Penal Code (45 of 1860), S.376, S.34 - Gang rape - Evidence - Offence committed in broad day light - Prosecutrix who had enough opportunity to see accused persons identifying them in identification parade - Medical evidence showing that she had injuries on her private parts - Evidence of prosecutrix appearing to be truthful needs no corroboration - However, such corroboration provided by medical evidence and also FIR lodged by her - Order of acquittal set aside.

AIR 1992 SUPREME COURT 1161

The two respondents Dambaru Naiko (A1) and B.Sankara Rao (A2) and two others were charged -in Sessions Case No. 6/ 78 of Asst. Sessions Judge, Jeypore for offences under Ss. 366/ 34 and 376 read with S. 34, I.P.C. kidnapping and committing rape of Manguri Bhotruni, P.W. 1 on October 21, 1978 at about 4.00 p.m. By Judgment dated Novemher 26, 1978 the trial Court convicted the respondents and sentenced them to undergo rigorous imprisonment for a period of three years on each count and the sentences were directed to run concurrently. He acquitted the other two which became final. On appeal it was confirmed by the Sessions Court. In Crl. Revision No. 152 of 1981 by judgment dated April 19,1982, the High Court acquitted them of the charges. Thus this appeal by special leave.

2. The case of the prosecution is that on the fateful day the victim Bhotruni along with other girls, P.Ws. 2 to 4 went to Papadahandi to witness Dasahara festival. At about 4.00 p.m. while they were returning home, P.W.1, the victim was ahead of them and when they reached inside the forest, the appellants (respondents ?) and two others gagged the mouth of P.W.1 and kidnapped into the forest; covered her eyes with a piece of cloth and threatened to kill her if she would raise cries. They made her to lie down on the ground and raped her one after another. P.Ws. 2 to 4 ran back to Papadahandi and reported, to the police on duty in the festival, of the incidence and P.W. 5, the constable came along with them. They found the victim's eyes covered with a piece of cloth and that she was crying. She was taken to Papadahandi. She laid the complaint (Ext. P. 1). The accused were arrested on October 31, 1977 and in the identification parade conducted by the Executive Magistrate, P. W. 13, PWs. 1 to 4 identified the accused, P.W. 1 identified the respondents and one another, P. Ws. 2 to 4 identified some as per Ex. P. 10 report the details of which are not necessary as it is admitted by them that before the identification parade was conducted P.Ws. 2 4 had opportunity to see the accused. So to the trial Court did not rely upon the evidence of P. Ws. 2 to 4. But it accepted the evidence of P.W. 1, the victim and convicted the respondents. The High Court acquitted the respondents on the grounds, namely, that P.W. 1 identifying these respondents would not be relied on and that there is no corroboration to her evidence. When there is a gang rape there could be several injuries on the person of the victim which are absent. Therefore she was a consenting party.