IMPORTANT POINTS
1.In an offence of rape, 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.
2.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.
3.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.

Headnote:Indian Penal Code, 1860- Sections 376/34-Gang rape-Prosecution of appellant alongwith six others for committing gang rape on prosecuterix- Trial Court convicted all accused persons including appellant –On appeal, High Court dismissed the appeal of appellant and one other co-accused, while acquitting remaining four accused-Appeal- Evidence on record that prosecuterix an illiterate rustic village girl having no sense/estimate/assessment of time and place,found herself apprehended by appellant and his accomplices and forced to surrender under the threat to life,it was quite possible that she could not even raise hue and cry-She had no option except to surrender- It appeared to be a case of non-resistance on the part of the prosecutrix because of fear and the conduct of the prosecutrix could not be held to be unnatural- 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 prosecutrix- No reason could be there for which prosecutrix would have enroped them falsely- Nothing on record to establish the consent of the prosecutrix - Definitely, it could not be a case of consent by the prosecutrix, even if it was assumed that she was major- Appeal, having no merit dismissed. (Paras 44 to 46)
       Test Identification Parade–Scope and ambit of-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. (Para 19)
       Facts of the Case :
       Appellant along with six others were prosecuted herein in the instant case for committing gang rape on prosecuterix. Trial Court convicted all accused persons including appellant. On appeal, High Court dismissed the appeal of appellant and one other co-accused, while acquitting remaining four accused.
       2.Present appeal has been filed against said order of High Court.
       Findings of the Court :
       Since prosecuterix an illiterate rustic village girl having no sense/estimate/assessment of time and place,found herself apprehended by appellant and his accomplices and was forced to surrender under the threat to life,it was quite possible that she could not even raise hue and cry.She had no option except to surrender. It appeared to be a case of non-resistance on the part of the prosecutrix because of fear and the conduct of the prosecutrix could not be held to be unnatural. There was 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 prosecutrix. No reason could be there for which prosecutrix would have enroped them falsely. Definitely, it could not be a case of consent by the prosecutrix, even if it was assumed that she was major. Appeal, having no merit was dismissed.
       Result : Appeal dismissed.

JUDGMENT

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 t

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2010 Supreme(SC) 631

2010 (5) Supreme 582SUPREME COURT OF INDIAP. Sathasivam and Dr. B.S. Chauhan, JJ.Vijay @ Chinee — AppellantversusState of Madhya Pradesh — RespondentCriminal Appeal No. 660 of 2008Decided on : 27-7-2010

Cases Referred (23)

2010 (5) Supreme 582
SUPREME COURT OF INDIA
P. Sathasivam and Dr. B.S. Chauhan, JJ.
Vijay @ Chinee — Appellant
versus
State of Madhya Pradesh — Respondent
Criminal Appeal No. 660 of 2008
Decided on : 27-7-2010