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2014 DIGILAW 1939 (HP)

Dharam Sain v. State of H. P.

2014-12-18

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Rajiv Sharma, J. 1. This appeal is instituted against the judgment dated 23.12.2010, rendered by the learned Addl. Sessions Judge, Kinnaur at Rampur, H.P., in Sessions Trial No. 25-AP/7 of 2008/2010, whereby the appellant-accused (hereinafter referred to as the accused) who was charged with and tried for offences under Sections 376 & 506 of the IPC, was convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/- and in default to further undergo simple imprisonment for one year under Section 376 IPC. He was further sentenced to rigorous imprisonment for 2 years and to pay fine of Rs. 5,000/- and in default to further undergo simple imprisonment for 6 months under Section 506 IPC. The amount realized from the accused was ordered to be paid to the prosecutrix as compensation. 2. The case of the prosecution, in a nut shell, is that on 4.4.2007, complainant Sohan Lal visited Police Station Nirmand alongwith the prosecutrix, his daughter aged 11 years. He lodged the report. He had been living in a rented house at Village Thachwa alongwith his family for the last two years. On 3.4.2007, when he came back to his quarter at 7/8 PM after doing labour work at Jagatkhana, his wife Kamla Devi told him that the prosecutrix had told her during day time that she was feeling pain in her private part and on inquiry she told her that on 31.3.2007, during day time, when no family member was present in the quarter, the accused person came there and committed rape on her and threatened to do away with her life in case she disclosed this incident to any other person. The complainant also made inquiry from the prosecutrix, who narrated him the same story. Thereafter, he alongwith the prosecutrix visited Police Station Nirmand and reported the matter to the police, on the basis of which, FIR No. 35 of 2007 under Sections 376 and 506 IPC was registered. The prosecutrix was got medically examined. The case property was sent to FSL, Junga. The investigation was completed and challan was put up against the accused after completing all the codal formalities. 3. The prosecution has examined as many as 16 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C to which he pleaded not guilty. His case is of simpliciter denial. The investigation was completed and challan was put up against the accused after completing all the codal formalities. 3. The prosecution has examined as many as 16 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C to which he pleaded not guilty. His case is of simpliciter denial. The learned Trial Court convicted and sentenced the accused, as stated hereinabove. Hence, the present appeal. 4. Mr. Satyen Vaidya, Advocate, appearing for the accused has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. P.M.Negi, Dy. Advocate General, has supported the judgment of the learned Addl. Sessions Judge, Kinnaur at Rampur, H.P. dated 23.12.2010. 5. We have heard learned counsel for the parties and gone through the records of the case meticulously. 6. PW-1, Mohinder Singh deposed that on 5.4.2007, police moved an application Ext. PW-1/A for obtaining the birth certificate of the prosecutrix. He issued certificate Ext. PW-1/B and copy of Nakal Parivar Register Ext. PW-1/C & Ext. PW-1/D. The date of birth of the prosecutrix was 17.9.1995. 7. PW-2 Dr. Yashoda Anand, deposed that on 4.4.2007 Lady Constable brought the prosecutrix with the alleged history of sexual intercourse with her on 31.3.2007 at about 1:30 PM. She was aged about 11 years and 4 months. According to her opinion, there were no signs of recent sexual intercourse and she reserved the final opinion to be given after examining the samples. On 12.6.2007, after perusing the forensic report, she opined that there were no signs of sexual intercourse. The police again took her opinion on 25.6.2007 regarding point No. 3. She opined that hymen was partially ruptured and healed. She also gave opinion that rupture of hymen could also occur due to sudden stretching like due to fall and sport injury. She gave another opinion on 18.7.2007 at the request of the police. She opined that hymen was ruptured and healed. The pain could be due to some other causes. Exact period of injury could not be given. The redness and tenderness could be due to uncleanness of the external genitalia or due to some other reason. According to her, it could not be clearly stated that there was penetration/partial penetration. She has given the opinions on 12.6.2007 vide Ext. PW-2/D, on 25.6.2007 vide Ext. PW-2/E and on 18.7.2007 vide Ext. The redness and tenderness could be due to uncleanness of the external genitalia or due to some other reason. According to her, it could not be clearly stated that there was penetration/partial penetration. She has given the opinions on 12.6.2007 vide Ext. PW-2/D, on 25.6.2007 vide Ext. PW-2/E and on 18.7.2007 vide Ext. PW-2/F. She had given the final opinion Ext. PW-2/D on 12.6.2007 on the basis of the FSL report, Mark ?XY?. In her cross-examination, she admitted that in case the victim is minor or virgin and she is subjected to forcible sexual intercourse by an adult male, in that event, there is every possibility of injuries to the labia majora/labia minora. She did not notice any injuries on labia majora/labia minora. She did not notice any tear on the edges of hymen. 8. PW-3 Dr. D.S.Billawria, has examined the accused. He has issued MLC Ext. PW-3/B. 9. PW-4 Uma Sharma has issued the date of birth certificate vide Ext. PW-4/B. The date of birth of the prosecutrix was 17.9.1995. 10. PW-5 Sh. Devender Sahani has issued date of birth certificate of the accused Ext. PW-2/B. The date of birth of the accused was 2.5.1983. 11. PW-6 Sohan Lal is the father o the prosecutrix. According to him on 3.4.2007, he had gone to Jagatkhana for doing labour work and after finishing his work, he returned to his quarter at about 7-8 PM. His wife told him that the prosecutrix had complained of pain in her vagina. On asking by her mother, the prosecutrix told her mother that on 31.3.2007 at about 1-1:30 PM, the accused came to their quarter and he had committed sexual intercourse with the prosecutrix in the bath room. He also inquired from the prosecutrix in the presence of his wife. The prosecutrix disclosed him that the accused had committed rape upon her and also threatened her. The FIR could not be lodged due to night time. He went to the Police Station next day. FIR Ext. PW-6/A was registered. In his cross-examination, he deposed that accused was his immediate neighbourer. The mother of Dharam Sain used to reside with him in his house. He has not informed anyone after the alleged occurrence as there was none who should have been informed by him. His elder brother was residing at Tunan village and he has no telephone facility. In his cross-examination, he deposed that accused was his immediate neighbourer. The mother of Dharam Sain used to reside with him in his house. He has not informed anyone after the alleged occurrence as there was none who should have been informed by him. His elder brother was residing at Tunan village and he has no telephone facility. He has told the mother of the accused regarding the occurrence but mother of the accused alongwith accused and younger brother of the accused had assembled to beat him and his family members. The younger brother of the accused was having danda in his hand but he and his family was not given beatings by the younger brother of the accused. He has told this fact to the police. However, he did not know why the police has not recorded this fact in FIR. The distance between Thachwa and Jagatkahana is about one kilometer and it takes 15 minutes to reach Jagatkahana on foot. The contents of the FIR were read over to him. 12. PW-7 is the prosecutrix. She deposed that on 31.3.2007, she was alone in her house. She had gone to fetch water from the tank. She kept the same in the bath-room. The accused was already present in the bath-room. He gagged her mouth with cloth. He caught hold of her from her both arms and laid her on the floor of the house in the bathroom. She tried to raise alarm. Accused opened the string of her salwar forcibly and committed sexual intercourse with her and blood started oozing out of her vagina which spread over the salwar. The accused thereafter threatened her to do away with her life in case she disclosed about the incident to her parents. The quarter of the accused was adjoining to their rented accommodation. She was not feeling well after 3.4.2007 and her mother asked her as to why she was not feeling well. On this she started crying and narrated the incident to her mother. Her mother further disclosed this incident to her father. Her father in the presence of her mother also inquired from her about the incident. On next day i.e. on 4.4.2007, she alongwith her father and mother came to the Police Station Nirmand and lodged the FIR Ext. PW-1/A. Her date of birth was 17.9.1995. Her mother further disclosed this incident to her father. Her father in the presence of her mother also inquired from her about the incident. On next day i.e. on 4.4.2007, she alongwith her father and mother came to the Police Station Nirmand and lodged the FIR Ext. PW-1/A. Her date of birth was 17.9.1995. In her cross-examination, she deposed that she kept on sleeping w.e.f. 31.3.2007 to 3.4.2007. She also admitted categorically in her cross-examination that she did not sustain any injury when accused committed sexual intercourse with her. 13. PW-8 Kamla is the mother o the prosecutrix. According to her on 3.4.2007, she inquired from the prosecutrix as to what had happened to her and why she was not feeling well. She disclosed that she was having pain in her private part. She further disclosed to her that on 31.3.2007 when the prosecutrix was alone and she was in school and in the day time when she brought water from tank and came to bathroom the accused was already in bath room who gagged the mouth of the prosecutrix with cloth and caught hold of her from both arms and forcibly laid her down on the floor. Thereafter, after removing the string of the salwar, he committed sexual intercourse with her daughter. He also threatened her to do away with her life in case she disclosed the incident to her parents. On 3.4.2007, she disclosed the entire incident to her husband. Her husband also inquired about the incident from the prosecutrix in her presence and she narrated the incident to her husband also. Due to night hours, they could not lodge the FIR. On 4.4.2007, she alongwith the prosecutrix and her husband went to Nirmand and FIR was lodged and medical examination of the prosecutrix was got conducted in CHC Hospital Nirmand. In her cross-examination, she deposed that she alongwith her mother called mother of accused to their house but she threatened to give beatings to all her family members. Dharam Sain and his younger brother who was having danda in their hands came to attack them. The accused and his family members did not beat them. They had also disclosed this to the police at the time of recording FIR against the accused. The salwar of the prosecutrix was handed over to the police on the same day in the police station. The accused and his family members did not beat them. They had also disclosed this to the police at the time of recording FIR against the accused. The salwar of the prosecutrix was handed over to the police on the same day in the police station. The prosecutrix was given another salwar for wearing after the salwar was taken into possession by the doctor. The prosecutrix was having injuries on the private part. 14. PW-9 Dr. Kapil Malhotra deposed that he was posted as Medical Officer MGMSC Hospital Khaneri. On 27.7.2007, on the request of the police, he has opined that penetration can lead to the partial rupture of hymen. Hymenal tags may be present even after full intercourse. He gave his opinion Ext. PW-9/A. 15. PW-10 LC Reema Devi deposed that after medical examination of the prosecutrix, the MO handed over one sealed cloth parcel stated to be containing vaginal slides, vaginal swab, one printed salwar, one envelope and sample of seal. He handed over the sealed parcel, envelope and sample of seal to MHC Mohar Singh. 16. PW-11 Const. Mohar Singh deposed that MHC Mohar Singh handed over to him the case property and he deposited the same at FSL Junga on the same day vide RC No. 24/2007. 17. Statements of PW-12 Ravinder Kumar and PW-13 Binu Ram are formal in nature. 18. PW-14 SI Harish Chand Thakur has investigated the case. He arrested the accused and collected the birth certificate and extract of Parivar register from Panchayat Secretary which are Ext. PW-1/B and PW-1/C. He also procured the extract of admission register from the Principal Govt. Girls Sr. Secondary School, Rampur Bushahr vide letter Ext. PW-4/A and the certificate issued by the Principal is Ext. PW-4/B. He also collected the birth certificate of accused vide letter Ext. PW-5/A and PW-5/B. 19. PW-15 SI Brij Lal has got medically examined the prosecutrix at CHC Nirmand. He went alongwith the prosecutrix and her father to the spot. He prepared the spot map Ext. PW-15/A. He recorded the statement of the witnesses. He obtained birth certificate of the prosecutrix Ext. PW-1/B. 20. PW-16 ASI Mohar Singh deposed that on 4.4.2007, complainant Sohan Lal had visited PS Nirmand alongwith his daughter and lodged FIR Ext. PW-6/A. He scribed application Ext. PW-2/A for conducting medical examination of the prosecutrix and sent her to PHC Nirmand under the supervision of Const. Reema. He obtained birth certificate of the prosecutrix Ext. PW-1/B. 20. PW-16 ASI Mohar Singh deposed that on 4.4.2007, complainant Sohan Lal had visited PS Nirmand alongwith his daughter and lodged FIR Ext. PW-6/A. He scribed application Ext. PW-2/A for conducting medical examination of the prosecutrix and sent her to PHC Nirmand under the supervision of Const. Reema. He sent the case property to FSL Junga through Const. Mohar Singh on 16.4.2007. In his cross-examination, he admitted that at the time of lodging the FIR, the mother was not accompanying the prosecutrix. At the time of lodging the FIR or thereafter, the prosecutrix or her parents did not present the salwar of the prosecutrix to the police in his presence. 21. According to the prosecution case, the incident has happened between 1-1:30 PM on 31.3.2007. The FIR was registered on 4.4.2007. According to PW-8 Kamla, the mother of the prosecutrix, she inquired from the prosecutrix on 3.4.2007 as to what had happened to her. The prosecutrix narrated her the entire incident. Thereafter, she disclosed this fact to her husband on 3.4.2007 at 7-8:00 PM. The FIR could not be registered since it was night time. The FIR was registered on 4.4.2007. Similarly, PW-6 Sohan Lal deposed that her wife PW-8 Kamla had told him how the incident has happened. According to PW-8 Kamla, she has also gone to the Police Station with the prosecutrix. However, PW-16 ASI Mohar Singh has categorically admitted that at the time of lodging the FIR, the mother was not accompanying the prosecutrix. According to the prosecutrix, she remained sleeping w.e.f. 31.3.2007 to 3.4.2007. It is not believable that the prosecutrix would remain sleeping w.e.f. 31.3.2007 to 3.4.2007. The Police Station was not at a very far off place. It is well settled by now that the delay in registration of the FIR cannot be fatal in every case. The prosecution can always explain the delay. In the instant case, the delay has not been satisfactorily explained for lodging the FIR belatedly. 22. The prosecution version is also not corroborated by the medical evidence. The prosecutrix was examined by PW-2 Dr. Yashoda Anand on 4.4.2007. PW-2 Dr. Yashoda Anand, has given the opinion after examining the victim. According to her, there were no signs of recent sexual intercourse and final opinion was given after chemical examination of the samples. The FSL report is Ext. The prosecutrix was examined by PW-2 Dr. Yashoda Anand on 4.4.2007. PW-2 Dr. Yashoda Anand, has given the opinion after examining the victim. According to her, there were no signs of recent sexual intercourse and final opinion was given after chemical examination of the samples. The FSL report is Ext. PW-14/B. No semen was found on the parcels. PW-2 Dr. Yashoda Anand gave the final opinion on 12.6.2007. It reads as under: ?After seeing the forensic report of the samples sent for chemical examination, I am of the opinion that there are no signs of sexual intercourse.? 23. The police has again sought for her opinion after the final opinion. She gave the opinion on 25.6.2007. According to her, the rupture of the hymen could occur due to sudden stretching like due to fall, sport injury etc. She has mentioned that hymen was partially ruptured and healed. It was not suggestive of pre-existing traumatic cause. The police again sought her another opinion and she gave the same on 18.7.2007. She had given the opinion that hymen was ruptured and healed. The pain could be due to some other cause. The exact duration of injury could not be given. The redness and tenderness could be due to uncleanness of the external genitalia or due to some other reason. According to her, it could not be clearly stated that there was penetration/partial penetration. In her cross-examination, PW-2 Dr. Yashoda Anand has admitted, as noticed hereinabove, that she has not noticed injuries on labia majora/labia minora. She has not noticed any tear on the edges of hymen. The prosecutrix had appeared as PW-7 and in her cross-examination also, she has admitted that she did not sustain any injury when the accused committed forcible intercourse with her. 24. The prosecution has also sought the opinion of PW-9 Dr. Kapil Malhotra. He has given the opinion vide Ext. PW-9/A. PW-9 Dr. Kapil Malhotra was never shown the MLC Ext. PW-2/C. His opinion is dated 27.7.2007. The incident has taken place on 31.3.2007. The prosecutrix was minor. In case, there was forcible intercourse with her, there was every possibility of swelling of labia majora/labia minora. According to PW-2 Dr. Yashoda Anand, as noticed by us hereinabove, has specifically opined that there was no recent sexual intercourse. Moreover, no semen was found on the clothes of the prosecutrix. 25. The prosecutrix was minor. In case, there was forcible intercourse with her, there was every possibility of swelling of labia majora/labia minora. According to PW-2 Dr. Yashoda Anand, as noticed by us hereinabove, has specifically opined that there was no recent sexual intercourse. Moreover, no semen was found on the clothes of the prosecutrix. 25. Their Lordships of the Hon'ble Supreme Court in Aman Kumar and another vs. State of Haryana, (2004) 4 SCC 379 have held that it is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Their Lordships have further held that penetration is the sine qua non for an offence of rape and 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. Their Lordships have further held that in examination of genital organs, state of hymen offers the most reliable clue. Their Lordships have held as under: ?5. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would suffice. 7. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would suffice. 7. 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 (See Joseph Lines IC & K 893). It is well-known in the medical world that the examination of smegma loses all importance after twenty four hours of the performance of the sexual intercourse. (See Dr. S.P. Kholi, Civil Surgeon, Ferozepur v. High Court of Punjab and Haryana thr. Registrar (1979) 1 SCC 212 ). In rape cases, if the gland of the male organ is covered by smegma, it negatives the possibility of recent complete penetration. If the accused is not circumcised, the existence of smegma round the corona gland is proof against penetration, since it is rubbed off during the act. The smegma accumulates if no bath is taken within twenty four hours. The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majora. These, viz. labia majora are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. Further, examination of the females for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC.? 26. Their Lordships of the Hon'ble Supreme Court in Tarkeshwar Sahu vs. State of Bihar (now Jharkhand), (2006) 8 SCC 560 have held no offence under Section 376 IPC can be made out unless there was penetration to some extent and in absence of penetration to any extent would not bring the offence within the four corners of Section 375 of the Indian Penal Code. Their Lordships have held as under: ?10. Under Section 375 IPC, six categories indicated above are the basic ingredients of the offence. In the facts and circumstances of this case, the prosecutrix was about 12 years of age, therefore, her consent was irrelevant. The appellant had forcibly taken her to his Gumti with the intention of committing sexual intercourse with her. The important ingredient of the offence under Section 375 punishable under Section 376 IPC is penetration which is altogether missing in the instant case. No offence under Section 376 IPC can be made out unless there was penetration to some extent. The appellant had forcibly taken her to his Gumti with the intention of committing sexual intercourse with her. The important ingredient of the offence under Section 375 punishable under Section 376 IPC is penetration which is altogether missing in the instant case. No offence under Section 376 IPC can be made out unless there was penetration to some extent. In absence of penetration to any extent would not bring the offence of the appellant within the four corners of Section 375 of the Indian Penal Code. Therefore, the basic ingredients for proving a charge of rape are the accomplishment of the act with force. The other important ingredient is penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim completely, partially or slightly would be enough for the purpose of Sections 375 and 376 IPC. This Court had an occasion to deal with the basic ingredients of this offence in the case of State of U.P. v. Babul Nath. In this case, this Court dealt with the basic ingredients of the offence under Section 375 in the following words:- "8. It may here be noticed that Section 375 of the IPC defines rape and the Explanation to Section 375 reads as follows: "Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape." From the Explanation reproduced above it is distinctly clear that ingredients which are essential for proving a charge of rape are the accomplishment of the act with force and resistance. To constitute the offence of rape neither Section 375 of IPC nor the Explanation attached thereto require that there should necessarily be complete penetration of the penis into the private part of the victim/prosecutrix. In other words to constitute the offence of rape it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen. Even partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purpose of Sections 375 and 376 of IPC. Even partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purpose of Sections 375 and 376 of IPC. That being so it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains. But in the present case before us as noticed above there is more than enough evidence positively showing that there was sexual activity on the victim and she was subjected to sexual assault without which she would not have sustained injuries of the nature found on her private part by the doctor who examined her." 27. Their Lordships of the Hon'ble Supreme Court in Yerumalla Latchaiah vs. State of A.P. (2006) 9 SCC 713 have held that when the prosecutrix aged 8 years at the time of alleged occurrence and according to evidence of the doctor who examined the prosecutrix immediately after the occurrence, there was no sign of rape, the evidence of prosecutrix belied by medical evidence. Their Lordships have held as under: 3. In the present case, age of the victim was only eight years at the time of alleged occurrence. Immediately after the occurrence, she was examined by Dr. K. Sucheritha (PW-7) who has stated in her evidence that no injury was found on any part of the body of the victim, much less on private part. Hymen was found intact and the doctor has specifically stated that there was no sign of rape at all. In the medical report, it has been stated that vaginal smears collected and examined under the microscope but no sperm detected. The evidence of the prosecutrix is belied by the medical evidence. In our view, in the facts and circumstances of the present case, the High Court was not justified in upholding the conviction.? 28. In the medical report, it has been stated that vaginal smears collected and examined under the microscope but no sperm detected. The evidence of the prosecutrix is belied by the medical evidence. In our view, in the facts and circumstances of the present case, the High Court was not justified in upholding the conviction.? 28. Their Lordships of the Hon'ble Supreme Court in Narender Kumar vs State (NCT of Delhi), (2012) 7 SCC 171 have held that it is for the prosecution to establish each ingredient of the offence beyond reasonable doubt on basis of cogent evidence and material on record and the prosecution cannot establish its case merely on basis of suspicion and moral belief, howsoever strong it may be or by taking support from weaknesses of defence case. Their Lordships have held as under: 29. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide: Tukaram & Anr. v. The State of Maharashtra,, AIR 1979 SC 185 ; and Uday v. State of Karnataka, AIR 2003 SC 1639 ). 30. Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. 30. Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected.? 29. Their Lordships of the Hon'ble Supreme Court in K. Venkateshwarlu vs. State of Andhra Pradesh (2012) 8 SCC 73 have held that a child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. His statement can be accepted only if court comes to conclusion that child understands questions put to him and he is capable of giving rational answers and that child is not tutored and his evidence has a ring of truth. Their Lordships have held as under: ?5. The High Court has set aside order of acquittal. This court has repeatedly stated what should be the approach of the High Court while dealing with an appeal against acquittal. If the view taken by the trial court is a reasonably possible view, the High Court cannot set it aside and substitute it by its own view merely because that view is also possible on the facts of the case. The High Court has to bear in mind that presumption of innocence of an accused is strengthened by his acquittal and unless there are strong and compelling circumstances which rebut that presumption and conclusively establish the guilt of the accused, the order of acquittal cannot be set aside. Unless the order of acquittal is perverse, totally against the weight of evidence and rendered in complete breach of settled principles underlying criminal jurisprudence, no interference is called for with it. Crime may be heinous, morally repulsive and extremely shocking, but moral considerations cannot be a substitute for legal evidence and the accused cannot be convicted on moral considerations. The present appeal needs to be examined in light of above principles. 9. Crime may be heinous, morally repulsive and extremely shocking, but moral considerations cannot be a substitute for legal evidence and the accused cannot be convicted on moral considerations. The present appeal needs to be examined in light of above principles. 9. Several child witnesses have been relied upon in this case. The evidence of a child witness has to be subjected to closest scrutiny and can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers (see Section 118 of the Evidence Act). A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the court. Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the court decides to rely upon it. 11. Having perused the evidence of all the witnesses, we find it difficult to rely on them. We feel that the trial court had rightly discarded their evidence as unworthy of reliance and the High Court erred in taking it into consideration. This, in our opinion, is a case where neither the evidence of parents of victim PW-2 Aruna nor the evidence of PW- 2 Aruna, nor the evidence of child witnesses, who claim to have witnessed the incident, nor the medical evidence supports the prosecution case. Besides, all the pancha witnesses have turned hostile, a fact which we have noted with some anguish. Besides, all the pancha witnesses have turned hostile, a fact which we have noted with some anguish. A needle of suspicion does point out to the appellant because he is a police constable and in a small village where the incident took place, witnesses may be scared to depose against him because of his clout. There are certain circumstances which do raise suspicion about the appellant's involvement in the crime. The children were playing on the terrace of the appellant. The appellant was not arrested by police till 4.9.1998. The demeanour of PW-2 Aruna, the tears in her eyes, her walking out of the court after looking at the appellant, pricks the judicial conscience. But convictions cannot be based on suspicion, conjectures and surmises. We are unable to come to a conclusion that the trial court's judgment is perverse. For want of legal evidence we will have to set aside the appellant's conviction and sentence. But we make it clear that we are doing so only by giving him benefit of doubt.? 30. Consequently, in view of the analysis and discussion made hereinabove, the prosecution has failed to prove its case conclusively that the accused had raped the prosecutrix. The circumstances noticed by us hereinabove creates reasonable doubt in the version of the prosecution. The lodging of the FIR belatedly has not been explained in view of the attendant circumstances, as stated hereinabove. The version of the prosecution is also not supported by the medical evidence. 31. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 23.12.2010, rendered by the learned Addl. Sessions Judge, Kinnaur at Rampur, Distt. Shimla, in Sessions trial No. 25-AP/7 of 2008/2010, is set aside. The accused is acquitted of the charges framed under Sections 376 and 506 IPC, by giving him benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 32. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.