REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPEL LATE JURISDICTION

CRIMINAL APPEAL NO. 660 of 2008

Vijay @ Chinee …Appellant

Versus

State of Madhya Pradesh …

Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the judgment

and order dated 5.9.2006 passed by the High Court of

Madhya Pradesh at Jabalpur in Criminal Appeal No.

15/1991 by which it had affirmed the judgment of the Trial

Court i.e. Additional Sessions Judge, Sihore, Camp Katni

dated 14.12.1990 in Sessions Case No. 85/1989, wherein

the appellant had been convicted under Section 376/34 of

the Indian Penal Code, 1860 (hereinafter called as ‘IPC’) and

sentenced to undergo 10 years’ RI along with fine of

Rs.500/-. In the event of default in payment of fine, the

appellant would further undergo RI for three months. A part

of the fine imposed on the appellant and his co-accused was

directed to be paid to the prosecutrix Asha @ Gopi as

compensation.

2.Facts and circumstances giving rise to this appeal are

that on 6.12.1988, an FIR under Section 376/34 IPC was

registered against the appellant and six others at Police

Station Katni, District Jabalpur, on the information of one

Asha @ Gopi that she had been subjected to gang rape by

the appellant and six others at about 6.00 p.m. on the said

date. The police after recording the FIR, sent the prosecutrix

to the hospital at Katni for medical examination. The

appellant was arrested on 7.12.1988 and subjected to

medical tests along with the other accused on 8.12.1988.

After the completion of the investigation, the police filed a

charge sheet against the appellant and six others. As they

denied the charges, refuted the prosecution story and

pleaded innocence, all of them were put to trial.

3.The Trial Court after concluding the proceedings vide

judgment and order dated 14.12.1990 convicted all the

accused persons including the appellant herein for

committing gang rape and sentenced each of them to 10

years’ RI and fine of Rs.500/- each.

4.Aggrieved by the said judgment and order dated

14.12.1990 passed by the Sessions Court, the appellant and

other accused preferred Appeal Nos. 15/1991, 3/1991,

1185/1990 and 1194/1990 before the High Court of Madhya

Pradesh at Jabalpur. The High Court vide impugned

judgment and order dated 5.9.2006 dismissed the appeal of

the appellant and one other co-accused, Raju @ Ramakant.

One accused, namely Anil, died during the pendency of the

said appeal. The High Court acquitted the remaining four

accused. Hence, this appeal by the appellant herein.

5.Shri Anip Sachthey, learned counsel appearing for the

appellant has submitted that the prosecutrix was a major

and it was a case of consent. He has further submitted that

conviction cannot be based on the sole deposition of the

prosecutrix. There is no other evidence to corroborate her

version. The prosecutrix’s statement suffers from material

discrepancies. On the date of examination of the prosecutrix

no physical injury was found on her person or on her private

parts. The prosecutrix had given a most improbable and

unacceptable version of events that the appellant continued

to rape her for about two hours. Then one another accused

raped her for about an hour. Also, in spite of the fact that

the appellant and others had been arrested on the next date

of the incident, the Investigating Officer did not conduct the

Test Identification Parade. The prosecutrix was examined on

the next day i.e. on 7.12.1988 by Dr. Rupa Lalwani, Medical

Officer (PW-3), and the said Medical Officer referred her for a

Radiological Test to determine her age, but the report of the

said test has never been brought on record. Thus, an

adverse inference is to be drawn against the prosecution.

The appeal deserves to be allowed. The appellant had

falsely been enroped in the crime.

6.On the other hand, Shri Siddhartha Dave along with

Ms. Vibha Datta Makhija, learned counsel appearing for the

State of M.P., vehemently opposed the appeal contending

that the prosecutrix was a minor on the date of the incident.

The non-production of the report of the Radiological test and

not holding the Test Identification Parade would not discredit

the investigation or the prosecution case. The non-existence

of any injury on the person of the prosecutrix cannot be a

ground to dis-believe her version. The prosecutrix had such

a social background that she did not have any sense of time,

duration etc. and, thus, she was not able to give a precise

account of each activity of the incident. She had lost her

father; and was an uneducated, rustic villager, who came

from a very poor family. The discrepancies in the statement

of the witnesses or the prosecutrix are such that the same

are not sufficient to demolish the prosecution’s case. In a

rape case, an accused can be convicted on the sole testimony

of the prosecutrix. The appeal lacks merit and is liable to

dismissed.

7.We have considered the rival submissions made by

learned counsel for the parties and perused the record.

8.Before we proceed to examine the impugned judgments

of the courts below and facts of the case, it may be desirable

to refer to the settled legal principles which have to be

applied in the instant case.

LEGAL ISSUES:

Sole Evidence of Prosecutrix :

9.In State of Maharashtra Vs. Chandraprakash

Kewalchand Jain AIR 1990 SC 658, this Court held that a

woman, who is the victim of sexual assault, is not an

accomplice to the crime but is a victim of another person’s

lust and, therefore, her evidence need not be tested with the

same amount of suspicion as that of an accomplice. The

Court observed as under :-

“A prosecutrix of a sex-offence cannot be

put on par with an accomplice. She is in

fact a victim of the crime. The Evidence

Act nowhere says that her evidence

cannot be accepted unless it is

corroborated in material particulars. She

is undoubtedly a competent witness

under Section 118 and her evidence

must receive the same weight as is

attached to an injured in cases of

physical violence. The same degree of

care and caution must attach in the

evaluation of her evidence as in the case

of an injured complainant or witness

and no more. What is necessary is that

the Court must be alive to and conscious

of the fact that it is dealing with the

evidence of a person who is interested in

the outcome of the charge levelled by

her. If the court keeps this in mind and

feels satisfied that it can act on the

evidence of the prosecutrix, there is no

rule of law or practice incorporated in

the Evidence Act similar to illustration (b)

to Section 114 which requires it to look

for corroboration. If for some reason the

court is hesitant to place implicit reliance

on the testimony of the prosecutrix it

may look for evidence which may lend

assurance to her testimony short of

corroboration required in the case of an

accomplice. The nature of evidence

required to lend assurance to the

testimony of the prosecutrix must

necessarily depend on the facts and

circumstances of each case. But if a

prosecutrix is an adult and of full

understanding the court is entitled to

base a conviction on her evidence unless

the same is shown to be infirm and not

trustworthy. If the totality of the

circumstances appearing on the record

of the case disclose that the prosecutrix

does not have a strong motive to falsely

involve the person charged, the court

should ordinarily have no hesitation in

accepting her evidence.”

10.In State of U.P. Vs. Pappu @Yunus & Anr. AIR 2005

SC 1248, this Court held that even in a case where it is

shown that the girl is a girl of easy virtue or a girl habituated

to sexual intercourse, it may not be a ground to absolve the

accused from the charge of rape. It has to be established

that there was consent by her for that particular occasion.

Absence of injury on the prosecutrix may not be a factor that

leads the court to absolve the accused. This Court further

held that there can be conviction on the sole testimony of the

prosecutrix and in case, the court is not satisfied with the

version of the prosecutrix, it can seek other evidence, direct

or circumstantial, by which it may get assurance of her

testimony. The Court held as under :-

“It is well settled that a prosecutrix

complaining of having been a victim of

the offence of rape is not an accomplice

after the crime. There is no rule of law

that her testimony cannot be acted

without corroboration in material

particulars. She stands at a higher

pedestal than an injured witness. In the

latter case, there is injury on the

physical form, while in the former it is

both physical as well as psychological

and emotional. However, if the court of

facts finds it difficult to accept the

version of the prosecutrix on its face

value, it may search for evidence, direct

or circumstantial, which would lend

assurance to her testimony. Assurance,

short of corroboration as understood in

the context of an accomplice, would do.”

11.In State of Punjab Vs. Gurmit Singh & Ors. AIR 1996

SC 1393, this Court held that in cases involving sexual

harassment, molestation etc. the court is duty bound to deal

with such cases with utmost sensitivity. Minor

contradictions or insignificant discrepancies in the statement

of a prosecutrix should not be a ground for throwing out an

otherwise reliable prosecution case. Evidence of the victim of

sexual assault is enough for conviction and it does not

require any corroboration unless there are compelling

reasons for seeking corroboration. The court may look for

some assurances of her statement to satisfy judicial

conscience. The statement of the prosecutrix is more reliable

than that of an injured witness as she is not an accomplice.

The Court further held that the delay in filing FIR for sexual

offence may not be even properly explained, but if found

natural, the accused cannot be given any benefit thereof.

The Court observed as under :-

“The court overlooked the situation in

which a poor helpless minor girl had

found herself in the company of three

desperate young men who were

threatening her and preventing her from

raising any alarm. Again, if the

investigating officer did not conduct the

investigation properly or was negligent in

not being able to trace out the driver or

the car, how can that become a ground to

discredit the testimony of the prosecutrix?

The prosecutrix had no control over the

investigating agency and the negligence

of an investigating officer could not affect

the credibility of the statement of the

prosecutrix...............The courts must,

while evaluating evidence remain alive to

the fact that in a case of rape, no self-

respecting woman would come forward in

a court just to make a humiliating

statement against her honour such as is

involved in the commission of rape on her.

In cases involving sexual molestation,

supposed considerations which have no

material effect on the veracity of the

prosecution case or even discrepancies in

the statement of the prosecutrix should

not, unless the discrepancies are such

which are of fatal nature, be allowed to

throw out an otherwise reliable

prosecution case…..……..Seeking

corroboration of her statement before

replying upon the same as a rule, in

such cases, amounts to adding insult to

injury…………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 given circumstances.

********

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 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 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.”

12.In State of Orissa Vs. Thakara Besra & Anr. AIR 2002

SC 1963, this Court held that rape is not mere a physical

assault, rather it often distracts the whole personality of the

victim. The rapist degrades the very soul of the helpless

female and, therefore, the testimony of the prosecutrix must

be appreciated in the background of the entire case and in

such cases, non-examination even of other witnesses may

not be a serious infirmity in the prosecution case,

particularly where the witnesses had not seen the

commission of the offence.

13.In State of Himachal Pradesh Vs. Raghubir Singh

(1993) 2 SCC 622, this Court held that there is no legal

compulsion to look for any other evidence to corroborate the

evidence of the prosecutrix before recording an order of

conviction. Evidence has to be weighed and not counted.

Conviction can be recorded on the sole testimony of the

prosecutrix, if her evidence inspires confidence and there is

absence of circumstances which militate against her

veracity.

14.A similar view has been reiterated by this Court in

Wahid Khan Vs. State of Madhya Pradesh (2010) 2 SCC 9,

placing reliance on earlier judgment in Rameshwar Vs.

State of Rajasthan AIR 1952 SC 54.

15.Thus, the law that emerges on the issue is to the effect

that statement of prosecutrix, if found to be worthy of

credence and reliable, requires no corroboration. The court

may convict the accused on the sole testimony of the

prosecutrix.

Test Identification Parade:

16.Holding of the Test Identification Parade is not a

substantive piece of evidence, yet it may be used for the

purpose of corroboration; for believing that a person brought

before the Court is the real person involved in the

commission of the crime. However, the Test Identification

Parade, even if held, cannot be considered in all the cases as

trustworthy evidence on which the conviction of the accused

can be sustained. It is a rule of prudence which is required

to be followed in cases where the accused is not known to

the witness or the complainant. (Vide State of H.P. Vs. Lekh

Raj AIR 1999 SC 3916).

17.In Malkhan Singh Vs. State of M.P. AIR 2003 SC

2669, this Court has observed as under:

“It is well settled that the substantive

evidence is the evidence of identification

in court and the test identification

parade provides corroboration to the

identification of the witness in court, if

required. However, what weight must be

attached to the evidence of identification

in court, which is not preceded by a test

identification parade, is a matter for the

courts of fact to examine.”

18.In Mulla & Anr. Vs. State of Uttar Pradesh (2010) 3

SCC 508, this court (one of us, Hon’ble P. Sathasivam, J.)

placed reliance on Matru@Girish Chandra Vs. The State of

Uttar Pradesh AIR 1971 SC 1050; and Santokh Singh Vs.

Izhar Hussain & Anr. AIR 1973 SC 2190, wherein it had

been held that the Tests Identification Parades do not

constitute substantive evidence. They are primarily meant

for the purpose of providing the investigating agency with an

assurance that their progress with the investigation into the

offence is proceeding on right lines. The Test Identification

Parade can only be used as corroboration of the statement in

Court. The necessity for holding the Test Identification

Parade can arise only when the accused persons are not

previously known to the witnesses. The test is done to check

the veracity of the witnesses. The court further observed as

under :-

“The evidence of test identification is

admissible under Section 9 of the Indian

Evidence Act. The Identification parade

belongs to the stage of investigation by

the police. The question whether a

witness has or has not identified the

accused during the investigation is not

one which is in itself relevant at the trial.

The actual evidence regarding

identification is that which is given by

witnesses in Court. There is no provision

in the Cr.P.C. entitling the accused to

demand that an identification parade

should be held at or before the inquiry of

the trial. The fact that a particular

witness has been able to identify the

accused at an identification parade is

only a circumstance corroborative of the

identification in Court.”

19.Thus, it is evident from the above, that the Test

Identification is a part of the investigation and is very useful

in a case where the accused are not known before hand to

the witnesses. It is used only to corroborate the evidence

recorded in the court. Therefore, it is not substantive

evidence. The actual evidence is what is given by the

witnesses in the court.

Discrepancies and inconsistencies in depositions of

witnesses:

20.It is settled legal proposition that while appreciating the

evidence of a witness, minor discrepancies on trivial matters,

which do not affect the core of the prosecution case, may not

prompt the Court to reject the evidence in its entirety.

21.In State of Rajasthan Vs. Om Prakash AIR 2007 SC

2257, while dealing with a similar issue, this Court held that

“irrelevant details which do not in any way corrode the

credibility of a witness cannot be levelled as omissions or

contradictions.”

22.In State of U.P. Vs. M.K. Anthony AIR 1985 SC 48,

this Court laid down certain guidelines in this regard, which

require to be followed by the courts in such cases. The

Court observed as under :-

“While appreciating the evidence of a

witness, the approach must be whether

the evidence of the witness read as a

whole appears to have a ring of truth.

Once that impression is formed, it is

undoubtedly necessary for the court to

scrutinise the evidence more particularly

keeping in view the deficiencies, draw-

backs and infirmities pointed out in the

evidence as a whole and evaluate them

to find out whether it is against the

general tenor of the evidence given by

the witness and whether the earlier

evaluation of the evidence is shaken as

to render it unworthy of belief. Minor

discrepancies on trivial matters not

touching the core of the case, hyper-

technical approach by taking sentences

torn out of context here or there from the

evidence, attaching importance to some

technical error committed by the

investigating officer not going to the root

of the matter would not ordinarily permit

rejection of the evidence as a whole. If

the court before whom the witness gives

evidence had the opportunity to form the

opinion about the general tenor of

evidence given by the witness, the

appellate court which had not this

benefit will have to attach due weight to

the appreciation of evidence by the trial

court and unless there are reasons

weighty and formidable it would not be

proper to reject the evidence on the

ground of minor variations or infirmities

in the matter of trivial details. Even

honest and truthful witnesses may differ

in some details unrelated to the main

incident because power of observation,

retention and reproduction differ with

individuals. Cross examination is an

unequal duel between a rustic and

refined lawyer.”

23.In State Vs. Saravanan & Anr. AIR 2009 SC 152, while

dealing with a similar issue, this Court observed as under :-

“…..while appreciating the evidence of a

witness, minor discrepancies on trivial

matters without affecting the core of the

prosecution case, ought not to prompt

the court to reject evidence in its entirety.

Further, on the general tenor of the

evidence given by the witness, the trial

court upon appreciation of evidence

forms an opinion about the credibility

thereof, in the normal circumstances the

appellate court would not be justified to

review it once again without justifiable

reasons. It is the totality of the

situation, which has to be taken note of.

Difference in some minor detail, which

does not otherwise affect the core of the

prosecution case, even if present, that

itself would not prompt the court to reject

the evidence on minor variations and

discrepancies.”

24.It is settled proposition of law that even if there are

some omissions, contradictions and discrepancies, the entire

evidence cannot be disregarded. After exercising care and

caution and sifting the evidence to separate truth from

untruth, exaggeration and improvements, the court comes to

a conclusion as to whether the residuary evidence is

sufficient to convict the accused. Thus, an undue

importance should not be attached to omissions,

contradictions and discrepancies which do not go to the

heart of the matter and shake the basic version of the

prosecution witness. As the mental capabilities of a human

being cannot be expected to be attuned to absorb all the

details, minor discrepancies are bound to occur in the

statements of witnesses (vide Sohrab & Anr. Vs. The State

of M.P. AIR 1972 SC 2020; Bharwada Bhogini Bhai Hirji

Bhai Vs. State of Gujarat AIR 1983 SC 753; Prithu @ Prithi

Chand & Anr. Vs. State of Himachal Pradesh (2009) 11

SCC 588; and State of U.P. Vs. Santosh Kumar & Ors.

(2009) 9 SCC 626).

25.Thus, in view of the above, the law on the point can be

summarised to be that the evidence of the witnesses must be

read as a whole and the cases are to be considered in totality

of the circumstances and while appreciating the evidence of

a witness, minor discrepancies on trivial matters, which do

not affect the core of the prosecution case, should not be

taken into consideration as they cannot form grounds to

reject the evidence as a whole.

Injury on the person of the Prosecutrix

26.In the case of Gurcharan Singh Vs. State of Haryana

AIR 1972 SC 2661, this Court has held that “the absence of

injury or mark of violence on the private part on the person of

the prosecutrix is of no consequence when the prosecutrix is

minor and would merely suggest want of violent resistance on

the part of the prosecutrix. Further absence of violence or stiff

resistance in the present case may as well suggest helpless,

surrender to the inevitable due to sheer timidity. In any event,

her consent would not take the case out of the definition of

rape”

27.In Devinder Singh & Ors. Vs. State of Himanchal

Pradesh AIR 2003 SC 3365, a similar issue was considered

by this Court and the court took into consideration the

relevant evidence wherein rape was alleged to have been

committed by five persons. No injury was found on the body

of the prosecutrix. There was no matting on the pubic hair

with discharge and no injury was found on the genital areas.

However, it was found that prosecutrix was used to sexual

intercourse. This Court held that the fact that no injury was

found on her body only goes to show that she did not put up

resistance.

Determination of Age

28.As per Modi’s Medical Jurisprudence and Toxicology,

23

rd

Edn., the age of a person can be determined by

examining the teeth (Dental Age), Height, Weight, General

appearance (minor signs) i.e. secondary sex characters,

ossification of bones and producing the birth and

death/school registers etc. However, for determining the

controversy involved in the present case, only a few of them

are relevant.

Teeth- (Dental - Age)

29.So far as permanent teeth are concerned, eruption

generally takes place between 6-8 years. The following table

shows the average age of eruption of the permanent teeth :-

Central incisors - 6

th

to 8

th

year

Lateral incisors - 7

th

to 9

th

year

Canines - 11

th

to 12

th

year

Second Molars - 12

th

to 14

th

year

Third Molars or Wisdom Teeth- 17

th

to 25

th

year

In total, there are 32 teeth on full eruption of

permanent teeth.

Secondary Sex Characters

30.The growth of hair appears first on the pubis and then

in the axillae (armpits). In the adolescent stage, the

development of the pubic hair in both sexes follows the

following stages :-

a)One of the first signs of the beginning of

puberty is chiefly on the base of penis or

along labia, when there are few long slightly

pigmented and curled or straight downy hair;

b)The hair is coarser, darker and more curled,

and spread sparsely over the junction of

pubis;

c)More or less like an adult, but only a smaller

area is covered, no hair on the medial

surface of thighs;

The development of the breasts in girls commences from

13 to 14 years of age; however, it is liable to be affected by

loose habits and social environments. During adolescence,

the hormone flux acts and the breasts develop through the

following stages:

i) Breasts and papilla are elevated as a small

mound, and there is enlargement of

areolar diameter.

ii) More elevation and enlargement of breast

and areola, but their contours are not

separate.

iii)Areola and papilla project over the level of

the breast.

iv) Adult stage – only the papilla projects and

the areola merges with the general contour

of the breast.

Evidence of Rustic/ illiterate villager

31. In Dimple Gupta (minor) Vs. Rajiv Gupta, (2007) 10

SCC 30, this Court held that a person coming from

altogether different background and having no education

may not be able to give a precise account of the incident.

However, that cannot be a ground to reject his testimony.

The court observed that in a case like rape, “it is impossible

to lay down with precision the chain of events, more

particularly, when illiterate villagers with no sense of time

are involved.”

A similar view has been re-iterated by this Court in

Virendra @ Buddhu & Anr. Vs. State of U.P. (2008) 16

SCC 582.

32.The case requires to be considered in the light of the

aforesaid settled legal propositions.

Shri Anip Sachthey, learned counsel for the appellant,

submitted that the prosecutrix was a major on the date of

incident and that it was a clear case of consent. The Trial

Court as well as the High Court examined the issue involved

herein very minutely. Dr. Rupa Lalwani (PW-3), who had

examined the prosecutrix on 7.12.1988, has stated that in

the examination she found that there were in all 28 teeth in

both the jaws; her breast had developed a little; the armpit

hairs were in its initial stage; but there were pubic hair

present around her vagina. On the basis of this, she opined

that at relevant time, prosecutrix was aged between 12 and

14 years. As the statement of Dr. Rupa Lalwani (PW-3)

makes it clear that the prosecutrix Asha @ Gopi had very

little developed breast and the growth of her armpit hair was

at its initial/first stage, the Court believed that she was

below 16 years of age. Undoubtedly, Asha @ Gopi, the

prosecutrix had stated in her deposition that she was sent

for a Radiological Test to Jabalpur and she could not explain

as to why the report of the Radiological Test could not be

produced before the Trial Court. In fact, the circumstances

under which the report of the Radiological Test could not be

produced before the Trial Court, would have been explained

only by the Investigating Officer. Unfortunately, there is

nothing on record to show that the defence had put any such

question to the I.O. during his examination before the Trial

Court. In our opinion, the I.O. was the only competent

person to throw light on the issue of the non-production of

the report of the Radiological Test and in the facts and

circumstances of this case, no adverse inference can be

drawn against the prosecution in this issue. More so, the

prosecution had no control over prosecuting agency. Same

remains the position for not holding the Test Identification

Parade in this case.

33.Dr. Rupa Lalwani (PW-3) had stated that hymen of the

prosecutrix was found completely torn and fresh blood was

oozing out of it and she further opined that the vagina of a

girl becomes loose even after one intercourse and two fingers

can easily enter into her vagina. She had further opined that

loosening of vagina and entering two fingers into vagina of a

girl cannot give presumption that the girl was habituated to

sexual intercourse.

34.Under Section 114-A of the Indian Evidence Act, 1872,

which was inserted by way of amendment in the year 1988,

there is a clear and specific provision that where sexual

intercourse by the accused is proved and the question is

whether it was without the consent of the woman alleged to

have been raped, and she states in her evidence before the

court that she did not consent, the court shall presume that

she did not consent.

35.Asha @Gopi, the prosecutrix had been consistent

throughout in her statement that intercourse was against

her wishes and that there was no consent as she had forcibly

been caught and threatened and thereafter, she had been

subjected to gang rape. In view of the above, we are of the

view that the Courts below reached the correct conclusion

that the prosecutrix was a minor. Be that as it may, there is

nothing on record to establish the consent of the prosecutrix

in this case.

36.The medical examinations of the appellant and other

accused were also conducted soon after their arrest on the

next day and it was found that the appellant and others were

fit and competent to perform sexual intercourse. There is

nothing on record to contradict or disprove the statement of

the prosecutrix that the appellant and others took her

behind the Railway School and when she cried out, one of

the accused showed her a knife and in the meanwhile,

accused Vijay, the appellant pressed her mouth and raped

her. Thereafter, the other accused persons raped her turn

by turn and all of them ran away when the police reached

there.

37.Shri Sachthey, learned counsel for the appellant, would

point out the discrepancies between the statement of the

prosecutrix and the other evidence on record. In the Court,

she stated that she had gone to work at a business place for

sorting apples and when she went to answer the call of

nature, the accused met her and took her near the school

and raped her. This statement was inconsistent with her

version in the FIR, wherein, it was mentioned that when she

was going to get her chappals repaired, she was forcibly

taken by the accused to the school and was raped. There

was also a contradiction in her statement regarding the

dress she was wearing at that time as at one stage, she had

stated that she was wearing sari, but at another stage, she

stated that she was wearing a frock and vest. Shri Sachthey

further submitted that as per the prosecutrix, the appellant

had sexual intercourse with her for two hours and one other

accused had it for about one hour. Such a course is wholly

unnatural and improbable and, therefore, the evidence given

by the prosecutrix cannot be held to be reliable.

38.We have considered the contradictions, inconsistencies

and discrepancies pointed out by Shri Anip Sachthey,

however, they are immaterial for the reason that the Trial

Court as well as the High Court have considered these

aspects and came to the conclusion that none of those

contradictions goes to the root of the case. Admittedly, the

prosecutrix was at the place of the incident and the

appellant and other accused had intercourse with her. Even

if it is presumed that she was major, there is nothing on

record to show that she had given her consent. There is

nothing on record to show that she had some basic

education or had a sense of time and place. Such

improvements have to be ignored as they do not go to the

root of the case. The Trial Court has recorded the following

findings in this regard:

“(1) Her father is not alive. All these

facts clearly prove that she was

uneducated, poor and helpless child

labour and, therefore, minor

contradictions only given by her are very

natural. …… All depends upon the

observance and memory of an

individual.

(2) The level of understanding of

the prosecutrix is very-very

low. It appears that in fact

she wants to clarify that

invariably one may not

believe or presume that her

consent was there in the gang

rape and perhaps therefore

she tried to give such a

statement……..This clearly

demonstrates that a

testimony and understanding

is of a very low level and on

the same basis she has been

stating about her age also.”

39.The High Court has considered the discrepancies in her

statement as to whether she was going to get her chappal

repaired or was easing herself and came to the conclusion

that such contradictions had no material bearing on the

prosecution’s case as “the fact remains that at that time she

was going through that area.”.

40.There are concurrent findings of fact by both the courts

below. The courts below have applied settled principles of

law in the correct perspective which we have explained

hereinabove.

41.We do not find any force in the submissions made by

Shri Anip Sachthey, learned counsel appearing for the

appellant, that the instant case was squarely covered by the

judgment of this Court in Sunil Vs. State of Haryana (2010)

1 SCC 742, wherein in a similar case, for non-production of

the report of Radiological Test, an adverse inference was

drawn against the prosecution and the appellant therein had

been acquitted. In the said case, this Court had relied upon

the judgment in Sukhwant Singh Vs. State of Punjab

(1995) 3 SCC 367, wherein it has been held as under:

“…..failure to produce the expert opinion

before the trial Court in such cases

affects the creditworthiness of the

prosecution case to a great extent.”

42.The facts of the case are quite distinguishable. In the

said case, the basic issue was merely as to whether the

prosecutrix was a minor. The prosecutrix was examined by

Dr. Sadhna Verma (PW-1), and found that her Secondary

Sex Characters were well developed. She carried out a local

examination and in her opinion, the prosecutrix was major.

The report reads :

“Labia majora was well developed.

Pubic hair was present. Carunculae

myrtiformes was present. Vagina

admitting two fingers. Uterus was

normal and retroverted, furnaces free.

For her age verification, she was

referred to dental surgeon and

radiologist opinion.”

43.The report of the Medical Officer in the said case was

quite contrary. That was a case under Sections 363, 366-A

and 376 IPC and in her statement under Section 164 of

Code of Criminal Procedure, 1973, the prosecutrix had

stated that she was in love with the appellant therein and

she had always been a consenting party. This Court itself,

after appreciating the statement of Dr. Sadhna Verma (PW1),

came to the conclusion that the prosecutrix therein was

major. Thus, it is evident that the ratio of the said judgment

has no application in the instant case.

44.If we examine the whole case in the totality of the

circumstances and consider that an illiterate rustic village

girl having no sense/estimate/assessment of time and place,

found herself apprehended by the appellant and his

accomplices and forced to surrender under the threat to life,

it is quite possible that she could not even raise hue and cry.

She had no option except to surrender. It appears to be a

case of non-resistance on the part of the prosecutrix because

of fear and the conduct of the prosecutrix cannot be held to

be unnatural.

45.There is no dispute regarding the place of occurrence

and the incident that occurred. The defence could not

establish that it was a case of consent. FIR had been lodged

most promptly. Appellant and other accused were arrested

on the next day. The prosecutrix as well as the appellant

and other accused were medically examined on the next day.

The appellant or any other accused was not known to the

prosecutrix. No reason could be there for which the

prosecutrix would have enroped them falsely. Definitely, it

could not be a case of consent by the prosecutrix, even if it is

assumed that she was major. The discrepancies in the

statement of the prosecutrix have to be ignored as explained

hereinbefore.

46.There is no material on record on the basis of which,

this Court may take a different view or conclusion from the

courts below. We do not find any force in this appeal, which

is accordingly dismissed.

…………………………………J.

(P. SATHASIVAM)

…………………………………J.

(Dr. B.S. CHAUHAN)

New Delhi,

July 27, 2010