A. C. KABBIN, J,, J. ( 1 ) THE main point for consideration in this appeal preferred by the State challenging the acquittal of the respondent for offences of rape and criminal intimidation, is to what extent inconsistencies in depositions of prosecution witnesses, and doubts entertained by the Trial Judge in view of such inconsistencies or any lapse in investigation would affect the acceptability of that evidence ( 2 ) THE prosecution of the respondent was preceded by the following events On the evening of 6-3-1992, the complainant (PW. 1) took his daughter (referred to as P W 2) aged about 6 years, to the Government hospital, alleging rape on her by the accused/respondent (In this judgment names of the witnesses are omitted to avoid identity of the victim and they are referred to as prosecution witnesses) The girl (P W 2) had pain in her private parts and her labia majora was swollen That had been first noticed by P W 2's aunt (P W 4) on the evening of that day when P W 2 had complained to her On enquiry, P W 2 is stated to have revealed to PW 4 that on the afternoon of 5-3-1992, the accused (respondent) had induced her and taken her to his backyard (Hittalu) and after making her to lie down, had lied on her and had sexually assaulted by putting his organ into her private part That information had been convened to P W 2's mother (P W 3) by P W 4 and that is how the complainant had ascertained about the incident on the evening of 6-3-1992 The girl was examined by the medical officer (P W 6) and also by lady medical officer (P W 5) They found labia majora swollen with edematous bruises and abrasions There was foul smelling discharge from the private part of the girl Vulva Smear was collected and it was sent later for chemical analysis The complainant went to the police station and lodged the complaint (Ex P 1), which was received by the p S I (P W 12) He registered a case for offences under Sections 376 and 506 of the IPC and later seized petticoat and frock of P W 2 as evidence he enquired with PW. 2 on the morning of 7-3-1992 and with the permission of the doctor, took P W 2 to show the place of incident A mahazar was conducted there in the presence of the witnesses P Ws 8 and 9 The gunny bag, on which P W 2 had been allegedly made to lie down before sexual assault by the respondent, was seized Statements of certain witnesses were recorded by the PSI and further investigation was handed over to the CPI (P W. 13) The respondent was absconding he was arrested on 9-5-1992 After further investigation a charge-sheet was placed against the accused ( 3 ) THE respondent pleaded not guilty and claimed to be tried The prosecution examined in all 13 witnesses and closed its case P W 2 is the victim of the alleged sexual assault, and PWs. 1 and 3 are her parents P W 4 is her aunt, being the sister of P W. 1 P W 5, lady medical officer and P W 6, medical officer examined P W 2 on 6-3-1992 and gave treatment P Ws 10 and 12 are police officers P W 7 was the head Master of the school where the child was studying and he has given a certificate regarding P W 2 attending the school on 5-3-1992 and not attending the school on 6-3-1992 onwards for some time PW 8 is a panch for spot mahazar and PW 9 is a panch for recovery of undergarments of the respondent After the case of the prosecution was closed, the respondent was examined under Section 313 of the Cr P C to explain the circumstances arising out of the evidence He denied the allegations of the prosecution witnesses Though he did not choose to examine any witness, he filed a wntten statement The gist of his contention may be briefly stated as under"the complainant's sister (P W 4) is a neighbour of the accused There was no good understanding between her and her husband, who was an attender in a High School in that connection dunng 1992, there was a Panchayat and in the said panchayat, the accused took active role Since then, P W 4 has a grouse against the accused p W 4 has instigated her brother P W 2, her sister-in-law p W 3 and also P W 2 (the child) and has got a false case filed against the accused p W 5, who is alleged to have medically examined P W 2 is not an honest doctor She has been trapped twice and charge-sheets in special Case Nos 8 of 1995 and 22 of 1996 have been filed before this Court by Lokayukta Police which are pending The doctor in connivance with interested witnesses has issued a false certificate" ( 4 ) AFTER hearing the prosecution and the accused, the learned sessions Judge, mainly referring to the difference between the depositions of P W 1 and P S I (P W 12) regarding origin of the complaint, correctness of the date of complaint, suspicious circumstances in which victim's garments were seized and uncertainty of the happening of rape if one takes into consideration the opinion of the medical officer, entertained doubt about the acceptability of prosecution case and opining that the benefit of the same has to be given to the accused, he acquitted the respondent of both the offences, challenging which the present appeal has been preferred by the State ( 5 ) SN Rajendra Reddy, learned Government Pleader representing the state submits that the infirmity or inconsistencies in the evidence of the prosecution as recorded by the learned Sessions Judge on the basis of which acquittal has been awarded, were minor in nature not touching the core of the incident and that therefore the learned Sessions Judge was not right in concluding that the charge had not been proved He further submits that the opinion of the medical officer that there was no sexual intercourse was based solely on the fact that hymen had not been ruptured, which factor the learned Tnal Judge did not notice He submits that therefore accepting the depositions of P Ws 1 to 4 and the injuries in private part of P W 2 as found by the medical officers, it may be held that charge of rape and criminal intimidation have been proved ( 6 ) REPLYING to this Sri J Chandrashekaraiah, learned Counsel for the respondent submits that in a case of an allegation by a child witness, the evidence has to be scrutinised with caution and keeping that the principles of law in mind, the learned Sessions Judge has properly scrutinized the evidence and considering certain inconsistencies in the evidence of prosecution witnesses, and improvements they have made during evidence, the learned Sessions Judge has rightly come to the conclusion that reliance cannot be placed on such evidence He submits that therefore the appeal is liable to be dismissed ( 7 ) WE have carefully considered the entire evidence on record and have heard both the learned Additional State Public Prosecutor and also learned Counsel for the respondent We have also gone through the impugned judgment in detail Though depositions of PWs 1 to 6 coupled with that of P W 12 sufficiently support the charge, mainly on nine grounds the learned Sessions Judge has declined to accept those depositions and has disbelieved the prosecution case Those grounds have been highlighted by the learned Counsel for the respondent in his arguments We will consider those grounds one by one to find out as to whether the reasoning adopted by the learned Trial Judge was justified or not ( 8 ) THE first two grounds are regarding origin and genuineness of the complaint Ex. P 1 According to the learned Judge, it is not certain as to whether the complaint was written in the police station or in the hospital and as to which of the police officials wrote the complaint second ground is that the complaint Ex P 1 does not contain any endorsement of the police official who recorded it which gives an impression that it was written by P W 1 himself The learned Sessions judge concludes that there is infirmity with regard to the very origin of the complaint Ex P 1 ( 9 ) ON going through the evidence of P W 1 and the Investigating officer P W 12, it is clear that the complaint was written in the police station and that P W 1's complaint as narrated by him to the police official was reduced into writing The fact that the complainant did not know the name of the police official who scribed the complaint does not mean that such a complaint had not been given Therefore these two grounds on the basis of which doubt has been entertained by the learned sessions Judge regarding the origin of Ex P 1 are baseless ( 10 ) THE third ground referred to by the learned Trial Judge is that p W 6-medical officer states in his deposition that after he admitted p W 2 in the hospital on 6-3-1992, he sent a requisition to the police station and then referred P W 2 to the lady medical officer When asked in the cross-examination, the PSI (P W 12) says that he did not receive any intimation regarding medico-legal case from the hospital for having treated PW 2 This does not make any difference since even if it is presumed that an intimation had been given by P W 6 to the police and that it had been received by P S I (P W 12) before he received complaint Ex P 1, that intimation was based on the relevant entnes in accident register (Ex P 3) and in-patient register (Ex P 2) In Ex P 3, it is clearly stated that the child had been brought with the history of rape by this respondent and in both Exs P 2 and P 3, it has been mentioned that it was so told by the parents i e , P Ws 1 and 3 In Ex P 3 it is further stated that the girl herself told regarding the said incident Therefore, contents of Ex P ] having been mentioned in accident register of which relevant entry has been marked as Ex P 3, on the basis of which intimation was sent to the police, even if that intimation is taken as FIR, the same allegations against the respondent would be available for police This doubt of the learned Tnal Judge also is of no consequence ( 11 ) THE fourth circumstance referred to by the learned Sessions judge is about the person from whom the complainant learnt about the incident The complainant says that on 6-3-1992 his daughter (P W 2) had gone to P W 4's house and in the evening P W 4 brought P W 2 and told about the incident learnt by her from P W 2 The learned Tnal judge mentions this and observing that the complaint (Ex P 1) shows that P W 1 learnt about the incident from P W 2, he says that this contradiction throws much more doubt on Ex P 1 Though the complaint does not mention that P W 4 had ascertained this factor from p W 2, statements of P Ws 1 and 3 recorded on 1-3-1992 had mentioned this factor Even otherwise, this discrepancy at the most may raise doubt about P W 4's knowledge about the incident and nothing more ( 12 ) THE learned Sessions Judge has entertained doubt about the complaint Ex P 1 on another point At the end of the complaint, date of complaint is written On a perusal of the same, it is seen that originally the date wntten was 7-9-1992 It has been corrected as 6-3-1992 The p S I also admits similar correction of the date in printed FIR form (Ex p 7) The date below his endorsement on the Ex P 1, as put by him was 7-3-1992 Since endorsement of the learned Magistrate regarding time of receipt of FIR is 3 a m on 7-3-1992, the only conclusion one can draw is that this complaint was wntten after the mid-night of 6-3-1992 and before 3 am when it reached the Magistrate Since FIR was received by the learned Magistrate at 3 am on 7-3-1992, it must have been despatched from the police station around 2 or 2 30 a m on 7-3-1992 even m that event, complaint had been recorded within 4 to 5 hours from the time the complainant came to know of the incident and the hospital entries having been made at 10 45 p m on 6-3-1992, wherein the incident of rape by the respondent had been mentioned, as rightly argued by the learned High Court Government Pleader it cannot be said that complaint is antedated or concocted or that after much deliberations it was drafted ( 13 ) THE learned Sessions Judge has next analysed the evidence of the victim (P W 2) Since she is a child witness, he has taken into consideration the principle of law that evidence of a child witness has to be carefully considered. He has referred to the principles in Caetano piedade Fernandes v Union Territory of Goa, Daman and Diu ; Rahim beg v State of Uttar Pradesh, the decision of Privy Council in Mohamed sugal Esa Mamasan Rer Alalah v The King; and Caetano Piedade fernandes It is also to be noted that different decisions of High Courts and Supreme Court have crystallised the principle that the evidence of a child witness though cannot be brushed aside only on the ground that evidence needs corroboration, such evidence has to be carefully considered keeping in view the demeanour of the witness, likelihood of tutoring and inability to understand certain acts of the accused ( 14 ) AS regards acceptability of the version of a rape victim, he has referred to the decision in the case of State of Punjab v Gurmit Singh and Others, which lays down a principle that the testimony of the victim of sexual assault is vital and unless there are compelling reasons, which necessitate looking for corroboration of her statement, the Court should find no difficulty in acting on the testimony of a victim of sexual assault along to convict an accused when her testimony inspires confidence and is found to be reliable. He has also referred to the decision in the case of State of Karnataka v H. B. Devidas, wherein the observation is that evidence of a victim of alleged rape shall be assessed as evidence of any other witness and that such evidence cannot be accepted on the face value and has to be tested with touch stone of probabilities and her conduct. ( 15 ) IN the leading decision of Bharwada Bhoginbhai Hirjibhai v State of Gujarat , which dealt with a similar incident of alleged rape on a 10 years girl, the observation made is that"corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to ambit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends and neighbours She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family In view of these and similar factors the victims and their relatives are not too keen to bring the culprit to book. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated on principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness Just as a witness who has sustained an injury (which is not shown or believed to be self- inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding And while corroboration in the form of eye-witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the courts in the Western World. If the evidence of the victim does not suffer from any basis infirmity, and the 'probabilities-factor' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming subject to the following qualification, Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation Or when the 'probabilities factor is found to be out of tune" ( 16 ) KEEPING in view the above mentioned principles, we have carefully considered the evidence of P W 2 and also depositions of other witnesses The learned Trial Judge noticed the following matters to doubt the truthfulness of the version of P W 2 and that of P Ws 1, 3 and 4 in the cross-examination, P W 2 says that when the accused sexually assaulted her, she experienced pain, that blood came out from her private part and that when she struggled, she sustained scratch injuries No scratch injury was noticed on her body either by P Ws 1, 3 and 4 or by medical officers ii In the cross-examination P W 2 says that P W 2's petticoat had been stained with blood, but P W 3 did not notice it on that night and found P W 2 active on that day and the next day iii The incident is stated to have happened at about 6 30 pm , but that P W 2 says in her deposition that it happened at 1 p m iv Certain improvements made by P Ws 3 and 4 in their evidence had not been told before police which make their testimony doubtful v P W 2 says that she told about the incident on date of the incident itself But the version of P Ws 1, 3 and 4 is that she revealed about the incident only the next day evening vi According to P W 2, the incident happened in the yard (Hittalu) of the respondent, whereas according to PSI (P W 12) it is a threshing yard ( 17 ) DEPOSITIONS of P Ws 1, 2 and 4 to 6 show that except in her private part, P W 2 had not sustained any injury If P W 2, who was a child of six years at the time of incident and was about 9 or 10 years, when her deposition was recorded replies in the affirmative to a question in the cross-examination as to whether she struggled when she was sexually assaulted and suffered any scratches or abrasions, but she had no scratches, that reply itself does not render her testimony unacceptable Failure on the part of P W 3 to notice on 5-3-1992 bloodstains on the garments of P W 2 also is of no consequence to decide the acceptability of deposition The circumstances disclose that time of incident as disclosed on 6-3-1992 was 6 30 p m on 5-3-1992 Evidence was recorded in 1996 and therefore child would have been confused about the exact timing With regard to contradiction, inconsistencies in evidence, in a similar matter of child rape, the Supreme Court in the case of Bharwada Bhoginbhai Hirjibhai observed as under"overmuch importance cannot be attached to minor discrepancies. The reasons are obvious (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident it is not as if a videotape is replayed on the mental screen, (2) Ordinarily, it so happens that a witness is overtaken by events The witness could not have anticipated the occurrence which so often has an element of surprise The mental faculties therefore cannot be expected to be attuned to absorb the details, (3) The powers of observation differ from person to person what one may notice, another may not An object or movement might emboss its image on one person's mind, whereas, it might go unnoticed on the part of another, (4) By and large people cannot accurately recall a conversion and reproduce the very words used by them or heard by them They can only recall the mam purport of the conversation it is unrealistic to expect a witness to be a human tape recorder, (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation And one cannot expect people to make very precise or reliable estimates in such matters Again, it depends on the time-sense of individuals which vanes from person to person, (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span A witness is liable to get confused, or mixed up when interrogated later on, (7) A witness, though wholly truthful is liable to be overawed by the Court atmosphere and the piercing cross-examination made by Counsel and out of nervousness mix up facts, get confused regarding sequence of events or fill up details from imagination on the spur of the moment The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment 6 Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses" ( 18 ) WE have to keep in our mind that P W 2 was only six years old when the incident happened and her evidence was taken in 1996 The child could not be expected to keep in mind an unsavory incident She was at such an age, when she could not comprehend as to what was happening to her We have to mainly rely on what she had disclosed to other adult witnesses immediately after their came to know of the incident which facts those adult witnesses had got confirmed The evidence of P Ws 1, 2 and 4 having given the correct picture of the incident, this difference of time of actual incident given by P W 2 looses significance ( 19 ) AS to how evidence of a witness has to be appreciated, the supreme Court observes as follows in State of Uttar Pradesh v M K anthony "while appreciating oral evidence of a witness, the approach must be whether the evidence of the witness read as whole appears to have a ring of truth Once that impression is formed it is undoubtedly, necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in evidence as a whole, and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief ( 20 ) IN Sardul Singh v State of Haryana, it is observed as under"there cannot be a prosecution case with a cast iron perfection in all respects and it is obligatory for the Courts to analyse, sift and assess the evidence of record, with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting an objective and reasonable appreciation of the same, without being obsessed by an air of total suspicion of the case of the prosecution What is to be insisted upon is not implicit proof It has often Deen said that evidence of interested witnesses should be scrutinized more carefully to find out whether it has a ring of truth and if found acceptable and seem to inspire confidence too, in the mind of the Court, the same cannot be discarded totally merely on account of certain variations or infirmities pointed or even additions and embellishments noticed, unless they are of such nature as to undermine the substratums of the evidence and found to be tainted to the core courts have a duty to undertake a complete and comprehensive appreciation of all vital features of the case and the entire evidence with reference to the broad and reasonable probabilities of the case also in their attempt to find out proof beyond reasonable doubt" ( 21 ) KEEPING in view these principles, we have read the evidence of p Ws 1, 2 and 4 The deposition of P W 2 inspires confidence The child had not understood the implication of the act of the respondent, which as per her description indicated a sexual assault on her, resulting in she developing pain in her private parts causing swelling of the affected part As regards the place, a perusal of spot mahazar Ex P 5 shows that hittalu referred to by P W 2 is not a backyard of a house, but yard in possession of the respondent measuring 100' x 18', used to store agricultural articles It includes a haystack and a place used as threshing yard Therefore, presumption of the learned Tnal Judge that there is variation in the description of the place of offence is erroneous ( 22 ) AS regards the allegation of sexual assault on the child, the learned Counsel for the respondent submits that the evidence of the doctor rules out the possibility of any such act In her evidence, the lady medical officer (P W 5) has opined that according to her examination, there was no sexual intercourse as she found the hymen intact It is therefore, clear that her opinion that there was no sexual intercourse is based only on the fact that hymen of the child was intact Her presumption about rape appears to be based on common perception of full entry of male organ in the private part of the victim In Aman kumar v State of Haryana, it is observed that "penetration is the sine qua non for an offence of rape In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little The depth of penetration is immaterial in an offence punishable under Section 376 of the IPC Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary" ( 23 ) AT page 439 of the book, Medical Jurisprudence and Toxicology by dr K S Narayana Reddy, with regard to rape on children, the following information is given"in young children there are few or no signs of general violence, for the child usually has no idea of what is happening, and also incapable of resisting The humen is deeply situated, and as the vagina is very small, it is impossible for the penetration of the adult organ to take place Usually, the penis is placed either within the vulva or between the thighs As such, the hymen is usually intact and there may be little redness and tenderness of the vulva as the penis enters the genitals, it tends to compress the labia both anteriorly and laterally, producing bruising of both the labia minora and the labia majora The amount of bruising will depend upon the force used" ( 24 ) THE evidence of the medical officer P W 5 shows the following facts noticed by the medical officer on examination of the private part of pw 2"there was foul smell discharge Hymen intact Not even possible to insert the tip of the little finger I collected the discharge with the swab Labia majoral swelling, edematous bruised and abrasion (I noticed bruise and abrasions) at the time of the examination" ( 25 ) IN the further examination-in-chief she has stated that the swelling, bruises and abrasions which she noticed on the vulva could be caused while in the act of attempting to rape This therefore indicates sexual force used by the respondent on the child ( 26 ) LEARNED Counsel for the respondent submits that the report of the Scientific Officer of the F S L shows that no trace of semen was detected in the samples sent. Absence of semen only indicates that there was no ejaculation. That does not nullify the sexual assault described by p. W. 2. ( 27 ) TWO other matters dealt with by the learned Trial Judge were regarding absence of bloodstains on the gunny bag and non-examination of the accused/respondent to find out whether he had any injury on his private part. As already stated, the say of the child in the cross-examination that there were bloodstains on the gunny bag is of not much consequence, since though there are no bloodstains on gunny bag considering the time gap between the date of incident and evidence of p. W. 2, some consistencies are bound to occur. ( 28 ) AS regards non-examination of the respondent by a medical officer, the learned Counsel for the respondent has placed reliance on the decision in the case of Rahim Beg, where it is observed that in a case of an alleged rape on a tender aged girl, absence of injuries on the male organ of the accused would point to his innocence. Failure of investigating Officer to get the accused medically examined has been taken by the learned Trial Judge as one of factors to entertain doubt. According to the prosecution, the accused was absconding and he was arrested only on 9-5-2002. The version of Investigating Officer that the accused was absconding has been rejected by the learned Trial Judge solely on the ground that report of the police official to prove the arrest of the accused had not been placed before the Court. The file shows that the respondent had moved the High Court in Criminal Petition No. 758 of 1992 for anticipatory bail and was granted on 28-4-1992 interim anticipatory bail. Therefore, when he was not available for arrest until then, the Investigating Officer could not get him examined by a medical officer to find out whether he had any injury on his private part. The incident had taken place on 5-3-1992. Therefore, the question of medically examining him on 9-5-1992 does not arise since there would not be any traces of the incident on his private part after two months. Since he was a married man and had two children, there was no need to get him medically examined to ascertain his capacity to sexually perform. Therefore, the question of medically examining him on 9-5-1992 does not arise since there would not be any traces of the incident on his private part after two months. Since he was a married man and had two children, there was no need to get him medically examined to ascertain his capacity to sexually perform. ( 29 ) AS already discussed, the doubts entertained by the learned Trial judge were based on minor discrepancies and inconsistencies. With regard to doubts entertained by Courts, the observations of the Supreme court in the case of State of Uttar Pradesh v Krishna Gopal, are as under:"a person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof is an exercise particular to each case. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof is an exercise particular to each case. Doubts would be called reasonable if they are free from a zest for abstract speculation Law cannot afford any favourite other than truth To constitute reasonable doubt, it must be free from an over emotional response Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense the concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimisation of trivalities would make a mockery of administration of criminal justice" ( 30 ) THE following observation of the Supreme Court in the case of shivaji Sahebrao Bobade and Another v State of Maharashtra , need to be kept in mind by all Trial Courts while appreciating evidence in criminal trials"even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape The judicial instrument has a public accountability The cherished principles or golden thread of proof beyond reasonable doubt which runs tro the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt the excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma Only reasonable doubts belong to the accused otherwise any practical system of justice will then break down and lose credibility with the community The evil of acquitting a guilty person lightheartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent" In short, our junsprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents" ( 31 ) THE last point urged by the learned Counsel for the respondent is regarding malice or ill-will According to him, P W 4 had ill-will with the accused on account of which a false case has been foisted against the respondent It is also contended that evidence of P W 5- lady medical officer is not reliable since she is a corrupt medical officer ( 32 ) IN cases, where the accused claims that a false case has been foisted against him, often suggestions are made to some of the prosecution witnesses alleging malice on their part or ill-will against the accused Suggestion may be also with regard to the ill-will between the accused and the victim or the complainant in whom the witness may be interested When there are materials to support such allegation, evidence of such witness has to be either considered with caution or may be rejected as tainted depending on the acceptability of such material but, where there are no materials to support such suggestion, evidence of a witness cannot be rejected only on suspicion It is only if the malice or ill-will suggested is so strong as to probabilise the possibility of the victim or the complainant hoisting a false case, that suggestion assumes importance and the deposition of the witness has to be carefully scrutinised to decide about the acceptability or otherwise of the evidence of such witness ( 33 ) WITH regard to malice or ill-will, mere suggestion without any supporting material will be insufficient to discard the testimony of P W 4 P W 4 appears to have been deserted by her husband and suggestion made on behalf of the respondent that in the dispute between P W 4 and her husband, the accused had taken a leading part presumably in favour of P W 4's husband and that P W 4 had malice towards the respondent had been denied by P W 4 Even otherwise also, there is no material to presume that dispute generated such resentment on the part of P W 4 towards the respondent that she planed to implicate the respondent by inducing P W 2 to make a false allegation Under these circumstances, the contention of the respondent in this regard cannot be accepted. ( 34 ) EVIDENCE of lady medical officer (P. W. 5) has been assailed on the ground that she has been trapped twice by Lokayukta and has been prosecuted in two prevention of corruption cases. ( 34 ) EVIDENCE of lady medical officer (P. W. 5) has been assailed on the ground that she has been trapped twice by Lokayukta and has been prosecuted in two prevention of corruption cases. In support of this contention, copies of charge-sheets have been produced This contention cannot be accepted on two grounds The first one is that the incident is of the year 1992 and the alleged traps were in 1995 and 1996 The fate of prosecution is not known Secondly, this allegation was not put to p W 5, when she was examined Even otherwise, this additional contention was taken at the time of recording 313 statement Even if the testimony of P W 5 is not taken into consideration in view of accused's contention, the evidence of medical officer P W 6 and entries made in exs P 2 and P 3 proved the injury and confirmed sexual assault on pw 2 ( 35 ) AS already stated, the evidence of P Ws 1, 3 and 4 showed that the respondent had assaulted sexually P W 2 There were no injuries on the knee or hands of P W 2 Therefore, there is no possibility of P W 2 sustaining injury in her private part due to a fall or in an accident The injuries indicate only a sexual assault and there is no reason to reject the version of P W 2 who disclosed the incident to P W 4 and it was brought to the notice of police by P Ws 1, 2 and 4, when pain in her private part came to the knowledge of P W 4 ( 36 ) ON reassessment of evidence, we find that the reasoning adopted by the learned Sessions Judge was not proper He has magnified inconsistencies, and the doubts entertained by him were not reasonable ( 37 ) WE have tested the evidence of P Ws 1 to 4 in the light of the principles enunciated by the Supreme Court in many decisions referred to above The event as disclosed by P W 2 indicating sexual assault on her by the respondent has not been affected by any of the matters as referred by the learned Sessions Judge Her evidence inspires confidence The evidence of her parents (P Ws 1 and 3) and that of her aunt (P W 4) corroborate the incident ( 38 ) TAKING into consideration the implication that such incident may have on the life of P W 2, it is inconceivable that P W 4 would tutor her against the respondent and PWs 1 and 3 would accept such invented story If P. W 2 had sustained such an injury accidentally, it is inconceivable that she, a child of six years imagined an event of sexual assault The parents of P W 2 would not have gone to the police if the injury had been accidental, for they would be conscious of traumatic effect on psychology of the child and disastrous consequences likely to ensue when the child grows up We therefore decline to accept the defence theory that the complaint was in furtherance of ill-will between p W 4 and the respondent and that lady medical officer was not honest in the present case ( 39 ) THE medical evidence indicates the attempt on the part of the respondent to commit rape and consequently we hod that the respondent is guilty of an offence of attempting to commit rape punishable under Section 376 read with Section 511 of the IPC ( 40 ) AS regards the other offence of criminal intimidation, the alleged threat is not such as to presume any offence under Section 506 of the ipc Therefore, we do not wish to interfere in the order of acquittal for that offence ( 41 ) IN the result and for the reasons stated above, we allow the appeal and set aside the acquittal of the respondent and convict him for an offence punishable under Section 376 read with Section 511 of the ipc ( 42 ) NOW coming to the aspect of sentencing, learned Counsel for the respondent prays for time to keep the respondent present List the appeal during next week to hear regarding sentence s R Bannurmath and A C Kabbin, JJ 18-3-2005 order REGARDING SENTENCE heard both the learned Additional State Public Prosecutor and the learned Counsel for the respondent regarding sentence whereas the plea of the prosecution is for a stringent punishment of not less than five years, the prayer of the learned Counsel for the respondent is for a lenient view, taking into consideration the pathetic health condition of the respondent at present on the last occasion, the respondent had appeared with the plea that he was suffering from tuberculosis and had been affected by paralysis We had noticed his condition and had noted his disability to move without the assistance of another person. Therefore, by order dated 11-3-2005 we had directed that he should appear before the Superintendent of Victoria Hospital, bangalore, for medical checkup In furtherance of the same, the medical Board has sent a report which shows that he is suffering from pulmonary tuberculosis, which though has considerably healed, has weakened him He is also suffering from paralysis and in the opinion of the Medical Board, the disability is to the extent of 65% in relation to his left upper limb and left lower limb The certificate shows that this disability is not likely to improve though on facts of the case, we are of the opinion that maximum sentence of five years imprisonment and fine may be imposed on the respondent, in view of his poor health condition which requires constant attendance by an attendant, we feel that no purpose will be served in sending him to prison, for that would require the prison authorities to keep him in prison hospital and look after him The nature itself has punished him sufficiently requiring no further punishment by the Court, except imposing fine, which we fix at Rs 10,000/- A verification of the records shows that the respondent was in custody for about twenty-three days for the above said reasons, we sentence the respondent to simple imprisonment for the period equivalent to the period of detention he has undergone, and to pay a fine of Rs 10,000/- (Rupees Ten thousand only) in default to undergo simple imprisonment for six months. If the fine amount is realised, an amount of Rs. 8,000/- shall be paid to the victim i. e. , P. W. 2. S. R. Bannurmath and A. C. Kabbin, JJ. : 8-4-2005 order ON 'for BEING SPOKEN TO' it is seen that by mistake, the judgment writer while typing the preamble before the judgment has wrongly typed the matter relating to another appeal. Since it being a typographical mistake, the same is ordered to be substituted by the following:"this criminal appeal is filed under Section 378 (1) and (3) of the Cr. P. C. , by the State praying to grant leave to file an appeal against the judgment dated 7-6-1999 passed by the learned Principal Sessions Judge, Chickmagalur, in s. C. No 37 of 1992 acquitting the respondent/accused for the offences punishable under Sections 376 and 506 of the IPC". --- *** --- .