Holding

The conviction cannot be sustained as the identification of the accused was unreliable and the prosecution evidence was doubtful, so the accused are acquitted.

Summary

The Supreme Court examined the conviction of thirteen accused for gang rape under IPC s.376(2)(g) based largely on the victim's testimony, her mother's statements, and semen‑stained underwear. The Court found that the victim showed no physical injuries, her statements were inconsistent, and her character was questionable, while the identification parade was flawed, with accused covered by blankets and identification doubtful. The medical evidence of semen on underwear was deemed insufficient to corroborate the rape allegation. Applying the principle that a prosecutrix's testimony must be treated like that of an injured witness but still requires reliable corroboration, the Court held that the prosecution story was doubtful. Consequently, the benefit of doubt was extended to all appellants and the non‑appealing co‑accused, leading to their acquittal.

Issues considered

The prosecution evidence, including the victim's testimony, was sufficient to sustain a conviction under IPC s.376(2)(g) without corroboration.
Whether the presence of semen on the accused's underwear constitutes adequate corroboration of the rape allegation.
The impact of the victim's alleged prostitution and character on the credibility of her testimony.
Whether the benefit of doubt should extend to a non‑appealing co‑accused when the prosecution case is doubtful.

Legislation cited

Indian Evidence Act, 1872s. 1138, s. 113A, s. 114A
Indian Penal Code, 1860s. 366, s. 376(2)(g)

Subjects

rapegang rapeIPC 376evidentiary standardsvictim testimonyidentification paradebenefit of doubtsexual assaultmedical evidencecharacter evidence

Judgment

1--
[2008] 16 S.C.R. 1078 ,
'
I

A RAJOO & ORS. ~
.v.
. STATE OF M.P ..
(Criminal Appeal Nos. 1094-1098 of 2000)
'
DECEMBER 3, 2008
.B
[DALVEER BHANDARI AND HARJll SINGH BEDI, JJ.]

,1 Penal Code, 1860:

c .s.376 - Rape - Testimony of prosecutrix -Appreciation
of - Principles re-iterated.

s.376(2)(g) """ Gang rape - Allegations of - No marks of
injury. on person of prosecutrix,' despite her claim of having
been'raped by 13· men - Character of prosecutrix apparen·t/y
D adverse - Identification of accused also doubtful - Accused-
appellants accordingly acquitted - Benefit or acquittal
extended to. non-appealing co-accused.

According to the prosecution, the prosecutrix PW9
... E along with her mother PWS were on their way to the
bazaar for purchasing household items, when they were
accosted by four of the accused, whereafter two accused
put a towel on the face of PW9 and after slapping her.
several times, made her sit on a scooter and took her
F near the newly constructed quarters ··where the ·other
acc~sed were already present and thereafter all the
accused turn by turn committed rape on her.
PW9 was produced before PW1 for medical
examination, who did not observe any marks of injury on
G a:ny p'rt .of· her body other than a swelling on the lower
jaw. ,The Doctor opined that as PWB was so habituated
to' sexual intercourse, she was una~le to give any
opinion about the intercourse having been committed .
recently.·
1078
RAJOO & ORS. v. STATE OF M.P. 1079

The accused were arrested and the underwear they A
--. were allegedly wearing at the time of incident were seized
and on chemical: examination, were found to be stained
with semen.
The trial court relying on the evidence of PW9, as
corroborated by the statement of her mother PW8, and
8
further relying on the fact that 9 of the accused had been
~ ~ identified in the test identification parade and that the
medical evidence showed the presence of semen in
vagina of PW9, convicted all the 13 accused under
section 376 (2){g)IPC. c
On appeal, the High Court acquitted two accused,
but upheld the conviction of the other 11 accused.
While 10 ~onvicts filed appeals before this Court, the
one remaining convict chose not to do so. D

Allowing· the appeals, the Court
t-
/
H.ELD:· 1. Rape is one of the most heinous and
reprehensible of crimes that can be committed on a
woman a~d it is for this reason that courts have leaned E
-... heavily in favour of such a victim. Ordinarily the evidence
of a prosecutrix should not be ·suspect and should be
believed, the moreso as her statement has to be
evaluated at par with that of an injured witness and if her
evidence is reliable, no corroboration is necessary. F
t
However, this test cannot be universally and mechanically
-..\
applied to the facts of every case of sexual assault which
comr.s before the Court. It cannot be lost sight of that
rape causes the greatest distress and humiliation to the
victim, but at the same time a false allegation of rape can G
cause equal distress, humiliation and damage to the
accused as well. The accused must also be protected
.. >
against the. possibility of false implication, particularly
where a large number of accused are involved. It must,
further, be borne in mind that the broad principle is that H
'
1080 SUPREME COURT REPORTS [2008] 16 S.C.R.

A an injured witness was present at the time when the
incident happened and that ordinarily such a witness f
would not tell a lie as to the actual assailants, but there
. is no presumption or any basis for assuming· that the
statement of such a witness is always correct or without
I
B any ·embellishment or exaggeration. lns·ofar as I
allegations of rape are concerned, the eviden~e of a
prosecutrix must be examined as thaf of an injured
witness whose presence at the spot is probable but it can r- "'
never be presumed that her statement should, without
c exception, be taken as the gospel truth. [Paras 6 and 9]
(1086-E; 1089-0-E-G; 1090-C-D]
State of Punjab v. Gurmit Singh & Ors. ('1996) 2 SCC 384
and Ranjit Hazarika v. State of Assam (1998) 8 SCC 635,
referred to.
D
2. In the present case, it has come in the evidence of
PW8 that the prosecutrix had been married while a child
but her gauna had not been performed as her husband, -+ /
had, in the meanwhile, taken a second wife. The 'Doctor
PW1 ·has~ however, opined that- the prosecutrix was so
E
habituated to sexual intercourse that it was not possible
to ascertain as to when she had last been subjected to
it. It has also come in the evidence of PW8 thatthe police
had often questioned the prosecutrix as to why ·she was
indulging in prostitution. The prosecutrix herself also
F admitted that she had once been arrested in a Hotel case
but had been bailed. out. Though, as. per allegations of
PW9, all 13 accused had assaulted her one after the other,
but the doctor did not find even a scratch on her person.
The trial court and the High Court have not accepted the
G plea raised by the accused as to the adverse character
of the prosecutrix as the evidence on this score was not
conclusive; However, in the light of the facts of ttie case, ct -4
it is probable that the prosecutrix was indeed involved in
some kind of improper activity. [Para 11] [1090~G-H; 109~ -
H A~ .
RAJOO & ORS. v. STATE OF M.P. 1081

3. PWS, who was unsure, as to the identity of the A
""""'
{ )\
accused, stated that she knew Nandoo, Pyaru, Pawan,
Pintoo and Raju but conceded that she had not known
Z of the accused at the time of the incident but after
police had enquired .about the names of the boys in
her presence, she had come to know who they were. She B
also stated that some of the boys had been arrested on
the day of the incident and that she had been called to
~ 1 visit the police station several times to identify them and
that the police had often threatened her and her daughter
that if they. did not come to the police station they would c
file a case against them. In her examination-in-chief, PWS
clearly stated that she was not in a position to identify the
boys at the time of incident or even in Court. The
prosecutrix, her mother and all the accused were
residents of Ruabandha and as per the prosecutrix's D
evidence she was aware of the identity of only a few of
them whom she had named in the FIR. Also, in her
1 examination-in-chief, the prosec'-'trix stated that at the
time when she had been taken away on the Luna she did
not know the names of the accused who were taking her
E
away and Jhat she was not personally acquainted with
any of the boys at the time of incident and did not know
their names and was not in a position to recognize them.
In the ligh_t of the categorical statements of the two main
prosecution witnesses, the identification of the accused
is extremely doubtful. [Para 12] [1091-G-H; 1092-A-D] F
~
4. The test identification parade conducted by PWS
Naib Tehsildar is equally farcical. He stated that 36
persons in all, including 9 of the accused, had been
associated with the parade held by him but he also G
admitted that the 9 accused had been covered with black
and brown coloured blankets. The only inference that
,.,. >
can be drawn from this admission is that similar and
distinctive blankets had been provided so as to facilitate
the. identification of the accused. Moreover, in the light of H
1082 SUPREME COURT REPORTS [2008] 16 S.C.R.

A the. fact that the witness had. been shown to the
prosecutrix not once but several times.while they were A.
in police custqdy, the identification parade held by PW5
is .even •otherwise meaningless. [Para 13] (1093-C•E]
. . i ..
.· . 5. In th~ 1i9ht of the fact that tfle identification of the
8
~ccused is found to b~ doubtful, the recov.ery of ~he
underwe~r of some accused becomes meaningless.
Nevertheless, it is somewhat difficult to beiieve that the r ~
accused had themselves provided the evidence of
having committed rape soon after the ·incident, and even
c .more surprising, that some of thetn had done so three
days thereafter. The recovery of the stained underwear
is a factor which, by itself, cannot support a case of rape
against the accused. [Para 14] [10.93-F; 1094-A-B]

D 6. On an examination of the entire evidence, it would
be difficult to conclusively show the involvement of each
of the accused beyond reasonable doubt. The truth and I
I.-
falsehood are so inextricably intertwined, that it is -t r

impossible to· discern where one ends and the other ...
E begins. In the light' of the fact that the prosecution story
is found to be doubtful, the non-appealing convict too
must be given the benefit of doubt. Appellants as also the
non-appealing accused are accordingly acquitted. [Paras
15, 16] [1094-C-D]
F Raja Ram & Ors. v. State of"M.P.' (1994) 2 SCC 568;
Arokia Thomas v. State of T.N. (2006) 10 SCC 542 and ,..
Suresh Chaudhary etc. v. State of Bihar (2003). 4 SCC 128,
relied on.

G . Case Law Reference:
·. (1 ~9~) i~ sec 384 reiied
, on Para 6
. (1998) a·sec 63 relied on Para 8

H
RAJOO & ORS. v. STATE OF M.P. 1083

~.
<1~94) a sec ssa relied on Para 16 A
(2ooa) 1o sec 542 relied on Para 16
(2003) 4 sec 12s relied on Para 16
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal B
Nos. 1094-1098 of 2000.
-1
From the Judgmentand Order dated 12.5.2000 of the High
Court of Madhya Pradesh at Jabalpur in Criminal Appeal Nos.
450, 511, 519, 592.and 657of1989.
c
Ranjit Kumar, Fakruddin and Binu Tamta for the Appellants.

C.D. Singh, Sunny Chowdhary, Vairagya Vardhan, Aditya
Singh and Upasana Nath for the Respondent.
B. Sunita Rao for complainant. D
t The Judgment of the Court was delivered by
HARJIT SINGH BEDI, J. 1. These appeals by way of
special leave arise out of the following facts.
E
2. On 28th December 1986, the prosecutrix PW9 along
with her mother, Dukhni Bai PW8 were on their way to the
bazaar for purchasing households items. While on the way, they
met four of the accused Pyaru, Nandoo, Rajoo and Pentoo, who
~ .
addressed the prosecutrix as a prostitute and then asked her F
to go with them to a hotel some distance away. The prosecutrix,
however, refused to accept this order on which Nandoo and
Pyaru put a towel on her face and after slapping her several
times, made her sit on a scooter with Nandoo in front and
Pyaru at the rear and the prosecuritx in· the middle. The two G
-..... > accused then took the prosecutrix near the newly constructed
quarters where the other accused were already present. It is
the case of the prosecution that all the accused, first Nandoo,
and thereafter the others turn by turn committed rape on her,
and after having satisfied their lust, she was dropped by some H
1084 SUPREME COURT REPORTS [2008] 16 S.C.R.

A of them near the peepal tree in the bazaar. She then reported
the matter to the police at about 10 p.m. the same evening in
which she named Nandoo and Bindu as the two accused who
had taken her on the Luna but also stated that as all the other
accused were from Ruabandha, she would be able to
s-recognize them. A case under sections 366 and 376 of the IPC
was accordingly registered by Sub-Inspector P.N. Shukla PW10.
The Police Officer also seized a saree and a petticoat which
the prosecutrix nad been wearing at the time of the commission
of rape and also produced her before PW1 Dr. Smt. Christian
C for her medical examination. The Doctor observed no marks
of injury visible on any part of her body other than a swelling on
the lower jaw but opined that as she was habituated to sexual
intercourse, she (the Doctor) was unable to give any opinion
about the intercourse having been committed recently, though
a foul smell was emanating from the vagina and slides were
0
taken therefrom. Some of the accused were arrested on 29th
December 1986 whereas the others were arrested on 2nd t
January 1987 and the underwear they were allegedly wearing
at the time of incident were seized and thereafter sent to the
laboratory and were subsequently found to be stained with
E semen. The accused were also produced before PW2 Dr. S.S.
Dhillon and PW3 Dr. P. Srivastava, who opined that all the
accused were capable of performing sexual intercourse. On
13th December 1986, 9 of the 13 accused were intermingled
with 27 other persons and were subjected to an identification
F parade under the supervision of Sakharam Mahilong, Naib
Tehsildar (PW5). As per the evidence of this officer, all the
accused were duly identified by the prosecutrix by putting her
hand over the head of each accused.

G 3. On the completion of the investigation, all 13 accused
were charged for offences punishable under Sections 366/376
of the IPC and as they pleaded not guilty, they were brought to
trial. The trial court in its judgment dated May 26, 1989 relying
on the evidence of the prosecutrix, as corroborated by the
H statement of her mother PW8, and further relying on the fact
RAJOO & ORS. v. STATE OF M.P. 1085
[HARJIT SINGH BEDI, J.]

that 9 of the accused had been identified in the test identification A
parade and that the medical evidence showed the presence
of semen in her vagina, found the case against all the accused
as partly proved, and while acquitting them of the offence under
section 366 of the IPC convicted them for the offence under
section 376 (2)(g) with a sentence of RI for 10 years and a fine 8

- '-+
of Rs.200/- and in default of fine to undergo RI for 6 months.
Several appeals were thereafter filed by the accused in the
High Court which observed that two of the accused appellants
i.e. Ramaiya and Krishna had not been identified in the
identification parade and were, thus, liable to acquittal. The c
other appeals were, however, dismissed with the modification
in the sentence from 10 years to 8 years RI with an increase in
the fine of Rs.200/- to Rs.5000/- to be made payable within 6
months failing which they would undergo RI for 10 years. The
present appeals have been filed by 10 of the accused as Raju D
son of Billya chose not to file an appeal. It is in these
t circumstances that the matter is before us for final hearing.
4. Mr. Ranjit Kumar, the learned senior counsel for the
accused-appellants has raised several arguments during the
course of hearing. He has first emphasized that as the story E
projected by the prosecution witnesses i.e. the prosecutrix PW9
and her mother PW8 in so far as the offence under section 366
of the IPC was concerned, had been disbelieved, the conviction
under section 376(2)(g) of the IPC on the same evidence was
uncalled for. He has also pointed out that as there was no injury F
~
on the person of the prosecutrix, despite her claim of having
been· raped by 13 young men, falsified the entire story and the
fact that she. was apparently a girl of easy virtue was an
additional reason as to why her evidence should be examined
with care. He has, however, especially emphasized that as a G
,. Ji
large number of persons had been involved, their identification
beyond doubt was a sine qua non for conviction and as both
the prosecutrix and her mother had at one stage stated that they
knew the accused and 9 of them had been identified by the
former in an identification parade in a procedure which was, H
1086 SUPREME COURT REPORTS (2008] 16 S.C.R.

A to say the least, 9pen to grave suspicion, the evidence of ,._
identification too was unacceptable.

5. The learned State counsel has, however, submitted that
the prosecutrix and her mother had· no reason to falsely ·
implicate the accused and in the light of the fact that they were
8
illiterate and belonged to a backward area·, some indulgence
was to be shown to them with respect to the minor ,._ -
inconsistencies in their statements inter-se. He has also
pointed out that the accused had been identified in the light of
C an electric pole at the place of incident and as. Nandoo, Bindoo
and Pyaru who had first accosted the prosecutrix were known
to her, their involvement was in any case virtually proved. He
has finally urged that the chemical examiner's report had
revealed t.he presence of semen stains on the underwear which
the accused had been wearing, showed that rape had indeed
D been committed.

6. We have heard the learned counsel for the parties and .,.
gone, through the record. It is true that rape is one of the most
heinous and reprehensible of crimes that can be committed on
E a woman and it is for this reason that courts have leaned heavily
in favour of such a victim. [See: State of Punjab vs. Gurmit
Singh & Ors. (1996) 2 SCC 384]. In this ni'atter this Court
allowed the State appeal against acquittal and while convicting
the accused under section 376 of the IPC, observed thus: ·
F "Of late, crime against women in general and rape ·
in particular is on the increase. It is an irony that while we
are celebrating women's rights in all spheres, we show .little
or no concern for her honour. It is a sad reflection on the
attitude of indifference of the society towards the violation ·.
G of human dignity of the victims of sex crimes. We must
remember that a rapist not only violates the victim's privacy
and personal integrity, but inevitably causes serious
psychological as well as physical harm in the p(ocess.
Rape is not merely a physical assault - it is often ·
H destructive of the whole personality' of the victim. A
RAJOO & ORS. v. STATE OF M.P._ 1087
. [HARJIT SINGH BEDI, J.]

murderer destroys the physical body of his victim, a rapist A
degrades the very soul of the helpless female. The Courts,
therefore, shoulder a great responsibility while trying an
accused on charges of rape. They must deal with such
cases with utmost sensitivity. The Courts should examine
the broader probabilities of a case and not get swayed by B
minor contradictions or insignificant discrepancies in the
statement of the prosecutrix, which are not of a fatal nature,
to throw out an otherwise reliable prosecution case. If
evidence of the prosecutrix inspires confidence, it must be
relied upon without seeking corroboration of her statement c
in material particulars. If for some reason the Court finds
it difficult to place implicit reliance on her testimony, it may
look for evidence which may lend assurance to her
testimony, short of corroboration required in the case of
an accomplice. The testimony of the prosecutrix must be
0
appreciated in the background of the entire case and the
trial court must be alive to its responsibility and be
sensitive while dealing with cases involving sexual
molestations.

7. The Court also observe(.i that the alarming frequency of E
crimes against women had led Parliament to make some
special laws in the background that rape was a very serious
offence and that this was another factor which was to be kept
in mind while appreciating the evidence in such matters.
F
8. The observations in Gurmit Singh's case were ,
reiterated in Ranjit Hazarika vs. State of Assam (1998) 8 SCC
635 in the following terms:

"The courts must, while evaluating evidence, remain
alive to the fact that in a case of rape, no self-respecting G
.,. .\ woman would come forward in a court just to make a
humiliating statement against her honour such as is
~nvolv.ed in_ the :9ommiss~on al rape on her .. In c~ses
mvolvmg sexual molestation, supposed cons1derat1ons
which have no material effect on the veracity of the H
1088 SUPREME COURT REPORTS (2008] 16 S.C.R.

A prosecution case or even discrepancies in the statement
of the prosecutrix should not, unless the discrepancies are
such which are of fatal,nature, be allowed to throw out an
otherwise reliable prosecution case. The inherent
bashfulness of the females and the tendency to conceal
B outrage of sexual aggression are factors which the courts
should not overlook. The testimony of the victim in such
cases is vital and unless there are compelling reasons t-
which necessitate looking for corroboration of her
statement, the courts should find no difficulty to act on the
c testimony of a victim of sexual assault alone to convict an
accused where her testimony inspires confidence and is
found to be reliable. Seeking corroboration of her
statement before relying upon the same, as a rule, in such
cases amounts to adding insult to injury. Why should the
evidence of a girl or a woman who complains of rape or
D
sexual molestation be viewed with doubt, disbelief or
suspicion? The court while appreciating the evidence of ·lt
a prosecutrix may look for some assurance of her
statement to satisfy its judicial conscience, since she is a
witness who is interested in the outcome of the charge
E leveled by her, but there is no requirement of law to insist
upon corroboration of her statement to base conviction of
an accused. The evidence of a victim of sexual assault
stands almost on a par with the evidence of an injured
witness and to an extent is even more reliable. Just as a
F witness who has sustained some injury in the occurrence,
which is not found to be self-inflicted, is considered to be "'
a good witness in the sense that he is least likely to
shield the real culprit, the evidence of a victim of a sexual
offence is entitled to great weight, absence of
G corroboration notwithstanding. Corroborative evidence is
not an imperative component of judicial credence in every
case of rape. Corroboration as a condition for judicial
~ --
reliance on the testimony of the prosecutrix is not a
requirement of law but a guidance of prudence under given
H circumstances. It must not be overlooked that a woman or
RAJOO & ORS. v. STATE OF M.P. 1089
[HARJIT SINGH BEDI, J.]
)<
a girl subjected to sexual assault is not an accomplice to A
the crime but is a victim of another person's lust and it is
improper and undesirable to test her evidence with a
certain amount of suspicion, treating her as if she were an
accomplice. Inferences have to be drawn from a given set
of facts and circumstances with realistic diversity and not B
dead uniformity lest that type of rigidity in the shape of_ rule
-;
of law is introduced through a new form of testimonial
tyranny making justice a casualty. Courts cannot cling to a
fossil formula and insist upon corroboration even if, taken
as a whole, the case spoken of by the victim of sex crime c
strik~s the judicial mind as probable."

9. The aforesaid judgments lay down the basic principle
that ordinarily the evidence of a prosecutrix should not be
suspect and should be believed, the more so as her statement
has to be evaluated at par with that of an injured witness and if b
the evidence is reliable, no corroboration is necessary.
Undoubtedly, the aforesaid observations must carry the greatest
weight and we respectfully agree with them, but at the same
time they cannot be universally and mechanically applied to the
facts of every case of sexual assault which comes before the E
Court. It cannot be lost sight of that rape causes the greatest
distress and humiliation to the victim but at the same time a
false allegation of rape can cause equal distress, humiliation
and damage to the accused as well. The accused must also
be protected ~gainst the possibility of false implication, F
particularly where a large number of'accused are involved. It
must, further, be borne in mind that the broad principle is that
an injured witness was present at the time when the incident
happened and that ordinarily such a witness would not tell a lie
as to the actual assailants, but there is no presumption or any G
basis for assuming that the statement of such a witness is
... ~
always correct or without any embellishment or exaggeration.
Reference has been made in Gurmit Singh's case to the
amendments in 1983 to Sections 375 and 376 of the India
Penal Code making the penal provisions relating to rape more H
1090 SUPREME COURT REPORTS (2008] 16 S.C.R.

A stringent; and also to Section 114A of the Evidence Act with
respect to a presumption to be raised with regard to
allegations of consensual sex in a case of alleged rape. It is
however significant that Sections 113A and 1138 too were
inserted in the Evidence Act by the same amendment by wh.ich
B certain presumptions in cases of abetment of suicide and
dowry death have been raised against the accused. These two
Sections, thus, raise a clear presumption in favour qf the
prosecution but no similar presumption with respect to rape is
visualized as the presumption under Section 114A is extremely
c restricted in its applicability. This clearly shows that in so far
as allegations of rape are concerned, the evidence of a
prosecutrix must be examined as that of .an injured witness
whose presence at the spot is probable but it can never be .
presumed that her statement should, without exception, 'be ·
taken as the gospel truth. Additionally her st~tement can, at best,
0
be adjudged on the principle that ordinarily no injured witness
would tell a lie or implicate a person fc;ilsely. We believe that it
is· under these principles that this case, and others slich as this
one, need to be examined.

E 10. Undoubtedly, the charge under section 366 of the IPC
has not been made out as per the findings of the courts below.
We, however, find that the evidence of rape is distinct from the
other charge and the matter should be examined in that
background. We are, accordingly, of the opinion that merely
F because the accused have been acquitted for the offence
punishable under Section 366 of the IPC is ipso-facto no reason
to disbelieve the entire prosecution story on this solitary ground.

11. The veracity of the story projected by the prosecution
G qua allegations of rape must, thus, be examined. It has come
in the evidence of PW8 that the prosecutr:ix had been married
while a child. but her gauna had not been performed as her
husband; had, in the meanwhile, taken a second wife. The
Doctor PW1 DL Smt. Christian has, however, opined that the
prosecutrix was so habituated to sexual intercourse that it was
H
RAJOO & ORS. v. STATE OF M.P. 1091
[HARJIT SINGH BEDI, J.]

not possible to ascertain as to when she had last been A '

A subjected to it. It has also come in the evidence of PW8 that
the police had ofteti questioned the prosecutrix as to why she
was indulging in prostitution. The prosecutrix herself also
admitted that she had once been arrested. in the Ajanta Hotel
case but had been bailed out by Shri Bansal, Advocate. It is B
indeed surprising that though, as per her allegations, all 13
accused had assaulted her one after the other, but the doctor
--; did not find even a scratch on her person. The trial court and
the High Court have not accepted the plea raised by the
accused as to the adverse character of the prosecutrix as the c
evidence on this score was not conclusive. We are of the
opinion, however, that in the light of the facts mentioned above,
it is probable that the prosecutrix was indeed involved in some
kind of improper activity.

12. The other evidence in the matter would have to be D
examined in this background. Primary emphasis has been
~ placed by Mr. Ranjit Kumar on the identification of the accused.
f It has been submitted that the identification itself was faulty
whereas the State Counsel has argued to the contrary and
submitted that as the accused were known to the prosecutrix E
she had been in a position to identify them. The question of
identification is, to our mind, the determining factor in this case.
In the FIR the prosecutrix has named four of the accused as
having committed rape on her, they being Nandoo, Bindu,
Pintoo and Raju. PW8, who was unsure, as to the identity of F
the accused, however, stated that she knew Nandoo, Pyaru,
~
Pawan, Pintoo and Raju but conceded that she had not known
any of the accused at the time of the incident but after the police
had enquired about the names of the boys in her presence, she
had come to know who they were. It is also significant that the G
Court had recorded a note that even after she had named the
five accused she had been able to identify only Pawan and she
~ J had not been able to identify any of the other accused. She also
stated that some of the boys had been arrested on the day 'of
the incident and that she had been called to visit the police ·H
1092 SUPREME COURT REPORTS [2008] 16. S.C.R.

A station several times to identify them and that the police had
often threatened her and her daughter that if they did not come A ~

to th~ police station they would file a case against them. In the
last paragraph of her examination-in-chief PW8 clearly stated
that she was not in a position to identify the boys atthe time of
B incident or even in Court. It is significant that.the prosecutrix,
her mother and all the accused were residents of Ruabandha
and as per the prosecutrix's evidence she was aware of the
identity of only a few of them whom she had named in the FIR.
,..
It is also significant that in her examination~in-chief the
c prosecutrix stated that at the time when she had been taken
away on the Luna she did not know the names of the accused
who were taking her away and that she was not personally
acquainted with any of the boys at the time of incident and did
not know their names and was not in a position to recognize
them. In paragraph 46 of the evidence, this is what she had to·
D
say:
I
"Police personnel had taken me to Police Station at
about 2.30 O'clock in the night. Immediately after lodging
-t
,,
the report there, they came at the place of occurrence
E taking me there and had got identified the accused
persons having taken them out of their houses. Then the
police personnel had taken the accused persons also at
the Police Station. In that night nine boys had been brought
having arrested. Remaining five boys had been brought by
F the police on the second day. I had identified those also
in the Police Station.
'f
After arrest of nine-ten boys, they had taken near the
house where incident had taken place and they had asked
to identify the remaining boys. Then I had identified 4-5
G
boys from that crowd: I had gone to the Police Station
having sit in Daga with all those boys. Witness now states
that 2-3 boys had been arrested from the houses, J.:. ¥

remaining 6-7 boys had been arrested from Dance site,
remaining 4-5 boys had been brought having arrested on
H
RAJOO & ORS. v. STATE OF M.P. 1093
[HARJIT SINGH BEDI, J.]

the second day. A
)I,

I had not gone to the houses of the boys for
identification. Police personals had called them in the hotel
and I used to identify them there."

We are of the opinion that in the light of the B
categorical statements of the two main prosecution
•' ~
witnesses, the identification of the accused is extremely
J doubtful.
.l
~
13. The test identification parade conducted by PW5 c
Sakharam-Mahilong, Naib Tehsildar is equally farcical. This
witness stated that 36 persons in all, including 9 of the accused,
had been associated with the parade held by him on 30th
December 1986 but he also admitted that the 9 accused had
been covered with black and brown coloured blankets. To our D
mind the only inference that can be drawn from this admission
is that similar and distinctive blankets had been provided so
--4 ... as to facilitate the identification of the accused. Moreover, in
~ the light of the fact that the witness had been shown to the
prosecutrix not once but several times while they were in police E
custody, the identification parade held by PW5 is even
otherwise meaningless.
-, 14. The learned State counsel has, however, placed
'
special emphasis on the fact that the underwear handed over
by the accused to the investigating officer were found by the F
chemical examiner to be stained with semen which
-'!
corroborated the prosecution story. In the light of the fact that
we have found the identification of the accused to be doubtful,
the recovery of the underwear becomes meaningless. But we
have nevertheless chosen to examine this submission as well. F
In this connection, we have gone through the evidence of Durga
., j_
Prasad Shukla PW10, the investigating officer. We notice that
the underwear of some of the accused had been produced by
them on 29th December 1986 whereas the remaining accused
had likewise produced their underwear on the 2nd of January H
1094 SUPREME COURT REPORTS [2008] 16 S.C.R.

A 1987. We find it some what difficult to believe that the accused
had themselves provided tne evidence of having committed I
rape soon after the incident, and even more surprising, that \I
some of them had done so three days after the incid~nt. The
recovery of the stained underwear is a factor which, by itself,
B cannot support a case·of rape against the accused.
. j • ,· ••

· 15. On an examination of the entire evidence, we are of
the opinion that it would be difficult to conclusively show the ~-
involvement of each of the accused beyond reasonable doubt.
To our mind the truth and falsehood are so inextricably
C · intertwined, that it is impossible to discern Where one ends and
the other begins.

16. As already noted above Raju, son of M. Billya did not
file an appeal in this court: In the light of the fact that we have -
D found the prosecution story to be doubtful, Raju too must be
giv.en the benefit of doubt in the light of the judgments in Raja
Ram & Ors. Vs. State.of M.P. (1994) 2 SCC 568, Arokia
Thomas vs. State of T.N. (2006) 10 SCC 542 and Suiesh
Chaudhary etc. vs. State of Bihar (2003) 4 SCC 128. We,
E accord,ngly allow the appeals and acquit the present
·appellants, as also Raju son of M. Billya.

B.B.B. Appeals allowed.

A. o.