JUDGMENT (Surinder Singh, J.) - The respondents were tried and acquitted by the learned trial Court of the offence of rape committed on the minor prosecutrix, aged about 13 years, punishable under Section 376 of the Indian Penal Code, which has been assailed by the state in this appeal. 2. In short, the prosecution case, as emerges from the prosecution witnesses is that on 24.3.1991, the prosecutrix had gone to Raffo jungle alongwith Kanti Kumari (PW7) to collect the fuel-wood. While returning with the load of fuel-wood on their back, around about 3/4 p.m., they felt tired and sat on the side of the path to take rest. After resting for a while when the prosecutrix was again picking up the fuel-wood, the respondents suddenly appeared from behind the boulders. The respondent Tara Chand pushed her and caught hold of her hands. The prosecutrix started crying. She was thrown on the ground and Tara Chand aforesaid told Kanti Kumari (PW7) to leave the place, lest she would also meet the same fate. Kanti Kumari went away and concealed herself behind a boulder. Jehar Singh respondent is alleged to have caught hold the hands of the prosecutrix. Tara Chand broke the string of her Salwar and committed rape, thereafter Jehar Singh committed rape on her while Tara Chand gagged her mouth. The prosecutrix was carrying and sustained injuries on her person while resisting the sexual assault. Yash Pal (PW11) and Raj Kumar (PW8) labourers, were passers by and got attracted by her cries. They went to the spot and saw from a distance that respondent Tara Chand was lying on the prosecutrix and Jehar Singh was standing nearby. When they went nearer, on seeing them the respondents ran towards the jungle. Yash Pal and Raj Kumar brought the prosecutrix and Kanti Kumari to the village. She revealed everything, regarding the incident, to her brother Subir Dass (PW12). Next morning i.e. on 25.3.1991, she alongwith her brother, went to the police station and Subir Dass lodged the FIR Ex.PW10/A. The police got the prosecutrix medically examined on 26.3.1991 from Dr. (Mrs.) Usha Bhardwaj, (PW18), M.D., Referral Hospital, Rampur on her medical examination the following injuries were found on the prosecutrix :- 1. Multiple abrasions on the right gluteal region, brownish in colour. 2. Multiple abrasions on the left lumber region, brownish in colour. (Mrs.) Usha Bhardwaj, (PW18), M.D., Referral Hospital, Rampur on her medical examination the following injuries were found on the prosecutrix :- 1. Multiple abrasions on the right gluteal region, brownish in colour. 2. Multiple abrasions on the left lumber region, brownish in colour. However no injury was found on the vulva and vagina. Hymen was found torn into several granular tags of tissues, vagina admitted two fingers with no pain being felt. Vaginal swab did not contain any dead or alive spermatozoa. In the opinion of the Doctor, the prosecutrix was habitual to sexual intercourse. The probable duration of the above injuries was 48 to 72 hours. 3. The prosecutrix was referred to ascertain her skeletal age. According to Dr. Suman Gupta (PW1), on the basis of ossification test, her age was opined to be between 12-1/2 to 15 years. 4. The Doctor sealed her Salwar Ex.P1, which was sent for the forensic examination. The forensic science expert vide his report Ex.PP found the semen stains on it. 5. The police had prepared the site plan Ex.PL of the alleged occurrence. 6. The respondent Tara Chand had also lodged the FIR Ex.DX, on 25.3.1992 as stated by DW-1, [the date is wrongly mentioned as 25.3.1992 in the copy] against the brother of prosecutrix Subir Dass (PW12) and one Ramesh Chand, alleging that on 24.3.1991, [wrongly mentioned as 24.3.1992] at about 2 p.m., while returning with a load of fodder for the cattle, from the jungle, he was beaten up by them on the pretext that their sister was molested by him. He was saved by respondent Jehar Singh. Tara Chand had tried to pacify them that he was innocent and told them that the prosecutrix wanted to marry him. He had not committed any mistake. 7. The respondents were arrested and on 2.4.1991, they were medically examined. No injury was found on their person, however both were found fit to perform the sexual intercourse. The police took into their possession light brown pant of Jehar Singh vide recovery memo Ex.PN and yellow lined track suit pajama of Tara Chand vide memo Ex.PO, which were sent for chemical examination. Vide report Ex.PP; the pant of Jehar Singh was found containing the semen stains. However, no blood or semen stains were found on the Pajama of respondent Tara Chand. 8. Vide report Ex.PP; the pant of Jehar Singh was found containing the semen stains. However, no blood or semen stains were found on the Pajama of respondent Tara Chand. 8. The police had recorded the statements of the witnesses and after concluding the investigation, the challan was presented against the respondents in the court for trial. 9. Both the respondents were charge-sheeted for the offence aforesaid. They pleaded not guilty and claimed trial. 10. The prosecution examined its witnesses to prove the charge. The respondents were also examined under Section 313 of the Code of Criminal Procedure. Their defence was that on 24.3.1991, when Tara Chand was returning with a bag and heavy bundle of leaves from the jungle, the prosecutrix was going towards her village alongwith PW Kanti Kumari with fuel-wood. When he was crossing a narrow path over a Dhank, the prosecutrix put her load down and started beating him with her shoe, in the meantime Raju, Yash Paul and Sabir Dass (PW12) came there and they also started beating respondents. Thereafter Shama Nand (DW3) and Prem Singh (DW2) came there and saved both of them. According to Tara Chand-respondent, the present case against him was due to the old enmity. 11. In their defense the respondents had proved the Rapat No. 11 lodged by Tara Chand against Sabir Dass and Ramesh Chand, by examining DW1 Diwan Chand (I.O.) and also produced Prem Singh (DW2) and Shama Nand (DW3). At the end of trial the learned trial Court had acquitted the respondents on the grounds. (a) the prosecution could not prove the age of the prosecutrix as alleged as there were some interpolation and the manipulations in the birth entry register Ext.PW4/B; (b) the testimony of the prosecutrix did not inspire confidence as it is not supported by the medical evidence; (c) Kanti Kumari and Shama Nand did not support the prosecution case. (d) there is absence of marks of violence on the body of the prosecutrix including her genital organs; (e) though the seminal stains were found in the salvar but no blood stained were found; (f) vaginal swab did not show any live or dead spermatozoa; (g) there were no marks of injuries on the respondents; (h) the respondents were medically examined pursuant to their report but their MLCs were not obtained by the police nor placed on record. The investigating officer had given the lope-sided version; 12. Sh. P.M. Negi learned Deputy Additional Advocate General has vehemently argued that the learned trial Court has not properly appreciated the evidence of the prosecution in its right perspective and there is enough corroboration to the statement of the prosecutrix. It is also ventilated that the age of the prosecutrix in the facts and circumstances of the case is immaterial. It is also argued that initially Kanti Kumari had supported the version of the prosecutrix but again she appeared suddenly in the court at the fag end of the trial and gave another version exonerating the respondents, thus she had perjured herself. Sh. Negi also argued that if the evidence on record is properly scanned, it would transpire that the statement of the prosecutrix inspires confidence and also stands corroborated by other evidence in material particulars, therefore, the impugned judgment of acquittal can be converted into conviction. 13. Contra Sh. Praneet Gupta learned Counsel for the respondents has forcefully argued that the prosecutrix was found habituated to sexual intercourse as observed by the doctor. The prosecutrix could not be proved to be minor as alleged but the evidence on record had shown her more than 18 years of age. It is also argued that there is a contradictory evidence regarding the identification of her Salwar. Kanti Kumari who was allegedly accompanying the prosecutrix did not support the prosecution case. The respondents were able to probablise their defense, the police investigation was defective and it did not investigate the case lodged by the respondents; thus it is submitted that the findings arrived at by the trial Court are reasonable and borne out from the evidence on record, therefore, the appeal merits dismissal. 14. We have given our thoughtful consideration to the rival contentions of the parties and have carefully reappraised the evidence on record. 15. Legally, the approach required to be adopted in rape cases has to be a little different. These cases are required to be dealt with utmost sensitivity. Therefore, the courts are supposed to show greater responsibility while trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. These cases are required to be dealt with utmost sensitivity. Therefore, the courts are supposed to show greater responsibility while trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. Thus, the evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are also to be kept in view. It is also to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the court is required to take extra caution while evaluating the evidence. It would not be just to acquire the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved. (Please see Visveswarin appellant v. State, AIR 2003 Supreme Court 2471). 16. It is equally settled that the testimony of the victim in case of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found reliable. [Please see State of Punjab appellant v. Gurmeet Singh, AIR 1996 Supreme Court 1393]. 17. In the instant case the victim has been examined as PW-3 in this case, she has deposed that on 24.3.1991, she alongwith Kanti Kumari (PW7) had gone to Raffo jungle to fetch the fire wood. At about 3/4 p.m., while returning from the jungle to their village, they sat down at a place on the path for a respite. The respondents, who were hiding themselves behind a boulder, came there. When she was in the process of picking up the fire wood bundle, Tara Chand respondent threw away her load and caught her hands. She got rid of him and started crying, but again Tara Chand came from behind, forcibly laid her down on the ground. In the meanwhile, Kanti Kumari (PW7), who was accompanying the prosecutrix, started crying. She was threatened by the respondents to get away from the place, lest she would also meet the same treatment. She got rid of him and started crying, but again Tara Chand came from behind, forcibly laid her down on the ground. In the meanwhile, Kanti Kumari (PW7), who was accompanying the prosecutrix, started crying. She was threatened by the respondents to get away from the place, lest she would also meet the same treatment. On this Kanti Kumari left the place and concealed herself behind a boulder. Thereafter, Tara Chand broke the string of the Salwar and mounted upon the prosecutrix. Jehar Singh respondent caught hold of her hands. Tara Chand committed sexual intercourse with her. Though she had tried throughout to get rid of him, but she could not do so. Thereafter, respondent Jehar Singh committed rape on her, while Tara Chand respondent kept her mouth gagged. While she was being raped, the hands of respondents slipped down from her mouth due to the movements, she had cried. It is also stated by her that during the rape she had sustained injuries on the boulders on left side of her abdomen. When the respondents left her, she started crying. On hearing cries, Yash Pal and Raj Kumar came there and the respondents asked them as to why they had come there and told them the prosecutrix had become their wife. She was partially naked, as she had not put on her Salwar. Respondents gave fast blows to Yash Paul (PW11) and Raj Kumar. Thereafter, respondents went upwards in the jungle and she came to her house accompanied by Kanti Kumari, Yash Pal and Raj Kumar. Her salwar was torn. She reached in her house around 5 or 6 p.;m. Her brother Sabir Dass (PW12) was in the house, her mother had gone to another village. Since she was weeping, her brother “Sabir Dass asked her as to how her clothes were torn, she narrated everything to him. On 25.3.1991, she alongwith her brother Sabir Dass went to police station Kalpa and lodged the report. She proved her signatures on the report Ex.PD. She had also identified her Salwar Ext.P1 to be the same which she was wearing at the time of the said incident. 18. In her cross-examination, the presence of the respondents has not been disputed nor was the identification of salwar questioned. She denied that she had given the shoe beatings to Tara Chand respondent as alleged. She had also identified her Salwar Ext.P1 to be the same which she was wearing at the time of the said incident. 18. In her cross-examination, the presence of the respondents has not been disputed nor was the identification of salwar questioned. She denied that she had given the shoe beatings to Tara Chand respondent as alleged. However, she has categorically stated that she was raped by the respondents on the path. According to her the place where the alleged incident had taken place was 1/2 a kilometer from her village. 19. PW7 Kanti Kumari supported the version of the prosecutrix in her statement made before the Court on 27.9.1991. According to her, the respondents had met them when they were taking rest while sitting on the path. The respondent Tara Chand caught hold of the prosecutrix while trying to relieve herself she started crying. Seeing this, she (PW7) also started crying but the respondents threatened her, if she would cry, she would also meet the same fate thus she left the place and concealed herself behind a boulder. She also stated that on hearing their cries, Yash Pal and Raj Kumar came to the spot. The respondents also gave beatings to them. 20. She was cross-examined at length by the respondents but she adhered to her above version. She denied that the respondents were severely beaten up by Yash Pal and Raj Kumar and Sabir Dass, the brother of the prosecutrix. She denied any enmity interse Tara Chand’s family and the family of the prosecutrix. She stated that when Yash Paul and Ramesh Chand reached the spot, none of the respondents was doing any sexual act with the prosecutrix, but they were standing apart. 21. PW12 Subir Dass, the brother of the prosecutrix has stated that around 5 p.m. on 24.3.1991, when prosecutrix had returned home from the Raffo Jungle, she was weeping and her salwar was torn, the string thereof was broken and she was holding it by her hands. On being asked, she narrated the entire incident to him. At that time, he was alone in his house and her mother had gone to Dogri (Helmet village). The matter was reported to the police on 25.3.1991. 22. In his cross-examination, he has stated that a year before the alleged incident, there was a quarrel between Tara Chand and some other person and not with him. At that time, he was alone in his house and her mother had gone to Dogri (Helmet village). The matter was reported to the police on 25.3.1991. 22. In his cross-examination, he has stated that a year before the alleged incident, there was a quarrel between Tara Chand and some other person and not with him. He had intervened to end the quarrel. He denied that this case was fabricated due to the old enmity. According to him he had also made an inquiry from Yash Pal and Raj Kumar and Kanti Kumari about the alleged incident. 23. PW-11 Yash Paul has stated that when they reached the spot they saw the respondents at a distance of about 15 meters. The respondent Tara Chand was on the prosecutrix and Jehar Singh was at a distance of 10 steps away from them. His Pajama was lying on a stone. When they reached nearer to them, he put on his Pajama. Kanti Kumari appeared from behind a boulder. Prosecutrix was weeping. Her Salwar was torn. On inquiry, she complained that the respondents had raped her. They asked the respondents, but they replied that the prosecutrix had become their wife, as to why they had come there. Thereafter, respondent Jehar Singh caught hold of him from his shirt and gave a blow; then the respondents went upwards in the jungle. He denied the suggestion that Kanti Kumari (PW7) at that time was not with the prosecutrix, but according to him, she came there from behind the boulder. Kanti Kumari had informed them about the occurrence, but the prosecutrix did not divulge anything and she kept on weeping. He has denied that when Yash Paul and his companion came to the spot they started giving beatings to the respondents. He further stated that the cries raised in the jungle were not audible in their village, which was at a distance of about 400 meters. They did not inform about the incident to Sabir Dass, but he was informed by the prosecutrix. It is denied by him that after the meeting with the brother of the prosecutrix, they came back to the jungle and gave beatings to the respondents. It is worth noting that this suggestion given to the witness is quite contrary to the explanation given by the respondents in their statement given under Section 313 Cr.P.C. 24. It is denied by him that after the meeting with the brother of the prosecutrix, they came back to the jungle and gave beatings to the respondents. It is worth noting that this suggestion given to the witness is quite contrary to the explanation given by the respondents in their statement given under Section 313 Cr.P.C. 24. PW8 Raj Kumar has also made the similar statement and afforded the corroboration to his statement. In the cross-examination he admitted the presence of Kanti Kumari who was hiding behind a boulder nearby. It is denied by him that the prosecutrix had complained that she was beaten up by the respondents. He also denied that they hatched the conspiracy with Sabir Dass and thereafter returned back to the jungle and gave beatings to the respondents and Shama Nand had saved them. He testified that the prosecutrix was close to the path on the upper side when they reached the spot. Tara Chand was found present near to the prosecutrix, but the respondent Jehar Singh was at a little distance away. He also stated that the spot was also visited by the police and at that time the prosecutrix was also with them. However he stated that he did not know whether prosecutrix was subjected to sexual intercourse by the respondents or only the quarrel had taken place. 25. PW18 Dr. Mrs. Usha Bhardwaj, on 26.3.1991, on the medical examination of the prosecutrix had found multiple abrasions on the right gluteal region and multiple abrasions on the left lumber region, brownish in colour. The probable time given by the doctor respondents to the alleged incident. 26. Shama Nand (PW15) was a witness to the recoveries of the pants of the respondents. He did not support the case of the prosecution qua the recoveries. In his cross-examination he has stated that he was following Tara Chand on the alleged day of occurrence in the said jungle. When he reached the spot the prosecutrix was abusing Tara Chand. Tara Chand did not commit any wrong act with the prosecutrix in his presence. He admitted the presence of Ramesh, Sabir Dass Raju and Yash Paul on the spot. According to him they gave beatings to the respondents and took them to their village. He further stated that he had also stated these facts to the police. Tara Chand did not commit any wrong act with the prosecutrix in his presence. He admitted the presence of Ramesh, Sabir Dass Raju and Yash Paul on the spot. According to him they gave beatings to the respondents and took them to their village. He further stated that he had also stated these facts to the police. As DW3 he stated that the case against the respondents was registered due to enmity. He also stated that Kanti Kumari was not at the spot In his cross-examination he stated that he did not know as to what had happened at 4 p.m. on that day. He was not interrogated by the police about the quarrel. 27. The Rapat Ext.DX lodged by Tara Chand on 25.3.1991 as stated by DW1 says that on 24.3.1991 at 2 p.m. Ramesh and Sabir Dass started giving beatings to him while returning from the forest on the pretext that he had teased their sister, the prosecutrix. But he told them that she in fact wanted to marry him. But they caught hold of him and gave stick blows. Jehar Singh came there and saved him. 28. Kanti Kumari (PW7) after about 2 years of her earlier statement appeared again on 19.5.1993 in the trial Court when the matter was pending for recording the defense evidence. She was neither a court witness or summoned witness nor there was any request from either side to examine her. It is not understood what prompted her to make appearance in the court for making the statement again. It is also surprising that the learned Public Prosecutor also did not object to her re-examination. 29. In her subsequent statement, she backed out from her earlier version, even she had denied that she was cross-examined at length. According to her she was not summoned by the court but she had come to depose the truth. She stated that, the respondents had only picked up a quarrel with the prosecutrix, but they did not commit any rape. She disowned her earlier statement recorded on 27.9.1991 in the court. She stated that the earlier statement was made by her under the pressure of police. 30. She stated that, the respondents had only picked up a quarrel with the prosecutrix, but they did not commit any rape. She disowned her earlier statement recorded on 27.9.1991 in the court. She stated that the earlier statement was made by her under the pressure of police. 30. On the critical examination of the above evidence we have found that the testimony of the prosecutrix inspires confidence and there is also enough corroboration of her version in material particulars as follows :- 1) the prosecutrix, after the alleged incident had immediately narrated the entire incident to her brother Sabir Dass (PW12) who has corroborated her version and at the earliest opportunity the FIR was lodged against the respondents. 2) The prosecutrix was medically examined, the injuries as referred above were found on her person. 3) The prosecutrix had identified her salwar Ext.P1 in the court which she was wearing on the day of the alleged occurrence. It was produced before the doctor who sealed it and it was sent for the forensic science examination and it contained the semen stains. There was no cross-examination to this effect to this statement of the prosecutrix. The contention raised by the learned Counsel for the respondents that the colour of the salwar was given different by the different witnesses is worth rejecting. 4) The skeletal age of the prosecutrix was opined to be between 12-1/2 to 15 years age and the birth entry Ex.PW4/B shows her minor on the day of alleged occurrence. Even if for the arguments sake the prosecutrix is proved to be more than 16 years of her age even then no benefit can be given to the respondents as it was not a case of consent. Therefore, the age in the instant case is of no consequence. 5) The presence of Yash Paul PW11 and PW8 Raj Kumar, on the spot have not been denied and they have lent strength to the case of the prosecution. 6) PW7 Kanti Kumari had initially supported the testimony of the prosecutrix in her earlier statement. Her subsequent statement is of no consequence in the circumstances narrated above. 31. 5) The presence of Yash Paul PW11 and PW8 Raj Kumar, on the spot have not been denied and they have lent strength to the case of the prosecution. 6) PW7 Kanti Kumari had initially supported the testimony of the prosecutrix in her earlier statement. Her subsequent statement is of no consequence in the circumstances narrated above. 31. Thus in our considered opinion the learned trial Court unnecessarily attached too much importance to the subsequent statement of Kanti Kumari and wrongly gave the benefit to the respondents on the observations of the doctor that the prosecutrix was habituated to the sexual intercourse, the absence of spermatozoa on the vaginal swab and the absence of injuries on genital organs of the prosecutrix and the respondents. Whereas, we have found the testimony of the prosecutrix worth inspiring confidence and it also finds corroboration in its material particulars as a stated above. There is no material defect in the investigation of the case, which makes the testimony of the prosecutrix unbelievable. 32. In the circumstances, discussed above, we find that the impugned judgment of acquittal passed by the learned trial Court is perverse and is, therefore, set aside. The respondents are held guilty of the offence of gang rape punishable under Section 376(g) of the Indian Penal Code and are accordingly convicted. 33. As far as the conduct of PW-7 Kanti Kumari is concerned, it is quite deplorable. She had made deliberately two statements before the trial Court which are so contradictory and irreconcilable with each other. Hence, both of them cannot be true. Prima facie, in our opinion Kanti Kumari has perjured and her prosecution is expedient in the interest of justice. 34. Therefore, we hereby direct the Registrar (Vigilance) of this court to file complaint against Kanti Kumari in the court of Chief Judicial Magistrate Kinnaur at Recong Peo in terms of Section 340 read with Section 195(b)(i) of the Code of Criminal procedure. 35. The convict respondents shall be heard on the quantum of sentence, they be produced on 12.5.2008. M.R.B. ———————