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PETITIONER: STATE OF ORISSA

       Vs.

RESPONDENT: DAMBURU NAIKO AND ANR.

DATE OF JUDGMENT31/03/1992

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. KULDIP SINGH (J)

CITATION:  1992 AIR 1161            1992 SCR  (2) 393  1992 SCC  (2) 522        JT 1992 (2)   517  1992 SCALE  (1)752

ACT:      Indian Penal Code, 1860 :      Sections  34,  366 and 376-Kidnapping  and  gang  rape- Corroboration  of victim’s evidence-Whether necessary,  when her  evidence  inspires confidence  to  be  truthful-Offence committed  in broad day light-Victim identifying accused  in Identification   Parade  and  medical  evidence  and   First Information  Report  corroborating injuries on  her  private parts-Whether  High  Court justified in  rejecting  victim’s evidence.

HEADNOTE:      The  two respondents and two others were charged  under Sections  366/34 and 376 read with 34 I.P.C. for  kidnapping and committing rape on P.W.1.  In the Identification Parade, conducted  by P.W.13, the Executive Magistrate,  P.W.1,  the victim,  identified  the  two  respondents  and  one   other accused.    The  trial  court  accepted  her  evidence   and convicted the two respondents and sentenced them to  undergo three years’ rigorous imprisonment on each count.      The  trial  court acquitted the other two  accused  and this became final since there was no appeal against it.  The Sessions   Court   confirmed  the  sentences  of   the   two respondent.      On appeal, the High Court acquitted the two respondents on the grounds that P.W.1 identifying the respondents  could not  be relied upon, that there was no corroboration to  her evidence,  and that when there was gang rape there would  be several  injuries  on the person of the victim,  which  were absent, and therefore, she was a consenting party.      Allowing the appeal of the State, this Court,      HELD:  1.1  It is not necessary that  there  should  be corroboration to the evidence of the victim of rape.  If the evidence  inspires  confidence to be truthful,  that  itself would be sufficient to convict the accused. [396D]                                                  394      1.2 In the instant case, there is no necessity for  any corroboration of P.W.1’s evidence.  She was a simple village girl  and  she would not leave out her own  assaillants  and implicate   falsely   other  innocent  persons   with    the allegation  that  she was raped by them.  Though she  was  a

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stranger  to  the  accused she is the  victim  of  dastardly offences  of  kidnapping and gang rape and it  was  done  in broad  day  time.  Therefore, when she  was  kidnapped  into forest  by  the accused, she had opportunity  to  see  them, though  later  her eyes were closed with a piece  of  cloth. When she was made to lie down on the ground at the threat of her  life  and gang rape was committed, she  was  absolutely helpless.  The medical evidence amply corroborates that  she had injuries on her private parts and so there is yet enough resistence  put  up by her to the gang  rage  committed  one after  the another.  When it was done at the threat  of  her life  she  cannot be expected to go on resisting  except  to resisting  to her fate and succumb to their  assault.  P.W.1 also  identified  the  respondents  in  the   identification parade.  She had enough opportunity to identify the  persons who  committed  rape  on  her.   Even  if  corroboration  is necessary,  the  injuries  on  her  private  parts;  medical evidence  of  the doctor and her  first  information  report provide such corroboration.  The evidence of P.W.1 has to be accepted as truthful.  [396B-E]      1.3  It  is,  therefore, not  possible  to  accept  the reasoning  of the High Court in rejecting  P.W.1’s  evidence and acquitting the two respondents.  Besides, the High Court also   did not  make any attempt to disbelieve her  evidence on its own merits. [396A,F]      1.4  In these circumstances, the casual and  mechanical approach,  without  regard to human probabilities,  and  the consequent  acquittal  by the High Court resulted  in  grave miscarriage of justice.  The Judgment of the High Court  and order  of  acquittal  of  respondents  is  set  aside.   The judgments  and  convictions and sentences  recorded  by  the trial  court,  and  affirmed  by  the  Sessions  Court,  are restored.   The respondents should surrender and  serve  out the sentences. [396F,G]

JUDGMENT:      CRIMINAL  APPELLATE JURISDICTION : Criminal Appeal  No. 567 of 1983.      From  the  Judgment  and Order  dated  19.4.82  of  the Orissa High Court in Crl. Revn. No. 152/81.      C.S.Sromovasa Rao for the Appellant.                                                   395      A.P. Mohanty for the Respondents.      The Judgment of the Court was delivered by      K.  RAMASWAMY, J. The two respondent Dambru Naiko  (A1) and  B.  Sankara  Rao (A2) and two others  were  charged  in Sessions Case No. 6/78 of Asst.  Sessions Judge, Jeypore for offences under section 366/34 and 376 read with s. 34 I.P.C. kidnapping and committing rape of Manguri Bhotruni, PW.1  on October  21,  1978  at about 4.00  p.m.  By  judgment  dated November 26, 1978 the trial court convicted the  respondents and  sentenced  them to undergo rigorous  imprisonment for a period  of three years on each count and the sentences  were directed  to run concurrently.  He acquitted the  other  two which  became  final.   On appeal it was  confirmed  by  the Sessions  Court.   In  Crl.  Revision No.  152  of  1981  by judgment dated April 19, 1982, the High Court acquitted them of th charges.  Thus this appeal by special leave.      The case of prosecution is that on the fateful day  the victim  Bhotruni alongwith other girls, PWs. 2 to 4 went  to Papadahandi  to  witness Dasahara festival.  At  about  4.00 p.m.,  while they were returning home, PW.1, the victim  was ahead  of them and when they reached inside the forest,  the

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appellants  and  two  others gagged the mouth  of  PW.1  and kidnapped into the forest, covered her eyes with a piece  of cloth  and threatened to kill her if she would raise  cries. They  made her to lie down on the ground and raped  her  one after  another.   PWs.  2  to 4  ran  back  Papadahandi  and reported,  to  the police on duty in the  festival,  of  the incidence and PW.5, the constable came alongwith them.  They found  the victim’s eyes covered  with a piece of cloth  and that  she  was crying.  She was taken to  Papadahandi.   She laid the complaint (Ext. P.1).  The accused were arrested on October 31, 1977 and in the identification parade  conducted by  the Executive Magistrate, PW. 13, PW.1 to  4  identified the  accused,  PW.1  identified  the  respondents  and   one another,  PW.2 to 4 identified some as per Ex.  P.10  report the details of which are not necessary as it is admitted  by them  that  before the identification parade  was  conducted PWs.2 to 4 had opportunity to see the accused.  So the trial count did not rely upon the evidence of PWs. 2 to 4.  But it accepted the evidence of PW.1, the victim and convicted  the respondents.   The High Court acquitted the  respondents  on the grounds, namely, that PW.1 identifying these respondents would not be relied on and that there is no corroboration to her  evidence.   When there is a gang rape  there  could  be several    injuries   on   the   person   of   the    victim                                                   396 which  are absent.  Therefore she was consenting  party.  We are at a loss to understand the reasoning of the High Court. The  vehement  contention  of the learned  counsel  for  the respondents  that the reasoning given by the High  Court  is cogent and needs no interference absolutely lacks substance. Though  PW.1 was a stranger to the accused is the victim  of dastardly  offences of kidnapping and gang rape and  it  was done  in broad day time.  Therefore, when she was  kidnapped into  forest by the accused she had opportunity to see  them though  later her  eyes were closed with a piece  of  cloth. When she was made to lie down on the ground at the threat of her  life  and gang rape was committed, she  was  absolutely helpless.  The medical evidence amply corroborates that  she had injuries on her private parts and so there is yet enough resistence  put  up by her to the gang  rape  committed  one after  the another.  When it was done at the threat  of  her life,  she cannot be expected to go on resisting  except  to resign to her fate and succumb to their assault.  PW.1  also identified  the  respondents in the  identification  parade. Since there is no appeal against the others, we need not  go into  their  acquittal.  But suffice to state that  she  had enough  opportunity  to identify the persons  who  committed rape  on  her.   It is not necessary  that  there  would  be corroboration to the evidence of the victim of rape.  If her evidence  inspires  confidence to be  truthful  that  itself would be sufficient to convict the accused. We need not  see corroboration  to  the evidence of PW.1.  She was  a  simple village girl and she will not leave out her own  assaillants and  implicate  falsely  other  innocent  persons  with  the allegation that she was raped by them.  Even if we seek  for corroboration  the  injuries on her private  parts;  medical evidence  of  the doctor and her  first  information  report provide  such corroboration.  We have carefully scanned  her evidence.   We wholly accept her evidence as  truthful.  The High  Court also did not make any attempt to disbelieve  her evidence  on  its own merits.  In  these  circumstances  the casual  and  mechanical approach, without  regard  to  human probabilities,  and  the consequent acquittal  by  the  High Court  resulted  in  grave  miscarriage  of  justice.    The approach  adopted by the High Court shall not be allowed  to

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stand for a moment.  The appeal is accordingly allowed.  The judgment  of  High  Court and the  order  of  acquittal  the respondents is set aside.  The judgments and convictions and sentences  recorded by the trial court and affirmed  by  the Sessions  Courts  are restored and  the  respondents  should surrender and serve out the sentences. N.P.V.                                       Appeal allowed.                                                   397