Chinee Vs. State of M.P.  INSC 557 (27 July 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 660
of 2008 Vijay @ Chinee ...Appellant Versus State of Madhya Pradesh ...
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.
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.
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.
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.
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 @
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
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.
appeal deserves to be allowed. The appellant had falsely been enroped in the
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
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
We have considered the rival submissions made by learned counsel
for the parties and perused the record.
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.
Evidence of Prosecutrix :
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 prose cutrix does not have a strong motive to falsely involve the person
charged, the court should ordinarily have no hesitation in accepting her
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.
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."
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.
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
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.
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."
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.
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.
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.
similar view has been reiterated by this Court in State of Rajasthan AIR 1952
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
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 Raj AIR 1999
this Court has observed as under:
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
this court (one of us, Hon'ble P. Sathasivam, J.) 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.
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."
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.
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
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."
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.
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
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.
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.
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 shifting 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 of M.P. AIR 1972 SC 2020; Bharwada Bhogini Bhai Hirji
(2009) 9 SCC 626).
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.
the person of the Prosecutrix 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 still 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"
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.
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.
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
(Dental - Age)
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.
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;
hair is coarser, darker and more curled, and spread sparsely over the junction
or less like an adult, but only a smaller area is covered, no hair on the
medial surface of thighs;
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
Breasts and papilla are elevated as a small mound, and there is enlargement of
elevation and enlargement of breast and areola, but their contours are not
Areola and papilla project over the level of the breast.
stage - only the papilla projects and the areola merges with the general
contour of the breast.
of Rustic/ illiterate villager 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.
that cannot be a ground to reject his testimony.
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."
view has been re-iterated by this Court in SCC 582.
case requires to be considered in the light of the aforesaid settled legal
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.
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.
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.
@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
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
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.
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
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
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."
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.".
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
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 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 (1995) 3 SCC 367, wherein it has been held as under:
to produce the expert opinion before the trial Court in such cases affects the
creditworthiness of the prosecution case to a great extent."
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.
report reads :
majora was well developed.
hair was present. Carunculae myrtiformes was present. Vagina admitting two
fingers. Uterus was normal and retroverted, furnaces free.
age verification, she was referred to dental surgeon and radiologist
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
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.
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.
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.
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.
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)
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