Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 864 (HP)

Sohan Singh v. State of Himachal Pradesh

2014-07-08

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : - Rajiv Sharma, Judge. This appeal is directed against the judgment dated 11.5.2009 rendered by the Additional Sessions Judge, Fast Track Court, Shimla in Sessions Trial No. 3-S/7 of 2009 whereby the appellant-accused (hereinafter referred to as the “accused” for convenience sake), who was charged with and tried for offence punishable under section 376 of the Indian Penal Code, has been convicted and sentenced to undergo rigorous imprisonment for a period of 14 years and to pay a fine of Rs. 25,000/- under section 376 of the Indian Penal Code and in default of payment of fine, he has been ordered to undergo rigorous imprisonment for a period of two years. 2. Case of the prosecution, in a nutshell, is that a written complaint dated 12.10.2008 (Ex.PW-2/A) was lodged with the Station House Officer, Police Station, Dhalli by PW-2 Ramla Thakur (mother of prosecutrix). According to her, she and her family members were residing in village Malyana in the house of Sh. Sant Singh Kanwar. Her husband was running a tyre repair/puncture shop at Malyana. She was mother of only one daughter. She was approximately 5 years old. She was studying in K.G. Class. On 10.10.2008, in the evening, the prosecutrix told her that she is having great pain and burning sensation in her private parts. She checked the private parts of her daughter and found swelling. Next day, on 11.10.2008, she took her daughter to Kamla Nehru Hospital, Shimla for check up. The doctor told that the prosecutrix has been sexually abused and referred her to Indira Gandhi Medical College and Hospital, Shimla for check up/treatment. When the Medical officer conveyed to her that her daughter has been sexually assaulted, she remembered that on 7.10.2008 at about 7.30 P.M. she was preparing meals in the kitchen. The prosecutrix was playing in the verandah. When she came out of kitchen, she found that prosecutrix was not there in the verandah. She inquired about the whereabouts of her daughter from the neighbourers. Deepak alias Dinu disclosed to her that prosecutrix was in the quarters of Sohan Singh. She went to the room of accused. She found that the light inside the room was switched off and the curtains fixed on the windows were drawn. A towel had been hung on the window which was not having curtain. Deepak alias Dinu disclosed to her that prosecutrix was in the quarters of Sohan Singh. She went to the room of accused. She found that the light inside the room was switched off and the curtains fixed on the windows were drawn. A towel had been hung on the window which was not having curtain. She knocked at the door of the room of accused which was bolted from inside. On hearing the knock, accused, who was inside the room, told the prosecutrix that her mother has come. He would open the bolt of the door and prosecutrix should go out of the room. The prosecutrix returned home. She inquired from prosecutrix as to why she had gone to the room of accused in the dark. She started weeping. The complainant did not pay any heed to the crying of the prosecutrix as the accused was having cordial relations with them. After returning from Kamla Nehru Hospital, she asked her daughter as to what the accused had done with her. The prosecutrix disclosed that she was sexually assaulted by the accused. The complainant narrated the entire incident to her husband on the basis of which endorsement Ex.PW-10/B was made by the S.H.O. Accordingly, FIR No.221 of 2008 was registered at Police Station, Dhalli. The matter was investigated by the police. On the basis of the information supplied by the prosecutrix, site plan showing the place of incident was prepared. Three pieces of cloth, towel, underwear and bed sheet of the accused were taken into possession. The clothes of prosecutrix were also taken into possession. The same were sent for chemical test to the Himachal Pradesh Forensic Science Laboratory, Junga. The report of Forensic Science Laboratory, Junga was obtained. Human semen and blood were detected on the pieces of cloth. The extract of the O.P.D. register of Kamla Nehru Hospital, Shimla where the prosecutrix was initially examined on 11.10.2008 was obtained. After completing all the codal formalities, challan was put up in the Court. 3. Prosecution examined as many as 13 witnesses in all to prove its case against the accused. Statement of the accused was also recorded under section 313 of the Code of Criminal Procedure. According to him, he was working as a cook in Woodville Hotel, Shimla. After completing all the codal formalities, challan was put up in the Court. 3. Prosecution examined as many as 13 witnesses in all to prove its case against the accused. Statement of the accused was also recorded under section 313 of the Code of Criminal Procedure. According to him, he was working as a cook in Woodville Hotel, Shimla. On the night of 12.10.2008, at about 11.00 P.M. while he was returning home from the hotel, he was waylaid by Balbir Singh and Atma Ram near the shop of Balbir Singh. He was stopped by them and given beatings on account of earlier dispute between him and Balbir Singh on account of cable wire. He was rescued by Pratap Singh and Baru Ram. He reported the matter to the police on the basis of which FIR No. 220/08 was registered in Police Station, Dhalli. He was got medically examined by the police and injuries were found on his person. The police visited the spot and wanted to interrogate Balbir Singh. Thereafter, the present case was foisted upon him. Learned trial court convicted and sentenced the accused, as noticed hereinabove. Hence, the present appeal. 4. Mr. K.S. Kanwar has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. Parmod Thakur, learned Additional Advocate General has supported the judgment passed by the trial court. 6. We have heard the learned counsel for the parties and have perused the record carefully. 7. Statement of PW-1 Ruby alias Muskan was recorded without oath. According to her, she knew accused. His name was Sohan Singh. The accused was residing near to their house. She used to go to play on the back side of her house. One day, accused took her to his house. He took off her trousers and did “Gandi Gandi Baaten” with her. Accused climbed upon her. The accused was naked. He had hung his Pajama. Nothing happened to her when the accused did “Gandi Gandi Baaten” with her. Again said, she felt the pain in her private parts. There was light inside the room. Her mother knocked at the door. She came out of the house of accused. She did not narrate the incident to anyone. Again said, she narrated the incident to her mother. She was taken to the doctor in the morning. Again said, she felt the pain in her private parts. There was light inside the room. Her mother knocked at the door. She came out of the house of accused. She did not narrate the incident to anyone. Again said, she narrated the incident to her mother. She was taken to the doctor in the morning. In her cross-examination, she has deposed that she was playing with her friend Smriti. None else was playing with them. House of Smriti was located in a different building. When the accused took her to his house, Smriti was not there. When her mother came, accused opened the bolt of the door of his house. She went with her mother to their house. She narrated the entire incident to her mother at home. Her father was not in the house. Her mother rang up her father. Her father came to the house. She narrated the incident to her father as well. Before she narrated the occurrence to her parents, the police had come. When the police came, her mother did not tell her that the police has come to catch her father. When the police came, her parents told her to state the incident to the police. Again said, she was not asked by her parents to state so before the police. She went to the hospital twice. 8. PW-2 Ramla Thakur has deposed that her husband runs a tyre puncture repair shop in Malyana. They live in the house of Sant Singh Kanwar. She knew the accused. He resided just near to their house. They had in good relations with the accused. On 7.10.2008 in the evening, she was in her house and chopping the vegetables. Krishna, daughter of her sister and Dinesh, cousin of Krishna were sitting with her in the verandah of their house. After sometime, she went inside the kitchen to cook the food. Krishna left for her house. Dinesh and accused took the prosecutrix with them to the house of accused. Dinesh came out of the house of accused. She came out of the house to look for her daughter. She went to the room of Dinesh in search of her daughter. She was not in the house of Dinesh. She inquired from Dinesh about the whereabouts of the prosecutrix. He told that she was in the house of accused. She went to the house of accused. She came out of the house to look for her daughter. She went to the room of Dinesh in search of her daughter. She was not in the house of Dinesh. She inquired from Dinesh about the whereabouts of the prosecutrix. He told that she was in the house of accused. She went to the house of accused. The lights of the house of accused were switched off. She knocked at the door of the house of accused. Accused said to the prosecutrix that her mother has come to take her. Accused opened the bolt of the door of his house. The prosecutrix came out. She slapped the prosecutrix since she was annoyed as she had left the house during evening hours without completing her home/school work. The prosecutrix then went to sleep. They did not notice anything wrong. Next morning, she went to the hospital to see the son of her “Jeth”, who was admitted in the hospital. As the schools were closed, prosecutrix accompanied her to the hospital. She was not comfortable while walking. In the evening, she and prosecutrix returned to their house. On the next day, son of her Jeth, who was unwell and her mother-in-law, who had come there, left for their native village Gehal in District Sirmaur. On the same day, at about 10.00 A.M. she and prosecutrix were sitting in a room of their house. Prosecutrix told her that she was having pain in her private parts. She took off her Pajami. She noticed that the private parts of the prosecutrix were red and there was some swelling. She inquired from the prosecutrix as to what has happened. She in turn said that nothing has taken place. On her asking the prosecutrix time and again, she remarked that accused has told her that in case she disclosed about the incident to anyone, her parents would beat her. Thereafter, the prosecutrix told her that two days earlier, in the evening, the accused had taken her to his house and subjected her to sexual intercourse. She rang up her husband and called him to the house. She did not narrate the incident to her husband. On being asked, the prosecutrix even divulged the entire incident in front of her father. Her husband and she felt ashamed of the incident. Thereafter, she and her husband took the prosecutrix to Kamla Nehru Hospital, Shimla. She rang up her husband and called him to the house. She did not narrate the incident to her husband. On being asked, the prosecutrix even divulged the entire incident in front of her father. Her husband and she felt ashamed of the incident. Thereafter, she and her husband took the prosecutrix to Kamla Nehru Hospital, Shimla. She went inside the room of the doctor when her daughter was checked by the doctor. Doctor inquired from her as to what has happened. She conveyed to the doctor that prosecutrix is felling pain because of hot weather. The doctor told that the prosecutrix has been raped. The doctor told that it is a police case. The prosecutrix was referred to I.G.M.C. They went back to their house from Kamla Nehru Hospital. Her husband remarked that he would inquire from the accused as to what he has done. In the evening, her husband called the accused and inquired from him about the entire episode. Accused might have admitted his guilt before her husband and a quarrel might have taken place between her husband and accused. Next morning, the accused brought the police to their house. They wanted to keep mum to avoid defamation. When the police starting harassing them, they showed the O.P.D. Slip of Kamla Nehra Hospital to the police and narrated the incident. Thereafter, her husband went to the Police Station with the police. She went to Police Station at 2.30 P.M. and lodged complaint Ex.PW-2/A. The prosecutrix was got medically examined by the police. On the basis of complaint Ex.PW-2/A, police investigated the case. One towel, which had been hung by the accused and curtain were taken into possession by the police. Perhaps, a piece of cloth was also taken into possession by the police. A bed sheet was also taken into possession by the police. A parcel was prepared by the police and sealed. She handed over the Pajami and under wear of the prosecutrix, which she was wearing at the time of incident to the police. She identified Ex.P-1 to P-4 and Ex.P-6 to P-8. In her cross-examination, she has deposed that police came to their house for the first time on 14.10.2008 after she lodged the complaint Ex.PW-2/A. Earlier, the police had come on the complaint of accused. On 7.10.2008, no talk about the incident took place between her and her husband. She identified Ex.P-1 to P-4 and Ex.P-6 to P-8. In her cross-examination, she has deposed that police came to their house for the first time on 14.10.2008 after she lodged the complaint Ex.PW-2/A. Earlier, the police had come on the complaint of accused. On 7.10.2008, no talk about the incident took place between her and her husband. When she reported the matter to the police, she had told the police that accused was beaten up by her husband. Confronted with Ex.PW-2/A where it was not so recorded. When the police had come to their house prior to the lodging of Ex.PW-2/A, the accused was with the police. The prosecutrix was taken to Kamla Nehru Hospital by her and her husband on 11.10.2008. She has denied the suggestion that she told the police that the prosecutrix had narrated the incident to her for the first time while they were returning from Kamla Nehru Hospital. Confronted with portion ‘A’ to A-1 of Ex.PW-2/A where it was so recorded. She has also denied the suggestion that thereafter she narrated the incident to her husband. Confronted with portion B to B-1 of Ex.PW-2/A where it was so recorded. She had written in the complaint that on 7.10.2008, when she brought the prosecutrix from the house of accused and gave her a slap, she went to sleep. Confronted with Ex.PW-2/A where it was not so recorded. Her husband told her on 11.10.2008 at about 9.00 P.M. that he has given beatings to the accused. She might have disclosed in her complaint or statement mark ‘A’ before the police that on 8.10.2008, she had gone to Snowdon Hospital to meet the son of her ‘Jeth’, who was unwell. Confronted with Ex.PW-2/A and mark ‘A’ where it was not so recorded. She has admitted that on 8.10.2008, no talk regarding the incident took place between her and the prosecutrix or her husband and the prosecutrix. The prosecutrix was taken to I.G.M.C. on 12.10.2008 for medical examination. She did not know that the accused had lodged a complaint to the effect that he was stopped on the way by her husband and Atma Ram and they gave beatings to him and injuries were found on his person. She has admitted that the police had come to arrest her husband. On 12.10.2008, her husband had gone to Police Station, Dhalli in the morning. She has admitted that the police had come to arrest her husband. On 12.10.2008, her husband had gone to Police Station, Dhalli in the morning. Thereafter, she was called by the police to Police Station. She has admitted that the prosecutrix used to go to the house of accused even prior to the date of incident. 9. PW-3 Deepak alias Dinu has deposed that he was residing with his parents in Gazta Niwas, Malyana. He knew the accused. He also knew Balbir Singh, father of the prosecutrix. The accused and complainant party were staying at a distance of about 15 feet from their residence. Accused and Balbir Singh were putting up in the same building. The date was 7th, he did not remember the month, the year was 2008, about 2-3 months ago, he had gone to the house of her sister. He came in the morning. He saw nothing. Police joined him during investigation. He was declared hostile by the prosecution. 10. PW Balbir Singh and Sant Singh were given up to avoid repetition. 11. PW-4 Suraj Kumar has proved O.P.D. register Ex.PW-4/A. 12. PW-5 Dr. (Mrs.) Vandana Bhuria has deposed that a female child who was five years old was brought by her mother to the hospital for check up on 11.10.2008. The name of child was Ruby. The mother told that her daughter was complaining itching. She inquired from the mother of the child about any history of sexual assault. The mother answered in the affirmative. She discussed the matter with their Professor of the Unit Dr. Renu Sharma. O.P.D. slip was prepared. It was handed over to the attendant of the child. An entry was also made in the O.P.D. register. 13. PW-6 Shanta Kanwar has deposed that the relations between the accused and Balbir Singh were cordial. The parties used to visit the houses of each other frequently. Police visited the spot on 14.10.2008. The police enquired from the prosecutrix about the details of the incident. The prosecutrix took the police to the house of the accused. The prosecutrix told the police that accused made the prosecutrix to sleep on a bed and hug the towel on the window. Nothing else was told by the prosecutrix to the police in her presence. 14. The police enquired from the prosecutrix about the details of the incident. The prosecutrix took the police to the house of the accused. The prosecutrix told the police that accused made the prosecutrix to sleep on a bed and hug the towel on the window. Nothing else was told by the prosecutrix to the police in her presence. 14. PW-11 Bhupinder Sharma told the police that on 11.10.2008 at about 6.30 P.M. he came from his godown and parked his car outside the shop of Balbir Singh. He went to the temple. After about an hour when he was returning from the temple, accused, Balbir Singh and Atma Ram came in his car. He stopped his car near the temple. He also got into the car. Thereafter, all of them went towards Kasumpti. When they reached near Ghanuti, Balbir Singh and accused Sohan Singh started quarreling with each other. Balbir slapped the accused and enquired from him as to what he has done. He asked Balbir as to why he has slapped the accused. Accused started apologizing and remarked that he has committed a mistake. He enquired from the accused about the mistake committed by him. On this, Balbir Singh told him that his daughter has been raped by the accused. He advised Balbir Singh to approach the police instead of fighting with the accused. Thereafter he drove the car and brought the accused and Balbir Singh to his shop. He got down from the car. Atma Ram was also with them. In his cross examination he has deposed the distance between Police Station Dhalli and shop of Balbir Singh is 10 kms. He did not know as to whether Balbir went to the police station on that day. Balbir Singh did not ask him to take him in his car to the police station. Even he did not offer Balbir Singh that he will take him to the police station. Many slaps were given by Balbir Singh to the accused. The latter even suffered injuries and was bleeding. The fight had taken place at 8.30 p.m. He did not ask Balbir Singh to take the accused to the doctor. 15. PW-8 Dr. Mrs. Geetika Gupta has deposed that she was on duty in Kamla Nehru Hospital from 9.00 p.m. onwards on 12.10.2008. The latter even suffered injuries and was bleeding. The fight had taken place at 8.30 p.m. He did not ask Balbir Singh to take the accused to the doctor. 15. PW-8 Dr. Mrs. Geetika Gupta has deposed that she was on duty in Kamla Nehru Hospital from 9.00 p.m. onwards on 12.10.2008. She received a call from the I.G.M.C. Thereafter, she went to I.G.M.C. The patient was brought to the hospital with alleged history of rape by Sohan Lal on 7.10.2008 at about 7.30 p.m. Mother of prosecutrix also gave the history of rape. The clothes of the victim had been changed and washed as per the statement of her mother. Victim had also been given bath many times after the alleged sexual assault. She examined the victim in the presence of a lady constable and her mother. She was conscious, cooperative and oriented. She did not notice signs of external injury (scratch marks, abrasions and bruises) on body parts. No foreign body or stain in her body parts was detected. On local examination of external genitalia, there was redness on bilateral labia majora and minora of size about 4 x 1.5 cms with well defined margins. No tenderness, swelling or scratch marks were seen. No evidence of any abrasions, laceration was seen on any part of external genitalia. Hymen was intact. No evidence of bleeding or any discharge was found. She took vaginal swab on slide, vaginal swab in saline, swab from external genitalia in test tube. Nail clippings of fingers were also taken. All the samples were sealed by her by affixing the seal of the hospital and handed over to the police for being sent for chemical analysis. She gave the opinion that it could not be commented upon rape at present, but penetration has not occurred as hymen was intact. Final report was reserved by her till the receipt of the report of Chemical Examiner. She issued Medico Legal Certificate Ex.PW-8/B. On 6.1.2009, the police brought the chemical report Ex.PW-8/C before her alongwith an application. According to her opinion, as no blood and semen stains were found on the exhibits/samples sent by her, the possibility of recent sexual intercourse was ruled out. She gave opinion Ex.PW-8/D on 6.1.2009. She received another application Ex.PW-8/E on 9.1.2009. She issued Medico Legal Certificate Ex.PW-8/B. On 6.1.2009, the police brought the chemical report Ex.PW-8/C before her alongwith an application. According to her opinion, as no blood and semen stains were found on the exhibits/samples sent by her, the possibility of recent sexual intercourse was ruled out. She gave opinion Ex.PW-8/D on 6.1.2009. She received another application Ex.PW-8/E on 9.1.2009. She gave her opinion Ex.PW-8/F. She opined that redness could be due to penetration and in very rare cases; hymen can remain intact even after penetration. In her cross-examination, she has admitted that the opinion given by her on 9.1.2009 was a general statement. Redness can be caused due to several other factors like itching, unhygienic conditions, local infection and trauma. 16. PW-9 Sita Mahajan has proved the birth certificate of prosecutrix Ex.PW-9/A. The date of birth of the prosecutrix was 8.11.2003. 17. PW-11 Head Constable Shiv Kumar has deposed that on 13.10.2008, Lady Constable Rama No.1666 deposited seven sealed parcels sealed with the seal of hospital with him in the Malkhana and entry to this effect was made by him in the relevant register. On 14.10.2008, SI Chaman Lal deposited three parcels sealed with seal impression ‘T’ with him in the Malkhana. He sent nine parcels to Forensic Science Laboratory, Junga on 30.10.2008 vide RC No.155/08 through constable Manish Kumar. During the period, the case property remained in his possession, the same remained intact. 18. PW-12 Constable Manish Kumar has deposed that on 30.10.2008, MHC Shiv Kumar handed over nine parcels to him vide RC No.155/08. Seven parcels were sealed with seal of the hospital, whereas two parcels were sealed with seal impression ‘T’. He deposited all the parcels on the same day in the Forensic Science Laboratory, Junga. 19. PW-13 SI Chaman Lal has deposed that the case file was handed over to him by the Inspector/SHO Manohar Lal for investigation. The prosecutrix was sent with her parents and lady constable Rama to the hospital for medical examination. The MLC of the case was brought by lady constable Rama and handed over the same to him. Accused was present in the Police Station as he had got FIR No.220/08 registered against Balbir Singh. He interrogated the accused. He arrested him. He went to the spot on 13.10.2008 in the company of accused and other police officials. The MLC of the case was brought by lady constable Rama and handed over the same to him. Accused was present in the Police Station as he had got FIR No.220/08 registered against Balbir Singh. He interrogated the accused. He arrested him. He went to the spot on 13.10.2008 in the company of accused and other police officials. He prepared map Ex.PW-13/A. The accused was also got medically examined and his Medical Legal Certificate Ex.PW-13/N was obtained. On 14.10.2008, he again went to the house of accused and inspected the same from outside. He prepared map Ex.PW-13/C showing the details of the inside of room of accused. Three pieces of cloth were found lying on the floor of the bath room-cum-toilet. These three pieces of cloth and bed sheet were taken into possession from the house of accused and sealed. A towel and curtain were also taken into possession from the house of accused. The parcel was prepared and sealed. Mother of the prosecutrix produced her underwear and Pajami, which she was wearing at the time of incident. The same were taken into possession by him and sealed. All the three parcels were sealed by him by affixing seal impression ‘T’ and taken into possession vide memo Ex.PW-2/B. The underwear etc. were Ex.P-1 to Ex.P-8. He asked the victim to identify the place of occurrence. The victim went with them to the room of the accused. She identified the place of incident in presence of witnesses. Thereafter, she recorded the statement of the prosecutrix and other witnesses under section 161 of the Code of Criminal Procedure. At the time of medical examination of the accused, underwear of accused was taken into possession by the Medical Officer and thereafter sealed and handed over to them. The parcel was also deposited intact by him with the MHC in the Police Station. Certificate regarding the age of the prosecutrix was collected from the Principal of the school. After the receipt of the report of Chemical Examiner, he approached Dr. Mrs. Geetika Gupta to give final opinion. She gave the opinion Ex.PW-8/D on 6.1.2009. Ex.PW-8/E was moved by him before Dr. Geetika Gupta on 9.1.2009 to give the final opinion. She gave final opinion Ex.PW-8/F. In his cross-examination, he has admitted that before the registration of FIR No.221/08, head constable Daljeet Singh had already visited the spot in connection with investigation of FIR No.220/08. She gave the opinion Ex.PW-8/D on 6.1.2009. Ex.PW-8/E was moved by him before Dr. Geetika Gupta on 9.1.2009 to give the final opinion. She gave final opinion Ex.PW-8/F. In his cross-examination, he has admitted that before the registration of FIR No.221/08, head constable Daljeet Singh had already visited the spot in connection with investigation of FIR No.220/08. He could not tell the time when head constable Daljeet Singh had gone to the spot for investigation. The accused was arrested in this case on 13.10.2008 at 2.30 A.M. He did not know that the accused had already been medically examined before he arrested him. He was not aware whether the complainant Ramla Thakur had moved an application on 17.10.2008 before the District Magistrate, Shimla to withdraw the case. During investigation, he found that the witnesses cited by the accused in FIR No.220/08 were false. Volunteered that it was a fact that the accused was beaten by Balbir Singh for raping his daughter. He did not remember the names of the witnesses of FIR No.220/08. One of the witnesses was related to the accused. He verified the facts from both the witnesses of FIR No.220/08 and found the same false. The challan of FIR No.220/08 might have been presented in the court. He found that there was old enmity between the accused and Balbir Singh. Volunteered that accused had stated about some enmity which statement on verification was found false. The accused had told him that complainant Ramla Thakur had objected to his playing cards in the Rasta. Volunteered that this version of the accused was found false as the parties used to meet each other even thereafter. He has admitted that in FIR No.220/08, the copy of which was mark Y, a mention has been made regarding the dispute relating to the cable wire. 20. According to PW-2 Ramla Thakur, she enquired from Dinesh about the whereabouts of the prosecutrix. He told her that she was in the house of accused. She went to the house of accused. The lights of the house of accused were switched off. She knocked at the door of the house of accused. After hearing the knock, accused said to the prosecutrix that her mother has come to take her. Accused opened the bolt of the door of his house. Thereafter, the prosecutrix came out. She went to the house of accused. The lights of the house of accused were switched off. She knocked at the door of the house of accused. After hearing the knock, accused said to the prosecutrix that her mother has come to take her. Accused opened the bolt of the door of his house. Thereafter, the prosecutrix came out. She slapped the prosecutrix since she was annoyed as she had left the house during evening hours without completing her home/school work. Prosecutrix went to sleep. She did not notice anything wrong. Next morning, she went to Snowdon Hospital to see the son of her Jeth, who was admitted in the hospital being unwell. Next morning would mean 8.10.2008. Prosecutrix accompanied her to the hospital. She was not comfortable while walking. She did not tell her anything as she was scared of her. In the evening, she and prosecutrix returned to their house. On the next day, i.e. 9.10.2008, son of her Jeth, who was unwell and her mother in law left for their native village Gehal in District Sirmaur. On the same day, at about 10.00 A.M. she and the prosecutrix were sitting in a room of their house. Next day, would mean 9.10.2008. Prosecutrix told her that she was having pain in her private parts. She took off her Pajami to see as to what problem she has. She noticed that the private parts of the prosecutrix have gone red and there was some swelling. She inquired from the prosecutrix as to what has happened. She in turn said that nothing has taken place. On her asking, prosecutrix time and again, she remarked that accused has told her that in case she disclosed about the incident before anyone, her parents would beat her. Thereafter, the prosecutrix told her that two days earlier, in the evening, accused had taken her to his house and subjected her to sexual intercourse. She rang up her husband and called him to the house. She did not narrate the incident to her husband. On being asked, the prosecutrix even divulged the entire incident in front of her father. Her husband and she felt ashamed of the incident. Thereafter, she and her husband took the prosecutrix to Kamla Nehru Hospital, Shimla. She went inside the room of the doctor when her daughter was checked up by the doctor. On being asked, the prosecutrix even divulged the entire incident in front of her father. Her husband and she felt ashamed of the incident. Thereafter, she and her husband took the prosecutrix to Kamla Nehru Hospital, Shimla. She went inside the room of the doctor when her daughter was checked up by the doctor. The doctor inquired from her as to what has happened. She conveyed to the doctor that perhaps prosecutrix was feeling pain because of hot weather. The doctor remarked that the prosecutrix has been raped and it is a police case and the prosecutrix was referred to I.G.M.C. Since the accused was in their distant relations and they were scared of the police, they went back to their house from Kamla Nehru, Hospital. 21. PW-5 Dr. Vandana Bhuria has deposed that on 11.10.2008, a female child who was five years old was brought by her mother to the hospital for check up. PW-2 Ramla Thakur testified that the prosecutrix was referred to I.G.M.C. They went back to their house from Kamla Nehru Hospital. Her husband remarked that he would enquire from the accused as to what he has done. In the evening, her husband called the accused and inquired from him about the entire episode. Accused might have admitted his guilt before her husband and a quarrel might have taken place between her husband and the accused. Next morning, accused brought the police to their house. They wanted to keep mum to avoid defamation. However, when the police started harassing, they showed the O.P.D by him. Balbir Singh told him that his daughter has been raped by the accused. He advised Balbir Singh to approach the police instead of fighting with the accused. 22. What emerges from the statements of PW-2 Ramla Thakur that the girl had gone to the house of accused on 7.10.2008. Next morning, i.e. 8.10.2008 she went to the Snowdon Hospital to see the son of her Jeth, who was admitted in the hospital being unwell. On the next day, i.e. 9.10.2008, the son of her Jeth who was unwell and her mother in law who had come, left for their native village Gehal in District Sirmaur. On the same day, i.e. 9.10.2008, at about 10.00 A.M., she and prosecutrix were sitting in a room of their house. The prosecutrix told her that she was having pain in her private parts. On the same day, i.e. 9.10.2008, at about 10.00 A.M., she and prosecutrix were sitting in a room of their house. The prosecutrix told her that she was having pain in her private parts. She inquired from the prosecutrix as to what has happened. The prosecutrix told her that two days ago, in the evening, accused had taken her to his house and subjected her to sexual intercourse. She rang up her husband and called him to the house. Her husband left for the shop and asked her not to tell anyone about the incident. It is thus at about 10.00 A.M. on 9.10.2008, the prosecutrix has narrated the incident to the parents. No FIR was registered on 9.10.2008 and 10.10.2008. Prosecutrix was taken to Kamla Nehru Hospital on 11.10.2008 and entry to this effect was made at Sr. No. 13287 vide Ex.PW-4/A. According to PW-2 Ramla Thakur, on 12.10.2008, accused brought the police to their house. When the police started harassing them, O.P.D. slip was shown to the police and the incident was narrated. 23. What emerges from the statement of PW-7 Bhupinder Sharma is that on 11.10.2008, accused, Balbir Singh and Atma Ram went in his car. There was no occasion for Balbir Singh, father of the prosecutrix to go with the accused in the car at about 6.30 P.M. on 11.10.2008 in case his daughter had been raped by the accused. Father of the prosecutrix was supposed to go to the Police Station instead of administering beatings to the accused in the car. It is also borne out from the record that FIR No.220/08 was lodged by the accused against the prosecutrix’s father at Police Station, Dhalli. Accused has examined DW-1 Tika Ram, Criminal Ahlmad in Court No.2, Shimla. According to him, accused has registered FIR No.220/08 against two persons, namely, Balbir Singh and Atma Ram. It was registered on 12.10.2008 under sections 341/34 and 323/34 of the Indian Penal Code. The FIR was registered on 12.10.2008 at 2.00 A.M. As per the complaint made by Sohan Singh, the incident took place during the intervening night of 11/12.10.2008 at 00.30 hours. 24. DW-2 Dr. Abhinay Sharma has medically examined the accused. According to DW-2 Abhinay Sharma, Sohan Singh son of Ramia Ram was brought by the police of Police Station, Dhalli for examination with the alleged history of being beaten up at about 8.30 P.M. on 11.10.2008. 24. DW-2 Dr. Abhinay Sharma has medically examined the accused. According to DW-2 Abhinay Sharma, Sohan Singh son of Ramia Ram was brought by the police of Police Station, Dhalli for examination with the alleged history of being beaten up at about 8.30 P.M. on 11.10.2008. He examined Sohan Singh. He noticed various injuries as per Ex.DW-2/A. It is evident from Ex.DW-2/A that the accused as received as many as 15 injuries on his person. The FIR has been registered by the accused against the father of prosecutrix at 2.30 A.M. in the morning. He was medically examined by DW-2 Dr. Abhinay Sharma. The FIR against the accused has been registered at 19.01 hours at Police Station, Dhalli. According to PW-2 Ramla Thakur, police visited their house on 12.10.2008 in the morning and when the police started harassing them, they showed O.P.D. slip of Kamla Nehru Hospital and narrated the incident. 25. According to Ex.PW-8/C, blood and semen were not detected on Ex.-1 (underwear Sohan Singh), Ex.2c (piece of cloth), Ex.2d (bed sheet), Ex.3a (underwear Muskan), Ex.3b (Pajami Muskan), Ex.-4(vaginal slide Muskan), Ex-5 (Vaginal swab washing in normal saline Muskan), Ex.-6 (Vaginal swab Muskan) and Ex.7 (nail clipping Muskan). Blood was not detected on Ex.2a (piece of cloth) but human semen was found on the exhibit. Blood was detected in traces on Ex.2b (piece of cloth) but it was insufficient for further examination. Semen was not detected on the exhibit. Prosecutrix was examined by PW-8 Dr. Geetika Gupta. According to her, there were no signs of external injury, scratch marks, abrasions and bruises on body parts. No foreign body or any stain on the body parts was detected. According to her, on local examination of external genitalia, there was redness on bilateral labia majora and minora of size about 4 x 1.5 cms. with well defined margins. There was no tenderness, swelling or scratch marks. There was no evidence of any abrasions, laceration seen on any part of external genitalia. Hymen was intact. There was no evidence of bleeding or any discharge. She gave immediate opinion that it could not be commented upon rape but penetration had not occurred as hymen was intact. Final opinion was reserved by her till the receipt of report of the Chemical Examiner. She issued MLC Ex.PW-8/B. On 6.1.2009, the police brought the chemical report Ex.PW-8/C before her alongwith application. She gave immediate opinion that it could not be commented upon rape but penetration had not occurred as hymen was intact. Final opinion was reserved by her till the receipt of report of the Chemical Examiner. She issued MLC Ex.PW-8/B. On 6.1.2009, the police brought the chemical report Ex.PW-8/C before her alongwith application. She after going through the report gave opinion that since blood and semen stains were not found on the exhibits/samples, the possibility of recent sexual intercourse was ruled out. She gave the opinion on 6.1.2009 vide Ex.PW-8/D. The police moved another application Ex.PW-8/E for giving further opinion. She opined that redness could be due to penetration and in very rare cases; hymen could remain intact even after penetration. The opinion was given by her on 9.1.2009 vide Ex.PW-8/F. In her cross-examination, she has admitted that the opinion given by her on Ex.PW-8/F was a general statement. Redness could be caused due to several other facts like, itching, unhygienic conditions, local infection and trauma. 26. PW-2 Ramla Thakur has deposed in her examination-in-chief that she handed over the O.P.D. slip of Kamla Nehru Hospital to the police. However, the same has not been proved by the prosecution. It casts doubt in the entry made in Ex.PW-4/A that the prosecutrix was taken to Kamla Nehru Hospital and thereafter, she was referred to I.G.M.C. Shimla. In case the O.P.D. slip had been issued, the same was bound to be placed on record by the prosecution to complete the sequence of incident. There was no occasion for the accused to bring the police to the house of complainant. This is highly improbable that the accused of alleged rape would come to the house of complainant. Normally, he would try to be away from the police. In Ex.PW-2/A, it was stated that on 10.10.2008, prosecutrix has narrated the incident. However, in case the statement of mother PW-2 is read in totality, the date would be 9.10.2008. 27. Accused was also got medically examined to ascertain whether he was capable of performing sexual intercourse and police also wanted his underwear to be preserved. His underwear was sealed and sent for chemical examination. According to the opinion given by the doctor there was nothing to suggest that accused was not capable of performing sexual intercourse. From the statement of PW-8 Dr. Geetika Gupa, it cannot he held conclusively that accused has raped the prosecutrix. His underwear was sealed and sent for chemical examination. According to the opinion given by the doctor there was nothing to suggest that accused was not capable of performing sexual intercourse. From the statement of PW-8 Dr. Geetika Gupa, it cannot he held conclusively that accused has raped the prosecutrix. PW-8 Dr. Geetika Gupta has ruled out the possibility of sexual intercourse. The incident is alleged to have taken place on 7.10.2008 and the prosecutrix was examined on 12.10.2008 at 7.30 P.M. Doctor has not noticed any external injury except redness on bilateral labia majora and minora of size about 4x1.5 cms with well defined margins. There was no tenderness, swelling or scratch marks. There was no evidence of any abrasions, laceration on any part of external genitalia. Hymen was intact and there was no evidence of bleeding or any discharge. Mother of the prosecutrix has also submitted an application to the District Magistrate, Shimla for the withdrawal of the case registered against FIR No.221/2008 under section 376 of the Indian Penal Code. According to the averments contained in the application, the matter was compromised amicably outside the court since they belong to same area and are in relation with each other and wanted to withdraw the case registered vide FIR No.221/2008 and Sohan Singh was also withdrawing FIR No.220/2008, which was registered against her husband. This was unusual stand taken by the mother of the prosecutrix. It is intriguing to note that why she has moved this application before the District Magistrate, Shimla. In the instant case, conduct of parents of prosecutrix was unnatural. According to PW-2 Ramla Thakur, prosecutrix has narrated the incident to her and her husband on 9.10.2008 and despite that the matter was not reported to the police till 12.10.2008. The FIR was registered on 12.10.2008 and the application has been filed by the prosecutrix’s mother on 17.10.2008 for the withdrawal of the case. The application was filed alongwith affidavit of the mother of prosecutrix. 28. The prosecution has not examined the prosecutrix’s father Balbir Singh. It is settled law that merely lodging of FIR belatedly is of no consequence if the delay is explained. In the present case, the delay has not been explained satisfactorily by the prosecution. 29. The application was filed alongwith affidavit of the mother of prosecutrix. 28. The prosecution has not examined the prosecutrix’s father Balbir Singh. It is settled law that merely lodging of FIR belatedly is of no consequence if the delay is explained. In the present case, the delay has not been explained satisfactorily by the prosecution. 29. According to PW-2 Ramla Thakur when she visited the house of accused, lights of room were switched off and the curtains were drawn and the house was bolted. It should have definitely aroused her suspicion. According to PW-2 Ramla Thakur, the incident was narrated by the prosecutrix on 10.10.2008 as per her complaint Ex.PW-2/A. However, it is evident from the sequences narrated by PW-2 while appearing in the Court that the incident has been narrated by the prosecutrix on 9.10.2008. The FIR should have been lodged immediately. Father of the prosecutrix was not supposed to travel with the accused if he had come to know that accused has raped his daughter. The FIR has been registered by the accused prior in time at 2.30 A.M. on 12.10.2008. The police has visited the house of the prosecutrix on 12.10.2008 itself. The FIR against the accused has been registered on 12.10.2008 only at 19.01 hours. The FIR No.221/2008 is later in time and the possibility of the same being registered only after the FIR registered by the accused against the father of prosecutrix cannot be ruled, more particularly, when the accused had gone to the Police Station himself and the Medical Officer has noticed 15 injures on his person. In fact, as per the statement of PW-2, police had come with the accused to their house in the morning of 12.10.2008 itself. 30. It is settled law that child witness can be taken into consideration but it must inspire confidence. The children are prone to tutoring and swayed by their parents. In her cross-examination, prosecutrix has deposed that she has narrated the incident to her parents when the police had come. The registration of FIR belatedly was fatal to the prosecution case in view of the attending circumstances, as noticed hereinabove. 31. The children are prone to tutoring and swayed by their parents. In her cross-examination, prosecutrix has deposed that she has narrated the incident to her parents when the police had come. The registration of FIR belatedly was fatal to the prosecution case in view of the attending circumstances, as noticed hereinabove. 31. 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 ::: Downloaded on - 05/08/2014 17:31:36 :::HCHP High Court of H.P. 35 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. 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. 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.” 32. 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. 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." 33. 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.” 34. 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.” 34. 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.” 35. 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. 36. Consequently, in view of analysis and discussion made hereinabove, the prosecution has failed to prove its case conclusively that the accused has raped the prosecutrix. The circumstances noticed by us hereinabove creates reasonable doubt in the version of prosecution. 37. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 11.5.2009 rendered in Sessions Trial No.3-S/7 of 2009 is set aside. Accused is acquitted of the charge framed against him. Fine amount, if any, already deposited by him is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 35. The Registry is directed to prepare the release warrant of accused and send the same to the Superintendent of Jail concerned in conformity with this judgment forthwith.