Holding

A credible victim’s testimony need not be corroborated, and where injuries and forensic evidence substantiate the allegation, conviction stands; however, an accused whose identity is not established cannot be convicted.

Summary

The State of Himachal Pradesh appealed the acquittal of Lekh Raj and Diwan Chand for the alleged rape of a 55‑year‑old widow. The prosecution relied on the victim's testimony, her injuries, and forensic evidence of blood and semen on her torn salwar. The High Court had set aside the conviction on the grounds that the identity of Diwan Chand was not established, that the absence of spermatozoa negated sexual intercourse, and that the salwar seal was improper. The Supreme Court held that a credible prosecutrix need not have her testimony corroborated, that injuries and semen evidence are sufficient corroboration, and that test identification is required only when the accused is unknown to the witness. Consequently, the Court upheld the conviction and sentence of Lekh Raj but affirmed the acquittal of Diwan Chand, partially allowing the appeal.

Issues considered

The identity of respondent No.2 (Diwan Chand) was established without test identification.
Whether the absence of dead or mobile spermatozoa defeats proof of rape.
Whether medical injuries and semen on the victim's clothing constitute sufficient corroboration of the victim's testimony.
Whether the discrepancy in the place of occurrence (road vs. 20 feet from road) is fatal to the prosecution case.
Whether the sealing of the salwar was properly established as evidence.

Legislation cited

Code of Criminal Procedure, 1973s. 161
Indian Evidence Act, 1872s. 114-A, s. 118
Indian Penal Code, 1860s. 323, s. 376(2)(g)

Subjects

rapecorroborationtest identificationmedical evidenceforensic evidenceidentity of accuseddiscrepancy in testimonyconvictionacquittalevidence law

Judgment

A STATE OF HIMACHAL PRADESH
11.
LEKH RAJ AND ANR.

NOVEMBER 2, 1999

B [S. SAGHIR AHMAD AND R.P. SETHI, JJ.]

Indian Penal Code, 1860.

Section 376-Rape-Statement of Prosecutrix-Corroboration-Whether
C mandatory-Held, there is no requirement of law to insist upon corroboration
of such statement-If the prosecutrix believed to be truthful witness, no
corroboration may be insisted-Under the facts and circumstances, evidence
of prosecutrix reliable-Even otherwise, injuries on her person sufficient
corroboration-Absence of dead or mobile spermatozoa not fatal.

D Criminal Trial-Test Identification Prade-Prosecutrix seeing the accused
for the first time in court after occurrence-No identification parade conducted-
Accused not known to prosecutrix-Accused not mentioned in FIR-Held, identity
of alleged accused was not established during investigation and there is no
satisfactory evidence regarding his involvement.
E Criminal Trial-Administration ofJustice-Courts-Approach of-Held, the
traditional dogmatic hypertechnical approach has to be replaced by rational,
realistic and genuine approach-Realities of life to be kept in mind while
appreciating evidence-Erosion of values in the prevalent system cannot be
ignored.
F
Prosecution alleged that the prosecutrix was criminally assaulted and
subjected to forcible sexual intercourse by the respondents. The prosecutrix
was medically examined and various injuries were found on her person and
the Doctor opined that the injuries reflected signs of struggle. The torn Salwar
of the proseutrix was sent for chemical analysis and the report showed
G presence of human blood and semen on it Trial Court convicted the appellants
under Section 376(2)(g) and 323 of the Indian Penal Code. Appeal filed by the
respondents was allowed by the High Court on the ground that the identily of
Respondent No. 2 was not established by the prosecution at the trial; that
absence of dead or mobile spermatozoa ruled out the possibility of sexual
H intercourse as alleged; that the sealing of Salwar was not properly established;
286
ST ATE OF HIMACHAL PRADESH v. LEKH RAJ 287
and that there was discrepancy with regard to the place of occurrence. Against A
the order of the High Court the State has filed the present appeal.

Partly allowing the appeal, the Court

HELD : 1.1. The evidence of identifying the a-:cused person at the trial B
for the first time is, from its very nature, inherently of a weak character.
Test identification is considered a safe rule of prudence to generally look for
corroboration of the sworn testimony of witness in Court as to the identity of
the accused who are strangers to them. The absence of Test Identification
may not be fatal if the accused is known or sufficiently described in the
complaint leaving no doubt in the mind of the court regarding his involvement C
or where the accused persons are arrested at the spot. The identification
parade even if held, cannot, in all cases, be considered as safe, sole and
trustworthy evidence on which the conviction ofthe accused could be sustained.
(291-D, E, F, GI

Budhsen & Anr. v. State of U.P., [197012 SCC 128, relied on. D

1.2. Admittedly the name of respondent no. 2 was not known to the
prosecutrix and thus his name was not mentioned in the F.l.R. In her statement
before the Trial Court the prosecutrix admitted that she had not known
respondent no. 2 earlier a~d further that no identification Parade was E
conducted by the investigating agency. She further admitted having seen the
respondent No.2 in the court only after the day of occurrence. The identity of
respondent No. 2 was, admittedly, not established during the investigation and
it is not clear as to how the said respondent was put on trial along with
respondent no. 1. Respondent no.2 could not be held guilty as no
unimpeachable, reliable and satisfactory evidence was produced regarding his F
involvement in the commission of the crime. (291-A, B; 292-C)

2.1. The finding regarding absence of dead or mobile spermatozoa was
not referable to any evidence on record. No such suggestion was put to the
doctor nor any medical authority referred to in support of such conclusions. G
The presence of spermatozoa, dead or alive, would differ from person to person
and its positive presence depends upon various circumstances. The presence
or absence of spermatozoa is.ascertained only for the purpose of corroboration
of the statement of the prosecutrix. [292-E, F; 293-A]

State of Maharashtra v. Chandraprakash Kewalchand Jain, [1990) I H
288 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A sec 550, relied on.
Medical Jurisprudence and Toxicology by Modi, referred to.

3. If the prosecutrix is believed to be truthful witness, in her deposition
no further corroboration may be insisted. Corroboration is admittedly only a
B rule of prudence. There is no requirement of law to insist upon corroboration
of the statement of a victim of sexual assault to base conviction of an accused.
(293-C; 294-F)

State ofPunjab v. Gurmeet Singh & Ors .. [1996)2 SCC 384 and State of
,, Maharashtra v. Chandraprakash Kewalchand Jain, (1990) I SCC 550, relied
,>
'
c on.
4. It is not denied that the seized Salwar had stains of blood and semen
on it. The mere fact that some different marks were noted on the sealed packet
was by itself no ground to discard the otherwise reliable evidence of the
prosecutrix. (296-D]
D
5. The Medical evidence clearly specified the injuries on the person of
the proseutrix which proved and established the struggle and resistance
shown by her at the time of commission of the offence of rape. The injuries
were sufficient to lend corroboration to the testimony of the prosecutrix
E particularly when no motive is attributed to her for falsely involving 1the
respondent no.I in the commission of the crime. The fact that the prosecutrix
was a widow of about 55 years of age having two grown up children was a
circumstance to be taken note of for the purposes of satisfying the court that
there was no ulterior motive of roping the accused in the commission of crime.
(296-E, H; 297-A-C)
F
6.1. Discrepancy has to be distinguished from contradiction. Wher1:as
contradiction in the statement of the witness is fatal for the case, minor
discrepancy or variance in evidence will not make the prosecution case
doubtful. The normal course of human conduct would be that while narrating
a particular incidence there may occur minor discrepancies; such
G
discrepancies in law may render credential to the depositions. Parrot like
statements are disfavoured by the courts. In order to ascertain as to whether
the discrepancy pointed out was minor or not or the same amounted to
contradiction, regard is required to be had to the circumstances of the ca1se
by keeping in view the social status of the witnesses and environment in which .
H such witness was making the statement. [297-D, E] --
ST ATE OF HIMACHAL PRADESH v. LEKH RAJ 289
Ousu Varghese v. State of Kera/a, [1974)3 SCC 767; Jagdish v. State of A
Madhya Pradesh, [1981) SCC Crl. 676; State of Rajasthan v. Kalki & Anr,
[1981 I 2 sec 752 and Leela Ram v. State of Haryana & Anr, J T., (1999) 8
SC 274, relied on.

6.2. The proseutrix has categorically stated that she was dragged from B
the road down the path which was about 20 feet away from the road and raped
there which is also her statement recorded under Section 161 Cr. P.C. The
discrepancy or contradiction pointed out is that in the FIR which was
submitted the place of occurrence was mentioned as road. The discrepancy
can be attributed to the prosecutrix being scared, nervous and hesitant Such
a discrepancy cannot be held to be a major discrepancy amounting to C
contradiction under the circumstances of the case. [2~1-G, H; 299-A)

7. In arriving at a conclusion about the truth, the Courts are required
to adopt rational approach and judge the evidence by its intrinsic worth and
the animus of the witnesses. The hypertechnicalities or figment of imagination D
should not be allowed to divest the court of its responsibility of sifting and
weighing the evidence to arrive at the conclusion regarding the existence or
otherwise of a particular circumstance keeping in view the peculiar facts of

- each case, the social position of the victim and the accused, the larger interests
of the society particularly the law and order problem and degrading values of
life inherent in the prevalent system. The realities of life have to be kept in E
mind while appreciating the evidence for arriving at the truth. The courts
are not obliged to make efforts either to give latitude to the prosecution or
loosely construe the law in favour of the accused. The traditional dogmatic
hypertechnical approach has to be replaced by rational realistic and genuine
approach for administering justice in a criminal trial. Criminal jurisprudence
cannot be considered to be utopian thought but have to be considered as part F
and parcel of the human civilisation and the realities of life. Courts cannot
ignore the erosion in values of life which are a common feature of the present
system. Such erosions cannot be given a bonus in favour of those who are
guilty of polluting society and the mankind. (299-G, H; 300-A, B, CJ

State of Punjab v. Jagir Singh, Baljit Singh and Karam Singh, [1974) 3 G
sec 277, relied on.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
117 4 of 1999.
H
290 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A From the Judgment and Order dated 29.10.98 of the Himachal Pradesh
High Court in Crl. A. No.144 of 1996.

Ms. Meenakshi Arora for the Appellant.

Arjun Bhandari, Chirag Bhanu Singh and Arun K. Sinha for the
B Respondents.

The Judgment of the Court was delivered by

SETHI, J. Leave granted.

c The prosecutrix, a widow of 55 years of age was criminally assaulted
and subjected to forcible sexual intercourse by the respondents on I 0.11.1993
near her village Baadi in Gumanu Nalla District Mandi, Himachal Pradesh
when she was coming back to her house after attending the marriage of the
daughter of her husband's brother. The first Information Report was submitted
D by her on the next date against the respondents. She was medically examined
and her tom Salwar was sent for chemical analysis. On medical examination
various injuries were found on her person. As the prosecutrix was found

E
habituated to sexual intercourse, being an elderly woman and mother of two
grown up children, no opinion was possible about the last date of sexual act.
However the Doctor upon examination of the injuries, mentioned in the medico-
legal certificate, was of the opinion that the injuries reflected the signs of
-
struggle. The Trial Court of Sessions Judge, Mandi convicted the appellants
under Sections 376(2)(g) and 323 of the Indian Penal Code and sentenced
them to undergo rigorous imprisonment for five years and to pay a fine of Rs.
5,000 each under Section 376 IPC and six months rigorous imprisonment under
F Section 323 with fine of Rs. 500 each. In default of the payment of fine, the
appellants were to undergo further rigorous imprisonment specified in the
judgment. In appeal filed by the appellants the High Court vide order impugned
in this appeal set aside the order of the Sessions Judge and acquitted the
respondents of the charges framed against them. Alleging that the judgment
of the High Court was against law and facts, the State has preferred this
G acquittal appeal.

The respondent No. 2 has been acquitted by the High Court on the
ground that his identity could not be established by the prosecution at the
trial. The admitted position is that the name of respondent No. 2 was not
H known to the prosecutrix and thus his name was not mentioned in the FIR.
STATE OF HIMACHAL PRADESH v. LEKH RAJ [SETHI, J.] 291
She had, in the written report lodged with the Superintendent of Police, Mandi A
on 11.10.1993, stated that respondent No. 1 "with another person whose name
is not known to the complainant interrupted the complainant from her back
and gagged her mouth. They pounced upon her and made her to lay down
on the road and had forcible sexual intercourse with her". In her statement
before the Trial Court the prosecutrix admitted that she had not known the
respondent No. 2 earlier and further that no Identification Parade was ~onducted B
by the investigating agency. She further admitted having seen the respondent
No. 2 in the Court only after the day of occurrence. How the respondent No.
2 was named as an accused person is a mystery shrouded with doubts which
has not been properly and sufficiently explained by the prosecution. During
the investigation of a crime the police agency is required to hold Identification C
Parade for the purposes of enabling the witness to identify the person
alleged to have committed the offence particularly when such person was not
previously known to the witness or the informant. The absence of Test
Identification may not be fatal if the accused is known or sufficiently described
in the complaint leaving no doubt in the mind of the Court regarding his
involvement. Identification Parade may also not be necessary in a case where D
the accused persons are arrested at the spot. The evidence of identifying the
accused person at the trial for the first time is, from its very nature, inherently
of a weak character. This Court in Budhsen & Anr. v. State of U.P., [ 1970] 2
SCC 128 held that the evidence in order to carry conviction should ordinarily
clarify as to how and under what circumstances the complainant or the E
witness came to pick out the particular accused person and the details of the
part which he allegedly played in the crime in question with reasonable
particularly. In such cases test identification is considered as safe rule of
prudence to generally- look for corroboration of the sworn testimony of
witnesses in Court as to the identity of the accused who are strangers to
them. There may, however, be exceptions to this general rule, when, for F
example, the court is impressed by a particular witness on whose testimony
it can safely rely without such or other corroboration. Though the holding
of identification proceedings are not substantive evidence. Yet they are used
for corroboration purposes for believing that the person brought before the
court was the real person involved in the commission of the crime. The G
ident.ification parade even if held, cannot, in all cases, be considered as safe,
sole and trustworthy evidence on which the conviction of the accused could
.-~

be sustained. It is a rule of prudence which is required to be followed in cases
where accused is not known to the witnesses or the complainant.

The holding of identification parade in the instant case would have H
292 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A been irrelevant, had the name of respondent No. 2 been mentioned in the FIR
Exhibit P/D. The prosecutrix in her deposition before the Trial Court even
denied the suggestion of the respondent No. 2 to the effect that the respondent
No. 2 had been working at her place as a Mason. It was, therefore, incorrect
for the Trial Court to hold :

B "So far as the identification of the accused is concerned that is not
disputed at all, therefore, at the relevant time they could not have
been identified by the prosecutrix."

The identity of the respondent No. 2 was, admittedly, not established during
C the investigation and it is not clear as to how the said respondent was put
on trial along with respondent No. I. We agree with the finding of the High
Court that accused Diwan Chand could not be held guilty as no unimpeachable,
reliable and satisfactory evidence was produced regarding his involvement in
the commission of the crime.

D We are, however, of the opinion that the High Court was not justified
in holding that the prosecutrix had not been subjected to forcible sexual
intercourse or the prosecution had failed to prove the case against the
respondent No. I also. To hold that the prosecution had not proved the case
against the respondent, beyond reasonable doubt, the High Court mainly
E relied upon the medical evidence and finding that "no dead or alive
spermatozoa were seen. Absence of such dead or mobile spermatozoa either
in the vagina or in the cervix of the prosecutrix rules out the possibility of
the prosecutrix having been subjected to sexual intercourse on the date and
time alleged by the prosecution". Such a conclusion is not referable to any
evidence on record. No such suggestion was put to the doctor nor any
F medical authority referred to in support of the conclusions arrived at by the
High Court. This Court in State of Maharashtra v. Chandraprakash
Kewalchand Jain, [ 1990] l SCC 550 relying upon medical evidence observed
that "supermatoz~a can be found if the woman is examined within 12 hours
after intercourse, thereafter they may be found between 48 and 72 hours but
in dead form. If the prosecutrix washes herself by then, the spermatozoa may
G not be found. In that case the Court after satisfying itself regarding the
presence of semen on the clothes of the prosecutrix held that "the absence
of semen or spermatozoa in the vaginal smear and slides, cannot cast doubt
on the creditworthiness of the prosecutrix". ·

H Modi in his Medical Jurisprudence and Toxicology has noted :
I
STATE OF HIMACHAL PRADESH v. LEKH RAJ [SETHI, J.) 293
"The presence of supennatozoa in the vagina after intercourse has A
been reported by Pollak (1943) from 30 minutes to 17 days, and by
Morrison ( 1972) upto 9 days in vagina and 12 days in the cervix.
However, in the vagina of a dead woman, they persist for a longer
period."

It follows, therefore, that the presence of spennatozoa, dead or alive, would· B
different from person to person and its positive presence depend upon
various circumstances. Otherwise also the presence or absence of spennatozoa
is ascertained for the purposes of corroboration of the statement of the
prosecutrix. If the prosecutrix is believed to be truthful witness, in her
deposition no further corroboration may be insisted. Corroboration is admittedly C
only a rule of prudence. This Court in State of Punjab v. Gurmeet Singh &
. Ors., [ 1996) 2 SCC 3 84 took note of the existing rate of crime against the
woman and held :

"Of late, crime against women in general and rape in particular is on
the increase. It is in irony that while we are celebrating woman's rights D
in all spheres, we show little or no concern for her honour. It is a sad
reflection oil the attitude of indifference of the ·society towards the
violation 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 process. Rape is not merely a physical assault- E
it is often destructive of the whole personality of the victim. A
murderer destroys the physical body of his victim, a rapist 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 F
~hould examine the broader probabilities of a case and not get swayed
by minor contradictions of 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 in material particulars. If for some G
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 appreciated in the background
of the entire case and the trial court must be alive of its responsibility H
294 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A and be sensitive while dealing with cases involving sexual
molestations."

Referring to an earlier judgment in Chandraprakash Kewalchand Jain's case

B
(supra) this Court in Gurmit Singh 's case held :

"The courts must, while evaluating evidence, remain alive to the fact
-
,

that in a case of rape, no self-respecting woman would come forward
in a court just to make a humiliating statement against her honour
such as is involved in the commission of rape on her. In cases
involving sexual molestation, supposed considerations which have no
c material effect on the veracity of the 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 outrage of
sexual aggression are factors which the courts should not overlook.
D The testimony of the victim in such cases 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 a victim of sexual assault alone to convict an accused where her ·
testimony inspires confidence and is found to be reliable. Seeking"
E 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 sexual
molestation, be viewed with doubt, disbelief or suspicion? The court
while appreciating the evidence of a prosecutrix may-look for some
assurance of her statement to satisfy its judicial conscience, since she
F is a witness who is interested in the outcome of the charge levelled
by her, but there is no requirement of la~ 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 part with the evidence
of an injured witness and to an extent is even more reliable. Just as
a witness who has sustained some injury in the occurrence, which is
G
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
corroboration notwithstanding. Corroborative evidence is not an
imperative component of judicial credence in every case of rape.
H Corroboration as a condition for judicial reliance on the testimony of
ST ATE OF HIMACHAL PRADESH v. LEKH RAJ [SETHI, J.] 295
the prosecutrix is not a requirement of law but a guidance of prudence A
under given circumstances. It must not be ·overlooked that a woman
or a girl subjected to sexual assault is not an accomplice to 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 dead B
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 strikes the judicial mind as probable. In State of C
Maharashtra v. Chandraprakash Kewalchand Jain, [I 990] 1 SCC 550
Ahmadi, J. (as the Lord Chief Justice then was) speaking for the Bench
summarised the position in the following words (SCC p. 559, para 16):

"A prosecutrix of a sex offence cannot be put on a par with an
accomplice. She is in fact a victim of the crime. The Evidence D
Act nowhere says that her evidence cannot be accepted unless
it is corroborated in material particulars. She is undoubtedly a
competent witness under Section 118 and her evidence must
receive the same weight as is attached to an injured in cases of
physical violence. The same degree of care and caution must E
attach in the evaluation of her evidence as in the case of an
injured complainant or witness and no more. What is necessary
is that the court must be alive to and conscious of the fact that
it is dealing with the evidence of a person who is interested in
the outcome of the charge levelled by her. If the court keeps this
in mind and feels satisfied that it can act on the evidence of the F
prosecutrix, there is no rule of law or practice incorporated in the
Evidence Act similar to illustration (b) to Section 114 which
requires it to look for corroboration. If for some reason the court
is hesitant to place implicit reliance on the testimony of the
prosecutrix it may look for evidence which may lend assurance G
to her testimony short of corroboration required in the case of
an accomplice. The nature of evidence required to lend assurance
to the testimony of the prosecutrix must necessarily depend on
the facts and circumstances of each case. But if a prosecutrix is
an adult and of full understanding the court is entitled to base
a conviction on her evidence unless the same is shown to be H
296 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A infirm and not trustworthy. If the totality of the circumstances
appearing on the record of the case discussed that the prosecutrix
does not have a strong motive to falsely involve the person
charged, the court should ordinarily have no hesitation in
accepting her evidence."

B We are in respectful agreement with the above exposition of law. In
the instant case our careful analysis of the statement of the prosecutrix
has created an impression on our minds that she is a reliable and
truthful witness. Her testimony suffers from no infirmity or blemish
whatsoever. We have no hesitation in acting upon her testimony

c alone without looking for any 'corroboration'. However, in this case
there is ample corroboration available on the record to lend further
credence to the testimony of the prosecutrix."

The other circumstances which prevailed upon the High Court to pass the
order of acquittal is that the sealing of Salwar Exhibit P-1 was not properly
D established. It is not denied that the seized Salwar had stains of blood and
semen on it. The mere fact that some different marks were noted on the sealed
packet was by itself no ground to discard the otherwise reliable evidence of
the prosecutrix. The High Court appears to have completely ignored the
medical evidence specifying the injuries on the person of the prosecutrix
which proved and established the struggle and resistance shown _by her at
E the time of commission of the offence of rape. Doctor had noted the following
injuries on the person of the prosecutrix :

"!. There was a small abrasion on right side of her forehead with
clotted blood.

F 2. There were abrasions on extensive surfaces on both legs and
left knees which were redish brown in colour.

3. There were multiple abrasion on lateral surface of both thighs.

4. There was a bruise on posterior surface on left thigh.
G
5. There was also a bruise on left buttock 4" x 3" in size.

6. Abrasion on left side of back in lumber region."

These injuries were sufficient to lend corroboration to the testimony of the
H prosecutrix particularly when no motive is attributed to her for falsely involving
STATE OF HIMACHAL PRADESH v. LEKH RAJ [SETHI, J.] . 297

the respondent No. 1 in the commission of the crime . The prosecutrix, in her A
cross examination, had denied even the suggestion that the injuries sustained
by her were sustained while cutting grass in the jungle. She had also denied
that she was a liquor addict. The suggestion regarding the existence of a
dispute between Lekh Raj-respondents and her husband over the fishing net
was also not admitted. She also denied the suggestion that the accused
persons had neither met her nor committed any rape. The suggestions in B
cross examination were not rightly believed by the courts below to hold the
existence of motive for falsely implicating the respondents. During the
arguments before us also the learned counsel for the appellant could not
1 point out to the existence of any motive for falsely implicating the respondents.
The fact that the prosecutrix was a widow of about 55 years of age having C
two grown up children was a circumstance to be taken note of for the
purposes of satisfying the Court that there was no ulterior motive of roping
the accused in the commission of crime.

In support of the impugned judgment the learned counsel appearing
for the respondents vainly attempted to point out some discrepancies in the D
statement of the prosecutrix and other witnesses for discrediting the
prosecution version. Discrepancy has to be distinguished from contradiction.
Whereas contradiction in the statement of the witness is fatal for the case,
minor discrepancy or variance in evidence will not make the prosecution's
case doubtful. The normal course of the human conduct would be that while E
narrating a particular incidence there may occur minor discrepancies, such
discrepancies in Jaw may render credential to the depositions. Parrot like
statements are disfavoured by the courts. In order to ascertain as to whether
the discrepancy pointed out was minor or not or the same amounted to
contradiction, regard is required to be had to the circumstances of the case
by keeping in view the social status of the witnesses and environment in F
which such witness was making the statement. This Court in Ousu Varghese
v. State ofKera/a, [1974] 3 SCC 767, held that minor variations in the accounts
of the witnesses are often the hallmark of the truth of their testimony. In
Jagdish v. State of Madhya Pradesh, [1981] SCC (Cr!.) 676, this Court held
that when the discrepancies were comparatively of a minor character and did
G
not go to the root of the prosecution story, they need not be given undue '
I
/"
importance. Mere congruity or consistency is not the sole test of truth in the
depositions. This Court again in State of Rajasthan v. Kalki & Anr., [1981]
2 SCC 752 held that in the depositions of witnesses there are always normal
discrepancy, however, honest and truthful they may be. Such discrepancies
are due to normal errors of observation, normal errors of memory due to lapse H
298 SUPREME COURT REPORTS (1999] SµPP. 4 S.C.R.

A of time, due to mental disposition such as shock and horror ai the time of
occurrence, and the like. Material discrepancies are those which are not
nonnal, and not expected of a nonnal person.

Referring to and relying upon the earlier judgments of this Court in State of
U.P. v. MK. Anthony, AIR (1985) SC 48, Tehsildar Singh and Anr. v State of
B U.P., AIR (1959) SC 1012; Appabhai and Anr. v. State of Gujarat, JT (1988)
1 SC 249; Rami alias Rameshwar v. State of Madhya Pradesh, JT (1999) 7
SC 24 7 and Bhura alias Sajjan Kumar v. State of Madhya Pradesh, JT ( 1999)
7 SC 247, this Court in a recent case Leela Ram v. State of Haryana and Anr.,
-JT (1999) 8 SC 274 held :
c "There is bound to be some discrepancies between the narrations of
different witnesses when they speak on details, and unless the
contradictions are of a material dimension, the same should not be
used to jettison the evidence in its entirety. Incidentally, corroboration
of evidence with mathematical niceties cannot be expected in criminal
D cases. Minor embelishment, there may be, but variations by reason
therefor should not render the evidence of eye witnesses unbelievable.
Trivial discrepancies ought not to obliterate an otherwise acceptable
evidence .......... .

The Court shall have to bear in mind that different witnesses
E react differently under different situations : whereas some become .
speechless, some start wailing while some others run away from the
scene and yet there are some who may come forward with courage,
conviction and belief that the wrong should be remedied. As a matter
of fact it depends upon individuals and individuals. There cannot be
any set pattern or unifonn rule of human reaction and to discard a
F piece of evidence on the ground of his reaction not falling within a
set pattern is unproductive and a pedantic exercise."

On the discrepancies which persuaded the High Court to disbelieve the
prosecution evidence is the alleged shifting of the place of occurrence from
G the main road to 20 feet away from it. The prosecutrix has categorically
stated that she was dragged from the road down the path which was about
20 feet away from the road and raped there. The discrepancy or contradiction
pointed out is that in the FIR which was submitted in writing and was in
English language, the place of occurrence was mentioned as road. Such
mention was based upon recording of the complaint by Shri S.P. Parmar,
H Advocate, after hearing the narration of the prosecutrix whom he found at
ST ATE OF HIMACHAL PRADESH v. LEKH RAJ [SETHI, J.] 299
that time to be scared, nervous and hesitant. Such a discrepancy cannot be A
held to be a major discrepancy amounting to contradiction under the
circumstances of this case. It is not disputed that the statement of the
prosecutrix under Section 161 was recorded immediately and in that statement
she had not alleged to have stated that the occurrence having taken place
on the road and not away from the road. She was categoric in stating that
the accused persons grappled her on the path and took her down at a distance B
of about 20 feet where they committed the crime. It is alleged that such a
discrepancy was fatal inasmuch as the road was motorable one and had the
occurrence taken place there, a number of witnesses could have seen the
occurrence. The argument is without any substance inasmuch as it has come
in evidence that the road was not a thorough fare and only one or two C
vehicles used to ply on it.

The High Court appears to have adopted a technical approach in
disposing of the appeal filed by the respondents. This Court in State of
Punjab v. Jagir Singh, Baljit Singh & Karam Singh, [1974] 3 SCC 277, held:
D
"A criminal trial is not like a fairy tale wherein one is free to give
fight to one's imagination and phantasy. It concerns itself with the
question as to whether the accused arraigned at the trial is guilty of
the crime with which he is charged. Crime is an event in real life and
is the product of interplay of different human emotions. In arriving·
at the conclusion about the guilt of the accused charged with the E
commission of a crime, the court has to judge the evidence by the
yardstick of probabilities, its intrinsic worth and the animus of
witnesses. Every case in the final analysis would have to depend
upon its own facts. Although the benefit of every reasonable doubt
should be given to the accused, the courts should not at the same F
time reject evidence which is ex facie trustworthy on grounds which
are fanciful or in the nature of conjectures."

The criminal trial cannot be equated with a mock scene from a stunt film.
The legal trial is conducted to ascertain the guilt of innocence of the accused
arraigned. In arriving at a conclusion about the truth, the Courts are required G
to adopt rational approach and judge the evidence 6y its intrinsic worth and
the animus of the witnesses. The hypertechnicalities or figment of imagination
should not be allowed to divest the court of its responsibility of sifting and
weighing the evidence to arrive at the conclusion regarding the existence or
otherwise of a particular circumstances keeping in view the peculiar facts of
each case, the social position of the victim and the accused, the larger H
300 SUPREME COURT REPORTS [1999) SUPP. 4 S.C.R.

A interests of the society particularly the law and order problem and degrading
values of life inherent in the prevalent system. The realities of life have to be
kept in mind while appreciating the evidence for arriving at the truth. The
courts are not obliged to make efforts either to give latitude to the prosecution
or loosely construe the law in favour of the accused. The traditional dogmatic
hypertechnical approach has to be replaced by rational, realisic and genuine
B approach for administering justice in a criminal trial. Criminal Jurisprudence
cannot be considered to be a Utopian though but have to be considered as
part and parcel of the human civilisation and the realities of life. The courts
cannot ignore the erosion in values of life which are a common feature of
the present system. Such erosions cannot be given a bonus in favour of those
C who are guilty of polluting society and the mankind.

The learned Additional Sessions Judge has noted the following facts
to find the accused guilty of the commission of crime :

"(i) According to the prosecutrix both the acused persons had
D grappled with her and she was made to lie down on the earth
and in that process she sustained injuries on her body and these
injuries were noticed at the time of her examination by PW I
Dr. Maulshri Lata as stated above, which are also described in
the Medico Legal Certificate Ex. PA and synchronise with the
time of alleged incident. The possibility of sustaining these
E injuries in the agricultural operations is of no use when thereis
direct evidence to show that these injuries have .been sustained
by her in a particular way, as stated by her when examined in
the court and she was also subjected to the lengthy cross-
examination by the accused persons;
F (ii) At the time of contacting her Advocate Shri S.P. Parmar, PW! I,
she was scared and hesitant;
(iii) The place of the alleged incident was pointed out 20 feet down
to the road, by her to the Investigating Officer on the basis of
which the siteplan Ex. PG was prepared.
G
(iv) The prosecutrix is a widow. She was living with her son. The
alleged incident took place on 10.11.93 in the evening. She
lodged the complaint on 11.11.93 and on the same date,
presented it before the Superintendent of Police, Mandi and
thereafter the case was registered on the same day, i.e., on
H 11.11.93 in Police Station Sadar, Mandi;

' '
STATE OF HIMACHAL PRADESH v. LEKH RAJ [SETHI, J.] 301
(v) She did not consent for sexual act, but complained against it to A
the police as aforesaid and also testified it on oath. Since the
case falls under Section 376(2)(g) of the Penal Code, thus the
presumption as required under Section 114-A of the Evidence
Act has to be down against the accused person;

(vi) On 12.11.93, the Salwar Ex. P.l of the prosecutrix was taken B
into possession. It was torn and there were some stains over it.
It was sealed in the presence of S/Shir Babu Ram and Padam
Singh with seal impression 'M'. This fact has not been disputed
by the accused persons. It was sent for examination to the
Forensic Science Laboratory, Shimla, and on its examination
report Ex. PH, was received which showed presence of human C
blood and semen. Further, with reference to this, it is to be
noticed that she was a widow."

We agree with the conclusions arrived at by the learned Sessions Judge on
proper appreciation of evidence so far as respondent No. 1 is concerned. We D
have also critically analysed the statement of the witnesses and have come
to a conclusion that the prosecution had proved its case against the respondent
No. I beyond all reasonable doubts.

Under the circumstances the appeal is partly allowed by setting aside
the judgement of the learned Single Judge in so far as it has acquitted the E
respondent No. I The conviction and sentence awarded by the Sessions
Judge to respondent No. 1, namely, Shri Lekh Raj is upheld. It is further
directed that out of the amount of fine, when recovered, a sum of Rs. 4500
shall be paid to the prosecutrix. No ground is made out to interfere with the
order of acquittal relating to respondent No. 2, namely, Shri Diwan Chand.
The bail bonds furnished by respondent No. 1 shall stand cancelled and he F
is directed to be taken into custody for undergoing the sentence awarded to
him.

A.KT. Appeal partly allowed.