JUDGMENT S. Padmanabhan, J. 1. Panackal house in Chengamanad Village witnessed a shocking incident on the night on 23-12-1983. Sheela aged 9 (P.W.1) studying in the fifth standard was raped by somebody. Respondent was charge sheeted for having raped her at 8.30 p.m. in one of the rooms. The Asst. Sessions Judge felt suspicious of the prosecution case and evidence and acquitted him giving the benefit of doubt. State has come up in appeal. 2. If the doubt entertained by the Judge is reasonable according to the weight of the evidence and his conclusion of innocence is not perverse, this court may be slow to interference. If the view taken by the trial Judge is reasonably possible this court may not be justified in interfering even if a different view is also considered possible. When two reasonable views are possible the one in favour of the accused will have to be accepted. Presumption of innocence is always there and it is not in any way weakened by the acquittal. The view taken by the trial Judge who had the advantage of seeing the witnesses will always be given due weight by the appellate court bearing in mind the fundamental rule of criminal jurisprudence that an innocent man should not suffer conviction even at the risk of many escaping. That does not mean that the appellate court has no power to interfere. Powers are there, but it will be exercised only in exceptional cases, for example, where by wrong application of law including rules of evidence or by going against the weight of the evidence, decisions are entered or miscarriage of justice happened. 3. The fact that P. W. 1 was raped by somebody cannot be disputed. On the night of incident itself she was taken to a Mission Hospital at Pazhanganad with bleeding from the vagina. Ext. P 10 and the evidence of P.W. 14 show that it was detected as the result of rape which was admitted by the child. Since the condition of the child was serious she was referred on the 24th to the District Hospital, Ernakulam where she was examined by P.W.8 who issued Ext. P4 wound certificate. She had vaginal bleeding. Hymen was lacerated irregularly and edges swollen with slight bleeding. Since the condition of the child was serious she was referred on the 24th to the District Hospital, Ernakulam where she was examined by P.W.8 who issued Ext. P4 wound certificate. She had vaginal bleeding. Hymen was lacerated irregularly and edges swollen with slight bleeding. There was a lineal vertical wound 1" long and 1/2" deep on the posterior vaginal wall near the cervix with moderate bleeding/ Evidence of P. W.8 that these injuries could be the result of rape is in agreement with the evidence of P.W.1. It is clear that P.W.I was brutally raped and the crime has to be deprecated like anything. 4. Prosecution case is that the respondent commuted rape on her at 8.30 p.m. in a room of the house having four doors and two big windows when electric light was on. It is said that he is a neighbour and a frequenter to the house and was treated as a member of the family though belonging to a different community. But the defence is that the two families are not even in talking terms and he is falsely implicated out of enmity when rape was committed by some near or dear one whose identity the parents are not prepared to divulge. 5. P. W. 2 is the mother and P. W. 3 the father. P.W. 4 is the brother of P. W. 3 and P. W.5 is the wife of P. W. 4. If we go by the prosecution case and the evidence of PWs 1 to 3, the respondent came to the house at 8p.m. P. W. 1 was studying in the disputed room. PWs 2 and 3, their youngest son David aged 6 and Kuriakose aged 6 the son of the brother of P.W.2, were there. The two eldest sons Paul and George were out for , Christmas Carol and they used to come only late in the night. Respondent had talk and merry making with all. P. W.3 went out to see an ailing relation and came back only by 10 p.m. P. W.2 with the two children went to kitchen and served food to Kuriakose. Then she went to feed cattle with David. Cattle shed is very close by Respondent and P.W. 1 alone were there in the room. Respondent forcibly laid her on the table and closed her mouth when she cried. Then she was pushed up and undressed. Then she went to feed cattle with David. Cattle shed is very close by Respondent and P.W. 1 alone were there in the room. Respondent forcibly laid her on the table and closed her mouth when she cried. Then she was pushed up and undressed. There was full sexual intercourse and ejaculation of semen. Then she was held back on the floor and dressed. When she attempted to go and complain to the mother she was prevented and laid on the cot. Due to pain and exhaustion she fell asleep and respondent went away. By the time P, W. 2 came back and saw the respondent going and P.W. 1 sleeping. Therefore she did not disturb her. When P W. 3 came they had food and they went to bed. By 2.30 P W. 1 woke up crying and complaining of pain and wanted to pass urine. P.W.2 took her out and found clots of blood coming through urine. On enquiry P.W.I kept silent regarding reason. P. Ws. 4 and 5 were brought and P.Ws.2 to 4 took P.W.I to the Mission Hospital. 6. I fully agree with the Asst. Sessions Judge that in such a situation normally rape is not probable. Four doors and two windows were open and light was on. The child in the kitchen could come back at any time. Mother and younger brother were close by in the cattle shed and they could see or come back equally. Sexual assault could be visible to others also. P. W. 1 was not a willing party and the fear of alarm from her is always there. Still I do not mean to say that rape is impossible because a dare devil, not aline to surroundings and consequences on account of lust, may sometimes attempt the extreme. But the improbability will have to be considered in the light of some other facts also. 7. Going by the evidence of P. W.1 the prevention from crying was only at the initial stage. Thereafter respondent had to use both his hands and legs for lifting, undressing and keeping her in position. P. W. 1 said that she repeatedly cried aloud. If that be so the mother and others would definitely have been alerted and a completed sexual intercourse would not have been possible. Thereafter respondent had to use both his hands and legs for lifting, undressing and keeping her in position. P. W. 1 said that she repeatedly cried aloud. If that be so the mother and others would definitely have been alerted and a completed sexual intercourse would not have been possible. Though P. W. 1 attempted to go and complain to the mother after the incident the respondent was able to prevent her and make her sleep in the cot instantaneously enabling him to go away freely to the sight of the mother. Though there was an injury to the vaginal wall from which bleeding lasted even the next day requiring suturing under general anaesthesia, the mother does not notice any bleeding and allowed the child to sleep there itself. The child who wanted to complain to the mother immediately after the rape, but unable to do so only because of physical prevention and instantaneous sleep, refuses to divulge the reason for bleeding at 2. 30 even when asked by the mother. Father and mother says that they had to take the child to the hospital without knowing the reason at all. Even then bleeding was continuing. There is some difficulty in swallowing all these versions together. 8. Normally feminine tendency will be to conceal masculine sexual assault fearing far-reaching adverse consequences including social stigma and adversities in future life. In the case of children an element of fear complex also will be there as added incentive in hiding information from parents. The tendency of parents also will be as far as possible to hide things and save the reputation of the family and future of the child including prospects of a good marriage. But in this case in view of the reasons stated earlier the possibility of the child keeping mum at 2.30 is rather difficult. The possibility is that the sexual aggression on the child was in the dead of night when everybody was asleep and not as spoken to by P.W.I. P.W.I might have given only a tutored version. If the version of P.W.I is accepted there must have been blood and semen or at least seminal stains on the table, floor, cot and the garments worn by her. Except on a bed sheet in the cot, blood itself was not there any where else. If the version of P.W.I is accepted there must have been blood and semen or at least seminal stains on the table, floor, cot and the garments worn by her. Except on a bed sheet in the cot, blood itself was not there any where else. The continued bleeding from the wound at 2 30 also indicates that the assault was not much earlier. The version of PWs 2 and 3 that they took the child to the hospital unaware of the sexual assault does not appeal to reason. 9. The enmity pleaded by the accused and the possibility of somebody else being responsible, for the aggression at a later point of time gains importance in this context. P. Ws. 1 to 3 made a conscious attempt to bring out that none of the friends of Paul and George will sleep in the house and P.W.3 even said they will not be permitted. One Baby aged 18, a cousin of P.W.1 was at that time studying in the tutorial college and the defence version is that he was residing with P. W 3. But P. Ws. I to 4 denied this and said he was residing with P. W. 4. But P. W.6 who is one of the companions in the Christmas Carol admitted that friends including himself used to take rest at the residence of PWs 1 to 3 after returning from Christmas Carole late in the night and Baby was residing with P.Ws, 3 and 4. On the disputed day at the time when the child was taken to the hospital the elder sons were already back in the house and it was one of them who brought PWs 4 and 5 The conscious attempt of PWs. 2 and 3 to exclude presence of other boys, in this context, is really suspicious. 10. There is the possibility of the child being taken to the hospital immediately after the sexual aggression with full knowledge of the incident and identity of the assailant. The interest in the child (and probably in the assailant also) might have persuaded the incident being suppressed. But the Pazhanganad Doctor found it out to be rape and informed F. W. 2. After consultation with P. W. 1 P. W. 2 came to know of the incident and the culprit. She admitted to the Doctor that it is rape and it is so recorded in Ext. But the Pazhanganad Doctor found it out to be rape and informed F. W. 2. After consultation with P. W. 1 P. W. 2 came to know of the incident and the culprit. She admitted to the Doctor that it is rape and it is so recorded in Ext. P10 proved by P. W. 14. But P. W. 2 did not reveal who the culprit was. The patient was referred to the District hospital where P. W. 8 saw her at 2.30 p. m. on 24-12-83. P. W. 2 who was aware of the culprit kept silent as to who did this heinous crime. No information was given to the police also. In a medico legal case the Doctor is having the duty to inform the police. P. W 8 did so but only after two more days on the night of 26-12-83. He was not asked why the information was delayed. P. W. 16 who recorded the statement was also not asked anything about the delay. Intimation was thus given only when they were forced to the necessity of giving it. Even though first information could be given by anybody and it is intended only to set the law in motion in a cognizable offence, identity of the person who gives the information assumes importance in certain cases. In a rape case the evidence of the prosecution is entitled to great weight and it does not even require corroboration. The evidence of P. W. 1 shows that when P. W. 16 came and recorded the first information from her mother she was fully conscious and capable of giving a statement. But under a wrong pretext P. W,2 undertook the job and the identity of the culprit was revealed for the first time only then and that too under compelling circumstances. There is much force in the argument that this was because P. W. 1 was not at that time sufficiently tutored to give a statement as the parents wanted. The explanation given by P. W. 16 was without making any enquiry with the Doctor and it is far from convincing. The probative value of the evidence P. W. 1 as the prosecutrix has thus gone much down. She could only be taken as echoing the version in Ext. P1 given by P. W. 2 under circumstances compelling disclosure of the culprit. The probative value of the evidence P. W. 1 as the prosecutrix has thus gone much down. She could only be taken as echoing the version in Ext. P1 given by P. W. 2 under circumstances compelling disclosure of the culprit. Though normally in a rape case involving a child the parents are not likely to make false implications, this is a case in which P. W. 2 had no other go but to implicate somebody though she did not want the crime itself to be brought to light. 11. The inherent improbabilities render the evidence of P. W. 1 being far from genuine. In fact that is one of the dangers with which courts must be over cautious while dealing with the evidence of a child witness. Child witnesses may not be aware of the necessity and responsibility of speaking the truth and truth alone and the consequences to them and others by uttering falsehood which they are made to believe to be true by tutoring. Therefore it is the duty of the court to ascertain not only the capacity of the child witness to understand questions and give rational answers which are correct. Knowledge of the duty to speak the truth and truth alone and the consequences of violation must also be elicited or brought home. Children may have the added capacity of by hearting what is tutored especially by parents and retaining them for the purpose of reproduction when necessary. The inherent improbabilities in the evidence of P. W. 1 make it abundantly clear that she was only giving a tutored version. In all probability rape could have taken place only in the dead of night by someone whose identity became known or unknown. 12. Conduct of the accused is also relevant If he had the guilty conscience he would have absconded at least when the child was taken to the hospital and case was registered and investigated. He is a tailor by profession working with D.W.I and he was continuing to reside in his own house and going to work with D.W.I. He was arrested from there in the normal course. Though on examination he was seen potent his penis did not contain any mark of injury indicating forcible sexual act. It is true that such injuries or marks are not absolutely necessary. Though on examination he was seen potent his penis did not contain any mark of injury indicating forcible sexual act. It is true that such injuries or marks are not absolutely necessary. The vagina of such a child will be hardly capable of accommodating a little finger and when the evidence is that there was full penetration and a completed sexual act, normally some marks of violence must be in the penis. The improbability of the incident and the absence of semen or spermatozoa in the garments of P.W.I and in the table or the room are other indications. The presence of semen in the cloth worn by the accused which was recovered a few days afterwards is no evidence at all. It can be therefor various reasons other than involvement in the crime. 13. In a case where the prosecution version and the evidence itself is riddled with improbabilities and law itself was set in motion with conscious delay in a surreptitious manner I cannot blame the Asst. Sessions Judge for giving the benefit of doubt which is legitimately due to him. The criminal appeal is dismissed.