Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1707 OF 2009
Radhakrishna Nagesh …Appellant
Versus
State of Andhra Pradesh …
Respondent
J U D G M E N T
Swatanter Kumar, J.
1. The present appeal is directed against the judgment dated
rd
23 January, 2009 passed by the Division Bench of the High
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Court of Judicature at Hyderabad, Andhra Pradesh whereby the
th
order of acquittal dated 11 February, 1999 passed by the Trial
Court was reversed. The appellant, while impugning the
judgment under appeal, raised the following contentions: -
1. The High Court could not have interfered with the
judgment of acquittal of the Trial Court which was very
well-reasoned, based upon proper appreciation of
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evidence and was in consonance with the settled
principles of law. The High Court, thus, has exceeded its
jurisdiction by interfering with the judgment of acquittal of
the Court of Sessions.
2. There are serious contradictions between the ocular and
the medical evidence which materially affect the case of
the prosecution. Therefore, the accused is entitled to a
reversal of the judgment of the High Court.
3. There was no sexual intercourse between the appellant
and the victim. The prosecution has not been able to
establish any link between the commission of the alleged
offence and the appellant.
4. The case of the prosecution is based upon the sole
testimony of the victim. All these circumstances,
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examined cumulatively, entitle the accused for an order of
acquittal.
5. Lastly, the punishment awarded to the accused is too
harsh.
2. These contentions have been raised with reference to the
case brought on record by the prosecution. The factual matrix
of the case as per the prosecution is:
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3. The accused/appellant was working as a ball picker in S.V.
University tennis court, Tirupati, and in that capacity he was
having the custody of the key to the storeroom situated on the
south-east of the tennis court. The tennis net and other articles
th
were stored in this place. On 7 September, 1997 at about 7.00
p.m., the accused saw a girl named A. Haritha, who was
standing alone outside the red building. It may be noticed, that
the mother of the victim girl, namely Sampuramma, PW5, was
working as a maid-servant in the red building attached to the
University.
4. A. Haritha, the victim belonged to the Scheduled Caste
category and was about 11 years of age at the time of the
incident. The accused asked her to come along with him. At
first she refused but the accused enticed her on the pretext of
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purchasing gold colour plastic bangles. When she agreed to
accompany him, he bought her the bangles and then took her
to the store room near the tennis court, the key to which he was
possessing. He opened the lock and took the victim inside the
room and committed rape on her against her will. In fact, he
even threatened to assault her. One Narayanaswamy, PW3, a
rickshaw puller, who was waiting by the side of Gate No. 3 of
the S.V. University noticed the accused taking the victim into
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the store room and thus, became suspicious. He went to the
store room and tapped the door several times. However, the
accused did not open the door at first, but upon further
insistence of PW3, he did so. PW3 saw the victim girl weeping.
The accused slammed the door. Suspecting that the accused
might have done some wrong to the minor girl, Narayanswami,
PW3 bolted the door from outside and ran to inform the
authorities and/or the police. On his way he met Sub-Inspector
of Police, Traffic P.S., Tirupati, Sh. S.M. Ramesh, PW1, who was
standing near the NCC Office traffic point and informed him of
the incident. Immediately, PW1 along with another Traffic R.S.I,
R. Sivanandakishore, PW4, accompanied by PW3 went to the
said storeroom, opened the door from outside and found the
victim girl A. Haritha. She complained of pain in her vaginal
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region. PW1 took the victim girl as well as the accused to the
SVU Campus Police Station and made a complaint, Ex. P.1,
based upon which FIR, Ex. P.7 was registered under Sections
363 and 376 (2)(f) of the Indian Penal Code 1860 (for short
‘IPC’) and Section 3(2)(v) of the Schedule Castes and the
Schedule Tribes (Prevention of Atrocities) Act, 1989.
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5. Upon this report, Sub-Inspector of Police, B. Katamaraju,
PW10 undertook the investigation. The accused was sent to the
SV RR GG Hospital, Tirupati for medical examination. The
victim girl was sent to the Government Maternity Hospital,
Tirupati, for the same purpose and also for the assessment of
her age. Certain articles, including the cut drawer of accused
containing seminal stains, skirt of the victim girl etc. were
seized and were sent to the laboratory. The Assistant Director,
RFSL Anantpur, after analysing the material objects, detected
semen on the clothes and on the vaginal swabs of the victim,
collected and preserved by the Medical Officer, and also on the
underwear of the accused. The Investigating Officer recorded
the statement of various witnesses and completed the
investigation. Upon completion of the investigation, the
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Inspector of Police, PW11 presented a report under Section
173(2) of the Code of Criminal Procedure 1973 (for short ‘the
CrPC) for offences under Sections 363 and 376 (2)(f) of IPC. As
the alleged offences were triable exclusively by the Court of
Sessions, the accused was committed to the Court of Sessions,
where he faced the trial. The prosecution examined 12
witnesses being PW1 to PW12 and exhibited documents P1 to
P9 and material objects (M.Os.) 1 to 3 in its effort to bring home
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the guilt of the accused. As already noticed the Trial Court vide
th
its judgment dated 11 February, 1999 held the accused not
guilty of any offence and acquitted him. While recording the
finding of acquittal, the Trial Court found certain material
improbabilities and contradictions in the statements of the
witnesses. Since we have to deal with the judgment of reversal
of an order of acquittal, it will be useful for us to notice some
relevant extracts of the judgment which would indicate as to
what really weighed with the Trial Court while granting acquittal
to the accused.
“32) In the evidence of P.W.3, he says that he
does not know what P.W.2 informed to P.W.1
when he made enquiries. The evidence of
P.W.4 is of no use. As seen from his evidence,
it is manifest that he is unable to identify the
accused person who was present in the court
on the date of his giving evidence. Even he
has not divulged anything about P.W.2
informing the incident to P.W.1. As such, the
evidence of PW.1 that the victim girl narrated
the incident to him, is not corroborated by any
one of the witnesses.
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33) It is an admitted fact that at the scene of
offence, P.W.1 did not prepare any statements,
and he simply brought both the accused and
P.W.2 to the Police Station. But, it is (sic) not
unnatural on the part of P.W.1 and other police
personnel who went to the scene of offence
without any pen or papers on their hand, as it
is evident from the evidence of P.W.3 that
immediately after informing the incident to
P.W.1 they went to the scene of offence. In
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such case we cannot expect P.W.1 to procure
paper and pen to prepare any statement on
the spot. Hence, in this context, the version of
learned counsel for accused, that as P.W.1
failed to record any police proceedings or
statement at the spot, cannot go against the
prosecution case.
34) Nextly, it may be pointed out that though
P.W.10 the S.I. of the Police registered the
case, he did not try to record the statements of
P.Ws 1 to 3 though they were available at that
juncture. Till arrival of P.W.11, the Inspector of
Police, the statements were not recorded.
When P.W.10 himself registered the case, why
he has not recorded the statements of the
witnesses available at the spot, was not
explained by him., it is only P.W.11 who
received express F.I.R. from P.W.10 recorded
statements of P.Ws. 1 and 2, and later sent the
victim girl to the hospital for medical
examination.
35) When coming to the evidence of P.W.2,
though she narrated the incident and stated in
her chief – examination that the accused
removed his pant and underwear and laid her
on the floor and passed liquid like urine in her
private part, her admission in the cross-
examination that Narayanswamy P.W.3
tutored her to depose in this case and also at
the request of P.W.1, she deposed about
purchasing of bangles by the accused and
taken her to the room, makes her entire
evidence lack of credibility and inadmissible.
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36) In this context, the learned counsel for
accused submitted that in view of the
particular admission made by P.W.2 that she
was tutored by P.W.3, the evidence of P.W.2
becomes worthless and inadmissible. In this
regard, he placed reliance upon a decision
reported in “Ramvilas and others, Appellants.
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Vs. State of Madhya Pradesh, Respondent”
(1985 Crl.L.J. Page 1773), wherein Their
Lordships held that, when the statement was
narrated to the witness just before entering
into the witness box, the evidence of such
witness is inadmissible in view of section 162
Cr.P.C. because the fact remains that it was
narrated to the witness for the purpose of
giving evidence at the trial and that
tantamounts to making use of the statement
at the trial which is prohibited by section 162
Cr.P.C.
XXXX XXXX XXXX XXXX XXXX
38) When coming to the evidence of P.W.3, it
goes to show that he noticed the accused
taking away a minor girl along with him to the
tennis court. Though he suspected some foul
play, he did not try to prevent the accused
from taking the girl into the room of tennis
court. This conduct of P.W.3 is not natural in
those circumstances.
39) The evidence of P.W.5, the mother of
victim girl goes to show that she came to know
the incident after the victim girl and the
accused were brought to Police Station.
Hence, she is also not a direct eye-witness.
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XXXX XXXX XXXX XXXX XXXX
43) Hence, it is manifest that for sustaining
tenderness on the private parts of the victim
girl, there could be some other reasons and
those reasons are not ruled out by P.W.9.
Admittedly, in the wound certificate furnished
by her under Ex.P.5, she has not mentioned
that there was an attempt on the person of
P.W.2 victim girl. Further, there is no record to
show that she obtained acknowledgment from
the police for handing over the material
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objects collected by her at the time of
examination. She collected vaginal swab and
also vaginal washings. Further, on her
examination, she found the hymen of the
victim girl was intact and there was no
laceration or congestion on fourchette.
59) But, in this case on hand, the evidence of
P.W.2 the prosecutrix is of no avail in view of
her admission that she was tutored by P.W.3
before her giving evidence. Hence, the above
said citation also cannot be made applicable to
the present facts of the case.
70) In this case, what is important is, that,
though P.W.2 narrated the incident and stated
that the accused took her to the tennis room
and passed urine like substance on her private
part, her own admission that she was tutored
by P.W.3, demolishes the credibility of the
victim girl. Hence, when the very direct
evidence is doubtful in nature, the evidence of
P.W.3 that he saw the accused taking away the
girl along with him, and also P.W.1 and other
noticing the victim girl along with the accused
in the tennis court room, it also not much
helpful.
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71) Further as seen from the record, though
P.Ws. 1 to 5 were examined by P.W.11 on the
date of incident itself, all the said statements
were sent to the court only on 28.1.1998. The
alleged occurrence is on 7.9.1997. Hence, the
sending statements to the court at a belated
stage, has the effect of losing the spontaneity
of the statements and further, admittedly the
statement of P.W.2 recorded by P.W.1 was also
not read over to her. Hence, in these
circumstances, the benefit of doubt should be
given to the accused. Hence, this point is
answered against the prosecution.”
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6. Besides the above, the Trial Court had also expressed its
doubt in relation to the authenticity of Ex.P.9, the wound
certificate of accused, issued by the Chief Medical Officer, SV
RR GG Hospital, Dr. V.V. Pandurana Vittal, PW12. There were
certain corrections as referred to in paragraph 52 of the
judgment in this regard. The High Court disturbed the above
judgment of the Trial Court and found the accused guilty under
Sections 363 and 376(2)(f) of IPC and convicted him to undergo
rigorous imprisonment for three years and to pay a fine of
Rs.1000/- and in default of payment, to undergo simple
imprisonment for three months under Section 363 of IPC.
Accused was sentenced to undergo rigorous imprisonment for
10 years and also to pay a fine of Rs.2000/-, and in default of
payment, to undergo simple imprisonment for six months for
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the offence under Section 376 (2)(f) of IPC. The substantive
sentences were directed to run concurrently.
7. Aggrieved from the judgment of conviction and order of
sentence passed by the High Court, the accused has filed the
present appeal.
8. We would prefer to discuss the first argument advanced on
behalf of the appellant as the last because it would primarily
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depend upon the view we take upon appreciation of the
evidence and the case of the prosecution in its entirety.
9. The second contention on behalf of the appellant is that
there is a clear conflict between the medical evidence and the
ocular evidence which creates a serious doubt in the case of the
prosecution. To buttress this contention, reference has been
made to the statement of PW2, the prosecutrix, where she
states that she was subjected to rape, but according to the
doctor, PW9 and the Medical Report, Ext. P.5, neither was she
subjected to sexual intercourse nor was there any penetration.
10. PW2 was 11 years old at the time of occurrence, while she
was 12 years old, when her statement was recorded in the
Court. After the Court was convinced of the fact that she is
competent to make the statement, the same was recorded. In
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her statement, she stated that she was working as a maid in
the staff quarters of S.V. University, known as the red building.
According to her, she knew the accused and he was in the habit
of escorting children to the school. The accused had taken her
to the tennis court, promised her that he would buy bangles for
her and after purchasing the bangles the accused took her to a
room in the tennis court. The accused closed the door of the
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room, lifted her langa, removed his own pant and underwear,
put her on the floor of the room and passed liquid like urine into
her private parts. In the meanwhile, she stated that she felt the
starch in her private parts. At that time, one rickshaw puller,
PW3 came and knocked at the door. The accused abused him in
a filthy language and later the police came to the room. She
further narrated that it was PW1 who had taken her and the
accused to the police station, where she was examined by the
Police.
11. Her langa was seized by the police and was sent to
hospital for examination. She stated that her mother was also
working as a maid in the red building itself. We must notice
that despite a lengthy cross-examination, she stood to her
statement and did not cast any doubt on the statement made
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by her in her examination-in-chief. When she was taken to the
hospital, she was examined by Dr. G. Veeranagi Reddy, PW8,
who stated that he was working as a Professor of Forensic
th
Medicine in the S.V. Medical College, Tirupati and that on 13
September, 1997, he had examined a girl A. Haritha for the
purposes of finding out her age. He stated as follows:-
“2. On physical mental and radiological
examination I am of the opinion of that
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the age of Haritha is between 10 and 11
years. Ex. P.4 is the certificate.”
12. She was also examined by Smt. Dr. P. Vijayalakshmi,
th
Assistant Professor in Maternity Hospital, Tirupati, PW9 on 7
September, 1997. According to PW9, the girl had washed
herself after the incident. PW9 made the following remarks:-
“There are no marks of violence nape of neck, front and back of
the body. The abdomen was soft. Liver and spleen not
palpable. The breasts are not developed. There was no axilliary
pubic hair. The hymen was intact. No laceration or congestion in
fourchette, the parts were tender to touch, which according to
the doctor was an indication of attempt to rape with the girl.”
The doctor, PW9 also stated that considering the age of the
victim and on seeing that the parts were tender to touch, she
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could say that there was an attempt to rape the victim girl A.
Haritha. Since, according to PW9, the girl had washed herself
after the incident, the doctor had to reserve her final opinion till
the Chemical Analyst’s Report (FSL Report). The vaginal swab
and washing were preserved for chemical analysis. The FSL
Report was Ext. P.6, while the Wound Certificate of victim girl
was Ext. P.5. According to the FSL Report, semen was detected
on Items 1, 2, 4, 5 and 6 and the same was of human origin.
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Saliva of human origin was detected on Item No. 3. The
Chemical Analyst also detected semen and spermatozoa on
Item Nos. 1, 2, 4, 5 and 6 and on Item No. 3 saliva was found.
13. Item No. 1 was torn brown colour polyester langa with dirty
stains which the girl was wearing. Item No. 2 was a torn grey
colour mill made cut drawer with dirty stains which the accused
was wearing. Item No. 3 and Item No. 4 were the turbid liquid
which was present on the cloth and in a bottle respectively. Item
No. 5 was a cotton swab and Item No. 6 were two glass slides
which were sent for opinion and via FSL Report, Ext. P.6, the
opinion was received.
14. From the above evidence, it is not feasible to state with
certainty that there is any conflict between the medical and the
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ocular evidence. One cannot find any fault in the statement of
Dr. P. Vijyalakshmi, PW9, who waited to give her final opinion till
she received the FSL Report. According to her, an attempt to
rape the young girl was made, while according to PW2, she was
subjected to rape and the accused person had discharged some
liquid like urine in her private parts.
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15. It is a settled principle of law that a conflict or contradiction
between the ocular and the medical evidence has to be direct
and material and only then the same can be pleaded. Even
where it is so, the Court has to examine as to which of the two is
more reliable, corroborated by other prosecution evidence and
gives the most balanced happening of events as per the case of
the prosecution.
16. The absence of injuries on the back and neck of the victim
girl can safely be explained by the fact that she was lured into
the offence rather than being taken by using physical force on
her. The preparation, attempt and actual act on the part of the
accused is further clear from the fact that he had purchased
bangles which he had promised to her and thereafter had taken
her into the tennis court store room, the key of which was with
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him. This is also corroborated from the fact that even vide Ext.
P.3, the langa as well as the bangles, coated with golden colour
were recovered by the Investigating Officer, S.M. Khaleel, PW11.
17. An eleven year old girl and that too from a small place and
serving as a maid could hardly be aware of such technicalities of
law in relation to an offence of sexual assault. She felt very shy
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while making her statement in the Court, which fact was duly
th
noticed by the Court in its Order dated 9 November, 1998.
18. In order to establish a conflict between the ocular evidence
and the medical evidence, there has to be specific and material
contradictions. Merely because, some fact was not recorded or
stated by the doctor at a given point of time and subsequently
such fact was established by the expert report, the FSL Report,
would not by itself substantiate the plea of contradiction or
variation. Absence of injuries on the body of the prosecutrix, as
already explained, would not be of any advantage to the
accused.
19. In any case, to establish a conflict between the medical
and the ocular evidence, the law is no more res integra and
stands squarely answered by the recent judgment of this Court
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in the case of Dayal Singh and Others v State of Uttaranchal
[(2012) 7 SCALE 165]
“29. This brings us to an ancillary issue as
to how the Court would appreciate the
evidence in such cases. The possibility of
some variations in the exhibits, medical and
ocular evidence cannot be ruled out. But it
is not that every minor variation or
inconsistency would tilt the balance of
justice in favour the accused. Of course,
where contradictions and variations are of a
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serious nature, which apparently or
impliedly are destructive of the substantive
case sought to be proved by the
prosecution, they may provide an
advantage to the accused. The Courts,
normally, look at expert evidence with a
greater sense of acceptability, but it is
equally true that the courts are not
absolutely guided by the report of the
experts, especially if such reports are
perfunctory, unsustainable and are the
result of a deliberate attempt to misdirect
the prosecution. In Kamaljit Singh v. State
of Punjab [2004 Cri.LJ 28], the Court, while
dealing with discrepancies between ocular
and medical evidence, held, “It is trite law
that minor variations between medical
evidence and ocular evidence do not take
away the primacy of the latter. Unless
medical evidence in its term goes so far as
to completely rule out all possibilities
whatsoever of injuries taking place in the
manner stated by the eyewitnesses, the
testimony of the eyewitnesses cannot be
thrown out.”
30. Where the eye witness account is
found credible and trustworthy, medical
opinion pointing to alternative possibilities
may not be accepted as conclusive. The
expert witness is expected to put before the
Court all materials inclusive of the data
which induced him to come to the
conclusion and enlighten the court on the
technical aspect of the case by examining
the terms of science, so that the court,
although not an expert, may form its own
judgment on those materials after giving
due regard to the expert’s opinion, because
once the expert opinion is accepted, it is not
the opinion of the medical officer but that of
the Court. {Plz. See Madan Gopal Kakad v.
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Naval Dubey & Anr. [(1992) 2 SCR 921 :
(1992) 3 SCC 204]}.”
20. In light of the above settled canon of criminal
jurisprudence, we have no hesitation in concluding that we find
no merit in the contention raised on behalf of the appellant with
regard to discrepancy in the medical and the ocular evidence.
21. Further, it is argued by the appellant that there is no direct
evidence connecting the accused to the commission of the
crime and that there was no penetration, therefore, the accused
has not committed the offence punishable under Section 376
IPC. As already noticed, the prosecution had examined nearly
12 witnesses and produced documentary evidence on record
including Medical and FSL Report in support of its case.
22. Firstly, there is no reason for the Court to disbelieve the
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statement of PW2 that she knew the accused and that the
accused incited her and lured her to buying bangles and then
took her to the storeroom where he committed rape on her even
threatened her of physical assault. PW3, the rickshaw puller
who was standing at the gate of the University, had seen the
accused taking the young girl towards the tennis court store
room. Suspecting that he would do something wrong with the
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girl, he went to the room and knocked the door. The door was
not opened by the accused, however, he persisted with the
knocking. Thereafter the accused opened the door and abused
him, but PW3 maintained his presence of mind and bolted the
door from outside, leaving the accused and the prosecutrix
inside the room and went to report the matter. On his way, he
met PW1, S.M. Ramesh, Sub-Inspector of Police, Traffic P.S.,
Tirupati who accompanied him to the store room, brought both
the accused and the victim to the police station, got an FIR
registered on his own statement, the investigation of which was
conducted by PW11, S.M. Khaleel, the Inspector of Police.
23. We see no reason as to why this Court should disbelieve
the statements of PW1, PW2, PW3, PW5 and PW11, particularly
when they stood the lengthy cross-examination without any
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material damage to the case of the prosecution.
24. According to the medical evidence and statements of PW8
and PW9, the victim was 11 years old at the time of occurrence
and her private parts were tender to touch. The doctor, PW9
had reserved her final opinion awaiting the FSL Report.
According to the FSL Report, the langa of the girl as well as the
drawer of the accused were containing semen of human origin.
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The slides which contained the swab taken from the vagina of
the girl also showed presence of semen of human origin. It may
be noticed that these reports, in relation to Items 1, 2, 4, 5 and
6 came despite the fact that the girl had washed herself after
the occurrence.
25. The mere fact that the hymen was intact and there was no
actual wound on her private parts is not conclusive of the fact
that she was not subjected to rape. According to PW9, there
was a definite indication of attempt to rape the girl. Also, later
semen of human origin was traceable in the private parts of the
girl, as indicated by the FSL Report. This would sufficiently
indicate that she had been subjected to rape. Penetration itself
proves the offence of rape, but the contrary is not true i.e. even
if there is no penetration, it does not necessarily mean that
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there is no rape. The Explanation to Section 375 IPC has been
worded by the legislature so as to presume that if there was
penetration, it would be sufficient to constitute sexual
intercourse necessary for the offence of rape. Penetration may
not always result in tearing of the hymen and the same will
always depend upon the facts and circumstances of a given
case. The Court must examine the evidence of the prosecution
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in its entirety and then see its cumulative effect to determine
whether the offence of rape has been committed or it is a case
of criminal sexual assault or criminal assault outraging the
modesty of a girl.
26. At this stage, we may make a reference to the judgments
of this Court which would support the view that we have taken.
Firstly, in the case of Guddu @ Santosh v. State of Madhya
Pradesh [(2006) Supp. 1 SCR 414], where the Court was dealing
with somewhat similar circumstances, this Court made a finding
that the High Court had failed to notice that even slight
penetration was sufficient to constitute the offence of rape and
upheld the conviction of accused, though the sentence was
reduced. It held as under:-
“It is not a case where merely a preparation
had been undergone by the appellant as
contended by the learned Counsel. Evidently,
the appellant made an attempt to criminally
assault the prosecutrix. In fact, from the
nature of the medical evidence an inference
could 'also have been drawn by the High
Court that there had been penetration. The
High Court failed to notice that even slight
penetration was sufficient to constitute an
offence of rape. The redness of the hymen
would not have been possible but for
penetration to some extent. In Kappula
Venkat Rao (supra), this Court categorically
made a distinction between the preparation
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for commission of an offence and attempt to
commit the same, in the following terms:
Attempt to commit an offence can be
said to begin when the preparations are
complete and the culprit commences to
do something with the intention of
committing the offence and which is a
step towards the commission of the
offence. The moment he commences to
do an act with the necessary intention,
he commences his attempt to commit
the offence. The word 'attempt' is not
itself defined, and must, therefore, be
taken in its ordinary meaning. This is
exactly what the provisions of Section
511 require. An attempt to commit a
crime is to be distinguished from an
intention to commit it, and from
preparation made for its commission.
Mere intention to commit an offence, not
followed by any act, cannot constitute an
offence. The will is not to be taken for
the deed unless there be some external
act which shows that progress has been
made in the direction of it, or towards
maturing and effecting it. Intention is the
direction of conduct towards the object
chosen upon considering the motives
which suggest the choice. Preparation
consists in devising or arranging the
means or measure necessary for the
commission of the offence. It differs
widely from attempt which is the direct
movement towards the commission after
preparations are made. Preparation to
commit an offence is punishable only
when the preparation is to commit
offence under Section 122 (waging war
against the Government of India) and
Section 399 (preparation to commit
dacoity). The dividing line between a
mere preparation and an attempt is
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sometimes thin and has to be decided on
the facts of each case.
(Emphasis supplied)”
27. Secondly, in the case of Tarkeshwawr Sahu v. State of
Bihar (now Jharkhand) [(2006) 8 SCC 560], the Court 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. In
the absence of penetration to any extent, it
would not bring the offence of the appellant
within the four corners of Section 375 of the
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 State of U.P. v. Babul Nath . In
this case, this Court dealt with the basic
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ingredients of the offence under Section 375 in
the following words: (SCC p. 34, para 8)
“ 8. It may here be noticed that Section
375 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 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 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
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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.”
xxxxx xxxxx xxxxx xxxxx
12. The word “penetrate”, according to Concise
Oxford Dictionary means “find access into or
through, pass through”.
13. In order to constitute rape, what Section 375
IPC requires is medical evidence of penetration,
and this may occur and the hymen remain intact.
In view of the Explanation to Section 375, mere
penetration of penis in vagina is an offence of
rape. Slightest penetration is sufficient for
conviction under Section 376 IPC.
28. In light of the above judgments, it can safely be concluded
JUDGMENT
that there was limited penetration due to which probably the
hymen of the victim girl was not ruptured. The Court should
adhere to a comprehensive approach, in order to examine the
case of the prosecution. But as regards the facts and
circumstances of the present case, the presence of the element
of mens rea on part of the accused cannot be denied. He had
fully prepared himself. He first lured the girl not only by
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Page 25
inciting her, but even by actually purchasing bangles for her.
Thereafter, he took the girl to a room where he threatened her
of physical assault as a consequence of which the girl did not
raise protest. This is why no marks of physical injury could be
noticed on her body. Absence of injuries in the context of the
present case would not justify drawing of any adverse inference
against the prosecution, but on the contrary would support the
case of the prosecution.
29. It will be useful to refer to the judgment of this Court in the
case of O.M. Baby (Dead) by L.Rs. v. State of Kerala [JT 2012 (6)
SC 117], where the Court held as follows:-
“16. A prosecutrix of a sex offence cannot be put
on a par with an accomplice. She is in fact a victim
of the crime. The Evidence Act nowhere says that
her evidence cannot be accepted unless it is
corroborated in material particulars. She is
undoubtedly a competent witness under Section
118 and her evidence must receive the same
weight as is attached to an injured in cases of
physical violence. The same degree of care and
caution must attach in the evaluation of her
evidence as in the case of an injured complainant
or witness and no more. What is necessary is that
the court must be alive to and conscious of the fact
that it is dealing with the evidence of a person who
is interested in the outcome of the charge levelled
by her. If the court keeps this in mind and feels
satisfied that it can act on the evidence of the
prosecutrix, there is no rule of law or practice
incorporated in the Evidence Act similar to
Illustration (b) to Section 114 which requires it to
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26
Page 26
look for corroboration. If for some reason the court
is hesitant to place implicit reliance on the
testimony of the prosecutrix it may look for
evidence which may lend assurance to her
testimony short of corroboration required in the
case of an accomplice. The nature of evidence
required to lend assurance to the testimony of the
prosecutrix must necessarily depend on the facts
and circumstances of each case. But if a
prosecutrix is an adult and of full understanding
the court is entitled to base a conviction on her
evidence unless the same is shown to be infirm
and not trustworthy. If the totality of the
circumstances appearing on the record of the case
disclose that the prosecutrix does not have a
strong motive to falsely involve the person
charged, the court should ordinarily have no
hesitation in accepting her evidence.
14. We would further like to observe that while
appreciating the evidence of the prosecutrix, the
court must keep in mind that in the context of the
values prevailing in the country, particularly in
rural India, it would be unusual for a woman to
come up with a false story of being a victim of
sexual assault so as to implicate an innocent
person. Such a view has been expressed by the
judgment of this Court in the case of State of
Punjab v. Gurmit Singh (1996) 2 SCC 384 and has
found reiteration in a recent judgment in Rajinder
@ Raju v. State of H.P. (2009) 16 SCC 69, para 19
whereof may be usefully extracted:
JUDGMENT
19. In the context of Indian culture, a
woman - victim of sexual aggression -
would rather suffer silently than to falsely
implicate somebody. Any statement of
rape is an extremely humiliating
experience for a woman and until she is a
victim of sex crime, she would not blame
anyone but the real culprit. While
appreciating the evidence of the
prosecutrix, the courts must always keep
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Page 27
in mind that no self-respecting woman
would put her honour at stake by falsely
alleging commission of rape on her and
therefore, ordinarily a look for
corroboration of her testimony is
unnecessary and uncalled for. But for high
improbability in the prosecution case, the
conviction in the case of sex crime may
be based on the sole testimony of the
prosecutrix. It has been rightly said that
corroborative evidence is not an
imperative component of judicial
credence in every case of rape nor the
absence of injuries on the private parts of
the victim can be construed as evidence
of consent.”
30. Reference can also be made to the judgment of this Court
in the case of State of Himachal Pradesh v Asha Ram [AIR 2006
SC 381].
31. Thus, as per the facts and circumstances of the present
case, there is a direct link of the accused with the commission of
the crime. Such conclusion can well be established by the
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statement of the witnesses, the recoveries made, the Medical
Report and the FSL Report. It does not leave any doubt in our
mind that the accused has committed the offence with which he
was charged.
32. Still, another argument was advanced to contend that the
conviction of the appellant cannot be based on the sole
statement of prosecutrix PW2, because it is not reliable. We
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Page 28
have already discussed above at some length that there is
nothing on record to show that the statement of PW2 is either
unreliable or untrustworthy. On the contrary, in light of the
given facts, the statement of PW2 is credible, truthful and, thus,
can safely be relied upon.
33. Statement of PW2 is fully corroborated by the statements
of PW1 and PW3. They are independent witnesses and have no
personal interest or motive of falsely implicating the accused or
supporting the case of the prosecution. PW2 is a poor young girl
who works as a maid servant. PW3 coming to her rescue and
PW1 reaching the spot without any delay, saved the girl from
further assault and serious consequences. Firstly, the High
Court has not based the conviction of the accused solely on the
statement of PW2. Even if it were so, still the judgment of the
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High Court will not call for any interference because the
statement of PW2 was reliable, trustworthy and by itself
sufficient to convict the accused, by virtue of it being the
statement of the victim herself.
34. Lastly, coming back to the first contention raised on behalf
of the accused, it is true that the appellate Court has to be more
cautious while dealing with the judgment of acquittal. Under the
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Page 29
Indian criminal jurisprudence, the accused has two fundamental
protections available to him in a criminal trial or investigation.
Firstly, he is presumed to be innocent till proved guilty and
secondly that he is entitled to a fair trial and investigation. Both
these facets attain even greater significance where the accused
has a judgment of acquittal in his favour. A judgment of
acquittal enhances the presumption of innocence of the accused
and in some cases, it may even indicate a false implication. But
then, this has to be established on record of the Court.
35. When we mention about the Court being cautious, it does
not mean that the appellate Court cannot disturb the finding of
acquittal. All that is required is that there should be a
compelling rationale and also clear and cogent evidence, which
has been ignored by the Trial Court to upset the finding of
JUDGMENT
acquittal. We need not deliberate on this issue in greater
detail. Suffice it to notice the recent judgment of this Court in
the case of Ravi Kapur v. State of Rajasthan [JT 2012(7) SC 480],
where the Court, after discussing various other judgments of
this Court held on the facts of that case that interference with
the judgment of acquittal by the High Court was justified. The
Court explained the law as under:-
30
Page 30
37.Lastly, we may proceed to discuss the first
contention raised on behalf of the accused. No
doubt, the Court of appeal would normally be
reluctant to interfere with the judgment of
acquittal but this is not an absolute rule and has
a number of well accepted exceptions. In the
case of State of UP v. Banne & Anr. [(2009) 4
SCC 271], the Court held that even the
Supreme Court would be justified in interfering
with the judgment of acquittal of the High Court
but only when there are very substantial and
compelling reasons to discard the High Court’s
decision. In the case of State of Haryana v.
Shakuntala & Ors. [2012 (4) SCALE 526], this
Court held as under :
“36.The High Court has acquitted
some accused while accepting the
plea of alibi taken by them. Against
the judgment of acquittal, onus is on
the prosecution to show that the
finding recorded by the High Court is
perverse and requires correction by
this Court, in exercise of its powers
under Article 136 of the Constitution
of India. This Court has repeatedly
held that an appellate Court must
bear in mind that in case of acquittal,
there is a double presumption in
favour of the accused. Firstly, the
presumption of innocence is available
to such accused under the
fundamental principles of criminal
jurisprudence, i.e., that every person
shall be presumed to be innocent
unless proved guilty before the court
and secondly, that a lower court, upon
due appreciation of all evidence has
found in favour of his innocence.
Merely because another view is
possible, it would be no reason for this
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Court to interfere with the order of
acquittal.
37. In Girja Prasad (Dead) By Lrs. v.
State of M.P. [(2007) 7 SCC 625], this
Court held as under:-
“28.Regarding setting aside acquittal
by the High Court, the learned
Counsel for the appellant relied upon
Kunju Muhammed v. State of Kerala
(2004) 9 SCC 193, Kashi Ram v. State
of M.P. AIR 2001 SC 2902 and Meena
v. State of Maharashtra 2000 Cri LJ
2273. In our opinion, the law is well
settled. An appeal against acquittal
is also an appeal under the Code and
an Appellate Court has every power to
reappreciate, review and reconsider
the evidence as a whole before it. It
is, no doubt, true that there is
presumption of innocence in favour of
the accused and that presumption is
reinforced by an order of acquittal
recorded by the Trial Court. But that
is not the end of the matter. It is for
the Appellate Court to keep in view
the relevant principles of law, to
reappreciate and reweigh the
evidence as a whole and to come to
its own conclusion on such evidence
in consonance with the principles of
criminal jurisprudence.”
JUDGMENT
38.In Chandrappa v. State of Karnataka
[(2007) 4 SCC 415], this Court held as
under:-
“42. From the above decisions, in our
considered view, the following general
principles regarding powers of the
appellate court while dealing with an
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Page 32
appeal against an order of acquittal
emerge:
(1) An appellate court has full
power to review, reappreciate
and reconsider the evidence
upon which the order of acquittal
is founded.
(2) The Code of Criminal
Procedure, 1973 puts no
limitation, restriction or condition
on exercise of such power and an
appellate court on the evidence
before it may reach its own
conclusion, both on questions of
fact and of law.
(3) Various expressions, such as,
“substantial and compelling
reasons”, “good and sufficient
grounds”, “very strong
circumstances”, “distorted
conclusions”, “glaring mistakes”,
etc. are not intended to curtail
extensive powers of an appellate
court in an appeal against
acquittal. Such phraseologies are
more in the nature of “flourishes
of language” to emphasise the
reluctance of an appellate court
to interfere with acquittal than to
curtail the power of the court to
review the evidence and to come
to its own conclusion.
JUDGMENT
(4) An appellate court, however,
must bear in mind that in case of
acquittal, there is double
presumption in favour of the
accused. Firstly, the presumption
of innocence is available to him
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Page 33
under the fundamental principle
of criminal jurisprudence that
every person shall be presumed
to be innocent unless he is
proved guilty by a competent
court of law. Secondly, the
accused having secured his
acquittal, the presumption of his
innocence is further reinforced,
reaffirmed and strengthened by
the trial court.
(5) If two reasonable conclusions
are possible on the basis of the
evidence on record, the appellate
court should not disturb the
finding of acquittal recorded by
the trial court.”
39.In C. Antony v. K.G. Raghavan Nair
[(2003) 1 SCC 1], this Court held :-
“6. This Court in a number of
cases has held that though the
appellate court has full power to
review the evidence upon which
the order of acquittal is founded,
still while exercising such an
appellate power in a case of
acquittal, the appellate court,
should not only consider every
matter on record having a bearing
on the question of fact and the
reasons given by the courts below
in support of its order of acquittal,
it must express its reasons in the
judgment which led it to hold that
the acquittal is not justified. In
those line of cases this Court has
also held that the appellate court
must also bear in mind the fact
that the trial court had the benefit
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of seeing the witnesses in the
witness box and the presumption
of innocence is not weakened by
the order of acquittal, and in such
cases if two reasonable
conclusions can be reached on the
basis of the evidence on record,
the appellate court should not
disturb the finding of the trial
court. (See Bhim Singh Rup Singh
v. State of Maharashtra1 and
Dharamdeo Singh v. State of
Bihar.)”
40.The State has not been able to make
out a case of exception to the above
settled principles. It was for the State to
show that the High Court has completely
fallen in error of law or that judgment in
relation to these accused was palpably
erroneous, perverse or untenable. None
of these parameters are satisfied in the
appeal preferred by the State against the
acquittal of three accused.”
38. In the present case, there are more than
sufficient reasons for the High Court to interfere
with the judgment of acquittal recorded by the
Trial Court. Probably, this issue was not even
raised before the High Court and that is why we
find that there are hardly any reasons recorded in
the judgment of the High Court impugned in the
present appeal. Be that as it may, it was not a
case of non-availability of evidence or presence of
material and serious contradictions proving fatal
to the case of the prosecution. There was no
plausible reason before the Trial Court to
disbelieve the eye account given by PW2 and PW4
and the Court could not have ignored the fact that
the accused had been duly identified at the place
of occurrence and even in the Court. The Trial
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Page 35
Court has certainly fallen in error of law and
appreciation of evidence. Once the Trial Court
has ignored material piece of evidence and failed
to appreciate the prosecution evidence in its
correct perspective, particularly when the
prosecution has proved its case beyond
reasonable doubt, then it would amount to failure
of justice. In some cases, such error in
appreciation of evidence may even amount to
recording of perverse finding. We may also notice
at the cost of repetition that the Trial Court had
th
first delivered its judgment on 24 June, 1999
convicting the accused of the offences. However,
on appeal, the matter was remanded on two
grounds, i.e., considering the effect of non-holding
of test identification parade and not examining
the doctor. Upon remand, the Trial Court had
taken a different view than what was taken by it
th
earlier and vide judgment dated 11 May, 2006, it
had acquitted the accused. This itself became a
ground for interference by the High Court in the
judgment of acquittal recorded by the Trial Court.
From the judgment of the Trial Court, there does
not appear to be any substantial discussion on the
effect of non-holding of the test identification
parade or the non-examination of the doctor. On
the contrary, the Trial Court passed its judgment
on certain assumptions. None of the witnesses,
not even the accused, in his statement, had
stated that the jeep was at a fast speed but still
the Trial Court recorded a finding that the jeep
was at a fast speed and was not being driven
properly. The Trial Court also recorded that a
suspicion arises as to whether Ravi Kapur was
actually driving the bus at the time of the
accident or not and identification was very
important.
JUDGMENT
39. We are unable to understand as to how
the Trial Court could ignore the statement of the
eye-witnesses, particularly when they were
reliable, trustworthy and gave the most
appropriate eye account of the accident. The
36
Page 36
judgment of the Trial Court, therefore, suffered
from errors of law and in appreciation of evidence
both. The interference by the High Court with the
judgment of acquittal passed by the Trial Court
does not suffer from any jurisdictional error.”
36. Reverting to the facts of the present case, the High Court
has recorded reasons while interfering with the judgment of
acquittal by the Trial Court. We may also notice that the Trial
Court attempted to create a serious doubt in the case of the
prosecution on the basis of the statement of PW3, that he does
not know what PW2 narrated to PW1, when he made inquiries.
We do not think that this was a proper way to appreciate the
evidence on record.
37. The statement of a witness must be read in its entirety.
Reading a line out of context is not an accepted canon of
appreciation of evidence.
JUDGMENT
38. Another aspect of the statement of PW3 which the Trial
Court had a doubt with, was, as to how PW3 had noticed the
accused taking away the minor girl along with him to the tennis
store room and how he suspected some foul play.
39. PW3 admittedly was a rickshaw puller and was standing at
the gate of the University. The tennis store room was quite
37
Page 37
near to the gate. PW3, quite obviously knew the accused as well
as PW2. The conduct of PW3 in the given circumstances of the
case was precisely as it would have been of a person of normal
behaviour and was not at all extra-ordinary in nature,
particularly in the late hours of evening.
40. Still, another fact that was taken into consideration by the
Trial Court while acquitting the accused was that Ext. P.5
neither showed any injuries on the body nor reflected that rape
was attempted on the victim. In our considered view, the
course of appreciation of evidence and application of law
adopted by the Trial Court was not proper. It was expected of
the Trial Court to examine the cumulative effect of the complete
evidence on record and case of the prosecution in its entirety.
41. Equally without merit is the contention that Ext. P.5 which
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was authored by PW9 upon examination of the victim neither
recorded any injuries on her person nor the fact that she was
raped. It is for the reason that PW9 had not recorded any final
opinion and kept the matter pending, awaiting the FSL Report.
Furthermore, in Ext. P.5, she had noticed that her parts were
tender to touch. The vaginal swabs and vaginal wash were
taken and slides were preserved. She was also sent to the
hospital for further examination. Thus, Ext. P.5 cannot be
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Page 38
looked into in isolation and must be examined in light of other
ocular and documentary evidence. In the peculiar facts and
circumstances of the case, it was not even expected of PW1 or
the Investigating officer PW11 to examine the victim particularly
in relation to her private parts. Absence of such recording does
not cause any infirmity to the case of the prosecution much less
a reason for acquitting the accused.
42. In our considered opinion, the learned Trial Court has failed
to appreciate the evidence on record cumulatively and in its
correct perspective by ignoring the material piece of evidence
and improper appreciation of evidence. It has recorded
findings which are on the face of it unsustainable. This error
was rightly corrected by the High Court, and we see no reason
to interfere with the judgment of conviction recorded by the
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High Court.
43. We find no merit in the present appeal and the same is
dismissed.
………...….…………......................J.
(Swatanter Kumar)
………...….…………......................J.
39
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(Gyan Sudha Misra)
New Delhi,
December 13, 2012
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