JUDGMENT Vinod Prasad, J.
1. Aggrieved by the judgment and order dated 12.10.2000, passed by XII Additional Sessions Judge, Bareilly in S.T. No. 788 of 1995 State v. Amar Singh, acquitting accused respondent Amar Singh of the charge Under Section 376 IPC, the appellant State has appealed to this Court.
2. The prosecution allegations were that on 17.12.1994 at about 3 P.M. Km. Roopwati daughter of the informant Tej Ram s/o Pooran Lai Jatav r/o village Mansoor Ganj, P.S. Shahi, district Bareilly had gone to mow the grass in the field. Then accused Amar Singh came out from behind from his sugar cane field caught hold of her and committed rape on her. When she cried he inserted a cloth in her mouth and ran away. Shanti Devi P.W. 2, wife of Som Pal, the younger brother of informant, was passing through nearby witnessed Amar Singh running away from the place of incident after committing the crime and she brought the victim to her house and informed about the incident to the informant, who brought the victim to the Police Station Shahi 6 km. away from his house and lodged the FIR on 18.12.1994 at 9.15 A.M. The I.O. P.W. 6 Chandra Pal Singh, Inspector was not present at that time. Head Constable Mahendra Pal Singh (not examined by the prosecution as witness) prepared the Chik Ex. Ka 9 and registered the case through GD Ka 10. The Investigating Officer P.W. 6 Chandra Pal Singh after his return to the Police Station started the investigation, recorded the statement of the informant Roopwati P.W. 2 and Shanti Devi P.W. 4. He made the spot inspection (Ex. Ka 5) and also recorded the statements of other persons and then arrested the accused Amar Singh. He also seized the cloth (Salwar) of the victim (Ex. Ka 6) and sent it for Pathological Examination. The Pathological examination report dated 21.2.1995 of the cloth of the victim was Ex. Ka 8, which disclosed that it was stained with human blood and semen.
3. The prosecution to bring home the guilt of the accused examined six witnesses. Out of them P.W. 1 Tej Ram (informant), P.W. 2 Roopwati (victim) and P.W. 4 Smt. Shanti Devi (eye witness) were the witnesses of the fact. P.W. 3 Dr. Smt. Qadri Sultana was lady doctor, who had medically examined the victim on 18.12.1994 and had prepared medical report Ex. Ka 2, P.W. 5 Dr. K.K. Saxena Radiologist, had got the X-Ray of the victim (Ex. Ka 4) done and had given his opinion regarding her age and P.W. 6 Inspector Chandra Pal Singh was the Investigating Officer.
4. The accused under Section 313 Cr. P. C. denied the incriminating circumstances of the prosecution evidence and took the defence that the victim was his childhood friend and because nuptial knot between them was negated by his father, therefore, he had been falsely implicated in the case. In defence he had examined D.W. 1 Rameshwar s/o Nanhey Lal.
5. The trial court after discussing the evidence and by critical appreciation of the same came to the conclusion that the prosecution had failed to bring home the guilt of the accused beyond reasonable doubt and consequently it acquitted the accused respondent of the charge. Hence the appeal.
6. We have heard Sri M.C. Joshi learned AGA on behalf of the appellant State and Dr. Arun Srivastava learned counsel for the accused respondent at a great length.
7. The learned AGA submitted that the impugned order is wholly perverse, against the material on record and bereft of correct reasonings. He submitted that the trial court committed miscarriage of justice by passing the impugned order and the same is liable to be set aside. He contended that the age of the victim was established to be about 15 years and the defence could not show even on preponderance of probability, to the contrary and, therefore, the victim was proved to be a minor on the date of the incident, consequently, her consent for sexual act was immaterial and the trial court committed the error in holding otherwise. He further submitted that the three witnesses of fact, including the victim had fully supported the prosecution case and there is nothing in their testimony, which belies the charge and their statements were reliable, cogent and sufficient to warrant conviction of the respondent. He canvassed that the medical and pathological reports corroborate the prosecution version and, therefore, the appeal deserves to be allowed and accused respondent deserves to be convicted.
8. Learned counsel for the accused respondent, however, submitted that according to the medical report, the age of the victim is 15 years and taking into account the margin of error of two years, in accordance with Modi's Medical Jurisprudence, the victim was above 16 years of age, and was a major. He also argued that there was no mark of injury on her body as she was a consenting party to the sexual act and therefore, no offence of rape was made out against the accused respondent. He further contended that the reasons given by the trial court in disbelieving the prosecution version and acquitting the accused are sound, just and proper, and therefore, should be accepted and the instant appeal, being devoid of merit, is liable to be dismissed.
9. Before adverting to the merits of the matter, let us turn our eyes towards the law. In an appeal against acquittal, the appellate court should be slow in interfering with the findings of acquittal unless and until the findings are perverse, bereft of reasons and are not borne out from the record and the evidence. The appellate court should also meet the reasons given by the trial court for acquitting the accused and unless and until the reasons of acquittal are perverse, which could not be sustained in the eyes of law, the appellate court should not interfere with the findings favourable to the accused. Moreover, if two equally compatible views are possible, one which is favourable to the accused and the other against him, then as a matter of abundant caution, view favouring the accused should be adopted. It is recalled that it is for the prosecution to prove its case to the hilt and bring home the guilt of the accused and this burden never shifts. The accused has got right even to keep silence and any weakness of the defence cannot be utilized by the prosecution to the detriment of the accused. However, this does not mean that the defence of the accused cannot be considered while judging the guilt or innocence of the accused, which can be validly considered to accept or negate the prosecution case. It only means that there should be sufficient prosecution evidence to prove the charge and in that process the defence of the accused can also be looked into. In the back drop of these propositions of law, we have examined the record of the case, and have gone through the evidence ourselves.
10. P.W. 1 Tej Ram, (informant) had deposed that the FIR was written on his oral dictation and had been read over to him and thereafter he had put his thumb impression. He had proved the FIR Ex. Ka 1. He further deposed that the age of his daughter Km. Roopwati (victim) was 15 years at the time of incident. In his cross - examination he had stated that he did not know the Head Constable who had registered the FIR and as he was illiterate he did not remember in which year and month she (the victim) was borne. He further stated that he had gone to Police Station with his daughter and brother Som Pal. He was truthful enough to admit that he had not witnessed the incident himself as he was not present in the village on that day. He further deposed that his field was near the field of accused. He had denied the defence suggestion that the victim was used to sexual intercourse and that the father of the accused had refused the marriage proposal of victim with the accused and for that reason he had falsely implicated him. He categorically denied that the victim was of 18 years of age at the time of the incident.
11. P.W.2 Roopwati, who was the victim and star witness of the prosecution supported the prosecution case and stated that as soon as she reached near the field of the accused on her way to mow the grass, the accused caught hold of her from behind and raped her without her consent in his sugar cane field on the date and time of the incident in the afternoon (Tisra Pahar). She explained that the accused caught hold of her from behind and dragged her in his sugar cane field, threw her at the ground and forcibly opened her Salwar and committed rape on her. When she protested, accused threatened to chop her neck off and he had thrust the cloth in her mouth when she yelled out. She also narrated that her aunt P.W. 4 Shanti Devi had witnessed the incident and had brought her back home. That time her father was not present in the house. She also stated that blood was coming out from her private part and her Salwar was stained with blood. She was candid enough to admit that there was no other injury on her body. She denied the defence suggestion that she was used to sexual intercourse or that she was habitual of masturbation. She stated that she never received any injury on her private part. She saw her aunt after the rape was committed on her. She denied the defence suggestion that she was a childhood friend of the accused and that she was in love with him and her marriage proposal was turned down by the accused's father and for that reason she had falsely implicated him. She denied that her aunt Smt. Shanti Devi got a false report lodged through her father because she disliked her love affair with the accused. She refused the suggestion that she was never subjected to rape by the accused and was deposing against him to obliterate dishonour to her.
12. P.W. 4 Smt. Shanti Devi deposed that after mid day while she was going to her field, she saw the victim crying and accused running away from his sugarcane field. When she reached near the victim, she found her Salwar untied and the victim was sitting on the ground. On being informed by the victim that the accused had committed rape on her, she brought the victim to her house. She further deposed that hexjeth, (the informant) was not present at the house and after his return the next day, he lodged the F.I.R. after being informed about the sexual assault on her daughter. She denied the defence suggestion that she had falsely implicated the accused because of suspicion.
13. Thus, from the evidence of these witnesses, it is borne out that the victim was subjected to rape by the accused and nothing was elicited from their testimony to doubt their statements. P.W.I Tej Ram will be the last person to bring the family prestige to disrepute by false allegation of rape on his own daughter and he had no reason to falsely implicate him. He was ^away from the house and after his return next day he lodged the F.I.R. Tested on social fabric and natural course of human conduct there was no delay in lodging the F.I.R, which is short clear and un-embellished. Nothing could be elicited from the cross - examination of this witness, which could render his evidence unworthy of credence. He is a reliable witness and his testimony corroborates the prosecution version. He had no reason to falsely implicate the accused and to indulge into faux pas and so we find him to be a reliable witness. P.W.2 Kumari Roopwati stood the test of searching cross-examination. The defence failed to discredit her testimony in any manner. No suggestion was given to her that she was major and was a consenting party to carnal knowledge (Rape). She denied the suggestion that she was never raped by the accused. Very queerly, the defence did not challenge her age i.e. 15 years at the time of the incident and no suggestion had been given to her that she was major. In view of this, the defence argument that the victim was a major and a consenting party to rapuit carnaliter cognovit is codswallop. The contention is de-hors the evidence and is liable to be rejected. Her testimony is reliable and acceptable and we hold so.
14. P.W. 4 Smt. Shanti Devi had countenanced the prosecution case further. Nothing had been elicited from her cross-examination too, which could discredit her testimony. She is a married lady having a daughter and will not allow herself to be a party to false allegation of rape on her own unmarried minor niece. The prestige and honour of her family would have been her paramount consideration. She would not make an unfounded allegation of the serious nature of rape involving her own niece. She would have been the last person to depose falsely against the accused respondent. We do not find anything in her testimony, which exonerate the accused from the offence charged and thus we find her also to be a truthful witness.
15. Concludingly there is nothing in the testimony of these witnesses which discredit their truthfumess and consequently we hold that they are truthful and reliable.
16. The evidence of the two doctors who had examined the victim and the pathological examination report Ex. Ka 8 also farthered the prosecution version. According to P.W. 3 Dr. Qadary Sultana the age of the victim was 15 years. However, she was not definite whether the rape was committed on her or not as there was no injury on her body and hymen was old torn but the pathological chemical examination report Ex. Ka 8 cemented this fact in favour of prosecution. Further the defence has not at all challenged the estimation of age of the victim i.e. 15 years by this witness on the basis of x-ray report. No suggestion was made to this witness that from the perusal of the X-Ray and photo-logy report the victim could have been more than 15 years. Dr. K.K. Saxena (Radiologist) P.W. 5 has deposed that x-ray was conducted under his supervision and that the report was prepared by him. The x-ray plate Ex. 1 was also proved by him. In his estimation also, the age of the victim would be around 15 years. The defence made a futile effort to challenge the age of the victim through this Doctor but he gave a margin of only six months either way and negated the difference of two years as suggested by the defence. P.W. 3 and P.W. 5 are expert witnesses and specialist in the field of medical science. They had the opportunity of examining the victim physically as well as clinically. Their opinion was based and supported by their own observations and clinically determined factors. More over, in her examination before the court recorded on 12.10.1999, the victim gave her age as about 20 years. Going six years back to the date of the incident, she must be around 14 or 15 years of age at that time. Further, as per P.W. 1 Tej Ram (father of the victim) also, she was aged about 15 years at the time of the incident. All these factors established her to be a minor and incapable of giving consent and thus throwing the case of the defence overboard. Further, as per pathological report dated 18.2.1995 (Ex. Ka 8) human blood and semen were found present on the Salwar of the victim, which in conjunction with oral evidence conclusively established rape being committed on Km. Roopwati and anointed the accused with offence Under Section 376 IPC.
17. We should point out that the theory of consent of the victim is otherwise also completely exploded because the testimony of P.W. 2 Roopwati is perfectly believable that the accused forcibly committed rape on 7 her.
18. Now adverting to the grounds of acquittal recorded by the trial court, we find that the trial court has acquitted the accused respondent on the basis of minor omissions of insignificant nature, which could not demolish the prosecution case. The reasons given by it are wholly perverse. It held that in the FIR it is not mentioned that the informant was not present at his house and no reason has been disclosed as to why he could not lodge the report on the day of the incident. It further held that P.W. 1 has also not stated as to when he returned to his house and came to know about the incident. It had further held that no injury was found on the body of the victim, though it was stated by her that from the sugar cane leaves there were some abrasions on her back and buttock and blue stains had developed on her legs. It had further held that because the doctor could not give a definite opinion of rape, therefore, the prosecution failed to prove its case and that the prosecution had not been able to explain satisfactorily the distance from the house of the victim to the place of incident. The trial court determined the age of the victim against the oral and unoral evidence. The rulings cited by it are distinguishable on the facts of the present case as the defence itself got the age of the victim cemented below 16 years. Thus the trial court completely misdirected itself and committed miscarriage of justice in holding that the victim was a major capable of giving consent. Suffice it to say that the reasons given by the trial court are not only illogical and perverse but the trial court also completely failed to analyze the case in its correct perspective and its reasons are based on pure conjectures and surmises. The first information report was lodged by a rustic villager who was a labour but had mentioned each and every essential detail in the FIR. The opinion of the doctor and pathologist report Ex. Ka 8 fully supported evidence of victim Roopwati and Smt. Shanti Devi. The victim was an illiterate minor girl and it is puerile to expect every detail from her. Minor contradictions as pointed out by the trial court are of no significance and no value can be attached to them in as they do not dent prosecution version of commission of rape. The present case is such where it can safely be held that the analysis of evidence and reasons of the acquittal recorded by the trial court are wholly V perverse and against the evidence on record and consequently the judgment and order of acquittal, impugned in this appeal, cannot be sustained at all.
19. In the result, the State appeal is allowed. The impugned judgment and order of acquittal dated 12.10.2000 are set aside. Accused respondent Amar Singh is held guilty and is convicted for the offence Under Section 376 IPC. He is sentenced to under go seven years' R.I. He is on bail. C.J.M. Bareilly is directed to get him arrested and sent to Jail to serve out the sentence imposed on him. He shall report compliance within two months.
20. Certify the judgment to the lower court, transmitting the record immediately.