RAI SANDEEP @ DEEPUversusSTATE OF NCT OF DELHI

                    [2012] 6 S.C.R. 1153


                 RAI SANDEEP @ DEEPU                              A
                              v.
                STATE OF NCT OF DELHI
         (Criminal Appeal Nos 2486 of 2009 etc.)
                      AUGUST 7, 2012
                                                                  B
    [SWATANTER KUMAR AND FAKKIR MOHAMED
            IBRAHIM KALIFULLA, JJ.]

    Penal Code, 1860:
                                                                  c
     s.376(2)(g) - Gang rape - Evidence of prosecutrix- Two
accused-appellants convicted and sentenced by courts below
- Held: Apart from a total variation in the version of the
prosecutrix as stated in the complaint, and as deposed before
the court, the other two eye-witnesses, who were her niece and    0
nephew, did not support the story of the prosecution - Further,
there is a total somersault in her cross-examination - There
are prevaricating statements of the prosecutrix herself Jn the
implication of the accused to the alleged offence of gang rape
- There are material variations as regards the identification
                                                                  E
of the accused persons as well as the manner in which the
occurrence took place - The recoveries failed to tally with the
statements made - FSL report did not co-relate the version
alleged - In the absence of any other supporting evidence
and corroboration, it will be unsafe to sustain the conviction
and sentence imposed on the appellants merely on the basis        F
of the solitary version of the chief-examination of the
prosecutrix - Prosecution has miserably failed to establish
the guilt of gang rape falling uls. 376 (2) (g), against the
appellants - They are, therefore, acquittep.
                                                                  G
    EVIDENCE:

    Evidence of prosecutrix in a case of alleged gang rape
-Characteristic of 'sterling witness' - Explained.

                            1153                                  H
    1154    SUPREME COURT REPORTS            [2012] 6 S.C.R.


A     The appellants were prosecuted for committing rape
  of PW-4 (the prosecutrix), a married woman aged bout 34
  years. The case of the prosecution was that in the night
  of 15.8.2001, at about 1.30 a.m., the prosecutrix was raped
  by the two accused-appellants. The trial court convicted
B both of them u/s 376(2)(g) IPC and sentenced them to
  rigorous imprisonment for 10 years each. The High Court
  upheld the conviction and the sentence.

       It was contended for the appellant in Crl. A. No.2486
  of 2009 that the offence was alleged to have been
C committed at 1.30 a.m. on 15.8.2001, whereas the FIR was
  lodged at 2.20 p.m.; and that there were many
  contradictions in the versions of the prosecutrix as
  mentioned in the FIR and her deposition in the court as
  also in the version of the prosecutrix vis-a-vis evidence
D of PWs 10 and 11, the niece and nephew, respectively,
  of the prosecutrix and inmates of the house. For the other
  appellant, it was further contended that he was not
  named in the FIR and was roped in due to the statement
  of the co-accused.
E
        Allowing the appeals, the Court

       HELD: 1.1. There are various contradictions and
  inconsistencies in the case of the prosecution as
  projected in the FIR and the oral and medical evidence ..
F In the FIR, it was stated that on the night of 15.08.2001 at
  about 1.30 a.m., the prosecutrix heard knocking of the
  door and when she opened the door, the accused forcibly
  entered the house and after pushing her nephew (PW-11)
  and niece (PW-10) inside a room and bolting it from
G outside, committed rape on her one after another. But in
  the chief-examination of the so called 'sterling witness'
  of the prosecution, namely, the prosecutrix, she stated
  that when the persons, who knocked at the door, were
  enquired they claimed that they were from the crime
H
     RAI SANDEEP @ DEEPU v. STATE OF NCT OF            1155
                     DELHI

branc~, which was not mentioned in the FIR. She further        A
 dep'osed that they made a statement that they had come
 there to commit theft and th'at they snatched the chain
 which she was wearing and also the' watch from PW-11.
 While in the complaint, the accused were alleged to have
 st~althily taken the gold chain and wrist watch which B
 were lying near the T.V. It was further alleged that the
 appellant in Crl. A. No. 2486 of 2009 was having a knife
 in his hand which statement was not found in the
 complaint. The police stated to have apprehended the
 appellants at the instance of P~-11 who knew the , c
 appellant in Crl. A. No. 2486 of 2009 even prior to the
  incident, that PW-11 also revealed his name to the
 prosecutrlx and that, therefore, she was able to name him
 in the complaint. When the seized gold chain and watch
 were shown to her in the couft, she made it clear that that
                                                              0
 was ·n.ot the chain which she was wearing and that it did
 not belong to her and that the watch found in the same
 parcel which was a women's watch was not the one
 which was worn by PW-11. In the cross ~xamination of
  the prosecutrix, there .was a U-turn in her version where E
· she went to the extent of stating that she never knew the
  appellant in Crl. A. No. 2486 of 2009 prior to the incident
  and she never stated before the police that PW-11 knew
 the said accused prior to the incident or at the time of
  incident, that since it was dark on the date of occurrence,
 she could not indentify the accused, that her statement F
  of orally identifying the accused was at the instance of
 the police. [para 7-9] (1163-E-G; 1164-A,·o-H; 1165-A, C-
E]
     1.2. Keeping aside ttie version of the prosecutrix, the
evidence of so-called eye witnesses, PW-10 and PW-11,          G
is much more revealing. When PW-10, who was aged
about 10 years at the time of her examination, was asked
to identity the accused, she made it clear that they were
not the persons. As regards the incident, the witness
further deposed that when she was sleeping in the house        H
    1156    SUPREME COURT REPORTS              [2012) 6 S.C.R.


A she did not know as to what happened or.as to anything
  happened at all. In her cross-examination, she deposed
  that two persons never entered her home or ever
  confined her or anybody else in any room nor did they
  threaten anybody. She also deposed that their house was
B not bolted from outside and her brother did not open the
  door from outside. PW-11, who was 20 years old at the
  time of his examination, stated in his chief-examination
  that he was sleeping on the roof top, that he saw two
  persons quarrelling with his aunt, that he raised a hue
c and cry, that thereafter both the persons ran away and
  that nothing else happened. He also stated that he did
  not come down at all. He totally denied the sequence of
  events as alleged in the complaint and as narrated by the
  prosecutrix in her evidence. [para 10-11] [1165-F; 1166-
D A-E]
       1.3. Further, in the FSL report Ext. PW-14/N, it is
  stated that there was no semen detected on the red
  colour socks which was stated to have been used by the
  prosecutrix as also by the accused to clean themselves.
E However, human semen was detected on the petticoat.
  But there was no matching of the blood group noted on
  the petticoat vis-a-vis the blood group of the accused. The
  prosecutrix was a married woman and except the semen
  found on the petticoat, there is no other reliable evidence
F for implicating the accused-appellants to the crime
  alleged against them. [para 12 and 14] [1166-G; 1168-B]
       1.4. The 'sterling witness' should be of a very high
  quality and caliber whose version should, therefore, be
  unassailable. There should be consistency of the
G statement right from the starting point till the end, namely,
  at the time when the witness makes the initial statement
  and ultimately before the court. It should be natural and
  consistent with the case of the prosecution qua the
  accused. The version of the said witness on the core
H spectrum of the crime should remain intact while all other
   RAI SANDEEP @ DEEPU v. STATE OF NCT OF 1157
                   DELHI

  attendant materials, namely, oral and documentary A
  evidence and the material objects should match the said
  version in material particulars in order to enable the court
  to rely on the core version to sieve the other supporting
  materials for holding the offender guilty of the charge
  alleged. The version of the prosecutrix, in the instant B
  case, has failed to pass any of these tests. There is total
  variation in her version from what was stated in the
  complaint and what was deposed before the court at the
  time of trial. Further, there is a total somersault in her
  cross-examination. There are material variations as c
  regards the identification of the accused persons as well
  as the manner in which the occurrence took place. Apart
  from the prosecutrix not supporting her own version, the
  so-called eye witnesses (PWs 10 and 11), who were none
  other than her niece and nephew, did not support the
                                                                0
  story of the prosecution, the recoveries failed to tally with
  the statements made, the FSL report did not co-relate the
  version alleged. There are prevaricating statements of the
  prosecutrix herself in the implication of the accused to
  the alleged offence of gang rape. There is evidence on
 ·record. that there was no injury on the private parts of the E
  prosecutrix while according to her original version, the
  appellants had forcible sexual intercourse one after the
  other against her. These factors do not convincingly rope
  in the accused to the alleged offence of 'gang rape' on
  the date and time alleged in the charge-sheet. Thus, the F
  prosecutrix failed to instill the required confidence of the
. court in order to confirm the conviction imposed on the
  appellants. The attendant circumstances also do not co-
  relate to the offence alleged against the appellants.
  Therefore, in the absence of proper corroboration of the G
  prosecution version to the alleged offence, it will be
  unsafe to sustain the case of the prosecution. [para 13,
  15-16, 20 and 24] [1168-C-F; 1169-B-E; 1171-B-E; 1174-
  B-E]
     Lalliram & Anr. v. State of Madhya Pradesh - 2008 (13)    H
    1158    SUPREME COURT REPORTS                [2012] 6 S.C.R.


A    SCR 395 = 2008 (10) SCC 69; and Krishan Kumar Malik v.
    State of Haryana 2011 (8) SCR 774 = 2011(7) SCC 130 -
    relied on
       State of Punjab v. Gurmit Singh & Ors. - 1996
B (1) SCR 532 = 1996 (2) SCC 384- held inapplicable
        Ashok Kumar v. State of Haryana - 2003 (2) SCC 143 ....;
    referred to
       State of Himacha/ Pradesh v. Asha Ram 2005 (5) Suppl.

c
              =
    SCR 280 AIR 2006 SC 381 - distinguished.
        1.5. The solitary version of the chief examination of
  the prosecutrix cannot be taken as gospel truth for its
  face value, and in the. absence of any other supporting
  evidence there is no scope to sustain the conviction and
D sentence imposed on the appellants. The prosecution
  has miserably failed to establish the guilt of gang rape
  falling ul6. 376 (2) (g), IPC against the appellants. They
  are,. therefore, acquitted. The judgments and orders of the
  trial court and the High Court are set aside. [paras 26,27)
E [1175-D-G]
                        Case Law Reference:
        1996 (1) SCR 532           held inapplicable para 6
        2011 (8) SCR 77 4          relied on            para 6
F
        2008 (13) SCR 395          relied on            para 6
        2003 (2) sec 143           referred to          para 6
        2005 (5) Suppl. SCR 280 distinguished           para 21
G       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 2486 of 2009.
      From the Judgment & Order dated 27.01.2009 of the High
  Court of Delhi at New Delhi in Criminal Appeal No. 884 of
H 2006.
   RAI SANDEEP @ DEEPU v. STATE OF NCT OF                   1159
                   DELHI

                             WITH                                   A

Crl. A. No. 2487 of 2009.

      Ashok K. Srivastava, Saurabh Trivedi, Shiv Sagar Tiwari
for the Appellant.              '--
                                                                    B
     Mohan Jain, ASG, D.K. Thakur, P.K. Dey, Karthik Ashok,
Shubham, Aggarwal, A.K. Sharma, B.V. Bairam Das, Anil
Katiyar for the Respondent.              ·

     The Judgment of the Court was delivered by
                                                                    c
     FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. These
two appeals at the instance of the accused arise out of the
common judgment dated 27.01.2009. Hence, we will dispose
them of by this common judgment. Both the appellants were
convicted for the offence of gang rape by the trial Court and D
were sentenced to undergo rigorous imprisonment for 10 years
each with a fine of Rs. 3,000/- each, in default to undergo further.
rigorous imprisonment for one year each under Section 376
(2)(g), IPC.
                                                                     E
     2. The case o( the prosecution was that on 15.08.2001 in
the night at about 1.30 a.m. the prosecutrix (PW-4) aged about
34 years was in her sister's house, namely, Seema, that she
heard the noise of knocking at the door, that the minor daughter
of her sister, namely, Noju (PW-10), opened the door and both F
the accused persons entered and the accused Rai Sandeep
@ Deepu told the prosecutrix that he wanted to have sexual
intercourse with her. According to the prosecutrix (PW-4), she
rebuked their demand stating that she was not of that type and
that the appellants threatened her, that in the meantime one
Jitender (PW-11 ), minor son .of her sister Seema appeared and G
both the minor children asked the appellants to go out of their
house but the appellants pushed the minor children into a room
and bolted the door of the room from outside. The further
allegation of the prosecutrix (PW-4) was that the appellant-Rai
                                                                     H
    1160     SUPREME COURT REPORTS                  [2012] 6 S.C.R.


A   Sandeep @ Deepu in Criminal Appeal No.2486 of 2009 made
    her lie down in the Verandah outside the room and had forcible
    sexual intercourse with her while his companion, the appellant
    in Criminal Appeal No.2487 of 2009 was guarding the main
    door of the house. It was further alleged that after the appellant
8   in Criminal Appeal No.2486 of 2009 had forcible intercourse
    with the prosecutrix (PW-4), he took the turn of guarding the
    door while his companion, the appellant in Criminal Appeal
    No.2487 of 2009 also had forcible sexual intercourse with her,
    that both the appellants wiped their private parts with a red
c   colour socks which was lying in the Verandah and while leaving
    the place of occurrence, they took away a gold chain and a wrist
    watch which was lying near the TV inside the room. The
    appellants stated to have left the place by bolting the main door
    from outside. According to the prosecutrix (PW-4), since it was
    dark in the night she did not venture to go out at that time and
0
    in the morning she asked her nephew Jitender (PW-11) to get
    out of the house from roof top and open the door which was
    bolted from outside. Thereafter, she is stated to have reported
    the incident to the police.

E        3. Based on the investigation, the appellants were arrested
    and thereafter the gold chain and the wrist watch was recovered
    at the instance of the appellant in Criminal Appeal No.2486 of
    2009 and subsequently on his disclosure the appellant in
    Criminal Appeal No.2487 of 2009 was also arrested. The
F prosecutrix (PW-4) and the appellants were stated to have
    been medically examined, that the appellant in Criminal Appeal
    No.2487 of 2009 refused to participate in the test identification
    parade, that FSL report of Exhibits were also obtained and the
    charge sheet was filed for the offence of gang rape. Seventeen
G witnesses were examined on the side of the prosecution which
    included the prosecutrix (PW-4) as well as her niece Noju and
    nephew Jitender, minor children of prosecutrix's sister Seema
    who were examined as PWs-10 and 11. PWs 1 and 5 were
    the doctors who testified the medical reP.ort of the prosecutrix
H · (PW-4). PWs-2, 3 and 13 were the doctors who deposed ab_out
 RAI SANDEEP@ DEEPU v. STATE OF NCT OF 1161
DELHI [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

the medical report of both the appellants. SI Rajiv Shah (PW-      A
14) was the investigating officer. None were examined on the
side of the appellants. The appellants have been convicted as
stated above and the said conviction having been confirmed
by the order impugned in this appeal, the appellants are before
us.                                                                B
      4. Learned counsel appearing for the appellant in Criminal
Appeal No.2486 of 2009 submitted that while the alleged
offence took place on the night of 15.08.2001 at 1.30 a.m., the
FIR was lodged at 14.20 hours on the next day, that in the FIR
the name of the appellant in Criminal Appeal No.2486 of 2009       C
alone was mentioned and that there were very many
contradictions in the version of the prosecutrix (PW-4) before
the Court. Learned counsel by referring to the FSL report PW-
14/N contended that the report does not implicate the appellant
to the offence alleged against him. According to learned           D
counsel, the trial Court as well as the High Court ignored the
fact that the accused were neither identified nor their presence
was established at the place of occurrence. It was also
contended that there were material contradictions in the
evidence of PWs 10 and 11, and that of the prosecutirix (PW4)      E
and, therefore, the conviction and sentence imposed is liable
to be set aside.

     5. Learned counsel appearing for the appellant in Criminal
Appeal No.2487 of 2009 in his submissions contended that in        F
the case on hand the evidence of the prosecutrix PW-4 definitely
need corroboration, inasmuch as, there were contradictions in
the entirety of her evidence which were fatal to the case of the
prosecution. Learned counsei contended that the appellant was
not named in the FIR and was roped in due to the statement of      G
the co-accused, namely, the alleged confession Annexure P-
3(colly) in Criminal Appeal No.2487 of 2009 stated to have been
made on 30.08.2001 based on which the present appellant was
implicated. Learned counsel also contended that the medical
evidence also did not support the story of the prosecution. He     H
    1162    SUPREME COURT REPORTS                [2012] 6 S.C.R.


A also made· extensive reference to the evidence of the
  prosecutrix (PW-4) to contend that the same was not in
  consonance with what was stated in the FIR and that, therefore,
  serious doubts were created as to the case of the prosecution
  and the trial Court failed to appreciate the defects of the case
B in proper perspective. By making reference to para 48 of the
  judgment of the trial Court, learned counsel pointed out that the
  statement found therein by referring to the deposition of PW-
  11 was totally misleading inasmuch as no such statement was
  ever made by PW-11. Learned counsel further argued that the
C blood group AB stated to have been detected from the semen
  sample did not match with that of the accused and no blood of
  the accused was ever detected. Learned counsel also pointed
  out that no injury was noted in the breast and thighs of the
  prosecutrix (PW-4) and, therefore, the allegation of forcible
  intercourse was not proved. He further argued by making a
0
  reference to Exhibit PW-4/B the recovery memo of the socks
  from the place of occurrence, that in her      ' evidence the
  prosecutrix (PW-4) deposed that after preferring the complaint
  she was taken to the hospital for medical examination where
  she handed over the socks to the police when her petticoat was
E seized. Learned counsel, therefore, contended that the offence
  of rape alleged against the appellant having not been
  established in the manner known to law, the conviction and
  sentence imposed on the appellant is liable to be set aside.

F      6. As against the above submissions, learned counsel for
  the State very fairly contended that PWs-10 and 11 did ~ot
  support the version of the prosecutrix (PW-4) and solely based
  on the evidence of the prosecutrix as deposed in her chief
  examination, the offence was held proved against the
G appellants. Learned counsel contended that the variation in her
  statement in the course of cross examination may be due to
  the time gap of two years after her examination in chief and,
  therefore, the same does not in any way affect the case of the
  prosecution. Learned counsel by referring to the reasoning of
H the trial Court, namely, that semen stains were found on the
 RAI SANDEEP@ DEEPU v. STATE OF NCT OF 1163
DELHI [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

petticoat of the prosecutrix, that it was not the case of the          A
accused that she had sexual intercourse with her husband on
the previous night, that she was in the house of her sister on
the date of occurrence, that the medical report Exhibit PW-5/A
disclosed an abrasion on the right side of her neck below jaw
and the said injury was not self inflicted and the prosecutrix         B
being a married woman, there was no possibility of bleeding
in vagina as the hymen was old torn and it was sufficient
enough to prove the guilt of the accused. According to him, the
refusal of the appellant in Criminal Appeal No.2487 of 2009 to
participate in the test identification parade was sufficient to find   c
the appellant guilty of the offence alleged against him. Learned
counsel, therefore, contended that the conviction and sentence
imposed do not call for any interference. He placed reliance
upon the decision of this Court reported as State of Punjab v.
Gurmit Singh & Ors. - 1996 (2) SCC 384 in support of his               D
submission. Learned counsel for the appellant in Criminal
Appeal No.2487 of 2009 relied upon the decision in Lalliram
 & Anr. v. State of Madhya Pradesh - 2008 (10) SCC 69,
Krishan Kumar Malik v. State of Haryana - 2011 (7) SCC 130
and Ashok Kumar v. State of Haryana - 2003 (2) SCC 143.
                                                                       E
     7. riaving heard learned counsel for the appellants as well
as the State counsel and having perused the relevant papers
on record as well as the judgments of the courts below, we feel
it appropriate to refer to the various contradictions pointed out
by the learned counsel for the appellants and the                      F
inconsistencies in the case of the prosecution as projected in
the FIR as sought to be demonstrated before the Court in the
form of oral and medical evidence. To recapitulate the case of
the prosecution as projected in the FIR, on the night of
15.08.2001 at about 1.30 a.m., PW-4, the prosecutrix aged              G
about 34 y~ars, a married woman, who was staying in her
sister's house, heard knocking of the door and that when she
opened the door along with her niece Noju (PW-10) who was
a minor girl, the accused alleged to have forcibly entered the
house and demanded sex from the prosecutrix which she                  H
    1164     SUPREME COURT REPORTS                 (2012) 6 S.C.R.


A refused and the appellants forced themselves on her one after
  another after pushing her nephew Jitender (PW-11) and niece
  Noju (PW-10) inside a room and bolting it from outside, and
  that one of the accused kept vigil on the main door while the
  other had forcible sexual intercourse with her in turn. It was also
B alleged that after committing the offence and after wiping their
  private parts with a red colour socks lying in the verandah and
  while leaving the place of occurrence they stealthily removed a
  gold chain and a wrist watch and also bolted the door from
  outside. According to the prosecution, the appellant in Criminal
c Appeal No. 2486 of 2009 was_ apprehended in the first instance
  and based on the admissible portion of his confession, the gold
  chain and wrist watch were recovered and based on his
  disclosure the appellant in Criminal Appeal No. 2487 of 2009
  was also arrested.                     ·

D        8. Keeping the above basic features of the offence alleged
    against the appellants in mind, when we make reference to the
    evidence of the so called 'sterling witness' of the prosecution,
    namely, the prosecutrix, according to her version in the chief
    examination when the persons who knocked at the door, were
E   enquired they claimed that they were from the crime branch
    which was not mentioned in the FIR. She further deposed that
    they made a statement that they had come there to commit theft
    and that they snatched the chain which she was wearing and
    also the watch from Jitender (PW-11). While in the complaint,
F   the accused alleged to have stealthily taken the gold chain and
    wrist watch which were lying near the T.V. It was further alleged
    that the appellant in Criminal Appeal No.2486 of 2009 was
    having a knife in his hand which statement was not found in the
    complaint. After referring to the alleged forcible intercourse by
G   both the appellants she stated that she cleaned herself with the
    red colour socks which was taken into possession under
    Exhibit PW-4/B in the hospital, whereas, Exhibit PW-4/B states
    that the recovery was at the place of occurrence. The police
    stated to have apprehended the appellants at the instance of
H   Jitender (PW-11) who knew the appellant in Criminal Appeal
 RAI SANDEEP @ DEEPU v. STATE OF NCT OF 1165
DELHI [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)

No.2486 of 2009 even prior to the incident, that Jitender (PW-      A
11) also revealed the name of the said accused to her and that,
therefore, she was able to name him in her complaint. When
the seized watch was shown to her in the Court, the brand name
of which was OMEX, she stated that the said watch was not
worn by her nephew Jitender (PW-11) as it was stated to be          B
'TITAN' and the chain was a gold chain having no pendant. She
made it clear that that was not the chain which she was wearing
and that it did not belong to her and that the watch found in the
same parcel which was a women's watch was not the one which
was worn by Jitender (PW-11).                                       c
     9. All the above versions were found in the chief
examination of the prosecutrix (PW-4). In her cross examination,
there was a U-turn in the version of the prosecutrix where she
went to the extent of stating that she never knew the appellant
in Criminal Appeal No.2486 of 2009 prior to the incident and        D.
that she was not aware that accused Rai Sandeep was also
known as Deepu, that she never stated before the police that
Jitender (PW-11) knew Deepu prior to the incident or at the
time of incident, that since it was dark on the date of
occurrence, she could not indentify the accused, that her           E
statement of orally identifying the accused was at the instance
of the police. When the learned APP wanted to· cross examine
her, the same was declined by the crime Court and there was
also no re-examination of the prosecutrix (PW-4).
                                                                    F
      10. Keeping aside the version of PW-4, the prosecutrix,
when we examine the so-called eye witnesses Noju (PW-10)
and Jitender (PW-11 ), their version is much more revealing.
Noju (PW-10) is the niece of the prosecutrix (PW-4), daughter
of prosecutrix (PW-4)'s sister, who was 10 years old at the time    G
of examination. Before recording her evidence, with a view to
test the capacity of the witness to depose before the Court, the
Court questioned her about her blood relations, education and
as to whether one should speak the truth or lie and on being
satisfied, PW-10 was questioned. The trial Court, after             H
     1166   SUPREME COURT REPORTS                [2012] 6 S.C.R.


A scrutinizing the replies and noting that the girl child was
  answering the questions in a rationale manner found her to be
  a competent witness. Thereafter when she was asked to identity
  the accused, she made it clear that they were not the persons.
  The witness further deposed that prosecutrix (PW-4) is her aunt,
8 that in the year 2001 when she was sleeping in the house she
  did not know as to what happened or as to anything happened
  at all. Learned counsel with the permission of the Court, cross
  examined the said witness when she deposed that two
  persons never entered her home or ever confined her or
C anybody else in any room nor they threatened anybody. She
  also deposed that their house was not bolted from outside and
  her brother did not open the door from outside.

       11. Jitender (PW-11) who was 20 years old at the time of
  his examination stated in his chief examination that 3 years
D prior to the date of his examination in the month of August, he
  was sleeping on the roof top, th;:it he saw two persons
  quarrelling with his aunt, that he raised a hue and cry, that
  thereafter both the persons ran away and that nothing else
  happened. He also stated that he did not come down at all. He
E totally denied the sequence of events as alleged in the
  complaint and as narrated by PW-4 in her evidence.

        12. Apart from the above version of the prosecution
 1
  witnesses, when reference is made to the medical report
F relating to the prosecutrix as per Annexure P-4, there was an
  injury of abrasion on right side neck below her jaw and that
  there was no other injury either in the breast or her thighs. The
  hymen was torn old, that there was no injury on the valva and
  that there was no bleeding in her vagina. In the FSL report
  Exhibit PW-14/N, it is stated that there was no semen detected
G on the red colour socks. However, human semen was detected
  on the petticoat. But there was no matching of the blood group
  noted on the petticoat vis-a-vis the blood group of the accused.

      13. Keeping the above evidence available on record, when
H we analyze the case of the prosecutlon as projected, we find
  RAI · SANDEEP @ DEEPU v. STATE OF NCT OF 1167
 DELHI [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

  that apart from the total prevaricating statement of the              A
  prosecutrix herself in her oral version before the Court, the other
  two witnesses PWs 10 and 11 who were none other then her
  niece and nephew not supported the story of the prosecution.
  Leaving aside the version of the prosecutrix, we wonder why
  Noju (PW-10), a minor girl child should at all make a statement       B
  totally conflicting with the case of the prosecution. The
  prosecutrix being her maternal aunt, there is no reason for her
  to spin a different story and let her down. Going by her version,
  the accused persons were never seen in her house on the date
  of occurrence. She being minor child, the trial court ascertained     c
  her capability to depose as a witness. When we examine the
  nature of queries made by the learned trial Judge to the said
  witness, we find that her replies were all cogent and she knew
  for what purpose she was standing before the Court. She was
  very much aware that·she shoulCJ not utter any falsehood. The
                                                                        0
  Court was, therefore, convinced of her composure and only
· thereafter proceeded to record her statement. The Court itself
  pointed out the accused present before the Court and asked
  her as to whether they were present in her house on the date
  of incident, to which she replied without any hesitation and          E
  deposed that they were not present. She went one step ahead
  and made it clear that on that night nothing happened at all.
  Again her brother Jitender (PW-11) stated that he heard two
  persons quarrelling with his aunt. He also made it clear that
  apart from the said quarrel and on his making a hue and cry
  both of them ran away and nothing else happened.                      F

     14. The other discrepancies which are to be mentioned
are the categorical statement of the prosecutrix (PW-4) herself
that after the alleged forcible sexual intercourse by both the
accused, she wiped of her private parts with a red colour socks G
which was lying in the house, though at another place it was
s~ted that both the accused used the red colour socks to wipe
of their private parts after the commission of the offence.
Assuming both the versions to be true, we find that the red
colour socks sent for chemical examination revealed that it did H
    1168     SUPREME COURT REPORTS                   [2012] 6 S.C.R.


A  not contain any semblance of semen in it as per the FSL report
   Exhibit PW- 14/N. It was also pointed out that while according
   to her the socks was handed over to the police in the hospital
   when the petticoat and the socks were seized from her,
   according to the seizure memo the socks was recovered from
B the place of occurrence. She was a married woman and except
   the semen found in the petticoat, there is no other reliable
  ·evidence for implicating the accused-appellants to the crime
   alleged against them. In this background, when we refer to the
   oral version of the prosecutrix (PW-4), as pointed out by
c  learned counsel for the appellant, very many facts which were
   not found in her original statement were revealed for the first
   time before the Court.

          15. In our considered opinion, the 'sterling witness' should
    be of a very high quality and caliber whose version should,
D   therefore, be unassailable. The Court considering the version
    of such witness should be in a position to accept it for its face
    value without any hesitation. To test the quality of such a
    witness, the status of the witness would be immaterial and what
    would be relevant is the truthfulness of .the statement made by
E   such a witness. What would be more relevant would be the
    consistency of the statement right from the starting point till the_
    end, namely, at the time when the witness makes the initial
    statement and ultimately before the Court. It should be natural
    and consistent with the case of the prosecution qua the
F   accused. There should not be any prevarication in the version
    of such a witness. The witness should be in a position to
    withstand the cross-examination of any length and strenuous it
    may be and under no circumstance should give room for any
    doubt as to the factum of the occurrence, the persons involved,
G   as well as, the sequence of it. Such a version should have co-
    relation with each and everyone of other supporting material
    such as the recoveries mad.e, the weapons used, the manner
    of offence committed, the scientific evidence and the expert
    opinion. The said version should consistently match with the
H   version of every other witness. It can even be stated that it
 RAI SANDEEP@ DEEPU v. STATE OF NCT OF 1169
DELHI [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

should be akin to the test applied in the case of circumstantial      A
evidence where there should not be any missing link in the chain
of circumstances to hold the accused guilty .of the offence
alleged against him. Only if the version of such a witness
qualifies the above test as well as all other similar such tests
to be applied, it can be held that such a witness can be called       B
as a 'sterling witness' whose version can be accepted by the
Court without any corroboration and based on which the guilty
can be punished. To be more precise, the version of the said
witness on the core spectrum of the crime should remain intact
while all other attendant materials, namely, oral, documentary        c
and material objects should match the said version in material
particulars in order to enable the Court trying the offence to rely
on the core version to sieve the other supporting materials for
holding the offender guilty of the charge alleged.

      16. In the anvil of the above principles, when we test the      D
version of PW-4, the prosecutrix, it is unfortunate that the said
witness has failed to pass any of the tests mentioned above.
There is total variation in her version from what was stated in
the complaint and what was deposed before the Court at the
time of trial. There are material variations as regards the           E
identification of the accused persons, as well as, the manner
in which the occurrence took place. The so-called eye witnesses
did not support the story of the prosecution. The recoveries
failed to tally with the statements made. The FSL report did not
co-relate the version alleged and thus the prosecutrix failed to      F
instill the required confidence of the Court in order to confirm
the conviction imposed on the appellants.

      17. With the above slippery evidence on record against
the appellants when we apply the law on the subject, in the           G
decision reported in .State of Punjab v. Gurrnit Singh & Ors.
(supra), this Court was considering the case of sexual assault
on an young girl below 16 years of age who hailed from a
village and was a student of 10th standard in the Government
High School and that when she was returning back to her house
                                                                      H
    1170     SUPREME COURT REPORTS                [2012] 6 S.C.R.


A   she was kidnapped by three persons. The victim was stated
    to have been taken to a tubewell shed of one of the accused
    where she was made to drink alcohol and thereafter gang raped
    under the threat of murder.

        18. The prosecutrix in that case maintained the allegation
8
  of kidnapping as well as gang rape. However, when she was
  not able to refer to the make of the car and its colour in which
  she was kidnapped and that she did not raise any alarm, as
  well as, the delay in the lodging of the FIR, this Court held that
  those were all circumstances which could not be adversely
C attributed to a minor girl belonging to the poor section of the
  society and on that score, her version about the offence alleged
  against the accused could not be doubted so long as her
  version of the offence of alleged kidnapping and gang rape was
  consistent in her evidence. We, therefore, do not find any scope
D to apply whatever is stated in the said decision which was
  peculiar to the facts of that case, to be applied to the case on
  hand.

         19. In the decision reported in Ashok Kumar v. State of
E   Haryana (supra), this court while dealing with the offence under
    Section 376 (2) (g) IPC read with explanation held as under in
    Para 8:

        "8.Charge against the appellant is under Section 376(2)(g)
        IPC. In order to establish an offence under Section
F       376(2)(g) IPC, read with Explanation I thereto, the
        prosecution must adduce evidence to indicate that more
        than one accused had acted in concert and in such an
        event, if rape had been committed by even one, all the
        accused will be guilty irrespective of the fact that she had
G       been raped by one or more of them and it is not necessary
        for the prosecution to adduce evidence of a completed act
        of rape by each one of the accused. In other words, this
        provision embodies a principle of joint liability and the
        essence of that liability is the existence of common
H       intention; that common intention presupposes prior concert
. RAI SANDEEP @ bEEPU v. STATE OF NCT OF 1171
 DELHI [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

    which may be determined from the c~nduct of offenders            A
    revealed during the course of action and it could arise and
    be formed suddenly, but, there must be meeting of minds.
    It is not enough to have the same intention independently
    of each of the offenders. In such cases, there must be
    criminal sharing marking out a certain measure of jointness      s
    in the commission of offence."

     20. Applying the above principle to the case on hand, we
find that except the ipse-dixit of the prosecutrix that too in her
chief examination, with various additions and total somersault       C
in the cross examination with no support at all at the instance
of her niece and nephew who according to her were present
in the house at the time of occurrence, as well as, the FSL
report which disclosed the absence of semen in the socks
which was stated to have been used by the accused as well
as the prosecutrix to wipe of semen, apart from various other        D
discrepancies in the matter of recoveries, namely, that while
according to the prosecutrix the watch snatched away by the
accused was 'Titan' while what was recovered was 'Omex'
watch, and the chain which was alleged to have been recovered
at the instance of the accused admittedly was not the one            E
stolen, all. the above factors do not convincingly rope in the
accused to the alleged offence of 'gang rape' on the date and
time alleged in the chargesheet.

    21. In the decision reported as State of Himachal Pradesh·       F
v. Asha Ram - AIR 2006 SC 381, this Court highlighted th,e
importance to be given to the testimony of the prosecutri~ as
under in para 5:

          5 .............................. It is now well-settled
    principle of law that conviction can be founded on the           G
    testimony of the prosecutrix alone unless there are
    compelling reasons for seeking corroboration. The
    evidence of a prosecutrix is more reliable than that of an
    injured witness. The testimony of the victim of sexual
    assault is vital, unless there are compelling reasons which      H
    1172    SUPREME COURT REPORTS                 [2012] 6 S.C.R.


A       necessitate looking for corroboration of her statement, the
        courts should find no difficulty in acting on the testimony
        of a victim of sexual assault alone to convict an accused
        where her testimony inspires confidence and is found to
        be reliable. It is also a well-settled principle of law that
B       corroboration as a condition for judicial reliance on the
        testimony of the prosecutrix is not a requirement of law but
        a guidance of prudence under the given circumstances.
        The evidence of the prosecutrix is more reliable than that
        of an injured witness. Even minor contradictions or
c       insignificant discrepancies in the statement of the
        prosecutrix should not be a ground for throwing out an
        otherwise reliable prosecution case."

                                                (emphasis added)

D      22. That was a case where the father alleged to have
  committed the offence of rape on one of his daughters who was
  staying with him while his wife was living separately due to
  estranged relationship. While dealing with the said case, where
  the prosecutrix, namely, the daughter, apart from the complaint
E lodged by her, maintained her allegation against her father in
  the Court as well. This Court held that the version of the
  prosecutrix in the facts and circumstances of that case merited
  acceptance without any corroboration, inasmuch as, the
  evidence of rape victim is more reliable even that of an injured
F witness. It was also laid down that minor contradictions and
  discrepancies are insignificant and immaterial in the case of
  the prosecutrix can be ignored. As compared to the case on
  hand, we find that apart from the prosecutrix not supporting her
  own version, the other oral as well as forensic evidence also
  do not support the case of the prosecution. There were material
G contradictions leave alone lack of corroboration in the evidence
  of the prosecutrix. It cannot be said that since the prosecutrix
  was examined after two years there could be variation. Even
  while giving allowance for the time gap in the recording of her
  deposition, she would not have come forward with a version
H
 RAI SANDEEP @ DEEPU v. STATE OF NCT OF 1173
DELHI [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

totally conflicting with what she stated in her complaint,          A
especially when she was the victim of the alleged brutal
onslaught on her by two men that too against her wish. In such
circumstances, it will be highly dangerous to rely on such
version of the prosecutrix in order to support the case of the
prosecution.                                                        B

      23. In the decision reported as Lalliram & Anr. v. State of
Madhya Pradesh (supra) in regard to an offence of gang rape
falling under Section 376 (2) (g) this Court laid down the
principles as under in paras 11 and 12:
                                                                    c
           "11. It is true that injury is not a sine qua non for
    deciding whether rape has been committed. But it has to
    be decided on the factual matrix of each case. As was
    observed by this Court in Pratap Misra v. State of Orissa
    where allegation is of rape by many persons and several         D
    times but no injury is noticed that certainly is an important
    factor and if the prosecutrix's version is credible, then no
    corroboration is necessary. But if the prosecutrix's version
    is not credible then there would be need for corroboration.
    (See Aman Kumar v. State of Haryana.)                           E

            12. As rightly contended by learned counsel for the
    appellants, a decision has to be considered in the
    background of the factual scenario. In criminal cases the
    question of a precedent particularly relating to appreciation   F
    of evidence is really of no consequence. In Aman Kumar
    case it was observed that a prosecutrix complaining of
    having been a victim bf the offence of rape is not an
    accomplice. There is no rule of law that her testimony
    cannot be acted up~>n without corroboration in material
    particulars. She stands on a higher pedestal than the           G
    injured witness. In the latter case there is injury in the
    physical form while in the former both physical as well as
    psychological and emotional. However, if the court finds
    it difficult to accept the version of a prosecutrix on the
                                                                    H
    1174     SUPREME COURT REPORTS                  [2012] 6 S.C.R.


A        face value, it may search for evidence direct or
         circumstantial."

                                                  (emphasis added)

         24. When we apply the above principles to the case on
B   hand, we find the prevaricating statements of the prosecutrix
    herself in the implication of the accused to the alleged offence
    of gang rape. There is evidence on record that there was no
    injury on the breast or the thighs of the prosecutrix and only a
    minor abrasion on the right side neck below jaw was noted
C   while according to the prosecutrix's original version, the
    appellants had forcible sexual intercourse one after the other
    against her. If that was so, it is hard to believe that there was
    no other injury on the private parts of the prosecutrix as
    highlighted in the said decision. When on the face value the
D   evidence is found to be defective, the attendant circumstances
    and other evidence have to be necessarily examined to see
    whether the allegation of gang rape was true. Unfortunately, the
    version of the so called eye witnesses to at least the initial part
    of the crime has not supported the story of the prosecution. The
E   attendant circumstances also do not co-relate to the offence
    alleged against the appellants. Therefore, in the absence of
    proper corroboration of the prosecution version to the alleged
    offence, it will be unsafe to sustain the case of the prosecution.

         25. In the decision reported as Krishan Kumar Malik v.
F   State of Haryana (supra) in respect of the offence of gang rape
    under Section 376 (2) (g), IPC, it has been held as under in
    paras 31 and 32:

               "31. No doubt, it is true that to hold an accused guilty
G        for commission of an offence of rape, the solitary evidence
         of the prosecutrix is sufficient provided the same inspires
         confidence and appears to be absolutely trustworthy,
         unblemished and should be of sterling quality. But, in the
         case in hand, the evidence of the prosecutrix, showing
H        several lacunae, which have already been projected
  RAI SANDEEP @ DEEPU v. STATE OF NCT OF 1175
 DELHI [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

       hereinabove, would go to show that her evidence does not       A
       fall in that category and cannot be relied upon to hold the
       appellant guilty of the said offences.

             32. Indeed there are several significant variations in
       material facts in her Section 164 statement, Section 161
                                                                      B
       statement (CrPC), FIR and deposition in court. Thus, it was
       necessary to get her evidence corroborated
       independently, which they could have done either by
       examination of Ritu, her sister or Bimla Devi, who were
       present in the house at the time of her alleged abduction.     C
       The record shows that Bimla Devi though cited as a
       witness was not examined and later given up by the public
       prosecutor on the ground that she has been won over by
       the appellant."

                                               (emphasis added)       D

    26. Applying the said principles to the facts of the case
on hand, we find that the solitary version of the chief
examination of PW-4, the prosecutrix cannot be taken as
gospel truth for its face value and in the absence of any other       E
supporting evidence, there is no scope to sustain the conviction
and sentence imposed on the appellants.

      27. The prosecution has miserably failed to establish the
guilt of gang rape falling under Section 376 (2) (g), IPC against
the appellants. The conviction and sentence imposed on the            F
appellants by the trial Court and confirmed by the impugned
order of the High Court cannot, therefore, be sustained. The
appeals are allowed. The judgment and order of conviction and
sentence passed by the trial Court and confirmed by the High
Court are hereby set aside. The appellants are acquitted of all       G
the charges and they be set at liberty forthwith, if not required
in any other case.

R.P.                                            Appeals allowed.
                                                                      H