JUDGMENT M.C. Jain, J.
1. There are three appellants, namely, Tasleem, Vishal and Kamru before this Court who were tried before Additional Sessions Judge, Fast Track Court No. 1, Fatehpur in S.T. No. 594 of 2003. They preferred three jail appeals separately from jail against their conviction and sentences passed in the said sessions trial. Subsequently, Criminal Appeal No. 5844 of 2005 also came to be filed by all of them jointly through Sri J.N. Pandey, Advocate which was connected with aforesaid three jail appeals.
2. We propose to decide all these appeals together. Since death sentence has also been passed against all of them by the trial court, Criminal Reference No. 10 of 2005 has been made by the trial court for the confirmation of the death sentence which, too, is being taken up along with these appeals.
3. The three accused-appellants have been convicted under Section 376(2)(g) I.P.C. for gang rape and each of them has been sentenced to life imprisonment. Each has also been sentenced with a fine of Rs. 5,000/-. In default of payment of fine, further imprisonment of one year has been imposed. Under Section 302 I.P.C., each of them has been sentenced to death.
4. The incident took place on 24.2.2003 at about 7.30 P.M. in a wheat field near the grove of Lakhan Singh in village Sahimapur, Police Station Husainganj, District Fatehpur and the F.I.R. was lodged the same night at 11.15 P.M. by Karan Singh PW 2-father of the deceased victim Preeti. The distance of police station from the place of occurrence was about 8 Kms.
5. Prosecution case as surfacing from the F.I.R. and evidence adduced in the court may be summarised thus: On 24.2.2003 at about 7.30 P.M. informant's daughter Preeti aged about 13 years and Poonam PW 1 (found to be aged about 19 years on radiological test) had gone to answer the call of the nature to the way leading to Basohani. As soon as they reached near the grove of Lakhan Singh, three accused-appellants who were sitting there from before, caught hold of both of them and forcibly took them to the nearby wheat field. When they resisted, one of them struck a danda blow on the head of Poonam, who, receiving the injury, fell down in the wheat field. Preeti was gang raped by them. Shrieks of the victims of the felony, emanating from the scene, attracted the first informant Karan Singh PW 2, co-villager Sant Kumar Singh and Ram Bux Singh PW 3 who had also gone to that direction to ease themselves. They flashed their torches and recognized the three accused-appellants who were fleeing towards the side of Dolepur. They tried to apprehend them but to no effect. The reasons of these witnesses knowing the accused from before was that they (accused) were nomads, living by pitching tents in Bithaura. These persons on reaching the spot, found the two girls lying injured in the field. They were brought to the house and then taken to the District Hospital, Fatehpur for medical aid and treatment.
6. On the lodging of the written F.I.R. by Karan Singh PW 2 after getting it scribed by one Om Pal Singh, a case under Sections 323/376 I.P.C. was registered initially. The investigation was conducted by S.I. Ram Bhajan Singh to be concluded by S.I. R.B. Singh PW 5.
7. Dr. Anita Singh Patel PW 6 examined Poonam PW 1 (admitted in Women Ward Bed No. 2, District Hospital Fatehpur) on 24.2.2003 at 11.00 P.M. There was bleeding injury on her head. Left cheek was swollen. It was blunt weapon injury. Vagina admitted two fingers. Two vaginal smear slides were prepared and sent to pathologist for examination for determination of living or dead spermatozoa. She was also referred to radiologist for determination of her age.
8. Initially, it was Dr. Ganesh Prasad Awasthi PW 8 who had medically examined Poonam on 24.2.2003 at 09.05 P.M. The following injury was found on her person:
Lacerated wound 9 cm x 1.5 cm x scalp deep present on the right side skull, 10 cm away from the tragus of right ear.
9. The injury was caused by blunt weapon and was kept under observation. She was referred for gynaecological medical examination to lady doctor, Female Hospital, Fatehpur. After radiological examination Poonam PW 1 was found to be aged about 19 years. It was Dr. K.C. Gupta PW 4 who had taken X-ray of Poonam on the basis of which her age was found to be 19 years. On pathological test of her vaginal smear slides dead spermatozoa and fair number of RBC ( Red Blood Cells) were seen.
10. The same Doctor ( Dr. Ganesh Prasad Awasthi) examined Preeti on 24.2.2003 at 9.20 P.M. She was unconscious. The following injuries were found on the person of Preeti:
(1) Contused swelling size 6 cm x 4 cm present on the left eyelid. Black eye ( bluish).
(2) Contused swelling size 6 cm x 4 cm present on the left side forehead.
(3) Contusion of swelling size 4 cm x 2.5 cm present on the left side face.
11. The injuries were caused by blunt object and kept under observation. She was referred to Female District Hospital, Fatehpur for gynaecological medico-legal examination. Such examination revealed the following;
12. Vagina admitted two fingers with difficulty. Two vaginal smear slides were prepared and sent to pathologist. She was referred to radiologist for determination of her age. On pathological test, there was no evidence of any living or dead spermatozoa in her vaginal smear slides. Preeti died on 26.2.2003 at about 6.35 P.M. She was aged about 14 years. Dr. Sudhir Kumar Sen PW 7 who conducted autopsy on the dead body of the deceased, also prepared two slides of her vaginal smear and vaginal swab. The following ante mortem injuries were found on her person:
(1) Contusion 6 cm x 4 cm on left eye including both upper and lower eyelids.
(2) Contusion 6 cm x 4 cm on left side forehead extending to left temporal region, 4 cm above left ear. Underlying left temporal bone fractured.
(3) Contusion 3 cm x 2.5 cm on left side of face, 2 cm away from chin.
(4) Abraded contusion 2 cm x 1 cm on left side of neck on upper part.
(5) Abrasion 1 cm x 1 cm on right cheek 2.5 cm below outer angle of right eye.
13. On internal examination, membranes on left side were found lacerated. Brain was lacerated with blood and clotting present near left part of brain. Right and left lungs were congested. Liver was congested and spleen was congested. Both kidneys were congested. The death had occurred due to coma as a result of ante mortem injuries. On vaginal smear slides of Preeti, there was no sign of live or dead spermatozoa.
14. Inquest proceedings over dead body of Preeti were conducted by S.I. Ram Milan Saroj PW 10 in District Hospital, Fatehpur. Chick F.I.R. and G.D. entry were made by Head Constable Kanhaiya Lal PW 9. Entry of conversion of crime was also made in G.D.
15. The three accused-appellants came to be arrested by S.I. R.B. Singh PW 5 on 26.2.2003. The investigation took place as usual whereafter the three accused-appellants were booked for trial.
16. At the trial, the prosecution in all examined 10 witnesses out of whom reference has come above of seven witnesses including Investigating Officer R.B. Singh PW 5. Three witnesses of fact were Km. Poonam-one of the victims herself, Karan Singh PW 2 and Ram Bux Singh PW 3. Karan Singh PW 2 and Ram Bux Singh PW 3 had seen the three accused-appellants at the time of incident fleeing from the spot whereas Poonam PW 1, as we said, was the star witness who herself was one of the victims of the serious crime committed by the three accused.
17. The three accused-appellants in their statements under Section 313 Cr.P.C. pleaded false implication, denying the accusations made against them. All of them stated that Poonam PW 1 identified them in court for the reason that they had been shown to her by the police earlier. As for the other two witnesses also (Karan Singh and Ram Bux Singh), all of them stated that police had shown them to them. The police was said to be instrumental in their false implication. All of them also alleged that the police had arrested them a day before the incident and roped them falsely in this case.
18. No evidence was adduced by the accused-appellants in their defence.
19. The evidence adduced by the prosecution commended itself to the trial judge who recorded the impugned judgement which has been challenged before us by them.
20. Sri Ramji Saxena, a competent criminal lawyer of several years standing, was appointed as amicus curiae to argue out the appeals on behalf of appellants under order dated 3.4.2006. He thoroughly prepared the appeals and argued out for the accused-appellants thrashing all the aspects of the matter. From the side of the State, the reply was concluded by equally efficient learned A.G.A. Sri Karuna Nand Bajpai. The record is before us which we have thoroughly examined. We intend to deal in the succeeding discussion with the arguments advanced at the bar, keeping in view the evidence and other attending circumstances.
21. Learned amicus curiae assailed the testimony of Karan Singh PW 2-father of the deceased Preeti and Ram Bux Singh PW 3 on various grounds and argued that their testimony was liable to be excluded altogether. His attack on the testimony of these witnesses has been along these lines: First, as per their own showing they saw the three appellants while they were fleeing from the spot and as such they could not have at all very well recognized and identified them. Second, they claimed to have seen them in the light of torches that they had, but no torch was shown to the Investigating Officer. Nor did he prepare any fard. Third, these witnesses did not seemingly have any previous acquaintance with the accused-appellants and there was no possibility of their knowing them from before. Fourth, even parentage of the accused-appellants was mentioned in the F.I.R. lodged at the Police Station by one of them Karan Singh PW 2 and it supported the defence case that the accused appellants had been arrested by the police even before the lodging of the F.I.R. and they were there at the Police Station. The police, learned amicus curiae argued, was instrumental in getting them falsely implicated, also providing their parentage to be mentioned in the F.I.R.
22. The attack on the testimony of Karan Singh PW 2 and Ram Bux Singh PW 3 may appear to be appealing in the first blush but the same cannot stand a close scrutiny as we wish to indicate in the discussion that follows. It is to be pointed out that it is common practice in villages that inhabitants go to ease themselves at the outskirts for want of facility of lavatory in their own houses. The call of nature is so answered by them, men and ladies alike, in wee hours little before sun rise or twilight / after sun set. It was perfectly believable that these witnesses went to ease themselves at the outskirts of village at about 7.00-730 P.M., when they heard shrieks of the victims at Basohani Road. They then rushed with flashing torches to the side wherefrom the shrieks were emanating and spotted the three accused-appellants, Kamru, Tasleem and Vishal. They tried to apprehend them but they ran away. Then reaching the spot-wheat field of Lakhan Singh, they found the two girls lying injured. Out of them Preeti had become unconscious and Poonam was moaning. Poonam told them that the culprits had run away after having committed rape on them. She described them by their stature/gait. These girls were brought to the house and then taken on tempo to hospital for treatment. Thereafter, Karan Singh PW 2 lodged the F.I.R. at the Police Station.
23. It has come in the testimony of Karan Singh PW 2 that Ram Bux Singh PW 3 had sat to ease at a visible distance from him. It also came in his testimony that the spot (wheat field) was at a distance of 50 yards from Bhitaura Road. On hearing the shrieks, when he first flashed the torch nothing was visible. Then after covering 15-20 paces, he flashed the torch second time and saw the three accused-appellants running.
24. The place from where he saw them running was about 5-10 paces from the spot where the victims were lying. When he had seen the accused running, he was in the wheat field itself.
25. The testimony of Ram Bux Singh PW 3 was substantially the same. He, too, had flashed his torch and had seen the accused in the light thereof when they were running out of the wheat field. He, too, named all of them. The place where he eased himself was at a distance of 20-25 paces from the grove of Lakhan Singh by the side of which was the wheat field in which the incident occurred. He also stated that when he reached the spot, Poonam was lying naked. He reversed for a while and then she covered herself. Preeti was lying about 10 paces away from her. She was unconscious. Poonam told him that a tall and the other short man committed rape on her and the tallest raped Preeti.
26. Obviously, these two witnesses had seen the three accused-appellants running from the spot in flashing torches without there being any hindrance. It could not be accepted that they could not be sure about their identity simply because they were fleeing at that time. The aspect of running of the accused is not enough to doubt the correctness of the testimony of Karan Singh PW 2 and Ram Bux Singh PW 3. So, the first ground to assail the testimony of these two witnesses does not impress us at all. So far as the question of torches is concerned, both eye-witnesses-Karan Singh PW 2 and Ram Bux Singh PW 3 had categorically stated that they had torches with them. They had flashed them at that time. Karan Singh PW 2 even produced that used torch in the court which was marked as Ext.-1. It is usual for the villagers to carry torch while going to ease at the outskirts either in wee hours or a little after sun set. True, the Investigating Officer did not prepare any fard of the torches but that cannot wash away their confidence inspiring testimony given in the court in the straight forward manner. If, owing to negligence or inexperience, the Investigating Officer did not take the torches of the witnesses in possession with preparation of fard, it can not create a hole in the prosecution case and the accused-appellants cannot claim acquittal on this ground.
27. The Supreme Court has held in the case of Leela Ram v. State of Haryana that any irregularity or even an illegality during investigation should not be treated as a ground to reject the prosecution case. In another case of Dhanaj Singh v. State of Punjab , the Supreme Court has ruled that defective investigation is not fatal to prosecution where ocular testimony is found to be credible and cogent and the accused should not be acquitted solely on the ground of defective investigation. In that case, non-sending of the blood-stained earth for chemical examination and the weapons of assault and pellets for ballistic examination was held not to be fatal to the prosecution. Thus, the second ground taken by the learned amicus curiae to attack the testimony of Karan Singh PW 2 and Ram Bux Singh PW 3 also fails.
28. The third contention that these two witnesses had no previous acquaintance with the accused is also not sustainable on the scrutiny of the testimony of these witnesses. Karan Singh PW 2 emphatically stated that accused were living pitching tents in Bithaura since before one year of the incident and he knew them from before. This fact had been mentioned by him in the F.I.R. itself which was the first version of the prosecution. The site-plan indicated that Bithaura was just in the west of the place of the incident. Not only this, Ram Bux Singh PW 3 also stated that he used to ply a tempo between Bithaura and Fatehpur and the accused used to travel by his tempo. He very well knew them from before. Therefore, these two witnesses well explained as to how they knew these three accused persons from before the incident. There was no enmity between them and the accused and it obliterated the possibility of their false implication completely.
29. Of course, the mention of the parentage of the accused-appellants in F.I.R. was not explained by Karan Singh PW 2 in his testimony before the court. But then, it is of great significance that there was a gap of about four hours between the incident and lodging of the F.I.R. The informant Karan Singh PW 2 could have known their parentage from some one else. We note from his testimony that after the incident the whole village had collected. According to him, about 200-300 persons had assembled. Karan Singh PW 2 and Ram Bux Singh PW 3 had already identified the three accused-appellants while they were running and it was quite possible that their parentage was known from some one out of those assembled. The mention of the parentage of the accused-appellants in the FIR. cannot be interpreted to mean that they were already at the Police Station when the F.I.R. was lodged and the police was instrumental in framing them in this case with mention of their parentage also. The learned amicus curiae argued that Karan Singh PW 2 admitted in his testimony before the court that at the police station he had come to know that the accused were involved in dacoity case and they were there at the police station when he had gone to lodge the F.I.R. We are of the definite opinion that he so stated unwittingly under the stress of cross-examination. When the witnesses are rustics, their testimony has to be judged in proper perspective. While examining the evidence of such a witness, we have to inform ourselves that variances at fringes, discrepancies in details, contradictions in narrations and embellishment in inessential particulars cannot militate against veracity of the core of the testimony when there is impress of truth and conformity to probability in the substantial frabric of the testimony delivered.
30. The truth of the matter is that these three accused persons were actually arrested on 26.2.2003 as testified by the Investigating Officer R.B. Singh PW 5. We note that the defence suggestion made to Karan Singh PW 2 was that large crowd had collected at the time when he was lodging the F.I.R. and the persons assembled had created a jam and blocked the public way. Now, if it were so and the accused appellants were already at the police station as argued by learned amicus curiae, then there was hardly any necessity for the police to show arrest as late as on 26.2.2003, In the eventuality as suggested by the defence to Karan Singh PW 2, the police would have ordinarily shown the culprits to have been arrested so as to avoid the public wrath and pressure. At the same time, the local police would have gained appreciation of higher authorities of having worked out the crime. The public pressure could have easily been put off. This is wholly imaginary to say that the accused-appellants were already at the police station when the F.I.R. was lodged and the police got them framed in this case falsely.
31. To come to the point, the criticism levelled by the learned amicus curiae against the testimony of Karan Singh PW 2 and Ram Bux Singh PW 3 on various grounds is wholly unsustainable and is accordingly rejected. Our view tuned by the evidence of Karan Singh PW 2 and Ram Bux Singh PW 3 examined judiciously is that they had well recognized the three accused-appellants while they were fleeing from the spot. Immediately thereafter, these two witnesses reached the spot to find the two victims lying in wheat field of Lakhan Singh. Out of them Preeti was unconscious. Both of them were brought to the house and thereafter they were taken to the hospital and admitted there. It was next to that that the written F.I.R. had been lodged by Karan Singh PW 2 at the police station.
32. The other limb of argument of learned amicus curiae is the criticism against the testimony of victim Poonam PW 1. The learned amicus curiae has urged that in the earliest version ( F.I.R.), there is no mention of rape over this witness Poonam PW 1, though her testimony is that she was raped by the accused-appellants. The F.I.R., argued the learned amicus curiae, was lodged by Karan Singh PW 2 after having talked to this witness and non-mention of the factum of rape over her in the F.I.R. is fatal to the prosecution case and at the same time it renders the testimony of this witness to be wholly unreliable. We do not think it to be so. The F.I.R. is not a substantial piece of evidence. Evidence is that which is tendered by a witness in the court and tested by cross-examination. Moreover, the contents of the F.I.R. can only be used to corroborate or to contradict the maker of it. Karan Singh PW 2 (informant) did emphatically state before the court that Poonam had told him that two of the accused had committed rape on her and the third one on Preeti. To the same effect was the testimony of Ram Bux Singh PW 3. This witness Poonam PW 1 also unambiguously deposed before the court that two accused ( Vishal and Tasleem) committed rape on her. So, res gestae evidence through Karan Singh PW 2 and Ram Bux Singh PW 3 and substantial evidence from the mouth of Poonam herself was that two of the three accused-appellants had committed rape on her. The factum of rape having been committed on her is corroborated by the presence of dead spermatozoa in the slides of her vaginal smear. So, it is beyond pale of doubt that she had been raped as is the evidence of prosecution. No doubt, the factum of her having been raped by the accused is not there in the F.I.R. But it is not at all fatal to the prosecution. There are valid reasons for this fact being not there in the F.I.R. On medical examination, she was found to be aged about 19 years. It has come in her testimony as PW 1 that she was married in April 2003 after this incident. The negotiations about her marriage were in progress when this incident took place. She also stated that her mother had advised her that she should not say as to what had happened with her as she was to be married. But later on, she disclosed the whole happening to the Investigating Officer when he interrogated her. So, it could be out of shame or modesty that at the time of lodging of the F.I.R. she did not say that she had also been raped by two accused- appellants. The finding of dead spermatozoa in slides of her vaginal smear cemented the factum of rape having been committed on her. The Supreme Court observed in the case of Dinesh alias Buddha v. State of Rajasthan (2006) 2 Supreme Court Cases (Crl) 1 that a female or women in the tradition bound non-permissible society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. So, ,at the time of lodging of the F.I.R. this witness Poonam could be hesitant in saying that she had been raped.
33. The learned amicus curiae wanted us to disbelieve the testimony of Poonam PW 1 on another premise that according to her she as well as Preeti had been raped whereas there was no evidence of any living or dead spermatozoa in the slides of vaginal smear of Preeti. So, Poonam PW 1 was not a wholly reliable witness and her testimony was liable to be rejected. We cannot accept this submission. The gist of the testimony of Poonam PW 1 is that the three accused-appellants forcibly took her and Preeti to the wheat field of Lakhan Singh, subjected them to violence and two of them committed rape on her and third one on Preeti. Preeti, too, had been found by Karan Singh PW 2 and Ram Bux Singh PW 3 lying in the same wheat field at a distance of about 10 paces from Poonam PW 1. Preeti was lying unconscious. Her initial injury report indicated that she had contused swelling on the left eyelid and on left side of forehead besides contusion on left side face. It would be recalled that she was initially examined at 9.20 P.M. on 24.2.2003 in District Hospital, Fatehpur. She died on 26.2.2003 at 6.35 A.M. Her membranes and brain were lacerated and many other vital parts such as lungs, liver, spleen, kidneys were congested. When a person looks at an event, he/she bears his/her own vision or opportunity to reckon with. The story is recounted in his/her own way. The gist of the matter is that the three accused-appellants forcibly took two unfortunate girls to the field of Lakhan Singh to gang rape them. They subjected each of them to violence. Poonam PW 1 was actually raped and her testimony found corroboration from the finding of dead spermatozoa in her vaginal smear. The other unfortunate girl who was still younger aged about 13 years had been laid by the brute accused a few paces away from her after subjecting her also to violence. Poonam PW 1 thought that she had also been raped by one of the accused, while she herself had been raped by the other two. Preeti, in fact, having been subjected to violence by the accused had become unconscious at the spot due to injuries caused to her and because of shock that she experienced thereby. As she had become unconscious, the accused left her as such, thinking that there could hardly be any pleasure in doing beastly act of rape with her, she (Preeti) having become unconscious. So, the absence of actual rape having not been committed on Preeti does not diminish the confidence inspiring testimony of Poonam PW 1.
34. Learned amicus curiae then wanted us to discard the testimony of Poonam PW 1 on the premise that no marks of dragging had been found either on her person or that of Preeti, though the prosecution case was that both of them had been dragged to the wheat field of Lakhan Singh. In our opinion, the absence of dragging marks on the persons of these two victims does not create any ripple in the trustworthy evidence of Poonam PW 1. As a matter of fact, she had well explained in her testimony before the court that the accused-appellants had dragged her and Preeti by catching them by wrists with feet coming in contact of ground. She was putting on chappals at that time. So, the chappals formed a cushion so as to prevent dragging injuries. The Investigating Officer R.B. Singh PW 5 also stated that Chappals and tumblers (Lotas) of the victims had been found at the spot by the side of road. The argument is, therefore, lost.
35. It has next been pointed out by the learned amicus curiae that as per the Investigating Officer, he had taken in possession from the spot some samples of hair and got the same compared with specimen hair of the three accused appellants. The chemical examiner in his report did not find the specimen of hair of any accused-appellants to tally with those found at the spot and it negatived the involvement of any of them in the crime. The argument is without substance. The report of such examination does not negative the involvement of the three accused-appellants as-culprits of this crime in view of formidable testimony that has otherwise come on record against them. We should also note that the Investigating Officer stated that he had picked from the spot some hair which appeared to be human hair. He, after arrest of the accused-appellants took the samples of their hair and got them compared with those found at the spot. May be that the hair found at the spot were of some one else earlier left there. It was simply a step taken during the course of investigation but no adverse effect was produced on the prosecution case. Had there been any foul plan or engineering of Investigating Officer in this regard, he could have designed the recovered hair also out of those taken from the heads of the accused after their arrest and they would have definitely tallied. We are not prepared to attach any importance to the argument put forth by the learned amicus curiae on the basis of non-tallying of the recovered hair with specimen hair of the three accused-appellants.
36. Relying on the case of Karan Singh alias Karmu v. State by the inspector of C.B.C.I.D., Madras amicus curiae argued that the testimony of Poonam PW 1 incriminating the accused-appellants was of no value as they had not been subjected to test identification parade and they could not be convicted only on the basis of their court identification by her. We are of the view that the said ruling does not come to the rescue of the accused-appellants in the setting of the facts, evidence and circumstances of the present case. The accused-appellants being known to the informant-Karan Singh PW 2 from before the incident and having been named in the F.I.R., there was hardly any question of their being subjected to any identification. It is of vital importance that the star witness-Poonam PW 1 (one of the victims of this crime) never gave their names at any stage. To Karan Singh PW 2 and Ram Bux Singh PW 3 (who had reached the spot immediately after the incident), she had described them by their stature and features, though they themselves knew them from before and had seen them fleeing from the spot just before. Identification may be in many ways. In the court, Poonam PW 1 identified the culprits with the colour of their shirts. She pointed out that the accused putting on blue shirt and the other one with green shirt had caught hold of her, forcibly taken her to the wheat field and committed rape on her, whereas one wearing yellow shirt had caught hold of Preeti and had forcibly taken her to the wheat field. On such identification made by this witness, the accused in blue shirt disclosed his name as Vishal and that with green shirt disclosed his name as Tasleem. The accused with yellow shirt disclosed his name as Kamru. It was this way that their identity came to be fixed in the court on the basis of testimony of Poonam PW 1. She was first raped by the tall accused who was wearing blue shirt in court (Vishal) and then by the other one wearing green shirt in the court (Tasleem). It also came to be fixed by the testimony of Ram Bux Singh PW 3 that Vishal accused was the tallest of three accused-appellants and Tasleem was shortest of them. All things considered, the identification of Vishal and Tasleem by Poonam PW 1 as the persons who had dragged her and committed rape on her is very well fixed and fortified. It was the third one who was wearing yellow shirt in the court at the time of examination of Poonam PW 1 who handled and attempted to ravish the other girl Preeti.
37. The Supreme Court has held in the case of Malkhan Singh and Ors. v. State of Madhya Pradesh 2003 (2) JIC 497 (SC) in para 7 as under:
It is trite to say that substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court, The facts which establish the identity of the accused persons are relevant under Section 9 of Indian Evidence Act. As a general rule, the substantial evidence of a witness is the statement made in the court. The evidence of mere identification of accused-person at the trial for the first time is, from its very nature inherently of a weak character. The purpose of prior test identification is, therefore, to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to expectations; when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Cr.P.C. which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. They do not constitute substantial evidence and these parades are essentially governed by Section 162 of Cr.P.C. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.
38. The same view was expressed in subsequent case of Simon and Ors. v. State of Karnataka 2004(2) JIC 855 (SC).
39. In the instant case, the evidence of Poonam PW 1 is perfectly believable that the culprits were the three accused-appellants. We find her to be implicitly reliable. She did not know them even before by name. She only recognized them by face. It has come in her testimony that she had seen them once or twice earlier to the incident, because they used to graze horse(s) and beg.
40. Learned amicus curiae then urged that Poonam PW 1 stated that Preeti had not been given any danda blow. We do not think that her this statement provides any handle to the defence to criticize her testimony. The truth of the matter is that both the victims were subjected to violence by the three accused-appellants. Two of them forcibly took Poonam PW 1 to wheat field, assaulted her and committed rape on her. They came to be identified as Vishal and Tasleem. The third one Kamru forcibly took the other girl Preeti to the said wheat field subjected her to violence and handled her with the design to ravish her. The injuries found on her person were on left eyelid, left side forehead and left side face indicative of a clear attempt to rape her. But as we pointed out earlier, she became unconscious at the spot itself and the accused (Kamru) handling her did not succeed in deriving full pleasure by ravishing her who had already become unconscious. It was, indeed, a gang rape on two girls Preeti and Poonam. Out of them Preeti came to be murdered also. All the three accused appellants were acting in concert and it matters not that one of the girls Preeti could not actually be raped.
41. The Supreme Court has repeatedly held that sole testimony of the victim of rape is sufficient for conviction. It was held in the case of State of Rajasthan v. Noore Khan 2000 (2) JIC 237 (SC) that the testimony of rape victim does not require corroboration. The same view was repeated in the case of Sudhansu Sekhar Sahoo v. State of Orissa 2003, Supreme Court Cases ( Cri) 1484. In the said case, it was observed that the court should be strict and vigilant to protect the society from such evils. In the case of State of H.P. v. Shree Kant Shekari , the Supreme Court reiterated that the testimony of victim of rape can be acted upon without corroboration in material particulars.
42. In the present case the testimony of Poonam PW 1 finds corroboration from medical evidence, inasmuch as dead spermatozoa had been found in her vaginal smear.
43. In a very recent case reported in Times of India ( Delhi Edition) on 18th May, 2006, the Supreme Court has given a new input to deal with sexual offenders in a male dominated society. It has advised all the trial courts to take a victim's testimony as gospel truth, unless it is tinged with a motive to falsely implicate the accused. The Bench comprising of Hon'ble Arijit Pasayat and Hon'ble H.S. Kapadia, JJ. has observed that in a normal course a victim of rape does not like to disclose such an offence before her family members, much less before the police. The Indian woman has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in a few cases, the victim girl or her family members, come forward to give evidence of such unfortunate happening.
44. In the present case, we are definitely of the view that statement of Poonam PW 1 is quite natural, inspiring judicial confidence and meriting acceptance. There was hardly any question of false implication of the accused-appellants.
45. Considering all the relevant aspects of the case in the light of evidence and attending circumstances, we do not find any merit in the arguments advanced by the learned amicus curiae to assail the impugned judgement. The three accused-appellants have rightly been held guilty under Section 376(2)(g) of I.P.C. and 302 I.P.C. However, we are of the opinion that the present case does not fall in the category of rarest of the rare cases. Only life long deprivation of liberty would fit in to meet the ends of justice. To say conversely, extreme penalty of death as awarded by the trial court has to be reversed.
46. In the ultimate result, we partly allow all the appeals. We uphold the conviction of the accused-appellants under Section 376(2)(g) and 302 I.P.C. However, the sentence of death awarded to them for the offence under Section 302 I.P.C. is converted to that of life imprisonment.
47. The other sentences awarded to them for the offence under Section 376(2)(g) I.P.C. remain the same.
48. The Reference sent for confirmation of death sentence by the trial court is rejected.
49. The accused-appellants, namely, Tasleem, Vishal and Kamru are in jail, The Chief Judicial Magistrate, Fatehpur shall confirm it and ensure that they suffer the sentences awarded to them. The compliance shall be reported within two months from the date of receipt of copy of this order. Sri Ramji Saxena, Advocate, who argued out the appeals on behalf of accused-appellants as amicus curiae, shall get Rs. 7500/- as his fee. We record our appreciation for him as also for learned A.G.A. Sri Karunanand Bajpai. Both of them rendered valuable assistance to the Court by in-depth analysis of different facets of the case, evidence and the attending circumstances.
50. Certify the judgement to the lower court for reporting compliance as ordered above.