THOMAS, J.

1. A girl of sixteen (Satya Vani) was raped and throttled to death. This was the gravamen of the charge put against respondent Gangula Satya Murthy alias Babu. Sessions Court convict him under Section 302 and 376 of the Indian Penal Code and sentenced him to imprisonment for life and rigorous imprisonment for 7 years respectively under the two counts. But on appeal, a Division Bench of the High Court of Andhra Pradesh acquired him. This appeal by special leave has been filed by the State of Andhra Pradesh in challenge to the said order of acquittal.

2. We shall state the facts of the case as put forth by the prosecution.

Satya Vani was a student of 10th standard. She was residing with her parents in Village Talluru (East Godawari District). Respondent Babu, a married young man, was residing with his mother in their house situated near the house of the deceased. Satya Vani used to visit the respondents house to see television programmes as there was no television set available in her house. The respondent developed, in course of time, an infatuation for Satya Vani, but the overtures made by him were not favourably reciprocated by her.

3. On the evening of 26-11-1991, Satya Vani was sent by her parents to the house where her grandparents lived with some errand. While returning from there she stood into the respondents house for seeing the programmes being telecast. The respondent was all alone then in that house as his mother had gone to the town to see town to see a cinema show. Taking advantage of the absence of everyone else in the house, the respondents subjected Satya Vani to sexual intercourse by forcibly putting her on the cot. When she threatened that she would complain to her parents the respondent caught hold of her neck throttle her to death. A little later the respondents went out of the house bolting it from outside.

4. As Satya Vani did not return home even after a long time her parents became panicky and they made hectic enquiries for her. When the respondents mother reached home by about 10 p.m., she found Satya Vanis dead body lying on the cot in her house, and she immediately conveyed the frightening news to her anxious parents.

5. Police was informed of the matter and an FIR under Section 174 of the Code of Criminal Procedure was prepared, and the inquest on the dead body was held by the Sub-Inspector of Police. During autopsy it was revealed that Satya Vani was subjected to sexual intercourse and her death was due to throttling.

6. On 2-12-1991, the respondents was physically produced before the police by two residents of the locality (PW 6 and PW 7) on the premises that the respondents had admitted his guilt to them. A letter which Satya Vani had addressed to the respondents was also delivered to the police. After completing the investigation, the respondent was challaned.

7. Sessions Court found on the evidence, which is entirely circumstantial, that the respondents had raped the deceased girl and killed her by throttling. Accordingly the respondent was convicted and sentenced as aforesaid.

8. The following circumstances were found by the Sessions Court as established firmly by the prosecution : (1) Satya Vani was seen entering the house of the respondent by about 5.30 p.m.; (2) After some time the respondent was seen going out of the house bolting the door from outside; (3) Death of Satya Vani took place inside the house of the respondents some time between 6 p.m. and 10 p.m.; (4) She was subjected to sexual intercourse before her death and she died due to throttling; (5) The respondent alone was present in the house during the relevant time besides the deceased; (6) Extra-judicial confession was made by the respondent to PW 6 and PW 7.

9. The Division Bench of the High Court of Andhra Pradesh, however, expressed the view that the possibility of the deceaseds death due to consumption of poison, could not be ruled out in this case. The learned Judges entertained the doubt that the injuries on the neck including the fracture of the hyoid bone could have been post-mortem injuries. Further, the extra-judicial confession spoken to by PW 6 and PW 7 was not acted on by the High Court due to certain infirmities pointed out in the judgment. Resultantly, the High Court reversed the judgment of the Sessions Court and passed the order of acquittal.

10. The learned counsel, who argued for the State, seriously assailed the reasoning of the High Court for reaching the findings. When we perused the records in the light of the arguments addressed by both sides we are of the opinion that the High Court has manifestly erred in revising the findings arrived at by the trail court. We shall now advert to our reasons.

11. Dr. K. Trinadharao (PW 10) of the Government Hospital who conducted the post-mortem examination has recorded his observations in the certificate as follows.

"Injuries are ante-mortem in nature. Two finger pressure abrasions were present on the right as well as on the left side of the neck placed anteriorly, which continued up to the root-level on the back of the neck. A fresh vaginal tear on the inner vaginal walls posterior to labia minora, fracture of the right hyoid bone and extravasation of blood on both sides of the neck were found. Both lungs were congested. Emphysematous bullae were present on the surface of both the lungs." *

When the vaginal swabs from the deceased were examined under microscope, presence of dead non-motile spermatozoa were observed by the doctor.

12. The High Court has reached the conclusion that fracture of the hyoid bone was likely to be a post-mortem injury caused while the dead body was carried in a rickshaw. The learned Judges have advanced the following reasons for reaching the said conclusion : (1) Witnesses who were present at the inquest as well as the investigating officer did not notice any abrasion or other injury on the neck of the dead body; (2) Dr. Trinadharao (PW 10) admitted in cross-examination that "if pressure is applied by fingers, only contusions are possible but not abrasions"; (3) PW 10 has further stated in his deposition that if the fracture on the hyoid bone was ante-mortem there would have been corresponding bleeding but no such bleeding was noted by the doctor during the autopsy; (4) The doctor witness has also stated that it is possible to cause fracture of the hyoid bone when a dead body is carried in an auto-rickshaw.

13. We cannot resist expressing our distress that the High Court has chosen to advance fragile reasons to upset a well-reasoned conclusion reached by the trial court that the deceased was throttled to death. The mere fact that the witnesses present at the inquest had escaped noticing the small abrasions on the neck of the dead body is too tenuous a ground for holding that such abrasions would have come into existence after the inquest was held overruling the definite opinion to the medical man (who saw the injuries) that they were ante-mortem injuries. It is totally incorrect to say that no abrasion would be caused if pressure is applied with fingers. It is only common sense that if such fingers have projecting nails, pressure application with such fingers would quite possibly cause abrasions as well. Similarly the observation of the High Court that no bleeding was noticed at the site of the fracture of the hyoid bone is not factually correct as PW 10 had noted in the post-mortem certificate that there was extravasation of blood on both sides of the neck.

14. The High Court has adverted to yet another reason for holding that death might not have been caused due to throttling. The vomited material found on the cot and mouth of the dead body was not sent for chemical examination, and hence the High Court concluded that "it is also possible that death might have been caused due to asphyxia by poisoning." We are disturbed very much as the High Court has overlooked, if not ignored, the evidence of Dr. Trinadharao (PW 10) that viscera comprising stomach contents, intestine, piece of lever and also kidney had been forward to the chemical laboratory for analysis and PW 10 had reserved his final opinion till he got the result of such analysis. When he later received the chemical examination report he pronounced his final opinion that the death was due to asphyxia as no poison was detected in the viscera. The report of the chemical examiner is available in the records. Section 293 of the Code would enable the court to use the said document in evidence. In spite of such unassailable materials the High Court has arrived at the finding the "in the facts and circumstances of the case it cannot be ruled out in its entirely that death was not caused due to poisoning"

15. One of the circumstances relied on by the prosecution is that the respondent had confessed his guilt to PW 6 and PW 7. In other words, prosecution relied on the extra-judicial confession of the respondent spoken to by the said two witnesses. In their deposition they said that on 2-12-1991, they buttonholed the respondent and confronted him which certain questions pertaining to the death of the deceased and then the respondent had blurted out to them of what had happened. The witnesses further deposed that the respondent took out a letter and showed it to them. The witnesses thereupon took him to the police station where that letter was also produced. PW 14 Sub-Inspector of Police confirmed that those two witnesses brought the respondent to the police station and produced Ext. P-13 letter.

16. Truth of the evidence of PW 6 and PW 7 stands vouchsafed by Ext. P-13 letter as the same was proved to be a letter written by the deceased to the respondent. PW 12 Assistant Director, Forensic Science Laboratory, who was also a handwriting expert examined the handwriting on the letter with the admitted handwriting of the deceased found in some answer-sheets (which the police collected from the Principal of the school where Satya Vani studied - PW 13). PW 12 gave cogent reasons for his conclusion that both were written by the same person. A readings of the contents in that letter admits of no doubt that it was addressed to the respondent in this case

17. The aforesaid extra-judicial confession was relied on by the trial court but the High Court did not act on it for two reasons. First is a seeming disparity between the time of making the confession as spoken to by the witnesses and the time mentioned by the police on the strength of station records. The second reason is that the said extra-judicial confession was reduced to writing as Ext. P-7, inside the police station and hence it is hit by Section 26 of the Evidence Act, 1872.

18. It is true that in the deposition PW 6 and PW 7 have said that it was at 7 a.m. that the respondent made the confession to them. But the Sub-Inspector said that the accused was produced in the police station at 7.30 p.m. We think that much should not have been made out of that disparity as there could be a possibility of making an error in recording the time a.m. for p.m. We say this because both PW 6 and PW 7 uniformly said that they took the respondent to the police station situated about 3 kilometers away. As the police records show that they him at 7.30 p.m. it is only inferential that the respondent would have made the confession in the evening and not during morning hours. At any rate it is not proper to jettison an otherwise sturdy piece of evidence of extra-judicial confession on the ground of such a rickety premise.

19. The other reasoning based on Section 26 of the Evidence Act is also fallacious. It is true any confession made to a police officer is inadmissible under Section 25 of theand that ban is further stretched through Section 26 to the confession made to any other person also if the confessor was then in police custody. Such custody need not necessarily be post-arrest custody. The word custody used in Section 26 is to be understood in a pragmatic sense. If any accused is within the ken of surveillance of the police during which his movements are restricted then it can be regarded as custodial surveillance for the purpose of the section. If he makes any confession during that period to any person be he not a police officer, such confession would also be hedged within the banned contours outlined in Section 26 of the Evidence Act.

20. But the confession made by the respondent to PW 6 and PW 7 was made while he was anywhere near the precincts of the police station or during the surveillance of the police. Though Ext. P-7 would have been recorded inside the police station its contents were disclosed long before they were reduced to writing. We are only concerned with the inculpatory statement which the respondent had made to PW 6 and PW 7 before they took him to the police station. So the mere fact that the confession spoken to those witnesses was later put in black and white is no reason to cover it with the wrapper of inadmissibility. We find that the High Court has wrongly sidelined the extra-judicial confession.

21. The fact that the body of Satya Vani was found on the cot inside the house of the respondent is a very telling circumstance against him. The respondent owed a duty to explain as to how a dead body which was resultant of a homicide happened to be in his house. In the absence of any such explanation from him the implication of the said circumstance is definitely adverse to the respondent.

22. The High Court has extricated the appellant from the indictment of rape on the erroneous assumption that it would have been a consented copulation. The learned Judges have relied on two circumstances in support of the said assumption. One is that there was no nail mark on the breast or face or thigh or private parts of the deceased for indicating resistance offered by her. Second is that PW 10 doctor did not notice any hymen for (sic) the deceased. In that realm also the High Court committed serious error in skipping the contents of Ext. P-13 letter and also the injury and also the injury on the right side of the posterior labia minora, (we have mentioned supra). Of course that injury by itself is not a conclusive proof or resistance but it cannot be ignored altogether. In Ext. P-13 letter, she cautioned the respondent not to have a leering on her. She deprecated in her letter the idea of a married man enjoying another lady by terming it an act of "grave sin". Further, in his extra-judicial confession made to PW 6 and PW 7, the respondent had said that he took the girl by force and kept her on the cot as he was long nurturing the lust to enjoy her. The doctor had found fresh vaginal tear on the right side of the inner vaginal well posterior. This injury is indicative of forcible sexual intercourse. According to the medical opinion also the presence of fresh vaginal tear showed that the deceased had been subjected to sexual intercourse prior to her death. The very fact that the sexual intercourse was soon followed, if not contemporaneous with, by the act of throttling is strongly suggestive of a vehement resistance offered by the female victim.

23. We have absolutely no doubt that the above circumstances are sufficient to reach the irresistible inference that she was ravished by the respondent despite her refusal.

24. The High Court after considering the medical evidence, while dealing with the question of rape opined.

"There is no direct evidence to show that the accused alone had sexual intercourse with her. The deceased was aged 16 years."

25. We are rather distressed on this comment. By using the word "alone" the High Court almost cast stigma on the prosecutrix as if, apart from the appellant, there were other persons also who had sexual intercourse with her. there is no basis at all for such an assumption. There was no warrant for recording such a finding and if we may say so, with respect, the finding is an irresponsible finding. We express our strong disapproval of the approach of the High Court and its casting a stigma on the character of the deceased prosecutrix. Even if the Court formed an opinion, from the absence of hymen, that the victim had had sexual intercourse prior to the item when she was subjected to rape by the appellant, she had every right to refuse to submit herself to sexual intercourse by the appellant, as she certainly was not a vulnerable object or prey for being sexually assaulted by anyone and this position becomes all the more clear from the contents of the letter Ext. P-13, as already noticed.

26. We, therefore, conclude that the High Court erred substantially in upsetting the conviction and sentence passed by the Sessions Judge supported by sound and study reasons. We, therefore, allow this appeal and set aside the order of acquittal. We restore the conviction and sentence passed on the respondent/accused by the trial court. The bail bound shall stand cancelled. The respondent shall be taken into custody forthwith to undergo the remaining part of the sentence.

27. Before parting with the case, we would like to point out that the courts are expected to show great responsibility while trying an accused on charges of rape. They must 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 witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of late crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating womans rights in all spheres, we show little or no concern her honour. It is a sad reflection and we must emphasise that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in the totality of the background of the entire case and not in isolation. One of us (Dr. Anand, J.) has observed in State of Punjab v. Gurmit Singh [ 1996 (2) SCC 384 [LQ/SC/1996/111] : 1996 SCC(Cri) 316 ] thus : (SCC p. 403, para 21).

"The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity."

28. We think it is appropriate to reiterate those observations in this case.