JUDGMENT : BELA M. TRIVEDI, J. 1. The present appeal has been filed by the State of Gujarat under Section 378 of Cr.P.C., against the order of acquittal dated 5.1.1994 passed by the Additional Sessions Judge, Baroda (hereinafter referred to as "the Sessions Court/trial Court") in Sessions Case No.145 of 1993, whereby the Sessions Court has acquitted the respondent – accused from the charges levelled against him for the offence under Section 363 and Section 376 of IPC by giving him benefit of doubt. 2. The case of the prosecution as unfolded before the Sessions Court was that on 20.5.1992 at about 6 p.m., Hansaben, wife of the complainant Vinodchandra Vaghjibhai Desai and her friend Niruben were sitting on the Otta of the clinic of Dr. Sumant Patel along with her minor daughter Dimple. At that time, the respondent accused Rajendrakumar Laldas Acharya came there and allured the minor girl of chocolate and took her away with him. After about 45 minutes, the accused Rajendrakumar came back with the minor daughter Dimple and handed over the custody of the minor girl to her mother Hansaben. It was further case of the prosecution that the minor girl thereafter started crying and her mother took her home and on examination of her private part, it was found that there was blood and some sticky substance on her private part. The girl was thereafter taken to Dr.Krishnakant K. Shah of Sankheda Dispensary, who after the preliminary examination, referred her to the SSG Hospital, Baroda for expert's opinion. In the meantime, the father of the minor lodged the complaint with the police at Sankheda Police Station, where the complaint was registered (Exh.11) against the respondent – accused. The minor girl thereafter was examined by the doctor at SSG Hospital at Baroda and was also treated as an indoor patient. 3. The Investigating Officer, after collecting the sufficient evidence against the accused and also the report from the FSL, had filed the charge- sheet in the Court of Judicial Magistrate First Class, Sankheda. The case being triable by the Sessions Court, the same was committed to the Sessions Court, where it was registered as Sessions Case No.145 of 1993. 3. The Investigating Officer, after collecting the sufficient evidence against the accused and also the report from the FSL, had filed the charge- sheet in the Court of Judicial Magistrate First Class, Sankheda. The case being triable by the Sessions Court, the same was committed to the Sessions Court, where it was registered as Sessions Case No.145 of 1993. The Sessions Court, after appreciating the evidence on record, acquitted the respondent – accused from the charges levelled against him for the offence under Section 363 and Section 376 of IPC by giving him benefit of doubt, vide the impugned order dated 5.1.1994. Being aggrieved by the same, the present appeal has been filed by the State. 4. Learned Public Prosecutor Mr.Mitesh Amin, taking the Court to the depositions of the witnesses, more particularly of the doctors, submitted that there were blood stains and some sticky material on the private part of the minor girl and that from the FSL Report (Exh.29) also it was established that the human semen was found on the vaginal swab taken from the private part of the minor girl. He further submitted that the Sessions Court had committed grave error in not believing the evidence of Hansaben, the mother of the victim, and her friend Niruben, of the accused taking away the victim who was playing from the lawful custody of her mother, and further committed an error in not appreciating the evidence as regards the offence under Section 376. He further submitted that the panchnama of seizure of clothes and scene of offence were duly proved by the prosecution and merely because there was some discrepancy as regards the place at which the accused had returned the custody of the minor girl to her mother, the entire case of the prosecution should not have been disbelieved by the Sessions Court. According to him, minor contradictions or discrepancies should not have been weighed much by the Sessions Court when such serious offence was allegedly committed by the respondent accused. He further submitted that even slightest penetration was sufficient to hold that the accused had committed rape within the meaning of Section 376 of IPC, which the Sessions Court had failed to appreciate. 5. He further submitted that even slightest penetration was sufficient to hold that the accused had committed rape within the meaning of Section 376 of IPC, which the Sessions Court had failed to appreciate. 5. Per contra, learned Advocate Mr.Vijay Patel for the respondent accused submitted that there were material contradictions in the evidence of Hansaben and Niruben as to from which place the minor girl was taken away by the accused and the place where he handed over the custody of the minor girl to Hansaben. Placing heavy reliance on the receipt of the FSL (Exh.29), he submitted that the muddamal articles were sent by the Investigating Officer to the FSL after a month of its collection or recovery and that as emerged from the cross-examination of the I.O., the respondent accused was severely beaten by the I.O., for extracting his semen. He also submitted that the said articles having been sent after a month of its seizure, the possibility of tampering with the said articles could not be ruled out. Mr.Patel has also placed reliance on the further statement of the respondent accused to the effect that there was some heartburning between the father of the minor girl and the accused as the father of the minor girl was cultivating his field of the accused, which subsequently he was asked to discontinue. 6. At the outset, it may be stated that the powers of the High Court to re-appreciate the evidence in acquittal appeal are unfettered, however, it is axiomatic that the High Court would be slow in interfering with the order of acquittal passed by the Sessions Court while exercising the powers in the appeal filed against the acquittal of an accused under Section 378 of Cr.P.C.. It is also well settled principle of law that if two views are possible, and the one taken by the trail Court in favour of the accused, on appreciation of evidence, if is not found perverse, the view taken by the trial Court should be retained. The Supreme Court in case of Jaisingh and Ors. Vs. State of Karnataka, reported in (2007) 10 SCC 788 has observed in this regard as under:- "4. We have considered the arguments advanced by the learned counsel. The Supreme Court in case of Jaisingh and Ors. Vs. State of Karnataka, reported in (2007) 10 SCC 788 has observed in this regard as under:- "4. We have considered the arguments advanced by the learned counsel. From a perusal of the judgment in Chandrappa case we observe that though the powers of the High Court in an acquittal appeal are not circumscribed and are clearly unfettered, the situation under which they should be restored to have been spelt out. The broad principle is that the presumption of innocence is strengthened if an accused is acquitted by the trial court and that a reversal of the trial court's judgment should be made in cases where the view taken was not possible on the evidence or perverse with the broad understanding that if two views were possible, the one taken by the trial court in favour of the accused should be retained." 7. The said decision is reiterated by the Supreme Court in the later decision in case of Gamini Bala Koteswara Rao and Ors. Vs. State of A. P., reported in AIR 2010 SC 589 in which it has been observed as under:- "8. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr.Rao, that interference in an appeal against an acquittal recorded by the trial Court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to re­appraise the evidence and conclusions drawn by the trial Court by only in a case when the judgment of the trial Court is stated to be perverse. The word 'perverse' in terms as understood in law has been defined to mean "against the weight of evidence". We have to see accordingly as to whether the judgment of the trial Court which has been found perverse by the High Court was in fact so" 8. Hence, let us examine whether the findings arrived at by the trial Court could be said to be perverse worth interfering with. The prosecution, to prove the charges levelled against the accused, had examined as many as 9 witnesses and produced documentary evidence. Hence, let us examine whether the findings arrived at by the trial Court could be said to be perverse worth interfering with. The prosecution, to prove the charges levelled against the accused, had examined as many as 9 witnesses and produced documentary evidence. The said witnesses are PW-1 Vinodchandra Vaghjibhai Desai, the father of the victim, PW-2 Hansaben Vinodchandra, the mother of the victim, PW-3, Niruben Gordhanbhai, the neighbour of Hansaben, PW-4 Maheshbhai Madhubhai and PW-5 Upendrabhai Gunvantbhai, the panch witnesses in whose presence the panchnama of scene of offence (Exh.16) and panchnama with regard to seizure of the clothes of the victim (Exh.18) were drawn. The PW-6 Dr.Krishnakant K. Shah was the doctor, who had examined the victim at the Primary Health Centre, Sankheda Hospital, Sankheda. The PW-7 Dr. Jagdish Tribhovandas and PW-8 Dr. R. N. Tandon had examined the victim at SSG Hospital, Vadodara and the PW-9 PSI Harisinh Gulabsinh, was the Investigating Officer. As transpiring from the evidence of PW-2, the mother of the victim, and her friend Niruben, they were sitting on the Otta of the clinic of Dr. Sumant Patel with the minor daughter of PW-2, when the accused had allured her daughter by showing her chocolate and had taken her away at about 6 O'clock and he had come back at 6.45 p.m., with her daughter. When he came back her daughter was crying and was not able to sit. Therefore, she went home and examined her and found that there was blood and sticky material on her private part. She had, therefore, taken her to the hospital where Dr. Krishnakant Shah had examined her and had referred her to the SSG Hospital, Baroda for expert's opinion. In the cross- examination, she had admitted that her husband and the father of the accused were friends, however, she had denied that 2-3 months prior to the date of incident, there was some heartburning between her husband and the accused with regard to the cultivation of the land. She had further stated that at the time of incident in question she along with Niruben and her minor daughter were sitting on the Otta of the clinic of Dr. Sumant Patel. She had denied the suggestion that the accused had not taken her minor daughter with him. She had further stated that at the time of incident in question she along with Niruben and her minor daughter were sitting on the Otta of the clinic of Dr. Sumant Patel. She had denied the suggestion that the accused had not taken her minor daughter with him. In the light of the said evidence, if the evidence of PW-3 Niruben is appreciated, she had stated inter alia that when she and Hansaben were sitting on the Otta of the clinic of Dr. Sumant Patel, the accused had come there and taken the minor victim with him, and that he had come back with her at about 7 p.m.. She had further stated that since the victim was crying, Hansaben had taken her daughter home. In her cross-examination, she had denied to have stated in the police statement that she and Hansaben were sitting on the Otta of the house of Dr. Sumant Patel. The witness was also confronted with the other statements recorded by the police. 9. The PW-1 Vinodchandra, the father of the victim had stated that the complaint was given by him on the basis of the incident narrated by his wife Hansaben. He had corroborated his version stated in the complaint at Exh.11. In the cross- examination, he had denied the suggestion that there was some heartburning between him and the father of the accused with regard to the cultivation of the land and the complaint was given at the instance of Bachubhai, who had contested the election against the relative of the accused. 10. Referring the evidence of the said three witnesses, the learned Advocate Mr.V. H. Patel for the respondent accused has sought to submit that there were material contradictions with regard to the place and time of the alleged incident, however, the Court does not find any substance in the same. The contradictions and discrepancies in the evidence of Hansaben and Niruben as regards the time and place of the incident could not be said to be material discrepancy amounting to contradiction inasmuch as the minor embellishments or discrepancies are natural in the evidence of witnesses. As observed by the Supreme Court in case of State of Madhya Pradesh Vs. Dal Singh & Ors., reported in AIR 2013 SC 2059 , discrepancies, embellishments and improvements are bound to occur in every criminal trial. As observed by the Supreme Court in case of State of Madhya Pradesh Vs. Dal Singh & Ors., reported in AIR 2013 SC 2059 , discrepancies, embellishments and improvements are bound to occur in every criminal trial. They do not erode the credibility of witness unless they materially affect trial or core case of prosecution. Paragraph 7 of the said judgment reads as under:- "7. So far as the discrepancies, embellishments and improvements are concerned, in every criminal case the same are bound to occur for the reason that witnesses, owing to common errors in observation, i.e., errors of memory due to lapse of time, or errors owing to mental disposition, such as feelings shock or horror that existed at the time of occurrence. The court must form its opinion about the credibility of a witness, and record a finding with respect to whether his deposition inspires confidence. “Exaggeration per se does not render the evidence brittle. But it can be one of the factors against which the credibility of the prosecution’s story can be tested, when the entire evidence is put in a crucible to test the same on the touchstone of credibility.” Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements, as the same may be elaborations of a statement made by the witness at an earlier stage. “Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions.” The omissions which amount to contradictions in material particulars, i.e. which materially affect the trial, or the core of the case of the prosecution, render the testimony of the witness as liable to be discredited. Where such omission(s) amount to contradiction(s), raising serious doubts about the truthfulness of a witness, and other witnesses also make material improvements before the court in order to make their evidence acceptable, it cannot be said that it is safe to rely upon such evidence. (Vide: A. Shankar v. State of Karnataka, AIR 2011 SC 2302 ). Whether 100 per cent burnt person can make a dying declaration or put a thumb impression:" 11. In the instant case, it was established that the accused had taken the minor daughter of Hansaben with him at about 6 p.m., and given her back to Hansaben at about 6.45 p.m.. Whether 100 per cent burnt person can make a dying declaration or put a thumb impression:" 11. In the instant case, it was established that the accused had taken the minor daughter of Hansaben with him at about 6 p.m., and given her back to Hansaben at about 6.45 p.m.. Since the accused had taken her within the knowledge of Hansaben and since Hansaben did not take any objection against the accused taking her daughter with him, it could be safely inferred that she had consented, and therefore, the ingredients of the offence under Section 363 of IPC could not be said to have been proved. 12. As regards the allegations of rape under Section 376 of IPC, the medical evidence in light of the evidence of the three doctors would be relevant. The PW-6 Dr. Krishnakant Shah, who happened to be the medical officer at Primary Health Centre, Sankheda had examined the minor girl at about 11.30 a.m., on 20.5.1992. He had stated that there was some blood which had dried up, near the private part of the minor girl, however, there was no active bleeding at that time. Now, if the case paper and the medical certificate (Exh.20) issued by him are seen, he had not stated anything about the presence of blood near the private part of the victim. It is further pertinent to note that after the preliminary examination he had referred the victim to the SSG Hospital, Baroda. The PW-7 Dr. Jagdish Tribhovandas Gohil at SSG Hospital, Baroda had examined the victim at about 9 a.m., on 21.5.1992. The said doctor had also stated inter alia that there was no tearing of hymen, however, there was some abrasion found on her thigh. In the cross-examination he had admitted that the injury found on the private part of the minor girl was possible, if she had tried to itch and scratch that part. In this regard, the Sessions Court has observed in the judgment that - "31. ... Firstly Dr. Shah not at all cared to examine the victim Dimple who was brought to him initially. The case being of the alleged rape on minor girl, Dr. In this regard, the Sessions Court has observed in the judgment that - "31. ... Firstly Dr. Shah not at all cared to examine the victim Dimple who was brought to him initially. The case being of the alleged rape on minor girl, Dr. Shah ought to have examined her and noted down all the injuries external, but it seems that he failed in his duty as Medical Officer, as a consequence of which a doubt is created as to whether the alleged external injuries were in fact, present when she was taken to P.H.C., Sankheda" 13. Mr.V. H. Patel for the respondent in this regard has emphatically submitted that the vagina swab collected by the doctor was sent to the FSL almost after one month of its collection, along with the other articles, and therefore, the possibility of tampering with the said muddamal could not be ruled out. The Court finds substances in the said submission, inasmuch as it transpires from the receipt of the FSL (Exh. 29) that the muddamal articles were received in the laboratory on 23.6.1992 i.e. almost after one month of its seizure. At this juncture it is also pertinent to note that Dr. Krishnakant Shah, who had examined the victim on 20.5.1992 had also examined the accused on 21.5.1992 after his arrest and certain injuries were found on the person of the accused, which according to him, were possible if the accused was beaten with a stick. The learned Advocate Mr.Patel for the respondent accused had sought to submit that after the panchnama of the person of the accused was carried out he was severely beaten with stick for extracting his semen, which was subsequently put on the clothes of the minor girl. Of course, the Investigating Officer had denied the said suggestion, however, there was no explanation given by the I.O., as to why the muddamal articles were not sent to FSL for examination for about one month, and how the injuries were found on the body of the accused. Thus, having regard to the injuries found on the body of the accused and to the fact that the muddamal articles were sent after one month of its seizure, the possibility of tampering with the said muddamal articles including the clothes of the victim could not be ruled out. 14. Thus, having regard to the injuries found on the body of the accused and to the fact that the muddamal articles were sent after one month of its seizure, the possibility of tampering with the said muddamal articles including the clothes of the victim could not be ruled out. 14. The Sessions Court after discussing the evidence in detail has rightly observed that the offence by its nature is very shocking and heinous, however, the gravity of offence cannot by itself overweigh the legality. There may be strong moral conviction of guilt against the accused, but that does not over rule the legal proof of evidence. The suspicion howsoever strong cannot take place of proof. 15. Under the circumstances, the Court does not find the findings arrived at by the Sessions Court as perverse requiring interference. In that view of the matter, the Court does not find any substance in the present appeal. The appeal, therefore, deserves to be dismissed and is accordingly dismissed.