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2001 DIGILAW 183 (HP)

DEVINDER SINGH v. STATE OF H. P.

2001-08-03

A.K.GOEL

body2001
JUDGMENT Arun Kumar Goel, J.—All these appeals are being taken up together for disposal and are being disposed by a single judgment, as they have arisen out of the same judgment passed by the learned Sessions Judge, Kinnaur Sessions Division, Rampur. By means of impugned judgment in Sessions Trial No. 10-R/1995, dated 20.2.1997, all the appellants after having found guilty of having committed offences under Sections 457, 376, 380/34 IPC have been convicted and sentenced to undergo two years rigorous imprisonment under Section 457 and pay fine of rupees one thousand each, in default of payment whereof they have been directed to undergo six months simple imprisonment; under Section 376, seven years rigorous imprisonment has been imposed upon each one of them and they have also been directed to pay fine of rupees two thousand each, in default of payment whereof, they are required to undergo simple imprisonment for one year; under Section 380 they have been sentenced to rigorous imprisonment for one year and also to pay a fine of rupees one thousand each and in default of payment whereof, they are required to undergo six months simple imprisonment. All these sentences have been ordered to run concurrently. Following the decision of Supreme Court in Bodhisattwa Gautam v. Subhra Chakrahorty, AIR 1996 SC 922, it has been directed that in the event of recovery of fine, a sum of rupees ten thousand will be paid as a compensation to the victim, Smt. Sanam Devi (PW-1), (hereinafter referred to as the prosecutrix) and balance to be deposited towards the fine. 2. With a view to properly appreciate and understand the respective contentions urged on behalf of the parties at the time of hearing of this appeal, brief facts giving rise to it need to be noted. 3. As per prosecution case, prosecutrix was staying in the house of Dharam Singh at village Akpa. She was employed in DGBR. She is living all by herself in the aforesaid rented house. According to her, on the fateful night, i.e. 20.2.1994, she heard noise outside her house and enquired as to who was there and why they were knocking her door. However, she did not open the door. She heard the persons standing outside were saying that window pane be broken and then after opening the window, they should get into the room. However, she did not open the door. She heard the persons standing outside were saying that window pane be broken and then after opening the window, they should get into the room. This is how all of them entered inside the room where the prosecutrix was standing against the door to see that it is not opened. 4. She further claims that two of the persons caught hold of her and laid her on ground. These two persons were identified by her in the court while appearing as PW-1. Thereafter she was undressed. Two of the persons committed sexual inter-course against her wishes while she was laid on the floor. Thereafter she was lifted to the bed where again this act was performed without her consent. At this point of time they lighted a match box and removed the torch from her almirah, put the cells into it and lighted it. At this juncture with the light of the torch, she could see the faces of all the accused persons. According to the prosecutrix, she told them that they have been identified by her. 5. Thereafter prosecution alleges that all of them fled away from the spot via window without saying anything. She had raised hue and cry, but no body from neighbourhood came to her rescue. Till 9 Oclock next day in the morning, she remained at home. She thought that this incident is not to be disclosed by her even to her employer. It had snowed that night. 6. However/on a second thought, she lodged a report on the third day vide daily diary report dated 26.2.1994. She was got medically examined at Murang Hospital by the police. PW-2, Dr. Lalita Negi had examined her. She had observed as under: 7. "I am posted as M.O. in PHC Moorang. On 26.2.1994, the prosecutrix Senam Devi was brought before me for her medical examination. On examination my observations are as under: On General Examination She was conscious. Pulse was 80 per minute, regular and synchronous. Blood pressure was 120/80 MM Hg. No pallor. No jaundice. No swelling. She was menstruating. Systemic Examination Chest clear. No adventitious sounds. C.V.S., S-l, S-2 normal Per abdomen = B.S. positive. Local examination Menstrual blood present. There was no stains. There was no foreign articles present. There were no injuries on any part of the body. Blood pressure was 120/80 MM Hg. No pallor. No jaundice. No swelling. She was menstruating. Systemic Examination Chest clear. No adventitious sounds. C.V.S., S-l, S-2 normal Per abdomen = B.S. positive. Local examination Menstrual blood present. There was no stains. There was no foreign articles present. There were no injuries on any part of the body. Genital area:—These was no matting of pubic hair with discharge. There were no injuries, or tenderness on genital areas. Menstrual blood was present. P.S. Examination There was no tenderness. Hymen was ruptured. Old scars present. No fresh scars or tenderness present. P.V. Examination There was no tenderness in vaginal wall and the cervicle areas. Opinion There was no evidence of recent sexual inter-course and there was no sign-of struggle. She was used to sexual inter-course. There is no evidence of sexual assault with the prosecutrix within a weeks time when I examined her." 8. Thereafter ASI Prem Chand (PW 9) investigated the matter after FIR Ex. PW6/B was registered at Police Station, Pooh, on the basis of the aforesaid daily diary report, copy whereof is Ex. PW6/A. He went to the spot on 27th February, 1994, prepared the spot maps, Exhibits PW9/A, PW9/ B and PW9/C. He took into possession shirt, Ex. PI, woolen blanket, Ex. P2 and broken string of Salvar Ex. P3 vide memo Ex. PW1/A in presence of witnesses. Pursuant to disclosure statement under Section 27 of the Evidence Act made by Jai Kumar, appellant, he claims to have recovered Torch Ex. P4 vide seizure memo, Ex. PW1/A in presence of Baldev Singh and Rajbir Singh, witnesses. The said PW9 found the building where prosecutrix was residing, was three storeyed. Its owner Dharam Singh was residing in its ground floor. According to him, disclosure was made by Jai Kumar, appellant, who got the Torch recovered. 9. After recording the statements of witnesses under Section 161 Cr.P.C. and collecting other evidence, challan was filed by the prosecution in the court of Chief Judicial Magistrate, Kinnaur. All the appellants were committed to the Court of Sessions. On examination of record, trial court came to the conclusion that there is enough material to charge sheet the appellants. 9. After recording the statements of witnesses under Section 161 Cr.P.C. and collecting other evidence, challan was filed by the prosecution in the court of Chief Judicial Magistrate, Kinnaur. All the appellants were committed to the Court of Sessions. On examination of record, trial court came to the conclusion that there is enough material to charge sheet the appellants. Accordingly, they were charged that all of them in furtherance of their common intention entered the house of the prosecutrix, Sonam Devi, to commit offence of rape after breaking open the window and thereafter committed the offence of rape as also of theft of Torch and while leaving, to have threatened her of dire consequences in case she revealed the incident to anyone. All these acts, according to charge, were committed by the appellants, as part of their common intention, as aforesaid. All of them pleaded not guilty and claimed trial. 10. With a view to bring home the guilt against the appellants, prosecution examined as many as eleven witnesses. Statements of the appellants were recorded under Section 313 Cr.P.C. They examined one witness in defence. After conclusion of the trial, all the appellants were found guilty and have been convicted to undergo different sentences, as aforesaid. 11. Prosecution evidence mainly consists of the prosecutrix, Sonam Devi (PW 1), besides two persons, who had signed recovery memo i.e. PW3, Rajbeer Singh, another witness who was residing in the building in question is Roshan Lai (PW 4). Two doctors, namely S.K. Bansal (PW 5) and Rajan Angra (PW 8) have been examined to show that there is nothing to suggest that appellants were incapable of performing sexual inter-course. In case of Gopi Chand appellant doctor, PW-5 has issued certificate Ex. PW5/A, whereas in case of other five accused, Dr. Rajan Angra (PW 8) has issued certificates PW8/A to PW8/D. ASI Prem Chand (PW9) is the investigating officer, whereas PW-10 is Jawahar Singh, Head Constable, who had recorded the report in the roznamcha and has proved its copy as PW6/A as also the reports Ex. PW10/A to Ex. PW10/D at Moorang Chowki, where the prosecutrix complained regarding her person having been wronged by all the appellants as noted hereinabove. 12. PW10/A to Ex. PW10/D at Moorang Chowki, where the prosecutrix complained regarding her person having been wronged by all the appellants as noted hereinabove. 12. When a reference is made to the statement of prosecutrix (PW 1), she has given a vivid description as to how after having knocked at her door and on her not opening the same, appellants talked about breaking the window parts and then by unlatching the same all of them entered the room, took out the Torch from almirah as also the cells lit the same after they had ignited a match. At this point of time, according to her, she could identify the appellants of which fact she had informed them (appellants) then and there. 13. She admits that 2/3 Gorkhas, namely, Dhawaj Bahadur, Nar Bahadur and Dhan Bahadur were residing in the adjoining room. Roshan Lai was also residing there. However, no body came to her rescue. She has further gone to state that it was snowing that day and as such there was no public transport or vehicle of DGBR moving. According to her, a bus met with an accident on the next morning when she was raped by the appellants. While denying the suggestion that she did not complain to anyone for 10 days, the prosecutrix stated that on third day she narrated the incident to the labourers, who were with her. While admitting that Torches like Ex. P4 are commonly available in the market and the same having been produced by her, she volunteered that it was handed over by accused to the police. 14. According to her, she resisted the attempt of the accused persons, but because two of them had kept her hands back side. She was not allowed to move. According to her, Nar Bahadur etc. were working with some Thekedar and not in DGBR Police had also taken into possession broken pieces of glass from the spot. 15. PW-2, Dr. Lalita Negi was declared hostile and what was observed by her on examination of the prosecutrix, has been extracted hereinabove. PW-3, Rajbeer Singh, a signatory to Ex. PW-3/A and Ex. PW-3/B. According to him, he knew the prosecutrix and police had come in connection with investigation of this case in February, 1994 and the witness was associated with it. Ex. P-2 and P-3 were handed over by the prosecutrix. Danda Ex. PW-3, Rajbeer Singh, a signatory to Ex. PW-3/A and Ex. PW-3/B. According to him, he knew the prosecutrix and police had come in connection with investigation of this case in February, 1994 and the witness was associated with it. Ex. P-2 and P-3 were handed over by the prosecutrix. Danda Ex. P-5 was taken into custody by police from her room. Regarding torch Ex. P-4, he states that it was taken into possession from the room of prosecutrix. This witness was also declared hostile. In his cross examination by Public Prosecutor, he admits the contents of Ex. PW-l/B, which he had signed after going through it. In the next breath, he has gone on record to say that Torch, Ex. P-4 was handed over to police by Jai Kumar, appellant as per memo Ex. PW1/B. This Ex. P-4 was identified by prosecutrix having been removed by the accused from her house. He also states that he is residing in the second floor of the building. According to him, Baldev Singh was the other witness, who was present at the spot. 16. Appellants have denied the prosecution case in their examination under Section 313 Cr.P.C. and have examined one Surinder Pal, Adda Incharge HRTC, Reckong Peo. According to him, one bus had gone upto Reta Khan on 21.2.1994. This bus was going upto Kaza via Skiba, but due to snow fall it had stopped at Reta Khan. From 22nd February, 1994 to 24th February, 1994, there was no bus service due to snowfall. 17. Bus was sent on 25.2.1994, but it had returned from Reta Khan on the same day. According to him, Murang is 15 km. from Skiba, where the Police Chowki was situated. 18. In the aforesaid background, Mr. Anup Chitkara, learned Counsel for the petitioner, forcefully urged that there is delay in lodging the FIR which, according to him, was lodged after deliberations. No test identification parade was conducted to establish the identity of the appellants being the persons having committed offence. Further the procedure adopted by the prosecution to identity his clients was unfair. He further stated that commission of sexual inter-course was not proved by any cogent, reliable and trustworthy evidence. No test identification parade was conducted to establish the identity of the appellants being the persons having committed offence. Further the procedure adopted by the prosecution to identity his clients was unfair. He further stated that commission of sexual inter-course was not proved by any cogent, reliable and trustworthy evidence. With a view to support the case of all the appellants, he stated that statements of PWs 3 and 4 have been mis-construed and lastly, according to him, recoveries were fabricated without there being anything to establish those. 19. All these pleas have been controverted by Mr. Chauhan, learned Deputy Advocate General, who stated that looking to the season as well as circumstances of this case, practically there is no delay and even if it be presumed for the sake of argument that there was delay, it is not at all fatal. According to him, prosecutrix had stated on oath that she was gang raped by all the appellants against her wishes. Thus not only by relying on the prosecution evidence, but also taking aid of Section 114-A of the Evidence Act, he urged for dismissing these appeals. He further submitted that all the appellants have in fact wronged the person of helpless prosecutrix, who was living all by herself that too at that hour of night, taking undue advantage of her helplessness, therefore, they need to be severely dealt with. He has prayed for dismissal of all appeals. 20. On submission of delay Mr. Chauhan pointed out on the plea of delay in lodging of FIR, that the incident was of the night intervening 21/22nd February, 1994. Report was made vide Ex. PW6/A on 26.2.1994. According to him this delay has been explained so as to accept the case of prosecutrix as set up in the complaint made by her. 21. Mr. Chitkara further submitted that the FIR in question has been lodged after due deliberations and his clients have been wrongly implicated in this case. He referred to precedents on the subject with a view to support this submission. 22. Prosecutrix has specifically stated that after the incident, she first of all remained at her house upto 9 a.m. of next morning. Then at one stage, she thought of not disclosing this incident to any one to save herself of disrepute. However, on second thought she decided to complain and not taking things lying down. 23. 22. Prosecutrix has specifically stated that after the incident, she first of all remained at her house upto 9 a.m. of next morning. Then at one stage, she thought of not disclosing this incident to any one to save herself of disrepute. However, on second thought she decided to complain and not taking things lying down. 23. Thus, she lodged the complaint at Police Post Moorang vide Ex. PW6/A. On the basis whereof Ex. PW6/B FIR was lodged at Police Station, Pooh. In this behalf, it may be observed that not only in the statement of the prosecutrix but even in the statement of DW-1 it has come on record that it was snowing on 21st to 25th February, 1994. One bus which was to go to Kaza had returned from Reta Khan on 21.2.1994. Whereas no bus left on 22nd to 24th February, 1994. Similarly, the bus returned from Reta Khan again on 25th February, 1994. 24. A suggestion was put to the prosecutrix in cross-examination that vehicles of DGBR where she was working were on the road, she has denied such suggestion. According to her there was no movement of any transport public or otherwise. It has come in the statement of DW itself that the Police Post Moorang is at a distance of 15 Kms from Akpa. Looking to the weather and non availability of the transport as also the fact that prosecutrix was all alone and above all having been threatened by the appellants, lodging complaint at police post Moorang on 26.2.1994, cannot be termed to be the result of unexplained delay. 25. In this behalf, it may be worthwhile to note that FIR was lodged after commission of the offence at the earliest available opportunity adds credibility to it. It cannot be held as a rule of universal applicability that whenever a delayed FIR is lodged with the police, it is not to be accepted on that ground alone and the entire prosecution case needs to be thrown out. To accept or not to accept the plea of delay in FIR being fatal to the prosecution case will depend upon the circumstances, situation as well as facts of each case and has to be decided accordingly. In the instant case for the reasons set out hereinabove, delayed lodging of FIR is of no consequence. Therefore, plea urged in this behalf is hereby rejected. 26. In the instant case for the reasons set out hereinabove, delayed lodging of FIR is of no consequence. Therefore, plea urged in this behalf is hereby rejected. 26. FIR being the result of deliberations was also a plea pressed into service by Mr. Chitkara, learned Counsel for the appellants. According to him his clients have been falsely implicated at the instance of Dharam Singh, landlord of the prosecutrix, because they were not having good relations with him (said landlord). In fact, in cross-examination of prosecutrix a clear cut suggestion in that behalf was given to her on behalf of the appellants, therefore, all of them have been falsely roped in the case. 27. At the risk of repetition it may be observed here that on a reading of the statement of the prosecutrix it is clear that nothing has been brought out in it so as to uphold the claim of the appellants that they have been roped in this case on account of their enmity with Dharam Singh. 28. With a view to support this plea, the appellants were required to have brought something more than mere word of mouth as to what was the cause of enemity and as such, that is why the prosecutrix has become a pawn in the hands of said Dharam Singh. 29. Another reason not to accept this plea urged on behalf of the appellants is that no woman would like to put herself in shame and disrepute being a victim of agony of rape by implicating a person falsely thereby screening the real accused. Unless strong motive is shown for such an action, the Court cannot lose sight of this ground reality Again nothing of the sort is extracted in the cross examination of the prosecutrix. On the other hand she has withstood the test of cross-examination while pledging her oath as PW-1. Thus the plea urged on behalf of the appellants that the delayed FIR was the result of deliberations is also rejected. 30. Coming to the next submission of not holding of test identification parade and procedure adopted in identifying the appellants being unfair. Again for the reasons set out hereinafter this plea cannot be accepted. 31. Prosecutrix has specifically stated that after entering the room one of the appellants did light the match box, removed the torch and cell from her almirah, then put on the torch Ex. P4. Again for the reasons set out hereinafter this plea cannot be accepted. 31. Prosecutrix has specifically stated that after entering the room one of the appellants did light the match box, removed the torch and cell from her almirah, then put on the torch Ex. P4. It was at this juncture that she identified all the appellants. In this behalf, it may be observed that how the reflexes of a person work in a given situation, differs from person to person and situation to situation. Here is a woman who was threatened by five persons at the dead of night. Possibility of what she has stated cannot be ruled out. In case she had not been raped by the appellants, why she identified all five of them in the court. It may be appropriate to observe here that at the time that appellants Ajay Pal, Gopi Chand have been named in the FIR besides Ravinder and Rajan; and another person whose name she did not know. This was the earliest version given by her on 26.2.1994 in Ex. PW6/A i.e. copy of daily diary report of Police Post Moorang. 32. Purpose of test identification parade is one to ensure that the person alleged of commission of offence need only to be brought to book and not any other. No doubt, where the accused are totally strangers and/or are unknown, then in such a situation it may be appropriate to hold the test identification parade with a view to reinforce its case by the prosecution. However, prosecutrix has stated specifically that she had seen all the five appellants when they lighted the torch Ex. P4 before commission of the offence and she had put all of them to notice that she has seen them. Accordingly this plea also stands rejected. So far sexual inter-course having not been performed with her the version of prosecutrix is concerned, reliance was placed by Mr. Chitkara on the statement of PW2, the doctor who had examined her on 26.2.1994 and had issued MLC Ex. PW2/A. In this behalf it may be observed that the prosecutrix is aged about 45 years. As per MLC she was found to be habitual to sexual inter-course. No injury was found on her person. Prosecutrix has stated that she was raped by two of the appellants on floor and again on the bed by all the appellants. PW2/A. In this behalf it may be observed that the prosecutrix is aged about 45 years. As per MLC she was found to be habitual to sexual inter-course. No injury was found on her person. Prosecutrix has stated that she was raped by two of the appellants on floor and again on the bed by all the appellants. She has further gone on record to state that the place where she was held by the appellants as explained herein above, there was no chance for her to have resisted the acts of the appellants. Again it may be observed that as noted herein above for what reason and why the prosecutrix would rope in the appellants. Simply because all of them were inimical towards Dharam Singh i.e. her landlord cannot be accepted as a ground to have compelled her to falsely implicate the appellants. This argument appears to have been raised by Mr. Chitkara on the basis of statement of PW 2 doctor who had issued the MLC Ex. PW2/A after examination of the prosecutrix. In this document what has been stated and is relevant to test the submission urged on behalf of the appellants is as follows "Opinion given habitual inter-course. Injuries not present". However, while appearing as PW-2 he has opined as under: 33. "Opinion. There was no evidence of recent sexual inter-course and there was no sign of struggle. She was used to sexual inter-course. There is no evidence of sexual assault with the prosecutrix within a weeks time when I examined her". 34. In her cross-examination by the Public Prosecutor, she has further stated "it is correct that if a lady who is habitual to sexual inter-course, if put under fear and thereafter sexually assaulted, there may not be any injury." 35. On an over all examination of the case, it is felt that PW2 wanted to help the appellants and thus stated something more than what was opined by her in Ex. PW2/A. Thus to say that sexual inter-course is not proved by cogent evidence cannot be accepted. It hardly needs to be clarified that depending upon the circumstances of the case, statement of prosecutrix is enough if it inspires confidence and shows it to be worthy of being accepted to convict a person. 36. PW2/A. Thus to say that sexual inter-course is not proved by cogent evidence cannot be accepted. It hardly needs to be clarified that depending upon the circumstances of the case, statement of prosecutrix is enough if it inspires confidence and shows it to be worthy of being accepted to convict a person. 36. So far pleas regarding evidence of PW3 Rajveer and PW4 Roshan being misread and misappreciated as well as recovery being fabricated are concerned, again no benefit can be derived by the appellants in this case. Reason being that excluding recoveries, yet the case of the prosecution regarding prosecutrix having been raped against her wish by all the appellants as stated by her stands established to the hilt. This is one aspect of the case. 37. Other aspect of the case is that no benefit can be derived by the defence from the statement of said witnesses. PW3 Rajveer is a person who is residing in the same building where the prosecutrix was living. According to him, Ex. PI shirt, Ex. P2 woolen blanket, Ex. P3 string were handed over by prosecutrix and were taken into possession vide Ex. PW1/A when Baldev Singh was also present and is a witness to it. Danda Ex. P5 was taken into possession by the police vide Ex. PVV3/B. Broken glasses were also taken into possession vide Ex. PW3/A which bears his signatures. About recovery memo of torch Ex. P4, he states that it was produced by the prosecutrix and was taken into possession vide Ex. PW3/B. When cross examined by the Public Prosecutor he has supported the prosecution case as set up against the appellants. He not only supports the recovery of torch Ex. P4, but also states that it was identified by the prosecutrix. He also speaks of disclosure statement under Section 27 of the Indian Evidence Act having been made by Ajay Kumar and the torch Ex. P4 having been handed over to the police vide Ex. PW1/B. 38. Similarly PW4 Roshan Lai is a person who also lives in the same building where PW1 resided. According to him he heard some persons taking outside and a lady from inside. Thereafter he shows his ignorance as he did not hear anything further. He did not come out due to fear as it was night and was also snowing. Similarly PW4 Roshan Lai is a person who also lives in the same building where PW1 resided. According to him he heard some persons taking outside and a lady from inside. Thereafter he shows his ignorance as he did not hear anything further. He did not come out due to fear as it was night and was also snowing. He admits that he knows the appellants who are from village Skiba. He claims to have made inquiry from prosecutrix who did not disclose anything to him. 39. In view of aforesaid statements of these PWs, it cannot be said that those have either been misconstrued or misread. Reason being that except for stating something regarding torch Ex. P4 in his examination-in-chief, which he proved when cross-examined by the Public Prosecutor, there is nothing in the statement of PW 3. Besides this, statement of PW-4 is of no significance either to the prosecution case or to the defence. So far recoveries are concerned, even if those are excluded (though recovery of torch for which the appellants have been held guilty under Section 380 IPC stands proved), yet no benefit can be derived by the appellants. 40. In the context of the present case it also cannot be said on examination of prosecution case that two views are possible so as to compel this Court to take a view favourable to the accused by following decision of Supreme Court in Kali Ram v. State of HP:, 1974 Cr. L.J. 1. 41. Another argument that was raised by Mr. Chitkara is that there is discrepancy in Hindi and English version of the evidence recorded by the trial Court. No benefit can be derived by him from this, as Hindi version of the case needs to be relied upon. Reference in this behalf can be made to a decision of this Court in Criminal Appeal No. 396 of 1998, Vijinder Singh v. State, decided on 5.1.1999. On examination of Hindi version of the prosecution evidence in this case, it cannot be said that prosecution has failed to bring home the guilt against the appellants. 42. Case law cited at the Bar needs to be referred, with a view to see how far does it advance the case of the appellants. 43. On examination of Hindi version of the prosecution evidence in this case, it cannot be said that prosecution has failed to bring home the guilt against the appellants. 42. Case law cited at the Bar needs to be referred, with a view to see how far does it advance the case of the appellants. 43. In The State of Bombay v. Rusy Mistry and another, AIR 1960 SC 391, it has been held that FIR is not a substantive piece of evidence. In this case that case being not the first complaint by the informant, it was further observed that it cannot be relied upon except to the extent that is permitted by proviso to Section 162 of the Cr.P.C. 44. Besides this, it is by now well settled that FIR can only be used for the purpose of either confronting or contradicting its maker. No other suggestion was given on behalf of the appellants to the prosecutrix so as to enable this Court to assume that she contradicted her first version given in Ex. PW. Object of FIR is to obtain early information for alleged commission of offence, to record the circumstances before there is time for them to be forgotten or embellished. This is what was observed in Emperor v. Khzuaja Nazir Ahmad, AIR (32) 1945 Privy Council 18. 45. On the question of delay other cases relied upon by Mr. Chitkara are as under: Thulia Kali v. State of Tamilnadu, 1973 AIR SC 501; Ganesh Bhawan Patel and another v. State of Maharashtra, 1979 AIR SC 135; Rayabhai Punjababhai v. State of Gujarat, 1987 (3) Crimes 568; Sheo Prasad v. State of M.P., 1988 (2) Crimes 376. 46. They do not in any manner advance the case of the appellants on the question of delay for the view that has been taken in the circumstances of this case keeping in view the location of the Police Post, no transport being available and there being heavy snow fall. Another factor to take this view is that there may be so many compelling reasons in our society not to lodge complaint with the police in case of rape. Another factor to take this view is that there may be so many compelling reasons in our society not to lodge complaint with the police in case of rape. The mental state to lodge or not to lodge, to do something or not to do something cannot be lost sight of prosecutrix initially thought of not disclosing the incident to any one, however, on a second thought on the next day, she took up the courage and decided to complain which in fact she did. 47. Non-holding of test identification parade appears to have been put up as a ground to allow these appeals probably due to the reason that some appellants having not been named in the FIR. It may be appropriately mentioned that the prosecutrix was specific regarding identity of the accused which part of the prosecution case has been accepted. She has named Rajan and another person whose name she did not know. Cases relied by Shri Chitkara in this behalf are:- 48. State of Himachal Pradesh v. Lekh Raj and another, 2000 SCC (Cri) 147. Reference to this decision shows that it nowhere improves the case of the appellants in any manner, particularly in the face of view that has been taken on the evidence of this case. 49. Mohanlal Gangaram Gehani v. State of Maharashtra, AIR 1982 SC 839. In this case, non-holding of test identification parade was held to be fatal. Reason being that the victim was not known to the accused prior to the occurrence who was shown by the police before trial. In these circumstances, his identification in the court was held to be bad. In the instant case, prosecutrix has been able to identify all the appellants in the court and have named three of them in her first version. 50. In Raju alias Rajendra v. State of Maharashtra, 1998 SCC (Cri) 296, non-mentioning of the name of the accused in FIR though known to the first informant was taken to be a ground for holding his non-complicity in the crime. Admittedly, three of the appellants were named in Ex. PW6/ A and all the five were identified in court. So this decision also is of no help to the case of the appellants. 51. In Mohd. Iqbal M. Shaikh and others v. State of Maharashtra, 1998 SCC (Cri) 1064, the circumstances when test identification was necessary were laid. Admittedly, three of the appellants were named in Ex. PW6/ A and all the five were identified in court. So this decision also is of no help to the case of the appellants. 51. In Mohd. Iqbal M. Shaikh and others v. State of Maharashtra, 1998 SCC (Cri) 1064, the circumstances when test identification was necessary were laid. In this case accused had been shown to the witness during investigation and thus, it was held that test identification parade is meaningless. 52. State (Delhi Administration) v. V.C. Shukla and another, AIR 1980 SC 1382, also is wholly inapplicable to the case of the appellants on the question of identification of the appellants by the prosecutrix. These decisions were relied upon by Shri Chitkara to show that the prosecutrix was not trustworthy in this case and, therefore, these appeals deserve to be allowed. After having found her to be reliable and trust worthy, this plea does not hold good. Moreover, corroboration in such like cases is a rule of prudence and not of evidence. She is not in the position of an accomplice whose statement must always be corroborated. 53. On the other hand, Mr. Chauhan, learned Deputy Advocate General by referring to the decision in the case of State of Rajasthan v. N.K. The Accused, 2000 (5) SCC 30, urged that the statement of the prosecutrix that she was forcibly subjected to sexual inter-course should normally be believed unless there is material leading to an inference of her consent. Absence of marks of external injuries on the person of the prosecutrix by itself was held not sufficient to draw an inference of consent of the prosecutrix. It was held that testimony of the prosecutrix needs to be accepted on the basis of the probabilities. However, if court finds it difficult to accept her testimony, it may seek assurance to her testimony, which may be short of corroboration, from other evidence. 54. It was held that testimony of the prosecutrix needs to be accepted on the basis of the probabilities. However, if court finds it difficult to accept her testimony, it may seek assurance to her testimony, which may be short of corroboration, from other evidence. 54. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753, while considering a case under Sections 375 and 376 IPC, it was held that over much importance cannot be given to minor discrepancies and it was further held that corroboration may be insisted upon when a woman is found in a compromising position and there is likelihood of her having leveled such an accusation on account of the instinct of self-preservation or when the probabilities factor is found to be out of tune. In the present case, prosecutrix was never seen by any one, there was no reason for her having falsely implicated the appellants and the motive of their enmity with her landlord is firstly too weak and secondly has not been accepted as is clear from the discussion hereinabove. 55. In Surendra Narain alias Munna Pandey v. State of U.P., AIR 1998 SC 192, while considering the non-holding of test identification parade, it was held that it is not always fatal even when there is a demand made by an accused. 56. In State of Punjab v. Gurmit Singh and others, (1996) 2 SCC 384, amongst other things, it was held that in a case of sexual assault, corroboration is not necessary and conviction can be found on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. It was also held in this case that the statement of prosecutrix is more reliable than that of an injured witness as she is not an accomplice, thus, accused was convicted. 57. In the context of present case, it may also be observed that though statutory presumption under Section 14-A of the Indian Evidence Act can also be raised in the instant case in view of the evidence of the prosecutrix which has been accepted. However, this question is not being gone into for the simple reason that during the course of trial, appellants were not put to notice so as to invoke the same. Fact remains that prosecutrix was gang raped by all the appellants against her wishes. 58. No other point is urged. 59. However, this question is not being gone into for the simple reason that during the course of trial, appellants were not put to notice so as to invoke the same. Fact remains that prosecutrix was gang raped by all the appellants against her wishes. 58. No other point is urged. 59. In view of the aforesaid discussion as well as in view of the decisions referred to hereinabove, it is clear that there is no merit in these appeals which are accordingly dismissed. Appellants are on bail. Their bail bonds are cancelled and they are directed to surrender forthwith to undergo the sentence imposed upon them. 60. Registry is directed to place an authenticated copy of this judgment on the files of other connected four appeals. Appeal dismissed.