TMI Blog2010 (7) TMI 1209X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence, 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 v. Gurmit Singh and 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 othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence 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 v. Thakara Besra and 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 v. Raghubir Singh (1993) 2 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess 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 v. Saravanan and 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 prosecut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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: In total, there are 32 teeth on full eruption of permanent teeth. Secondary Sex Characters 30. The growth o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion 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, 366A 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 prosecu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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