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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     2486      OF     2009   

Rai Sandeep @ Deepu …Appellant

VERSUS

State of NCT of Delhi                …Respondent

With CRIMINAL     APPEAL     NO.     2487      OF     2009   

Hari Singh …Appellant

VERSUS

State (NCT) of Delhi                …Respondent

J     U     D     G     M     E     N     T   

Fakkir Mohamed Ibrahim Kalifulla, J.

1. These two appeals at the instance of the accused arise  

out of the common judgment dated 27.01.2009.  Hence, we  

will dispose them of by this common judgment.  Both the  

appellants were convicted for the offence of gang rape by the  

trial Court and were sentenced to undergo rigorous  

imprisonment for 10 years each with a fine of Rs. 3,000/-  

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each, in default to undergo further rigorous imprisonment  

for one year each under Section 376 (2)(g), IPC.

2. The case of the prosecution was that on 15.08.2001 in  

the night at about 1.30 a.m. the prosecutrix (PW-4) aged  

about 34 years was in her sister’s house, namely, Seema,  

that she heard the noise of knocking at the door, that the  

minor daughter of her sister, namely, Noju (PW-10), opened  

the door and both the accused persons entered and the  

accused Rai Sandeep @ Deepu told the prosecutrix that he  

wanted to have sexual intercourse with her.  According to  

the prosecutrix (PW-4), she rebuked their demand stating  

that she was not of that type and that the appellants  

threatened her, that in the meantime one Jitender (PW-11),  

minor son of her sister Seema appeared and both the minor  

children asked the appellants to go out of their house but  

the appellants pushed the minor children into a room and  

bolted the door of the room from outside.  The further  

allegation of the prosecutrix (PW-4) was that the appellant-

Rai Sandeep @ Deepu in Criminal Appeal No.2486 of 2009  

made her lie down in the Verandah outside the room and  

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had forcible sexual intercourse with her while his  

companion, the appellant in Criminal Appeal No.2487 of  

2009 was guarding the main door of the house. It was  

further alleged that after the appellant in Criminal Appeal  

No.2486 of 2009 had forcible intercourse with the  

prosecutrix (PW-4), he took the turn of guarding the door  

while his companion, the appellant in Criminal Appeal  

No.2487 of 2009 also had forcible sexual intercourse with  

her, that both the appellants wiped their private parts with a  

red colour socks which was lying in the Verandah and while  

leaving the place of occurrence, they took away a gold chain  

and a wrist watch which was lying near the TV inside the  

room.  The appellants stated to have left the place by bolting  

the main door from outside.  According to the prosecutrix  

(PW-4), since it was dark in the night she did not venture to  

go out at that time and in the morning she asked her  

nephew Jitender (PW-11) to get out of the house from roof  

top and open the door which was bolted from outside.  

Thereafter, she is stated to have reported the incident to the  

police.   

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3. Based on the investigation, the appellants were  

arrested and thereafter the gold chain and the wrist watch  

was recovered at the instance of the appellant in Criminal  

Appeal No.2486 of 2009 and subsequently on his disclosure  

the appellant in Criminal Appeal No.2487 of 2009 was also  

arrested. The prosecutrix (PW-4) and the appellants were  

stated to have been medically examined, that the appellant  

in Criminal Appeal No.2487 of 2009 refused to participate in  

the test identification parade, that FSL report of Exhibits  

were also obtained and the charge sheet was filed for the  

offence of gang rape.  Seventeen witnesses were examined on  

the side of the prosecution which included the prosecutrix  

(PW-4) as well as her niece Noju and nephew Jitender, minor  

children of prosecutrix’s sister Seema who were examined as  

PWs-10 and 11.  PWs 1 and 5 were the doctors who testified  

the medical report of the prosecutrix (PW-4).  PWs-2, 3 and  

13 were the doctors who deposed about the medical report of  

both the appellants.  SI Rajiv Shah (PW-14) was the  

investigating officer.  None were examined on the side of the  

appellants.  The appellants have been convicted as stated  

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above and the said conviction having been confirmed by the  

order impugned in this appeal, the appellants are before us.  

4. Learned counsel appearing for the appellant in  

Criminal Appeal No.2486 of 2009 submitted that while the  

alleged offence took place on the night of 15.08.2001 at 1.30  

a.m., the FIR was lodged at 14.20 hours on the next day,  

that in the FIR the name of the appellant in Criminal Appeal  

No.2486 of 2009 alone was mentioned and that there were  

very many contradictions in the version of the prosecutrix  

(PW-4) before the Court.  Learned counsel by referring to the  

FSL report PW-14/N contended that the report does not  

implicate the appellant to the offence alleged against him.  

According to learned counsel, the trial Court as well as the  

High Court ignored the fact that the accused were neither  

identified nor their presence was established at the place of  

occurrence.  It was also contended that there were material  

contradictions in the evidence of PWs10 and 11, and that of  

the prosecutirix (PW4) and, therefore, the conviction and  

sentence imposed is liable to be set aside.

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5. Learned counsel appearing for the appellant in  

Criminal Appeal No.2487 of 2009 in his submissions  

contended that in the case on hand the evidence of the  

prosecutrix PW-4 definitely need corroboration, inasmuch  

as, there were contradictions in the entirety of her evidence  

which were fatal to the case of the prosecution.  Learned  

counsel contended that the appellant was not named in the  

FIR and was roped in due to the statement of the co-

accused, namely, the alleged confession Annexure P-3(colly)  

in Criminal Appeal No.2487 of 2009 stated to have been  

made on 30.08.2001 based on which the present appellant  

was implicated. Learned counsel also contended that the  

medical evidence also did not support the story of the  

prosecution.  He also made extensive reference to the  

evidence of the prosecutrix (PW-4) to contend that the same  

was not in consonance with what was stated in the FIR and  

that, therefore, serious doubts were created as to the case of  

the prosecution and the trial Court failed to appreciate the  

defects of the case in proper perspective.  By making  

reference to para 48 of the judgment of the trial Court,  

learned counsel pointed out that the statement found  

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therein by referring to the deposition of PW-11 was totally  

misleading inasmuch as no such statement was ever made  

by PW-11.  Learned counsel further argued that the blood  

group AB stated to have been detected from the semen  

sample did not match with that of the accused and no blood  

of the accused was ever detected.  Learned counsel also  

pointed out that no injury was noted in the breast and  

thighs of the prosecutrix (PW-4) and, therefore, the allegation  

of forcible intercourse was not proved.  He further argued by  

making a reference to Exhibit PW-4/B the recovery memo of  

the socks from the place of occurrence, that in her evidence  

the prosecutrix (PW-4) deposed that after preferring the  

complaint she was taken to the hospital for medical  

examination where she handed over the socks to the police  

when her petticoat was seized.  Learned counsel, therefore,  

contended that the offence of rape alleged against the  

appellant having not been established in the manner known  

to law, the conviction and sentence imposed on the appellant  

is liable to be set aside.

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6. As against the above submissions, learned counsel for  

the State very fairly contended that PWs-10 and 11 did not  

support the version of the prosecutrix (PW-4) and solely  

based on the evidence of the prosecutrix as deposed in her  

chief examination, the offence was held proved against the  

appellants.  Learned counsel contended that the variation in  

her statement in the course of cross examination may be due  

to the time gap of two years after her examination in chief  

and, therefore, the same does not in any way affect the case  

of the prosecution.  Learned counsel by referring to the  

reasoning of the trial Court, namely, that semen stains were  

found on the petticoat of the prosecutrix, that it was not the  

case of the accused that she had sexual intercourse with her  

husband on the previous night, that she was in the house of  

her sister on the date of occurrence, that the medical report  

Exhibit PW-5/A disclosed an abrasion on the right side of  

her neck below jaw and the said injury was not self inflicted  

and the prosecutrix being a married woman, there was no  

possibility of bleeding in vagina as the hymen was old torn  

and it was sufficient enough to prove the guilt of the  

accused.  According to him, the refusal of the appellant in  

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Criminal Appeal No.2487 of 2009 to participate in the test  

identification parade was sufficient to find the appellant  

guilty of  the offence alleged against him.  Learned counsel,  

therefore, contended that the conviction and sentence  

imposed do not call for any interference.  He placed reliance  

upon the decision of this Court reported as State of Punjab  

v. Gurmit Singh & Ors. - 1996 (2) SCC 384 in support of  

his submission.  Learned counsel for the appellant in  

Criminal Appeal No.2487 of 2009 relied upon the decision in  

Lalliram & Anr. v. State of Madhya Pradesh - 2008 (10)  

SCC 69, Krishan Kumar Malik v. State of Haryana -  

2011(7) SCC 130 and Ashok Kumar v. State of Haryana -  

2003 (2) SCC 143.   

7.     Having heard learned counsel for the appellants as well  

as the State counsel and having perused the relevant papers  

on record as well as the judgments of the courts below, we  

feel it appropriate to refer to the various contradictions  

pointed out by the learned counsel for the appellants and  

the inconsistencies in the case of the prosecution as  

projected in the FIR as sought to be demonstrated before the  

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Court in the form of oral and medical evidence.  To  

recapitulate the case of the prosecution as projected in the  

FIR, on the night of 15.08.2001 at about 1.30 a.m., PW-4,  

the prosecutrix aged about 34 years, a married woman, who  

was staying in her sister’s house, heard knocking of the door  

and that when she opened the door along with her niece  

Noju (PW-10) who was a minor girl,  the accused alleged to  

have forcibly entered the house and demanded sex from the  

prosecutrix which she refused and the appellants forced  

themselves on her one after another after pushing her  

nephew Jitender (PW-11) and niece Noju (PW-10) inside a  

room and bolting it from outside, and that one of the  

accused kept vigil on the main door while the other had  

forcible sexual intercourse with her in turn.  It was also  

alleged that after committing the offence and after wiping  

their private parts with a red colour socks lying in the  

verandah and while leaving the place of occurrence they  

stealthily removed a gold chain and a wrist watch and also  

bolted the door from outside.  According to the prosecution,  

the appellant in Criminal Appeal No. 2486 of 2009 was  

apprehended in the first instance and based on the  

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admissible portion of his confession, the gold chain and  

wrist watch were recovered and based on his disclosure the  

appellant in Criminal Appeal No. 2487 of 2009 was also  

arrested.   

8. Keeping the above basic features of the offence alleged  

against the appellants in mind, when we make reference to  

the evidence of the so called ‘sterling witness’  of the  

prosecution, namely, the prosecutrix, according to her  

version in the chief examination when the persons who  

knocked at the door, were enquired they claimed that they  

were from the crime branch which was not mentioned in the  

FIR.  She further deposed that they made a statement that  

they had come there to commit theft and that they snatched  

the chain which she was wearing and also the watch from  

Jitender (PW-11).  While in the complaint, the accused  

alleged to have stealthily taken the gold chain and wrist  

watch which were lying near the T.V.  It was further alleged  

that the appellant in Criminal Appeal No.2486 of 2009 was  

having a knife in his hand which statement was not found in  

the complaint.  After referring to the alleged forcible  

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intercourse by both the appellants she stated that she  

cleaned herself with the red colour socks which was taken  

into possession under Exhibit PW-4/B in the hospital,  

whereas, Exhibit PW-4/B states that the recovery was at the  

place of occurrence. The police stated to have apprehended  

the appellants at the instance of Jitender (PW-11) who knew  

the appellant in Criminal Appeal No.2486 of 2009 even prior  

to the incident, that Jitender (PW-11) also revealed the name  

of the said accused to her and that, therefore, she was able  

to name him in her complaint.  When the seized watch was  

shown to her in the Court, the brand name of which was  

OMEX, she stated that the said watch was not worn by her  

nephew Jitender (PW-11) as it was stated to be ‘TITAN’ and  

the chain was a gold chain having no pendant.  She made it  

clear that that was not the chain which she was wearing and  

that it did not belong to her and that the watch found in the  

same parcel which was a women’s watch was not the one  

which was worn by Jitender (PW-11).

9. All the above versions were found in the chief  

examination of the prosecutrix (PW-4).  In her cross  

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examination, there was a U-turn in the version of the  

prosecutrix where she went to the extent of stating that she  

never knew the appellant in Criminal Appeal No.2486 of  

2009 prior to the incident and that she was not aware that  

accused Rai Sandeep was also known as Deepu,  that she  

never stated before the police that Jitender (PW-11) knew  

Deepu prior to the incident or at the time of incident, that  

since it was dark on the date of occurrence, she could not  

indentify the accused, that her statement of orally identifying  

the accused was at the instance of the police.  When the  

learned APP wanted to cross examine her, the same was  

declined by the crime Court and there was also no re-

examination of the prosecutrix (PW-4).   

10. Keeping aside the version of PW-4, the prosecutrix,  

when we examine the so-called eye witnesses Noju (PW-10)  

and Jitender (PW-11), their version is much more revealing.  

Noju (PW-10) is the niece of the prosecutrix (PW-4), daughter  

of prosecutrix (PW-4)’s sister, who was 10 years old at the  

time of examination. Before recording her evidence, with a  

view to test the capacity of the witness to depose before the  

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Court, the Court questioned her about her blood relations,  

education and as to whether one should speak the truth or  

lie and on being satisfied, PW-10 was questioned. The trial  

Court,  after  scrutinizing the replies and noting that the girl  

child was answering the questions in a rationale manner  

found her to be a competent witness.  Thereafter when she  

was asked to identity the accused, she made it clear that  

they were not the persons.  The witness further deposed that  

prosecutrix (PW-4) is her aunt, that in the year 2001 when  

she was sleeping in the house she did not know as to what  

happened or as to anything happened at all.  Learned  

counsel with the permission of the Court, cross examined  

the said witness when she deposed that two persons never  

entered her home or ever confined her or anybody else in  

any room nor they threatened anybody. She also deposed  

that their house was not bolted from outside and her brother  

did not open the door from outside.  

11. Jitender (PW-11) who was 20 years old at the time of  

his examination stated in his chief examination that 3 years  

prior to the date of his examination in the month of August,  

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he was sleeping on the roof top, that he saw two persons  

quarrelling with his aunt, that he raised a hue and cry, that  

thereafter both the persons ran away and that nothing else  

happened.  He also stated that he did not come down at all.  

He totally denied the sequence of events as alleged in the  

complaint and as narrated by PW-4 in her evidence.

12. Apart from the above version of the prosecution  

witnesses, when reference is made to the medical report  

relating to the prosecutrix as per Annexure P-4, there was an  

injury of abrasion on right side neck below her jaw and that  

there was no other injury either in the breast or her thighs.  

The hymen was torn old, that there was no injury on the  

valva and that there was no bleeding in her vagina.  In the  

FSL report Exhibit PW-14/N, it is stated that there was no  

semen detected on the red colour socks.  However, human  

semen was detected on the petticoat. But there was no  

matching of the blood group noted on the petticoat vis-à-vis  

the blood group of the accused.   

13. Keeping the above evidence available on record, when  

we analyze the case of the prosecution as projected, we find  

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that apart from the total prevaricating statement of the  

prosecutrix herself in her oral version before the Court, the  

other two witnesses PWs10 and 11 who were none other  

then her niece and nephew not supported the story of the  

prosecution. Leaving aside the version of the prosecutrix, we  

wonder why Noju (PW-10), a minor girl child should at all  

make a statement totally conflicting with the case of the  

prosecution.  The prosecutrix being her maternal aunt, there  

is no reason for her to spin a different story and let her  

down. Going by her version, the accused persons were never  

seen in her house on the date of occurrence.  She being  

minor child, the trial court ascertained her capability to  

depose as a witness.  When we examine the nature of  

queries made by the learned trial Judge to the said witness,  

we find that her replies were all cogent and she knew for  

what purpose she was standing before the Court. She was  

very much aware that she should not utter any falsehood.  

The Court was, therefore, convinced of her composure and  

only thereafter proceeded to record her statement.  The  

Court itself pointed out the accused present before the Court  

and asked her as to whether they were present in her house  

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on the date of incident, to which she replied without any  

hesitation and deposed that they were not present.  She  

went one step ahead and made it clear that on that night  

nothing happened at all.  Again her brother Jitender (PW-11)  

stated that he heard two persons quarrelling with his aunt.  

He also made it clear that apart from the said quarrel and on  

his making a hue and cry both of them ran away and  

nothing else happened.   

14. The other discrepancies which are to be mentioned are  

the categorical statement of the prosecutrix (PW-4) herself  

that after the alleged forcible sexual intercourse by both the  

accused, she wiped of her private parts with a red colour  

socks which was lying in the house, though at another place  

it was stated that both the accused used the red colour  

socks to wipe of their private parts after the commission of  

the offence.  Assuming both the versions to be true, we find  

that the red colour socks sent for chemical examination  

revealed that it did not contain any semblance of semen in it  

as per the FSL report Exhibit PW- 14/N. It was also pointed  

out that while according to her the socks was handed over to  

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the police in the hospital when the petticoat and the socks  

were seized from her, according to the seizure memo the  

socks was recovered from the place of occurrence.  She was  

a married woman and except the semen found in the  

petticoat, there is no other reliable evidence for implicating  

the accused-appellants to the crime alleged against them. In  

this background, when we refer to the oral version of the  

prosecutrix (PW-4), as pointed out by learned counsel for the  

appellant, very many facts which were not found in her  

original statement were revealed for the first time before the  

Court.

15. In our considered opinion, the ‘sterling witness’ should  

be of a very high quality and caliber whose version should,  

therefore, be unassailable. The Court considering the version  

of such witness should be in a position to accept it for its  

face value without any hesitation. To test the quality of such  

a witness, the status of the witness would be immaterial and  

what would be relevant is the truthfulness of the statement  

made by such a witness. What would be more relevant would  

be the consistency of the statement right from the starting  

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point till the end, namely, at the time when the witness  

makes the initial statement and  ultimately before the Court.  

It should be natural and consistent with the case of the  

prosecution qua the accused. There should not be any  

prevarication in the version of such a witness.  The witness  

should be in a position to withstand the cross-examination  

of any length and howsoever strenuous it may be and under  

no circumstance should give room for any doubt as to the  

factum of the occurrence, the persons involved, as well as,  

the sequence of it. Such a version should have co-relation  

with each and everyone of other supporting material such as  

the recoveries made, the weapons used, the manner of  

offence committed, the scientific evidence and the expert  

opinion. The said version should consistently match with the  

version of every other witness.  It can even be stated that it  

should be akin to the test applied in the case of  

circumstantial evidence where there should not be any  

missing link in the chain of circumstances to hold the  

accused guilty of the offence alleged against him. Only if the  

version of such a witness qualifies the above test as well as  

all other similar such tests to be applied, it can be held that  

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such a witness can be called as a ‘sterling witness’  whose  

version can be accepted by the Court without any  

corroboration and based on which the guilty can be  

punished. To be more precise, the version of the said witness  

on the core spectrum of the crime should remain intact while  

all other attendant materials, namely, oral, documentary  

and material objects should match the said version in  

material particulars in order to enable the Court trying the  

offence to rely on the core version to sieve the other  

supporting materials for holding the offender guilty of the  

charge alleged.

16. In the anvil of the above principles, when we test the  

version of PW-4, the prosecutrix, it is unfortunate that the  

said witness has failed to pass any of the tests mentioned  

above. There is total variation in her version from what was  

stated in the complaint and what was deposed before the  

Court at the time of trial. There are material variations as  

regards the identification of the accused persons, as well as,  

the manner in which the occurrence took place.  The so-

called eye witnesses did not support the story of the  

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prosecution. The recoveries failed to tally with the  

statements made. The FSL report did not co-relate the  

version alleged and thus the prosecutrix failed to instill the  

required confidence of the Court in order to confirm the  

conviction imposed on the appellants.

17. With the above slippery evidence on record against the  

appellants when we apply the law on the subject, in the  

decision reported in State of Punjab v. Gurmit Singh &  

Ors. (supra), this Court was considering the case of sexual  

assault on an young girl below 16 years of age who hailed  

from a village and was a student of 10th standard in the  

Government High School and that when she was returning  

back to her house she was kidnapped by three persons.  The  

victim was stated to have been taken to a tubewell shed of  

one of the accused where she was made to drink alcohol and  

thereafter gang raped under the threat of murder.

18. The prosecutrix in that case maintained the allegation  

of kidnapping as well as gang rape.  However, when she was  

not able to refer to the make of the car and its colour in  

which she was kidnapped and that she did not raise any  

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alarm, as well as, the delay in the lodging of the FIR, this  

Court held that those were all circumstances which could  

not be adversely attributed to a minor girl belonging to the  

poor section of the society and on that score, her version  

about the offence alleged against the accused could not be  

doubted so long as her version of the offence of alleged  

kidnapping and gang rape was consistent in her evidence.  

We, therefore, do not find any scope to apply whatever is  

stated in the said decision which was peculiar to the facts of  

that case, to be applied to the case on hand.

19. In the decision reported in Ashok Kumar v. State of  

Haryana (supra), this court while dealing with the offence  

under Section 376 (2) (g) IPC read with explanation held as  

under in Para 8:

“8.Charge against the appellant is under  Section 376(2)(g) IPC. In order to establish an  offence under Section 376(2)(g) IPC, read with  Explanation I thereto, the prosecution must  adduce evidence to indicate that more than one  accused had acted in concert and in such an  event, if rape had been committed by even one, all  the accused will be guilty irrespective of the fact  that she had been raped by one or more of them  and it is not necessary for the prosecution to  adduce evidence of a completed act of rape by each  one of the accused. In other words, this provision  

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embodies a principle of joint liability and the  essence of that liability is the existence of common  intention; that common intention presupposes  prior concert which may be determined from the  conduct of offenders revealed during the course of  action and it could arise and be formed suddenly,  but, there must be meeting of minds. It is not  enough to have the same intention independently  of each of the offenders. In such cases, there must  be criminal sharing marking out a certain measure  of jointness in the commission of offence.”

20.   Applying the above principle to the case on hand, we  

find that except the ipse-dixit of the prosecutrix that too in  

her chief examination, with various additions and total  

somersault in the cross  examination  with  no  support  at  

all  at  the  instance  of her niece and nephew who according  

to her were present in the house at the time of occurrence,  

as well as, the FSL report which disclosed the absence of  

semen in the socks which was stated to have been used by  

the accused as well as the prosecutrix to wipe of semen,  

apart from various other discrepancies in the matter of  

recoveries, namely, that while according to the prosecutrix  

the watch snatched away by the accused was ‘Titan’  while  

what was recovered was ‘Omex’ watch,  and the chain which  

was alleged to have been recovered at the instance of the  

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accused admittedly was not the one stolen, all the above  

factors do not convincingly rope in the accused to the alleged  

offence of ‘gang rape’  on the date and time alleged in the  

chargesheet.

21. In the decision reported as State of Himachal  

Pradesh v. Asha Ram - AIR 2006 SC 381, this Court  

highlighted the importance to be given to the testimony of  

the prosecutrix as under in para 5:

5. ………………………..It is now well-settled  principle of law that conviction can be founded on  the testimony of the prosecutrix alone unless there  are compelling reasons for seeking corroboration.  The evidence of a prosecutrix is more reliable than  that of an injured witness. The testimony of the  victim of sexual assault is vital, unless there are  compelling reasons which necessitate looking for  corroboration of her statement, the courts should  find no difficulty in acting on the testimony of a  victim of sexual assault alone to convict an  accused where     her     testimony     inspires     confidence    and     is     found     to     be     reliable  . It is also a well-settled  principle of law that 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 the given  circumstances. The evidence of the prosecutrix is  more reliable than that of an injured witness. Even  minor     contradictions     or     insignificant     discrepancies    in     the     statement     of     the     prosecutrix     should     not     be     a    ground     for     throwing     out     an     otherwise     reliable    prosecution     case  .”

      (emphasis added)

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22. That was a case where the father alleged to have  

committed the offence of rape on one of his daughters who  

was staying with him while his wife was living separately due  

to estranged relationship.  While dealing with the said case,  

where the prosecutrix, namely, the daughter, apart from the  

complaint lodged by her, maintained her allegation against  

her father in the Court as well.  This Court held that the  

version of the prosecutrix in the facts and circumstances of  

that case merited acceptance without any corroboration,  

inasmuch as, the evidence of rape victim is more reliable  

even that of an injured witness.  It was also laid down that  

minor contradictions and discrepancies are insignificant and  

immaterial in the case of the prosecutrix can be ignored.  As  

compared to the case on hand, we find that apart from the  

prosecutrix not supporting her own version, the other oral as  

well as forensic evidence also do not support the case of the  

prosecution.  There were material contradictions leave alone  

lack of corroboration in the evidence of the prosecutrix. It  

cannot be said that since the prosecutrix was examined after  

two years there could be variation.  Even while giving  

allowance for the time gap in the recording of her deposition,  

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she would not have come forward with a version totally  

conflicting with what she stated in her complaint, especially  

when she was the victim of the alleged brutal onslaught on  

her by two men that too against her wish. In such  

circumstances, it will be highly dangerous to rely on such  

version of the prosecutrix in order to support the case of the  

prosecution.

23. In the decision reported as Lalliram & Anr. v. State  

of Madhya Pradesh (supra) in regard to an offence of gang  

rape falling under Section 376 (2) (g) this Court laid down  

the principles as under in paras 11 and 12:

“11. It is true that injury is not a sine qua  non for deciding whether rape has been committed.  But it has to be decided on the factual matrix of  each case. As was observed by this Court in Pratap  Misra v. State of Orissa where allegation is of rape  by many persons and several times but no injury is  noticed that certainly is an important factor and if  the prosecutrix's version is credible, then no  corroboration is necessary. But if the prosecutrix's  version is not credible then there would be need for  corroboration. (See Aman Kumar v. State of  Haryana.)

12.     As     rightly     contended     by     learned     counsel    for     the     appellants,     a     decision     has     to     be    considered     in     the     background     of     the     factual    scenario. In criminal cases the question of a  precedent particularly relating to appreciation of  evidence is really of no consequence. In Aman  

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Kumar case it was observed that a prosecutrix  complaining of having been a victim of the offence  of rape is not an accomplice. There is no rule of  law that her testimony cannot be acted upon  without corroboration in material particulars.  She stands on a higher pedestal than the injured  witness. In the latter case there is injury in the  physical form while in the former both physical  as well as psychological and emotional. However,  if     the     court     finds     it     difficult     to     accept     the     version    of     a     prosecutrix     on     the     face     value,     it     may     search    for     evidence     direct     or     circumstantial  .”

         (emphasis added)

24. When we apply the above principles to the case on  

hand, we find the prevaricating statements of the prosecutrix  

herself in the implication of the accused to the alleged  

offence of gang rape.  There is evidence on record that there  

was no injury on the breast or the thighs of the prosecutrix  

and only a minor abrasion on the right side neck below jaw  

was noted while according to the prosecutrix’s original  

version, the appellants had forcible sexual intercourse one  

after the other against her.  If that was so, it is hard to  

believe that there was no other injury on the private parts of  

the prosecutrix as highlighted in the said decision.  When on  

the face value the evidence is found to be defective, the  

attendant circumstances and other evidence have to be  

necessarily examined to see whether the allegation of gang  

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rape was true.  Unfortunately, the version of the so called  

eye witnesses to at least the initial part of the crime has not  

supported the story of the prosecution.  The attendant  

circumstances also do not co-relate to the offence alleged  

against the appellants.  Therefore, in the absence of proper  

corroboration of the prosecution version to the alleged  

offence, it will be unsafe to sustain the case of the  

prosecution.

25. In the decision reported as Krishan Kumar Malik v.  

State of Haryana (supra) in respect of the offence of gang  

rape under Section 376 (2) (g), IPC, it has been held as under  

in paras 31 and 32:

“31. No doubt, it is true that to hold an  accused guilty for commission of an offence of  rape, the solitary evidence of the prosecutrix is  sufficient     provided     the     same     inspires     confidence    and     appears     to     be     absolutely     trustworthy,    unblemished     and     should     be     of     sterling     quality.    But,     in     the     case     in     hand,     the     evidence     of     the    prosecutrix,     showing     several     lacunae,     which     have    already     been     projected     hereinabove,   would go to  show that her evidence does not fall in that  category and cannot be relied upon to hold the  appellant guilty of the said offences.

32. Indeed there are several significant  variations in material facts in her Section 164  statement, Section 161 statement (CrPC), FIR and  

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deposition in court. Thus, it was necessary to get  her evidence corroborated independently, which  they could have done either by examination of  Ritu, her sister or Bimla Devi, who were present in  the house at the time of her alleged abduction.  The record shows that Bimla Devi though cited as  a witness was not examined and later given up by  the public prosecutor on the ground that she has  been won over by the appellant.”

        (emphasis  added)

26. Applying the said principles to the facts of the case on  

hand, we find that the solitary version of the chief  

examination of PW-4, the prosecutrix cannot be taken as  

gospel truth for its face value and in the absence of any  

other supporting evidence, there is no scope to sustain the  

conviction and sentence imposed on the appellants.   

27. The prosecution has miserably failed to establish the  

guilt of gang rape falling under Section 376 (2) (g), IPC  

against the appellants. The conviction and sentence imposed  

on the appellants by the trial Court and confirmed by the  

impugned order of the High Court cannot, therefore, be  

sustained.  The appeals are allowed.  The judgment and  

order of conviction and sentence passed by the trial Court  

and confirmed by the High Court are hereby set aside.  The  

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appellants are acquitted of all the charges and they be set at  

liberty forthwith, if not required in any other case.

   …..……….…………………………...J. [Swatanter Kumar]

…………….……………………………… J.

            [Fakkir Mohamed Ibrahim  Kalifulla]

New Delhi; August  7, 2012

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