STATE OF U.P.versusMUNESH

                     [2012] 9 S.C.R. 545


                       STATE OF U.P.                              A
                              v.
                         MUNESH
             (Criminal Appeal No. 180 of 2007)

                    OCTOBER 12, 2012
                                                                  B
      [P. SATHASIVAM AND RANJAN GOGOi, JJ.)

      Penal Code, 1860 - ss. 302 and 376 - Rape and murder
of minor girl - Conviction of respondent-accused by trial court
- Set aside by High Court - Justification - Held: Not justified   C
- Two independent witnesses - PWs 2 and 3 actually
witnessed the occurrence - High Court committed error in
rejecting their evidence - Statement of PW1- the father of the
victim corroborated with the statements made by PW2 and
PW3 - Delay in lodging FIR was properly explained by PW1          o
- Statement of PW4(doctor), who conducted post-. :1ortem,
fully supported the case of the prosecution that the deceased
was raped before strangulation - ProsecuJion story fully
corroborated with the medical evidence on record - Act of
respondent repels moral conscience as he chose a 11 year          E
girl to satisfy his lust and subsequently murdered her -
Conviction restored - RI for life imposed.

     Evidence - Witness - Statement before Investigating
Officer and before the Court - Contradictions - Appreciation
- Rape and murder of minor girl - Conviction of respondent-       F
accused - Set aside by High Court on the ground that there
were some contradictions between the statements made by
PWs 2 and 3 before the Investigating Officer u/s.161 CrPC
and that made by them before the court - Held: PWs 2 and
3 were independent eye-witnesses who actually witnessed the       G
occurrence - High Court committed error in rejecting their
evidence - The contradictions were minor and did not affect
the prosecution case - The statement before the Investigating

                             545                                  H
    546    SUPREME COURT REPORTS                 [2012] 9 S.C.R.

A Officer and that before the Court were made at different
    intervals of time and there was bound to be some variance
    in the statements - Penal Code, 1860 - ss.302 and 376.

       FIR - Delay in lodging of FIR - Whether reasonable and
  explained - Rape and murder of minor girl - Victim found
8
  lying dead in a naked condition - Incident occurred at 4.30
  p.m. - Complaint made at 11.05 p.m. on the same day -
  Distance of 2 Kms. between the place of incident and the
  police station - Held: PW-1, father of the victim is a villager
C and on hearing the incident through PWs 2 and 3, he rushed
  to the spot, made arrangements to cover the body of his
  daughter, searched for some time to trace the accused, and
  thereafter, reached the Police Station - Considering the entire
  incident as a whole, it cannot be said that there was any
  unreasonable and unexplained delay which went to the root
D of the prosecution case - The delay was properly explained
  by PW-1, even otherwise, the same could not be construed
  as abnormal as erroneously observed by the High Court -
  Code of Criminal Procedure, 1973 - s.161.

E        FIR - Nature of - Held: FIR is not an,encyclopedia - It
    is just an intimation of the occurrence of an incident and it
    need not contain all the facts related to the incident in
    question.

      Crimes against Women - Devastating increase in rape
F cases and cases relating to crime against women - Primary
  concern both at national and international level - Although
  the statutory provisions provide strict penal action against
  such offenders, it is for the Courts to ultimately decide whether
  such incident has occurred or not - The Courts should be
G more cautious in appreciating the evidence and the accused
  should not be left scot-free merely on flimsy grounds.

      According to the prosecution, the 11 year old
  daughter of PW-1 was raped and murdered by the
H respondent when she had gone alone from her house to
             STATE OF U.P. v. MUNESH                    547

prepare cow-dung cakes. It was alleged that PW-2 and          A
PW-3, who were passing through their fields at a short
distance, saw the respondent strangulating the victim
with a chunni ('dupatta') and on seeing them, the
respondent ran away. The victim was subsequently
found lying dead in a naked condition. PW-2 and 3             8
informed PW-1 about the said incident whereafter PW-1
lodged FIR. The trial court convicted the respondent
under Sections 302 and 376 IPC and sentenced him to
death. In appeal, the High Court disbelieved the
statements of PW-2 and PW-3 on the ground that there          C
were some contradictions between the statements made
under Section 161 CrPC and in their evidence before the
court and further holding that there was delay in lodging
of the FIR, it acquitted the respondent. Hence the present
appeal by the State.
                                                              D
    Allowing the appeal, the Court

     HELD: 1.1. Both PWs 2 and 3 were not related to the
deceased. On the other hand, they were independent eye-
witnesses who actually witnessed the occurrence and           E
their evidence was reliable. The High Court committed an
error in rejecting their evidence. The statement before the
1.0. and the statement before the Court were made after
some interval and there was bound to be some variance
in the statements. Nevertheless, the contradictions were
                                                              F
not much and did not affect the prosecution story.
Further, in the absence of any previous enmity with the
accused, the question of falsely implicating the accused
did not arise. [Paras 7, 10 and 14) [553-F-G; 555-F-G; 557-
D-F]
                                                              G
    1.2. It is true that PW-1 is not an eye-witness but his
statement corroborates with the statements made by
PW-2 and PW-3. There is no reason to disbelieve the
version of PW-1 and the trial court rightly relied on him
                                                              H
    548     SUPREME COURT REPORTS               [2012] 9 S.C.R.


A along with the statements of eye-witnesses PWs 2 and
  3. The High Court rejected his evidence also on flimsy
  grounds. [Para 11) [555-H; 556-E]

         2.1. It is not in dispute that the incident occurred at
    4.30 p.m. on 05.03.2002 and the complaint was made by
8   PW-1 at 11.05 p.m. on the same day itself. It has also come
    in evidence that the distance between the place of
    incident and the police station is 2 kms. Though the High
    Court commented that there was delay in lodging the
    complaint, it must be noted that PW-1 - father of the victim
C   is a villager and on hearing the incident through PWs 2
    and 3, he rushed to the spot, made arrangements to cover
    the body of his daughter, searched for some time to trace
    the accused, and thereafter, reached the P.S. which is at
    a distance of 2 kms. at 11.05 p.m. If one considers the
D   entire incident as narrated by PW-1, it cannot be
    construed that there was any unreasonable and
    unexplained delay which went to the root of the
    prosecution case. On the other hand, considering the
    materials placed, it is clear that the delay was properly
E   explained by PW-1, even otherwise, the same cannot be
    construed as abnormal as erroneously observed by the
    High Court. [Para 12) [556-F-H; 557-A-B]

       2.2. Though it is stated that all the details as spoken
F to by PWs 1, 2 and 3 were not mentioned in the FIR, as
  rightly observed by the trial Court, FIR is not an
  encyclopedia. It is just an intimation of the occurrence of
  an incident and it need not contain afl the facts related
  to the said incident. [Para 13) [557-C]

G       3. PW-4 conducted the post mortem on the body of
    the deceased. In his opinion, the cause of the death of
    the deceased was due to asphyxia due to strangulation
    and also due to pre-mordial injuries. For a specific
    question, PW-4 stated that "prior to her death, the
H
              STATE OF U.P. v. MUNESH                   549

deceased was raped and due to that reason only, her            A
hymen has been found to be ruptured". The above
conclusion of PW-4 fully supports the case of the
prosecution that the deceased was raped before
strangulation. He also stated that blood was seen in the
vagina of the deceased and her hymen was found to              B
have been ruptured. Notwithstanding the absence of
Sperm Detection Test report, the case of the prosecution
cannot be doubted about rape, particularly, in the light of
categorical findings of the doctor that her hymen was
found to have been ruptured. The other prosecution             c
witnesses have also stated injury on her private part and
oozing of blood. The medical evidence proved that the
victim was raped before her death. The prosecution story
is fully corroborated with the medical evidence on record
and, the High Court failed to give importance to the said      0
evidence. [Paras 15, 16] [558-F-G-H; 559-A-C]

    4. It is true that the prosecution has not collected the
chunni (dupatta) allegedly used for pressing the neck of
the victim, but, in the light of the material objects, the
evidence of prosecution witnesses, statement of the            E
doctor who conducted the post mortem, his opinion etc.
amply prove the prosecution case. [Para 18] [559-E-F]

     5. The primary concern both at national and
international level is about the devastating increase in       F
rape cases and cases relating to crime against women
in the world. India is no exception to it. Although the
statutory provisions provide strict penal action against
such offenders, it is for the Courts to ultimately decide
whether such incident has occurred or not. The Courts          G
should be more cautious in appreciating the evidence
and the accused should not be left scot-free merely on
flimsy grounds. In the instant case, the accused had
committed rape, which repels against moral conscience
as he chose a girl of 11 years to satisfy his lust and
                                                               H
    550     SUPREME COURT REPORTS               [2012] 9 S.C.R.

A subsequently murdered her. [Para 19] (559-G-H; 560-A-B]

       6. In the light of the acceptable materials in the form
  of oral and documentary evidence led in by the
  prosecution, particularly, the eye-witnesses PWs 2 and
8 3 who are independent witnesses coupled with the
  evidence of the doctor (PW-4), this Court accepts the
  conclusion of the trial court and disagrees with the
  conclusion of the High Court. It is held that the accused-
  respondent first committed the offence of rape and then
  murdered the deceased. The prosecution has
C established both the charges under Sections 376 and 302
  of IPC. Taking note of the fact that the incident occurred
  in the year 2002, rigorous imprisonment for life would
  meet the ends of justice. [Paras 20, 21 and 22] [560-8-E]

D       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 180 of 2007.

       From the Judgment & Order dated 16.10.2003 of the High
  Court of Judicature at Allahabad in Criminal Appeal No. 737
E of 2003.
        Ratnakar Dash, Abhisth Kumar, T.N. Singh for the
    Appellant.

      G.S. Mani, S.K. Verma, P.K. Tripathy, K. Rama Koteswara
F Rao, M.M. Kashyap for the Respondent.

          The Judgment of the Court was delivered by

       P. SATHASIVAM, J. 1. This appeal is filed by the State
  of U.P. against the final judgment and order dated 16.10.2003
G passed by the High Court of Judicature at Allahabad in Criminal
  Appeal No. 737 of 2003 whereby the High Court allowed the
  appeal filed by the respondent herein and acquitted him of the
  offences punishable under Sections 302 and 376 of the Indian
  Penal Code, 1860 (hereinafter referred to as "IPC") and set
H
   STATE OF U.P. v. MUNESH [P. SATHASIVAM, J.]               551

aside the judgment and order dated 15.02.2003 passed by the         A
Additional Sessions Judge/Special Judge (E.C. Act),
Bulandshahar in Sessions Case No. 748 of 2002.

     2. Prosecution case in a nutshell is as follows:

     (a) On 05.03.2002, at about 04.30 p.m., Roshni (the            B
deceased), aged about 11 years, had gone alone from her
house in Kalander Garhi, PS Khurja Nagar, Bulandshahar, U.P.
to prepare cow-dung cakes in the cremation ground of Jatavs'
and while she was doing her work, the respondent-accused
forcibly took her in the wheat field of one Jalil Khadar with bad   C
intentions. She raised cries and on hearing the same, Madanlal
(PW-2) and Suresh Chandra (PW-3), who were passing
through at a short distance, came to the said field and saw that
the respondent-accused was strangulating her with a Dupatta.
On seeing them, the respondent-accused ran away and when            o
they tried to chase him, he could not be caught. When they
returned back, Roshni was seen lying dead at the site in naked
condition. Both of them informed Kanchhi Lal (PW-1 ), the father
of the deceased-the complainant about the said incident and
at 11.05 p.m., PW-1 lodged an F.l.R. being Crime No. 66 of          E
2002 at Police outpost Khurja Junction, District Bulandshahar
and a case under Sections 376, 302 and 511 of IPC was
registered against the appellant.

     (b) After investigation, Kshetrapal Singh, S.I. (PW-7)
arrested the accused on 14.03.2002. After filing of the charge      F
sheet, the case was committed to the Court of Sessions and
numbered as Sessions Case No. 748 of 2002.

     (c) The Additional Sessions Judge/Special Judge (E.C.
Act) Bulandshahar, by judgment dated 15.02.2003, convicted          G
the respondent-accused and sentenced him to death under
Section 302 of IPC and to imprisonment for life under Section
376 of IPC.

    (d) Aggrieved by the said judgment, the respondent-             H
    552     SUPREME COURT REPORTS                   [2012] 9 S.C.R.


A   accused preferred an appeal being Criminal Appeal No. 737
    of 2003 before the High Court. For confirmation of death
    sentence of the accused, Capital Sentence Reference No.7 of
    2003 was also filed which was heard along with the appeal filed
    by the accused. The High Court, by impugned judgment dated
8   16.10.2003, allowed the appeal filed by the respondent-
    accused and acquitted him of all the charges and also rejected
    the Capital Sentence Reference.

         (e) Against the order of acquittal passed by the High Court,
    the State has filed this appeal by way of special leave.
c
         3. Heard Mr. Ratnakar Dash, learned senior counsel for
    the appellant-State and Mr. G.S. Mani, learned counsel for the
    respondent-accused.

         4. Mr. Ratnakar Dash, learned senior counsel appearing
0
    for the State of U.P. submitted as under:-

       (a) the High Court has committed an error by disbelieving
  the statement of two independent eye-witnesses, namely,
  Madanlal (PW-2) and Suresh Chandra (PW-3) merely on the
E ground that there are some contradictions between the
  statements made under Section 161 of the Code of Criminal
  Procedure, 1973 (hereinafter referred to as "the Code") and in
  their evidence before the court;

F       (b) the High Court has failed to appreciate the vital facts
  that these two statements i.e. statement before the 1.0. and the
  statement before the Court were made after some interval and
  there is bound to be some variance in the statements. However,
  the omission in the statement is not fatal to the prosecution
G case;

        (c) the High Court was not correct in holding that there is
    delay in lodging of the FIR. Even if there is delay, it has been
    properly explained by the complainant - PW-1 , father of the
    deceased; and
H
   STATE OF U.P. v. MUNESH [P. SATHASIVAM, J.]               553


    (d) Since the prosecution story is fully corroborated with      A
the medical evidence on record that the victim was raped
before her death and she had died on 05.03.2002 at 4.30 p.m.
due to injuries, all these aspects have not been properly
considered and the High Court committed a grave error in
acquitting the accused.                                             B

      5. On the other hand, Mr. G.S. Mani, learned counsel for
the respondent-accused submitted that in view of the
contradictions in the evidence of prosecution witnesses,
particularly, their statements before the 1.0. under Section 161    C
of the Code and their evidence before the Court, the High Court
was fully justified in disbelieving their version. He pointed out
that non-recovery of chunni (dupatta) is fatal to the prosecution
case. He also pointed out that the prosecution failed to prove
the motive and it is highly impossible to commit rape and
murder at the same time. According to the counsel, there was        D
inordinate delay in lodging the complaint and inquest was not
made on the same night. He further pointed out that all these
aspects were correctly appre~iated by the High Court and
ordered acquittal. Finally, Mr. Mani submitted that inasmuch as
the High Court, on appreciation of evidence ordered acquittal,      E
the same cannot be lightly interfered by this Court exercising
jurisdiction under Article 136 of the Constitution of India.

     6. We have carefully considered the rival submissions and
gone through the relevant materials as well as the reasoning        F
of the trial Court and the High Court.

     7. As to the evidentiary value of eye-witnesses - PWs 2
and 3, it is not in dispute that both of them are not related to
the deceased. On the other hand, they are independent eye-
witnesses who actually witnessed the occurrence. Madanlal           G
(PW-2), in his evidence has stated that Kanchhi Lal - (PW-1)
father of the deceased victim, belongs to his village and his
daughter by name Roshni was just 11 years old when the said
incident occurred. He also stated that the accused Munesh-
respondent herein too belongs to his own village. He narrated       H
    554      SUPREME COURT REPORTS                   [2012] 9 S.C.R.


A before the Court that on 05.03.2002, at 4.30 p.m. he was
  passing through their field leading towards his village Manna
  along with one more villager Suresh Chandra (PW-2) and,
  ultimately, when they reached near the tube well fitted in the field
  of Jalil Khadar in which standing wheat crop was grown, at that
B time, they heard shrieking sound. On hearing the same, they
  immediately rushed towards the said direction. On reaching the
  spot, they saw Roshni lying down there and, at that time,
  Munesh-the accused tied a noose around her neck and
  tightened its knot. On seeing his action, both of them asked him
c "what are you doing". He further stated that after strangulating
  her, he ran away in the direction of south and they too followed
  him, but the accused could not be caught. Thereafter, they
  returned back to the spot and found that Roshini was lying on
  the ground in a naked state and the noose was around her
0 neck. Her salwar and underwear were lying nearby her body.
  Immediately, they informed the same to her father PW-1. PW-
  2 identified Munesh-accused in the Court and asserted that it
  was he who committed the said act.

       8. Though, learned counsel for the accused brought to our
E notice that certain statements have not been stated by him
  before the 1.0., on verification of his statement under Section
  161 of the Code and his evidence before the Court as well as
  the statement of 1.0. (PW-6), we are satisfied that the
  contradiction, if any, is not much and the same would not affect
F the credibility of his statement. It is not in dispute that he is not
  related to the deceased, on the other hand, he is an
  independent eye-witness belonging to the same village as that
  of PW-1 and the accused.
       9. The next eye-witness relied on by the prosecution is
G Suresh Chandra - PW-3. In his evidence, he has stated that
  PW-1 belongs to his own village and at the time of the incident,
  his daughter was aged about 11 years. He also admitted that
  even the accused-Munesh belongs to their village. Like PW-2,
  PW-3 also mentioned that the occurrence took place on
H 05.03.2002, between 4.30 to 5.00 p.m. He further stated that
  STATE OF U.P. v. MUNESH [P. SATHASIVAM, J.]                 555


he along with PW-2 was passing through their field and when          A
they reached near the tube-well of Jalil Khadar, they heard
shrieking sound, due to which, they rushed towards the said
direction. They saw Munesh-accused has already got down
Roshni, due to which, they shouted at him. In the meanwhile,
the accused put around her neck a noose of her chunni                B
(dupatta) and tightened it by pulling. Thereafter, he ran away
towards the south. Like PW-2, he also chased him but the
accused could not be caught. When they returned back, they
saw that she was lying naked on the ground. Her salwar and
underwear were lying near her body. Her vaginal area had             c
bleeding and her hands were full of cow-dung. Thereafter, they
informed the same to Kanchhi Lal - PW-1, father of the
deceased. Like PW-2, he also identified the accused in the
Court. Even in the cross-examination, he asserted that when
they saw her at the first instance itself, a noose was tied around
                                                                     0
her neck and the accused was holding both the ends of the said
noose and was pulling it to tighten it around her neck. He denied
the suggestion that in order to support the family of the
deceased, he was making a false statement. Here again, the
counsel pointed out certain discrepancies in the statement           E
before the police officer and his evidence before the Court. We
have carefully verified the same and we are satisfied that the
alleged contradictions are trivial in nature and have not affected
the case of the prosecution.

      10. The High Court, taking note of minor discrepancies, · F
particularly, their statements recorded by the 1.0. and their
evidence before the Court, disbelieved their version. We are
satisfied that the High Court has committed an error in rejecting
their evidence. We have already stated that they are
independent witnesses and witnessed the occurrence at a short G
distance and there is no reason to disbelieve their version.

      11. Now, let us see the evidence of PW-1, father of the
victim. It is true that he is not an eye-witness but his statement
corroborates with the statements made by PW-2 and PW-3. It           H
    556     SUPREME COURT REPORTS                   (2012] 9 S.C.R.


A is his evidence that the deceased-Roshni was his daughter and
  she was aged about 11 years at the time of occurrence. He
  further deposed that on 05.03.2002, at about 4.30 p.m., she
  went alone to the place of cremation ground of Jatavs' for
  preparing cow-dung cakes. At that time, Munesh-the accused
B who also belongs to his village forcibly dragged her with bad
  intentions to the wheat field of Jalil Khadar. He also stated that
  on hearing the cries of her daughter, Madanlal (PW-2) and
  Suresh Chandra (PW-3}, who were passing through nearby the
  field, shouted at him and tried to catch hold of him. He also
C explained how PWs 2 and 3 chased the accused and informed
  about the incident to him. Thereafter, according to him, he
  rushed to the spot along with the villagers and saw that his
  daughter was not only lying in naked condition but her chunni
  was also lying around her neck as a noose. After searching for
  the accused in his village and after finding that he was not
0
  traceable, he submitted the written complaint to the P.S. Khurja
  Junction which is Exh. A-1. He also identified the accused who
  was present in the dock. He denied the allegation that he falsely
  implicated the accused due to some election dispute. There
  is no reason to disbelieve the version of PW-1 and the trial
E court has rightly relied on him along with the statements of eye-
  witnesses PWs 2 and 3. Unfortunately, the High Court has
  rejected his evidence also on flimsy ground.

       12. Coming to the next contention about the delay in
F lodging of the FIR, it is not in dispute that the incident occurred
  at 4.30 p.m. on 05.03.2002 and the complaint was made by
  PW-1 at 11.05 p.m. on the same day itself. It has also come in
  evidence that the distance between the place of incident and
  the police station is 2 kms. Though the High Court has
G commented that there was delay in lodging the complaint, it
  must be noted that PW-1 - father of the victim is a villager and
  on hearing the incident through PWs 2 and 3, he rushed to the
  spot, made arrangements to cover the body of his daughter,
  searched for some time to trace the accused, and thereafter,
H reached the P.S. which is at a distance of 2 kms. at 11.05 p.m.
   STATE OF U.P. v. MUNESH [P. SATHASIVAM, J.]                557


If we consider the entire incident as narrated by PW-1, it cannot     A
be construed that there was any unreasonable and unexplained
delay which goes to the root of the prosecution case. On the
other hand, considering the materials placed, we hold that the
delay has been properly explained by PW-1, even otherwise,
the same cannot be construed as abnormal as erroneously               B
observed by the High Court.

     13. Though it is stated that all the details as spoken to by
PWs 1, 2 and 3 were not mentioned in the FIR, as rightly
observed by the trial Court, FIR is not an encyclopedia. It is just   C
an intimation of the occurrence of an incident and it need not
contain all the facts related to the said incident.

      14. Coming to the contention about variance in the
statement recorded by 1.0. under Section 161 of the Code and
the evidence before the Court, we have already expressed that         D
the contradictions are not much and the same have not affected
the prosecution story. It is to be noted that the statement before
the 1.0. and the statement before the Court were made after
some interval and there is bound to be some variance in the
statements. After verification of both the statements, we are         E
satisfied that the omission is not much and not fatal to the
prosecution case and it should not prejudice prosecution
evidence. Accordingly, we reject the stand taken by the counsel
for the accused. We have already concluded that the evidence
of both the eye-witnesses, viz., PWs 2 and 3 are not only             F
reliable but they are independent witnesses. Further, in the
absence of any previous enmity with the accused, the question
of falsely implicating the accused does not arise.

    15. Finally, let us consider the evidence of the doctor who
conducted the post mortem on the body of the deceased. Dr.            G
Awdesh Kumar (PW-4) attached to District Hospital,
Bulandshahar, in his evidence has stated that on 06.03.2002
Constables Jagat Singh and Usman brought the dead body of
Kum. Roshni, daughter of Kanchhi Lal along with the relevant
papers, specimen seal impression etc., for conducting post            H
    558      SUPREME COURT REPORTS                   [2012] 9 S.C.R.


A mortem examination of the dead body. Both of them also
  identified the said dead body before him. He compared the
  seal stamped on the dead body package and found it to be
  correct and packing too was found to be in tact. He further
  deposed that at 3.30 p.m. on 06.03.2002, he conducted the
B post mortem on the dead body. The age of the deceased
  Roshini was about 11 years and she was of average physical
  built-up by appearance. He noted the following ante-mortem
  injuries on the dead body of the victim-Roshni.

          "1. Ligature marks 20 cm x 2.5 cm all around neck and
c         also on that part of lower neck below thyroid cartilage.

          2. Multiple linear abrasions on the back of left leg wholly,
          in its back side of sizes varying in between 10 cm to 3 cm.
          The face was congested and on her private part, blood
D         was visible.

          In her internal examination, it was found that brain and
          membranes of the brain, both long sacks, trachea, liver
          tissues, kidney were found to be congested. Hyoid of neck
          was found to have been fractured. Her hymen has been
E
          ruptured. Its smear slide was prepared. It was then sent
          for pathological examination."

       In his opinion, the cause of the death of the deceased was
  due to asphyxia due to strangulation and also due to pre-
F mordial injuries. The post mortem report was marked as Exh.
  A-2. For a specific question, PW-4 has stated that "prior to her
  death, the deceased was raped and due to that reason only,
  her hymen has been found to be ruptured". The above
  conclusion of PW-4 fully supports the case of the prosecution
G that the deceased was raped before strangulation. He also
  stated that blood was seen in the vagina of the deceased and
  her hymen was found to have been ruptured.

      16. Mr. Mani has pointed out that in the absence of the
H report of Sperm Detection Test, the conclusion regarding rape
  STATE OF U.P. v. MUNESH [P. SATHASIVAM, J.]                  559


cannot be accepted. It is true that PW-4 has stated that the slide     A
containing sperms which had been sent for examination has
not returned so far along with the examination report. In the
absence of such a report, the case of the prosecution cannot
be doubted about rape, particularly, in the light of categorical
findings of the doctor that her hymen was found to have been           8
ruptured. The other prosecution witnesses have also stated
injury on her private part and oozing of blood. The medical
evidence proved that the victim was raped before her death and
she died on 05.03.2002. In other words, the prosecution story
is fully corroborated with the medical evidence on record and,         C
unfortunately, the High Court failed to give importance to the
said evidence.

     17. The I.Os PWs 6 and 7 prepared panchnama Exh. No.
A-5 and related papers which are Exh. Nos. A-6 to A-9. Exh.
No. A-10 contains the list of articles confiscated by the 1.0. viz.,   D
Salwar, panty and Hawai slippers which are marked as
material object Nos. 1 to 3. PW-6 has prepared a spot map
which is Exh. A-11.

     18. Finally, learned counsel for the respondent submitted         E
that failure to recover chunni (dupatta) which was alleged to
have been used for pressing the neck goes against the
prosecution case. It is true that the prosecution has not collected
the same but, in the light of the material objects, the evidence
of prosecution witnesses, statement of the doctor who
                                                                       F
conducted the post mortem, his opinion etc. amply prove the
prosecution case and we reject the claim of the counsel for the
respondent.

     19. The primary concern both at national and international
level is about the devastating increase in rape cases and cases        G
relating to crime against women in the world. India is no
exception to it. Although the statutory provisions provide strict
penal action against such offenders, it is for the Courts to
ultimately decide whether such incident has occurred or not.
The Courts should be more cautious in appreciating the                 H
    560       SUPREME COURT REPORTS                 [2012] 9 S.C.R.


A evidence and the accused should not be left scot-free merely
  on flimsy grounds. In the instant case, the accused had
  committed rape, which repels against moral conscience as he
  chose a girl of 11 years to satisfy his lust and subsequently
  murdered her.
B         20. In the light of the accepfable materials in the form of
  oral and documentary evidence led in by the prosecution,
  particularly, the eye-witnesses PWs 2 and 3 who are
  independent witnesses coupled with the evidence of the doctor
  (PW-4), we accept the conclusion of the trial court and disagree
C with the conclusion of the High Court. The analysis and the
  ultimate conclusion of the High Court is contrary to the
  acceptable and reliable material placed by the prosecution and
  we hold that the accused has first committed the offence of rape
  and then murdered the deceased. We are satisfied that the
D prosecution has established both the charges under Sections
  376 and 302 of IPC.
         21. In view of the same, the conclusion arrived by the High
  Court is set aside. Taking note of the fact that the incident
E occurred in the year 2002, we feel that rigorous imprisonment
  for life would meet the ends of justice.

       22. In view of the same, the respondent-accused is
  directed to surrender before the concerned authority/Court
  within a period of two weeks failing which the trial Judge is
F directed to take necessary effective steps for sending him to
  prison. The appeal preferred by the State is allowed.
    B.B.B.                                        Appeal allowed.