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2012 DIGILAW 766 (GAU)

State of Tripura v. Md. Alfu Miah

2012-06-20

SWAPAN CHANDRA DAS

body2012
JUDGMENT S.C. Das, J. 1. This criminal appeal under Section 378 of Cr. P.C. is directed against the judgment and order of acquittal of the respondent-Alfu Miah, from the charges framed against him under Section 376 r/w Section 511 of IPC, vide judgment dated 20.06.2005, in connection with Sessions Trial No. ST (WT/A)/2004, passed by learned Assistant Sessions Judge (Court No.1), West Tripura, Agartala. prosecution case is that accused-respondent, Alfu Miah (hereafter mentioned as accused), a neighbour of informant, Abdul Haque (PW.1) (father of the victim girl), was engaged as a private tutor of the prosecutrix (name kept withheld), a minor girl, aged about 9/10 years, a student of Class IV, and the accused used to impart tuition normally in the house of the informant at evening time. Abdul Haque, being fell ill, was hospitalized at G.B. Hospital, Agartala, w.e.f. 01.04.2004 and his wife Mafia Khatun (PW.4) was with him in the hospital to take his care, and their two sons and the daughter (prosecutrix) were at their home at village-Uttar Gajaria, under P.S. Bishalgarh. 1.2 On 04.04.2004 in the evening, the accused came to the house of the informant and asked the prosecutrix to accompany him to his house for her tuition saying that he will not able to impart tuition to her on that day in her house, and that he will give her tuition in his house. Her brother Riaz Hussain, though initially objected but allowed the prosecutrix to go with the accused to his house for her private tuition, and accordingly she accompanied the accused to his house and the accused imparted tuition to her. After her tuition was over at about 8.00/9.00 pm, the prosecutrix was coming out from the hut of the accused and at that time accused caught her, taken away her books from her hand and laid her on a cot (locally called 'Macha' made of bamboo), and thereafter, the accused put off her under pant, laid over her and tried to commit rape on her. At that moment, Rabindra Mallik (PW.2), a neighbour came to the house of the accused to search his son as to whether his son had been there or not to take his tuition, and he entered into the hut and found the prosecutrix lying on the cot and the accused, standing by the side of the cot. At that moment, Rabindra Mallik (PW.2), a neighbour came to the house of the accused to search his son as to whether his son had been there or not to take his tuition, and he entered into the hut and found the prosecutrix lying on the cot and the accused, standing by the side of the cot. Seeing Rabindra Mallik, the accused left the prosecutrix and she returned to her house. 1.3 The parents of the prosecutrix (PWs.1 and 4) returned home from G.B. Hospital in the evening of 05.04.2004 and the prosecutrix reported the incident to her parents. PW.1, father of the prosecutrix enquired about the matter from Rabindra Mallik (PW.2), who also narrated the fact to him. Mother of the accused requested PW.1 to settle the matter through local Panchayat but he did not agree. 1.4 Since Abdul Haque (PW.1) was ill and was not in a position to go to the police station, he wrote an FIR and sent the same to Officer the In-charge of Bishalgarh P.S. through his wife (PW.4), and accordingly, the Officer In-charge, Bishalgarh P.S. registered Bishalgarh P.S. Case No.31 of 2004 under Section 376 r/w Section 511 of IPC and one Sri Prasun Kanti Tripura, SI of Bishalgarh P.S. was entrusted the charge for investigation. Accordingly, on completion of investigation, the investigating police officer submitted charge sheet against the accused-Alfu Miah for commission of offence punishable under Sections 376/511 of IPC, and accordingly cognizance was taken and in due course, the case was transferred to the Court of learned Assistant Sessions Judge, Court No.1, West Tripura, Agartala for trial. 1.5 In course of trial, the following charges were framed against the accused to which he pleaded not guilty and claimed to be tried. That, you on 4.4.2004, at about 9.00 pm in your house at Gajaria under Bishalgarh P.S. attempted to commit rape upon Kumari Nirala Begum @ Pinku, D/O. Md. Abdul Haque, a girl aged about 10 years of age and in such attempt did a certain act towards the commission of the said offence, to wit, caught hold of said Kumari Nirala Begum, D/O. Md. Abdul Haque and forcibly take her on your bed with the intention of committing an offence punishable under section 376 read with section 511 of I.P.C. and within my cognizance. Abdul Haque and forcibly take her on your bed with the intention of committing an offence punishable under section 376 read with section 511 of I.P.C. and within my cognizance. 1.6 To prove the charge, prosecution examined 6 (six) witnesses and also proved the documents namely, the FIR, hand-sketch map of the place of occurrence, etc. Out of the witnesses examined by the prosecution, PW.3 is the minor victim girl (prosecutrix) and PWs. 1 and 4 are her parents. PW.2 is a close neighbour of the accused and the informant and he is a star witness of the prosecution, who has seen the occurrence. PW.5 is also a neighbour and a relative of PWs.1 and 4. PW.6 is the investigating officer of the case. 1.7 After recording of prosecution evidence was over, the accused was examined under Section 313 of Cr. P.C. and thereafter on call, though he initially desired to examine witness but L.C. record shows that ultimately, the accused neither examined himself nor examined any other witness in his favour. 1.8 Defence case, so far ascertained from the trend of cross-examination as well as from the statement of the accused under Section 313 of Cr. P.C is bare denial of the prosecution case. In course of his examination under Section 313 of Cr. P.C. in response to question No.9, as to whether he has anything to say about the case, the accused stated that the father of the victim belongs to a political party, to which he is a rival. Out of the political rivalry he has been tagged in the case and moreover, he is impotent and long before lost his sexual capacity and he is incapable of doing intercourse with the victim, for which he did not marry also. 2. Heard learned Addl. P.P., Mr. A. Ghosh for the State appellant and learned amicus curiae, Mr. D.C. Roy for the accused-respondent. 3. It is submitted by learned Addl. P.P., Mr. Ghosh that the accused was engaged as private tutor of the prosecutrix by her parents and he normally used to impart tuition in the house of the prosecutrix. 2. Heard learned Addl. P.P., Mr. A. Ghosh for the State appellant and learned amicus curiae, Mr. D.C. Roy for the accused-respondent. 3. It is submitted by learned Addl. P.P., Mr. Ghosh that the accused was engaged as private tutor of the prosecutrix by her parents and he normally used to impart tuition in the house of the prosecutrix. But on the date of occurrence i.e. on 04.04.2004, when the parents of the prosecutrix were away from her, which was known to the accused, being a neighbour, he took her in his house to impart tuition, and when tuition was over, the accused with a view to satisfy his brutal lust, made an attempt to commit rape on her. He laid the prosecutrix on his cot, put off her pant and thereafter he laid on her and tried to penetrate his male organ in the vagina of the minor girl. It is further submitted by learned Addl. P.P. that the prosecutrix was aged about 9/10 years and she was helpless when her tutor himself was molesting her and it cannot be expected that such a minor girl, in whom the sexual characters were not developed, as may be presumed, will raise cry at once or try to resist her tutor. She made a natural statement about the occurrence. It is not disputed that the accused was the private tutor of the prosecutrix and on the evening of the date of occurrence, he took her to his house for imparting private tuition. PW.2, an independent witness, whose presence in the house of the accused is not denied, categorically stated that he found the prosecutrix in lying condition on the cot of the accused and the accused was standing by the side of the cot when he entered into the house to enquire about his son. PW.2 fully corroborated the version of the prosecutrix, and under such circumstances, there was no room to disbelieve the oral evidence of the victim, which inspires confidence. The trial Court, in a stroke of a pen, discarded the prosecution story on the ground that PW.2 did not found the prosecutrix and the accused in naked condition, and therefore, acquitted the accused, which is liable to be interfered by this Court. The prosecution evidence, so far adduced before the trial Court, is sufficient to hold that the accused committed an offence of attempt to rape. Learned Addl. The prosecution evidence, so far adduced before the trial Court, is sufficient to hold that the accused committed an offence of attempt to rape. Learned Addl. P.P., therefore, prayed for punishment of the accused. 4. Learned amicus curiae, Mr. D.C. Roy has submitted that PW.2 in his cross-examination stated that he found the prosecutrix lying on the cot and she was wearing a frock, covering up to her knee and the accused was wearing a 'lungi'. PW.2 entered into the room suddenly without calling the accused, so, had there been any such attempt of committing rape by the accused, he would have found the accused and prosecutrix naked and the accused, lying on the victim, and therefore, the trial Court rightly held that the prosecution case as placed before the Court was doubtful. While the trial Court arrived at a decision of acquittal of the accused, the appellate Court may not interfere in the finding, since two possible inferences may be drawn that the accused might have committed the offence or might not have committed the offence. Learned counsel, therefore, prayed for sustaining the order of acquittal of the accused. 5. I have meticulously gone through the evidence and materials on record and the impugned judgment passed by the learned Assistant Sessions Judge. This is a case of attempt to commit rape on a minor girl, aged about 9/10 years by her private tutor, while she went to the house of the private tutor (accused) to take her tuition at the instance of the tutor himself. It is a very serious allegation for which the trial Court ought to be very sensitive and would examine the evidence of the prosecutrix and consider the surrounding circumstances with great alertness and sensitivity. 6.1 The Supreme Court on repeated occasions observed in strong language about the responsibilities of the Courts while trying a case of like nature. It is a very serious allegation for which the trial Court ought to be very sensitive and would examine the evidence of the prosecutrix and consider the surrounding circumstances with great alertness and sensitivity. 6.1 The Supreme Court on repeated occasions observed in strong language about the responsibilities of the Courts while trying a case of like nature. 6.2 In the case of Kundula Bala Subrahmanyam and another v. State of Andhra Pradesh, reported in 1993 CRI LJ 1635: (1993) 2 SCC 684 , the Apex Court held thus: The role of courts, under the circumstances assumes greater importance and it is expected that the courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities or insignificant lacunas in evidence as otherwise the criminals would receive encouragement and the victims of crimes would be totally discouraged by the crime going unpunished. The courts are expected to be sensitive in cases involving crimes against women. 6.3 In the case of Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty, reported in AIR 1996 SC 922 , the Apex Court held thus: Rape is not only a crime against the person of a woman (victim). It is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is violative of the victim's most cherished of the Fundamental Rights, namely, the right to life contained in Article 21. 6.4 In the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, reported in AIR 1983 SC 753 , the Apex Court held thus: A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit 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 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. 6.5 In the case of State of Punjab v. Gurmit Singh and Others, reported in AIR 1996 SC 1393 , the Apex Court held thus: Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harms in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of the victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. 6.6 In the case of State of Rajasthan v. Om Prakash reported in (2002) 5 SCC 745 , the Apex Court held- Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of the sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity. In such cases, responsibility on the shoulders of the Courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection. Children are the natural resource of our country. They are country's future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other modes of sexual abuse. These factors point towards a different approach required to be adopted. It is necessary for the courts to have a sensitive approach when dealing with cases of child rape. The effect of such a crime on the mind of the child is likely to be life-long. A special safeguard has been provided for children in the Constitution of India in Article 39. 7.1 Let us now travel through the evidence on record. Since the evidence of the prosecutrix is of prime importance, let us first see her evidence. She stated, on the date of incident her father was undergoing treatment in G.B. Hospital, Agartala and her mother was also in the hospital for looking after her father. At that time she was a student of Class-IV and on that day her elder brother and younger brother were in the house. Accused Alfu Miah was her private tutor. House of Alfu Miah was situated after 5/6 houses from their house. It was a Sunday. At that time she was a student of Class-IV and on that day her elder brother and younger brother were in the house. Accused Alfu Miah was her private tutor. House of Alfu Miah was situated after 5/6 houses from their house. It was a Sunday. At the evening at about 7.00 pm, while she was reading in her house, at that time her private tutor Alfu Miah, whom she used to call as 'Nana"(uncle), came to her house and told her to go with him in his house for private tuition but her elder brother Riaz Hussain objected. Accused told that otherwise he will not impart private tuition on that evening. Thereafter, she went to the house of Alfu Miah along with the accused and took her tuition. After completion of tuition, while she was leaving the room of the accused, at that moment, accused Alfu Miah took her books from her hand and laid her on the 'Macha'. He put off her pant and got up on her and tried to penetrate his penis through her vagina. He closed the door of the hut. At that time, Rabindra Mallik came to the house of the accused for searching his son and when opened the door, just at that moment, the accused left her and stood up on the floor inside the hut. Rabindra Mallik found her lying on the 'Macha' and asked the accused whether his son came there for tuition and on getting reply in negative from the accused he left the house. Thereafter, the accused threatened her not to disclose the matter to anybody and threatened her with dire consequences. On the subsequent day in the afternoon, her parents returned to their home from hospital and she told them about the entire incident. At the time of committing attempt to rape, the accused caught her mouth for which she could not raise cry. She also stated that at the time of incident a 'kupi bati' was lightning inside the hut. In cross-examination, she denied the suggestion that the accused did not laid her down on the 'Macha' and did not try to commit rape on her, undressing her pant. Munim Mia was her uncle and his house was situated adjacent to their house. The next house belonged to the accused. Some other students also used to take tuition from the accused. Munim Mia was her uncle and his house was situated adjacent to their house. The next house belonged to the accused. Some other students also used to take tuition from the accused. The accused cautioned them when they were not ready with their lessons. Mother of the accused also used to reside in the same house and she was an old woman. She had no knowledge whether there was any incident or quarrel between the accused and her elder brother. She knew her uncle Majarul Hussain. Sister-in-law of Majarul used to come to his house. On the day of incident, Alfu Miah taught her Bengali, English, Mathematics, Social Study, etc. On question by defence, she told that she stated to 'Darogababu' that the accused before lying her down on the 'Macha' had taken away the books from her hands and closed the door, etc. Attention was drawn to the previous statement recorded under Section 161 of Cr. P.C. and reply thereto, not recorded, and therefore, the statement has no consequence. She denied the suggestion that the accused did not threaten her and also did not tell her not to disclose the incident to anybody. She also denied the suggestion that she was deposing falsely as per dictation of her father, and that on the date of incident she was not ready with her lesson, and so the accused admonished her. Learned Assistant Sessions Judge recorded a certificate at the bottom of the statement that before recording her deposition he tested her by putting some questions, which she answered and he was satisfied that the witness had the understanding of speaking the truth. 7.2 PW.2 is an independent witness, a neighbour of both the accused and the informant. In his deposition he stated that she knew the informant Abdul Haque and the accused Alfu Miah. Abdul Haque lodged the complaint against the accused Alfu Miah. Alfu Miah was private tutor of his son also. On a Sunday, about three months ago he went to the house of Alfu Miah to enquire whether his son went to the house of the accused for taking tuition and he arrived there at about 7.30/8.00 pm. Abdul Haque lodged the complaint against the accused Alfu Miah. Alfu Miah was private tutor of his son also. On a Sunday, about three months ago he went to the house of Alfu Miah to enquire whether his son went to the house of the accused for taking tuition and he arrived there at about 7.30/8.00 pm. He directly entered into the house of Alfu Miah and the door was found open and he found daughter of Abdul Haque lying on the bed of the 'Macha' and also found accused Alfu Miah standing near the 'Macha' on the ground. Thereafter, he left the place and went to the house of Jamal Hussain. He told to Jamal Hossain that he saw the daughter of Abdul Haque lying on the bed of the accused inside the house and the accused was found standing on the ground near the bed and it looked odd to him. After two days of the incident Abdul Haque called him and asked about the incident and he told him what he had seen. At the relevant time of incident, Abdul Haque and his wife were in G.B. Hospital. He found no other person in the hut of the accused at that relevant time. In cross examination, he stated that he searched his son 2/3 houses before arrival in the house of the accused on that night. Mother of the accused used to reside with him in the same house. He entered into the hut of the accused directly without calling/knocking the accused. He found Alfu Miah dressed with a 'lungi' and a 'ganji'. He also found daughter of Abdul Haque wearing a frock covering her knee. At that time a 'cupi-bati' was lighting inside the hut. 7.3 PWs.1 and 4 are the parents of the prosecutrix. They narrated the story of the prosecutrix as stated to them about the incident. PW.1 lodged the FIR with the Officer In-charge, Bishalgarh P.S. narrating the incident. Since he was ill he sent the FIR through his wife and accordingly the police case was registered. They materially corroborated the version of the prosecutrix. Their evidence has not been shaken in any manner in cross-examination. 7.4 PW.5 is the cousin brother of PW.1 and he also stated in the same tune of PWs.1 and 4. 8. Since he was ill he sent the FIR through his wife and accordingly the police case was registered. They materially corroborated the version of the prosecutrix. Their evidence has not been shaken in any manner in cross-examination. 7.4 PW.5 is the cousin brother of PW.1 and he also stated in the same tune of PWs.1 and 4. 8. Learned Sessions Judge noted down the crux of the deposition of PWs.1 to 6 and recorded his finding in paragraph 9 of the judgment thus: 9. Those are the position of evidence of prosecution. On analysis of the evidence of P.Ws. it is clear that only Rabindra Mallik, P.W.2 is the material witness in this case who according to the victim had seen the incident. The informant and his wife also vociferously stated that after hearing the story of incident from their daughter, P.W.3 they got corroboration of the fact from P.W.2, Rabindra Mallik. But it is strange to note Rabindra Mallik as P.W.2 has stated different things, he had neither seen the victim in naked condition lying on the Macha of the accused nor had seen accused in naked condition. P.W.2 further clarified that he found door of the house of the accused open when he came to ascertain whether his son had come there to take lesson. In such a position the uncorroborated testimony of the victim is unreliable and as such whole story is doubtful when the accused had taken plea that father of the victim was trying to evict the accused from that area with a view to grab his land who has no man-power or money-power. The prosecution has failed to prove the case against the accused beyond doubt as such accused is entitled to get benefit of doubt. 9. The above finding of the trial Court shows how leisurely and casually the Court has taken the decision without applying mind to the gravity of the allegation and the evidence on record. Deposition of the prosecutrix has not been shaken in any manner. It is not disputed that the accused was the private tutor of the prosecutrix and on the alleged date and time the accused took her to his house for imparting tuition. It is also not disputed that Rabindra Mallik (PW.2) entered into the hut of the accused and found her lying on the cot(Macha) and the accused standing by the side of the 'Macha'. It is also not disputed that Rabindra Mallik (PW.2) entered into the hut of the accused and found her lying on the cot(Macha) and the accused standing by the side of the 'Macha'. There is not even a suggestion put to PW.2 that he did not go there and did not see the prosecutrix and the accused inside the room while the prosecutrix was lying on the bed and he was standing by the bed side. The evidence of PW.2 corroborated the statement of the prosecutrix in all material particulars. The statement made by the prosecutrix that accused laid her down on the 'Macha', and thereafter put off her pant and then he laid on her and tried to penetrate his penis in her vagina has not been shaken in any manner. The trial Court just picked up an inference that since Rabindra Mallik did not found the prosecutrix and the accused in naked condition and since he found the door in open condition, the prosecution case was wholly doubtful, and so acquitted the accused. This is absolutely a finding recorded by learned trial Judge with a view to somehow dispose the case recording an order of acquittal. Learned Assistant Sessions Judge has failed to appreciate the evidence in its right direction and, no doubt, arrived at a wrong finding. The prosecutrix clearly stated that when Rabindra Mallik opened the door just at that moment accused left her and stood up on the floor. This portion of the statement of the prosecutrix has not been shaken in any manner. It was quite natural that Rabindra Mallik, as soon as entered into the hut, the accused got down from the 'Macha'. It cannot be expected that even after Rabindra Mallik entered into the room the accused would still lie upon the victim to show Rabindra Mallik that he was engaged in molesting the prosecutrix. Further, the prosecutrix stated that accused only put off her pant. So, naturally, Rabindra found her with her frock, which was not put off by the accused. Further, the prosecutrix stated that the accused while laying her down on the cot closed the door of the hut. There is nothing that the accused after closing the door bolted it from inside to prevent anybody from entering into the room. The door was just shut and so Rabindra Mallik entered into the room, which the prosecutrix clearly stated. Further, the prosecutrix stated that the accused while laying her down on the cot closed the door of the hut. There is nothing that the accused after closing the door bolted it from inside to prevent anybody from entering into the room. The door was just shut and so Rabindra Mallik entered into the room, which the prosecutrix clearly stated. Learned trial Judge failed to appreciate the fact on the clear statement made by the prosecutrix in her deposition. There is nothing on record that the relationship between the accused and the family of the prosecutrix was so strained that she was planted by her parents to make a false allegation. PW.1 in his deposition stated that there was a quarrel between the accused and his elder son Riaz. There is nothing in the statement of the accused that for that reason he has been falsely implicated. I have already reproduce the defence case what the accused has stated in his examination under Section 313 of Cr. P.C. Learned Assistant Sessions Judge in paragraph 9 of the judgment observed that the prosecution case was not reliable since the accused had taken a plea that father of the victim was trying to vacate the accused from the area with a view to grab his land and the accused had no manpower and money power. It is not understood from where learned Assistant Sessions Judge imported the said fact. There is no such fact stated by any of the witnesses on that score. In his examination under Section 313 of Cr. P.C. the accused rather stated a different story contrary to what the trial Court has noted. It shows that learned Assistant Sessions Judge without going through the evidence on record just mechanically recorded an order of acquittal. It is not at all believable, in the facts and circumstances, that the parents of the prosecutrix arranged a false case through her touching her chastity and feature. In almost a similar case i.e. in the case of Om Prakash (supra), the Apex Court while appreciating evidence has held- Cases involving sexual molestation and assault require a different approach-a sensitive approach and not an approach which a court may adopt in dealing with a normal offence under penal laws. In almost a similar case i.e. in the case of Om Prakash (supra), the Apex Court while appreciating evidence has held- Cases involving sexual molestation and assault require a different approach-a sensitive approach and not an approach which a court may adopt in dealing with a normal offence under penal laws. It was also sought to be suggested that there were some disputes between the accused and the father of the prosecutrix over exchange of some land and that is the reason for their implicating the accused. There is nothing reliable on the record to substantiate that aspect. No such suggestion was even put in the cross-examination of the father of the prosecutrix. On the facts in hand, we find it difficult to accept that the revenge on account of alleged dispute regarding exchange of land would be taken by the father of the prosecutrix by foisting on the accused a false case of rape involving his young daughter particularly in the setting of a village environment. The ratio of the observation made by the Apex Court in the reported case may be gainfully applied in the facts of this case. There is no reason to make a false allegation against the accused. Hence, I have no hesitation to hold that the trial Court failed to appreciate the evidence in its right perspective and arrived at a wrong and perverse finding. 10. The charge framed against the accused is for attempt to commit rape. The sequence of the allegation made against the accused shows that with a view to satisfy his brutal lust he took the prosecutrix to his house on that evening when her parents were away from the house, on the pretext of imparting her tuition in his house. The accused being a grown up man and tutor of the prosecutrix was bound to secure the tender age of the prosecutrix and to protect her from the abuse of her childhood. The accused has just done the reverse. Taking the advantage of his position as a tutor he made an abrupt attempt of rape and in the process molested the prosecutrix. An attempt of committing rape is perhaps not less serious offence than commission of rape itself as it leads to an assault on the most valuable possession of a woman i.e. her character, reputation, dignity and honour. Taking the advantage of his position as a tutor he made an abrupt attempt of rape and in the process molested the prosecutrix. An attempt of committing rape is perhaps not less serious offence than commission of rape itself as it leads to an assault on the most valuable possession of a woman i.e. her character, reputation, dignity and honour. While the accused laid the prosecutrix on bed, put off her pant and he himself laid on the prosecutrix and tried to penetrate his penis in her vagina, it is enough to hold that the accused made an attempt to commit rape. The ingredients of offence under Sections 376/511 of IPC, therefore, in my considered opinion, is established beyond reasonable shadow of doubt. 11.1 Learned trial Judge acquitted the accused on benefit of doubt. It should be understood by a criminal Court as to when the benefit of doubt should be given to an accused of criminal offence. The Apex Court in the case of Kali Ram v. State of Himachal Pradesh, reported in AIR 1973 SC 2773 : (1973) SCC(Criminal) 1048 has held- The golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. It is also an accepted rule that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable: it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. 11.2 Lord Denning in Bater v. Bater reported in (1950) 2 All E.R. 458 at page 459 has observed that doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter. 11.2 Lord Denning in Bater v. Bater reported in (1950) 2 All E.R. 458 at page 459 has observed that doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter. 11.3 In the case of K. Gopal Reddy v. State of Andhra Pradesh reported in (1979) 1 SCC 355 the Apex Court while explaining "reasonable doubt" observed thus- The right of the appellate Court to review the entire evidence and to come to its own conclusion bearing in mind the consideration mentioned by the Privy Council in Sheo Swarup case and affirmed by the Supreme Court in Sanwat Singh's case is beyond dispute. In some later decisions of the Supreme Court it has been said that to the principles laid down in Sanwat Singh case may be added the further principle that "if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the finding of the trial Court". This, of course, is not a new principle. It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced view of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. A reasonable doubt does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other; it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons. A reasonable doubt does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other; it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons. In the present case, the finding of the trial Court giving benefit of doubt to the accused is not based on any reason bereft of a reasonable doubt, and I have no hesitation to hold that with a view to record an order of acquittal by any means the trial Court allowed benefit of doubt, most mechanically without proper appreciation of the evidence on record. 12.1 Regarding appreciation of evidence in cases of rape it has now been well settled that the evidence of victim/prosecutrix, if inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. 12.2 In the case of Gurmit Singh (supra) the apex Court has held- While evaluating the evidence the court must remain alive to the fact that in a case of rape no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such as are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. 12.3. In the case of Bhoginbhai Hirjibhai (supra), the Apex Court observed-In Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroborations as a rule, is adding insult to injury, unless her evidence suffers from any basic infirmity or improbability. 12.4 In the case of Karnel Singh v. State reported in (1995) 5 SCC 518 the Apex Court held-A victim of sexual assault is not an accomplice and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. At the most the Court may look for some evidence which lends assurance. 12.4 In the case of Karnel Singh v. State reported in (1995) 5 SCC 518 the Apex Court held-A victim of sexual assault is not an accomplice and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. At the most the Court may look for some evidence which lends assurance. 12.5 In the case in hand, the minor prosecutrix made a very cogent and natural statement. She is fully corroborated by PW.2. Her evidence inspires all confidence. There is no strong case made out by the defence to put the evidence of prosecutrix at a den. 13.1 In a criminal trial, the accused is presumed to be innocent until and unless he is found guilty of the offence charged against him. In a case of acquittal there is double presumption in favour of the accused that he was tried presuming to be innocent and the trial Court acquitted him from the charge. Putting emphasis on balance between importance of individual liberty and evil of acquitting guilty persons, the Apex Court, in the case of Shivaji Sahabrao Bobade & another v. State of Maharashtra, reported in (1973) 2 SCC 793 has held- 6. 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 through 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. 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 jurisprudential 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 enhance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analyzing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant. In India the law has been laid down on these lines long ago. 13.2 In the case of K. Gopal Reddy v. State of Andhra Pradesh, reported in (1979) 1 SCC 355 the Apex Court has held- 9. The principles are now well settled. At one time it was thought that an order of acquittal could be set aside for "substantial and compelling reasons" only and Courts used to launch on a search to discover those "substantial and compelling reasons". However, the 'formulae' of "substantial and compelling reasons", "good and sufficiently cogent reasons" and "strong reasons" and the search for them were abandoned as a result of the pronouncement of this Court in Sanwat Singh and other v. State of Rajasthan: AIR 1961 SC 715 . In Sanwat Singh case, this Court harked back to the principles enunciated by the Privy Council in Sheo Swarup v. Emperor 61 I.A. 398 and reaffirmed those principles. In Sanwat Singh case, this Court harked back to the principles enunciated by the Privy Council in Sheo Swarup v. Emperor 61 I.A. 398 and reaffirmed those principles. After Sanwat Singh v. State of Rajasthan, this Court has consistently recognized the right of the Appellate Court to review the entire evidence and to come to its own conclusion bearing in mind the considerations mentioned by the Privy Council in Sheo Swarup's case. Occasionally phrases like 'manifestly illegal', 'grossly unjust', have been used to describe the orders of acquittal which warrant interference. But, such expressions have been used more, as flourishes of language, to emphasise the reluctance of the Appellate Court to interfere with an order of acquittal than to curtail the power of the Appellate Court to review the entire evidence and to come to its own conclusion. In some cases Ramabhupala Reddy and other v. The State of A.P. (1970) 3 SCC 474 , Bhim Singh Rup Singh v. State of Maharashtra (1974) 3 SCC 762 , it has been said that to the principles laid down in Sanwat Singh's case may be added the further principle that "if two reasonable conclusions can be reached on the basis of the evidence on record, the Appellate Court should not disturb the finding of the Trial Court". This, of course, is not a new principle. It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. "A reasonable doubt", it has been remarked, "does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other; it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons". As observed by Lord Denning in Miller v. Minister of Pensions [1947] 2 All ER 372, "Proof beyond a reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable' the case is proved beyond reasonable doubt, but nothing short of that will suffice". In Khem Karan and other v. State of U.P. (1974) 4 SCC 603 , this Court observed: Neither mere possibilities nor remote possibilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony. 13.3 In the case of Bhagwan Singh and other v. State of Madhya Pradesh as reported in (2002) 4 SCC 85 the Apex Court has held- 7. We do not agree with the submissions of the learned counsel for the appellants that under Section 378 of the Code of Criminal Procedure the High Court could not disturb the finding of facts of the trial court even if it found that the view taken by the trial court was not proper. We do not agree with the submissions of the learned counsel for the appellants that under Section 378 of the Code of Criminal Procedure the High Court could not disturb the finding of facts of the trial court even if it found that the view taken by the trial court was not proper. On the basis of the pronouncements of this Court, the settled position of law regarding the powers of the High Court in an appeal against an order of acquittal is that the Court has full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal the presumption of innocence in favour of the accused is reinforced. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate court but Judge-made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or any of the accused has committed any offence or not. Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. In the instant case the trial court acquitted the appellants by not relying upon the testimony of three eyewitnesses, namely, Kiran (PW 7), Mukesh (PW 12) and Jagdish (PW 22) on considerations which apparently appeared to be extraneous. Such findings of acquittal apparently are based upon erroneous views or the result of ignoring legal and admissible evidence with the result that the findings arrived at by the trial court are held to be erroneous. Such findings of acquittal apparently are based upon erroneous views or the result of ignoring legal and admissible evidence with the result that the findings arrived at by the trial court are held to be erroneous. The High Court has ascribed valid reasons for believing the statements of those witnesses by pointing out the illegalities committed by the trial court in discarding their testimonies. The High Court has also rightly held that the trial court completely ignored the basic principles of law in criminal jurisprudence which entitles the accused to claim the benefit of right of self-defence. Without there being any legal and admissible evidence but swayed by finding some injuries on the person of the accused, the trial court wrongly held that the appellants were justified in causing the death of three persons in exercise of their right of self-defence. No fault, therefore, can be found in the judgment of the High Court on this ground. 14. The approach of the appellate courts in a case of acquittal has been clearly discussed by the Apex Court in the case of Batcu Venkateshwarlu & other v. Public Prosecutor, High Court of Andhra Pradesh, reported in (2008) 16 SCC 256, the Apex Court, referring to it's several earlier case laws, concluded in paragraph 19 of the judgment thus- 19. 22. 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. Referring to the interdependence of evidence and the confirmation of one piece of evidence by another, a learned author says [See the Mathematics of Proof II. Glanville Williams, Criminal Law Review, 1979, by Sweet and Maxwell, p.340 (342)]:- 'The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other.' 23. 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 overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons 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. It must grow out of the evidence in the case. 24. 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 legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated in State of U.P. v. Krishna Gopal (1988) 4 SCC 302 . The above position was also highlighted in Krishnan and another v. State (2003) 7 SCC 56 . This position was illuminatingly stated in State of U.P. v. Krishna Gopal (1988) 4 SCC 302 . The above position was also highlighted in Krishnan and another v. State (2003) 7 SCC 56 . In view of the discussions made above, I have no hesitation to come to the conclusion that the trial Court committed gross injustice in acquitting the accused from the charges on benefit of doubt in the facts and circumstances of the case. The trial Court, as it appears, has obstinately blundered in acquitting the accused-respondent and the perverse finding has produced a glaring miscarriage of justice and therefore, High Court has full power to review the evidence upon which the order of acquittal was recorded, and to reach the conclusion upon that evidence the order of acquittal should be reversed and accordingly I did so. The charge framed against the accused under Section 376 r/w Section 511 IPC has been established and the accused is accordingly convicted.