VIJAY @ CHINEEversusSTATE OF MADHYA PRADESH

                       [2010] 8 S.C.R. 1150


A                        VIJAY @ CHINEE
                                 v.
                 STAiE OF MADHYA PRADESH
                (Criminal Appeal No. 660 of 2008)
                          JULY 27, 2010
B
        [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]

       Penal Code, 1860 - s. 376(g) - Commission of gang
  rape by appellant and others - Conviction and sentence u/s.
c 376134 by courts below, as regard appellant - Justification of
  - Held: Justified - Statement of the doctor that at the relevant
  time, prosecutrix was a minor - Consistent statement of
  prosecutrix that intercourse was against her wishes, she was
  forcibly caught, threatened and thereafter, subjected to gang
D rape - Place and incident of occurrence not disputed -
  Discrepancies in the statement of prosecutrix and evidence
  on record immaterial - Failure to hold test identification
  parade - Effect of.

       According to the prosecution case, the appellant and
E others committed gang rape of the victim. Thereupon, a
  case for offence punishable u/s. 376134 IPC was
  registered. The prosecutrix was medically examined. The
  appellant and the other accused were arrested. The
  investigation was carried out. The trial court convicted
F the appellant and the other accused u/s. 376/34 IPC and
  sentenced them to undergo 10 years' rigorous
  imprisonment along with fine of Rs. 5001-. The High Court
  upheld the conviction of the appellant and co-accused R.
  Accused A died during the pendency of the appeal. The
G remaining four accused were acquitted. Therefore, the
  appellant filed the instant appeal.
        Dismissing the appeal, the Court
        HELD: 1. The statement of prosecutrix, if found to be
H                           1150
VIJAY@ CHINEE v. STATE OF MADHYA PRADESH 1151

            .                              .
worthy of credence and reliable,· requires no                 A
corroboration. The court may convict the accused on the
sole testimony of the prosecutrix. [Para 15) (1164-F-H]
     State· of Maharashtra vs. Chandraprakash Kewa/chand
Jain AIR 1990 SC 658; State of UP. vs. Pappu @Yunus and
Anr. AIR 2005 SC 1248; State of Punjab vs. Gurmit Singh       8
and Ors. AIR 1996 SC 1393; State of Orissa vs. Thakara
Besra and Anr. AIR 2002 SC 1963; State of Himacha/
Pradesh vs. Raghubir Singh (1993) 2 SCC 622; Wahid Khan
vs. State of Madhya Pradesh (2010) 2 SCC 9; Rameshwar
vs. State of Rajasthan AIR 1952 SC 54, relied on.             C
     2. The Test Identification Parade is a part of the
investigation and is very useful in a case where the
accused are not known. before hand to the witnesses.
Holding of the Test Identification Parade is not a D
substantive piece of evidence, yet it may be used for the
purpose of corroboration; for believing that a person
brought before the court is the real person involved in the
commission of the crime.. However, the Test Identification
Parade, even if held, cannot be considered in all the E
cases as trustworthy. evidenc.e on which the conviction
of the accused can be sustained. It is a rule of prudence
Which is required to be followed in cases where the
accused is not known to. the witness or the complainant.
The actual evidence is what is given .by. the witnesses in
the 'Court. [Paras 16 and 19) (1164-G-H; 1165-A-B; 1166- F
DJ
                    .   .   ,                   .       .

     State of H.P. vs. Lekh Raj AIR 1999 SC 3916; Ma/khan
Singh vs. State of MP. AIR 2003 SC 2669; Mui/a and Anr.
vs. State of Uttar Pradesh (2010) 3 SCC 508; Matru @ Girish   G
Chandra vs. The State of Uttar Pradesh AIR 1971 SC 1050;
Santokh Singh vs. lzhar Hussain andAnr. AIR 1973 SC 2190,
relied on.
     3.1. Even if there are some omissions, contradictions
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    1152   SUPREME COURT REPORTS             [2010] 8 S.C.R


A and discrepancies, the entire evidence cannot be
  disregarded. After exercising care and caution and sifting
  the evidence to separate truth from untruth, exaggeration
  and improvements, the court comes to a conclusion as
  to whether the residuary evidence is sufficient to convict
B the accused. Thus, an undue importance should not be
  attached to omissions, contradictions and discrepancies
  which do not go to the heart of the matter and shake the
  basic version of the prosecution witness. As the mental
  capabilities of a human being cannot be expected to be
C attuned to absorb all the details, minor discrepancies are
  bound to occur in the statements of witnesses. [Para 24)
  (1169-C-F)
       Sohrab and Anr. vs. The State of M.P. AIR 1972 SC
  2020; Bharwada Bhogini Bhai Hirji Bhai vs. State of Gujarat
D AIR 1983 SC 753; Prithu@ Prithi Chand and Anr. vs. State
  of Himachal Pradesh (2009) 11 SCC 588; State of U. P. vs.
  Santosh Kumar and Ors. (2009) 9 sec 626, relied on.


       3.2. The evidence of the witnesses must be read as
E 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
F to reject the evidence as a whole. [Para 25) [1168-G-H]
         State of Rajasthan vs. Om Prakash AIR 2007 SC 2257;
    State of UP. vs. M.K. Anthony AIR 1985 SC 48; State vs.
    Saravanan and Anr. AIR 2009 SC 152, relied on.
G       4. The absence of injury or mark of violence on the
    private part on the person of the prosecutrix is of no
    consequence when the prosecutrix is minor and would
    merely suggest want of violent resistance on the part of
    the prosecutrix. (Para 26) (1168-G-H]
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VIJAY@ CHINEE v. STATE OF MADHYA PRADESH 1153


    Gurcharan Singh vs. State of Haryana AIR 1972 SC            A
2661; Oevinder Singh and Ors. vs. State of Himanchal
Pradesh AIR 2003 SC 3365, relied on.

    5. The age of a person can be determined by
examining the teeth (Dental Age), Height, Weight, General       B
appearance (minor signs) i.e. secondary sex c:-iaracters,
ossification of bones and producing the birth and death/
school registers etc. [Para 28] [1169-F-G]
    Modi's Medical Jurisprudence and Toxicology, 23rd
Edn., referred to.                                              C
     6. A person coming from altogether different
background and having no education may not be able
to give a precise account of the incident. However, that
cannot be a ground to reject his testimony. In rape cases,
it is impossible to lay down with precision the chain of        D
events, more particularly, when illiterate villagers with no
sense of time are involved. [Para 31] [1171-C-D]
    Dimple Gupta (minor) vs. Rajiv Gupta (2007) 10 SCC
30; Virendra @ Buddhu and Anr. vs. State of UP. (2008)          E
16 sec 582, referred to.
    7.1. As the statement of PW 3-doctor who examined
the prosecutrix makes it clear that at the relevant time the
prosecutrix had very little developed breast and the
growth of her armpit hair was at its initial/first stage, the   F
court believed that she was below 16 years of age. The
prosecutrix stated in her deposition that she was sent
for a Radiological Test to place J and she could not
explain as to why the report of the Radiological Test
could not be produced before the trial court. The               G
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. There is nothing on record to show
that the defence had put any such question to the 1.0.          H
    1154    SUPREME COURT REPORTS              [2010] 8 S.C.R.

A   during his examination before the trial court. The 1.0. 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 the case, no
    adverse inference could be drawn against the
B   prosecution in the said issue. More so, the prosecution
    had no control over prosecuting agency. The position for
    not holding the Test Identification Parade in this regard
    is the same. [Para 32] [1171-H; 1172-A-D]
       7 .2. Under s. 114-A of the Evidence Act, 1872,
C inserted by 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
D that she did not consent, the court shall presume that she
  did not consent. In the instant case, 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
E threatened and thereafter, she had been subjected to
  gang rape. The courts below reached the correct
  conclusion that the prosecutrix was a minor. There is
  nothing on record to establish the consent of the
  prosecutrix. [Paras 34 and 35] [1172-G-H; 1173-A-B]
F      7.3. 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
G disprove the statement of the prosecutrix that the
  appellant and others took her behind the RaiJway School
  and when she cried out, one of the accused showed her
  a knife and in the meanwhile, accused, the appellant
  pressed her mouth and raped her. Thereafter, the other
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VIJAY @ CHINEE v. STATE OF MADHYA PRADESH 1155


accused persons raped her turn by turn and all of them         A
ran away when the police reached there. [Para 36] [1173~
C-0]
     7.4. The contradictions, inconsistencies and
discrepancies between the statement of the prosecutrix
and the ether evidence on record are immaterial for the 8
reason that the trial court as well as the High Court
considered these aspects and came to the conclusion
that none of those contradictions goes to the root of the
case. The prosecutrix was at the place of the incident and
the appellant and other accused had intercourse with her. C
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 D
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.
[Paras 38 and 40] [1174-A-C; 1175-A]
    Sunil vs. State of Haryana (2010) 1 SCC 742; Sukhwant      E
Singh vs. State of Punjab (1995) 3 SCC 367, distinguished.

     7.5. An illiterate rustic village girl having no sense/
estimate/assessment of time and place, found herself
apprehended by the appellant and his accomplices and           F
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 conduct of the prosecutrix cannot be held to       G
be unnatural. [Para 44] [1176-C-D]
    7 .6. 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 was
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    1156    SUPREME COURT REPORTS              (2010] 8 S.C.R.


A   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 were
    not known to the prosecutrix. No reason could be there
B   for which the prosecutrix would have enroped them
    falsely. 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. There is nd material on record on the basis
    of which, a different view or conclusion from that of the
c   courts below could be taken. [Paras 45 and 46] [1176-E-
    G]
                        Case Law Reference:

D        AIR 1990 SC 658          Relied on.         Para 9
         AIR 2005 SC 1248         Relied on.         Para 10
         AIR 1996 SC 1393         Relied on.         Para 11
         AIR 2002 SC 1963         Relied on.          Para 12
E
         (1993) 2 sec 622         Relied on.         Para 13
         (201 O) 2 sec 9          Relied on.          Para 14
         AIR 1952 SC 54           Relied on.          Para 14
F        AIR 1999 SC 3916         Relied on.          Para 16
         AIR 2003 SC 2669         Relied on.          Para 17
         (201 o) 3 sec 508        Relied on.          Para 18

G        AIR 1971 SC 1050         Relied on.          Para 18
         AIR 1973 SC 2190         Relied on.          Para 18
         AIR 2007 SC 2257         Relied on.          Para 21
         AIR 1985 SC 48           Relied on.          Para 22
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VIJAY@ CHINEE v. STATE OF MADHYA PRADESH1157


    AIR 2009 SC 152            Relied on.          Para 23     A

    AIR 1972 SC 2020           Relied on.          Para 24

    AIR 1983 SC 753            Relied on.          Para 24
    (2009) 11 sec 588          Relied on.          Para 24
                                                               B
    (2009) 9 sec 626           Relied on.          Para 24

    AIR 1972 SC 2661           Relied on.          Para 26

    AIR 2003 SC 3365           Relied on.          Para 27
                                                               c
    (2007) 1o sec 30           Referred to.        Para 31

    (2008) 16 sec 582          Referred to.        Para 31

    (2010) 1 sec 742           Distinguished.      Para 41

    (1995) 3 sec 367           Distinguished.      Para 41     D

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 660 of 2008.

    From the Judgment & Order dated 5.9.2006 of the High
                                                               E
Court of Madhya Pradesh at Jabalpur in Criminal Appeal No.
15 of 1991.

      Anip Sachthey Mohit Paul, Shagun Matta, Sharin Danial
for the Appellant.
                                                               F
    Siddhartha Dave, Vibha Datta Makhija for the Respondent.

    The Judgment of the Court was delivered by

    DR. 8.S. CHAUHAN, J. 1. This appeal has been
preferred against the judgment and order dated 5.9.2006        G
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        H
    1158    SUPREME COURT REPORTS                   (2010] 8 S.C.R


A   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
B   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 I~ was
c   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
0
    7.12.1988 and subjected to medical tests along with the other
    accused on .8.12.1988. After the completion of the
    investigatron, the police filed a charge sheet against the
    appellant and six others. As they denied the charges, refute~
E   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
F   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
G 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
H
  VIJAY @ CHINEE v. STATE OF MADHYA PRADESH1159
              [DR. B.S. CHAUHAN, J.]

 Court acquitted the remaining        four accused.     Hence, this      A
 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                 B
  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          C
  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 bf 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      D
  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           E
  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 th~ State F
 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 the
 investigation or the prosecution case. The non-existence of any G
 injury on the person of the prosecutrix cannot be a ground to
 dis-believe her version. The prosecutrix had such a social
 background that she did not have any sense of time, duration
 etc. and, thus, she was not able to give a precise account of
 each activity of the incident. She had lost her father; and was
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    1160    SUPREME COURT REPORTS                 [2010] 8 S.C.R.


A   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
B   appeal lacks merit and is liable to dismissed.

        7. We have considered the rival submissions made by
    learned counsel for the partjes and perused the record.

       8. Before we proceed to examine the impugned judgments
C 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:

D Sole Evidence of Prosecutrix :

       9. In State of Maharashtra Vs. Chandraprakash
  Kewalchand Jain AIR 1990 SC 658, this Court held that a
  woman, who is the victim of sexual assault, is not an accomplice
E 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
F
        an accomplice. She is in fact a victim of the crime. The
        Evidence Act nowhere says that her evidence cannot be
        accepted unless it is corroborated in material particulars.
        She is undoubtedly a competent witness under Section
        118 and her evidence must receive the same weight as
G       is attached to an injured in cases of physical violence. The
        same degree of care and caution must attach in the
        evaluation of her evidence as in the case of an injured
        complainant or witness and no more. What is necessary
        is that the ~ourt must be alive to and conscious of the fact
H
VI.JAY@ CHINEE v. STATE OF MADHYA PRADESH1161
            [DR. B.S. CHAUHAN, J.]

     that it is dealing with the evidence of a person who is            A
     interested in the outcome of the charge levelled by her. If
     the court keeps this in mind and feels satisfied that it can
     act on the evidence of the prosecutrix, there is no rule of
     law or practice incorporated in the Evidence Act similar
     to illustration (b) to Section 114 which requires it to look       B
     for corroboration. If for some reason the court is hesitant
     to place implicit reliance on the testimony of the prosecutrix
     it may look for evidence which may lend assurance to her
     testimony short of corroboration required in the case of an
     accomplice. The nature of evidence required to lend                c
     assurance to the testimony of the prosecutrix must
     necessarily depend on the facts and circumstances of
     each case. But if a prosecutrix is an adult and of full
     understanding the court is entitled to base a conviction on
     her evidence unless the same is shown to be infirm and             D
     not trustworthy. If the totality of the circumstances appearing
     on the record of the case disclose that the prosecutrix does
     not have a strong motive to falsely involve the person
     charged, the court should ordinarily have no hesitation in
     accepting her evidence."
                                                                        E
      10. In State of UP. Vs. Pappu @Yunus & Anr AIR 2005
SC 1248, this Court held that even in a case where it is shown
that the girl is a girl of easy virtue or a girl habituated to sexual
intercourse, it may not be a ground to absolve the accused from
the charge of rape. It has to be established that there was             F
consent by her for that particular occasion. Absence of injury
on the prosecutrix may not be a factor that leads the court to
absolve the accused. This Court further held that there can be
conviction on the sole testimony of the prosecutrix and in case,
the court is not satisfied with the versico1 of the prosecutrix, it     G
can seek other evidence, 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
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    1162      SUPREME COURT REPORTS                  [201 O] 8 S.C.R.


A       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
B       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
c       testimony. Assurance, short of corroboration as
        understood in the context of an accomplice, would do."

         11. In State of Punjab Vs. Gurmit Singh & Ors. AIR 1996
    SC 1393, this Court held that in cases involving sexual
    harassment, molestation etc. the court is duty bound to deal with
D   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 otherwise reliable
    prosecution case. Evidence of the victim of sexual assault is
    enough for conviction and it does not require any corroboration
E   unless there are compelling reasons for seeking corroboration.
    The court may look for some assurances of her statement to
    satisfy judicial conscience. The statement of the prosecutrix
    is more reliable than that of an injured witness as she is not an
    accomplice. The Court further held that the delay in filing FIR
F   for sexual offence may not be even properly explained, but if
    found natural, the accused cannot be given any benefit thereof.
    The Court observed as under:-

           'The court overlooked the situation in which a poor helpless
           minor girl had found herself in the company of three
G
           desperate young men who were threatening her and
           preventing her from raising any alarm. Again, if the
           investigating officer did not conduct the investigation
           properly or was negligent in not being able to trace out the
           iriver or the car, how can that become a ground to
H
VIJAY@ CHINEE v. STATE OF MADHYA PRADESH1163
           [DR. 8.S. CHAUHAN, J.]

  discredit the testimony of the prosecutrix? The prosecutrix           A
  had no control over the investigating agency and the
  negligence of an investigating officer could not affect the
  credibility of the statement of the prosecutrix ............... The
  courts must, while evaluating evidence remain alive to the
  fact that in a case of rape, no self-respecting woman would           s
  come forward in a court just to make a humiliating
  statement against her honour such as is involved in the
  commission of rape on her. In cases involving sexual
  molestation, supposed considerations which have no
  material effect on the veracity of the prosecution case or            c
  even discrepancies in the statement of the prosecutrix
  should not, unless the discrepancies are such which are
  of fatal nature, be allowed to throw out an otherwise reliable
  prosecution case ............. Seeking corroboration of her
  statement before replying upon the same as a rule, in
                                                                        0
  such cases, amounts to adding insult to
  injury ............ 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 given
  circumstances.
                                                                        E
  **    **                        **                  **

  The courts should examine the broader probabilities of
  a case and not get swayed by minor contradictions or
  insignificant discrepancies in the statement of the F
  prosecutrix, which are not of a fatal nature, to throw out
  an otherwise reliable prosecution case. If evidence of the
  prosecutrix inspires confidence, it must be relied upon
  without seeking corroboration of her statement in material
  particulars. If for some reason the coc.J'rt finds it difficult G
  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
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    1164    SUPREME COURT REPORTS                  [2010) 8 S.C.R.


A       trial court must be alive to its responsibility and be
        sensitive while dealing with cases involving sexual
        molestations."

          12. In State of Orissa Vs. Thakara Besra & Anr AIR 2002
    SC 1963, this Court held that rape is not mere a physical
8
    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
C   seriaus infirmity in the prosecution case, particularly where the
    witnesses had not seen the commission of the offence.

        13. In State of Himacha/ Pradesh Vs. Raghubir Singh
    (1993) 2 SCC 622, this Court held that there is no legal
o   compulsion to look for any other evidence to corroborate the
    evidence of the prosecutrix before recording an order of
    conviction. Evidence has to be weighed and not counted.
    Conviction can be recorded on the sole testimony of the
    prosecutrix, if her evidence inspires confidence and there is
E   absence of circumstances which militate against her veracity.

         14. A similar view has been reiterated by this Court in
    Wahid Khan Vs. State of Madhya Pradesh (2010) 2 SCC 9,
    placing reliance on earlier judgment in Rameshwar Vs. State
    of Rajasthan AIR 1952 SC 54.
F
         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.
G
    Test Identification Parade:

         16. Holding of the Test Identification Parade is not a
    substantive piece of evidence, yet it may be used for the
    purpose of corroboration; for believing that a person brought
H   before the Court is the real person involved in the commission
VIJAY @ CHINEE v. STATE OF MADHYA PRADESH 1165
            [DR. B.S. CHAUHAN, J.]

of the crime. However, the Test Identification Parade, even if        A
held, cannot be considered in all the cases as trustworthy
evidence on which the conviction of the accused can be
sustained. It is a rule of prudence which is required to be
followed in cases where the accused is not known to the witness
or the complainant. (Vi de State of H.P. Vs Lekh Raj Al R 1999        B
SC 3916).

    17. In Ma/khan Singh Vs. State 'of M.P. AIR 2003 SC
2669, this Court has observed as under:

    "It is well settled that the substantive evidence is the          C
    evidence of identification in court and the test identification
    parade provides corroboration to the identification of the
    witness in court, if required. However, what weight must
    be attached to the evidence of identification in court, which
    is not preceded by a test identification parade, is a matter      D
    for the courts of fact to examine."

     18. In Mui/a & Anr Vs. State of Uttar Pradesh (2010) 3
SCC 508, this court (one of us, Hon'ble P. Sathasivam, J.)
placed reliance on Matru@Girish Chandra Vs. The State of E
Uttar Pradesh AIR 1971 SC 1050; and Santokh Singh Vs.
lzhar Hussain & Anr AIR 1973 SC 2190, wherein it had been
held that the Tests Identification Parades do not constitute
substantive evidence. They are primarily meant for the purpose
of providing the investigating agency with an assurance that
                                                                F
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 G
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.       H
    1166     SUPREME COURT REPORTS                   [2010] 8 S.C.R.


A        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
8        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 identification in Court."
c        19. 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
D   actual evidence is what is given by the witnesses in the court.

    Discrepancies and inconsistencie! in depositions of
    witnesses:

E       20. It is settled legal proposition that while appreciating the
    evidence of a witness, minor discrepancies on trivial matters,
    which do not affect the core of the prosecution case, may not
    prompt the Court to reject the evidence in its entirety.

         21. In State of Rajasthan Vs. Om Prakash AIR 2007 SC
F   2257, while dealing with a similar issue, this Court held that
    "irrelevant details which do not in any way corrode the
    credibility of a witness cannot be levelled as omissions or
    contradictions. "

G        22. In State of UP. Vs. MK. Anthony AIR 1985 SC 48,
    this Court laid down certain guidelines in this regard, which
    require to be followed by the courts in such cases. The Court
    observed as under :-

         "While appreciating the evidence of a witness, the
H
VIJAY @ CHINEE v. STATE OF MADHYA PRADESH1167
            [DR. B.S. CHAUHAN, J.]

    approach must be whether the evidence of the witness             A
    read as a whole appears to have a ring of truth. Once that
    impression is formed, it is undoubtedly necessary for the
    court to scrutinise the evidence more particularly keeping
    in view the deficiencies, draw-backs and infirmities
    pointed out in the evidence as a whole and evaluate them         B
    to find out whether it is against the general tenor of the
    evidence given by the witness and whether the earlier
    evaluation of the evidence is shaken as to render it
    unworthy of belief. Minor discrepancies on trivial matters
    not touching the core of the case, hyper-technical approach      c
    by taking sentences torn out of context here or there from
    the evidence, attaching importance to some technical error
    committed by the investigating officer not going to the root
    of the matter would not ordinarily permit rejection of the
    evidence as a whole. If the court before whom the witness        D
    gives evidence had the opportunity to form the opinion
    about the general tenor of evidence given by the witness,
    the appellate court which had not this benefit will have to
    attach due weight to the appreciation of evidence by the
    trial court and unless there are reasons weighty and
                                                                     E
    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         F
    duel between a rustic and refined lawyer."

     23. In State Vs. Saravanan & Anr. AIR 2009 SC 152, while
dealing with a similar issue, this Court observed as under :-
                                                                     G
    " ..... while appreciating the evidence of a witness, minor
    discrepancies on trivial matters without affecting the core
    of ttie 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
                                                                     H
    1168    SUPREME COURT REPORTS                     [2010) 8 S.C.R


A       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
B       detail, which does not otherwise affect the core of the
        prosecution case, even if present. that itself would not
        prompt the court to reject the evidence on minor variations
        and discrepancies."

C        24. It is settled proposition of law that even if there are
    some omissions, contradictions and discrepancies, the entire
    evidence cannot be disregarded. After exercising care and
    caution and sifting the evidence to separate truth from untruth,
    exaggeration and improvements, the court comes to a
    conclusion as to whether the residuary evidence is sufficient to
D   convict the accused. Thus, an undue importance should not be
    attached to omissions, contradictions and discrepancies which
    do not go to the heart of the matter and shake the basic version
    of the prosecution witness. As the mental capabilities of a
    human being cannot be expected to be attuned to absorb all
E   the details, minor discrepancies are bound to occur in the
    statements of witnesses (vide Sohrab & Anr Vs. The State
    of MP. AIR 1972 SC 2020; Bharwada Bhogini Bhai Hirji Bhai
     Vs. State of Gujarat AIR 1983 SC 753; Prithu@ Prithi Chand
    & Anr. Vs. State of Himachal Pradesh (2009) 11 SCC 588;
F   and State of UP. Vs. Santosh Kumar & Ors. (2009) 9 SCC
    626).

       25. Thus, in view of the above, the law on the point can be
  summarised to be that the evidence of the witnesses must be
G 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.
H
VIJAY@ CHINEE v. STATE OF MADHYA PRADESH 1169
           [DR. B.S. CHAUHAN. J]

Injury on the person of the Prosecutrix                            A

     26. In the case of Gurcharan Singh Vs. State of Haryana
AIR 1972 SC 2661. this Court has held that "the absence of
injury or mark of violence on the private part on the person
of the prosecutrix is of no consequence when the prosecutrix B
is minor and would merely suggest want of violent resistance
on the part of the prosecutrix. Further absence of violence
or stiff resistance in the present case may as well suggest
helpless, surrender to the inevitable due to sheer timidity In
any event, her consent would not take the case out of the
definition of rape"                                            C
      27. In Oevinder Singh & Ors. Vs. State of Himanchal
Pradesh AIR 2003 SC 3365, a similar issue was considered
by this Court and the court took into consideration the relevant
evidence wherein rape was alleged to have been committed D
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 E
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, F
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 G
in t1·,e present case, only a few of them are relevant.

Teeth- (Dental - Age)

    29. So far as permanent teeth are concerned, eruption
                                                                   H
    1170     SUPREME COURT REPORTS                  (2010] 8 SC R.


A   generally takes place between 6-8 years. The following table
    shows the average age of eruption of the permanent teeth :-

         Central incisors                - 6th to 8th year

         Lateral incisors                  7th to 9th year
B
        Canines                          - 11th to 12th year

        Second Molars                    - 12th to 14th year

        Third Molars or Wisdom Teeth- 17th to 25th year
c
         In total, there are 32 teeth on full eruption of permanent
    teeth.

    Secondary Sex Characters
D        30. The growth of hair appears first on the pubis and then
    in the axillae (armpits). In the adolescent stage, the
    development of the pubic hair in both sexes follows the following
    stages :-

E       (a) One of the first signs of the beginning of puberty is
        chiefly on the base of penis or along labia, when there are
        few long slightly pigmented and curled or straight downy
        hair;

        (b) The hair is coarser, darker and more curled, and
F       spread sparsely over the junction of pubis;

        (c) More or less like an adult, but only a smaller area is
        covered, no hair on the medial surface of thighs;

G        The development of the breasts in girls commences from
    13 to 14 years of age; however, it is liable to be affected by
    loose habits and social environments. During adolescence, the
    hormone flux acts and tile breasts develop through the following
    stages:

H       (i) Breasts and papilla are elevated as a small mound, and
VIJAY @ CHINEE v. STATE OF MADHYA PRADESH 1171
            [DR. B.S. CHAUHAN, J.]

    there is enlargement of areolar diameter.                        A
    (ii) More elevation and enlargement of breast and areola,
    but their contours are not separate.

    (iii) Areola and papilla project over the level of the breast.
                                                                     B
    (iv) Adult stage - only the papilla projects and the areola
    merges with the general contour of the breast.

Evidence of Rustic/ illiterate villager

     31. In Dimple Gupta (minor) Vs. Rajiv Gupta, (2007) 10 C
SCC 30, this Court held that a person coming from altogether
different background and having no education may not be able
to give a precise account of the incident. However, that cannot
be a ground to reject his testimony. The court observed that in
a case like rape, "it is impossible to lay down with precision D
the chain of events, more particularly, when illiterate villagers
with no sense of time are involved."

   A similar view has been re-iterated by this Court in Virendra
@ Buddhu & Anr. Vs. State of UP. (2008) 16 SCC 582.
                                                                     E
     32. The case requires to be considered in the light of the
aforesaid settled legal propositions.

     Shri Anip Sachthey, learned counsel for the appellant,
submitted that the prosecutrix was a major on the date of F
incident and that it was a clear case of consent. The Trial 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 G
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 H
    1172    SUPREME COURT REPORTS                   (2010] 8 S.C.R.


A 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
B 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
c record to show that the defence had put any such question to
  the 1.0. during his examination before the Trial Court. In our
  opinion, the 1.0. 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
0 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.

        33. Dr. Rupa Lalwani (PW-3) had stated that hymen of the
E prosecutrix was found completely torn and fresh blood was
  oozing out of it and she further opined that the vagina of a girl
  becomes loose even after one intercourse and two fingers can
  easily enter into her vagina. She had further opined that
  loosening of vagina and entering two fingers into vagina of a
F girl cannot give presumption that the girl was habituated to
  sexual intercourse.

       34. Under Section 114-A of the Indian Evidence Act, 1872,
  which was inserted by way of amendment in the year 1988,
G 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.
H
 VIJAY @ CHINEE v. STATE OF MADHYA PRADESH 1173
             [OR. B.S. CHAUHAN, J.]

     35. Asha @Gopi, the prosecutrix had been consistent            A
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
Cou~ts below reached the correct conclusion that the                B
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     C
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      D
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.

      37. Shri Sachthey, learned counsel for the appellant, would E
 point out the discrepancies between the statement of the
 prosecutrix and 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.
                                                                   F
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 G
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 H
    1174    SUPREME COURT REPORTS                    [2010] 8 S.C.R.


A 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
8
  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
C 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:
D
        "(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
E       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
F       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."
G         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
    prosecution's case as "the fact remains that at that time she
    was going through that area.".
H
VIJAY@ CHINEE v. STATE OF MADHYA PRADESH1175
           [DR. B.S. CHAUHAN, J.]

    40. There are concurrent findings of fact by both the courts A
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
                                                              8
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 C
acquitted. In the said case, this Court had relied upon the
                                        of
judgment in Sukhwant Singh Vs. State Punjab (1995) 3 SCC
367, wherein it has been held as under:

    " ..... failure to produce the expert opinion before the trial   D
    Court in such cases affects the creditworthiness of the
    prosecution case to a great extent."

    42. T~e 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.         E
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 :
                                                                     F
    "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        G
    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
                                                                     H
    1176    SUPREME COURT REPORTS                  (2010] 8 S.C.R.


A 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
B 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
C 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
D 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
E 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
F 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.
       46. There is no material on record on the basis of which,
G this Court may take a different view or conclusion from the
  courts below. We do not find any force in this appeal, which is
  accordingly dismissed.

    N.J.                                        Appeal dismissed.