GOWRISHANKARA SWAMIGALU versus STATE OF KARNATAKA & ANR.

Citation: [2008] 3 S.C.R. 1042 · Decided: 05-03-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2008] 3 S.C.R. 1042 
A 
GOWRISHANKARA SWAMIGALU 
-t , 
v. 
STATE OF KARNATAKA & ANR. 
(Criminal Appeal Nos. 568-569 of 2004) 
8 
MARCH 5, 2008 
[S.S. SINHA AND HARJIT SINGH BEDI, JJ.] 
-/. -
Penal Code, 1860 - s.377: 
c 
Unnatural offence - Appellant was 'Junior Swamiji' in a 
'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 
t· 
HELD: 1. Delay in lodging of a FIR 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 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 Res

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