RAJA AND OTHERSversusSTATE OF KARNATAKA

                         [2016) 9 S.C.R. 615



                       RAJA AND OTHERS                                    A
                                  v.
                     STATE OF KARNATAKA
                 (Criminal Appeal No. 1767of2011)
                        OCTOBER 04, 2016                                  B

   [PINAKI CHANDRA GHOSE AND AMITAVA ROY, JJ.]
       Penal Code, 1860 - ss.376(g)/366/392 rlw. s.34 - Prosecutrix
alleged gang rape by appellants - Inconsistencies in FIR and the
deposition of prosecutrix - Appellants acquitted by trial court -
Acquittal reversed by High Court - Appellants pleaded false
                                                                          c
implication as they declined to oblige the prosecutrix qua her de111and
for financial help - On appeal, held: View taken by the trial court
is overwhelmingly possible - In contrast, findings of High Court
are decipherably strained in favour of the prosecution by
overlooking many irreconcilable inconsistencies, anomalies and            D
omissions rendering the prosecution case unworthy of credit -
Prosecution failed to prove the charges - Appellants entitled to
benefit of doubt.
      Appeal - Appeal against acquittal - Interference by appellate
court - Scope of - Discussed.                                             E
      Evidence - Evidence of prosecutrix in cases of rape,
molestation and other physical outrages - Veracity of - Held:
Generally, the testimony of a victim of rape or non-consensual
physical assault ought to be accepted as true and unble111ished -
However, it would still be subject to judicial scrutiny lest a casual,    F
routine acceptance thereof results in unwarranted conviction of the
person charged - Svidence Act, 1872 - ss.113A, 113B ands. l J.IA -
Criminal Trial.
      Hostile witness - Extent of acceptability - Discussed.
      Allowing the appeal, the Court                                      G

     HELD: 1.1 From the nature of the exchanges between the
Prosecutrix and the accused persons as narrated by her, the same
are not at all consistent with those of an unwilling, terrified and
anguished victim of forcible intercourse, if judged by the normal
                                                                          H
                               615
616            SUPREME COURT REPORTS                        (2016) 9 S.C.R.


A     human conduct. Her post incident conduct and movements were
      also noticeably unusual. Instead of hurrying back home in a
      distressed, humiliated and a devastated state, she stayed back in
      and around the place of occurrence, enquired about the same
      from persons whom she claimed to have met in the late hours of
      night, returned to the spot to identify the garage and even looked
B
      at the broken glass bangles, discarded litter etc. According to
      her, she wandered around the place and as disclosed by her in
      evidence, to collect information so as to teach the accused
      persons a lesson. Her avengeful attitude in the facts and
      circumstances, as disclosed by her, if true, demonstrably evinces
c     a conduct manifested by a feeling of frustration stoked by an
      intense feeling of deprivation of something expected, desired or
      promised. Her confident movements alone past midnight, in that
      state were also out of the ordinary. Her testimony that she met a
      cyclist to whom she narrated her tale of woe and that on his
      information, the police came to the spot and that thereafter she
 D
      was taken to successive police stations before lodging the
      complaint at Sampangiramanagara police station as well has to
      be accepted with a grain of salt. Her conduct during the alleged
      ordeal was also unlike a victim of forcible rape and betrays
      somewhat submissive and consensual disposition. [Para 19][628-
 E    E-H; 629-A-B)
            1.2 The medical opinion of PW8 that she was accustomed
      to sexual intercourse when admittedly she was living separately
      from her husband for 1 and Y, years before the incident happened
      also has its own implication. The medical evidence as such in the
 F    attendant facts and circumstances in a way belies allegation of
      gang rape. [Para 20][629-C-D)
             1.3 Evidence of PW2 Geeta who admittedly offered shelter
      to the prosecutrix and her minor daughter, though had been
      declared hostile, her testimony as a whole could not be brushed
G     aside. In her testimony, she indicated that the prosecutrix used
      to take financial help from the accused persons and that she used
      to indulge in dubious late night activities for which her husband
      deserted her. The defence plea of false implication as the accused
      persons had declined to oblige the prosecutrix qua her demand
      for financial help therefore cannot be lightly discarded in the overall
H
        RAJA AND OTHERS v. STATE OF KARNATAKA                           617


factual scenario. Her version therefore was a plausible one and          A
thus fit in with the defence plea to demolish the prosecution case.
The evidence of a hostile witness in all eventualities ought not
stand effaced aftogether and the same can be accepted to the
extent found dependable on a careful scrutiny. [Paras 21, 22)(629-
D-G)
                                                                         B
       Himanshu alias Chintu v. State (NCT of Delhi) (2011) 2
       SCC 36 : 2011 (1) SCR 48; Khujii v. State ofMP. (1991)
       3 SCC 627 : 1991 (3) SCR 1; Kofi Lakhman Bhai
       Chanabhai v. State of Gujarat (1999) 8 sec 624 -
       relied on.
                                                                         c
      2. The seizures said to have been effected by the
investigating agency also do not inspire confidence. The seized
articles per se in absence of any evidence of corroboration of
charge would not, irrefutably prove the involvement of the
appellants in the offence alleged. [Para 23)(630-A-B)
                                                                         D
     3. Though, generally the testimony of a victim of rape or
non-consensual physical assault ought to be accepted as true and
unblemished, it would still be subject to judicial scrutiny lest a
casual, routine and automatic acceptance thereof results in
unwarranted conviction of the person charged. [Para 24)(630-G)
                                                                         E
       Raju and Others v. State of Madhya Pradesh (2008) 15
       SCC 133 : 2008 (16) SCR1078 - explained.
      4. Vis-a-vis the scope of interference with a judgment of
acquittal, if two views are possible, the appellate court should
not ordinarily interfere therewith though its view may appear to
                                                                         F
be the more probable one. Only in exceptionable cases and under
compelling circumstances, where the judgement of acquittal is
found to be perverse i.e. if the findings have been arrived at by
ignoring or excluding relevant materials or by taking. into
consideration irrelevant/inadmissible material and are against the
weight of evidence or are so outrageously in defiance of logic so        G
as to suffer from the vice of irrationality, that interference by the
appellate court would be called for. (Para 25](630-H;. 631-A-C]
       Sunil Kumar Sambhudayal Gupta (Dr.) and Others. v.
       State of Maharashtra (2010) 13 SCC 657 : 2010 (15)
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618              SUPREME COURT REPORTS                   [2016] 9 S.C.R.



A           SCR 452; Shyamal Saha v. State of West Bengal (2014)
            12 SCC 321: 2014 (3) SCR 90 - explained.
            5. The prosecution case herein, when judged on the
      touchstone of totality of the facts and circumstances, does not
      generate the unqualified and unreserved satisfaction
B     indispensably required to enter a finding of guilt against the
      appellants. The view taken by the Trial Court is overwhelmingly
      possible· one. In contrast, the findings of the High Court are
      decipherably strained in favour of the prosecution by overlooking
      many irreconcilable inconsistencies, anomalies and omissions
      rendering the prosecution case unworthy of credit. Noticeably,
 c    the High Court exonerated the appellants of the charge of
      abduction under Section 366 IPC, which is an inseverable
      component of the string of offences alleged against them. The
      view adopted by the High Court is not a plausible one when
      juxtaposed to that of the Trial Court. The prosecution failed to
 D    prove the charge against the appellants to the hilt as obligated in
      law and thus, they are entitled to the benefit of doubt. [Para
      27lf 631-E-H; 632-A]
                            Case Law Reference
      2011 (1) SCR 48                relied on             Para 22
 E    1991 (3) SCR 1                 relied on              Para 22
      (199~) 8   sec 624             relied on             Para 22
      2008 (16) SCR 1078            explained               Para 24
      ~010 (15) SCR 452             explained               Para25
 F    2014 (3) SCR 90               explained               Para 26
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      I 767 of20 I I.
           From the Judgment and Order dated 14.09.2010 of the High Court
      ofKarnataka at Bangalore in Crl. A. No. 394 of2004.
 G
           Basava Prabhu S. Patil, Sr. Adv., Anirudh Sanganeria, Chinmay
      Deshpande,Amjid Maqbool, R. D. Upadhyay,Advs. fortheAppellants.
           Joseph Aristotle S., Mrs. Priya Aristotle, Rajesh Kumar Singh,
      Ms. An itha Shenoy, Advs. for the Respondent.

 H
        RAJA AND OTHERS v. STATE OF KARNATAKA                                619


      The Judgment of the Coutt was delivered by                              A
      AMITAVAROY,J. 1. Distressed by the reversal of their acquittal
from the charge under Sections 366/376(g)/392 read with Section 34
IPC, as recorded by the trial court, the appellants have impeached the
impugned judgement and order of their conviction rendered by the High
Court in the State appeal.                                                    B
      2. We have heard Mr. Basava Prabhu S. Patil, learned senior
counsel for the appellants and Mr. Joseph Aristotle S, learned counsel
for the respondent-State .
    . 3. The prosecution was set rolling by an oral report by the
prosecutrix with the Sampa,ngiramanagara Police Station between 2.00          c
A.M. and 3.00 A.M. of 11.10.1997, which was in Tamil language and
was translated and recorded by S. Shiva Lingaia, ASI, whereafter a
case was registered under Sections 366, 376(g), 392 r/w 34 IPC.
      4. The prosecutrix revealed that she was a resident of No.81,
Jasari Kaleeli, Rustumji Compound, Richmond Road, Bangalore and               D
was earning her livelihood by rendering services as a maid in the house
of Shilpa Shetty at Shanti Nagar, Bangalore. According to her, because
of the ilHreatment of her husband, she shifted to Bangalore about 8
months prior to the incident by separating from him.
      She alleged that at about 7.30 P.M. in the previpus evening, while      E
she was coming back from work and was at the Richmond Park, an
auto rickshaw ,with two persons in it including the driver stopped by
her side and she was pulled inside. According to her, after travelling
some distance, two other persons also got into the auto rickshaw. The
miscreants then blindfolded her, by her chudidar cloth and took her to an     F'
auto garage where there was no light. The prosecutrix stated that the
abductors lit a candle, spread 2 seats of the auto rickshaw on the ground,
laid her forcibly thereon and in spite of her resistance and objections,
forcibly undressed her and raped her by turn. She disclosed that 3 of
the four persons ravished her. Out of them, two committed the act twice
and the third only once.                                                      G
    The prosecutrixfurther stated that one of the persons brought dosa
and idli and also offered the same to her, whereafter they tried to
repeat the same act, to which she protested for which she was kicked
and fisted and further they snatched her Tali (mangalsootre) gold
                                                                              H
620            SUPREME COURT REPORTS                           [2016] 9 S.C.R.



A     ear-studs. They then made her to wear her clothes, brought her in the
      auto rickshaw to a vacant place and discarded her. According to her,
      these violators were addressing each other as Raju, Venu, Parkash and
      Francis and claimed that she could identify them, if produced.
      Investigation followed and in the course thereof, the appellants were
      apprehended. The fourth person Francis could not be nabbed as he
 B
      absconded. As a matter of fact, after the submission of the charge-
      sheet against the appellants, the trial was conducted by segregating the
      absconding accused. They denied the charge under the above provisions
      of law.
             5. At the trial, the prosecution examined 11 witnesses and also
c     marked several documents and exhibited material objects seized during
      the investigation. The appellants rendered their statements under Section
      313 Cr.P.C. reiterating their innocence and also examined one witness
      in defence. The trial court, to reiterate, acquitted the appellants of the
      charges levelled against them. The High Court by the impugned decision
 D    has reversed the acquittal and the appellants thus stand convicted under
      Sections 376(g) and 392 IPC r/w 34 IPC and have been sentenced to
      suffer rigorous imprisonment for 10 years.
             6. The instant adjudication being one to examine the tenability of
      the conviction of the appellants on the reversal of their acquittal, an
 E    independent assessment of the evidence on record is indispensable in
      the interest ofjustice, two courts of facts having arrived at irreconcilable
      conclusions on the same materials on records. It would thus be expedient,
      to analyse the evidence, oral and documentary before adverting to the
      rival arguments based thereon.

 F          7. PW I, the prosecutrix on oath stated that she has afemale child
      through her husband who lived separately with another lady and she and
      her daughter lived in the compound of PW2 Geeta. She deposed that
      she had been working in the house of Shilpa Shetty for the last three
      years and that even prior to the incident, the appellants used to tease her
      and pass remarks on the way. She stated that in the evening of the date
 G    of the incident along with the appellants, another person had boarded
      the auto and that the two persons sitting on her sides were app~llants
      Venu Gopal and Parkash. She testified that she also did peep out of the
      auto thinking that someone would save her, for which the person with
      the beard in the auto slapped her and therefore she felt frightened and
      sat behind. She stated that the abductors then blindfolded her with her
 H
        RAJA AND OTHERS v. STATE OF KARNATAKA                                 621
                   (AMITAVA ROY, J.]

own dupatta, molested her inside the auto and ultimately took her to an        A
auto garage and in spite of her objections, raped her one by one.
According to her, she was raped by Venu Gopal, Parash and the bearded
person in that order.
      In her deposition, however she stated that appellant Raja also
assaulted her and had forcible intercourse with her. She reiterated that       B
the violators then brought dosa and idlis and also offered some to her
which she on being assaulted, did eat. In a depaiture from her FIR, the
prosecutrix deposed that thereafter all the four performed one more
round of intercourse by turn. Thereafter according to her, the bearded
person snatched her Tali (mangalsootre) and the other, her ear studs.
They did assault her by kicks and thereafter by making her wear her            c
clothes, took her in the same auto and left her near a bridge. She
complained of having sustained injuries on her thighs.
       She stated that thereafter she took water from a person near the
garage road and ascertained from him the area where she was situated.
According to her, from the location of the place, she could understand         D
the site of the garage and on reaching there, she saw broken pieces of
her glass bangles and also the litter and left overs of the food taken in
the garage and could convincingly identify the place. She deposed further
that at that time, a man came in a bicycle to whom she narrated the
entire incident, who asked her to wait and went to the Hoysala Police          E
Station to report, whereafter the police did come, inspect the place as
shown by her and took her to the Sampangiramanagara P.S. past midnight
where she made her verbal complaint which was reduced into writing
and she put her thumb impression thereon.
       The prosecutrix proved the complaint/FIR as Ex.PI. According             F
to her, in the next morning at 6 A.M., the appellants were brought to the
police station. She admitted to have been taken to the Vanivilas Hospital
where she was medically examined. She also identified the ear studs,
material Ex. I and also her inner-wear material Ex. 2 and broken pieces
of glass bangles material Ex 3. She also stated to have identified the
appellants in the test identification parade conducted in the central jail.    G
She also identified the seats of the auto rickshaw as material Ex P4 and
PS.
     In her cross-examination, the prosecutrix admitted that she was
not married and that she had come to Bangalore with Saravana whom
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622            SUPREME COURT REPORTS                           [2016] 9 S.C.R.



A     she had referred to in her examination-in-chief, as her husband. She
      stated that she lived with Saravana for three years in Bangalore and that
      they used to earn their living as labourers. She stated that Saravana
      deserted her, following frequent quarrels with her, whereafter PW2 Geeta
      gave her and her daughter, shelter. She testified that she used to earn
      Rs. 700 p.m. by working in the house of Shilpa Shetty and that there
 8
      was none in the family or in her village to support her financially. She
      admitted that from one week prior to the incident, the appellants used to
      tease her and that from then she knew them. She admitted that the road
      from which she was abducted was a public thorough fare but asserted
      that she could not scream as she was gagged. She admittedthat though
 c    the auto travelled for I 0 minutes thereafter, she did not try to get down
      as she was scared of her abductors. She further disclosed that the
      appellants used to speak to her from 2/3 days prior to the incident.
            According to her, while she was near Fatima Bakery, which was
      opposite to Johnson market, she was taken inside the auto. She admitted
 D    to have known the accused Francis then. She claimed to have identified
      two persons in the auto rickshaw when she was first picked up from
      the road as appellants Parkash and Francis. She admitted that none of
      the abductors did speak to her while in the auto rickshaw. She also
      conceded that she did not scream for help from the passers-by on the
      road. She was confronted with her disclosure in the FIR that only three
 E    persons had committed rape on her though four had been named therein.
      She admitted that at the time when she was offered two idlis and a glass
      of water, she did not cry for help and instead had made up her mind to
      teach the miscreants a lesson by informing the pol ice. She also stated,
      by departing from the FIR that for the second time, three persons
 F    committed sexual intercourse with her. According to her, the ear studs
      had been given to her by her husband who got them- made at
      Kaveripattinam in Tamil Nadu. She claimed that her FIR was written
      by one Anthony in the police station whom she came to know at that
      point of time.
 G           In her cross-examination, she further deviated by stating that apart
      from the 4th person referred to by her, there was yet another person of
      short stature and that she had forgotten to refer to him in her FIR. She
      admitted that her mouth was never shut but her abductors did threaten
      and scold her. She admitted that after she was abandoned by the
      miscreants, she did alone return to the garage where the act was
 II
        RAJA AND OTHERS v. STATE OF KARNATAKA                                  623
                   [AMITAVA ROY, J.]

committed. She also stated to have narrated her incident to five                A
more persons at different places before the police had intervened, who
according to her, were watchmen. She stated that she wanted to see
the place before informing the police and, therefore she went in search
thereof. She deposed that she saw the jeep of the Hoysala police
and called for help whereafter she was taken in the jeep. She took the
                                                                                B
jeep near the garage and from there, she was taken to two more police
stations before lodging the FIR at Sampangiramanagara Police Station.
       She contradicted herself by stating that the complaint was not
written by Anthony. She also stated that her report was typed, read out
to her whereupon she put her left thumb impression. When Ex. PI, FIR
                                                                                C.
was shown to her, she admitted that it was not typed. She admitted as
well that while narrating the incident and lodging the complaint, she
did not disclose the names of the accused persons. She conceded as
well that when she was taken to the hospital, there were no wounds.
       She admitted as well that PW 2 Geeta had advised her to take
money and return to her native village and not to file a case as otherwise      D
she would disclose that she was a prostitute. She denied the suggestion
that she had requested for financial help from the appellants and when
they expressed their inability, she lodged a false case against them to
wreak vengeance. She also denied the suggestion that the material
exhibits, more particularity ear studs and tali (mangalsootre) were not         E
hers and that the police had procured the same from elsewhere, to frame
the accused persons. In the context of her identification of the appellants
in the TIP, she admitted in her cross-examination that even prior to the
incident, she had seen the accused persons and that not only they used
to talk to her, she knew them as well.
                                                                                 F
      8. PW2 Geeta, on oath stated that she also did earn her living as a
labourer.. She admitted that she knew the prosecutrix who was deserted
by her husband and that she had accommodated her and her daughter
and had provided shelter to them about 7 years prior to the incident. She
stated that about four years back (coinciding approximately with the
date of the incident), the prosecutrix had disclosed to her that on her         G
way back home, she had been teased, on which she advised her to be
careful. The witness stated that in the evening of the date of the incident,
the prosecutirx did not return home and that at about mid-night, the police
brought her back. She stated that she saw marks of assault on the body
of prosecutrix and on being enquired, she stated that "they did not pay         H
624            SUPREME COURT REPORTS                           [2016] 9.S.C.R.



A     me any money but have snatched my ear studs. They have extracted
      all the work needed". The witness volunteered to explain "work" meant
      prostitution.
             At this stage, the witness was declared hostile and was
      cross-examined. Jn her cross-examination, she admitted that when the
B     prosecutrix returned that night, she had suffered wounds and was
      limping. She denied to have stated before the police that the appellants
      had snatched her gold ornaments and had committed rape on her. She
      also denied to have identified the ear studs, as those of the prosecutrix
      and instead asserted that the same were not hers. She denied the
      suggestion that her retraction from the statement made before the
c     police was with a view to help the accused persons. She volunteered to
      state that the reason for her husband to desert the prosecutrix was her
      activities of prostitution which had come to his knowledge.
            The witness further disclosed in her cross-examination by the
      defence that about a fortnight before the incident, the prosecutrix along
 D    with. her had approached the accused persons for an amount of Rs.
      10000 which she intended to invest for living in a separate house, which
      was however declined. PW2 testified that this was not to the liking of
      the prosecutrix, who was enraged by such refusal and left the place by
      intimidating them of adverse consequences. The witness on oath stated
 E    further that the prosecutrix after returning home in the evenings and after
      completing the house hold work, used to go around in the night indulging
      in prostitution and when asked as to why she had lodged the complaint
      against the accused persons, she disclosed that this would compel them
      to part with the money that she wanted.

 F          9. PW3 Dr. B.R.S. Kashyap had examined the appellants and
      opined that there was nothing to suggest that they were incapable of
      performing sexual intercourse. He also was of the view that the injury
      on the body of the appellant Raju could have been sustained also in the
      course of attending his auto rickshaw or could be self- inflicted as well.

 G           10. PW4 Muthu produced as a seizure witness of the ear studs
      denied that same had been seized in his presence and instead testified
      that on the insistence of the police he put his signature on a paper. This
      witness was declared hostile but did not budge from his statement in his
      examination-in-chief.
            11. PW5 M.K. Srirangaiah was the Tehsildar, Bangalore North
 H
        RAJA AND OTHERS v. STATE OF KARNATAKA                                 625
                   [AMITAVA ROY, J.]

Taluk at the relevant time and he proved the conduct of TIP, in which          A
the prosecutrix identified the appellants.
       12. PW8 K.M. Nandagopal was the Assistant Professor, OBG,
Vanivilas Hospital on 11. I 0.1997 where at about 9 a.m. on that day, the
prosecutrix was m~dically examined. He deposed that the prosecutrix
was found to have sustained red colour injury on her left thigh. While         B
stating that the vaginal swab of the prosecutrix was sealed and sent to
the Forensic Science Laboratory, he was of the clear opinion that she
was accustomed to the act of sexual intercourse. In his cross-
examination, the doctor admitted that the prosecutrix did not reveal any
evidence or sign of having sexual intercourse at the time of her
examination. Vis-a-vis the injuries on her thigh, the witness stated that      c
this could happen due to reasons other than sexual intercourse.
       13. PWI 1 B.S. Mudumadeviah, the Investigating Officer affirmed
that the FIR was lodged by the prosecutrix at 2 a.m. on 11. I 0.1997 at
the police station. He deposed that after the medical examination of the
prosecutrix, he accompanied her to the place of occurrence and seized          D
therefrom a red colour drawer, one box ofNirodh (contraceptive), two
auto rickshaw seats, two broken pieces of black bangles and three black
bangles found strewn around. He identified the s.eized articles in court.
He referred to the disclosure statement of the appellant Parkash leading
to the discovery of the ear studs of the prosecutrix from his house which      E
he identified in the court as well. He also claimed to have seized the auto
rickshaw identified by the same appellant used for abducting the
prosecutrix. According to him, he had written down the complaint of
the prosecutrix made verbally
       He conceded that the prosecutrix did not state that at that point of F
time, that she had been abducted by five persons and raped by four. She
also did not disclose that there was another short person who had raped
her as well. The witness admitted that she did not disclose that she was
abducted while near the Fatima Bakery but referred to the spot as ·
Richmond Park. He denied the suggestion that the prosecutrix at the
time oflodging of the complaint did not name the miscreants. He denied      G
the suggestion as well that the ear studs were bought from Man Pasand
Jewellers, Shanti Nagar by taking Rakesh, a friend of accused No. 3- .
Parkash for the purpose. He denied the suggestion with regard to seizures
from the spot and also the identification by the prosecutrix at the test
identification parade.                                                      H
626            SUPREME COURT REPORTS                           [2016] 9 S.C.R.



A            14. The defence witness Rakesh deposed on oath that after the
      incident, while one day he was in the house of Parkash, the pol ice visited
      the place and threatened the grand-fatherofthe appellant Parkash alleging
      that he (Parkash) had snatched a pair of ear studs from the prosecutrix,
      to which his grand-father objected. The witness stated that then the
      police took him and the grand-father of the appellant Parkash to Man
 B    Pasand Jewellers, a local jewellery shop, where the police threatened
      the old man to pay the amount to purchase a pair of ear studs for Rs.
      4000. The witness identified the ear studs through the emblem "M.P."
      thereon. He denied that the material Ex. I, the ear studs belonged to the
      prosecutrix and that the same had been seized from the appellant Parkash.
 c        15. Mr. Basava Prabhu S. Patil, learned senior counsel for the
   appellants has insistently argued that it being patent on a combined reading
   of the FIR and the testimony of the prosecutrix at the trial, that she is
   wholly untrustworthy and thatthe appellants have been falsely implicated,
   the impugned judge111..:nt and order is liable to be set aside lest it
 D perpetuates gross injustice. The learned senior counsel has urged that
   not only the prosecutrix's version of the incident as a whole is inherently
   improbable, she has been wholly discredited as well by the medical
   evidence belying the accusation of forcible sexual intercourse by the
   appellants in succession. Castigating the investigating agency for falsely
   foisting the articles claimed to have been seized on the appellants in its
 E desperate attempt to establish their culpability, Mr. Patil has maintained
   that as th.e prosecutrix admittedly knew the appellants from before, their
   so called identification by her at the TIP is also of no consequence. The
   learned senior counsel asserted that PW2 Geeta, though having been
   declared hostile, her evidence at the trial otherwise consistent with the
 F attendant facts and circumstances bearing on the conduct and activities
   of the prosecutrix ought not to have been discarded and this having
   vitiated the impugned decision as well, the conviction and sentence
   recorded against the appellants is liable to be interfered with. As the
   prosecution has failed to convincingly prove the charge levelled against
   the appellants, they are entitled to be acquitted, he urged. To buttress
 G these pleas, reliance has been placed on the decisions of this Court in
   Simi/ K11mar Samb/111dayal G11pta (Dr.) and otlters. Vs. State of
   Maltaraslttra (2010) 13 SCC 657, Sltyanutl Salta Vs. State of West
   Bengal (2014) 12 SCC 321. llinumslt11 alias Clti11t11 Vs. State (NCT
   of Delhi) (2011) 2 SCC 36 and Raj11 mu/ Otlters Vs. State of Madltya
 H Pradesh (2008) 15 SCC 133.
        RAJA AND OTHERS v. STATE OF KARNATAKA                                    627
                   [AMITAVA ROY, J.]

       16. As against this, the learned state counsel wholly endorsed the         A
impugned decision contending that not only the testimony of the
prosecutrix is true, cogent and convincing, having regard to the charge
levelled by her, the same is deserving offull credence to base the conviction
of the appellants thereon. According to the learned counsel, the minor
inconsistencies in the FIR and the deposition of the prosecutrix, on a
                                                                                  B
consideration of the totality of the circumstances, are acceptably
reconcilable. As the identity of the appellants, as the perpetrators of the
crime, is not in doubt, they having been identified by the.prosecutrix in no
uncertain terms, the prosecution case ought not to be jettisoned by relying
on the evidence of PW2, a hostile witness, he urged. While contending
that the medical evidence is not mutilative of the charge and that the            c
seizures made in course of the investigation do undeniably establish the
complicity of the appellants, their conviction is legally valid and does not
merit any interference in the instant appeal, he maintained.
       17. We have lent our anxious consideration to the materials on
record as well as the competing arguments based thereon. Having regard            D
to the charge levelled, the fulcrum of the prosecution case logically is
the testimony of the prosecutrix. Undeniably therefore the credibility
and trustworthiness of the victim's version is the decisive factor to adjudge
the culpability of the appellants.
       18. Filtering the unnecessary factual details, suffice it is to recount    E
that the incident allegedly had occurred at 7.30 p.m. on a public road
while the prosecutrix was returning home after the day's work. Her
version is that while she was on the way, an auto rickshaw with two
persons therein pulled up by her side and she was dragged in forcibly.
After moving for about I 0 minutes, the abductors were joined by two
more persons, whereafter she was taken to a garage and was molested                F
against her will forcibly.
      19. To start with, the prosecutrix has contradicted herself qua the
place of alleged kidnapping. In the complaint, she mentioned the spot to
be near Richmond park, whereas in her evidence she referred to the
same as opposite Johnson market. It is more or less authenticated by              G
the evidence on record that after her abduction and on the way to the
garage as narrated by her, she did not scream or cry for help. This is of
utmost significance as it is not alleged by her that the abductors had put
her under fear on the point of any weapon threatening physical injury
thereby. This is more so, as admittedly the prosecutrix at the relevant
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628             SUPREME COURT REPORTS                            [2016] 9 S.C.R.


A time was a major and could very well foresee the disastrous consequences
      tof.ollow. She has admitted in her deposition as well that while she was
      ravished inside the garage and even during the intermittent breaks, she
      did not shout for any help. Her version in the complaint with regard to
      the offending act and the number of persons, who had· committed the
      same, is inconsistent with her testimony on oath at the trial. Notably in
B
      the complaint she mentioned about four persons of whom three raped
      and out of them, two committed the act twice. She did not disclose in
      her complaint that the accused persons were known: to her from before
      and disclosed that they during the time had been referring to themselves
      as Raju, Venu, Parkash and Francis. This, however has been denied by
c     the investigation officer. On oath, she however introduced a fifth person
      as well. She accused all the four persons to have committed sexual
      intercourse with her for the second time. Though grudgingly, as admitted
      by her, she also consumed the food as offered to her by her molesters.
             In cross-examination, she admitted that she was not married to
D     Sarv11na though she claimed him to be her husband in her examination-
      in-chief. She disclosed more than once that the accused persons used
      to tease her for about 5-6 months prior to the incident and that she used
      to talk to them as well. In view of this admission of hers, the identification
      by the prosecutrix of the accused persons in the TIP pales into
      insignificance. She contradicted herself in the cross-examination by
 E    stating that three of the four did rape her for the second time. She was
      also inconsistent with regard to the writer of her complaint.
            Her conduct during the alleged ordeal is also unlike a victim of
      forcible rape and betrays somewhat submissive and consensual
      disposition. From the nature of the exchanges between her and the
 F    accused persons as narrated by her, the same are not at all consistent
      with those of an unwilling, terrified and anguished victim of forcible
      intercourse, if judged by the normal human conduct.
             Her post incident conduct and movements are also noticeably
      unusual. Instead of hurrying back home in a distressed, humiliated and
G     a devastated state, she stayed back in and around the place of occurrence,
      enquired about the same from persons whom she claims to have met in
      the late hours of night, returned to the spot to identify the garage and
      even look at the broken glass bangles, discarded litter etc. According to
      her, she wandered around the place and as disclosed by her in her
 H    evidence, to collect information so as to teach the accused persons a
        RAJA AND OTHERS v. STATE OF KARNATAKA                                   629
                   [AMITAVA ROY, J.]

lesson. Her avengeful attitude in the facts and circumstances, as disclosed      A
by her, if true, demonstrably evinces a conduct manifested by a feeling
of frustration stoked by an intense feeling of deprivation of something
expected, desired or promised. Her confident movements alone past
midnight, in that state are also out of the ordinary. Her testimony that
she met a cyclist to whom she narrated her tale of woe and that on his
                                                                                 B
information, the Hoysala police came to the spot and that thereafter she
was taken to successive police stations before lodging the complaint at
Sampangiramanagara police station as well has to be accepted with
a grain of salt.
       20. PW8, who medically examined her, opined in clear terms that
she was accustomed to sexual intercourse and that no sign of forcible            c
intercourse was discernible. This assumes great significance in view of
the allegation of forcible rape by 3 to 4 adult persons more than once.
The medical opinion that she was accustomed to sexual inter course
when admittedly she was living separately from her husband for 1 and
Yi years before the incident also has its own implication. The medical           D
evidence as such in the attendant facts and circumstances in a way
belies the allegation of gang rape.
       21. The evidence of PW2 Geeta who admittedly had offered shelter
to the prosecutrix and her minor daughter, though had been declared
hostile, her testimony as a whole cannot be brushed aside. In her                E
testimony, this witness indicated that the prosecutrix used to take financial
help from the accused persons and that she used to indulge in dubious
late night activities for which her husband had deserted her. The defence
plea of false implication as the accused persons had declined to oblige
the prosecutrix qua her demand for financial help therefore cannot be
lightly discarded in the overall factual scenario. Her version therefore is      F
a plausible one and thus fit in with the defence plea to demolish the
prosecution case.
      22. That the evidence ofa hostile witness in all eventualities ought
not stand effaced altogether and that the same can be accepted to the
extent found dependable on a carefiil scrutiny. was reiterated by this           G
Court in Hinumsllu ® C/1intu (supra) by drawing sustenance of the
proposition amongst others from Khuiii vs. State ofMP. ( 1991) 3 SCC
627 and Kofi Lakhman Bhai Chanabhai vs. State of Gujarat ( 1999)
8 sec 624. It was enounced that the evidence of a hostile witness
remains admissible and is open for a Court to rely on the dependable
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630             SUPREME COURT REPORTS                           (2016] 9 S.C.R.



A     part thereof as found acceptable and duly corroborated by other reliable
      evidence available on record.
             23. The seizures said to have been effected by the investigating
      agency also do not inspire confidence. Not only PW 4 Muthu denied
      that the seizure of ear studs had been made in his presence, DWI on
B     oath had stated that this item ofjewellery had in fact been purchased by
      the police from a local shop which he could identify on the basis of the
      symbol 'MP' inscribed thereon. In any view of the matter, the seized
      articles per se in absence of any evidence of corroboration of charge
      would not, irrefutably prove the involvement of the appellants in the
      offence all~ed.
c
             24. This Court in Raju (supra), while reiterating that the evidence
      of the prosecutrix in cases of rape, molestation and other physical outrages
      is to be construed to be that of an injured witness so much so that no
      corroboration is necessary, ruled that an accused must also be protected
      against the possibility of false implication. It was underlined that the
 D    testimony of the victim in such cases, though commands great weight
      but the same, cannot necessarily be universally and mechanically
      accepted to be free in all circumstances from embellishment and
      exaggeration. It was ruled that the presumption of absence of consent
      of the victim, where sexual intercourse by the accused is proved as
 E    contemplated in Section l 14A of the Evidence Act, was extremely
      restricted in its application compared to the sweep and ambit of the
      presumption under Sections I 13Aand l 13B of the Indian Evidence Act.
      It was exposited that insofar as the allegation of rape is concerned, the
      evidence of the prosecutrix must be examined as that of a injured witness
      whose presence at the spot is probable but it can never be presumed
 F    that her statement should always without exception, be taken as gospel
      truth.
            The essence of this verdict which has stood the test of time
      proclaims that though generally the testimony of a victim ofrape or non-
      consensual physical assault ought to be accepted as true and unblemished,
 G    it would still be subject to judicial scrutiny lest a casual, routine and
      automatic acceptance thereof results in unwarranted conviction of the
      person charged.
            25. Vis-a-vis the scope of interference with a judgment ofacquittal,
      this Court in Sunil Kumar Slutbukunwr Gupta (Dr.) (supra) echoed
 H
        RAJA AND OTHERS v. STATE OF KARNATAKA                                   631
                   [AMITAVA ROY, J.]

the hallowed proposition that if two views are possible, the appellate           A
court should not ordinarily interfere therewith though its view may appear
to be the more probable one. While emphasizing that the trial court has
the benefit of watching the demeanour of the witnesses and is thus the
best judge of their credibility, it was held that every accused is presumed
to be innocent unless his guilt is proved and that his presumption of
                                                                                 8
innocence gets reinforced with his acquittal by the trial court's verdict.
It was reiterated that only in exceptionable cases and under compelling
circumstances, where the judgement of acquittal is found to be perverse
i.e. ifthe findings have been arrived at by ignoring or excluding relevant
materials or by taking into consideration irrelevant/inadmissible material
and are against the weight of evidence or are so outrageously in defiance        c
oflogic so as to suffer from the vice ofirrationality, that interference' by
the appellate court would be called for.
       26. That the appellate court is under an obligation to consider and
identify the error in the decision of the trial court and then to decide
whether the error is gross enough to warrant interference was underlined         D
by this Court in S/1yanwl Salm (supra). It was emphasized that the
appellate court is not expected to merely substitute its opinion for that
of the trial court and that it has to exercise its discretion very cautiously
to correct an error oflaw or fact, ifany and significant enough to warrant
reversal of the verdict of the trial cou11.
                                                                                 E
       27. The prosecution case, when judged on the touchstone of
totality of the facts and circumstances, does not generate the unqualified
and unreserved satisfaction indispensably required to enter a finding of
guilt against the appellants. Having regard to the evidence on record as
a whole, it is not possible for this Court to unhesitatingly hold that the
charge levelled against the appellants has been proved beyond reasonable          F
doubt. In our estimate, the view taken by the Trial Court is the
overwhelmingly possible one. In contrast, the findings of the High Court
are decipherably strained in favour of the prosecution by overlooking
many irreconcilable inconsistencies, anomalies and omissions rendering
the prosecution case unworthy of credit. Noticeably, the High Court              G
has exonerated the appellants of the charge of abduction under Section
366 IPC, which is an inseverable component of the string of offences
alleged against them. Judged by the known parameters of law, the view
adopted by the High Court is not a plausible one when juxtaposed to that
of the Trial Court. We are of the unhesitant opinion that the prosecution
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632             SUPREME COURT REPORTS                            [2016] 9 S.C.R.



A     has failed to prove the charge against the appellants to the hilt as obligated
      in law and thus, they are entitled to the benefit of doubt. The appeal thus
      succeeds and is allowed. The impugned judgement and order is set-
      aside. The appellants are on bail. Their bail bonds are discharged.
      Divya Pandey                                                    Appeal allowed.