Supreme Court of India
GOWRISHANKARA SWAMIGALUversusSTATE OF KARNATAKA & ANR.
- Citation
- 2008 INSC 305
- Decided
- 5 March 2008
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
The Supreme Court held that the High Court erred in reversing the trial court’s acquittal; the trial court’s judgment was correct and must be restored.
Summary
The appellant, a junior Swamiji of a religious mutt that ran a school, was accused of repeatedly committing an unnatural sexual offence against a 13‑year‑old student over seven days in July 1986. The FIR was lodged more than a month later and the prosecution’s case lacked medical corroboration and contained several inconsistencies, leading the trial court to acquit the appellant on the benefit of doubt. The Karnataka High Court reversed the acquittal, convicted the appellant under Section 377 IPC and imposed ten years’ rigorous imprisonment. On appeal, the Supreme Court examined whether the High Court was justified in overturning the acquittal despite the delay in filing the FIR, the absence of medical evidence, and the reliance on questionable statements, and whether it had improperly considered irrelevant factors. The Court held that the trial court’s reasoning was sound, the evidence did not meet the standard of proof beyond reasonable doubt, and the High Court erred in reversing the acquittal. Consequently, the conviction and sentence were set aside and the trial court’s acquittal restored.
Issues considered
- The propriety of the High Court reversing a trial court’s acquittal in a sexual offence case where the FIR was delayed and medical evidence was absent
- Whether the victim’s testimony, despite inconsistencies, can be relied upon to establish guilt beyond reasonable doubt
- The relevance of extraneous factors (e.g., rate of conviction, legalisation of sodomy abroad) considered by the High Court
- The applicability of the principle that an appellate court should not disturb an acquittal unless the trial court’s view is unreasonable
- The authenticity and reliability of the FIR and statements recorded under Section 161 CrPC
Legislation cited
Subjects
Section 377 IPCsexual assaultchild sexual abusedelay in FIRbenefit of doubtacquittal reversalmedical evidencecorroborationappellate reviewrare case
Judgment
[2008] 3 S.C.R. 1042
A GOWRISHANKARA SWAMIGALU -t,
v.
STATE OF KARNATAKA & ANR.
(Criminal Appeal Nos. 568-569 of 2004)
MARCH 5, 2008
8
[S.S. SINHA AND HARJIT SINGH BEDI, JJ.]
-/. -
Penal Code, 1860 - s.377:
Unnatural offence - Appellant was 'Junior Swamiji' in a
c 'Mutt'-- 'Mutt' used to run a school - Respondent No.2, aged
13 years, was a student in said school - Appellant allegedly
subjected him to unnatural offence for seven days at about
the same time - FIR lodged more than a month after the
incident -· Absence of medical evidence in regard to
D commission of offence - Trial Court acquitted Appellant giving
him the benefit of doubt - High Court reversed the judgment
~
.
of acquittal. - On appeal, held: High Court erred in reversing
the judgment of acquittal - It took into account large number
of irrelevant factors - Case in question belonged to the rarest
E of rare category where a deeper scrutiny· was necessary,
particularly when the Trial Court had recorded acquittal upon
assigning sufficient and cogent reasons - It was not a case
where only one view was possible.
Appellant was 'Junior Swamiji' in a 'Mutt' situated in ~
F the State of Kerala. The 'Mutt' used to run a school.
Respondent No.2, aged 13 years, was a student of Class
IX in the said school and was staying in the school hostel.
According to the prosecution, Appellant asked two
students, PW-2 and 'G', who were also staying in the
G hostel, to bring Respondent No.2 to his office and after
he came, subjected him to unnatural offence. The said
activity of Appellant allegedly continued for seven days
at about the same time. Respondent No.2 purportedly :
came back to his house a few days later and told his
H 1042
GOWRISHANKARA SWAMIGALU v. STATE OF 1043
KARNATAKA & ANR.
,. mother, PW4, about the indecent behaviour of Appellant, A
•' when he gave dirty clothes to her for washing and she
found sticky substances in his lungi. The FIR was lodged
more than a month after the incident. The Trial Court
acquitted Appellant giving him the benefit of doubt. The
State filed appeal while Respondent No.2 filed a revision B
application. High Court heard both the matters together
~
" and reversed the judgment of acquittal, holding Appellant
guilty and sentencing him to ten years Rigorous
Imprisonment.
In appeal to this Court, the conviction of Appellant c
was challenged on various grounds, viz. delay in lodging
of the FIR was not explained satisfactorily; the FIR was in
two parts and the second part showed improvement made
by Respondent No.2 (PW-1) in his statements made in the
first part; medical evidence adduced by the prosecution D
negated the charges against the Appellant; chance
discovery of the offence by the mother and maternal uncle
of Respondent No.2 was wholly concocted, as it was
wholly unnatural that the lungi would not be washed for
a period of about 10 days although Respondent No.2 had E
only two pairs of lungi. It was contended that the High
Court committed a serious error in reversing the judgment
of acquittal without considering the parameters therefor.
Allowing the appeal, the Court
F
HELD: 1. Delay in lodging of a FIR although by itself
t·
may not be a ground to disbelieve the entire prosecution
case, but each case must be judged on its own facts. If
the story of Respondent No.2 (PW-1) is to be accepted at
its face value, the Court may not take serious notice of
G
delay in lodging the FIR. But, for the said purpose, the
entire facts and circumstances of this case must be taken
.,, note of. The offence was said to have been repeated for
seven days at about the same time. It is wholly l!nlikely
that a student of a school of the Mutt, where compulsorily
H
1044 SUPREME COURT REPORTS [2008) 3 S.C.R.
A prayer has to be offered on a clean cloth and as apart
from two pairs of lungi and two pairs of school uniforms
he did not have anything else, had been putting on the
same lungi at least for about seven days while visiting
the appellant at his call. [Para 10) [1053-C-E]
B 2. From the statements of PW-4, it appears that
according to Respondent No. 2, his mother (who worked
as an Aaya in the school) used to come to the school for
washing the clothes once in a week or so. At the same
time, soap had been provided to Respondent No. 2 for
C washing his clothes. This conduct on the part of .
Respondent No. 2 throws serious doubts to the whole
story. If after Respondent No. 2 had returned to school,
attempts were made by the appellant immediately
thereafter to send for him for repeating the commission
D of the same offence, there was no reason why the FIR
was not lodged immediately. [Para 11) [1053-F-G]
3. It is against natural human conduct that such ari
act would be committed at 8 O'clock in the morning and
that too continuously for seven days. Even if PW-2 and
E 'G' had been asked to bring Respondent No. 2 with them,
. it is against all human conduct that after closing the door
they would be asked to be in the room and except seeing
the act with their own eyes, for all intent and purport they
would know what had been happening in the room.
F [Para 12) 1054-E-G]
4. According to the complainant, PW-2 and 'G' called
him only for the first day and not thereafter. How, then on
all the other days, he went to the office room of the
G appellant in the same way is not explained. [Para 13]
[1054-H; 1055-A]
5. A bare perusal of the FIR itself shows that it cannot
be in the handwriting of a student studying in Class IX. It
.
I
was in very good handwriting. It was written
H systematically. There was no mistake. There was no
GOWRISHANKARA SWAMIGALU v. STATE OF 1045
KARNATAKA & ANR.
~hesitation in writing. It was absolutely neat and clean. The A
' contents of the FIR clearly demonstrate that the same has
. been drafted by a person who is well versed in legal
language. Immediately, a purported statement was taken
after the FIR was lodged. That there exists some
improvement therein is not in dispute. A further statement B
was recorded that he had bimself written the FIR. The
'< subsequent statement may not be a part of the FIR being
a statement under s.161 of the Code; but the defence
is entitled to show that improvements have been made
therein vis-a-vis the allegations made in the FIR.
[Para 14] [1055-B-E]
c
6. When PW-3, an expert (Doctor) categorically ruled
outthe commission of the unnatural offence having reg,ard
to his expertise, it was obligatory on the part of the
\ prosecution to draw his attention to the authorities so as D
~·
to enable him to furnish an explanation. It may be true
that absence of medical offence by itself may not be a
crucial factor in all cases, but, the same has to be taken
into consideration as a relevant factor when other
evidences point towards the innocence of the appellant. E
'
Why in a case of this nature, filing of chargesheet was
unduly delayed and could be filed only after the dispute
between Senior Swamiji and the appellant crystalised, 'is
beyond anybody's comprehension. The High Court
~
merely relied upon the evidence of PW-1 (Respondent
No.2). His statements were taken as gospel truth. Only on F
..
the basis thereof, all other factors pointing out the
discrepancies in the prosecution case were lost sight of.
[Paras 21, 22] [1058-B-E]
Mihir Alias Bhikari Charan Sahu v. State, Opp. Party G
[199~ (98) Cr.LJ 488]· referred to.
7.1. A large number of irrelevant factors including the
'' rate of conviction, legalisation of sodomy in other
countries had been taken into consideration by the High
Court. Appellant for no reason was condemned in the H
1046 SUPREME COURT REPORTS (2008] 3 S.C.R.
.
A clearest possible terms. He was accused to be coining to ~
~
the High Court in an air-conditioned car and holding press
conferences which was denied and disputed by the public
prosecutor. He was also branded as a habitual offender.
Taking of such irrelevant factors clearly demonstrates how
B the mind of the High Court stood influenced not only for
the purpose of reversing a judgment of acquittal but also
,,[
for imposition of sentence. If the High Court was clear in
its mind that it was dealing with a criminal case and that
too the offence is a serious one, one fails to understand
c why it had made endeavours to mediate in the internal
disputes of the Mutt and for that purpose held sittings in
chamber. One also fails to understand as to why the
presence of the appellant on each day of hearing was
insisted upon and his absence had been adversely
commented upon. [Para 23) [1058-E-H; 1059-A]
D ~
~
7.2. Keeping in view the peculiar fact situation
obtaining herein, this is one of the rarest of rare cases
where a deeper scrutiny was necessary particularly when
the Trial Court had recorded a judgment of acquittal upon
E assigning sufficient and cogent reasons. [Para 25)
[1060-B]
8. C. Deva @ Dyava v. State of Karantaka [2007 (9)
SCALE 338); State of Kera/a v. Kurissum Moottil Antony
[(2007) 1 SCC 627) and State of Punjab v. Gurmit Singh and ~
F Others [(1996) 2 SCC 384)- distinguished.
.
8. The High Court also completely lost sight of the
parameters of its jurisdiction to reverse a judgment of
acquittal. It is not a case where only one view was
possible. The High Court failed to bear in mind the legal
G
principles and misdirected itself at va.rious stages. It was
wholly unfair to the appellant. [Paras 27, 29) [1060-G-H;
1064-C] ~
Jagdish & Anr. v. State of Madhya Pradesh [2007 (11)
H SCALE 213); Chandrappa & Ors. v. State of Karnataka 2007
GOWRISHANKARA SWAMIGALU v. $TATE OF 1047
KARNATAKA & ANR. [S.B. SINHA, J.]
(3) SCALE 90; Haji Khan v. State of UP [(2005) 13 SCC 353] A
... and Abdul Gafur & Ors. v. The State of Assam [2007 (13)
'
SCALE 801]- relied on.
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
Nos. 568-569 of 2004.
B
From the Judgment dated 30.1.2004 & 3.2.2004 of the
';; High Court of Karnataka at Bangalore in Crl. A. No. 254/99 c/w
Crl. R.P. No. 287/99.
Sushil Kumar, Rajesh Mahale, B.L. Chandrashekhar, H.S.
Seshadri, H.S. Raju and K. Lingaraju for the Appellant. c
M.N. Rao, P. Vishwanatha Shetty, M. Shivappa, Mahesh
R. Uppin, G.N. Rajasekhar, Chandrasekharah, P.R. Ramasesh,
Sanjay R. Hegde and Amit Kumar Chawla for the Respondents.
The Judgment of the Court was delivered by D
r
S.B. SINHA, J. 1. A Mutt known as Sri Siddaganga Mutt
(for short "Mutt") is situated in the State of Kerala. Appellant was
a 'junior Swamiji' therein. He was declared as the successor of
the 'senior Swamiji' on or about 21.05.1975. Disputes and
differences are said to have arisen between the two Swamijis. E
Police protection was given to the appellant. Both of them,
however, purported to have signed an agreement on 13.05.1986.
It was, however, not implemented.
The 'Mutt' used to run a school. Respondent No. 2 herein F
was admitted in the VII Ith standard in the said school of the Mutt.
•· At the material time, he was reading in the IXth standard therein.
On 18.07.1986 at about 8.30 a.m., the appellant allegedly
through PW- 2 Palaksha and Gopinath called him to his office.
The office was partitioned, one part of it was converted into a G
bed room. After Respondent No. 2 entered in the office, he was
asked to rub lemons on his body. He allegedly had stripped
I.
< prior thereto. Respondent No. 2 was also asked to take his
clothes off.
H
1048 SUPREME COURT REPORTS [2008] 3 S.C.R.
A 2. Respondent No. 2 alleged that he was subjected to
-t
unnatural offence by the appellant. His clothes, anus and panche •
(lungi) got soiled. He was given a sum of Rs. 10/- and asked
hot to tell the same to anybody else. The said activity of the
appellant is said to have continued upto 23.07.1986. He was
B every time offered some money. In total a sum of Rs. 75/- was
paid to him.
./
He allegeidly came back to his house with his brother on
28.07.1986. He gave the dirty clothes for washing to his mother.
His mother found sticky substances in the lungi. When accosted,
c he allegedly told her about the indecent behaviour of the
appellant. PW-8 Bhagawan Singh, the maternal uncle of
Respondent No. 2 (brother of PW-4 mother Dushyanthi) at that
time was also present. The victim was allegedly persuaded to
go back to the school. He came back to the school on
D 3.08.1986. PW-9 Shivakumar and Natraj were said to have
~
been asked by the appellant to bring him again to his office. He ~
declined to come. He allegedly made a complaint to the Senior
Swamiji as regards the incident who assured him to look
thereinto and asked him not to make any complaint, the prestige
E of the Mutt being involved. However, no action was allegedly
taken.
He thereafter lodged a First Information Report on or about
29.08.1986 at about 6.30 p.m. Investigation in the matter took
a long time. A spot mahazar (Ex. P2) was drawn up only on
F 30.08.1986. On 31.08.1986, the statement of PW-4 was
recorded. The statement of PW-2 Palaksha was recorded on t
17 .09.1986. The statement of Gopinath was taken on
23.11.1986. However, he was not examined in court. Statement
of PW-9 Shivakumar, another student was recorded on
G 2.12.1986. The statement of PW-8 Bhagawan Singh was taken
on 31.08.1987. Chargesheet in the case was filed only on
9.05.1988. Keeping in view the aforementioned fact, the Trial
Court initially discharged the appellant by an order dated
,
19.02.1990 which, however, was set aside by the High Court
H by an order dated 3.09.1992 with the direction to dispose of
GOWRISHANKARA SWAMIGALU v. STATE OF 1049
KARNATAKA & ANR. [S.B. SINHA, J.]
t-
i
the matter on merits. A
3. The trial started in March, 1996. In the mean time, the
appellant was removed from the Mutt. Immediately, thereafter,
he filed a suit on 27.05:1988. The said suit is still pending.
Names of sixteen witnesses were cited in the chargesheet. B
However, only thirteen of them were examined before the learned
'
' Trial Judge. PW-1 is the complainant. PW-2 Palaksha was the
student who along with Gopinath 'allegedly was asked by the
appellant to bring Respondent No. 2 to his office. Gopinath who
was a material witness as also the Senior Swamiji who could c
throw enough light in regard to the complaint made by
Respondent No. 2 to him, for reasons best known to the
prosecution, were not examined. PW-2 although is not an eye-
witness but when the offence was being committed, he allegedly
knew as to what was going on as both he and Gopinath were
• D
inside the room, although doors were closed and the place
' . where the bed was placed in the office room was divided only
by a plywood partition.
4. PW-3 Dr. V. Bangaraswami medically examined
Respondent No. 2 on 29.08.1986. PW-4 Dushyanthi is the E
mother of Respondent No. 2. Shivakumariah PW-5 and
Dharanesh PW-6 are witnesses to mahazar. PW-7 Dr.
Parashuram is· a surgeon. PW-8 Bhagawan Singh is the
maternal uncle of Respondent No. 2. PW-9 Shivkumar and
Natraj are other students who were asked by the appellant to F
call Respondent No. 2. Natraj, however, was not examined. PW-
·10 B. Raghavendra Rao proved the report of the forensic
laboratory. PWs. 11, 12 and 13 were the investigating officers.
5. The learned Trial Judge recorded a judgment of acquittal
opining: G
"32. Thus, in view of the above said discussion, I am
" considering the evidence of the PWs 1, 4, 8 and 9 and
also the medical evidence, namely, PWs 3, 7 and 10 and
also the evidence of the investigating agency, it is clear
H
1050 SUPREME COURT REPORTS (2008) 3 S.C.R.
A that, there is a long gap in recording the statement of the 1
witnesses by the Investigating Agency. As observed earlier, •
the evidence of the PW1 is not supported by any medical
evidence and the alleged version of PW1 regarding his
visit to Bangalore is contradictory, when it is compared
B with the evidence of the PWs 4 and 8 and there is a delay
in filing the complaint, and the fact that, the evidence of the
i'
PW1 he was called through the PW2 and CW3, becomes
improbable, looking to the facts of the case, and there are
improbable circumstances in the case, and as the
c evidence of the PW1 is not supported by the medical
evidence, and as such, his evidence is not reliable, and
there is abnormal and extraordinary delay in filing the
complaint, and the accused is not examined by any doctor
in this case and the circumstantial evidence does not
corroborate, the evidence of the PW1, and they
D •
contradicted to him i.e. PW1 's version and in view of the
above said discussion, a doubt arises about the "'
prosecution case and as such, the accused is entitled for
the benefit of doubt."
E 6. The State preferred an appeal thereagainst.
Respondent No. 2 also filed a revision application, the
maintainability whereof was in question. Both the criminal appeal
and the criminal revision application were taken up for hearing
together.
F 7. A disturbing feature that occurred before the High Court
may be noticed by us at this stage. Although the allegation
against the appellant was commission of a heinous offence, an
attempt was made by the court to get the civil disputes between
the appellant and the senior Swamiji settled.
G
The High Court in its judgment recorded that the appellant
used to come in an air-conditioned car and would hold press
meetings although the case was pending. He attributed the said
conduct on the appellant relying on or on the basis of a statement
. made by the public prosecutor. The Public prosecutor, however,
H
GOWRISHANKARA SWAMIGALU v. STATE OF 1051
KARNATAKA & ANR. [S.8. SINHA, J.]
,_
•' filed a memo before the court denying and disputing the said A
statements attributed to him. Curiously enough, the High Court
directed the appellant to remain present on all the dates of
hearing. Only because on one of the dates of hearing, he was
not present, serious note thereof was taken and his purported
conduct, as noticed hereinbefore, was commented upon. B
I
-r Appellant was found guilty of commission of the said
offence by the High Court. The judgment of acquittal was
reversed.
A long hearing was given for imposition of sentence. State c
and Respondent No. 2 prayed for imposing of life sentence as
also a fine of Rs.50 lakhs on him. Ten years' rigorous
imprisonment and a fine of Rs. 25 lakhs, however, was imposed
stating that the revision application has been allowed in part.
1·
8. Mr. Sushi! Kumar, learned senior counsel appearing on D
behalf of the appellant, would submit:
(i) The delay in lodging of the First Information Report
having not been ex;::>lained satisfactorily, no reliance
can be placed thereupon. The First Information Report
is in two parts and the second part thereof would E
clearly show improvement made by PW-1 in his
statements made in the first part.
(ii) A bare perusal of the First Information Report would
show that the same was drafted by a person having F
good knowledge of law.
(iii) The medical evidence adduced by the prosecution
clearly negates the charges.
(iv) The chance discovery of the offence by the mother
G
and maternal uncle of Respondent No.2 is wholly
concocted, as it is wholly unnatural that the lungi would
~
not be washed for a period of about 10 days although
he had only two pairs of lungi and two pairs of school
uniforms.
H
1052 SUPREME COURT REPORTS [2008] 3 S.C.R.
A (v) According to PW-4 and PW-8, Respondent No. 2 ~
returned home only on 18.08.1986 and remained in •
the house for about 20 days which belies the story
as narrated in the First Information Report.
(vi) The High Court committed a serious error in reversing
B the judgment of acquittal without considering the
parameters therefor.
9. Mr. Sanjay R. Hegde, learned counsel appearing on
behalf of the State and Mr. M.N. Rao, learned counsel appearing
c on behalf of Respondent No. 2, on the other hand, would submit:
(i) the offence alleged being a heinous one performed
on a child of 13 years which has ruined the life of a
boy must be viewed with all seriousness by this court.
(ii) In a case of this nature, it is wholly unlikely that a
D
young boy would lodge a false First Information
•t
Report, particularly, when he was advised by his
mother and maternal uncle to inform the police only
when an attempt was made to repeat the offence.
E (iii) The statement of Respondent No. 2 having not only
been corroborated by the other students of the
school, being PWs. 2 and 9, also stand corroborated
by the evidence of his mother and uncle, PWs 4 and
8, respectively. ~
F (iv) Respondent No. 2 has admitted his handwriting in
~
the sheet of the First Information Report which was
marked as Exhibit P1. The latter part of the First
Information Report which was marked as Exhibit P1 B
is really a statement under Section 161 of the Code
G of Criminal Procedure and, thus, there is no reason
why the same cannot be relied upon.
(v) Absence of medical evidence in regard to •
commission of offence is not conclusive as evidence
of injury cannot be found as the Respondent No.2
H
GOWRISHANKARA SWAMIGALU v. STATE OF 1053
KARNATAKA & ANR. [S.B. SINHA, J.]
was examined after a period of 40 days. Furthermore, A
injuries suffered by him which might have been minor
in nature might have been healed up in ordinary
course.
(vi) Statement of PW-4 that Respondent No. 2 came
back to his house immediately before Rakshbandhan 8
'
y
day·need not be taken seriously by the court as she,
having been hailing from a lower strata of the society
might .riot have been able to remember the exact
date after a period of 1O years.
c
10. Delay in lodging of a First Information Report although
by itself may not be a ground to disbelieve the entire prosecution
case, but each case must be judged on its own facts. If the story
of PW-1 is to be accepted at its face value, the court may not
<· take serious notice of delay in lodging the First Information
D
Report. But, for the said purpose, the entire facts and
circumstances of this case must be taken note of. The offence
was said to have been repeated for seven days at about the
same time. It is wholly unlikely that a student of a school of the
Mutt, where compulsorily prayer has to be offered on a clean
cloth and as apart from two pairs of lungi and two pairs of school E
uniforms he did not have anything else, had been putting on the
same lungi at least for about seven days while visiting the
J appellant at his call.
'. f
11. From the statements of PW-4, it appears that according F
to Respondent No. 2, his mother used to come to the school for
washing the clothes once in a week or so. At th.e same time,
soap had been provided to Respondent No. 2 for washing his
clothes. This conduct on the part of Respondent No. 2 throws
serious doubts to the whole story. If Respondent No. 2 had
G
returned to school on 3.08.1986 and attempts were made by
.. the appellant immediately thereafter to send for him for repeating
' the commission of the same offence, there was no reason why
the First Information Report was not lodged immediately.
Even PW-4 has categorically denied and disputed that she H
1054 SUPREME COURT REPORTS [2008] 3 S.C.R.
A had made any statement before the investigating officer after
the First Information Report was lodged on 31_08.1986.
According to her, as also PW-8, Respondent No. 2 came back
to the house only on the Rakshbandhan day and stayed there
for 20 days. He had to be persuaded to return to school. PW-8
B came with them. It was he who used to run the house; the
husband of PW-4 for all practical purposes having nothing to
do with the affairs of the house. The husband of PW-4 has also
not been examined.
PW-8 was attached to the Mutt. It was he, who was
c instrumental for admission of the boy in the Mutt. He knew the
Administrator. He did not meet the appellant to make enquiries.
He did not meet the Senior Swamiji to lodge a complaint. He
did not even meet the Administrator.
PW-4 was not an illiterate lade. She had studied upto IXth ~
D
standard. She had been wor~ing in a school as an Aaya. Her
sister is a teacher in a school. It is, therefore, unlikely that no
step would be taken by the guardians when they came to know
about the incident.
E 12. It is against natural human conduct that such an act
would be committed at 8 O'clock in the morning and that too
continuously for seven days.
The site plan shows that the office of the Senior Swamiji is
only 5 feet away from the office of the appellant. There was a
F store room and also a room for sitting of the other staff members
attached to the room. ·Even if PW-2 and Gopinath had been
asked to bring Respondent No. 2 with them, it is against all
human conduct that after closing the door they would be asked
to be in the room and except seeing the act with their own eyes,
G for all intent and purport they would know what had been
happening in the room. Despite the same, according to PW-2,
j
when they came out of the room, Respondent No. 2 was asked '
about what had happened. He allegedly stated thereabout.
13. According to the complainant, PW-2 and Gopinath
H
GOWRISHANKARA SWAMIGALU v. STATE OF 1055
KARNATAKA & ANR. [S.B. SINHA, J.]
f called him only for the first day and not thereafter. How, then on A
all the other days, he went to the office room of the appellant in
the same way is not explained. PW-2, Gopinath as also PW-9
were not studying with him in the same class. They used to stay
in the third floor of the hostel; whereas Respondent No. 2 used
to stay in the ground floor thereof. B
i 14. A bare perusal of the First Information Report itself
shows that it cannot be in the handwriting of a student studying
in Class IX. It was in very good handwriting. It was written
systematically. There was no mistake. There was no hesitation
in writing. It was absolutely neat and clean. The contents of the c
First Information Report clearly demonstrate that the same has
been drafted by a person who is well versed in legal language.
Immediately, a purported statement was taken after the First
Information report was lodged that there exists some
improvement therein is not in dispute. A further statement was D
recorded that he had himself written the First Information Report.
The subsequent statement may not be a part of the First
Information Report being a statement under Section 161 of the
Code; but the defence is entitled to show that improvements
have been made therein vis-a-vis the allegations made iri the E
First Information Report.
15. PW-1 made the following statement in his deposition
;.
before the Investigating Officer:
"I have myself written this application ifl my own F
(
handwriting. As stated in my application, the boys who
took me to Gowrishankar Swamiji closed the door and
stood inside only. After this incident I did not inform it to
anybody. The senior Swamiji expelled Palaksha and
Gopinath who used to live with me in the Mutt. When
G
Gowrishankar Swamiji asked me to remove my clothes,
I was wearing one Green colour stripped underwear, one
white panche, one baniyan and turmeric colour checked
towel. My mother has washed the said clothes. From my
home town, when I returned to the Mutt on 3-8-86,
H
1056 SUPREME COURT REPORTS [2008] 3 S.C.R.
A Shivakumar and Natraj, boys of middle school came to 1
me and told me that Gowrishankar Swamiji is called me.
I was scared and I did not go. I informed that the junior
Swamiji had done such a thing to the senior Swamiji in the
evening at about 8-30 p.m. I was afraid that some one will
B beat me therefore, I did not give any report about it. Today,
I came to know that Siddalingappa and Hebbak Mahadev J
are searching for me and realizing that I cannot allow it to
continue like this. I have given my written application."
16. We have noticed hereinbefore that despite the fact
c that commission of such a heinous crime was reported to the
police authorities, how tardy the investigation was.
PW-4 in her deposition completely denied to have made
any statement before the police officer on 31.08.1986. The
reason is not very far to seek. Her attention was drawn to her '
D
previous statements where she had alleged that her son had
mentioned about the incidents on 18.08.1986 and left the house
on 28.08.1986. When her attention was drawn to the other
statements made by her before the Investigating Officer, she
stated:
E
·" ... I do not know if I have stated before the police in terms
of 01 and 02. Before the police I have not mentioned that
I informed my brother Bhagvan Singh that the children
have dirtied the clothes. Before the police I have not .
F mentioned that Bhagvan Singh enquired my son Deepak
Singh after coming back from playing as to why he had
dirtied his clothes. Further, I have not mentioned to the
police that when my son Deepak Singh told to Bhagvan
Singh, I was present there. My son went back five days
after coming ... "
G
17. PW-8 who, as noticed hereinbefore, was examined
by the police more than one year after the occurrence, viz., I
i
"
31.08.1987, in his cross-examination, stated:
"... After about 2 months after they came for Rakhi festival,
H
GOWRISHANKARA SWAMIGALU v. STATE OF 1057
KARNATAKA & ANR. [S.B. SINHA, J.]
,. my statement was recorded by police. I might have A
• informed the police that we celebrate Rakshabandhan
festival on 19-8-86. I have stated that on 18-8-86 the
children came to my .sister's house from the Mutt for
celebrating the festival. Two days thereafter, my sister had
washed the clothes of the children. It is not correct to say B
that I have not mentioned in the police statement that my
sister asked Deepak Singh why his clothes were so dirty.
My sister asked both the children why they had dirtied the
clothes so much. At that time both the children were in the
house. From 18-8-86 both the children stayed for about c
20 days in my sister's house in Bangalore. After 20 days,
I encouraged the children and left them in the Mutt. I have
not seen Palaksha and Gopinath. Even when I went to
leave the children at the Mutt, I did not meet the accused
and ask him why he was having such immoral.intercourse
D
with children and how can he do such a thing. I did not go
and meet the Senior Swamiji and inform him that your
junior Swamiji is doing such a thing ... "
18. Whereas according to PWs 4 and 8, they came to
know about the incident on or about 18.08.1986 and Respondent E
No. 2 and his brother having stayed in the house for 20 days, it
remains a mystery how First Information Report could be lodged
on 29.08.1986.
l 19. PW-3 Dr. V. Bangaraswami in his evidence stated:
F
"All the tissues around the anus are hard and rough. At the
time of answering the calls of nature, the extra skin will be
expanded. Immediately after it will come to original status.
By examination I found that boy was not habitually used for
.anal intercourse. If there is continuous act of intercourse
G
for about a week or even 2,3 days we can find out as
whether he had any intercourse or not."
,.
1
20. Mr. Hegde relied o.n a decision of the Orissa High Court
in Mihir Alias Bhikari Charan Sahu v. State, Opp. Party [1992
(98) Cr.LJ 488], wherein Ejaj Ahmad's Sexual Offences and H
1058 SUPREME COURT REPORTS [2008] 3 S.C.R.
A Modi's Medical Jurisprudence and Toxicology have been
extensively quoted, to contend that lacerations are likely to
disappear if the examination is made after two to three days
•
and nature of injuries would also depend upon several factors .
. 21. When an expert categorically ruled out the commission
B of the unnatural offence having regard to his expertise, it was
obligatory on the part of the prosecution to draw his attention to )
the said authorities so as to enable him to furnish an explanation.
It may be true that absence of medical offence by itself may not
be a crucial factor in all cases, but, the same has to be taken
c into consideration as a relevant factor when other evidences
point towards the innocence of the appellant.
22. Why in a case of this nature, filing of chargesheet was
unduly delayed and could be filed only in May, 1988, i.e., only
D
after the dispute between Senior Swamiji and the appellant ...
crystalised, is beyond anybody's comprehension. The High
Court merely relied upon the evidence of PW-1. His statements
were taken as gospel truth. Only on the basis thereof, all other
factors pointing out the discrepancies in the prosecution case
were lost sight of.
E
23. A large number of irrelevant factors including the rate
of conviction, legalisation of sodomy in other countries had been
taken into consideration by the High Court. Appellant for no
·reason was condemned in the clearest possible terms. He was
F accused to be coming to the High Court in an air-conditioned
•'
car and holding press conferences which was denied and
disputed by the public prosecutor. He was also branded as a
habitual offender. Taking of such irrelevant factors clearly
demonstrates how the mind of the learned Judges of the High
Court stood influenced not only for the purpose of reversing a
G
judgment of acquittal but also for imposition of sentence. If the
High Court was clear in its mind that it was dealing with a
criminal case and that too the offence is a serious one, we fail .
' ~
to understand why it had made endeavours to mediate in the
internal disputes of the Mutt and for that purpose held sittings in
H
GOWRISHANKARA SWAMIGALU v. STATE OF 1059
KARNATAKA & ANR. [S.B. SINHA, J.]
chamber. We also fail to understand as to why the presence of A
~
the appellant on each day of hearing was insisted upon and his
absence had been adversely commented upon.
24. Mr. Hegde relied upon a recent decision of this Court
in B. C. Deva @ Dyava v. State of Karantaka [2007 (9) SCALE
338] to contend that in a case involving sexual abuse the B
f testimony of the victim should ordinarily be believed. The factual
matrix involved therein was absolutely different as not only the
prosecutrix was found to be a consenting party, but immediately
after the incident she rang to her mother for the purpose of
disclosing the incident and she felt so depressed and humiliated c
as to lead her to the extreme step of ending her life by jumping
in a water tank. It was in the aforementioned situation opined:
"12. Having carefully gone through the evidence of the
prosecutrix, we find no plausible and justifiable reasons
.... D
,~
whatsoever to disbelieve and discard her testimony. The
prosecutrix is a trust-worthy witness and her evidence
cannot be brushed aside on the above-noted flimsy plea
raised by the accused."
The question as to whether the witnesses in criminal cases E
irrespective of the nature of offence should be fully relied upon
or not would depend upon the fact of each case. There cannot
be any precedent on fact. •
t 25. Reliance has been placed on State of Kera/a v.
Kurissum Moottil Antony [(2007) 1 SCC 627] wherein it was F
held that in a case of sexual assault whether corroboration is
necessary or not is again a question in regard whereto no hard
and fast rule can be laid down. In the aforementioned case, the
victim was a girl of 10 years. The accused trespassed into her
house when she was alone and committed an unnatural offence. G
The testimony of the girl found corroboration from the medical
evidence. It was observed:
~
"7. An accused cannot cling to a fossil formula and insist
on corroborative evidence, even if taken as a whole, the
H
1060 SUPREME COURT REPORTS [2008) 3 S.C.R.
A case spoken to by the victim strikes a judicial mind as
probable. Judicial response to human rights cannot be
blunted by legal jugglery ... "
•
In any event, keeping in view the peculiar fact situation
,
obtaining herein, we are of the opinion that this is one of the
B rarest of rare cases where a deeper scrutiny was necessary
particularly when the Trial Court had recorded a judgment of
acquittal upon assigning sufficient and cogent reasons and
wherewith we agree.
c 26. Reference to State of Punjab v. Gurmit Singh and
Others [(1996) 2 SCC 384) does not take us any furtheCTherein
it was observed:
"... The courts, therefore, shoulder a great responsibility
while trying an accused on charges of rape. They must
D deal with such cases with utmost sensitivity. The courts
should examine the broader probabilities of a case and
-
not get swayed by minor contradictions or insignificant
discrepancies in the statement of the prosecutrix, which
are not of a fatal nature, to throw out an otherwise reliable
E prosecution case. If evidence of the prosecutrix inspires
confidence, it must be relied upon without seeking
corroboration of her statement in material particulars. If
for some reason the court finds it difficult to place implicit
reliance on her testimony, it may look for evidence which f
F may lend assurance to her testimony, short of corroboration
required in the case of an accomplice. The testimony of
the prosecutrix must be appreciated in the background of
the entire case and the trial court must be alive to its
responsibility and be sensitive while dealing with cases
involving sexual molestations."
G
27. The High Court also completely lost sight of the
'-
parameters of its jurisdiction to reverse a judgment of acquittal.
It is not a case where only one view was possible. We are not
unmindful that some mistakes had also been committed by the
H learned Sessions Judge which had been pointed out by Mr. M.N.
GOWRISHANKARA SWAMIGALU v. STATE OF 1061
KARNATAKA & ANR. [S.B. SINHA, J.]
Rao in the following terms: A
~
(i) The PW7 has also stated in his evidence that "no
abnormality is detected as per Ex. P3". This goes to
show that the evidence of the PW1 and the evidence
of PWs 3, 7 and 1Oare taken together, it is clear that
· the evidence of the PW1 is not corroborated by the B
medical evidence.
(ii) It is the defence of the accused that the PWs 1 and
2 and CW3 and PW9 are not at all residing in the
Mutt and they are created against the accused. c
r (iii) The PW1 in the cross has admitted at page no. 19
· that against him the J.C. cases in J.C. No. 86/86, 59/
87, 60/87, 61/87, 89/87 and CC 4350/90 were filed
by the Kyathasandra P.S.
~
D
but, then the High Court could have made an endeavour to
arrive at its independent findings.
Our approach to the case is not different as we have made
. all endeavours to appreciate the testimony of the victim in the
background of the entire case. E
28. We have ourselves gone through the materials on
records very carefully and are clearly of the opinion that the
learned Trial Judge was correct in its view.
.
, 29. We may at this juncture notice a few precedents
operating in the field.
In Jagdish & Anr v. State of Madhya Pradesh [2007 (11)
SCALE 213], this Court held:
F
"12. The High Court while dealing with an appeal from a G
judgment of acquittal was, thus, required to meet the
.aforementioned reasonings of the learned Trial Judge.
- There cannot be any doubt whatsoever that irrespective
of the fact that the High Court was dealing with a judgment
of acquittal, it was open to it to re-appreciate the materials
H
1062 SUPREME COURT REPORTS [2008] 3 S.C.R.
A brought on records by the parties, but it is a well-settled ..
principle of law that where two views are possible, the .....
High Court would not ordinarily interfere with the judgment
of acquittal. [See Rattan Lal v. State of Jammu & Kashmir
- 2007 (5) SCALE 472].
B 14. It is unfortunate that the High Court while arriving at the
aforementioned conclusion did not pose unto itself the ...
right question. In the event, it intended to arrive at a finding
different from the one arrived at by the Trial Court, it was
obligatory on its part to analyze the materials on record •
c independently. The High Court was also required to meet
the reasoning of the learned Trial Judge. If the learned
Trial .Judge upon appreciation of the evidence arrived at
a conclusion that the time of occurrence disclosed in the
--
First Information Report was not correct inasmuch whereas
D the occurrence is said to have taken place at 08.00 a.m.
......_
but in fact it took place much prior thereto, it could not be
opined that the First Information Report was lodged within
an hour of the incident. .. "
It was noticed:
E
"17. Yet again in Ka/Ju alias Masih and Others v. State of
MP. [(2006) 10 SCC 313], this Court opined :
"8. While deciding an appeal against acquittal, the power
of the Appellate Court is no less than the power exercised •
F while hearing appeals against conviction. In both types of
appeals, the power exists to review the entire evidence.
However, one significant difference is that an order of
acquittal will not be interfered with, by an appellate court,
where the judgment of the trial court is based on evidence
G and the view taken is reasonable and plausible. It will not
reverse the decision of the trial court merely because a
different view is possible. The appellate court will also
bear in mind that there is a presumption of innocence in ---
favour of the accused and the accused is entitled to get
H the benefit of any doubt. Further if it decides to interfere,
GOWRISHANKARA SWAMIGALU v. STATE OF 1063
KARNATAKA & ANR. [S.B. SINHA, J.]
it should assign reasons for differing with the decision of A
t the trial court."
[See also Rattan/a/ (supra) and Ramappa Halappa Pujar
& Others v. State of Karnataka - 2007 (6) SCALE 206]."
[See also Chandrappa & Ors. v. State of Karnataka 2007 B
(3) SCALE 90 and Haji Khan v. State of UP [(2005) 13 SCC
353]
Recently in Abdul Gafur & Ors. v. The State of Assam [2007
(13) SCALE 801], a Bench of this Court held:·
c
"10. The accused persons are not strangers and were
practically neighbours of the informant and his family. The
High Court noted that there was no intention to falsely
implicate accused persons because of enmity and there
was no reason as to why dignity of two young girls would
D
be put at stake by alleging rape. It is to be noted that in
fact rape was alleged but the Trial Court found that there
was no material to substantiate the plea of rape. The
evidence is totally inconsistent and lacks credence. The
High Court's observations were clearly based on surmises
and contrary to the factual scenario. The High Court has E
noted that the evidence of PWs. 1,2,3,5 & 8 stand fully
corroborated by the medical evidence. Significantly, on
consideration of the evidence of PW 4, it is clearthat the
·• evidence of this witness is clearly contrary to the medical
evidence. To add to the confusion, it is noted that the High F
Court recorded as finding that appellant Abdul Gafur was
absconding. As a matter of fact the evidence of
Investigating Officer (in short the '1.0') shows that he had
arrested Abdul Gafur on the date the First Information
Report (in short the 'FIR') was lodged. Unfortunately the G
High Court has merely referred to certain conclusions of
the Trial court without analyzing the evidence and various
-~ submissions made by the appellants. To add to the
vulnerability of the prosecution version, the FIR was lodged
long after the incident and in fact law was already set on H
1064 SUPREME COURT REPORTS [2008] 3 S.C.R.
A motion after the telephonic message had been received.
11. The aforesaid infirmities in the background of admitted
animosity between the parties renders the prosecution
version unacceptable. The Trial Court and the High Court ·
did not analyse the evidence correctly and acted on mere
B surmises and conjectures. That being so, the appellants
deserve to be acquitted, which we direct."
The High Court unfortunately failed to bear in mind the
aforementioned legal principles. The High Court misdirected
c itself at various stages. It was wholly unfair to the appellant.
30. For the reasons aforementioned, the appeal is allowed.
The judgment of conviction and sentence passed by the High
Court is set aside and the judgment of acquittal passed by the
Trial Court is restored. Appellant is set at liberty forthwith if not
D required in connection with any other case.
B.B.B. Appeal allowed.
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