<p>                                                                [REPORTABLE]</p> <p>                        IN THE SUPREME COURT OF INDIA<br />                        CRIMINAL APPELLATE JURISDICTION<br />                       CRIMINAL APPEAL NO. 1767 OF 2011</p> <p>RAJA AND OTHERS                        …APPELLANTS<br />                                    VERSUS</p> <p>STATE OF KARNATAKA                                 …RESPONDENT</p> <p><br />                               J U D G E M E N T</p> <p>AMITAVA ROY, J.</p> <p><br /> 1 Distressed by the reversal  of  their  acquittal  from  the  charge  under<br /> Sections 366/376(g)/392 read with Section 34 IPC, as recorded by  the  trial<br /> court, the appellants have impeached the impugned  judgement  and  order  of<br /> their conviction rendered by the High Court in the State appeal.</p> <p><br /> 2.          We have  heard  Mr.  Basava  Prabhu  S.  Patil,  learned  senior<br /> counsel for the appellants and Mr. Joseph Aristotle S, learned  counsel  for<br /> the respondent-State.</p> <p><br /> 3.          The prosecution was  set  rolling  by  an  oral  report  by  the<br /> prosecutrix with the Sampangiramanagara  Police Station  between  2.00  A.M.<br /> and 3.00 A.M. of 11.10.1997, which was in Tamil language and was  translated<br /> and recorded by S. Shiva Lingaia, ASI,  whereafter  a  case  was  registered<br /> under Sections 366, 376(g), 392 r/w 34 IPC.</p> <p><br /> 4.          The prosecutrix revealed that  she  was  a  resident  of  No.81,<br /> Jasari Kaleeli,  Rustum  ji  Compound,  Richmond  Road,  Bangalore  and  was<br /> earning her livelihood by rendering  services as a  maid  in  the  house  of<br /> Shilpa Shetty at Shanti Nagar, Bangalore.  According to her, because of  the<br /> ill-treatment of her husband, she shifted to Bangalore about 8 months  prior<br /> to the incident by separating from him.</p> <p><br />             She alleged that at about 7.30 P.M.  in  the  previous  evening,<br /> while she was coming back from work and was at the Richmond  Park,  an  auto<br /> rickshaw ,with two persons  in it including the driver stopped by  her  side<br /> and  she  was  pulled  inside.  According  to  her,  after  travelling  some<br /> distance,  two  other  persons  also  got  into  the  auto  rickshaw.    The<br /> miscreants then blindfolded her, by her chudidar cloth and took  her  to  an<br /> auto garage where there was no  light.   The  prosecutrix  stated  that  the<br /> abductors lit a candle, spread 2 seats of the auto rickshaw on  the  ground,<br /> laid her forcibly thereon and in spite of  her  resistance  and  objections,<br /> forcibly undressed her and raped her by turn.  She disclosed that 3  of  the<br /> four persons ravished her. Out of them, two committed the act twice and  the<br /> third only once.</p> <p><br />             The prosecutrix further stated that one of the  persons  brought<br /> dosa and idli and also offered the same to her,  whereafter  they  tried  to<br /> repeat the same act, to which she protested for which  she  was  kicked  and<br /> fisted and further they snatched her  Tali  (mangalsootre)  gold  ear-studs.<br /> They then made her to wear her clothes, brought her in the auto rickshaw  to<br /> a vacant place and discarded her.  According to her, these  violators   were<br /> addressing each other as Raju, Venu, Parkash and Francis  and  claimed  that<br /> she could identify them, if produced.  Investigation  followed  and  in  the<br /> course thereof, the appellants were apprehended.  The fourth person  Francis<br /> could not be nabbed as he  absconded.   As  a  matter  of  fact,  after  the<br /> submission of  the  charge-sheet  against  the  appellants,  the  trial  was<br /> conducted by segregating the absconding accused.  They   denied  the  charge<br /> under the above provisions of law.</p> <p><br /> 5.               At the trial, the prosecution  examined  11  witnesses  and<br /> also marked several documents and exhibited material objects  seized  during<br /> the investigation. The appellants rendered their  statements  under  Section<br /> 313 Cr.P.C. reiterating their innocence and also  examined  one  witness  in<br /> defence.  The trial court, to reiterate, acquitted  the  appellants  of  the<br /> charges levelled against them.  The High Court by the impugned decision  has<br /> reversed the  acquittal  and  the  appellants  thus  stand  convicted  under<br /> Sections 376(g) and 392 IPC r/w 34 IPC and have  been  sentenced  to  suffer<br /> rigorous imprisonment for 10 years.</p> <p><br /> 6.          The instant adjudication being one  to examine   the  tenability<br /> of the conviction of the appellants on the reversal of their  acquittal,  an<br /> independent assessment of the evidence on record  is  indispensable  in  the<br /> interest of justice, two courts of facts having arrived  at   irreconcilable<br /> conclusions on the same materials on records.  It would thus  be  expedient,<br /> to analyse the evidence, oral and documentary before adverting to the  rival<br /> arguments  based thereon.</p> <p><br /> 7.          PW1, the prosecutrix on oath stated that she has a female  child<br /> through her husband who lived separately with another lady and she  and  her<br /> daughter lived in the compound of PW2 Geeta.  She deposed that she had  been<br /> working in the house of Shilpa Shetty for the  last  three  years  and  that<br /> even prior to the incident, the  appellants  used  to  tease  her  and  pass<br /> remarks on the way.  She stated that in the  evening  of  the  date  of  the<br /> incident along with the appellants,  another person  had  boarded  the  auto<br /> and that the two persons sitting on her sides  were  appellants  Venu  Gopal<br /> and Parkash. She testified that she also did peep out of the  auto  thinking<br /> that someone would save her, for which the person  with  the  beard  in  the<br /> auto slapped her and therefore she felt  frightened  and  sat  behind.   She<br /> stated that the  abductors  then  blindfolded  her  with  her  own  dupatta,<br /> molested her inside the auto and ultimately took her to an auto  garage  and<br /> in spite of her objections, raped her one by one.   According  to  her,  she<br /> was raped by Venu Gopal, Parash and the bearded person in that order.</p> <p><br />             In her deposition, however she stated that appellant  Raja  also<br /> assaulted her and had forcible intercourse with her.   She  reiterated  that<br /> the violators then brought dosa and idlis  and  also  offered  some  to  her<br /> which she on being  assaulted, did eat.  In a departure from  her  FIR,  the<br /> prosecutrix deposed that thereafter all the four performed  one  more  round<br /> of intercourse by turn.  Thereafter according to  her,  the  bearded  person<br /> snatched her Tali (mangalsootre) and the other, her  ear  studs.   They  did<br /> assault her by kicks and thereafter by making her  wear  her  clothes,  took<br /> her in the same auto and left her near a bridge.  She complained  of  having<br /> sustained injuries on her thighs.</p> <p><br />             She stated that thereafter she took water  from  a  person  near<br /> the garage road and ascertained from him the area where  she  was  situated.<br /> According to her, from the location of the place, she could  understand  the<br /> site of the garage and on reaching there,  she  saw  broken  pieces  of  her<br /> glass bangles and also the litter and left overs of the food  taken  in  the<br /> garage and could convincingly identify the place.  She deposed further  that<br /> at that time, a man came in a  bicycle  to  whom  she  narrated  the  entire<br /> incident, who asked her to wait and went to the Hoysala  Police  Station  to<br /> report, whereafter the police did come, inspect the place as  shown  by  her<br /> and took her to the Sampangiramanagara P.S. past  midnight  where  she  made<br /> her verbal complaint which was reduced into writing and she  put  her  thumb<br /> impression thereon.</p> <p><br />             The prosecutrix  proved the complaint/FIR as Ex.  P1.  According<br /> to her, in the next morning at 6 A.M., the appellants  were brought  to  the<br /> police station.   She admitted to have been taken to the Vanivilas  Hospital<br /> where she was  medically  examined.  She  also  identified  the  ear  studs,<br /> material Ex. 1 and also her inner-wear material Ex. 2 and  broken pieces  of<br /> glass bangles material Ex  3.   She  also  stated  to  have  identified  the<br /> appellants in the test identification parade conducted in the central  jail.<br /> She also identified the seats of the auto rickshaw as  material  Ex  P4  and<br /> P5.</p> <p><br />             In her cross-examination, the prosecutrix admitted that she  was<br /> not married and that she had come to Bangalore with Saravana  whom  she  had<br /> referred to in her examination-in-chief, as her husband.   She  stated  that<br /> she lived with Saravana for three years in Bangalore and that they  used  to<br /> earn their living as labourers.  She  stated  that  Saravana  deserted  her,<br /> following frequent quarrels with her, whereafter PW2  Geeta   gave  her  and<br /> her daughter, shelter.  She testified that she used to earn Rs. 700 p.m.  by<br /> working in the house of Shilpa Shetty  and  that   there  was  none  in  the<br /> family or in her village  to  support her  financially.  She  admitted  that<br /> from one week prior  to the incident, the appellants  used to tease her  and<br /> that from then she knew them.  She admitted that the  road  from  which  she<br /> was abducted was a public thorough fare but  asserted  that  she  could  not<br /> scream as she was gagged.  She admitted that though the auto travelled   for<br /> 10 minutes thereafter, she did not try to get down as she was scared of  her<br /> abductors.  She further disclosed that the appellants used to speak  to  her<br /> from 2/3 days prior to the incident.</p> <p><br />             According to her, while she was near Fatima  Bakery,  which  was<br /> opposite to Johnson market, she was taken inside the auto. She admitted   to<br /> have known the accused Francis then.  She claimed to  have   identified  two<br /> persons in the   auto rickshaw when she was first  picked up from  the  road<br /> as   appellants  Parkash  and  Francis.   She  admitted  that  none  of  the<br /> abductors did speak to her while in the auto rickshaw.   She  also  conceded<br /> that she did not scream for help from the passers-by on the road.   She  was<br /> confronted with her disclosure in  the  FIR  that  only  three  persons  had<br /> committed rape on her  though four had been  named  therein.   She  admitted<br /> that at the time when she was offered two idlis and a glass  of  water,  she<br /> did not cry for help  and  instead  had  made  up  her  mind  to  teach  the<br /> miscreants a lesson by informing the police.  She also stated, by  departing<br /> from the FIR that for  the  second  time,  three  persons  committed  sexual<br /> intercourse with her.  According to her, the ear studs  had  been  given  to<br /> her by her husband who got them made at Kaveripattinam in Tamil  Nadu.   She<br /> claimed that her FIR was written by one Anthony in the police  station  whom<br /> she came to know at that point of time.</p> <p><br />             In her cross-examination, she further deviated by  stating  that<br /> apart from the 4th person referred to by her, there was yet  another  person<br /> of short stature and that she had forgotten to refer to  him  in   her  FIR.<br /> She admitted that her mouth was never shut but  her abductors  did  threaten<br /> and  scold  her.   She  admitted  that  after  she  was  abandoned   by  the<br /> miscreants, she did alone return to the garage where the act was  committed.<br />  She also stated to have  narrated her incident  to  five  more  persons  at<br /> different places before the police had intervened,  who  according  to  her,<br /> were watchmen.  She  stated  that  she  wanted  to  see  the  place   before<br /> informing the police  and,  therefore  she  went  in  search  thereof.   She<br /> deposed that she saw the jeep of the Hoysala police   and  called  for  help<br /> whereafter she was taken in the jeep.  She took the  jeep  near  the  garage<br /> and from there, she was taken to two more  police  stations  before  lodging<br /> the FIR at Sampangiramanagara Police Station.</p> <p><br />             She contradicted herself by stating that the complaint  was  not<br /> written by Anthony. She also stated that her report was typed, read  out  to<br /> her whereupon she put her left thumb  impression.   When  Ex.  P1,  FIR  was<br /> shown to her, she admitted that it was not typed. She admitted as well  that<br /> while  narrating  the incident  and  lodging  the  complaint,  she  did  not<br /> disclose the names of the accused persons.  She conceded as well  that  when<br /> she was taken to the hospital, there were no wounds.</p> <p><br />             She admitted as well  that PW 2 Geeta  had  advised her to  take<br /> money and return to her native village and not to file a case  as  otherwise<br /> she would disclose that she was a prostitute.   She  denied  the  suggestion<br /> that she had requested for  financial help  from  the  appellants  and  when<br /> they expressed their inability, she lodged  a false  case  against  them  to<br /> wreak  vengeance.    She  also  denied  the  suggestion  that  the  material<br /> exhibits,  more particularity ear studs and  tali  (mangalsootre)  were  not<br /> hers and that the police had procured the same from elsewhere, to frame  the<br /> accused persons.   In the context of her  identification of  the  appellants<br /> in the TIP, she admitted in her cross-examination that  even  prior  to  the<br /> incident, she had seen the accused persons and that not only  they  used  to<br /> talk to her, she knew them as well.</p> <p><br /> 8.          PW2  Geeta,  on oath stated that she also did  earn  her  living<br /> as a labourer.   She  admitted  that  she  knew   the  prosecutrix  who  was<br /> deserted by her husband and that she had  accommodated her and her  daughter<br /> and had provided shelter to them about 7 years prior to the  incident.   She<br /> stated that about four years back (coinciding approximately  with  the  date<br /> of the incident),  the prosecutrix had disclosed to  her  that  on  her  way<br /> back home, she had  been teased, on which she advised  her  to  be  careful.<br /> The witness stated that in the evening of the  date  of  the  incident,  the<br /> prosecutirx did not return home and that  at  about  mid-night,  the  police<br /> brought her back.  She stated that she saw  marks of assault on the body  of<br />  prosecutrix and on being  enquired, she stated that “they did  not  pay  me<br /> any money but have snatched my ear studs.  They have extracted all the  work<br /> needed”.  The witness volunteered to explain “work” meant prostitution.</p> <p><br />             At this stage, the witness was declared hostile and  was  cross-<br /> examined.  In her cross-examination, she admitted that when the  prosecutrix<br /> returned that night, she had  suffered wounds and was limping.   She  denied<br /> to have stated before the police that the appellants had snatched  her  gold<br /> ornaments and had committed rape on her. She also denied to have  identified<br />  the ear studs, as those of the prosecutrix   and  instead   asserted   that<br /> the same were not hers. She denied  the  suggestion  that   her   retraction<br /> from the statement made before the police  was  with  a  view  to  help  the<br /> accused persons.  She volunteered to state that  the reason for her  husband<br /> to desert the prosecutrix was her activities of prostitution which had  come<br /> to his knowledge.</p> <p><br />             The witness further disclosed in her cross-examination   by  the<br /> defence that about a fortnight before the incident, the  prosecutrix   along<br /> with her had approached the accused persons  for  an  amount  of  Rs.  10000<br /> which she intended to  invest for living in  a  separate  house,  which  was<br /> however declined.  PW2 testified that this was not  to  the  liking  of  the<br /> prosecutrix, who  was  enraged  by  such  refusal  and  left  the  place  by<br /> intimidating them of adverse  consequences.   The  witness  on  oath  stated<br /> further that the prosecutrix after returning  home   in  the  evenings   and<br /> after  completing the house hold work,  used  to  go  around  in  the  night<br /> indulging in prostitution and when asked  as  to  why  she  had  lodged  the<br /> complaint against the  accused  persons,  she  disclosed  that   this  would<br /> compel them to part with the money that she wanted.</p> <p><br /> 9.           PW3  Dr.  B.R.S.  Kashyap   had  examined  the  appellants  and<br /> opined that there was  nothing  to  suggest  that  they  were  incapable  of<br /> performing sexual intercourse.  He also was of the view that the  injury  on<br /> the body of the appellant Raju could have been sustained also in the  course<br /> of attending his auto rickshaw or could be self- inflicted as well.</p> <p><br /> 10.          PW4 Muthu produced as  a  seizure  witness  of  the  ear  studs<br /> denied that same had been seized in his presence and instead testified  that<br /> on the insistence of the police he put  his  signature  on  a  paper.   This<br /> witness was declared hostile but did not budge from  his  statement  in  his<br /> examination-in-chief.</p> <p><br /> 11.             PW5 M.K. Srirangaiah  was  the  Tehsildar,  Bangalore  North<br /> Taluk  at the relevant time and he proved  the conduct  of   TIP,  in  which<br /> the prosecutrix  identified the appellants.</p> <p><br /> 12.         PW8 K.M. Nandagopal was the Assistant Professor, OBG,  Vanivilas<br /> Hospital on 11.10.1997 where at about 9 a.m. on that  day,  the  prosecutrix<br /> was medically examined.  He deposed that the prosecutrix was found  to  have<br /> sustained red colour injury on her  left  thigh.   While  stating  that  the<br /> vaginal swab of the prosecutrix was sealed and sent to the Forensic  Science<br /> Laboratory, he was of the clear opinion that she was accustomed  to the  act<br /> of sexual intercourse.  In his cross-examination, the doctor  admitted  that<br /> the prosecutrix did not reveal  any  evidence  or   sign  of  having  sexual<br /> intercourse at the time of her examination.  Vis-a-vis the injuries  on  her<br /> thigh, the witness stated that this could happen due to reasons  other  than<br /> sexual intercourse.</p> <p><br /> 13.          PW11 B.S.  Mudumadeviah,  the  Investigating  Officer  affirmed<br /> that the FIR was lodged by the prosecutrix at 2 a.m. on  11.10.1997  at  the<br /> police station.  He deposed  that  after  the  medical  examination  of  the<br /> prosecutrix, he accompanied her  to  the  place  of  occurrence  and  seized<br /> therefrom a red colour drawer, one box of Nirodh (contraceptive),  two  auto<br /> rickshaw seats, two broken pieces of black bangles and three  black  bangles<br /> found strewn around.   He  identified  the  seized  articles  in  court.  He<br /> referred to the disclosure statement of the  appellant  Parkash  leading  to<br /> the discovery of the ear studs of the prosecutrix  from his house  which  he<br /> identified in the court as well. He also claimed to  have  seized  the  auto<br /> rickshaw  identified  by  the  same  appellant  used   for   abducting   the<br /> prosecutrix.  According to him, he had written down  the  complaint  of  the<br /> prosecutrix made verbally</p> <p><br />             He conceded that the prosecutrix did  not  state  that  at  that<br /> point of time, that she had been abducted  by  five  persons  and  raped  by<br /> four.  She also did not disclose that there was  another  short  person  who<br /> had raped her as well.  The witness admitted that she did not disclose  that<br /> she was abducted while near the Fatima Bakery but referred to  the  spot  as<br /> Richmond Park.  He denied the suggestion that the prosecutrix  at  the  time<br /> of lodging of the complaint did not name  the  miscreants.   He  denied  the<br /> suggestion  as  well  that  the  ear  studs  were  bought  from  Man  Pasand<br /> Jewellers, Shanti Nagar  by taking  Rakesh,  a  friend  of  accused  No.  3-<br /> Parkash for the purpose. He denied the suggestion with  regard  to  seizures<br /> from the spot and also the identification by the  prosecutrix  at  the  test<br /> identification parade.</p> <p><br /> 14.         The defence witness Rakesh  deposed  on  oath  that   after  the<br /> incident,  while one day he was in the house of Parkash, the police  visited<br /> the  place  and   threatened  the  grand-father  of  the  appellant  Parkash<br /> alleging that he (Parkash) had snatched  a  pair  of  ear  studs   from  the<br /> prosecutrix, to which his grand-father objected.  The  witness  stated  that<br /> then the police took him and the grand-father of the  appellant  Parkash  to<br /> Man Pasand Jewellers, a local jewellery shop, where  the  police  threatened<br /> the old man to pay the amount to purchase a pair of ear studs for Rs.  4000.<br />  The witness identified the ear studs through the emblem “M.P.” thereon.  He<br /> denied that the material Ex. 1, the ear studs belonged  to  the  prosecutrix<br /> and that the same  had been seized from the appellant Parkash.</p> <p>15.         Mr. Basava Prabhu S.  Patil,  learned  senior  counsel  for  the<br /> appellants has insistently  argued  that  it  being  patent  on  a  combined<br /> reading of the FIR and the testimony of the prosecutrix at the  trial,  that<br /> she is wholly untrustworthy  and  that  the  appellants  have  been  falsely<br /> implicated, the impugned judgement and order is liable to be set aside  lest<br /> it perpetuates gross injustice.  The learned senior  counsel has urged  that<br />  not only  the  prosecutrix's  version  of  the  incident  as  a  whole   is<br /> inherently improbable,  she has been  wholly  discredited  as  well  by  the<br /> medical evidence belying the accusation of forcible  sexual  intercourse  by<br /> the appellants in succession.  Castigating  the   investigating  agency  for<br /> falsely foisting the articles claimed to have been seized on the  appellants<br /> in its desperate attempt to  establish  their  culpability,  Mr.  Patil  has<br /> maintained that as the  prosecutrix  admittedly  knew  the  appellants  from<br /> before, their so called identification by her at  the  TIP  is  also  of  no<br /> consequence. The learned senior counsel  asserted  that  PW2  Geeta,  though<br /> having  been  declared  hostile,  her  evidence  at  the   trial   otherwise<br /> consistent with  the  attendant  facts  and  circumstances  bearing  on  the<br /> conduct and activities of the prosecutrix ought not to have  been  discarded<br /> and this having vitiated the impugned decision as well, the  conviction  and<br /> sentence recorded against the appellants is liable to  be  interfered  with.<br /> As the prosecution has failed to  convincingly  prove  the  charge  levelled<br /> against the appellants, they are entitled to be  acquitted,  he  urged.   To<br /> buttress these pleas, reliance has been placed  on  the  decisions  of  this<br /> Court in Sunil Kumar Sambhudayal  Gupta  (Dr.)  and  others.  Vs.  State  of<br /> Maharashtra (2010) 13 SCC 657, Shyamal Saha Vs. State of West Bengal  (2014)<br /> 12 SCC 321. Himanshu alias Chintu Vs. State (NCT of Delhi) (2011) 2  SCC  36<br /> and Raju and Others Vs. State of Madhya Pradesh (2008) 15 SCC 133.<br /> 16.         As against this, the learned state counsel wholly  endorsed  the<br /> impugned decision contending that not only the testimony of the  prosecutrix<br /> is true, cogent and convincing, having regard  to  the  charge  levelled  by<br /> her, the same is deserving of full credence to base the  conviction  of  the<br /> appellants  thereon.  According  to   the   learned   counsel,   the   minor<br /> inconsistencies in the FIR and the  deposition  of  the  prosecutrix,  on  a<br /> consideration  of  the  totality  of  the  circumstances,   are   acceptably<br /> reconcilable.  As the identity of the appellants,  as  the  perpetrators  of<br /> the crime, is not in doubt, they having been identified by  the  prosecutrix<br /> in no uncertain terms, the prosecution case ought not to  be  jettisoned  by<br /> relying on the evidence  of  PW2,   a  hostile  witness,  he  urged.   While<br /> contending that the medical evidence is not mutilative  of  the  charge  and<br /> that the  seizures  made  in  course  of  the  investigation  do  undeniably<br /> establish the complicity of the  appellants,  their  conviction  is  legally<br /> valid and does  not  merit  any  interference  in  the  instant  appeal,  he<br /> maintained.<br /> 17.         We have lent our  anxious  consideration  to  the  materials  on<br /> record as well as the competing arguments based thereon.  Having  regard  to<br /> the charge levelled, the fulcrum of the prosecution case  logically  is  the<br /> testimony of the prosecutrix.  Undeniably  therefore   the  credibility  and<br /> trustworthiness of the victim’s version is the decisive  factor  to  adjudge<br /> the culpability of the appellants.<br /> 18.         Filtering the unnecessary factual  details,  suffice  it  is  to<br /> recount that the incident allegedly had occurred at 7.30 p.m.  on  a  public<br /> road while the prosecutrix was returning home  after  the  day's  work.  Her<br /> version is that while she was on the way, an auto rickshaw with two  persons<br /> therein pulled up by her side  and  she  was  dragged  in  forcibly.   After<br /> moving for about 10 minutes, the abductors were joined by two more  persons,<br /> whereafter she was taken to a garage  and  was  molested  against  her  will<br /> forcibly.<br /> 19.         To start with, the prosecutrix has contradicted herself qua  the<br /> place of alleged kidnapping.  In the complaint, she mentioned  the  spot  to<br /> be near Richmond  park, whereas in her evidence she referred to the same  as<br /> opposite Johnson market.  It is more or less authenticated by  the  evidence<br /> on record that after her abduction and on the way to the garage as  narrated<br /> by her, she did not scream or cry for help.  This is of utmost  significance<br /> as it is not alleged by her that the abductors had put  her  under  fear  on<br /> the point of any weapon threatening physical injury thereby.  This  is  more<br /> so, as admittedly the prosecutrix at the  relevant  time  was  a  major  and<br /> could very well foresee the disastrous  consequences  to  follow.   She  has<br /> admitted in her deposition as well that while she was  ravished  inside  the<br /> garage and even during the intermittent breaks, she did not  shout  for  any<br /> help.  Her version in the complaint with regard to  the  offending  act  and<br /> the number of persons, who had committed the same, is inconsistent with  her<br /> testimony on oath at the trial.  Notably  in  the  complaint  she  mentioned<br /> about four persons of whom three raped and out of them,  two  committed  the<br /> act twice.  She did not disclose in her complaint that the  accused  persons<br /> were known to her from before and disclosed that they during  the  time  had<br /> been referring to themselves as Raju,  Venu,  Parkash  and  Francis.   This,<br /> however has been  denied  by  the  investigation  officer.    On  oath,  she<br /> however introduced a fifth  person  as  well.   She  accused  all  the  four<br /> persons to have committed sexual intercourse with her for the  second  time.<br />  Though grudgingly,  as admitted by her,  she  also  consumed  the  food  as<br /> offered to her by her molesters.<br /> In cross-examination, she admitted that  she  was  not  married  to  Sarvana<br /> though she claimed him to be her husband in her  examination-in-chief.   She<br /> disclosed more than once that the accused persons  used  to  tease  her  for<br /> about 5-6 months prior to the incident and that she used to talk to them  as<br /> well. In view of  this  admission  of  hers  ,  the  identification  by  the<br /> prosecutrix  of the accused persons in the TIP  pales  into  insignificance.<br /> She contradicted herself in the cross-examination by stating that  three  of<br /> the four did rape her for the second time.  She was also  inconsistent  with<br /> regard to the writer of her complaint.<br /> Her conduct during the alleged ordeal is also unlike a  victim  of  forcible<br /> rape and betrays somewhat submissive and consensual disposition.   From  the<br /> nature of the exchanges between her and the accused persons as  narrated  by<br /> her, the same are  not  at  all  consistent  with  those  of  an  unwilling,<br /> terrified and anguished victim of forcible intercourse, if   judged  by  the<br /> normal human conduct.<br /> Her post  incident  conduct  and  movements  are  also  noticeably  unusual.<br /> Instead of hurrying back home in a distressed, humiliated and  a  devastated<br /> state, she stayed back in and  around  the  place  of  occurrence,  enquired<br /> about the same from persons whom she claims to have met in  the  late  hours<br /> of night, returned to the spot to identify the garage and even look  at  the<br /> broken glass bangles, discarded litter etc.  According to her, she  wandered<br /> around the place and as  disclosed  by  her  in  her  evidence,  to  collect<br /> information so as to teach the  accused  persons  a  lesson.  Her  avengeful<br /> attitude in the facts and circumstances,  as  disclosed  by  her,  if  true,<br /> demonstrably evinces a  conduct  manifested  by  a  feeling  of  frustration<br /> stoked by an intense feeling of deprivation of something  expected,  desired<br /> or promised. Her confident movements alone past midnight, in that state  are<br /> also out of the ordinary.  Her testimony that she  met  a  cyclist  to  whom<br /> she narrated her tale of woe  and  that  on  his  information,  the  Hoysala<br /> police came to the spot and that thereafter  she  was  taken  to  successive<br /> police stations before lodging the complaint  at  Sampangiramanagara  police<br /> station  as well   has to be accepted with a grain of salt.<br /> 20.          PW8,  who medically examined her, opined in  clear  terms  that<br /> she was accustomed to sexual  intercourse  and  that  no  sign  of  forcible<br /> intercourse was discernible.  This assumes great significance   in  view  of<br /> the allegation of forcible rape  by 3 to 4  adult persons  more  than  once.<br /> The medical opinion that she was accustomed  to  sexual  inter  course  when<br /> admittedly she was living separately  from her husband for  1  and  ½  years<br /> before the incident also has its own implication.  The medical  evidence  as<br /> such  in  the  attendant  facts  and  circumstances  in  a  way  belies  the<br /> allegation of gang rape.<br /> 21.         The evidence of PW2 Geeta who admittedly had offered shelter  to<br /> the prosecutrix and her minor daughter, though  had been  declared  hostile,<br /> her testimony as a whole cannot be brushed aside.  In  her  testimony,  this<br /> witness indicated that the prosecutrix  used to  take  financial  help  from<br /> the accused persons and that she used  to  indulge  in  dubious  late  night<br /> activities for which her husband had deserted  her.   The  defence  plea  of<br /> false implication as  the  accused  persons  had  declined   to  oblige  the<br /> prosecutrix  qua her demand for financial help therefore cannot  be  lightly<br /> discarded in the overall  factual  scenario.  Her  version  therefore  is  a<br /> plausible one and thus fit in  with  the  defence  plea   to   demolish  the<br /> prosecution case.</p> <p>22.         That the evidence of a  hostile  witness  in  all  eventualities<br /> ought not stand effaced altogether and that the same can be accepted to  the<br /> extent found dependable on  a careful scrutiny was reiterated by this  Court<br /> in Himanshu @ Chintu  (supra)  by  drawing  sustenance  of  the  proposition<br /> amongst others from Khujii vs. State of M.P. (1991)  3  SCC  627   and  Koli<br /> Lakhman Bhai Chanabhai vs. State of  Gujarat  (1999)  8  SCC  624.   It  was<br /> enounced that the evidence of a hostile witness remains  admissible  and  is<br /> open for a Court to rely on the dependable part thereof as found  acceptable<br /> and duly corroborated by other reliable evidence available on record.</p> <p><br /> 23.         The seizures  said to have been effected  by  the  investigating<br /> agency also do not inspire confidence. Not only PW 4 Muthu denied  that  the<br /> seizure of ear studs had been made  in  his  presence,   DW1   on  oath  had<br /> stated that  this item of jewellery  had  in  fact  been  purchased  by  the<br /> police from a local shop which he  could  identify  on  the  basis  of   the<br /> symbol ‘MP’  inscribed thereon.  In any  view  of  the  matter,  the  seized<br /> articles per se in absence of  any  evidence  of   corroboration  of  charge<br /> would not, irrefutably prove  the  involvement  of  the  appellants  in  the<br /> offence alleged.</p> <p>24.         This Court in Raju (supra), while reiterating that the  evidence<br /> of the  prosecutrix  in  cases  of  rape,  molestation  and  other  physical<br /> outrages is to be construed to be that of an  injured  witness  so  much  so<br /> that no corroboration is necessary, ruled  that  an  accused  must  also  be<br /> protected against the possibility of false implication.  It  was  underlined<br /> that the testimony of the  victim  in  such  cases,  though  commands  great<br /> weight but the same, cannot  necessarily  be  universally  and  mechanically<br /> accepted  to  be  free  in  all   circumstances   from   embellishment   and<br /> exaggeration. It was ruled that the presumption of  absence  of  consent  of<br /> the  victim,  where  sexual  intercourse  by  the  accused  is   proved   as<br /> contemplated in Section 114A  of the Evidence Act, was extremely  restricted<br /> in its application compared to the sweep and ambit of the presumption  under<br /> Sections 113A and 113B of the Indian Evidence Act.  It  was  exposited  that<br /> insofar as the  allegation  of  rape  is  concerned,  the  evidence  of  the<br /> prosecutrix must be examined as that of a injured witness whose presence  at<br /> the spot is probable  but  it can  never  be  presumed  that  her  statement<br /> should always  without exception, be taken  as gospel truth.<br />             The essence of this verdict which has stood  the  test  of  time<br /> proclaims that though generally the testimony of a victim of  rape  or  non-<br /> consensual physical assault  ought to be accepted as true  and  unblemished,<br /> it would still be subject to judicial scrutiny lest a  casual,  routine  and<br /> automatic acceptance  thereof  results  in  unwarranted  conviction  of  the<br /> person charged.<br /> 25.          Vis-a-vis  the  scope  of   interference  with  a  judgment  of<br /> acquittal, this Court  in Sunil Kumar Shabukumar Gupta (Dr.) (supra)  echoed<br /> the hallowed proposition that if  two  views  are  possible,  the  appellate<br /> court should not ordinarily  interfere therewith though its view may  appear<br /> to be the more probable one.  While emphasizing that  the  trial  court  has<br /> the benefit of watching the demeanour  of the witnesses  and  is  thus   the<br /> best judge of their credibility, it was held that every accused is  presumed<br /> to be innocent unless his guilt  is  proved  and  that  his  presumption  of<br /> innocence gets reinforced with his acquittal by the trial  court's  verdict.<br /> It was reiterated that only in  exceptionable  cases  and  under  compelling<br /> circumstances, where the judgement of acquittal  is  found  to  be  perverse<br /> i.e. if the  findings  have  been  arrived  at  by  ignoring   or  excluding<br /> relevant materials or by taking into  consideration  irrelevant/inadmissible<br /> material and are against the weight of evidence or  are so outrageously   in<br /> defiance of logic so as to suffer from  the  vice  of  irrationality,   that<br /> interference by the appellate court would be called for.<br /> 26.         That the appellate court is under an obligation to consider  and<br /> identify the error in the decision of the trial court  and  then  to  decide<br /> whether the error is gross enough to  warrant  interference  was  underlined<br /> by this  Court  in  Shyamal  Saha  (supra).   It  was  emphasized  that  the<br /> appellate court is not expected to merely substitute its opinion   for  that<br /> of  the trial court  and  that  it  has  to  exercise  its  discretion  very<br /> cautiously  to correct an error of law  or  fact,  if  any  and  significant<br /> enough to warrant reversal of the verdict of the trial court.<br /> 27.          The  prosecution   case,  when  judged  on  the  touchstone  of<br /> totality  of the facts and circumstances, does not generate the  unqualified<br /> and unreserved satisfaction  indispensably required  to enter a finding   of<br /> guilt against the appellants.   Having regard to the evidence on  record  as<br /> a whole,   it is not possible for this Court to  unhesitatingly  hold   that<br /> the  charge  levelled  against  the  appellants    has  been  proved  beyond<br /> reasonable doubt. In our estimate, the view taken by  the  Trial  Court   is<br /> the overwhelmingly possible one. In contrast,   the  findings  of  the  High<br /> Court  are   decipherably     strained  in  favour  of  the  prosecution  by<br /> overlooking many irreconcilable inconsistencies,  anomalies   and  omissions<br /> rendering  the prosecution case unworthy of credit.   Noticeably,  the  High<br /> Court has exonerated  the  appellants  of  the  charge  of  abduction  under<br /> Section 366 IPC,  which  is  an  inseverable  component  of  the  string  of<br /> offences alleged against them.   Judged by  the  known  parameters  of  law,<br /> the view adopted by the High Court  is not  a plausible one when  juxtaposed<br /> to that of the Trial Court.   We are of  the  unhesitant  opinion  that  the<br /> prosecution has failed to prove the charge against  the  appellants  to  the<br /> hilt as obligated in law  and thus, they are  entitled  to  the  benefit  of<br /> doubt. The appeal thus succeeds and is allowed. The impugned  judgement  and<br /> order is set-aside.  The appellants are  on  bail.   Their  bail  bonds  are<br /> discharged.<br />                                                                            )</p> <p> </p> <p> </p> <p> </p> <p><br /> NEW DELHI;<br /> OCTOBER 4, 2016.</p> <p><br /> ……....……………………..….J. (PINAKI CHANDRA GHOSE)</p> <p> </p> <p><br /> ……....……………………..….J. (AMITAVA ROY)</p> <p> </p>