Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2486 OF 2009

Rai Sandeep @ Deepu …Appellant

VERSUS

State of NCT of Delhi …Respondent

With

CRIMINAL APPEAL NO. 2487 OF 2009

Hari Singh …Appellant

VERSUS

State (NCT) of Delhi …Respondent

J U D G M E N T

Fakkir Mohamed Ibrahim Kalifulla, J.

1.These two appeals at the instance of the accused arise

out of the common judgment dated 27.01.2009. Hence, we

will dispose them of by this common judgment. Both the

appellants were convicted for the offence of gang rape by the

trial Court and were sentenced to undergo rigorous

imprisonment for 10 years each with a fine of Rs. 3,000/-

1

Page 2 each, in default to undergo further rigorous imprisonment

for one year each under Section 376 (2)(g), IPC.

2.The case of the prosecution was that on 15.08.2001 in

the night at about 1.30 a.m. the prosecutrix (PW-4) aged

about 34 years was in her sister’s house, namely, Seema,

that she heard the noise of knocking at the door, that the

minor daughter of her sister, namely, Noju (PW-10), opened

the door and both the accused persons entered and the

accused Rai Sandeep @ Deepu told the prosecutrix that he

wanted to have sexual intercourse with her. According to

the prosecutrix (PW-4), she rebuked their demand stating

that she was not of that type and that the appellants

threatened her, that in the meantime one Jitender (PW-11),

minor son of her sister Seema appeared and both the minor

children asked the appellants to go out of their house but

the appellants pushed the minor children into a room and

bolted the door of the room from outside. The further

allegation of the prosecutrix (PW-4) was that the appellant-

Rai Sandeep @ Deepu in Criminal Appeal No.2486 of 2009

made her lie down in the Verandah outside the room and

2

Page 3 had forcible sexual intercourse with her while his

companion, the appellant in Criminal Appeal No.2487 of

2009 was guarding the main door of the house. It was

further alleged that after the appellant in Criminal Appeal

No.2486 of 2009 had forcible intercourse with the

prosecutrix (PW-4), he took the turn of guarding the door

while his companion, the appellant in Criminal Appeal

No.2487 of 2009 also had forcible sexual intercourse with

her, that both the appellants wiped their private parts with a

red colour socks which was lying in the Verandah and while

leaving the place of occurrence, they took away a gold chain

and a wrist watch which was lying near the TV inside the

room. The appellants stated to have left the place by bolting

the main door from outside. According to the prosecutrix

(PW-4), since it was dark in the night she did not venture to

go out at that time and in the morning she asked her

nephew Jitender (PW-11) to get out of the house from roof

top and open the door which was bolted from outside.

Thereafter, she is stated to have reported the incident to the

police.

3

Page 4 3.Based on the investigation, the appellants were

arrested and thereafter the gold chain and the wrist watch

was recovered at the instance of the appellant in Criminal

Appeal No.2486 of 2009 and subsequently on his disclosure

the appellant in Criminal Appeal No.2487 of 2009 was also

arrested. The prosecutrix (PW-4) and the appellants were

stated to have been medically examined, that the appellant

in Criminal Appeal No.2487 of 2009 refused to participate in

the test identification parade, that FSL report of Exhibits

were also obtained and the charge sheet was filed for the

offence of gang rape. Seventeen witnesses were examined on

the side of the prosecution which included the prosecutrix

(PW-4) as well as her niece Noju and nephew Jitender, minor

children of prosecutrix’s sister Seema who were examined as

PWs-10 and 11. PWs 1 and 5 were the doctors who testified

the medical report of the prosecutrix (PW-4). PWs-2, 3 and

13 were the doctors who deposed about the medical report of

both the appellants. SI Rajiv Shah (PW-14) was the

investigating officer. None were examined on the side of the

appellants. The appellants have been convicted as stated

4

Page 5 above and the said conviction having been confirmed by the

order impugned in this appeal, the appellants are before us.

4.Learned counsel appearing for the appellant in

Criminal Appeal No.2486 of 2009 submitted that while the

alleged offence took place on the night of 15.08.2001 at 1.30

a.m., the FIR was lodged at 14.20 hours on the next day,

that in the FIR the name of the appellant in Criminal Appeal

No.2486 of 2009 alone was mentioned and that there were

very many contradictions in the version of the prosecutrix

(PW-4) before the Court. Learned counsel by referring to the

FSL report PW-14/N contended that the report does not

implicate the appellant to the offence alleged against him.

According to learned counsel, the trial Court as well as the

High Court ignored the fact that the accused were neither

identified nor their presence was established at the place of

occurrence. It was also contended that there were material

contradictions in the evidence of PWs10 and 11, and that of

the prosecutirix (PW4) and, therefore, the conviction and

sentence imposed is liable to be set aside.

5

Page 6 5.Learned counsel appearing for the appellant in

Criminal Appeal No.2487 of 2009 in his submissions

contended that in the case on hand the evidence of the

prosecutrix PW-4 definitely need corroboration, inasmuch

as, there were contradictions in the entirety of her evidence

which were fatal to the case of the prosecution. Learned

counsel contended that the appellant was not named in the

FIR and was roped in due to the statement of the co-

accused, namely, the alleged confession Annexure P-3(colly)

in Criminal Appeal No.2487 of 2009 stated to have been

made on 30.08.2001 based on which the present appellant

was implicated. Learned counsel also contended that the

medical evidence also did not support the story of the

prosecution. He also made extensive reference to the

evidence of the prosecutrix (PW-4) to contend that the same

was not in consonance with what was stated in the FIR and

that, therefore, serious doubts were created as to the case of

the prosecution and the trial Court failed to appreciate the

defects of the case in proper perspective. By making

reference to para 48 of the judgment of the trial Court,

learned counsel pointed out that the statement found

6

Page 7 therein by referring to the deposition of PW-11 was totally

misleading inasmuch as no such statement was ever made

by PW-11. Learned counsel further argued that the blood

group AB stated to have been detected from the semen

sample did not match with that of the accused and no blood

of the accused was ever detected. Learned counsel also

pointed out that no injury was noted in the breast and

thighs of the prosecutrix (PW-4) and, therefore, the allegation

of forcible intercourse was not proved. He further argued by

making a reference to Exhibit PW-4/B the recovery memo of

the socks from the place of occurrence, that in her evidence

the prosecutrix (PW-4) deposed that after preferring the

complaint she was taken to the hospital for medical

examination where she handed over the socks to the police

when her petticoat was seized. Learned counsel, therefore,

contended that the offence of rape alleged against the

appellant having not been established in the manner known

to law, the conviction and sentence imposed on the appellant

is liable to be set aside.

7

Page 8 6.As against the above submissions, learned counsel for

the State very fairly contended that PWs-10 and 11 did not

support the version of the prosecutrix (PW-4) and solely

based on the evidence of the prosecutrix as deposed in her

chief examination, the offence was held proved against the

appellants. Learned counsel contended that the variation in

her statement in the course of cross examination may be due

to the time gap of two years after her examination in chief

and, therefore, the same does not in any way affect the case

of the prosecution. Learned counsel by referring to the

reasoning of the trial Court, namely, that semen stains were

found on the petticoat of the prosecutrix, that it was not the

case of the accused that she had sexual intercourse with her

husband on the previous night, that she was in the house of

her sister on the date of occurrence, that the medical report

Exhibit PW-5/A disclosed an abrasion on the right side of

her neck below jaw and the said injury was not self inflicted

and the prosecutrix being a married woman, there was no

possibility of bleeding in vagina as the hymen was old torn

and it was sufficient enough to prove the guilt of the

accused. According to him, the refusal of the appellant in

8

Page 9 Criminal Appeal No.2487 of 2009 to participate in the test

identification parade was sufficient to find the appellant

guilty of the offence alleged against him. Learned counsel,

therefore, contended that the conviction and sentence

imposed do not call for any interference. He placed reliance

upon the decision of this Court reported as State of Punjab

v. Gurmit Singh & Ors. - 1996 (2) SCC 384 in support of

his submission. Learned counsel for the appellant in

Criminal Appeal No.2487 of 2009 relied upon the decision in

Lalliram & Anr. v. State of Madhya Pradesh - 2008 (10)

SCC 69, Krishan Kumar Malik v. State of Haryana -

2011(7) SCC 130 and Ashok Kumar v. State of Haryana -

2003 (2) SCC 143.

7. Having heard learned counsel for the appellants as well

as the State counsel and having perused the relevant papers

on record as well as the judgments of the courts below, we

feel it appropriate to refer to the various contradictions

pointed out by the learned counsel for the appellants and

the inconsistencies in the case of the prosecution as

projected in the FIR as sought to be demonstrated before the

9

Page 10 Court in the form of oral and medical evidence. To

recapitulate the case of the prosecution as projected in the

FIR, on the night of 15.08.2001 at about 1.30 a.m., PW-4,

the prosecutrix aged about 34 years, a married woman, who

was staying in her sister’s house, heard knocking of the door

and that when she opened the door along with her niece

Noju (PW-10) who was a minor girl, the accused alleged to

have forcibly entered the house and demanded sex from the

prosecutrix which she refused and the appellants forced

themselves on her one after another after pushing her

nephew Jitender (PW-11) and niece Noju (PW-10) inside a

room and bolting it from outside, and that one of the

accused kept vigil on the main door while the other had

forcible sexual intercourse with her in turn. It was also

alleged that after committing the offence and after wiping

their private parts with a red colour socks lying in the

verandah and while leaving the place of occurrence they

stealthily removed a gold chain and a wrist watch and also

bolted the door from outside. According to the prosecution,

the appellant in Criminal Appeal No. 2486 of 2009 was

apprehended in the first instance and based on the

1

Page 11 admissible portion of his confession, the gold chain and

wrist watch were recovered and based on his disclosure the

appellant in Criminal Appeal No. 2487 of 2009 was also

arrested.

8.Keeping the above basic features of the offence alleged

against the appellants in mind, when we make reference to

the evidence of the so called ‘sterling witness’ of the

prosecution, namely, the prosecutrix, according to her

version in the chief examination when the persons who

knocked at the door, were enquired they claimed that they

were from the crime branch which was not mentioned in the

FIR. She further deposed that they made a statement that

they had come there to commit theft and that they snatched

the chain which she was wearing and also the watch from

Jitender (PW-11). While in the complaint, the accused

alleged to have stealthily taken the gold chain and wrist

watch which were lying near the T.V. It was further alleged

that the appellant in Criminal Appeal No.2486 of 2009 was

having a knife in his hand which statement was not found in

the complaint. After referring to the alleged forcible

1

Page 12 intercourse by both the appellants she stated that she

cleaned herself with the red colour socks which was taken

into possession under Exhibit PW-4/B in the hospital,

whereas, Exhibit PW-4/B states that the recovery was at the

place of occurrence. The police stated to have apprehended

the appellants at the instance of Jitender (PW-11) who knew

the appellant in Criminal Appeal No.2486 of 2009 even prior

to the incident, that Jitender (PW-11) also revealed the name

of the said accused to her and that, therefore, she was able

to name him in her complaint. When the seized watch was

shown to her in the Court, the brand name of which was

OMEX, she stated that the said watch was not worn by her

nephew Jitender (PW-11) as it was stated to be ‘TITAN’ and

the chain was a gold chain having no pendant. She made it

clear that that was not the chain which she was wearing and

that it did not belong to her and that the watch found in the

same parcel which was a women’s watch was not the one

which was worn by Jitender (PW-11).

9.All the above versions were found in the chief

examination of the prosecutrix (PW-4). In her cross

1

Page 13 examination, there was a U-turn in the version of the

prosecutrix where she went to the extent of stating that she

never knew the appellant in Criminal Appeal No.2486 of

2009 prior to the incident and that she was not aware that

accused Rai Sandeep was also known as Deepu, that she

never stated before the police that Jitender (PW-11) knew

Deepu prior to the incident or at the time of incident, that

since it was dark on the date of occurrence, she could not

indentify the accused, that her statement of orally identifying

the accused was at the instance of the police. When the

learned APP wanted to cross examine her, the same was

declined by the crime Court and there was also no re-

examination of the prosecutrix (PW-4).

10.Keeping aside the version of PW-4, the prosecutrix,

when we examine the so-called eye witnesses Noju (PW-10)

and Jitender (PW-11), their version is much more revealing.

Noju (PW-10) is the niece of the prosecutrix (PW-4), daughter

of prosecutrix (PW-4)’s sister, who was 10 years old at the

time of examination.Before recording her evidence, with a

view to test the capacity of the witness to depose before the

1

Page 14 Court, the Court questioned her about her blood relations,

education and as to whether one should speak the truth or

lie and on being satisfied, PW-10 was questioned. The trial

Court, after scrutinizing the replies and noting that the girl

child was answering the questions in a rationale manner

found her to be a competent witness. Thereafter when she

was asked to identity the accused, she made it clear that

they were not the persons. The witness further deposed that

prosecutrix (PW-4) is her aunt, that in the year 2001 when

she was sleeping in the house she did not know as to what

happened or as to anything happened at all. Learned

counsel with the permission of the Court, cross examined

the said witness when she deposed that two persons never

entered her home or ever confined her or anybody else in

any room nor they threatened anybody. She also deposed

that their house was not bolted from outside and her brother

did not open the door from outside.

11.Jitender (PW-11) who was 20 years old at the time of

his examination stated in his chief examination that 3 years

prior to the date of his examination in the month of August,

1

Page 15 he was sleeping on the roof top, that he saw two persons

quarrelling with his aunt, that he raised a hue and cry, that

thereafter both the persons ran away and that nothing else

happened. He also stated that he did not come down at all.

He totally denied the sequence of events as alleged in the

complaint and as narrated by PW-4 in her evidence.

12.Apart from the above version of the prosecution

witnesses, when reference is made to the medical report

relating to the prosecutrix as per Annexure P-4, there was an

injury of abrasion on right side neck below her jaw and that

there was no other injury either in the breast or her thighs.

The hymen was torn old, that there was no injury on the

valva and that there was no bleeding in her vagina. In the

FSL report Exhibit PW-14/N, it is stated that there was no

semen detected on the red colour socks. However, human

semen was detected on the petticoat. But there was no

matching of the blood group noted on the petticoat vis-à-vis

the blood group of the accused.

13.Keeping the above evidence available on record, when

we analyze the case of the prosecution as projected, we find

1

Page 16 that apart from the total prevaricating statement of the

prosecutrix herself in her oral version before the Court, the

other two witnesses PWs10 and 11 who were none other

then her niece and nephew not supported the story of the

prosecution. Leaving aside the version of the prosecutrix, we

wonder why Noju (PW-10), a minor girl child should at all

make a statement totally conflicting with the case of the

prosecution. The prosecutrix being her maternal aunt, there

is no reason for her to spin a different story and let her

down. Going by her version, the accused persons were never

seen in her house on the date of occurrence. She being

minor child, the trial court ascertained her capability to

depose as a witness. When we examine the nature of

queries made by the learned trial Judge to the said witness,

we find that her replies were all cogent and she knew for

what purpose she was standing before the Court. She was

very much aware that she should not utter any falsehood.

The Court was, therefore, convinced of her composure and

only thereafter proceeded to record her statement. The

Court itself pointed out the accused present before the Court

and asked her as to whether they were present in her house

1

Page 17 on the date of incident, to which she replied without any

hesitation and deposed that they were not present. She

went one step ahead and made it clear that on that night

nothing happened at all. Again her brother Jitender (PW-11)

stated that he heard two persons quarrelling with his aunt.

He also made it clear that apart from the said quarrel and on

his making a hue and cry both of them ran away and

nothing else happened.

14.The other discrepancies which are to be mentioned are

the categorical statement of the prosecutrix (PW-4) herself

that after the alleged forcible sexual intercourse by both the

accused, she wiped of her private parts with a red colour

socks which was lying in the house, though at another place

it was stated that both the accused used the red colour

socks to wipe of their private parts after the commission of

the offence. Assuming both the versions to be true, we find

that the red colour socks sent for chemical examination

revealed that it did not contain any semblance of semen in it

as per the FSL report Exhibit PW- 14/N. It was also pointed

out that while according to her the socks was handed over to

1

Page 18 the police in the hospital when the petticoat and the socks

were seized from her, according to the seizure memo the

socks was recovered from the place of occurrence. She was

a married woman and except the semen found in the

petticoat, there is no other reliable evidence for implicating

the accused-appellants to the crime alleged against them. In

this background, when we refer to the oral version of the

prosecutrix (PW-4), as pointed out by learned counsel for the

appellant, very many facts which were not found in her

original statement were revealed for the first time before the

Court.

15.In our considered opinion, the ‘sterling witness’ should

be of a very high quality and caliber whose version should,

therefore, be unassailable. The Court considering the version

of such witness should be in a position to accept it for its

face value without any hesitation. To test the quality of such

a witness, the status of the witness would be immaterial and

what would be relevant is the truthfulness of the statement

made by such a witness. What would be more relevant would

be the consistency of the statement right from the starting

1

Page 19 point till the end, namely, at the time when the witness

makes the initial statement and ultimately before the Court.

It should be natural and consistent with the case of the

prosecution qua the accused. There should not be any

prevarication in the version of such a witness. The witness

should be in a position to withstand the cross-examination

of any length and howsoever strenuous it may be and under

no circumstance should give room for any doubt as to the

factum of the occurrence, the persons involved, as well as,

the sequence of it. Such a version should have co-relation

with each and everyone of other supporting material such as

the recoveries made, the weapons used, the manner of

offence committed, the scientific evidence and the expert

opinion. The said version should consistently match with the

version of every other witness. It can even be stated that it

should be akin to the test applied in the case of

circumstantial evidence where there should not be any

missing link in the chain of circumstances to hold the

accused guilty of the offence alleged against him. Only if the

version of such a witness qualifies the above test as well as

all other similar such tests to be applied, it can be held that

1

Page 20 such a witness can be called as a ‘sterling witness’ whose

version can be accepted by the Court without any

corroboration and based on which the guilty can be

punished. To be more precise, the version of the said witness

on the core spectrum of the crime should remain intact while

all other attendant materials, namely, oral, documentary

and material objects should match the said version in

material particulars in order to enable the Court trying the

offence to rely on the core version to sieve the other

supporting materials for holding the offender guilty of the

charge alleged.

16.In the anvil of the above principles, when we test the

version of PW-4, the prosecutrix, it is unfortunate that the

said witness has failed to pass any of the tests mentioned

above. There is total variation in her version from what was

stated in the complaint and what was deposed before the

Court at the time of trial. There are material variations as

regards the identification of the accused persons, as well as,

the manner in which the occurrence took place. The so-

called eye witnesses did not support the story of the

2

Page 21 prosecution. The recoveries failed to tally with the

statements made. The FSL report did not co-relate the

version alleged and thus the prosecutrix failed to instill the

required confidence of the Court in order to confirm the

conviction imposed on the appellants.

17.With the above slippery evidence on record against the

appellants when we apply the law on the subject, in the

decision reported in State of Punjab v. Gurmit Singh &

Ors. (supra), this Court was considering the case of sexual

assault on an young girl below 16 years of age who hailed

from a village and was a student of 10

th

standard in the

Government High School and that when she was returning

back to her house she was kidnapped by three persons. The

victim was stated to have been taken to a tubewell shed of

one of the accused where she was made to drink alcohol and

thereafter gang raped under the threat of murder.

18.The prosecutrix in that case maintained the allegation

of kidnapping as well as gang rape. However, when she was

not able to refer to the make of the car and its colour in

which she was kidnapped and that she did not raise any

2

Page 22 alarm, as well as, the delay in the lodging of the FIR, this

Court held that those were all circumstances which could

not be adversely attributed to a minor girl belonging to the

poor section of the society and on that score, her version

about the offence alleged against the accused could not be

doubted so long as her version of the offence of alleged

kidnapping and gang rape was consistent in her evidence.

We, therefore, do not find any scope to apply whatever is

stated in the said decision which was peculiar to the facts of

that case, to be applied to the case on hand.

19.In the decision reported in Ashok Kumar v. State of

Haryana (supra), this court while dealing with the offence

under Section 376 (2) (g) IPC read with explanation held as

under in Para 8:

“8.Charge against the appellant is under

Section 376(2)(g) IPC. In order to establish an

offence under Section 376(2)(g) IPC, read with

Explanation I thereto, the prosecution must

adduce evidence to indicate that more than one

accused had acted in concert and in such an

event, if rape had been committed by even one, all

the accused will be guilty irrespective of the fact

that she had been raped by one or more of them

and it is not necessary for the prosecution to

adduce evidence of a completed act of rape by each

one of the accused. In other words, this provision

2

Page 23 embodies a principle of joint liability and the

essence of that liability is the existence of common

intention; that common intention presupposes

prior concert which may be determined from the

conduct of offenders revealed during the course of

action and it could arise and be formed suddenly,

but, there must be meeting of minds. It is not

enough to have the same intention independently

of each of the offenders. In such cases, there must

be criminal sharing marking out a certain measure

of jointness in the commission of offence.”

20. Applying the above principle to the case on hand, we

find that except the ipse-dixit of the prosecutrix that too in

her chief examination, with various additions and total

somersault in the cross examination with no support at

all at the instance of her niece and nephew who according

to her were present in the house at the time of occurrence,

as well as, the FSL report which disclosed the absence of

semen in the socks which was stated to have been used by

the accused as well as the prosecutrix to wipe of semen,

apart from various other discrepancies in the matter of

recoveries, namely, that while according to the prosecutrix

the watch snatched away by the accused was ‘Titan’ while

what was recovered was ‘Omex’ watch, and the chain which

was alleged to have been recovered at the instance of the

2

Page 24 accused admittedly was not the one stolen, all the above

factors do not convincingly rope in the accused to the alleged

offence of ‘gang rape’ on the date and time alleged in the

chargesheet.

21.In the decision reported as State of Himachal

Pradesh v. Asha Ram - AIR 2006 SC 381, this Court

highlighted the importance to be given to the testimony of

the prosecutrix as under in para 5:

5. ……………………… ..It is now well-settled

principle of law that conviction can be founded on

the testimony of the prosecutrix alone unless there

are compelling reasons for seeking corroboration.

The evidence of a prosecutrix is more reliable than

that of an injured witness. The testimony of the

victim of sexual assault is vital, unless there are

compelling reasons which necessitate looking for

corroboration of her statement, the courts should

find no difficulty in acting on the testimony of a

victim of sexual assault alone to convict an

accused where her testimony inspires confidence

and is found to be reliable . It is also a well-settled

principle of law that corroboration as a condition

for judicial reliance on the testimony of the

prosecutrix is not a requirement of law but a

guidance of prudence under the given

circumstances. The evidence of the prosecutrix is

more reliable than that of an injured witness. Even

minor contradictions or insignificant discrepancies

in the statement of the prosecutrix should not be a

ground for throwing out an otherwise reliable

prosecution case .”

(emphasis added)

2

Page 25 22.That was a case where the father alleged to have

committed the offence of rape on one of his daughters who

was staying with him while his wife was living separately due

to estranged relationship. While dealing with the said case,

where the prosecutrix, namely, the daughter, apart from the

complaint lodged by her, maintained her allegation against

her father in the Court as well. This Court held that the

version of the prosecutrix in the facts and circumstances of

that case merited acceptance without any corroboration,

inasmuch as, the evidence of rape victim is more reliable

even that of an injured witness. It was also laid down that

minor contradictions and discrepancies are insignificant and

immaterial in the case of the prosecutrix can be ignored. As

compared to the case on hand, we find that apart from the

prosecutrix not supporting her own version, the other oral as

well as forensic evidence also do not support the case of the

prosecution. There were material contradictions leave alone

lack of corroboration in the evidence of the prosecutrix. It

cannot be said that since the prosecutrix was examined after

two years there could be variation. Even while giving

allowance for the time gap in the recording of her deposition,

2

Page 26 she would not have come forward with a version totally

conflicting with what she stated in her complaint, especially

when she was the victim of the alleged brutal onslaught on

her by two men that too against her wish. In such

circumstances, it will be highly dangerous to rely on such

version of the prosecutrix in order to support the case of the

prosecution.

23.In the decision reported as Lalliram & Anr. v. State

of Madhya Pradesh (supra) in regard to an offence of gang

rape falling under Section 376 (2) (g) this Court laid down

the principles as under in paras 11 and 12:

“11. It is true that injury is not a sine qua

non for deciding whether rape has been committed.

But it has to be decided on the factual matrix of

each case. As was observed by this Court in Pratap

Misra v. State of Orissa where allegation is of rape

by many persons and several times but no injury is

noticed that certainly is an important factor and if

the prosecutrix's version is credible, then no

corroboration is necessary. But if the prosecutrix's

version is not credible then there would be need for

corroboration. (See Aman Kumar v. State of

Haryana.)

12. As rightly contended by learned counsel

for the appellants, a decision has to be

considered in the background of the factual

scenario. In criminal cases the question of a

precedent particularly relating to appreciation of

evidence is really of no consequence. In Aman

2

Page 27 Kumar case it was observed that a prosecutrix

complaining of having been a victim of the offence

of rape is not an accomplice. There is no rule of

law that her testimony cannot be acted upon

without corroboration in material particulars.

She stands on a higher pedestal than the injured

witness. In the latter case there is injury in the

physical form while in the former both physical

as well as psychological and emotional. However,

if the court finds it difficult to accept the version

of a prosecutrix on the face value, it may search

for evidence direct or circumstantial .”

(emphasis added)

24.When we apply the above principles to the case on

hand, we find the prevaricating statements of the prosecutrix

herself in the implication of the accused to the alleged

offence of gang rape. There is evidence on record that there

was no injury on the breast or the thighs of the prosecutrix

and only a minor abrasion on the right side neck below jaw

was noted while according to the prosecutrix’s original

version, the appellants had forcible sexual intercourse one

after the other against her. If that was so, it is hard to

believe that there was no other injury on the private parts of

the prosecutrix as highlighted in the said decision. When on

the face value the evidence is found to be defective, the

attendant circumstances and other evidence have to be

necessarily examined to see whether the allegation of gang

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Page 28 rape was true. Unfortunately, the version of the so called

eye witnesses to at least the initial part of the crime has not

supported the story of the prosecution. The attendant

circumstances also do not co-relate to the offence alleged

against the appellants. Therefore, in the absence of proper

corroboration of the prosecution version to the alleged

offence, it will be unsafe to sustain the case of the

prosecution.

25.In the decision reported as Krishan Kumar Malik v.

State of Haryana (supra) in respect of the offence of gang

rape under Section 376 (2) (g), IPC, it has been held as under

in paras 31 and 32:

“31. No doubt, it is true that to hold an

accused guilty for commission of an offence of

rape, the solitary evidence of the prosecutrix is

sufficient provided the same inspires confidence

and appears to be absolutely trustworthy,

unblemished and should be of sterling quality.

But, in the case in hand, the evidence of the

prosecutrix, showing several lacunae, which have

already been projected hereinabove, would go to

show that her evidence does not fall in that

category and cannot be relied upon to hold the

appellant guilty of the said offences.

32. Indeed there are several significant

variations in material facts in her Section 164

statement, Section 161 statement (CrPC), FIR and

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Page 29 deposition in court. Thus, it was necessary to get

her evidence corroborated independently, which

they could have done either by examination of

Ritu, her sister or Bimla Devi, who were present in

the house at the time of her alleged abduction.

The record shows that Bimla Devi though cited as

a witness was not examined and later given up by

the public prosecutor on the ground that she has

been won over by the appellant.”

(emphasis

added)

26.Applying the said principles to the facts of the case on

hand, we find that the solitary version of the chief

examination of PW-4, the prosecutrix cannot be taken as

gospel truth for its face value and in the absence of any

other supporting evidence, there is no scope to sustain the

conviction and sentence imposed on the appellants.

27.The prosecution has miserably failed to establish the

guilt of gang rape falling under Section 376 (2) (g), IPC

against the appellants. The conviction and sentence imposed

on the appellants by the trial Court and confirmed by the

impugned order of the High Court cannot, therefore, be

sustained. The appeals are allowed. The judgment and

order of conviction and sentence passed by the trial Court

and confirmed by the High Court are hereby set aside. The

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Page 30 appellants are acquitted of all the charges and they be set at

liberty forthwith, if not required in any other case.

…..……….………………………… ...J.

[Swatanter Kumar]

…………… .………………………………

J.

[Fakkir Mohamed Ibrahim

Kalifulla]

New Delhi;

August 7, 2012

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