REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE 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

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,  

23rd 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 - 6th to 8th year Lateral incisors - 7th to 9th year Canines - 11th to 12th year Second Molars - 12th to 14th year Third Molars or Wisdom Teeth - 17th to 25th 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