VersusThe State of Maharashtra v. Mundhe
Case Details
2024:BHC-AUG:4257 CriAppeal-309-2002+-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 309 OF 200201.Vilas s/o Vaijnath MundeAge : 20 years, Occu : Labourand Agri., R/o : Dadahariwadgaon,Taluka Parali-Vaijnath,District : Beed.02.Balaji s/o Bhagwan MundeAge : 20 years, Occu : R/o : As above.… Appellants[Orig. Accused No. 2 & 3]VersusThe State of Maharashtra… Respondent…..Mr. S. V. Mundhe, Advocate for the Appellants.Mr. S. M. Ganachari, APP for the Respondent-State...…WITHCRIMINAL APPEAL NO. 302 OF 2002Sukhdeo s/o Bhimrao MundeAge : 21 years, Occu : Agri. & Labour,R/o : Dadahari-Wadgaon,Taluka Parali-Vaijnath, Dist : Beed.… Appellant [Orig. Accused No.1]VersusThe State of Maharashtra… respondent…..Mr. U. B. Bondar, Advocate for the Appellant. Mr. S. M. Ganachari, APP for the Respondent-State.….. CORAM :ABHAY S. WAGHWASE, J. Reserved on: 20.02.2024Pronounced on: 29.02.2024 CriAppeal-309-2002+-2- JUDGMENT : 1.Vide instant appeals, convicts for offence punishable underSection 376 (2)(g) r/w 34 of the Indian Penal Code [IPC] are herebyassailing the judgment and order dated 20.05.2002 passed by learnedI Adhoc Additional Sessions Judge, Ambajogai in Session Case No. 73of 2001, sentencing them to suffer rigorous imprisonment for 10 yearsand to pay fine. Convicts Vilas and Balaji have preferred CriminalAppeal No. 309 of 2002, whereas convict Sukhdeo has filed distinctappeal bearing Criminal Appeal No. 302 of 2002.Since both appeals are arising out the same judgment, they aredealt together.FACTS IN BRIEF LEADING TO TRIAL2.Parali Rural Police Station registered crime on report lodged byprosecutrix, alleging that she and her husband had shifted toDadahari Wadgaon, Taluka Parali four months prior to the incident.On 10.07.2001, she had been to visit her sister at Peth Mohalla, ParaliVaijnath and had spent night there. Next day around 9.00 a.m. sheleft her sister’s place to return back to her house i.e. on 11.07.2001.While she was walking over road leading to Loni, she came in the CriAppeal-309-2002+-3- vicinity of a small stream. There, three persons intercepted her. Shewas forcibly dragged and taken towards the stream and on knifepoint, one after the other, all three accused raped her. Seeing a boyapproaching, on hearing her shouts, these three persons left. Sheinteracted with the boy who arrived there and she sought details ofthose three persons who had fled seeing him and he gave their names,i.e. of appellants, and also told about they to be residents of DadahariWadgaon. She directly went to the field where her husband wasrendering labour work, reported him the incident and then she, herhusband and land owner approached police where she lodged report,on the strength of which crime was registered.3.PW10 SDPO Baburao Umap, who was entrusted with theinvestigation, arrested accused, drew spot panchanama, referredvictim to medical examination, collected reports, seized clothes ofboth, victim as well as accused, so also caused seizure of knife at theinstance of accused Sukhdeo by virtue of memorandum. Aftergathering sufficient evidence, they came to be chargesheeted andfinally tried before learned I Adhoc Additional Sessions Judge,Ambajogai, who on conducting trial, held the charges proved andconvicted appellants who are now questioning their said conviction byfiling instant appeals.
Legal Reasoning
CriAppeal-309-2002+-4- SUBMISSIONSOn behalf of the appellants:4.Learned counsel for the appellants in both appeals wouldsubmit that apparently implication is false. According to them, it isimpossible to commit gang rape in broad day light. They would takethis Court through the evidence of victim and would submit that herevidence, more particularly answers given in cross, show that hertestimony is full of material omissions and contradictions. Further,according to them, there is no corroboration as the very boy whoallegedly saw accused has not supported prosecution. 5.Both learned counsel further pointed out that, even medicalevidence does not suggest any forceful sexual intercourse. They laidstress on the aspect that when there are allegations of rape by threepersons, there has to be injuries both, on internal and external body,but the same is missing thereby falsifying the very case of rape. 6.Both learned counsel pointed out that, it is pertinent to notethat accused persons were strangers and victim has not givendescription of accused persons. That, no test identification parade wasconducted. It is alleged that information was received from the boy CriAppeal-309-2002+-5- PW7 Sakharam, but he has not supported prosecution. Learnedcounsel would strenuously submit that prosecutrix has not namedaccused, rather complaint is given by one Raju Pande and prosecutrixhas merely appended thumb impression. That, as there is no testidentification parade, apparently evidence of prosecution was weak innature. 7.They also questioned the judgment of learned trial court bysubmitting that law on rape has not been completely and carefullyappreciated. Mere evidence of victim has been taken into account butthe major lacuna which are fatal, have not been considered by thetrial Judge and guilt has been recorded. Therefore, according to them,apart from non-appreciation of evidence in correct perspective, lawhas also not been taken into account and so they prayed to allow theappeals.On behalf of the State :8.Per contra, learned APP would point out that victim hadrecently shifted with her husband in the said village. Therefore shewas not knowing accused persons. Further, according to him, thoughPW7 Sakharam, who had reached immediately hearing shouts, did CriAppeal-309-2002+-6- not support prosecution, he had given names of all three accused aswell as in his testimony he has admitted accused to be not only of hisvillage but are also his relatives. Therefore it is clear attempt to coverup and save them. 9.Learned APP pointed out that here, there is statement ofprosecutrix which inspires confidence. Learned Magistrate beforewhom immediately statement under Section 164 of Cr.P.C. wasrecorded, has also stepped into the witness box and he has deposedabout PW7 Sakharam giving statement regarding occurrence.Therefore, learned APP submitted that mere turning hostile to saverelatives, entire testimony of PW7 cannot be discarded outright.10.According to learned APP, medical expert though has notnoticed any injuries, that by itself would not negate the case of rape,more particularly when prosecutrix has deposed about she beingraped by keeping knife on her neck. Therefore, there is reason for non-resistance and resultantly no injuries must have been caused.However, according to him, the testimony of victim, when wasinspiring confidence, has been rightly relied by the learned trialJudge. CriAppeal-309-2002+-7- 11.Learned APP further pointed out that there is seizure of clothesof victim as well as accused immediately after the occurrence andsemen stains are found on clothes of victim as well as accused. Thisaspect further corroborates the occurrence. Therefore, while summingup, he submits that there is trustworthy and reliable testimony ofprosecutrix. Her testimony has remained intact regarding theoccurrence. She has identified accused persons in the court.Therefore, he prays to not to disturb the findings and conclusionreached at by learned trial Judge.EVIDENCE BEFORE TRIAL COURT12.Here, to prove its case, prosecution has examined the followingwitnesses:PW1 is the victim.PW2 Dattu is pancha to seizure of clothes of victim.PW3 Vishnu is the spot pancha and pancha to seizure of clothes ofaccused.PW4 Maroti is pancha to memorandum of disclosure and seizure ofknife vide Exhibits 41 and 42.PW5 is sister of prosecutrix. CriAppeal-309-2002+-8- PW6 is husband of prosecutrix.PW7 Sakharam, who reached immediately at the scene ofoccurrence.PW8 Dr. Shaikh, who medically examined accused.PW9 Dr. Sirsat, who examined victim and issued certificate Exhibit57.PW10 S.D.P.O. Baburao Umap is the Investigating Officer.PW11 Learned JMFC who recorded statement of PW7 Sakharamunder Section 164 of Cr.P.C.PW12P.S.I. Dhakne who carried out initial investigation.13.Prosecution story in brief is that PW1 prosecutrix, afterspending night with her sister at Parali, was returning to her villageby walk in the morning of 11.07.2001. While she was near a smallstream, accused forcibly took her on knife point and turn by turn, allthree had raped her.14.Considering such story of prosecution, in the consideredopinion of this court, the crucial evidence is of PW1 prosecutrixfollowed by evidence of PW7 Sakharam who allegedly and CriAppeal-309-2002+-9- incidentally reached at the scene of occurrence and on query byprosecutrix, he supplied names of accused and thereafter she,accompanied by her husband, lodged report. Apart from these twowitnesses, evidence of Doctor who examined victim is also crucial.Therefore, at the threshold such evidence is required to be re-examined and re-appreciated.ANALYSIS15.Sum and substance of the testimony of PW1 victim prosecutrixis that she was residing with her husband in the land of oneDeviprasad Pande (also known as Raju) at village Dadahari Wadgaon.She deposed that they were residing there since four months prior tothe incident and her husband was serving with Deviprasad. Accordingto her, on 10.07.2001, she had been to meet her sister at Parali andafter staying there and spending night, next day morning at 9.00 a.m.she left her sister’s place to return to her house. She alighted from theauto at Wadgaon fata and started proceeding towards Loni by walk.She took cart track. There was a small stream situated towards eastside. According to her, three persons came from the small stream.They showed her knife. All three accused took her towards the streamby dragging her for a distance of 50 to 60 feet. They made her fall CriAppeal-309-2002+-10- down on her back. Out of three accused, two put knife on her neckand one pulled her sari and undergarments (parkar) up to waist andraped her. Thereafter, remaining two accused also committed rape onher. She deposed that while accused no.3 was committing rape, oneboy named Sakharam came there and therefore all these threepersons ran towards eastern side of the stream. She started weeping.Then she deposed that she asked Sakharam from where were thosepersons and he told her that they are from village Dadahari Wadgaonand he also told that they were residing in hutment area. She claimsto have asked their names and he told her their names as Sukhdeo,Vilas and Balaji. Thereafter she approached her husband and narratedabout the incident of rape on knife point and giving threats andthereafter her husband, land owner Shailesh and she herself came toRural Police Station where she lodged report which she identified tobe at Exhibit 26. Then she deposed about her clothes being seized bypolice and she being referred to S.R.T.R. Hospital, Ambajogai formedical examination on the same day. She categorically deposed thataccused raped her against her will and consent and she identifiedthem to be present in the court.16.In her cross at the hands of learned defence counsel, sheadmitted to be married four years back and it to be her second CriAppeal-309-2002+-11- marriage. Then she is asked whether there was any dispute betweenPande and neighbouring land owners, to which she answered to beunaware of. Then she is again questioned about her husband, hisnative. She flatly denied that when the alleged incident took place,that time her husband was not on yearly servant basis with Pande.She is asked about the actual agricultural holdings of Pande, whetherother servants residing there and whether she can give names ofneighbours. She is also asked about her previous work at policestation. She is questioned about the distance from Parali to DadahariWadgaon. During cross, she answered that Sakharam told her that thesaid stream is in the land of Jadhav and distance between stream andland of Pande to be 1 to 1½ kms. During cross, she stated that nearthe stream there is a umbar tree. She stated that she had seen saidthree persons for the first time at the alleged incident and thereafterdirectly in the court. She is unable to give their full names. Sheanswered that Sakharam told her only names of the boys and did notgive names of their fathers. She spoke about giving complaint at 2.00to 2.30 p.m. She answered about showing spot to the police. She isasked about the location of land of Pande but she is unable to givennames of other neighbours. She answered that distance between spotof incident and land of Sakharam is 500 feet. She answered thatincident took place beneath the shadow of umbar tree. In para 13, CriAppeal-309-2002+-12- questions are asked whether semen fell on her cloths and on whichpart of her cloths, complexion of accused, complexion of Sakharam,colour of his clothes. She is unable to state if there was disputebetween Pande and father of accused. Rest is all denial. Omissions arebrought in para 15 which are as follows:1.There was cart road.2.Ground at the spot to be smooth and dusk.3.Accused nos. 2 and 3 threatening by keeping knife on her neckand accused no.1 pulling her clothes up to waist.4.At first, accused no.1 and then accused nos. 2 and 3 committingrape on her.5.That, she started weeping. 17.Now, evidence of PW7 Sakharam, who allegedly reached thescene of occurrence, needs to be re-appreciated. His evidence is atExhibit 49 wherein he deposed that, his land is adjacent to the land ofShri Pande at village Dadahari Wadgaon. But in chief itself, he statedthat he does not know about the alleged incident. He was notknowing husband of prosecutrix or prosecutrix herself. But he statedthat he was knowing all three accused sitting before the court and CriAppeal-309-2002+-13- that they are from his village. He denied going on the road fromDadahari Wadgaon to Loni on 11.07.2001. However, he stated thataccused were taken away to the police station that day but he did notinquire as to why they were taken to Police Station. He denied seeingaccused raping complainant by holding knife in hand and aboutinforming names of accused or about accused running after seeinghim come. Resultantly, this witness has resiled and has not supportedprosecution. 18.However, while under cross at the hands of learned APP, he isunable to state why portion marked “A” is appearing in his statement.He again admitted that accused are his kinsmen. On confrontingapplication dated 12.07.2001, he admitted it to be under hissignature but denied its contents as true. He again deposed aboutgoing to police station on 11.07.2001 but denied going on12.07.2001. Then he admitted that on that day, police had taken himin the court where there was a Magistrate, but denied any questioningby Magistrate or Magistrate recording his statement as per his say.Rest is all denial. CriAppeal-309-2002+-14- 19.Now let us visit the medical evidence. On taking survey of theevidence, it seems that PW9 Dr. Sirsat had occasion to subject victimto medical examination on 12.07.2001 at 12.00 midnight. This ladymedical officer at Exhibit 56 gave the following observations:“She told me history of pain chest pain, and pain inprivate part since morning, 11.00 a.m. She also toldhistory of intercourse by two to three persons against herwill. History of four months annoerra i.e. absence ofmenstrual course. There was no history of leaking or pervagina bleeding. There was no urinary and bowel complaints. There wasno difficulty for walking. No history of fever. No history ofchanging the clothes. No history of taking bath. Nohistory of quickening.”According to her, on general examination, she did not find anyexternal injury over the body of prosecutrix. On per abdominalexamination of uterus, there was found to be 16 weeks and three dayspregnancy. She claims to have collected samples i.e. vaginal swab,blood, pubic hair and issued certificate Exhibit 57. In her opinion,“there may be intercourse but it should be confirmed by vaginal swabexamination”. She further deposed that in her opinion, there was nointercourse with that woman by two to three persons. CriAppeal-309-2002+-15- In cross she has answered that if two to three persons commitrape on a woman who is pregnant, there are chances of abortion. Sheadmitted that if two to four persons commit rape in such condition,there could be bleeding to the uterus but she denied that without C.A.report, it is possible to state opinion about rape.20.Referring to the above evidence, learned counsels for theappellants would forcefully submit that, here, there are allegations ofgang rape but victim does not know who were the accused. Theperson from whom she claims to have learnt names, has notsupported prosecution and furthermore, there is no test identificationparade conducted by investigating machinery. According to them,above all, medical evidence discussed above is of no avail to theprosecution because the same is not suggesting any finding of rapeand that Doctor has categorically ruled out rape by two to threepersons.21.No doubt, in cases of such nature, evidence of prosecutrix is ofprime importance. Here, on carefully analyzing the evidence of PW1,it is emerging that, as pointed out by learned APP, barely four monthsprior to the incident, she and her husband had come to stay in the CriAppeal-309-2002+-16- village. Here evidence about she spending night on 10.07.2001 at hersister’s place and returning back home in the morning has virtuallyremained unchallenged. She is not only a married woman, but also apregnant lady at that time. She has categorically deposed that whenshe was in the vicinity of a small stream, three boys approached herand on knife point, she was taken 50 to 60 feet away from the cartroad and beneath a umbar tree, when two accused kept knife on herneck, after making her fall, one person raped her first and then shedeposed about being raped by second accused as well as third, that isafter lifting her clothes. She has deposed about attempting to shoutbut in cross, she has answered that she was threatened by use ofknife. It has come in her evidence that a boy of the neighbouringagricultural field, namely, Sakharam (PW7) came there and seeinghim, three accused persons fled. She claims to have sought details ofthree boys and she has also given names as provided by him.Thereafter she has immediately reported the incident to her husbandand visited police station.22.Here, it is emerging that PW7 Sakharam unfortunately has notsupported prosecution and has flatly denied going to the spot andseeing complainant being raped. But so much part of testimony,which lends credence to the prosecution version, can definitely be CriAppeal-309-2002+-17- taken recourse to. On minute scrutiny of his evidence, it is noticedthat in examination-in-chief itself, he stated about knowing all threeaccused sitting in the court to be residents of his village. Though hedenied going towards Dadahari Wadgaon fata to Loni road on11.07.2001, he had admitted that accused persons were taken awayby police on that day. He merely answered that he did not inquirewhy they were taken. In cross he is unable to explain why portion marked “A” isfinding place in his statement. English translation of the aboveportion marked “A” is as under:“ Today, on 11-7-2001, I left the home for the fields. En-route tothe fields, at about 12.00 o’ clock, I heard the shouts ofPanchfula w/o Shriram Goler from the nalah in the fields ofJadhav in the vicinity of Dadahari Wadgaon and I rushed thereand saw that Panchfula was lying in supine position and oneBalaji Bhagwan Munde from our village was raping her andVilas Vaijnath Munde and Sukhdeo Bhimrao Munde werestanding aside. Sukhdeo had a knife in his hand. All three leftthrough the nalah after seeing me. Then Panchfula came withme up to the road. She asked me my name and I told my nameas above. She informed me that, those three boys pressed hermouth and dragged her to the nalah, made her fall down insupine position and took turns in raping her. When she asked CriAppeal-309-2002+-18- me names of the three boys, I informed her their names as 1.Sukhdeo Bhimrao Munde, 2. Vilas Vaijnath Munde, 3. BalajiBhagwan Munde, all residents of Dadahari Wadgaon Camp.Thereafter, I accompanied Panchfula up to the aakhada ofPande and went to my fields after leaving her with her husband.The brother of Pande was present on the aakhada….”23.PW7 again admitted in cross that accused happen to be hisrelatives. He has also not denied signature over his application dated12.07.2001 and he categorically admits accompanying police to thecourt of Magistrate, but denied any questioning by Magistrate orgiving any statement. Therefore, though he is resiling on the point ofseeing actual offence, there are other vital admissions as reproducedabove. Law is fairly settled that entire testimony of a hostile witnessneed not be discarded but so much part of the testimony, whichsupports prosecution, can definitely be taken recourse to and evenrelied to. Law to that extent has been time and again dealt in variouscases and a few could be named as under:In Sat Paul v. Delhi Administration (1976) 1 SCC 727, theHon’ble Apex Court cautioned that “even if witness is treated as“hostile” and is cross examined, his evidence cannot be written offaltogether but must be considered with due care and circumspection CriAppeal-309-2002+-19- and that part of the testimony which is creditworthy must beconsidered and acted upon. It is for the Judge as a matter of prudenceto consider the extent of evidence which is creditworthy for thepurpose of proof of the case. In other words, the fact that a witnesshas been declared hostile, does not result in automatic rejection of hisevidence. Even, the evidence of a “hostile witness”, if it findscorroboration from the facts of the case, may be taken into accountwhile judging the guilt of the accused. Thus, there is no legal bar toraise a conviction upon “hostile witness testimony” if corroborated byother reliable evidence.”Likewise law to this extent is also reiterated in the case ofDhananjoy Chatterjee @ Dhana v. State of West Bengal 1994 (2) SCC320/[1994] 1 S.C.R. 37 and Bhajju v. State of M.P. (2012) 4 SCC327.24.Therefore, considering the testimony of prosecutrix injuxtaposition to that of PW7 Sakharam, on that day this witness PW7seems to have visited the spot. From the evidence of victim aboutgetting to know names of accused from this witness and aspect ofPW7 acknowledging them not only to be residents of his village but tobe his relatives, case of prosecution is getting sufficient support. It is CriAppeal-309-2002+-20- apparent that being relative, PW7 has not supported while he was inthe witness box. Further, here prosecution has taken efforts toexamine the very learned JMFC, who is examined as PW11 and who,in the witness box, has categorically deposed about PW7 Sakharamappearing in his court, narrating whatever he saw and his statementunder Section 164 Cr.P.C. to that extent being noted. In cross,testimony of PW11 Magistrate has remained intact. Therefore, on thestrength of testimonies of PW1, PW7 and PW11 Magistrate, case ofprosecution definitely gets established. 25.No doubt, as emphasized by learned counsel for the appellants,that medical witness PW9 Dr. Sirsat has not reached to definitefinding of rape, but Doctor has equally sated in examination-in-chiefitself that there may be possibility of rape. Resultantly she has notcompletely ruled out possibility of rape. Even otherwise, it is mereopinion evidence. Failure to notice injuries or any signs of rape itselfis not sufficient to discard the testimony of prosecution, moreparticularly when victim is ravished on knife point. There areumpteen judgments on this point and it is desirable and fruitful toreproduce some landmark cases and relevant observations to thisextent which are as follows: CriAppeal-309-2002+-21- In Karnel Singh v. State of Madhya Pradesh (1995) SCC (5)18, it has been held that : “… absence of marks of external injuries on the personof the prosecutrix cannot be adopted as a formula forinferring consent on the part of the prosecutrix andholding that she was a willing party to the act of sexualintercourse. It will all depend on the facts andcircumstances of each case. In this case, evidenceshowed that the victim was laid on minute sand, whichwas lying on the floor, it was held that there were nomarks of injuries because of this and because she mayhave been incapable of offering resistance.”In State of Rajasthan v. Noore Khan 2000 (3) Supreme 70, theHon’ble Apex Court noted that : “Absence of injuries on the person of prosecutrix hasweighed with the High Court for inferring consent onthe part of the prosecutrix. We are not at all convinced.We have already noticed that the delay in medicalexamination of the prosecutrix was occasioned by thefactum of the lodging of the FIR having been delayed.The prosecutrix was in her teens. The perpetrator of thecrime was an able-bodied youth bustling with energyand determined to fulfill his lust armed with a knife inhis hand and having succeeded in forcefully removingthe victim to a secluded place where there was none CriAppeal-309-2002+-22- around to help the prosecutrix in her defence. Theinjuries which the prosecutrix suffered or might havesuffered in defending herself and offering resistance tothe accused were abrasions or bruises which would healup in the ordinary course of nature within 2 to 3 days ofthe incident. The absence of visible marks of injuries onthe person of the prosecutrix on the date of her medicalexamination would not necessarily mean that she hadnot suffered any injuries or that she had offered noresistance at the time of commission of the crime.Absence of injuries on the person of prosecutrix is notnecessarily an evidence of falsity of the allegation or anevidence of consent on the part of the prosecutrix. It willall depend on the facts and circumstances of each case.”In State of Tamil Nadu v. Raju @ Nehru (2006) 10 SCC 534,the Hon’ble Apex Court ruled that :“Rape is a crime and not a medical condition. Rape is alegal term and not a diagnosis to be made by the medicalofficer treating the victim. The only statement that canbe made by the medical officer is that there is evidenceof recent sexual activity. Whether rape has occurred ornot is a legal conclusion, not a medical one.” That is thereason why, even the opinion of the doctor that therewas no evidence of sexual intercourse or rape is at timesheld to be not sufficient to disbelieve the accusation ofrape by victim. CriAppeal-309-2002+-23- In B. C. Deva v. State of Karnataka (2007) 12 SCC 122, it washeld that : “The plea that no marks or injuries were found either onthe person of the accused or the person of theprosecutrix, does not lead to any inference that theaccused has not committed forcible sexual intercourseon the prosecutrix. Though, the report of theGynaecologist pertaining to the medical examination ofthe prosecutrix does not disclose any evidence of sexualintercourse, yet even in the absence of any coroborationof medical evidence, the oral testimony of theprosecutrix, which is found to be cogent, reliable,convincing and trustworthy has to be accepted.”26.To sum up on medical evidence, from the above rulings it isclear that the Hon’ble Apex Court in number of authorities, has heldthat in rape cases, crucial piece of evidence is that of victim and thatconviction can be based on her sole testimony. Mere absence ofphysical injuries on the body of victim does not negate thecommission of rape. No doubt it is equally held that medical evidence,if available, is of great importance and can be proved to be ofclinching nature, however, it is further clarified that it is to be bornein mind that its absence does not always become fatal to the CriAppeal-309-2002+-24- prosecution. There are several reasons for which medical expert maynot come across or notice injuries, more particularly when there areallegations of being forced upon by use of any threat or on weaponpoint. Here, precisely victim has deposed that on knife point, she wasforcibly ravished. Therefore, it is possible that she may have beenrendered helpless and might not have resisted out of fear. In cases ofsuch nature, when testimony to such extent remains intact, court isexpected to adopt a realistic view rather than finding loopholes.27.It is also fairly settled that corroborative evidence is not at allan imperative aspect for laying credence in case of rape. It is equallysettled position that finding of guilt in rape case can be based alsoupon uncorroborated evidence of prosecutrix, provided the sameinspires confidence and is a believable version. In State of Punjab v. Gurmeet Singh (1996) 2 SCC 384, theHon’ble Apex Court made the following observations :“The Court must, while evaluating evidence, remain aliveto the fact that in a case of rape, no self-respectingwoman would come forward in a court just to make ahumiliating statement against her honour such as isinvolved in the commission of rape on her. In cases CriAppeal-309-2002+-25- involving sexual molestation, supposed considerationswhich have no material effect on the veracity of theprosecution case or even discrepancies in the statement ofthe prosecutrix should not unless the discrepancies are offatal nature, be allowed to throw out an otherwisereliable prosecution case. The inherent bashfulness offemales and the tendency to conceal outrage of sexualaggression are factors which the courts should notoverlook. The testimony of the victim in such cases is vitaland unless there are compelling reasons whichnecessitate looking for corroboration of her statement,the courts should find no difficulty to act on thetestimony of a victim of sexual assault alone to convict anaccused where her testimony inspires confidence and isfound to be reliable.”In Radhu v. State of Madhya Pradesh 2007 CRI.L.J. 4704, theApex Court has not only reiterated the well settled legal position thata finding of guilt in a case of rape can be based on uncorroboratedevidence of prosecutrix, but has gone a step ahead and held that theopinion of a doctor that, “There was no evidence of any sexualintercourse or rape”, may not be sufficient to disbelieve the accusationof rape by the victim. CriAppeal-309-2002+-26- 28.Here, both the learned counsel laid much stress on the aspectthat investigating machinery has not conducted test identificationparade. It is true that on scrutiny of evidence, it does seem that nodistinct test identification parade has been got conducted by theInvestigating Officer. However, it needs to be borne in mind that fewmonths back, victim had shifted to the village and as such she hasvery categorically stated in her testimony about asking PW7Sakharam the details of the three boys and he allegedly gave theirnames and hence she named them. PW7 allegedly told her that theyare from the same village and are residing in the hutment. Arrestpanchanama of all three accused shows that they are residents ofsame village. Moreover PW7 acknowledges them as his kinsman. Evenvictim has identified them in court. 29.Admittedly, test identification parade has mere corroborativevalue and it is a process which belongs to investigating machinery.Failure to conduct test identification parade is not always fatal. It maynot be necessary in every case. Law has developed to the extent ofholding that identification in court is good identification in the eyes oflaw and it need not always be preceded by test identification parade.Law to this extent has been dealt in various cases like Shamlal Ghoshv. State of W.B. (2012) 7 SCC 646 ; Mulla v. State of U.P. (2010) 3 CriAppeal-309-2002+-27- SCC 508 and Sheo Shankar Singh v. State of Jharkhand (2011) 3 SCC654. Consequently, here, when there is arrest of accused on thesame day, regarding which there is no denial, coupled with thetestimony of prosecutrix identifying them in the court, the same candefinitely be taken into considered and even relied to. 30.Apart from above evidence, here, very husband and sister ofprosecutrix are also examined by prosecution as PW6 and PW5respectively. PW5 sister lends credence to the visit of her sisterprosecutrix to her place at Parali on 10.07.2001, she spending nightand in the morning leaving for her own village. Husband also deposedabout his wife approaching him while he was working in the fieldalong with land owner and narrating about being raped on the knifepoint. On the same day they have approached police and reported theoccurrence. Therefore, there is promptness in lodging FIR also. Samenight prosecutrix has been medically examined. Her clothes are alsoseized on the same day. C.A. findings are about semen stains foundon her clothes as well as clothes of accused. Therefore, such evidencealso lends credence to the prosecution version. CriAppeal-309-2002+-28- 31.To sum up, here, considering the testimony of prosecutrixvictim, part testimony of PW7 Sakharam, testimony of PW11 learnedMagistrate and the medical evidence, occurrence has been staunchlyestablished. Hence, offence can definitely be said to be brought home.For all above reasons, it can safely be said that prosecution hadestablished the charge of gang rape.32.Learned trial Judge has correctly appreciated the evidence.Inference and conclusion drawn is supported by sound reasons.Testimony of prosecutrix has been correctly believed and applied. Noperversity or illegality in the manner of appreciation or findings hasbeen brought to the notice so as to interfere. Hence, I proceed to passthe following order:ORDERBoth appeals are hereby dismissed. [ABHAY S. WAGHWASE, J.]vre