Page 1

Non-Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 109-110 of 2011

Md. Iqbal & Anr.                                                       …Appellants

Versus

State of Jharkhand                                                        …Respondent

J U D G M E N T

Dr. B.S. Chauhan, J.

1. These  appeals  have  been  preferred  against  the  impugned  

judgment  and  order  dated  2.9.2009  passed  by  the  High  Court  of  

Jharkhand at Ranchi in Criminal Appeal Nos. 316 and 218 of 2002, by  

which the Court has affirmed the judgment and order of the trial court  

dated  22.5.2002  passed  in  GR.  No.  151  of  1999,  by  which  the  

appellants  had  been  convicted  for  the  offence  punishable  under  

Section 376(2)(g) of Indian Penal Code, 1860 (hereinafter referred to  

as the ‘IPC’).  They were sentenced to undergo RI for a period of 10  

years and further, to pay a fine of Rs.5,000/- each, and in default of

Page 2

the same, to further undergo RI for a period of 6 months. However,  

both  the  appellants  were  acquitted  of  charges  punishable  under  

Sections  3(1)(xii)  and  3(2)(v)  of  The  Scheduled  Castes  and  the  

Scheduled Tribes (Prevention of Atrocities) Act, 1989.   

2. Facts and circumstances giving rise to these appeals are that:

A. Aliva Kongari (PW.10) – the prosecutrix at about 10 a.m. on  

13.6.1999 came to the district headquarters Simdega from her village  

Jhingur Pani Toli. There she met her friends Kiran and Shashi and  

alongwith  them  she  went  to  enjoy  a  movie  at  the  cinema  hall.  

Thereafter,  she  proceeded  towards  the  vegetable  market.  Here,  she  

was followed by two boys (appellants) who told her to accompany  

them. Though, she refused to go with them, they caught hold of her  

hands and took her forcibly to a school situated in Bhathi Toli and  

there she was subjected to rape by both of them.  

B. Subsequently,  other  boys also  came there and some of  them  

also raped her.  However, she was tired and became unconscious. She  

regained her consciousness in the morning and nearby, she saw an old  

lady. One of the appellants, was also there just outside the school. On  

enquiring,  the old lady told  her that his name was Iqbal.  

2

Page 3

C. The  prosecutrix  went  to  the  police  station  and  lodged  a  

complaint. Her statement was recorded. Her clothes, particularly her  

petticoat was taken by the police and she was taken to the hospital for  

medical examination. In view of the aforesaid complaint, investigation  

started and the appellants were arrested after 2-3 days.

D. After the conclusion of the investigation, the chargesheet was  

filed against the accused appellants. They pleaded not guilty and thus,  

were put to trial.  

E. During the trial, most of the witnesses turned hostile. However,  

the  trial  court  vide  impugned  judgment  and order  dated  22.5.2002  

convicted  and sentenced the appellants  as  referred  to  hereinbefore.  

Their  appeals  have  also  been  dismissed  by  the  High  Court  vide  

impugned judgment and order dated 2.9.2009.

Hence, these appeals.    

3. Ms.  Kumud  Lata  Das,  learned  counsel  appearing  for  the  

appellants has submitted that the version of the prosecutrix is not in  

consonance with  medical evidence and the conduct of the prosecutrix  

was very unnatural. Even the father of the prosecutrix who had been  

examined as a prosecution witness turned hostile and did not support  

the case of the prosecution. Therefore, the version of the prosecutrix  

3

Page 4

that  she  had  been taken  from the  market  by  the  appellants  to  the  

school building where she was subjected to rape, is very unlikely as  

these  are  public  places  where  someone  would  have  come  to  her  

rescue. Furthermore, in spite of the fact that the school, where she was  

subjected to rape had two rooms she was raped in a verandah, this too  

seems  unlikely.  The  prosecution  failed  to  examine  the  material  

witnesses particularly the old lady who disclosed the name of one of  

the  appellants  as  Iqbal  to  the  prosecutrix.  No  Test  Identification  

Parade was conducted.  Even the evidence of Surendra Kumar (PW.9)  

is  far  from satisfactory.    Due  to  the  aforementioned  contentions,  

benefit  of  doubt  should  be  given  to  the  appellants.  Therefore,  the  

appeals deserve to be allowed.    

4. Mr. Jayesh Gaurav, learned counsel appearing on behalf of the  

State,  has  opposed  the  appeal  as  there  are  concurrent  findings  

recorded by the courts below.  The test identification parade could not  

be conducted because the prosecutrix had left  her  village for some  

other  place  under  the  threat/pressure  of  the  accused.   Further,  

witnesses have turned hostile because of the pressure exerted by the  

accused-appellants.  Thus, the appeals are liable to be dismissed.  

4

Page 5

5. We have considered the rival submissions made by learned counsel  

for the parties and perused the record.  

6. Aliva Kongari, (PW.10), the prosecutrix, is the most material  

witness. She deposed, that she was forcibly taken by the appellants  

from the vegetable market to the school and was subjected to rape.  

Subsequently, other boys also came and some of them also raped her.  

She  raised  hue  and  cry  and  was  very  tired.  Thus,  she  became  

unconscious. After regaining consciousness in the early morning, she  

approached the police station and lodged the complaint.  She showed  

her blood stained clothes as well as stains of a semen like substance  

on them.  She had been medically examined on 15.6.1999.  

She further deposed that she was being persistently threatened  

from the  appellants/accused,  therefore,  she  left  her  house  after  the  

incident and went to stay with her sister at Bokaro.  She identified  

both the appellants/accused in the court.  Her mother had died. She  

had informed her father about the incident when he came to police  

station on 14.6.1999.  She denied all  the suggestions  made by the  

prosecution that she was a girl of easy virtue or bad character and she  

was a consenting party to the said incident or she was habitual to sex.   

5

Page 6

7. Dr. Jacika Dehm (PW.7) who had examined the prosecutrix on  

15.6.1999,  found  that  her  hymen  was  ruptured  and  noted  the  

following injuries on her person:

“3” x ½” abrasion on the medical side of right thigh.

“½” x ½” abrasion on the medical side of left  thigh, which may  

be due to sanitary pad.

In  the  opinion of  the  doctor,  spermatozoa  was  not  found  in  

vaginal swab examination and there was no injury in her private  

parts. The patient was habitual to sexual intercourse.”  

Dr. Jacika Dehm (PW.7)  proved the medical report.  

8. Surendra Kumar Singh, S.I., (PW.9), the Investigating Officer  

of the case, deposed that in order to hold the T.I. parade, he tried his  

best to locate the prosecutrix as she was not residing in her village.  

Her  father  had given in  writing that  the prosecutrix  had shifted to  

Calcutta.  Therefore, there would be no sanctity of T.I. parade after  

such an inordinate delay.

9. Majahar Alam (PW.1), Bablu Khan (PW.2), Kulanand Prasad  

(PW.3),  Md.  Yakir  (PW.5)  and  Abdul  Rashid  (PW.6)  were  the  

prosecution  witnesses.   Their  statements  under  Section  161  of  the  

Criminal  Procedure  Code,  1973  (hereinafter  referred  to  as  `the  

6

Page 7

Cr.P.C.’), were only to the extent that they had gone to the place of  

occurrence after hearing commotion,  but they turned hostile and did  

not support the case of the prosecution. Chaturdhan Pradhan, (PW.9),  

remained merely a formal witness who had to prove FIR only.   

10. Father of the prosecutrix Edmon Kongari, (PW.4), had turned  

hostile,  however, at the most, he could depose what the prosecutrix  

had told him on 14.6.1999 when he came to meet her in the police  

station.   

11. Statement  of  the  prosecutrix  had  been  duly  corroborated  by  

medical  evidence.  Since  she  was  examined  two  days  after  the  

incident,  it  is  natural  that  spermatozoa would  not  be  found in  her  

vaginal swab.     

12. The  test  identification  parade  could  not  be  held  as  the  

prosecutrix had fled away from her village and gone to reside with her  

sister  at  Bokaro  after  being  threatened  by  the  accused,  therefore,  

appellants  should  not  be  allowed  to  take  the  benefit  of  this  

circumstance.   

7

Page 8

13. The trial court has thoroughly appreciated the facts of the case  

and come to the conclusion that in view of the provisions of Section  

114-A of  Indian  Evidence  Act,  1872  there  is  a  presumption  as  to  

absence of consent in case of gang rape and it will be presumed that  

the prosecutrix did not give consent, as this presumption is based on  

the reasoning that nobody can be a consenting party to several persons  

simultaneously.   Thus, consent is not possible in the case of gang  

rape.   

14. There is no prohibition in law to convict the accused of rape on  

the basis of sole testimony of the prosecutrix and the law does not  

require that her statement be corroborated by the statements of other  

witnesses.  

In  Narender Kumar v. State (NCT of Delhi), AIR 2012 SC  

2281, this Court has observed that even if a woman is of easy virtues  

or use to sexual intercourse, it cannot be a licence for any person to  

commit rape and it further held:  

“24. Conviction can be based on sole testimony of the   prosecutrix provided it lends assurance of her testimony.   However, in case the court has reason not to accept the   version of prosecutrix on its face value, it may look for   corroboration. In case the evidence is read in its totality   and the story projected by the prosecutrix is found to be   

8

Page 9

improbable,  the prosecutrix  case  becomes liable  to  be   rejected.

The court  must  act  with  sensitivity  and appreciate  the   evidence in totality of the background of the entire case   and not in the isolation. Even if the prosecutrix is of easy   virtue/unchaste  woman  that  itself  cannot  be  a   determinative  factor  and  the  court  is  required  to   adjudicate whether the accused committed rape on the   victim on the occasion complained of.”

(See also:  Vijay @ Chinee  v. State of Madhya Pradesh, (2010) 8  

SCC 191)

15. In the statements of the accused/appellants under Section 313  

Cr.P.C.,  only  a  bold  statement  had  been  made  by  both  the  

accused/appellants that they were innocent.  No explanation had been  

furnished by either of them as to why the prosecutrix had deposed  

against them and involved them in such a heinous crime.   

16. Rape cannot be treated only as a sexual crime but it should be  

viewed as a crime involving aggression which leads to the domination  

of the prosecutrix. In case of rape besides the psychological trauma,  

there is  also social  stigma to the victim. Majority of  rapes are not  

sudden occurrences  but  are  generally  well  planned as  in  this  case.  

Social stigma has a devastating effect on rape victim. It is violation of  

her  right  of  privacy.  Such  victims  need  physical,  mental,  

9

Page 10

psychological and social rehabilitation. Physically she must feel safe  

in the society, mentally she needs help to restore her lost self esteem,  

psychologically  she  needs  help  to  overcome  her  depression  and  

socially, she needs to be accepted back in the social fold.  Rape is  

blatant violation of women’s bodily integrity.   

17. After considering the case from all angles, we do not see any  

cogent reason to interfere with the findings of fact recorded by the  

courts below.  The appeals lack merit and are, accordingly, dismissed.  

……………………………..........J.  (DR. B.S. CHAUHAN)  

                                                                                        ……………..................................J.                                                             (S.A. BOBDE)  

NEW DELHI;  July 22, 2013         

10