosecution. But as regards the facts
and circumstances of the present case, the presence of the G
element of mens rea on part of the accused cannot be denied.
He had fully prepared himself. He first lured the girl not only by
inciting her, but even by actually purchasing bangles for her.
Thereafter, he took the girl to a room where he threatened her
of physical assault as a consequence of which the girl did not H
1144 SUPREME COURT REPORTS [2012] 11 S.C.R.
A raise protest. This is why no marks of physical injury could be
noticed on her body. Absence of injuties in the context of the
present case would not justify drawing of any adverse inference
against the prosecution, but on the contrary would support the
case of the prosecution.
B
29. It will be useful to refer to the judgment of this Court in
the case of O.M. Baby (Dead) by L.Rs. v. State of Kera/a [JT
2012 (6) SC 117], where the Court held as follows:-
"16. A prosecutrix of a sex offence cannot be put on a par
c with an accomplice. She is in fact a victim of the crime.
The Evidence Act nowhere says that her evidence cannot
be accepted unless it is corroborated in material
particulars. She is undoubtedly a competent witness under
Section 118 and her evidence must receive the same
D weight as is attached to an injured in cases of physical
violence. The same degree of care and caution must attach
in the evaluation of her evidence as in the case of an
injured complainant or witness and no more. What is
necessary is that the court must be alive to and conscious
E of the fact that it is dealing with the evidence of a person
who is interested in the outcome of the charge levelled by
her. If the court keeps this in mind and feels satisfied that
it can act on the evidence of the prosecutrix, there is no
rule of law or practice incorporated in the Evidence Act
F similar to Illustration (b) to Section 114 which requires it
to look for corroboration. If for some reason the court is
hesitant to place implicit reliance on the testimony of the
prosecutrix it may look for evidence which may lend
assurance to her testimony short of corroboration required
in the case of an accomplice. The nature of evidence
G required to lend assurance to the testimony of the
prosecutrix must necessarily depend on the facts and
circumstances of each case. But if a prosecutrix is an adult
and of full understanding the court is entitled to base a
conviction on her evidence unless the same is shown to
H
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1145
PRADESH [SWATANTER KUMAR, J.]
be infirm and not trustworthy. If the totality of the A
circumstances appearing on the record of the case
disclose that the prosecutrix does not have a strong motive
to falsely involve the person charged, the court should
ordinarily have no hesitation in accepting her evidence.
B
14. We would further like to observe that while appreciating
the evidence of the prosecutrix, the court must keep in
mind that in the context of the values prevailing in the
country, particularly in rural India, it would be unusual for a
woman to come up with a false story of being a victim of
sexual assault so as to implicate an innocent person. Such C
a view has been expressed by the judgment of this Court
in the case of State of Punjab v. Gurmit Singh (1996) 2
sec 384 and has found reiteration in a recent judgment
in Rajinder@ Raju v. State of H.P. (2009) 16 SCC 69,
para 19 whereof may be usefully extracted: D
19. In the context of Indian culture, a woman - victim
of sexual aggression - would rather suffer silently
.than to falsely implicate somebody. Any statement
of rape is an extremely humiliating experience for E
a woman and until she is a victim of sex crime, she
would not blame anyone but the real culprit. While
appreciating the evidence of the prosecutrix, the
courts must always keep in mind that no self-
respecting woman would put her honour at stake by .F
falsely alleging commission of rape on her cind
therefore, ordinarily a look for corroboration of her
testimony is unnecessary and uncalled for. But for
high improbability in the prosecution case, the
conviction in the case of sex crime may be based
on the sole testimony of the prosecutrix. It has been G
rightly said that corroborative evidence is not an
imperative component of judicial credence in every
case of rape nor the absence of injuries on the
private parts of the victim can be construed as
evidence of consent.• H
1146 SUPREME COURT REPORTS [2012) 11 S.C.R.
A 30. Reference can also be made to the judgment of this
Court in the case of State of Himacha/ Pradesh v. Asha Ram
[AIR 2006 SC 381).
31. Thus, as per the facts and circumstances of the present
B case, there is a direct link of the accused with the commission
of the crime. Such conclusion can well be established by the
statement of the witnesses, the recoveries made, the Medical
Report and the FSL Report. It does not leave any doubt in our
mind that the accused has committed the offence with which
c he was charged.
32. Still, another argument was advanced to contend that
the conviction of the appellant cannot be based on the sole
statement of prosecutrix PW2, because it is not reliable. We
0 have already discussed above at some length that there is
nothing on record to show that the statement of PW2 is either
unreliable or untrustworthy. On the contrary, in light of the given
facts, the statement of PW2 is credible, truthful and, thus, can
safely be relied upon.
E
33. Statement of PW2 is fully corroborated by the
statements of PW1 and PW3. They are independent witnesses
and have no personal interest or motive of falsely implicating
the accused or supporting the case of the prosecution. PW2
F is a poor young girl who works as a maid servant. PW3 coming
to her rescue and PW1 reaching the spot without any delay,
saved the girl from further assault and serious consequences.
Firstly, the High Court has not based the conviction of the
accused solely on the statement of PW2. Even if it were so,
still the judgment of the High Court will not call for any
G interference because the statement of PW2 was reliable,
trustworthy and by itself sufficient to convict the accused, by
virtue of it being the statement of the victim herself.
34. Lastly, coming back to the first contention raised on
H
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1147
PRADESH [SWATANTEF{ KUMAR, J.]
behalf of the accused, it is true that the appellate Court has to A
be more cautious while dealing with the judgment of acquittal.
Under the Indian criminal jurisprudence, the accused has two
fundamental protections available to him in a criminal trial or
investigation. Firstly, he is presumed to be innocent till proved
guilty and secondly that he is entitled to a fair trial and B
investigation. Both these facets attain even greater significance
where the accused has a judgment of acquittal in his favour. A
judgment of acquittal enhances the presumption of innocence
of the accused and in some cases, it may even indicate a false
implication. But then, this has to be established on record of c
the Court.
35. When we mention about the Court being cautious, it
does not mean that the appellate Court cannot disturb the
finding 'ef acquittal. All that is required is that there should be a
compelling rationale and also clear and cogent evidence, which D
has been ignored by the Trial Court to upset the finding of
acquittal. We need not deliberate on this issue in greater detail.
Suffice it to notice the recent judgment of this Court in the case
of Ravi Kapur v. State of Rajasthan [JT 2012(7) SC 480],
where the Court, after discussing various other judgments of E
this Court held on the facts of that case that interference with
the judgment of acquittal by the High Court was justified. The
Court explained the law as under:-
37. Lastly, we may proceed to discuss the first contention F
raised on behalf of the accused. No doubt, the Court of
appeal would normally be reluctant to interfere with the
judgment of acquittal but this is not an absolute rule and
has a number of well accepted exceptions. In the case of
State of UP v. Banne & Anr. [(2009) 4 SCC 271], the G
Court held that even the Supreme Court would be justified
in interfering with the judgment of acquittal of the High
Court but only when there are very substantial and
compelling reasons to discard the High Court's decision.
In the case of State of Haryana v. Shakunta/a & Ors.
H
1148 SUPREME COURT REPORTS [2012) 11 S.C.R.
A [2012 (4) SCALE 526), this Court held as under:
"36. The High Court has acquitted some accused
while accepting the plea of alibi taken by them.
Against the judgment of acquittal, onus is on the
prosecution to show that the finding recorded by the
High Court is perverse and requires correction by
this Court, in exercise of its powers under Article
136 of the Constitution of India. This Court has
repeatedly held that an appellate Court must bear
in mind that in case of acquittal, there is a double
c presumption in favour of the accused. Firstly, the
presumption of innocence is available to such
accused under the fundamental principles of
criminal jurisprudence, i.e., that every person shall
be presumed to be innocent unless proved guilty
D before the court and secondly, that a lower court,
upon due appreciation of all evidence has found in
favour of his innocence. Merely because another
view is possible, it would be no reason for this
Court to interfere with the order of acquittal.
E
37. In Girja Prasad (Dead) By Lrs. v. State of M.P. [(2007)
7 SCC 625), this Court held as under:-
"28. Regarding setting aside acquittal by the High
Court, the learned Counsel for the appellant relied
F upon Kunju Muhammed v. State of Kera/a (2004)
9 SCC 193, Kashi Ram v. State of M.P. AIR 2001
SC 2902 and Meena v. State of Maharashtra
2000 Cri LJ 2273. In our opinion, the law is well
settled. An appeal against acquittal is also an
G appeal 1.mder the Code and an Appellate Court has
every power to reappreciate, review and recbl'lsider
the evidence as a whole before it. It is, no doubt,
true that there is presumption of innocenc:e in favour
of the accused and that presumption ts 1einforced
H by an order of acquittal recorded by the Trial Court.
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1149
PRADESH [SWATANTER KUMAR, J.]
But that is not the end of the matter. It is for the A
Appellate Court to keep in view the relevant
principles of law, to reappreciate and reweigh the
evidence as a whole and to come to its own
conclusion on such evidence in consonance with the
principles of criminal jurisprudence." 8
38. In Chandrappa v. State of Kamataka [(2007) 4 SCC
415), this Court held as under:-
"42. From the above decisions, in our considered view, the
following general principles regarding powers of the c
appellate court while dealing with an appeal against an
order of acquittal emerge:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon
which the order of acquittal is founded. D
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such
power and an appellate court on the evidence
before it may reach its own conclusion, both on E
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 mistakes", etc. are not intended to curtail F
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 the court to G
review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind
that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the H
1150 SUPREME COURT REPORTS [2012] 11 S.C.R.
A presumption of innocence is available to him under
the fundament,al principle of criminal jurisprudence
that every person shall be presumed to be innocent
unless he is proved guilty by a competent court of
law. Secondly, the accused having secured his
B 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 basis of the evidence on record, the appellate
c court should not disturb the finding of acquittal
recorded by the trial court."
39. In C. Antony v. K.G. Raghavan Nair [(2003) 1 SCC
1], this Court held :-
D "6. This Court in a number of cases has held that
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,
E 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
F justified. In those line of cases this Court has also
held that the appellate court must also bear in mind
the fact that the trial court had the benefit of seeing
the witnesses in the witness box and the
presumption of innocence is not weakened by the
G
order of acquittal, and in such cases if two
reasonable conclusions can be reached on the
basis of the evidence on record, the appellate court
should not disturb the finding of the trial court. (See
Bhim Singh Rup Singh v. State of Maharashtra 1
and Dharamdeo Singh v. State of Bihar. )"
H
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1151
PRADESH [SWATANTER KUMAR, J.]
40. The State has not been able to make out a case of A
exception to the above settled principles. It was for the
State to show that the High Court has completely fallen in
error of law or that judgment in relation to these accused
was palpably erroneous, perverse or untenable. None of
these parameters are satisfied in the appeal preferred by B
the State against the. acquittal of three accused."
38. In the present case, there are more than sufficient
reasons for the High Court to interfere with the judgment
of acquittal recorded by the Trial Court. Probably, this issue c
was not even raised before the High Court and that is why
we find that there are hardly any reasons recorded in the
judgment of the High Court impugned in the present
appeal. Be that as it may, it was not a case of non-
availability of evidence or presence of material and D
serious contradictions proving fatal to the case of the
prosecution. There was no plausible reason before the
Trial Court to disbelieve the eye account given by PW2 and
PW4 and the Court could not have ignored the fact that
the accused had been duly identified at the place of
occurrence and even in the Court. The Trial Court has E
certainly fallen in error of law and appreciation of evidence.
Once the Trial Court has ignored material piece of
evidence and failed to appreciate the prosecution
evidence in its correct perspective, particularly when the
prosecution has proved its case beyond reasonable doubt, F
then it would amount to failure of justice. In some cases,
such error in appreciation of evidence may even amount
to recording of perverse finding. We may also notice at the
cost of repetition that the Trial Court had first delivered its
judgment on 24th June, 1999 convicting the accused of the G
offences. However, on appeal, the matter was remanded
on two grounds, i.e., considering the effect of non-holding
of test identification parade and not examining the doctor.
Upon remand, the Trial Court had taken a different view
H
1152 SUPREME COURT REPORTS [2012] 11 S.C.R.
A than what was taken by it earlier and vide judgment dated
11th May, 2006, it had acquitted the accused. This itself
became a ground for interference by the High Court in the
judgment of acquittal recorded by the Trial Court. From the
judgment of the Trial Court, there does not appear to be
B any substantial discussion on the effect of non-holding of
the test identification parade or the non-examination of the
doctor. On the contrary, the Trial Court passed its judgment
on certain assumptions. None of the witnesses, not even
the accused, in his statement, had stated that the jeep was
c at a fast speed but still the Trial Court recorded a finding
that the jeep was at a fast speed and was not being driven
properly. The Trial Court also recorded that a suspicion
arises as to whether Ravi Kapur was actually driving the
bus at the lime of the accident or not and identification was
very important.
D
39. We are unable to understand as to how the Trial Court
could ignore the statement of the eye-witnesses,
particularly when they were reliable, trustworthy and gave
the most appropriate eye account of the accident. The
E judgment of the Trial Court, therefore, suffered from errors
of law and in appreciation of evidence both. The
interference by the High Court with the judgment of
acquittal passed by the Trial Court does not suffer from any
jurisdictional error."
F
36. Reverting to the facts of the present case, the High
Court has recorded reasons while interfering with the judgment
of acquittal by the Trial Court. We may also notice that the Trial
Co.art attempted to create a serious doubt in the case of the
G prosecution on the basis of the statement of PW3, that he does
not know what PW2 narrated to PW1, when he made inquiries.
We do not think that this was a proper way to appreciate the
evidence on record.
H
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1153
PRADESH [SWATANTER KUMAR, J.]
37. The statement of a witness must be read in its entirety. A
Reading a line out of context is not an accepted canon of
appreciation of evidence.
38. Another aspect of the statement of PW3 which the Trial
Court had a doubt with, was, as to how PW3 had noticed the B
accused taking away the minor girl along with him to the tennis
store room and how he suspected some foul play.
39. PW3 admittedly was a rickshaw puller and was
standing at the gate of the University. The tennis store room
was quite near to the gate. PW3, quite obviously knew the C
accused as well as PW2. The conduct of PW3 in the given
circumstances of the case was precisely as it would have been
of a person of normal behaviour and was not at all extra-
ordinary in nature, particularly in the late hours of evening.
D
40. Still, another fact that was taken into consideration by
the Trial Court while acquitting the accused was that Ext. P.5
neither showed any injuries on the body nor reflected that rape
was attempted on the victim. In our considered view, the course
of appreciation of evidence and application of law adopted by E
the Trial Court was not proper. It was expected of the Trial Court
to examine the cumulative effect of the complete evidence on
record and case of the prosecution in its entirety.
41. Equally without merit is the contention that Ext. P.5
which was authored by PW9 upon examination of the victim F
neither recorded any injuries on her person nor the fact that she
was raped. It is for the reason that PW9 had not recorded any·
final opinion and kept the matter pending, awaiting the FSL
Report. Furthermore, in Ext. P.5, she had noticed that her parts -
were tender to touch. The vaginal swabs and vaginal wash were G
taken and slides were preserved. She was also sent to the
hospital for further examination. Thus, Ext. P.5 cannot be looked
into in isolation and must be examined in light of other ocular
and documentary evidence. In the peculiar facts and
circumstances of the case, it was not even expected of PW1 H
1154 SUPREME COURT REPORTS [2012] 11 S.C.R.
A or the Investigating officer PW11 to examine the victim
particularly in relation to her private parts. Absence of such
recording does not cause any infirmity to the case of the
prosecution much less a reason for acquitting the accused.
42. In our considered opinion, the learned Trial Court has
8
failed to appreciate the evidence on record cumulatively and
in its correct perspective by ignoring the material piece of
evidence and improper appreciation of evidence. It has
recorded findings which are on the face of it unsustainable. This
error was rightly corrected by the High Court, and we see no
C reason to interfere with the judgment of conviction recorded by
the High Court.
43. We find no merit in the present appeal and the same
is dismissed.
D
8.8.B. Appeal dismissed.
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