Case: Vijay @ Chinee Vs. State of Madhya Pradesh

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 prosecutions 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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.Thus, 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.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 aTrial 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.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.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.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.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 wasit 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.