State of Manipur vs M. Modhu Singh and Others

P.G. Agarwal, J.—This Govt. Criminal Appeal No. 2/90 filed by the State of Manipur and Criminal Revision No. 7/90 filed by the informant are directed against the judgment and order passed by the learned Asstt. Sessions Judge, No. 2, Manipur, on 10.4.89 in Sessions trial No. 3/84 and are disposed by this judgment.

I have heard learned Counsel for both the sides and perused the record.

Prosecution case is that on the fateful day of 1.10.83 in the afternoon, at about 12.30 P.M. while W. Memcha Devi, P.W.-1, a student of Kumbi College along with her friends, namely Ng. Mema Devi P.W.-5, M. Indira Devi P.W.-9, M. Ibecha Devi P.W.-8 and Kh. Chaobi Devi P.W.-15 were returning home on foot after appearing in the P.U. 2nd Year Test Examination in the college and reached the place of occurrence, they found a jeep parked on the side of the road and when these young girls reached near the jeep, some of the occupants of the jeep jumped out and forcibly took P.W.-5 Ng. Mema Devi inside the jeep. Thereafter accused Madhu Singh and Herachandra Singh, hereinafter referred to as Accused No. 1 and 2/A-1, A-2 respectively, shouted that a wrong person has been apprehended. P.W.-5 was thereafter released. Accused No. 1 and 2 then caught hold of W. Memcha Devi, hereinafter referred to as ''the prosecutrix'', and forcibly dragged her to the jeep. The miscreants gagged her mouth with cloth and the jeep left the place of occurrence. Accused 1 and 2 along with other accused persons took the prosecutrix first to Ngankha Lawai and thereafter shifted to one house. The victim was shifted to another house at night where Accused No. 1 with the help of Accused No. 2 forcibly raped her. After the commission of rape, prosecutrix was taken to another house. The prosecutrix was threatened with dire consequences by show of weapon and she was asked not to make any sound. The next day also the victim was taken from place to place and kept in another house where Accused No. 1 again committed sexual intercourse with her. On the third day, the prosecutrix somehow escaped and reached Churanchandrapur and met his uncle who had gone there in her search. She was brought home and produced before the police. Soon after the occurrence some of the colleagues reported the incident at the house of the prosecutrix, whereupon FIR was lodged. Police registered a case and after usual investigation submitted charge-sheet against all the four accused persons u/s 366 read with Section 34 IPC and separate charges u/s 376/109 IPC against Accused No. 2 was also framed. During the course of trial accused M. Yaishul Singh died and the case against him stood abated. During trial before the Asstt. Sessions Judge No. 2, prosecution examined, as many as, 17 witnesses and proved and exhibited certain documents. The statement of the four accused persons were recorded. On conclusion of the trial, vide the impugned order the learned Asstt. Sessions Judge acquitted the accused persons. The complainant preferred Criminal Revision No. 7/90 and the State of Manipur preferred Criminal Appeal No. 2/90. Both these matters are heard together and disposed of by this common judgment.

I have heard Mr N. Kumaijit'' Singh learned Counsel for the Respondents and Ms. Bidyamani, learned Public Prosecutor.

Before entering into the merits of the Case, let us qonsider the ambit and power of the High Court in an appeal against an order of acquittal, as provided in Section 378 Code of Criminal Procedure Considering the principles laid down by the Supreme Court in catena of cases, namely,

i) S.A.A. Biyabani Vs. The State of Madras,

ii) Aher Raja Khima v. State of Saurashtra AIR 1956 SC 216

iii) Sanwat Singh and Others Vs. State of Rajasthan,

iv) State of Uttar Pradesh Vs. Samman Dass,

v) Babu and Others Vs. State of Uttar Pradesh,

vi) Chandra Kanta Debnath and Others Vs. State of Tripura,

This Court in the case of State of Assam v. M/s. Radha Oil Industries and Anr. 1987 (1) GLR 134, held as below:

The power conferred by Section 423(1)(a) of "the Code" which deal with an appeal from an order of acquittal is as large and wide as the power conferred by Clause (b) thereof, which deals with an order of conviction. It is thus obvious that the High Court''s power in dealing with criminal appeals are equally wide whether the appeal is one against acquittal or conviction. In an appeal against an order of acquittal the High Court has the full power to review at large the evidence upon which the order of acquittal is based and to reach the conclusion on the evidence as to whether the order of acquittal should be reversed or not. "The Code" places special limitation on the appellate court to appraise the evidence distinct and separate from die manner in which it should be appreciated in an appeal against conviction. Indeed the appellate court dealing with an appeal against the order of acquittal has full power to review the evidence on which the order of acquittal is based and to reach a conclusion either to set aside the order or not but while exercising the function. It has been ruled by the Supreme Court in a catena of cases, the High Court should give appropriate weight and consideration to the following aspects:

(i) the views of the trial court as to the credibility of the witnesses should be properly weighed and considered;

(ii) the presumption of innocence in favour of the accused in never weakened by the fact that he has been acquitted as the trial;

(iii) the right of the acquitted persons to the benefit of reasonable doubt should not be denied on the score that they have been acquitted and are no longer accused;

(iv) the appellate court should be slow in disturbing the findings of fact reached by the trial Judge who had to advantage by personally seeing the witnesses; and

(v) when the High Court does not agree with, the view of the trial court yet reaches the conclusion that the view expressed by the trial Court is reasonably possible, the same should not be disturbed.

The law is thus well settled that the High Court would not ordinarily interfere with the conclusion of the trial Court except in the case, where the trial court has misled itself on question of fact or law and the decision has led to miscarriage of justice. It is no doubt true that the appellate Court has some powers of appreciating the evidence but it should not interfere with an acquittal unless it comes to a conclusion that view of the trial Court is unreasonable and perverse. The prosecutrix was examined as P.W.-1 and she has deposed that she knew Accused No. 1 and Accused No. 2 by face and name, whereas the other accused persons namely, M. Nabachandra Singh Accused No. 3 and Y. Ibotombi Singh, Accused N. 4 and M. Yaiskul Singh (since deceased) were seen by her on the day of occurrence only. At the relevant time she was studying in P.U. 2nd year at Kumbi College, which is situated at about 1 K.M. from her house. She has fully supported the prosecution story as stated above in the judgment. She has deposed that when she was caught she raised alarm saying "Nupi Phare, Nupi Phare" (which means a woman is caught, a woman is caught). However, before P.W.s could come and save her she was put inside the jeep and her mouth was gagged and her eyes were also covered with cloth and as a result she could not see anything. The cloth used for the purpose of gagging her mouth and covering her face was the Chadar worn by her on the day. Accused No. 3 and Accused No. 4 held weapons like knife, stick and threatened her that she would be killed if she raises alarm. She was taken from one place to another and from one house to another. She was kept in the house of Accused No. 4 for some time and from there she was taken to another house where she was violated by accused No. 1. She states:

I struggled to my best for about 5 minutes. He then called accused Herachandra Singh and accused Herachandra Singh entered into the said room. I was forcibly pushed down by the accused Modhu Singh and Herachandra Singh on a bed. Herachandra Singh dragged out my phanek and my petticoat was also rolled up then he (accused Herachandra) went out of the room. Then the accused Modhu Singh forcibly committed sexual intercourse by inserting his penis.

At night she was carried to another house by all the accused persons and they halted there for the night. Next day she was carried from place to place and at night she was kept in the house of one Mangi Singh, who tried to induce her to give her consent for the marriage with accused No. 1. She declined stating that she has been brought against her consent. That night also accused No. 1 committed sexual intercourse with her without her consent. Next day, while accused No. 1 was sleeping after taking lunch she got a chance and escaped and in the Bazar while she was trying to trace out some relation she met her uncle W. Menjor Singh, P.W.-14. Out of fear of the accused person they could not dare to come in vehicle and tracked all the way to their house through field and reached home next day morning.

The alleged occurrence took place at Wangoo road. According to the prosecution evidence, which is not disputed, there were two houses near the place of occurrence-one on the east of the road and the other on the west of the road and there were paddy fields. Ext. P-6 is the sketch map and it supports the statement of P.W.-1. The houses belong to Th. Kalachand Singh and one Kh. Goura Singh. The paddy field near the place of incident belongs to Kh. Gopi Singh, P.W.-3. P.W.-3 has deposed that on the date of occurrence at about 1.30 P.M. when he came to his paddy field he saw a jeep was coming and stopping infront of the house of P. W.-11, which is situated to the opposite side of his paddy field. P.W.-3 also saw accused No. 1 and Accused No. 2 there and about 4/5 girls coming from the direction of Kumbi College. Thereafter he saw accused No. 1 and Accused No. 2 getting down from the jeep and forcibly taking away one of those girls, three or four boys helped Accused No. 1 and Accused No. 2 in putting the girl into the jeep. He also heard the shouting "Nupi Phare, Nupi Phare". But by the time he reached near the jeep, the jeep went away to Kumbi Bazar. He found Mema Devi P.W.-5, Indira Devi P.W.-9, Ibecha Devi P.W.-8 and Chaobi Devi P.W.-15 and on his querry the girls replied that Memcha Devi P.W.-1 has been kidnapped. P.W.-3 also met W. Thoiba Singh P.W.-2 and M. Thomba Singh P.W.-4 at the place of occurrence.

P.W.-2 is a college student and he is a co-villager of the two accused persons, accused No. 1 and 2 and the victim girl P.W.- 1. He also deposed that on the date of occurrence at about 12 noon he was proceeding in the Wangoo road on his cycle, he saw a jeep haulted in front of the house of P.W.-11. He also saw accused No. 1 and accused No. 2 and some other boys in the said jeep. After crossing the jeep at a certain distance he met the girls returning from the college and after some time at a certain distance he heard the shouting ''Nupi Phare, Nupi Phare''. On hearing the voice he stopped, got down from the cycle and looked backwards and saw accused No. 1 and accused No. 2 with the help of others forcibly putting the girl into the jeep. On his arrival at the place of occurrence he was informed by the other girls, namely, P.W.-5, P.W.-8 and P.W.-15 that the prosecutrix had been kidnapped. While this witness was at the place of occurrence M. Tomba Singh P.W.-4 of their village also came there. P.W.-4 was cutting grass for the cows at the time of occurrence, which according to him was around 1 P.M. He saw a boy going on a cycle and thereafter hearing the shout ''Nupi Phare, Nupi Phare'' when he looked towards the road he saw some girls and one jeep. The jeep left the place, he arrived at the place of occurrence and found the four girls and a boy who was on the cycle there. One of the girls reported him that P.W.-1 had been forcibly kidnapped by accused No. 1 and accused No. 2. In the meantime, Kh. Gopi Singh P.W.-3 also came to the place of occurrence.

Thus from the prosecution evidence we find that the occurrence of kidnapping was witnessed by the girls accumpanying the prosecutrix and three other persons, namely, P.W.-2, P.W.-3 and P.W.-4. The occurrence took place in front of the house of P.W.-1 1, Kalachand Singh. However, he was not present at the place of occurrence at the time of occurrence and when he returned home in the afternoon he learnt that one Madhu Singh had elopped Memcha Devi.

As regards the girls who were with the prosecutrix at the time of the alleged kidnapping, out of the 4 girls, P.W.-5, P.W.-8 and P.W.-9 were declared hostile by the prosecution as these witnesses resiled from their earlier statements made before police u/s 161 Code of Criminal Procedure. The statement made by these witnesses were put to them and these were proved through I.O. as required. Ext. P-8, P-9 and P-10 are the statements of P.W.-5, P.W.-8 and P.W.-9 respectively made u/s 161 Code of Criminal Procedure from the above statements, it is clear that all these eyewitnesses did support the prosecution story fully but now they have turned hostile. P.W.-8 even refused to recognise P.W.-5 and P.W.-15, her classmate and she did not remember as to when test examination of P.U. 2nd year was held and as to what transpired on the fateful day. P.W.-9 has also stated that she does not know the victim, P.W.-1, as to where she was studying although all these girls belonged to the same village. On the other hand P.W.-5 thus admitted that in the year 1993 P.W.-1 used to study with her and she appeared in the test examination of the Kumbi College and all the girls happened to return along with P.W.-1 after their examination on 1.10.1983.

P.W.-15 on the other hand, has fully supported the prosecution version of the incident as stated by P.W.-1 and other witnesses. Despite lengthy cross-examination of this P.W.-15, nothing was brought out in cross-examination to affect the veracity of her testimony, which impresses that she appears to be a truthful witness.

Thus I find that as regards the incident of kidnapping there are two sets of witnesses, one set consists of five girls including the victim and P.W.-15 have fully supported the prosecution case, the other three girls resiled from their earlier statement made during the investigation and, as such, they were declared as hostile by the prosecution. In respect of P.W.-5 the learned trial Judge has observed that she has concealed the true facts in fear of her modesty in society as she was allegedly caught hold of by the accused for some moments. So far P.W.-8 and P.W.-9 are concerned, a cursory glance of their statements will show that these two witnesses are not speaking the truth. All the five girls and A-1 and A-2 belonged to the small village Kumbi Leim but these two witnesses refused to even identify or admit that they know the other girls or the accused persons. The prosecution suggestion was that P.W.-5 is a close relation of A-1 and, as such, she has influenced the other two girls not to speak the truth. In this case the question is not as to why P.W.-5, P.W.-8 and P.W.-9 have turned hostile but the question is why P.W.-1 and P.W.-15 will be deposing falsely. P.W.-15 has been disbelieved on the ground that her seigei brother (which I am told means a person of same clan) has married the elder sister of P.W.-1. There is absolutely no evidence to show that the prosecution witnesses and the accused persons belonged to different clan or that there is any animosity between these two clans. In absence of any other material it is very strange that a witness in a criminal trial is disbelieved merely because she belongs to the same clan or community of the victim. Such hypothesis may be extended tomorrow to show that as both the victim and witness happens to be of same religion or nationality, they are not reliable. As stated above, P.W.-15 was cross-examined at length but nothing has come up to show that she is deposing falsely or that she has invented a story although no such occurrence took place. She has fully supported the statement of P.W.-1. Defence merely gave certain suggestion which have been denied. Mere suggestion by the defence to the witness is no evidence unless it is supported by the statement of the accused and defence evidence, which is completely lacking in the present case.

Now, coming to the evidence of P.W.-1, the learned Judge, has not given a single reason as to why this witness cannot be believed or as to why she will falsely implicate A-1 and A-2 and others. Admittedly, P.W.-1 was a young girl doing her studies in college at the relevant time. There is no suggestion even that she had any animus with the accused person and under such circumstances why she will put her name and fame or her dignity at stake and what for. It would be appropriate to refer to the observations made by the Apex Court in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, . The Apex Court observed:

A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity and had ever occurred. (2) She would be conscious of the danger of being ostracized by the Society or being looked down by the Society including by her own family members, relatives, friends, and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing to love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husbands'' family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the Court to face the cross-examination by counsel for the culprit and the risk of being disbelieved, act as a deterrent.

In view of these factors the victim and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye witness account of an independent witness may often be forth coming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the western world (obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the ''probabilities factor'' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification; corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such as accusation on account of the instinct of self preservation or when the probabilities factor found to be out of tune.

The learned trial Judge has taken a peculiar stand to discredit the testimony of P.W.-1 and P.W.-15 by stating that as the other 3 girls have been declared hostile, their evidence does not support the prosecution version. These three witnesses were declared hostile because they realised from their earlier statements. The law regarding hostile witnesses is more or less well settled. In this case, there are 5 eye witnesses and out of them two P.Ws. have supported the prosecution and other three have been declared hostile. Now, because of 3 witnesses turning hostile the evidence of two witnesses who have supported the prosecution cannot be thrown out. It is well known and happens often in criminal trial that some witnesses do turn hostile, but that by itself would not prevent a Court from finding an accused guilty if there is otherwise acceptable evidence in support of the prosecution. Even the evidence of the hostile witnesses can be used if it supports the prosecution on some points.

Another ground on which the evidence of P.W.-1 was rejected was the absence of medical evidence. It is stated that "it was the duty of the Investigating Officer to have the prosecutrix medically examined. But the I.O. failed to do so. No reason is shown for non- examination of the victim medically." It seems that the learned Judge conducted the important trial mechanically without application of his mind. A mere glance on the order sheet of the Court dated 8.10.83 would have been sufficient to negate the above observation of the trial Judge. Victim girl P.W. 1 was produced before the Magistrate for the first time on 8.10.83. The relevant portiqpiofthe order sheet dated 8.10.83 reads as follows:

The I.O. also submits an application for medical examination of the girl. Medical examination is not required to send for her medical examination regarding to ascertain her age as the K. Girl, submitted that she was forcibly taken by the accused persons without her consent.

Thus, I find that I.O. did pray for sending P.W.-1 for medical examination but the said prayer was declined by the Magistrate, for which no fault can be found with the Investigating agency or the victim. The occurrence took place on 1.10.83 and the victim was subjected to sexual molestation on 1.10.83 and 2.10.83. She was produced before the Magistrate on 8.10.83. Thus, tier medical examination after 6/7 days of the incident would not have yielded anything. Moreover, P.W.-1 has categorically stated that the under garments bearing semen etc. were washed by her on the date of her arrival at her house.

Medical evidence is only an evidence of opinion and hardly decisive. Mani Ram Vs. State of Rajasthan, In the case of Sheikh Zakir v. State of Bihar reported in Sheikh Zakir Vs. State of Bihar, the Apex Court held:

The absence of any injuries on the person of the complainant may not by itself discredit the statement of the complainant. Merely because the complainant was a helpless victim who was by force prevented from offering serious physical resistance she cannot be disbelieved. In this situation the non- production of a medical report would not be of much consequence if the other evidence on record is believable. It is, however, nobody''s case that there was such a report and it had been withheld.

The trial Judge also drew adverse presumption for non-examination of the owner of the seized jeep. It may be mentioned here that the vehicle (jeep) used for the purpose of forcibly taking away P.W.-1 was seized during the course of investigation and it was given in jimma of the owner by the order of the Court. The driver of the said vehicle was examined as P.W.-6. He also realised from his earlier statement and, as such, he was declared hostile and his earlier statement supporting the prosecution recorded u/s 161 Code of Criminal Procedure was exhibited as Ext. X(i). Thus, when the driver of the vehicle who drove the vehicle at the relevant time has been examined by the prosecution the non-examination of the owner was immaterial. Admittedly, the owner of the vehicle was not in the jeep at the relevant time and, as such, his evidence would have been inconsequential.

On perusal of the impugned judgment it is seen that the Court below put undue emphasis on corroboration to the statement of the prosecutrix. In Bhoginbhai Hirjibhai (supra), the Apex Court went to the extent of observing that in the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should be the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society. "There are catena of decisions regarding corroboration in a case of sexual assault. Corroboration is not a sine qua non for believing testimony of a victim of rape, if her evidence is otherwise reliable. However, so far the present case is concerned, corroboration is plenty. The FIR was lodged immediately after the incident on being reported by the other girls and the name of A-1 and A-2 finds mention. The statement of the victim is fully supported by the ground of alleged relationship as discussed above. Besides P.W.-15, as many as 4 other witnesses have corrborated the prosecution evidence regarding abduction/kidnapping. P.W.-2, a young boy hailing from the same village was disbelieved on the ground that he is a chance witness. Admittedly P.W.-2 belongs to the same village and he was required to use the same Wangoo road. His presence is supported/corroborated by the other witnesses. The witness during deposition stated that he was going on cycle for some personal work but he refused to divulge the nature of personal work. The trial Judge observed that ''perhaps he is deposing falsely''. If P.W.-2 was a lier he could have stated anything about his personal work but it seems that P.W.-2 did not want to tell a lie in the Court and at the same time did not want to divulge the nature of his personal work and as such he rightly refused to divulge the nature of personal work. The evidence of such witness cannot be disbelieved. On the other hand, the other witness P.W.-3 has been disbelieved because in his evidence he was not stated anything about P.W.-2 going on bicycle just prior to the actual incident whereas P.W.-2 has been disbelieved as a chance witness. There is no dispute whatsoever that P.W.-3 has go a paddy field just near the place of occurrence but still the trial court disbelieved his presence and his evidence on the ground that the witness could not give Dag No., Patta No. of his land. P.W.-3 is an illiterate cultivator, but what about educated persons? How many of us will be able to give the Municipality Holding No., Patta No. and Dag No. of the land, house, when confronted suddenly without consulting the records. So far P.W.-4 is concerned the learned trial Judge brushed aside his evidence by stating that there is consideration between the statement of this witness before the Court and u/s 161 Code of Criminal Procedure There is absolutely no discussion or decision as to what is the contradiction and whether it affects the testimony of the witness in any manner. The statement u/s 161 Code of Criminal Procedure is exhibited as Ext. Y-1. The apparent contradiction in the statement of this witness seems to be that on being asked in cross- examination he says that his statement was recorded by I.O. after six months of this incident. The I.O. was not asked the exact date of recording his statement but Ext. Y-1 contains a date i.e. 30.10.83 which shows that his statement was recorded in the same month in which the incident took place. P.W.-4, an uneducated, unsophisticated villager, cannot be disbelieved on that count.

Thus on perusal of the evidence on record and the decision of the learned trial Judge, I find that the learned Trial Judge misdirected himself and there is also mis-reading of evidence. The evidence of the prosecution witnesses has not been viewed and considered in the correct and proper prospective and undue and unwarranted emphasis had been attached to certain minor discrepencies, which do not go to the root of the case.

There is no doubt whatsoever that the finding of the learned trial Judge is perverse and is not based on proper appreciation of the evidence on record and it has resulted in mis carriage of justice. It is unthinkable that P.W.-1 a young unmarried college going girl invented a false story of her kidnapping and subsequent rape and implicate her co-villagers and that too by stating that the occurrence took place in broad day light and in presence of other college going friends. Her statement regarding forcibly taking away by A-1 and A-2 with the help of others stands fully supported and corrborated by other prosecution witnesses whose evidence is quite reliable, convincing and true. The daring act of A-1 and A-2 in picking up a young girl by showing physical force with the help of vehicle, shows that it is a case of misuse of muscle power, money power both. The poor girl was forced to illicit intercourse and gave her consent for marriage to A-1, which she refused. P.W.-1 was a college going girl and as such she was not a fool to put her own future in jeopardy by spreading a false story of her kidnapping and loss of chastity.

At this stage it would be proper to refer to the recent observations of the Supreme Court in the case of Banwari Ram and Others Vs. State of U.P., The Apex Court observed:

Under the Code of Criminal Procedure there is no different so far as the power of the appellate court is concerned to deal with an appeal from a conviction and that from an appeal against an order of acquittal excepting that an appeal against a conviction is as of right and lies to courts of different jurisdictions depending on the nature of sentence and kind of trial and the Court in which the trial was held, whereas an appeal against an order of acquittal can be made only to the High Court with the leave of the court. The procedure for dealing with two kinds of appeals is identical and the powers of the appellate Court in disposing of the appeals are in essence the same. The High Court, therefore, has full powers while hearing an appeal against an order of acquittal, to reappreciate the evidence and to come to a conclusion whether the order of acquittal passed by the Sessions Judge was per se bad or not. If, however, on the evidence two views are reasonably possible, one supporting acquittal and the other indicating conviction then the High Court would not be justified in interfering with an order of acquittal merely because it taken the view that it would have taken the other view sitting as a trial Court. It would, therefore, be correct to state that the High Court while reversing an order of acquittal must apply its mind to the reasons given by the trial court and find out whether such reasons are at all sustainable or not. But one examining the reasons advanced by the trial court as well as on reappreciating the evidence on record if the High Court is satisfied that the reasons given by the trial court for acquittal are totally unsustainable and the appreciation of evidence made by the trial court is per se bad then there would be no limitation on the power of the High Court to set aside an order of acquittal.

As discussed above, the trial Judge proceeded with the matter under a wrong premise and it seems that he was on a fault finding mission. During her lengthy cross-examination the prosecutrix inadvertently stated that on the date of occurrence she had two papers for examination, the morning paper at about 12 noon and evening paper starts at 1 P.M. However, later on, the prosecutrix corrected herself by stating that there was only one paper on that day which ended at 12 PM. The above statement has been termed as ''self contraction''. The fact that all the five girls were returning home at about 12.30 PM on completion of their examination is well established not only from the statement of the girls but also from the evidence of other witnesses. P.W.-2, P.W.-3 and P.W.-4 have also deposed about the presence, of the girl including the victim girl at the place of occurrence at the relevant time.

Further, the trial Judge referring to the decision of the Apex Court in the case of Hanuman Vs. State of Haryana, and Badruddin Rukonddim Karpude and Others Vs. State of Maharashtra, held that no reliance can be placed on the statement of P.W.-1. Learned trial Judge has, however, not discussed as to what are the alleged exaggeration or improvements in the prosecution story. The law, as settled by the Apex Court, is all right but whether it is applicable to the facts and circumstances of the case is to be considered and foundation is to be prepared to apply the ratio of case laws but no such exercise was made. The observation of the Apex Court reported in 1989 Criminal Law Journal SC 88 may be reproduced.

It is well to remember that there is tendency amongst witness in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witnesses put embroidery to the prosecuton story, perhaps for the fear of being disbelieved. But there is no ground to throw the case overboard, if true, in the main.

In the instant case, however, there is nothing to show that the witnesses have exaggerated their version of the incident.

The learned trial Judge also found fault with the prosecution in not producing the two persons in whose house P.W.-1 was sexually assaulted. Yambem Thambalangu Singh, P.W.-7 is one such witness, who was examined by the prosecution. He has deposed that one day, late at night, his son Beni brought home his friend - a body and a girl from Kumbi and they stayed for the night at his house. The witness realised from his earlier statement and he was declared hostile by the prosecution. P.W.-7 even stated that he does not know A-1. The accused persons took the girl for illicit purpose for which they chose the place. As the place belonged to their friends or relations, naturally none of them would come forward to depose against the accused persons. The indifferent attitude of the public in the matter of crime and investigation is well known.

In the light of the above discussion, it is held that the conclusions arrived at by the trial Judge are not based on material available and the findings are perverse. The statement of the victim girl who was forcibly taken by the accused and physically violated without her consent cannot be thrown over board. It seems that the learned Judge has placed undue reliance as to the exact time of the incident.

It is the established principle of Criminal trial that after the conclusion of the trial and at the time of writing the judgment, the Court will first consider as to what prosecution case is and as to whether the prosecution case has been able to bring home the charge or not. Court is not supposed to start with considering whether the accused persons can be acquitted or not and whether there are any pit falls in the prosecution case. The evidence is not to be considered from the negative angle. The learned Trial Judge, started his judgment with the following sentences:

Brutal crimes are sometimes exsiccated in its passage through law courts mainly because of manifold evidentiary leakage resulting to the acquittal of the accused criminals under the protection of time-honoured phrase benefit of doubt. In the present case, a charged rapist and his main copartners in the crime meet their acquittal under the same benefit after a long trial. A short narration of facts will do.

Now coming to the facts pf the present case, the learned trial Judge disbelieved P.W.-1 on some flimsy and non-existent grounds. As to the exact time of the occurrence there is discrepancy in the statements of the witnesses. According to some witness the incident took place at about 12.30 PM whereas some witnesses have stated that it was at 1 PM or 1.30 PM. This discrepancy was natural as these witnesses are rustic witnesses and moreover nobody is expected to keep full track to know as to what time it was when the occurrence took place. The prosecutrix has stated that after putting her in the jeep, her face was covered with thick cloth and the jeep moved and later on when she was asked to alight at Ngangkha Lawai, at that time, it was 3 P.M. As there was no stop on the way and as the distance between the place of occurrence at Kumbi to Ngangkha Lawai was only 6 to 7 miles, the trial Judge observed: "It is difficult to believe that the jeep will take 21/2 hours to cover the above distance". The statement that it was 3 P.M. when the jeep was stopped at Ngangkha Lawai gives an approximate time only considering the physical and mental condition of the P.W. 1 at the relevant time, it is not expected that she will keep proper track of time. Moreover, there is no evidence that the jeep went straight to Ngangkha Lawai, the accused persons might have taken a circuitous road. On such grounds, the entire evidence is fully reliable and trustworthy. She had not made any improvement on material points and the circumstances show that she was not a consenting party and she was forcibly taken away. There is also sufficient corroboration from the statement or evidence of P.W. 15, P.W. 2, P.W. 3. P.W. 4 and other prosecution witnesses. So far A-1 and A-2 are concerned there is tell tale materials establishing their involvement with the offence u/s 366 IPC. So far A-1 is concerned he is also guilty of the offence u/s 376 IPC. So far A-3 and A-4 are concerned, they are not named in the FIR, and their identity was not known to the witness from before as they were referred as unknown persons. No test identification parrade was held to establish their identity. Hence, their acquittal needs no interference. As regards the charge u/s 376/10-9 IPC against A-2 the only evidence is that on being called by A-1 this accused went inside the room and helped A-1 in over powering the protesting girl. The learned trial Judge has acquitted him which also may not be disturbed.

The appeal is partly allowed. The acquittal of A-1 and A-2 u/s 366 IPC and acquittal of A-1 u/s 376 IPC is set aside. A-1 and A-2 are found guilty of offence u/s 366 IPC and they are convicted under the said Section of law. Both the accused persons are sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs. 5,000/- each, in default to further imprisonment for 2 months each. The accused Nongmaithem Madhu Singh is also convicted u/s 376 IPC and sentenced to undergo imprisonment for 5 years and to pay fine of Rs. 5,000/- in default, further imprisonment for one month. Both the sentences will run concurrently. The period undergone by the accused persons as under-trial prisoner shall be set off u/s 428 Code of Criminal Procedure. Accused Nongmaithen Modhu Singh and accused Nongmaithen Herachandra Singh are directed to surrender before the Assistant Sessions Judge, Manipur East forthwith. If the accused persons fail to surrender within 15 days from the date of this order. Assistant Sessions Judge shall take necessary action under the law by issuing warrant of arrest.

Send a copy of this order to Sessions Judge, Manpur East immediately.