[ REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1094-1098 OF 2000

Rajoo & Ors. …….Appellants

Vs.

State of M.P. ………Respondent

J U D G M E N T

HARJIT SINGH BEDI,J.

1. These  appeals  by way of  special  leave  arise  out  of  the

following facts.

2. On 28th December 1986, the prosecutrix PW9 along with

her mother, Dukhni Bai PW8 were on their way to the bazaar

for purchasing households items.  While on the way, they met

four of  the accused  Pyaru,  Nandoo,  Rajoo and Pentoo,  who

addressed the prosecutrix as a prostitute and then asked her

to  go  with  them  to  a  hotel  some  distance  away.  The

prosecutrix,  however,  refused to accept  this order  on which

Nandoo and Pyaru put a towel on her face and after slapping

her several times, made her sit on a scooter with Nandoo in

front and Pyaru at the rear and  the prosecuritx in the middle.

The  two  accused  then  took  the  prosecutrix  near  the  newly

constructed  quarters  where  the  other  accused  were  already

present.  It is the case of the prosecution that all the accused,

first  Nandoo,  and  thereafter  the  others  turn  by  turn

committed rape on her, and after having satisfied their lust,

she was dropped by some of them near the peepal tree in the

bazaar.   She then reported the matter to the police at about

10 p.m. the same evening in which she named Nandoo and

Bindu as the two accused who had taken her on the Luna but

also  stated  that  as  all  the  other  accused  were  from

Ruabandha,  she would be able to recognize them.   A case

under  sections  366  and  376  of  the  IPC  was  accordingly

registered  by  Sub-Inspector  P.N.  Shukla  PW10.   The  Police

Officer  also  seized  a  saree  and  a  petticoat  which  the

prosecutrix had been wearing at the time of the commission of

rape and also produced her before PW1 Dr. Smt. Christian for

her medical examination.  The Doctor observed no marks of

2

injury visible on any part of her body other than a swelling on

the lower jaw but opined that as she was habituated to sexual

intercourse, she (the Doctor) was unable to give any opinion

about the intercourse having been committed recently, though

a foul smell was emanating  from the vagina and slides were

taken therefrom.  Some of the accused were arrested on 29th

December  1986  whereas  the  others  were  arrested  on  2nd

January 1987 and the underwear they were allegedly wearing

at the time of incident were seized and thereafter sent to the

laboratory  and were  subsequently  found to  be  stained  with

semen.  The accused were also produced before PW2 Dr. S.S.

Dhillon and PW3 Dr. P. Srivastava, who opined that all  the

accused were capable of performing sexual  intercourse.  On

13th December 1986,  9 of the 13 accused were intermingled

with 27 other persons and were subjected to an identification

parade  under  the  supervision  of  Sakharam Mahilong,  Naib

Tehsildar (PW5).   As per the evidence of this officer, all the

accused were duly identified by the prosecutrix by putting her

hand over the head of each accused.

3

3. On the completion of  the  investigation,  all  13 accused

were charged for offences punishable under Sections 366/376

of the IPC and as they pleaded not guilty, they were brought to

trial.   The  trial  court  in  its  judgment  dated  May  26,  1989

relying on the evidence of the prosecutrix, as corroborated by

the statement of her mother PW8, and further relying on the

fact  that  9  of  the  accused  had  been  identified  in  the  test

identification parade  and that  the  medical  evidence  showed

the presence of semen in her vagina, found the case against

all the accused as partly proved,  and while acquitting them of

the offence under section 366 of the IPC convicted them for

the offence under section 376 (2)(g) with a sentence of RI for

10  years  and  a  fine  of  Rs.200/-  and  in  default  of  fine  to

undergo RI  for 6 months.    Several  appeals  were thereafter

filed by the accused in the High Court which observed that

two of the accused appellants i.e. Ramaiya and Krishna had

not been identified in the identification parade and were, thus,

liable  to  acquittal.   The  other  appeals  were,  however,

dismissed with the modification in the sentence from 10 years

to  8  years  RI  with  an  increase  in  the  fine  of  Rs.200/-  to

4

Rs.5000/- to be made payable within 6 months failing which

they would undergo RI  for 10 years.    The present appeals

have been filed by 10 of  the accused  as Raju son of  Billya

chose not to file an appeal.  It is in these circumstances that

the matter is before us for final hearing.

4. Mr.  Ranjit  Kumar,  the  learned  senior  counsel  for  the

accused-appellants has raised several arguments during the

course of hearing.  He has first emphasized that as the story

projected  by  the  prosecution  witnesses  i.e.  the  prosecutrix

PW9  and  her  mother  PW8  in  so  far  as  the  offence  under

section 366 of the IPC was concerned, had been disbelieved,

the conviction under section 376(2)(g) of the IPC on the same

evidence was uncalled for.  He has also pointed out that as

there was no injury on the person of the prosecutrix, despite

her claim of having been raped by 13 young men, falsified the

entire story and the fact that she was apparently a girl of easy

virtue was an additional reason as to why her evidence should

be  examined  with  care.   He  has,  however,  especially

emphasized  that  as  a  large  number  of  persons  had  been

involved, their identification beyond doubt was a sine qua non

5

for conviction and as both the prosecutrix and her mother had

at one stage stated that they knew the accused and 9 of them

had been identified by the former in an identification parade

in  a  procedure  which  was,  to  say  the  least,  open  to  grave

suspicion, the evidence of identification too was unacceptable.

5. The learned State counsel has, however, submitted that

the  prosecutrix  and  her  mother  had  no  reason  to  falsely

implicate the accused  and in the light of the fact that they

were  illiterate  and  belonged  to  a  backward  area,  some

indulgence was to be shown to them with respect to the minor

inconsistencies  in  their  statements  inter-se.   He  has  also

pointed out that the accused had been identified in the light of

an electric pole at the place of incident and as Nandoo, Bindoo

and Pyaru who had first accosted the prosecutrix were known

to her, their involvement was in any case virtually proved.  He

has  finally  urged  that  the  chemical  examiner’s  report  had

revealed  the  presence  of  semen  stains  on  the  underwear

which the accused had been wearing, showed that rape had

indeed been committed.

6

6. We have heard the learned counsel for the parties and

gone, through the record.  It is true that rape is one of the

most  heinous  and  reprehensible  of  crimes  that  can  be

committed on a woman and it is for this reason that courts

have leaned heavily in favour of such a victim.   [See: State of

Punjab vs. Gurmit Singh & Ors.  (1996)  2 SCC 384].  In this

matter this Court allowed the State appeal  against acquittal

and while  convicting  the  accused  under  section  376  of  the

IPC,  observed thus:   

      “Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we  show  little  or  no  concern  for  her honour.  It  is  a  sad  reflection  on  the attitude  of  indifference  of  the  society towards the violation of human dignity of the  victims  of  sex  crimes.  We  must remember that a rapist not only violates the  victim's  privacy  and  personal integrity,  but  inevitably  causes  serious psychological as well as physical harm in the  process.  Rape  is  not  merely  a physical assault - it is often destructive of the  whole  personality  of  the  victim.  A murderer  destroys  the  physical  body  of his victim, a rapist degrades the very soul of  the  helpless  female.  The  Courts, therefore, shoulder a great responsibility while  trying  an  accused  on  charges  of

7

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 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.

7. The Court also observed that the alarming frequency of

crimes  against  women  had  led  Parliament  to  make  some

special laws in the background that rape was a very serious

offence and that this was another factor which was to be kept

in mind while appreciating the evidence in such matters.   

8

8.      The observations in Gurmit Singh’s case were reiterated

in  Ranjit Hazarika vs. State of Assam  (1998) 8  SCC 635 in

the following terms:

"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.  The  inherent  bashfulness  of  the females  and  the  tendency  to  conceal outrage of  sexual  aggression are  factors which  the  courts  should  not  overlook. The testimony of the victim in such cases is vital  and unless there  are compelling reasons  which  necessitate  looking  for corroboration  of  her  statement,  the courts should find no difficulty to act 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.  Seeking corroboration  of  her  statement  before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should  the  evidence  of  a  girl  or  a woman who complains of rape or sexual

9

molestation  be  viewed  with  doubt, disbelief  or  suspicion?  The  court  while appreciating the evidence of a prosecutrix may  look  for  some  assurance  of  her statement  to  satisfy  its  judicial conscience, since she is a witness who is interested in the outcome of the charge leveled  by  her,  but  there  is  no requirement  of  law  to  insist  upon corroboration  of  her  statement  to  base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness  and  to  an  extent  is  even  more reliable.  Just  as  a  witness  who  has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered  to  be  a  good  witness  in  the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence  of  corroboration notwithstanding.  Corroborative  evidence is  not  an  imperative  component  of judicial  credence  in  every  case  of  rape. 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. It must not be overlooked that  a  woman  or  a  girl  subjected  to sexual  assault  is  not  an  accomplice  to the  crime  but  is  a  victim  of  another person's  lust  and  it  is  improper  and undesirable  to  test  her  evidence  with  a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity

10

and not dead uniformity lest that type of rigidity  in  the  shape  of  rule  of  law  is introduced  through  a  new  form  of testimonial  tyranny  making  justice  a casualty. Courts cannot cling to a fossil formula  and  insist  upon  corroboration even  if,  taken  as  a  whole,  the  case spoken  of  by  the  victim  of  sex  crime strikes the judicial mind as probable."

9. The  aforesaid  judgments  lay  down  the  basic  principle

that  ordinarily  the  evidence  of  a  prosecutrix  should  not  be

suspect and should be believed,  the more so as her statement

has to be evaluated at par with that of an injured witness and

if  the  evidence  is  reliable,  no  corroboration  is  necessary.

Undoubtedly,  the  aforesaid  observations  must  carry  the

greatest weight and we respectfully agree with them, but at

the same time they cannot be universally  and mechanically

applied  to  the  facts  of  every  case  of  sexual  assault  which

comes before the Court.  It cannot be lost sight of that rape

causes the greatest distress and humiliation to the victim but

at the same time a false allegation of rape can cause equal

distress, humiliation and damage to the accused as well.   The

accused must also be protected against the possibility of false

11

implication, particularly where a large number of accused are

involved.  It must, further, be borne in mind that the broad

principle is that an injured witness was present at the time

when  the  incident  happened  and  that  ordinarily  such  a

witness would not tell  a lie as to the actual assailants,  but

there is no presumption or any basis for assuming that the

statement of such a witness is always correct or without any

embellishment or exaggeration.  Reference has been made in

Gurmit Singh’s case to the amendments in 1983 to Sections

375  and  376  of  the  India  Penal  Code  making  the  penal

provisions relating to rape more stringent, and also to Section

114A of the Evidence Act with respect to a presumption to be

raised with regard to allegations of consensual sex in a case of

alleged rape.  It is however significant that Sections 113A and

113B  too  were  inserted  in  the  Evidence  Act  by  the  same

amendment  by  which  certain  presumptions  in  cases  of

abetment of suicide and dowry death have been raised against

the  accused.   These  two  Sections,  thus,  raise  a  clear

presumption  in  favour  of  the  prosecution  but  no  similar

presumption  with  respect  to  rape  is  visualized  as  the

12

presumption under Section 114A is extremely restricted in its

applicability.  This clearly shows that in so far as allegations of

rape  are  concerned,  the  evidence  of  a  prosecutrix  must  be

examined as that of an injured witness whose presence at the

spot  is  probable  but  it  can  never  be  presumed  that  her

statement should, without exception, be taken as the gospel

truth.  Additionally her statement can, at best, be adjudged on

the principle that ordinarily no injured witness would tell a lie

or implicate a person falsely.  We believe that it is under these

principles that this case, and others such as this one, need to

be examined.

10. Undoubtedly,  the charge under  section 366 of  the IPC

has not been made out as per the findings of the courts below.

We, however, find that the evidence of rape is distinct from the

other  charge  and  the  matter  should  be  examined  in  that

background.  We are, accordingly, of the opinion that merely

because  the  accused  have  been  acquitted  for  the  offence

punishable  under  Section  366  of  the  IPC  is  ipso-facto  no

reason  to  disbelieve  the  entire  prosecution  story  on  this

solitary ground.

13

11. The veracity of the story projected by the prosecution qua

allegations of rape must, thus, be examined.  It has come in

the evidence of PW8 that the prosecutrix had been married

while a child but her gauna had not been performed as her

husband,  had,  in the meanwhile, taken a second wife.  The

Doctor PW1 Dr. Smt. Christian has, however, opined that the

prosecutrix  was  so  habituated  to  sexual  intercourse  that  it

was not possible to ascertain as to when she had last been

subjected to it.  It has also come in the evidence of PW8 that

the police had often questioned the prosecutrix as to why she

was  indulging  in  prostitution.   The  prosecutrix  herself  also

admitted that she had once been arrested in the Ajanta Hotel

case but had been bailed out by Shri Bansal, Advocate.  It is

indeed surprising that though, as per her allegations, all 13

accused had assaulted her one after the other,  but the doctor

did not find even a scratch on her person.  The trial court and

the  High  Court  have  not  accepted  the  plea  raised  by  the

accused as to the adverse character of the prosecutrix as the

evidence  on this score was not conclusive.    We are  of  the

opinion,  however,  that  in  the  light  of  the  facts  mentioned

14

above, it is probable that the prosecutrix was indeed involved

in some kind of improper activity.

12. The  other  evidence  in  the  matter  would  have  to  be

examined  in this  background.   Primary emphasis  has been

placed  by  Mr.  Ranjit  Kumar  on  the  identification  of  the

accused.  It has been submitted that the identification itself

was  faulty  whereas  the  State  Counsel  has  argued  to  the

contrary and submitted that as the accused were known to

the prosecutrix she had been in a position to identify them.

The question of identification is, to our mind, the determining

factor in this case.  In the FIR the prosecutrix has named four

of the accused as having committed rape on her, they being

Nandoo, Bindu, Pintoo and Raju.  PW8, who was unsure, as to

the  identity  of  the  accused,  however,  stated  that  she  knew

Nandoo,  Pyaru,  Pawan,  Pintoo  and Raju  but  conceded  that

she  had  not  known any of  the  accused  at  the  time  of  the

incident but after the police had enquired about the names of

the  boys in her presence,  she had come to know who they

were.  It is also significant that the Court had recorded a note

that even after she had named the five accused she had been

15

able  to  identify  only  Pawan  and  she  had  not  been  able  to

identify any of the other accused.  She also stated that some

of the boys had been arrested on the day of the incident and

that  she  had  been  called  to  visit  the  police  station  several

times  to  identify  them  and  that  the  police  had  often

threatened her and her daughter that if they did not come to

the police station they would file a case against them.  In the

last paragraph of her examination-in-chief PW8 clearly stated

that she was not in a position to identify the boys at the time

of  incident  or  even  in  Court.   It  is  significant  that  the

prosecutrix, her mother and all the accused were residents of

Ruabandha  and  as  per  the  prosecutrix’s  evidence  she  was

aware  of  the identity  of  only  a few of  them whom she  had

named  in  the  FIR.   It  is  also  significant  that  in  her

examination-in-chief  the  prosecutrix  stated that  at the time

when she had been taken away on the Luna she did not know

the names of the accused who were taking her away and that

she was not personally acquainted with any of the boys at the

time of incident and did not know their names and was not in

16

a position to recognize them.  In paragraph 46 of the evidence,

this is what she had to say:

“Police  personnel  had taken me to Police  Station  at  about  2.30  O’clock  in the night.  Immediately after lodging the report  there,  they  came  at  the  place  of occurrence taking me there and had got identified  the  accused  persons  having taken them out of their houses.  Then the police  personnel  had taken the accused persons  also  at  the  Police  Station.   In that  night  nine  boys  had  been  brought having arrested.  Remaining five boys had been brought by the police on the second day.   I  had identified  those  also  in  the Police Station.

After  arrest  of  nine-ten  boys,  they had taken near the house where incident had taken place and they had asked to identify the remaining boys. Then I  had identified  4-5  boys  from that  crowd.   I had gone to the Police Station having sit in Daga with all those boys. Witness now states  that  2-3  boys  had  been  arrested from the houses, remaining 6-7 boys had been arrested from Dance site, remaining 4-5  boys  had  been  brought  having arrested on the second day.

I had not gone to the houses of the boys  for  identification.  Police  personals had called them in the hotel and I used to identify them there.”

17

We  are  of  the  opinion  that  in  the  light  of  the  categorical

statements  of  the  two  main  prosecution  witnesses,  the

identification of the accused is extremely doubtful.

13. The  test  identification  parade  conducted  by  PW5

Sakharam Mahilong, Naib Tehsildar is equally farcical.  This

witness  stated  that  36  persons  in  all,  including  9  of  the

accused, had been associated with the parade held by him on

30th December 1986 but he also admitted that the 9 accused

had been covered with black and brown coloured blankets.  To

our  mind  the  only  inference  that  can  be  drawn  from  this

admission is that similar and distinctive  blankets had been

provided so as to facilitate the identification of the accused.

Moreover,  in the light of the fact that the witness had been

shown to the prosecutrix not once but several times while they

were in police custody, the identification parade held by PW5

is even otherwise meaningless.

14. The learned State counsel has, however, placed special

emphasis on the fact that the underwear handed over by the

accused to the investigating officer were found by the chemical

examiner  to  be  stained  with semen which corroborated  the

18

prosecution story.  In the light of the fact that we have found

the identification of the accused to be doubtful, the recovery of

the  underwear  becomes  meaningless.   But  we  have

nevertheless chosen to examine this submission as well.  In

this connection, we have gone through the evidence of Durga

Prasad Shukla PW10, the investigating officer.  We notice that

the underwear of some of the accused had been produced by

them on 29th December 1986 whereas the remaining accused

had likewise produced their underwear on the 2nd of January

1987.   We  find  it  some  what  difficult  to  believe  that  the

accused  had  themselves  provided  the  evidence  of  having

committed  rape  soon  after  the  incident,  and  even  more

surprising, that some of them had done so three days after the

incident.   The recovery of the stained underwear is a factor

which,  by itself,  cannot  support  a  case  of  rape  against  the

accused.

15.      On an examination of the entire evidence, we are of

the opinion that it would be difficult to conclusively show the

involvement of each of the accused beyond reasonable doubt.

To  our  mind  the  truth  and  falsehood  are  so  inextricably

19

intertwined, that it  is impossible to discern where one ends

and the other begins.  

16.       As already noted above Raju, son of M. Billya did not

file an appeal in this court.  In the light of the fact that we

have  found  the  prosecution  story  to  be  doubtful,  Raju  too

must  be  given  the  benefit  of  doubt  in  the  light  of  the

judgments in  Raja Ram & Ors. Vs. State of M.P. (1994) 2

SCC 568, Arokia Thomas vs. State of T.N. (2006) 10 SCC

542 and Suresh Chaudhary etc. vs. State of Bihar (2003) 4

SCC 128.       We, accordingly allow the appeals and acquit the

present appellants, as also Raju son of M. Billya.

…………………………….J. (DALVEER BHANDARI)

……………………………..J.

( HARJIT SINGH BEDI)

New Delhi, Dated:  December 3, 2008

20