http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10  

PETITIONER: MADAN LAL

       Vs.

RESPONDENT: STATE OF JAMMU AND KASHMIR

DATE OF JUDGMENT:       06/08/1997

BENCH: G. N. RAY, G. B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                        J U D G M E N T PATTANAIK. J.      This appeal  is directed  against the  judgment of  the High Court  of Jammu and Kashmir dated 2.3.1993.  convicting the appellant  under Section  376 read  with 511  I.P.C. and sentencing him to undergo rigorous imprisonment for a period of 5  years and  pay a  fine of  Rs. 2,000/-  in  default  a further simple  imprisonment for  6  months,  after  setting aside the  order of  acquittal passed by the Sessions Judge, Udhampur, in Sessions case No. 12 of 1986.      The appellant who was the Head Master of Middle School, Khun, in  Tehsil Ram  Nagar at  the relevant  point of  time stood charged  for the  offence of  "attempt to commit rape" under Section  376/511 I.P.C. of the prosecutrix Mst. Rajni, a student  of the  same school.    It  was  alleged  by  the prosecution that  on 21.5.1986 at about 9 a.m. the appellant sent the  prosecutrix Mst.  Rajni, PW-18  and two other girl students Mst.  Sunita, PW-1  and Mst.  Krishna, PW-2  to his residence for cooking his meal as the Head Master was living without his family.  The appellant then came home between 10 a.m. and 11 a.m. and on reaching the home directed PWs 1 and 2 to  leave the  house but  detained the  prosecutrix, PW-18 with the  understanding that  she can  leave the  house only after cleaning  the  utensils.    Thereafter  the  appellant forced  the   prosecutrix  for   illicit   intercourse   and ultimately allowed her to go home at 3 p.m.  The prosecutrix reacher her  house but  did not find her mother who returned only in  the evening.  She immediately narrated the incident to her  mother, PW-19, who in turn also informed a friend of her PW-17.   The  father of the prosecutrix was not there at home.   Next  day,  early  morning,  PW-19,  mother  of  the prosecutrix accompanied  by PW-17  and PW-23  gave a written report at  the Police  Post Mahalta  which  was  treated  as F.I.R. in  the Police  Station,  Ramnagar  and  a  case  was registered under  Section 376/342  I.P.C.   The police  then started investigation  and a  charge-sheet was  filed in the Court of Sub Judge, Judicial Magistrate, 1st Class, Ramnagar for the  Commission of  offence under Section 376/511 I.P.C. read with  342.   The accused  denied the  allegations.  The prosecution examined  as many  as 24 witnesses of whom PWs 1

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10  

and 2  were supposed  to have  gone with  prosecutrix to the house of  the Head Master for cooking food but they did not, however, during  trail support  the prosecution  case. PW-3, PW-4 and  PW-5, teachers of the school, also did not support the prosecution during trail inasmuch as they stated that on the relevant date the accused had not left the school during the recess  period and  they were  also declared hostile and were cross-examined  by the  prosecution.  PWs 8,9,10 and 11 are the  students of  the school  where the  prosecutrix was studying and  they also  did not support the prosecution and on  the  other  hand  stated  in  their  evidence  that  the prosecutrix was present in the school through out the day on the date  of occurrence, accordingly they were also declared hostile and  were cross-examined  by the  prosecution. PW-13 and PW-14,  however, two  other students  of the same school who were  studying in  the same  class where the prosecutrix was studying,  supported the  prosecution case to the extent that on  the relevant  date PW-1, PW-2 and PW-18 were absent from the  school after  9 a.m.   PW-15, another classmate of the prosecutrix  did support  the prosecution  case  to  the effect that  PW-1, PW-2  and PW-18 had left the school after the recess  period and  PW-1 and  PW-2 had told her that the Head Master  had sent  them earlier to his house for cooking food for  him.    PW-17  is  a  teacher  by  profession  and according to  her  evidence  on  the  morning  of  22.5.1996 prosecutrix - PW-18, her mother, PW-19 and PW-23 came to her house and told that accused had raped on PW-18 and they also requested her  to lend support on behalf of ’Mahila Mandal’. Thereafter, she  went with  them to  the Police  Station  to lodge the  F.I.R.   The prosecutrix,  PW-18 gave  a detailed account of  what had  happened to  her on the fateful day of 21.5.1986.   PW-19, the  mother of the prosecutrix stated to the effect  that she  came home  late on  21.5.1986 when she found her  daughter Mst.  Rajni in a depressed mood.  Seeing her, Mst.  Ranji Started  weeping.   On being enquired, Mst. Rajni narrated  the incident.   She  also stated  during her evidence that  Mst. Rajni  was examined  by the lady doctor, the said  doctor while  examining her  expressed the opinion that this  is a false case and on this score PW-19 requested the police to get Mst. Rajni medically examined from another doctor but  that request  was not  acceded to.   PW-21 was a Gynecologist in  the District Hospital Udhampur.  On 23.5.86 at 10.30  a.m. on  police  requisition,  she  examined  Mst. Ranji, PW-18,  and found  that secondary sex characters were not well  developed on  her body.   She  had also  taken the vaginal smear  and sent  for chemical examination and opined that no  definite  opinion  could  be  given  regarding  the attempt of  sexual intercourse.   She had also stated in her evidence that  the hymen of the prosecutrix was intact and a small penetration  in case  of a  girl of 13 years old could rupture as  well  as  injure  the  hymen.    PW-22  was  the investigating officer  and PW-23  was the other lady who had accompanied the  prosecutrix and  her mother  to the  Police Station on 22.5.1986.      The  learned   Sessions  Judge   on  scrutiny   of  the prosecution evidence  came to  the conclusion  that the case hinges on the sole testimony of prosecutrix, PW-18.  He also came to  the conclusion that the prosecutrix and PWs 1 and 2 were absent from the school on the relevant day after 9 a.m. which could  have been  a corroborating circumstance has not been established.   The  learned Sessions  Judge also  found that even  assuming that  PW 18 and PWs 1 and 2 had absented themselves from the school on the relevant day after 9 a.m., the   said   circumstance   cannot   be   an   incriminating circumstance against  the accused with the commission of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10  

crime.  The learned Sessions Judge relying upon the evidence of the  3 school teachers, PWs 3, 4 and 20 came to hold that accused was absent from the school after 9 a.m. has also not been established.   On consideration of the medical evidence of the Doctor PW-21, the learned Sessions Judge came to hold that the  medical evidence instead of lending support to the prosecution  story   has  shaken   the  credibility  of  the prosecution version.  So far as the presence of semen on the salwar of  the prosecutrix,  the learned  Sessions Judge did not attach  any importance since the same was seized only on 24.5.86 and  there is no explanation for the delayed seizure of the  salwar in  question.   The evidence of the mother of the prosecutrix,  PW-19 as well s those of PWs 17 and 23 who had accompanied the prosecutrix to the Police Station on the morning hours  of 22.5.86  have been  brushed aside  on  the ground of  animosity  and  partisan  character  of  the  two members of  the Mahila Samiti Mandal namely PW-17 and PW-23. So far  as  the  evidence  of  the  prosecutrix  herself  is concerned the learned Sessions Judge was of the opinion that she had  been contradicted  in material  particulars by  the medical evidence  of Dr. Vijay Sharma, PW-21 and further she has attempted  to improve her version in the court regarding the commission  of rape  which  she  had  not  stated  under Section 161  Cr. P.C.   The learned Sessions Judge found out some contradictions  between her  statement  to  the  police under Section  161 Cr.  P. C.  and ultimately  came  to  the conclusion that  the statement  of the  prosecutrix does not inspire any confidence and the said statement is unworthy of acceptance.   With these findings the learned Sessions Judge acquitted the accused of the charge leveled against him.      On an  appeal being  carried by  the State  against the said order  of acquittal,  the Division  Bench of  the  High Court  by  the  impugned  judgment  reversed  the  order  of acquittal and  came to  hold that  the  charge  against  the accused under  Section 376  read with  511 I.P.C.  has  been proved beyond  reasonable doubt  and accordingly the accused has been  convicted thereunder  and has  been  sentenced  to undergo rigorous imprisonment for a period of 5 years with a fine of  Rs. 2,000/-,  in default,  a further  period  of  6 months imprisonment as already stated.  In setting aside the order of  acquittal the  High Court  came to  the conclusion that the entire approach of the trail court in the matter of appreciation of  evidence lacked  of objectivity.  The  High Court on  scrutiny of  evidence apart  from relying  on  the testimony of  the prosecutrix,  PW-18 came  to hold that the fact that the prosecutrix narrated the story of the incident to her  mother immediately  when the mother was available in the evening;  and that  the Salwar  of the prosecutrix which she was  wearing at the time of occurrence was seized and on chemical analysis  as found  to be carrying stains of semen; and further that the prosecutrix as well as the accused were not seen  in the  school after  the recess,  corroborate the prosecutrix’s statement  and makes  her statement acceptable and believable.   So  far as  the conclusion  of the learned Sessions Judge  on the  medical evidence  of Doctor PW-19 is concerned the  High Court  observed that  the Sessions Judge committed a  serious error  in not focusing his attention to the fact that the accused was facing a trial for the offence of "attempt  to commit  rape" and  not for  the  offence  of "rape", and  therefore, the  medical evidence  has not  been appreciated in  the  context  of  the  plain  statement  and language of  the prosecutrix herself.  The learned Judges of the High  "Court also  took into account the fact that there was  absolutely   no  animus  between  the  prosecutrix  and accused-respondent.   So far  as the evidence of prosecutrix

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10  

herself is  concerned the  High Court after scrutinizing the same came  to hold that the statement of the prosecutrix was so convincing  that it  did not  require  any  corroboration though as  a fact  there are sufficient circumstances proved in the  case which  fully corroborate  the  version  of  the prosecutrix.  The High Court also commented on the fact that the Sessions  Judge took  refuse on minor discrepancies here and there  in the  evidence of  the prosecutrix  and thereby landed  into  an  error  by  misappreciating  the  evidence. Ultimately the High Court convicted the appellant as already stated, and thus the present appeal has been preferred.      Mr. Jain,  the learned senior counsel appearing for the appellant  contended   that  the   High  Court   was   fully unjustified in interfering with an order of acquittal passed by the  learned Sessions  Judge by reappreciating the entire evidence not  bearing in  mind the  principle that  the view taken by  the Sessions  Judge is  a reasonable  view on  the materials on  record and  as such  should not  be interfered with. Mr.  Jain further  contended that  the evidence of the prosecutrix which  apparently is  the sole evidence on which the  conviction   has  been   based   bristles   with   such inconsistencies  and   inherent  improbabilities   that  the prosecutrix can  be held  to be  a wholly unreliable witness and as such no credence can be given to her statement and no conviction can be based on her testimony.  With reference to the medical  evidence, Mr. Jain, contended that the findings of the  doctor that  hymen was  intact and there has been no rupture or  any injury  to the  hymen, wholly improbabilises the  version   of  the  prosecutrix  that  the  accused  had committed rape  on her on two occasions and there has been a penetration of  the private part of the accused to an extent of quarter  of an  inch on  one occasion and one inch on the other occasion.   Mr.  Jain, the learned senior counsel also urged that  the presence  of semen  on  the  salwar  of  the prosecutrix cannot  be said  to be an incriminating piece of evidence until  and unless  it is established that the semen is that  of the accused.  That apart the seizure of the said salwar two  days after  the occurrence  and absence  of  any explanation for such delayed seizure creates  ample doubt in the prosecution  case. Mr.  Jain also  vehemently  contended that the  evidence of  the prosecutrix as well as her mother should be  weighed from  the admitted  animosity between the accused and  PWs 17  and 23,  the two  Mahila Samiti  Mandal members who  were bent upon teaching a lesson to the accused for some  of  their  grievances.    According  to  Mr.  Jain conviction of  the appellant, on account of such infirmities in  the  prosecution  case  and  on  account  of  unreliable evidence of the prosecutrix, is wholly unsustainable, though on a  question of  law there  cannot be any dispute with the proposition  that   conviction   can   be   based   on   the uncorroborated testimony  of the  prosecutrix  provided  the prosecutrix can be held to be reliable.      The learned  counsel appearing  for  the  respondent  - State on  the other  hand contended that the evidence of the prosecutrix has  to be  appreciated bearing  in mind  that a young girl has been molested and subjected to sexual assault by her own Head Master.  Her evidence narrating the incident has  to   be  appreciated   from  the  stand-point  that  an inexperienced  young   girl  is   making  her  statement  of commission of rape not being aware of the ingredients of the offence of  rape.   According to  the  learned  counsel  the evidence  of   the  said   prosecutrix  has   been  properly appreciated by the High Court and the High Court has pointed out the  basic erroneous  approach committed  by the learned Sessions Judge and the conviction based on her evidence goes

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10  

not call  for any  interference by this Court.  According to the learned  counsel in the absence of any animosity between the prosecutrix  and the  accused it  is unimaginable that a young  girl  would  subject  herself  to  the  ignoring  and embarrassment in  the society by making an allegation to the fact that  her own  Head Master  attempted to commit rape on her.   According to  the learned  counsel a plain reading of her evidence  would unequivocally indicate that the girl has narrated the  incident truthfully  and the  so called  minor discrepancies here  and there  cannot  be  held  to  be  any material contradiction in her statement so as not to rely on the  same.     The   counsel  further   contended  that  the circumstances  as   found  by  the  High  Court  have  fully corroborate the  evidence of the prosecutrix and establishes the truthfulness of the prosecutrix’s version.      In view  of the  rival  submissions  at  the  Bar,  the questions arise for our consideration are; 1)   Whether in  the facts and circumstances of the case the High Court  was justified  in interfering  with an  order of acquittal passed by the learned Sessions Judge?: 2)   Whether the  evidence of  the prosecutrix can be safely relied upon?: and 3)   Whether any  other  circumstances  found  in  the  case corroborate the version of the prosecutrix?      Coming to  the first question it may be stated that the power of  the appellate court in an appeal against acquittal has been discussed in a catena of cases by this Court and it has been  indicated that  there is no limitation on the part of the  appellate court to review the evidence upon which an order of  acquittal is  founded.   The different expressions used in different judgments of this Court to the effect that there must  be "sufficient  and compelling reasons" or "good and sufficiently  cogent reasons" for the appellate court to alter an  order of  acquittal to  one of  conviction, by  no manner curtail  the power of an appellate court in an appeal against acquittal  to review the entire evidence and come to its conclusion.  But in doing so that appellate court should consider every matter on record and the reasons given by the trial court  in support  of the  order of  acquittal.    The essence of  several decisions of this Court is the rule that in deciding  appeals against  acquittal the  court of appeal must examine  the evidence  in a  particular case: must also examine the  reasons on  which the  order of  acquittal  was based: and   should  interfere on  being satisfied  that the view taken  by the  acquiring judge is unreasonable.  If two views are  possible on  a set of evidence then the appellate court need  not substitute its own view in preference to the view of  the trial  court  who  has  recorded  an  order  of acquittal.   In other  words, if  an order  of acquittal  is based on  proper appreciation  of  evidence  then  the  same cannot be  reversed.  But when the acquittal by the Sessions Judge is found to be against the evidence or in disregard of the evidence  or in  violation of  the principle  f criminal justice then  the appellate court will be fully justified in interfering with  an order of acquittal since it is the duty of  the  court  to  convict  a  person  when  the  guilt  is established beyond  reasonable doubt.  If the Sessions Judge acquits an  accused by  giving  undue  importance  to  minor discrepancies and  making a  suspicion on  evidence based on conjectures then  the High  Court will be fully justified in interfering with  the order  of acquittal.  But all the same while reversing  an order  of acquittal  the High Court must give sufficient grounds for holding that the appreciation of evidence by  the trial  court is  unsupportable.   The  High Court must  consider the reasons advanced by the trial Judge

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10  

in recording  the order  of  acquittal  and  indicate  while reversing the  same the  grounds of  reversal.  If, however, the appellate  court finds the conclusions established at by the lower court are based on evidence and are plausible then it will  not  substitute  its  views  on  the  evidence  and interfere with  an order  of acquittal.  It is in this sense the expressions  "substantial  and  compelling  reasons"  or "good and  sufficiently cogent  reasons" used  by this Court while dealing  with the  power  of  an  appellate  court  to interfere with  an order  of acquittal has to be understood. This Court  in the  case of  State of U.P. Vs. Krishna Gopal and Anr.  1988 (4)  SCC 302  observed  that  the  principles relating to  limitations of the appellate court in an appeal against acquittal  do not  detract from the plenitude of the power of  the appellate court to review and reappreciate the evidence if  the order  of acquittal  on  a  review  of  the evidence is  found to  be grossly erroneous.  There is, thus no immunity  to an  erroneous order  from a strict appellate scrutiny but it must record reasons in support.  To the same effect also  is the observations of this Court in Hari Chand Vs. State  of Delhi  (1996) 9 SCC 112. Betal Singh Vs. State of M.P.  (1996) 8  SCC 205  and Tallurri  Venkaiah Naidu Vs. Public Prosecutor,  High Court of A.P. (1996) 11 SCC 355. It is not necessary to multiply authorities and the question no longer remains  res integra.   Bearing in mind the aforesaid principal it would be necessary to examine the reasons which weighted  with  the  learned  Sessions  Judge  to  order  an acquittal and the reasons which weighted with the High Court in reversing  the said  order of  acquittal.    The  learned Sessions Judge  came to  the conclusion  that  there  is  no cogent evidence  to establish  that the accused had sent the prosecutrix. PW-18 and two other classmates PW-1 and PW-2 to his  house  for  cooking  the  meal  and  the  two  material witnesses namely  PW-1 and  PW-2 not  having  supported  the prosecution  case   in  this  regard  the  evidence  of  the prosecutrix in  that respect is not believable.  The learned Sessions Judge  also came  to the conclusion that though the fact  that   prosecutrix  and  PWs  1  and  2  had  absented themselves from the school from 9 am. on the relevant day is established but the same cannot be an incriminating evidence against the  accused. So  far as  the absence of the accused from the  school after the recess is concerned, relying upon the evidence  of PWs  3. 4   and  20  who  were  the  school teachers, the  learned Sessions  Judge came to hold that the accused was present in the school till 1 p.m.  So far as the contemporaneous  evidence   of  the   mother  to   whom  the prosecutrix narrated  the  incident  immediately  after  the mother reached  home, the  learned Sessions  Judge  has  not given  any   weight  as  according  to  him  she  was  fully influenced by  PWs 17 and 23 who had an axe to grind against the accused.   On  the evidence of Doctor, PW-21 the learned Sessions Judge  came to  the  conclusion  that  the  medical evidence has  shaken  the  credibility  of  the  prosecutrix version.   On the  question of  seizure  of  salvar  of  the prosecutrix and  the presence  of  semen  on  the  same  the learned Sessions  Judge is  of the  opinion that since semen found thereon  has not  been established  to be  that of the accused the  same cannot  be held  to  be  an  incriminating evidence and  finally the  evidence of  the prosecutrix  has been held  to be  unworthy of acceptance because the same is found to  be  replete  with  infirmities,  improvements  and contradictions and  found to  be contradicted by the medical evidence itself.   It  is son  these reasoning  the  learned Sessions Judge  recorded  the  order  of  acquittal  of  the accused.   The High  Court, however,  on re-appreciating the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10  

evidence came  to  hold  that  the  basic  approach  of  the Sessions Judge  was erroneous inasmuch as the charge was not for "commission  of offence of rape" but for the "commission of offence  of attempt to commit rape".  The High Court also considered  the  circumstances  proved  by  the  prosecution evidence and  came to  hold that  those circumstances proved sufficiently and  corroborates the  story of the prosecutrix and makes  the statement of the prosecutrix believable.  The said circumstances  enumerated by  the  High  Court  in  its judgment are: the absence of the prosecutrix and PWs 1 and 2 as well as the accused from the school after the recess; the presence of  semen on  the  salwar  of  the  prosecutrix  as reported by  the Chemical Examiner o analysis; the statement of the  prosecutrix to  her mother  when her  mother reached home in  the evening;  and the  total misappreciation of the medical evidence  by the  Sessions Judge.   One  of the main reasons that  had  influenced  the  Sessions  Judge  is  the finding of  the doctor  on examining  the  prosecutrix  that there has  been no  rupture of hymen and as such the offence of rape  could not  be said  to have  been established.  The High Court  on reading  the evidence  of the prosecutrix has come to  the finding  that the  prosecutrix’s  evidence  was cogent  clear   to  the   effect  that  there  has  been  no penetration of  the organ  of the accused into the vagina of the prosecutrix  and on  the other  hand the  accused merely rubbed his  digital organ  as a  result of  which there  was discharge of  hot white  liquid substance  which fell on the things of  the prosecutrix.   We  would examine  in  greater detail the  evidence of  the  prosecutrix  and  the  medical evidence later  but on  going through the reasoning advanced by the High Court for interfering with an order of acquittal passed  by   the  learned  Sessions  Judge  we  are  of  the considered opinion  that the  High Court  cannot be  said to have exceeded  the parameters indicated in several judgments of this Court for interference with an order of acquittal.      It will  be appropriate  at this  stage to bear in mind that in  assessing the  testimonial potency  of the victim’s version, the  human psychology  and behavioural  probability must be  looked into.   The  inherent  bashfulness  and  the feminine tendency to conceal the outrage of masculine sexual aggression are  factors which  are relevant to improbabilise the hypothesis  of false implication (See (1980) 3 SCC 159). In the  case in  hand a  young girl  was subjected to sexual harassment by  her own  Head Master  inside a  close room of that Head  Master and  One can well imagine her trauma after being subjected  to such  sexual harassment.   It is in this context it  would be  appropriate to extract a sentence from the judgment  of this  court in  Krishan Lal  Vs.  State  of Haryana (1980)  3 SCC  159 "a socially sensitized judge is a better statutory  armour against  gender outrage  than  long clauses of  a complex  section with all the protections writ into it".   It  must be  remembered that  no woman of honour will accuse  another of committing rape since she sacrifices thereby what  is dearest to her.  It has to be borne in mind that the  learned Sessions  Judge discarded  the evidence of the mother  of the  prosecutrix on  the ground  that she was influenced by  PWs 17 and 23 who had an axe to grind against the accused.   It is indeed unthinkable that the mother just to oblige  her friends ’like PWs 17 and 23 would make serous allegations of  sexual assault  by the  accused against  her daughter.   In our  considered opinion,  therefore, the High Court on  review of  the evidence on record and on examining the  reasons   given  by  the  learned  Sessions  Judge  for according an  order of  acquittal  was  fully  justified  in interfering with the said order of acquittal.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10  

    The next  question that would crop up for consideration is whether  the evidence  of the  prosecutrix can  be relied upon?   The entire  argument or Mr. Jain, the learned senior counsel  appearing   for   the   appellant   is   that   the prosecutrix’s evidence  is wholly  belied by the evidence of the Doctor,  and therefore,  she must be held to be a wholly unbelievable  witness   and  consequently  no  part  of  her statement can  be acted upon.  Learned counsel for the State on the  other hand submitted that reading of the prosecutrix evidence would  indicate that  she has  narrated the  entire incident truthfully  and cogently  to her  mother and if any part of  her statement  in the course of narration is belied by the  medical evidence  the said  part can be ignored from consideration.   The  entire  argument  centres  around  her statement in the cross-examination to the effect "first time when the  accused entered his penis into her vagina, it went inside about  one inch.   So much, the witness exhibited her finger which  comes to  some quarter  of inch.   The accused continued thrusting  his penis some time into her vagina and some time  pulled it  out.   When the  accused after  having stood up  his penis  again started  rubbing it  against  her vagina, which  he conducted about two minutes, even then the penis might have gone in about quarter to inch,"  The Doctor who examined  the prosecutrix on 23.5.86 at 10.30 am. stated that there  was no  mark of  violence n any part of the body and on local examination there is no mark of violence on her private parts  like vagina,  the hymen  was  intact  and  on examination of  vaginal smear  no living  or dead  spurm was found on  the  slide  and  accordingly  she  opined  tat  no definite opinion  could be  given regarding  the attempt  to sexual intercourse.   Mr.  Jain’s contention  is that if the prosecutrix’s statement is that there has been a penetration into the  vagina to  a depth  of quarter  of one inch or one inch and  the prosecutrix being a young girl of 13 years the hymen could  not have  been intact and thus the entire story given by  the prosecution  is unbelievable.  We do not think that the prosecutrix evidence can be examined by picking one sentence in the cross-examination to find out whether she is a truthful  witness or  not.   Since the  order of acquittal passed by  the Sessions Judge has been set aside by the High Court and  the accused has been convicted, we have ourselves carefully  gone   through  the   entire  evidence   of   the prosecutrix.   The prosecutrix  in no  uncertain terms while narrating the  act of  sexual assault on her by the accused, has stated "the accused forcibly laid her on the blanket and the accused  forcibly opened the cord of her salvar and kept it apart and asked her to keep quite, he has permission from her mother  Bholi.  The accused forcibly ride upon her.  The accused had  caught hold  her head  with one hand and closed her mouth  with other  hand.  The accused had kept his penis qua her  uterus and  was doing  some thing,  The accused was trying to  penetrate his  penis into  her uterus, but it did not penetrate.   The  accused had gripped his penis with his hand and was rubbing it against her uterus.  He was doing so by jumping."   Even in the cross-examination just before her statement on  which Mr.  Jain had  relied it was stated "the accused thereafter  stood up.  He gripped his penis and then rubbed qua her uterus.  On this second turn he conducted the said art in well-night two minutes, and then some thing like hot water  oozed out  from his  penis".  It is thus apparent from the entire reading of the prosecutrix evidence that the accused had  rubbed his penis with vagina of the prosecutrix and tried  to penetrate but could not succeed in penetrating and ultimately got himself discharged and the hot semen fell on the thighs of the prosecutrix.  The statement made by the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10  

prosecutrix on  which Mr.  Jain relied  upon might have been made on  account of  the inexperience  of the young girl who was being  subjected to sexual harassment for the first time and the  same cannot be read in isolation bereft of what she stated just  previous to  the aforesaid  statement.   Having given our  anxious consideration  and having scrutinized the evidence of  the prosecutrix  we are  in agreement  with the High Court  that her  evidence is  that of truthful witness, which gives  an account  of the  incident that happened to a rustic  girl  who  was  traumatized  on  account  of  sexual harassment meted  out to  her by  none other  her own school Head Master.  Her evidence can be unhesitatingly accepted by court and  has rightly  been accepted  by the High Court for sustaining a  conviction for  the charge  under  attempt  to commit rape.      In this  context it s appropriate to notice an argument advanced by  Mr. Jain,  learned senior counsel appearing for the appellant  to the  effect that  in the  absence  of  any penetration into  the vagina  the offence  of rape cannot be said to have been established and it will not be possible to hold that  the accused  had attempted  to commit rape on the prosecutrix, and  therefore, it  would at the most amount to an offence  of indecent assault under Section 354 I.P.C.  We are unable  to  accept  this  contention.    Since,  if  the evidence of  the prosecutriy  is to  be believed,  and we do believe the  same, the  offence committed cannot but be held to be  one of  attempt to  commit rape.   The  prosecutrix’s evidence clearly  establishes  the  fact  that  the  accused spread the blanket on the floor and forcibly laid her on the blanket and  thereupon the  said accused forcibly opened the cord of  the salvar of the prosecutrix and kept it apart and then forcibly ride upon her and on that point of time caught hold of her head with one hand and closed her mouth with the other and  had kept  his penis  qua her uterus and was doing some thing  and then the accused was trying to penetrate his penis but  it did  not penetrate  and had  gripped his penis with his hand and was rubbing it against her uterus which he was doing by jumping.      The difference  between preparation  and an  attempt to commit an  offence consists chiefly in the greater degree of determination and  what is necessary to prove for an offence of an  attempt to commit rape has been committed is that the accused has  gone beyond  the stage  of preparation.   If an accused strips  a girl naked and then making her flat on the ground undresses  himself and then forcibly rubs his erected penis on the private part of the girl but fails to penetrate the same  into Vagina and on such rubbing ejaculates himself then it  is difficult  for us  to hold that it was a case of merely assault  under Section  354 I.P.C. and not an attempt to commit  rape under  Section 376  read with 511 I.P.C.  In the facts  and circumstances of the present case the offence of an  attempt to  commit rape  by accused  has been clearly established and  the High  Court rightly convicted him under Section 376 read with 511 I.P.C.      Apart from  the trustworthy evidence of the prosecutrix herself we  also find  several circumstances as found by the High Court  which corroborates  the prosecutrix evidence and makes her statement wholly reliable.  Though PWs 1 and 2 did not  support  the  prosecution  and  therefore  were  cross- examined by  the prosecution  but Ms.  Shobha Rani,  another classmate of  the prosecutrix  clearly deposed that Krishan, PW-2 came  and called  Sunita. PW-1 on behalf of the accused for cooking  meal at  the residence  of Head Master and even thereafter a  teacher namely,  Sagar Singh  informed  Sunita that she was wanted by the accused.  She further stated that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10  

the accused  as well as the prosecutrix were absent from the school even  till when  she left  at 1  p.m.   The so-called teacher  of  the  school  on  whose  testimony  the  learned Sessions Judge heavily relied upon only have stated that the accused was  present in the school till 1 p.m. but according to the  prosecutrix she  was confined  to the  house of  the accuse till  3 p.m.  and was  subjected to sexual harassment and thus  the evidence  of  the  prosecutrix  does  not  run counter  to   the  evidence   of  the   so-called   teachers of the  school who  had narrated that the accused was in the school till  1 p.m.   That  apart the High Court has rightly relied upon  the evidence of several other classmates of the prosecutrix like Mst. Rajni D/o Om Prakash, Pooran Chand S/o Nanak Chand,  Manzoor Ahmad S/o Hafiz Ahmad and Somavani D/o Kaku who  unequivocally stated  that on  the  relevant  date after 9  am. the  prosecutrix as  well as  the accused  were absent from the school.  This lends credence to the story of the prosecutrix  that she  was sent  to  the  house  of  the accused for  cooking and  thereafter the accused came to the house  and   committed  the  sexual  assault.    This  would undoubtedly be  a corroborating  piece of evidence which the High Court  has rightly  relied upon.  Then again the salwar of the  prosecutrix was  seized and  had been  sent  to  the Chemical Examiner  for chemical  analysis and the Scientific Officer  of   the  Jammu   and  Kashmir,   Forensic  Science Laboratory after  examining the  said salwar  reported  that chemical and  microscopical tests  revealed the  presence of semen/Human Spermatozoa  on the said salwar.  This is also a strong corroborative  piece of  evidence to  the prosecutrix version even  if it  has not been established that the Human Spermatozoa is  that of  the accused.   the statement of the mother of the prosecutrix to the effect that the prosecutrix narrated the  entire episode immediately when she arrived at home can  also be  held  to  be  a  corroborative  piece  of evidence which  the learned  Sessions  Judge  excluded  from consideration and in our view erroneously.      In this  view of  the matter it must be held that apart from the reliable testimony of the prosecutrix herself there has been  sufficient corroborative  pieces  of  evidence  on which he  High Court  has relied  upon in  setting side  the order of acquittal passed by the learned Sessions Judge.  In our view  on  the  evidence  on  record  the  conclusion  is irresistible that the prosecution has been able to establish the charge  of attempt  to commit rape beyond all reasonable doubts and  consequently the  conviction and sentence passed by the  High Court does not require any interference by this Court.      This appeal  is accordingly  dismissed.   The bail bond stands cancelled  and the  accused is  directed to surrender for serving  the balance  period of  sentence failing  which appropriate steps be taken for arresting the accused and put him into custody for serving the sentence.