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Although no rash or negligent act is noticed on the part of the
respondents, the fact remains that the deceased-Ammini was doing the
household work for the respondents No.1 & 2 and working as per the
instructions of the respondents at the relevant time. As the death of the
deceased was caused on account of the operation of the washing machine, the
respondents No.1 & 2, who engaged Ammini for the said work are liable to
compensate the deceased. It is to be noted that the object of providing
compensation in this case is to help the family of the deceased. Learned
counsel for the State of Kerala has produced a letter No.
16770/J2/2015/Home dated 20.03.2015 from Home (J) Department of Government
of Kerala for our perusal, as per which the State Government has decided to
sanction an amount of Rs.1,00,000/- to the appellant from Chief Minister’s
Distress Relief Fund. The deceased belonged to a lower strata of the
society, in the interest of justice, in exercise of our extra ordinary
jurisdiction under Article 142 of the Constitution of India, we deem it
appropriate to direct the respondents No.1 & 2 also to pay compensation to
the appellant.

———————————————————————————————————————–

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 582 OF 2015
(Arising out of S.L.P. (Crl.) No. 1632/2014)

RAJAN …Appellant

Versus

JOSEPH & ORS. ..Respondents

J U D G M E N T
R. BANUMATHI, J.

Leave granted.
2. This appeal by way of special appeal arises out of judgment
dated 20.3.2013, passed by the High Court of Kerala at Ernakulam in Crl. M.
C. No.1325 of 2007, allowing the application filed u/s 482 Cr.P.C. and
quashing the proceeding initiated against the respondents in C.C. No.994 of
2006 u/s 304A IPC, pending before Judicial First Class Magistrate,
Kodungallur, Thrissur District, Kerala.
3. Brief facts which led to the filing of this appeal are as
under:- The appellant herein is the husband of the deceased-Ammini, who
was working as a maid for more than five years in the house of the
respondents No.1 & 2. Ammini died on 15.4.2005 due to electric shock
allegedly sustained by her while working on washing machine in the house of
the respondents No. 1 & 2. Initially, the case was registered by the
Mathilakam Police as “unnatural death” u/s 174 Cr.P.C, but after
investigation ‘refer report’ was filed, stating that it was “accidental
death”. The appellant filed a private complaint before the JMFC and the
Magistrate took cognizance of the case u/s 304A IPC and issued summons to
the respondents. The respondents approached the High Court, praying for
quashing the case pending before JMFC. High Court allowed the application
thereby quashing the proceedings initiated against respondents under
Section 304A IPC. In this appeal, appellant assails the correctness of
the said order.
4. We have heard the learned counsels for the appellant and the
respondents.
5. The appellant alleged that due to rash and negligent act of the
respondents No.1 & 2, deceased-Ammini died. It is undisputed that deceased
was working as a maid for the last five years in the house of respondents.
On 15.4.2005, the deceased died due to electric shock in the washing
machine while working in the house of the respondents No. 1 & 2. To prove
the charge under Section 304A IPC, it is necessary to establish the guilt
of respondents No.1 & 2 i.e. the accused, acted in a negligent manner in
not taking reasonable care of their washing machine and caused the death of
deceased-Ammini due to electric shock.
6. After due enquiry, the Electric Inspector has given his report
dated 23.02.2006, in which he has reported that there is a single phase
current connection in the house of the respondents No.1 & 2. He has
further reported that although body of the washing machine was eleven years
old but when the insulation value was taken, it was found that there is no
possibility of current leakage in the washing machine. It was also
reported that by mistake deceased might have tried to turn on and off the
switch with wet hands and at that time she might have come into contact
with the live portion behind the plug and died due to electric shock. As
seen from the certificate issued from Modern Hospital, Kodungallur, the
respondents immediately rushed to the hospital to save the life of the
deceased and she was declared dead by the Doctor-CW3. Considering the
materials on record, we concur with the views expressed by the High Court
that no offence under Section 304A IPC is made out and in our view, the
High Court has rightly quashed the proceedings initiated before JMFC.
7. Although no rash or negligent act is noticed on the part of the
respondents, the fact remains that the deceased-Ammini was doing the
household work for the respondents No.1 & 2 and working as per the
instructions of the respondents at the relevant time. As the death of the
deceased was caused on account of the operation of the washing machine, the
respondents No.1 & 2, who engaged Ammini for the said work are liable to
compensate the deceased. It is to be noted that the object of providing
compensation in this case is to help the family of the deceased. Learned
counsel for the State of Kerala has produced a letter No.
16770/J2/2015/Home dated 20.03.2015 from Home (J) Department of Government
of Kerala for our perusal, as per which the State Government has decided to
sanction an amount of Rs.1,00,000/- to the appellant from Chief Minister’s
Distress Relief Fund. The deceased belonged to a lower strata of the
society, in the interest of justice, in exercise of our extra ordinary
jurisdiction under Article 142 of the Constitution of India, we deem it
appropriate to direct the respondents No.1 & 2 also to pay compensation to
the appellant.
8. As decided by the State Government, the third respondent-State
of Kerala shall pay an amount of Rs.1,00,000/- from Chief Minister’s
Distress Relief Fund to the appellant. Additionally, the respondents No.
1 & 2 shall pay a compensation of Rs.1,00,000/- to the appellant within a
period of four weeks from today. With the above direction, this appeal is
disposed of.

………………….J.
(T.S. Thakur)

………………….J.
(Kurian Joseph)

………………….J.
(R. Banumathi)

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A perusal of the above-extracted provision reveals, that to satisfy
the ingredients thereof, the man concerned should have deceived the woman,
to believe the existence of matrimonial ties with her. And based on the
aforesaid belief, the man should have cohabited with her. The question to
be determined on the basis of the factual position, as has been noticed
hereinabove, is whether in the facts and circumstances of this case, it is
possible to accept such deceit, at the hands of the respondent, even if it
is accepted for the sake of arguments, that cohabitation continued between
the parties between 08.01.1994 till 23.06.1994, i.e., from the date when
the respondent was granted an ex-parte decree of divorce (by the Additional
District Judge, Chandigarh), till the date when the respondent married
Sunita Rani. We are of the considered view, that with the setting aside of
the ex-parte decree of divorce dated 08.01.1994 (on 19.02.1996), it cannot
be accepted, that there was any break in the matrimonial relationship
between the parties. Even the complaint filed by the appellant under
Section 376 of the Indian Penal Code was not entertained (and the
respondent was discharged), because it came to be concluded, that the
matrimonial ties between the appellant and the respondent were restored,
with the setting aside of the ex-parte decree of divorce, as if the
matrimonial relationship had never ceased. In sum and substance therefore,
consequent upon the passing of the order dated 19.02.1996 (whereby the
Additional District Judge, Chandigarh, set aside the ex-parte decree dated
08.01.1994), the matrimonial ties between the appellant and the respondent,
will be deemed to have subsisted during the entire period under reference
(08.01.1994 to 23.06.1994). In fact, the accusation of the appellant, on
the aforesaid premise, in the first complaint filed by the appellant
against the respondent (under Section 376 of the Indian Penal Code) was not
entertained, and the respondent was discharged, just because of the above
inference. For exactly the same reason, we are satisfied that the charge
against the respondent is not made out, under Section 493 of the Indian
Penal, because the respondent could not have deceived the appellant of the
existence of a “lawful marriage”, when a lawful marriage indeed existed
between the parties, during the period under reference.
———————————————————————————————————————–
REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.457 OF 2008

RAVINDER KAUR …….APPELLANT

VERSUS

ANIL KUMAR …….RESPONDENT

J U D G M E N T

J.S.KHEHAR, J.

The appellant (Ravinder Kaur) and the respondent (Anil
Kumar) got married on 14.08.1991. Soon thereafter, the respondent preferred
a petition seeking divorce from the appellant before the Additional
District Judge, Ropar. Having received summons in the above-mentioned
case, the appellant entered appearance before the Additional District
Judge, Ropar, on 08.10.1992. On the following day, i.e., on 09.10.1992,
the respondent withdrew the petition filed by him under Section 13 of the
Hindu Marriage Act, 1955.
The respondent filed a second divorce petition on
30.04.1993, under Section 13 of the Hindu Marriage Act, 1955, on the same
factual premise and grounds (as the earlier petition), before the
Additional District Judge, Chandigarh. Proceedings were conducted in the
second divorce petition, in the absence of the appellant, and an ex-parte
decree of divorce was granted to the respondent, on 08.01.1994. It was the
case of the appellant before this Court, that the respondent did not inform
her, that the matrimonial ties between the parties had come to an end, by
the decree of divorce dated 08.01.1994. And under the impression, that the
marriage was subsisting, he continued his conjugal relationship with the
appellant, as her husband, by deception.
It was also the case of the appellant, that on 23.06.1994
the respondent married Sunita Rani. It was, thereupon, that the appellant
became aware (on 23.06.1994 i.e., on the occasion of his marriage with
Sunita Rani) about the fact, that the respondent had been granted an ex-
parte decree of divorce on 08.01.1994 (by the Additional District Judge,
Chandigarh). Within six days, of her coming to know, about the above ex-
parte decree of divorce, the appellant preferred an application, for
setting aside the said ex-parte decree, on 29.06.1994. The same was
allowed by the Additional District Judge, Chandigarh, on 19.02.1996. In
sum and substance, therefore, the matrimonial ties between the appellant
and the respondent came to be restored, as if the marital relationship had
never ceased.
Based on the fact, that the respondent had continued the
sexual relationship with the appellant, for the period from 08.01.1994
(when the ex-parte decree of divorce was passed) till he married Sunita
Rani on 23.06.1994, the appellant preferred a complaint before the Judicial
Magistrate 1st Class, Kharar, under Section 376 of the Indian Penal Code.
It is not a matter of dispute, that the respondent was discharged from the
above proceedings. In fact, no trial came to be conducted in furtherance of
the above complaint made by the appellant. The above order of discharge,
was assailed by the appellant, before the High Court of Punjab and Haryana,
at Chandigarh (hereinafter referred to as `the High Court’). The High
Court affirmed the order of discharge, on 10.07.1997. Dissatisfied with
the order of discharge, as also, the order passed by the High Court, the
appellant approached this Court. This Court declined to interfere with the
above orders.
On the same factual premise, as has been noticed in the
foregoing paragraphs (wherein the appellant had filed a complaint for
initiation of proceedings under Section 376 of the Indian Penal Code), the
appellant filed a second complaint, this time accusing the respondent of
offences under Sections 493, 494, 495, 496, 420, 506 read with Section 120-
B of the Indian Penal Code. The Judicial Magistrate 1st Class, Kharar, did
not entertain the aforementioned complaint filed by the appellant, and
dismissed the same vide an order dated 27.11.2002. Dissatisfied with the
aforesaid order, the appellant preferred a revision petition, assailing the
above order dated 27.11.2002, before the Sessions Judge, Roopnanagr. The
aforesaid revision petition was dismissed on 04.09.2003. The order dated
04.09.2003 was assailed by the appellant before the High Court, through
Criminal Misc.No.50496-M of 2003. The aforesaid Criminal Miscellaneous
Petition, was dismissed by the High Court on 10.01.2007. The order passed
by the High Court on 10.01.2007 is a subject matter of challenge through
the instant appeal.

During the course of hearing, learned counsel for the
appellant very fairly asserted, that the claim raised by the appellant in
the complaint, which is a subject matter of the present consideration, can
be pressed against the respondent, only with reference to the accusations
levelled by the appellant, under Sections 493 and 494 of the Indian Penal
Code. It was, therefore, that the instant controversy will be examined by
us, limited to the allegations made by the appellant, under Sections 493
and 494 of the Indian Penal Code only.
Learned counsel for the respondent, while opposing the
prayer made on behalf of the appellant vehemently contended, that the
present proceedings were not maintainable against the respondent, in the
light of Section 300 of the Criminal Procedure Code. In this behalf, it
was the submission of the learned counsel for the respondent, that it was
not open to the appellant to raise a claim against the respondent, so as to
subject the respondent to a trial again, on the same facts as in the
earlier complaint, even for an offence, other than the one, with reference
to which the earlier compalint was filed (under Section 376 of the Indian
Penal Code). To examine the veracity of the contention raised by the
learned counsel for the respondent, Section 300 of the Code of Criminal
Procedure is being extracted hereunder:
“300. Person once convicted or acquitted not to be tried for same
offence.

(1) A person who has once been tried by a Court of competent jurisdiction
for an offence and convicted or acquitted of such offence shall, while such
conviction or acquittal remains in force, not be liable to be tried again
for the same offence, nor on the same facts for any other offence for which
a different charge from the one made against him might have been made under
sub- section (1) of section 221, or for which he might have been convicted
under sub-section (2) thereof.

(2) A person acquitted or convicted of any offence may be afterwards tried,
with the consent of the State Government, for any distinct offence for
which a separate charge might have been made against him at the former
trial under sub- section (1) of section 220.

(3) A person convicted of any offence constituted by any act causing
consequences which, together with such act, constituted a different offence
from that of which he was convicted, may be afterwards tried for such last-
mentioned offence, if the consequences had not happened, or were not known
to the Court to have happened, at the time when he was convicted.

(4) A person acquitted or convicted of any offence constituted by any acts
may, notwithstanding such acquittal or conviction, be subsequently charged
with, and tried for, any other offence constituted by the same acts which
he may have committed if the Court by which he was first tried was not
competent to try the offence with which he is subsequently charged.

(5) A person discharged under section 258 shall not be tried again for the
same offence except with the consent of the Court by which he was
discharged or of any other Court to which the first- mentioned Court is
subordinate.

(6) Nothing in this section shall affect the provisions of section 26 of
the General Clauses Act, 1897, (10 of 1897 ) or of section 188 of this
Code.
Explanation.- The dismissal of a complaint, or the discharge of the
accused, is not an acquittal for the purposes of this section.”

Having perused Section 300, we are satisfied, that the
submission advanced at the hands of the learned counsel for the respondent,
namely, that Section 300 of the Criminal Procedure Code, will be an embargo
to obstruct the right of the appellant to file a second complaint against
the respondent, is not justified. Our above determination is based on the
fact, that the respondent had not been tried, in furtherance of the
previous complaint made by the appellant, under Section 376 of the Indian
Penal Code. The contention of the learned counsel for the appellant, that
the respondent had been discharged in furtherance of the complaint made by
the appellant, without any trial having been conducted against him (the
respondent), was not disputed. Based on the above factual contention,
learned counsel for the appellant had placed emphatic reliance, on the
explanation under Section 300 of the Criminal Procedure Code. The
explanation relied upon, clearly mandates that the dismissal of a
complaint, or the discharge of an accused, would not be construed as an
acquittal, for the purposes of this Section. In this view of the matter, we
are in agreement with the contention advanced at the hands of the learned
counsel for the appellant. We are of the considered view, that proceedings
in the second complaint would not be barred, because no trial had been
conducted against the respondent, in furtherance of the first complaint.
Having so concluded, it emerges that it is open to the appellant, to press
the accusations levelled by her, through her second complaint, referred to
above.
It is, therefore, that we shall now examine the present
controversy, with reference to Sections 493 and 494 of the Indian Penal
Code, which admittedly survive. The contention of the learned counsel for
the respondent, with reference to Section 493 of the Indian Penal Code was,
that the ingredients of the offence under Section 493 were not made out,
even if the factual position, as has been asserted by the appellant, is
accepted. Section 493 of the Indian Penal Code is being extracted
hereunder:
“493. Cohabitation caused by a man deceitfully inducing a belief of lawful
marriage.-Every man who by deceit causes any woman who is not lawfully
married to him to believe that she is lawfully married to him and to
cohabit or have sexual intercourse with him in that belief, shall be
punished with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.”

A perusal of the above-extracted provision reveals, that to satisfy
the ingredients thereof, the man concerned should have deceived the woman,
to believe the existence of matrimonial ties with her. And based on the
aforesaid belief, the man should have cohabited with her. The question to
be determined on the basis of the factual position, as has been noticed
hereinabove, is whether in the facts and circumstances of this case, it is
possible to accept such deceit, at the hands of the respondent, even if it
is accepted for the sake of arguments, that cohabitation continued between
the parties between 08.01.1994 till 23.06.1994, i.e., from the date when
the respondent was granted an ex-parte decree of divorce (by the Additional
District Judge, Chandigarh), till the date when the respondent married
Sunita Rani. We are of the considered view, that with the setting aside of
the ex-parte decree of divorce dated 08.01.1994 (on 19.02.1996), it cannot
be accepted, that there was any break in the matrimonial relationship
between the parties. Even the complaint filed by the appellant under
Section 376 of the Indian Penal Code was not entertained (and the
respondent was discharged), because it came to be concluded, that the
matrimonial ties between the appellant and the respondent were restored,
with the setting aside of the ex-parte decree of divorce, as if the
matrimonial relationship had never ceased. In sum and substance therefore,
consequent upon the passing of the order dated 19.02.1996 (whereby the
Additional District Judge, Chandigarh, set aside the ex-parte decree dated
08.01.1994), the matrimonial ties between the appellant and the respondent,
will be deemed to have subsisted during the entire period under reference
(08.01.1994 to 23.06.1994). In fact, the accusation of the appellant, on
the aforesaid premise, in the first complaint filed by the appellant
against the respondent (under Section 376 of the Indian Penal Code) was not
entertained, and the respondent was discharged, just because of the above
inference. For exactly the same reason, we are satisfied that the charge
against the respondent is not made out, under Section 493 of the Indian
Penal, because the respondent could not have deceived the appellant of the
existence of a “lawful marriage”, when a lawful marriage indeed existed
between the parties, during the period under reference.
So far as the surviving provision, namely, Section 494 of
the Indian Penal Code is concerned, the same is compoundable. During the
course of hearing, on 08.04.2015, we enquired from the learned counsel for
the appellant, whether the appellant was interested in compounding the
cause, since we were made aware of the fact, that the respondent in the
meantime had fathered two children, from Sunita Rani. This proposal was
made by the Court on an oral assertion made at the behest of the learned
counsel representing the respondent, that the appellant had also re-married
in the meantime, and that, she had also begotten one son out of her second
marriage.
Having obtained instructions, learned counsel for the
appellant very fairly acknowledged, the second marriage of the appellant.
He also acknowledged, the factum of the appellant having begotten a son,
from her second marriage. In the changed scenario, learned counsel for the
appellant informed this Court, that the appellant had instructed him, that
a request may be made to the Court, that the appellant would have no
objection to the compounding of the offence under Section 494 of the Indian
Penal Code, in terms of Section 320 of the Code of Criminal Procedure, with
the consent of this Court. The contention of the learned counsel for the
appellant however was, that the appellant should be awarded reasonable
cost, while compounding the offence under Section 494 of the Indian Penal
Code.
Having given our thoughtful consideration to the facts and
circumstances of this case, specially the factual position as has emerged
after the ex-parte decree of divorce dated 08.01.1994 (passed by the
Additional District Judge, Chandigarh) was set aside on 19.02.1996, we are
of the view, that the best course for the parties is to settle their
dispute amicably. Section 320 of the Criminal Procedure Code is an avenue
available to the parties, for such resolution. In view of the consent
expressed by the appellant to this Court through her counsel, we hereby
direct the compounding of complaint made by the appellant with reference to
Section 494 of the Indian Penal Code. We direct the respondent to pay a
sum of Rs.5 lakhs, as compensation to the appellant. The respondent shall
deposit the aforesaid amount in this Court within two months from today.
It shall be open to the appellant to move an application to the Registry of
this Court, to withdraw the aforesaid amount.
The appeal is disposed of in the above terms.

……………………..J.
(JAGDISH
SINGH KHEHAR)

……………………..J.
(S.A.BOBDE)

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1581 OF 2009

Ms. S …. Appellant

Versus

Sunil Kumar & Anr. …. Respondents

J U D G M E N T

Uday Umesh Lalit, J.
1. This appeal by special leave challenges the judgment and order dated
20.11.2007 passed by the High Court of Chhattisgarh dismissing Criminal
Revision No.550 of 2007 preferred by the Appellant through her natural
guardian. By dismissing said criminal revision the High Court affirmed
the view taken by the trial court acquitting Respondent No.1 herein of the
charges under Section 376(2)(f) of the IPC and Section 3(2)(V) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
(for short “the Act”). Though the present appeal has been filed in the
name of the Appellant, in view of Section 228A of the IPC we direct that
the cause title shall stand amended and be read as “Ms. S. versus Sunil
Kumar and another”.

2 The case of the prosecution is that in the forenoon of 14.01.2006
while the Appellant was guarding her crops, a person aged about 20-22 years
wearing a shirt with red stripes and black trouser came. He called the
Appellant by making a signal, whereupon she started running. He ran after
her, caught her and after removing her undergarments committed sexual
intercourse. He also bit the lip of the Appellant. She shouted for help
which attracted the attention of three persons, namely, PWs 2, 4 and 6 (the
names of these witnesses are not being given as one of them is the brother
of the Appellant and they shall hereafter be referred to by their
designation in the trial). PW-4 i.e. the brother of the Appellant ran for
catching that person but was unable to catch him and the person ran away.

3. The reporting in respect of the aforesaid incident was immediately
made by the Appellant in Patharia Police Station and FIR Ext.P-1 was
registered under Section 376 IPC. In the first information report itself
the Appellant had stated the complexion of the man to be “sanwla”, that he
was wearing shirt with red stripes and that he was unable to speak. She
further stated that she would be able to identify that man. The Appellant
was immediately sent for medical examination. PW-7 Dr. Vibha Sindur did
the medical examination and found following features:
“1. The age of the prosecutrix was about 10 years.
There was a cut injury on the lower lip and a swelling on the upper lip.

There was an aberration of 3 x 5 cms in the waist.

On internal examination
1. The hymen was freshly ruptured and it was bleeding.

2. Two slides of the vagina were prepared and were handed over to the IO
for chemical examination.

3. According to the doctor the prosecutrix was subjected to sexual
intercourse.”
4. During the course of investigation the blood-stained soil and the
plain soil from the place of occurrence was seized vide Ext.P-14. The
caste certificate (Ext.P-13) of the Appellant was also seized. Respondent
No.1 was arrested vide arrest panchnama Ext.P-18 and was sent for medical
examination. PW-13 Dr. D.R. Singraul found him capable of having sexual
intercourse. The shirt with red stripes and black trouser were also seized
from Respondent No.1 vide Ext.P-17. These garments were then produced for
identification before the witnesses including the Appellant who identified
said garments. Though the Appellant had clearly stated that she would be
able to identify the man, no test identification parade was conducted.
During the investigation the age of the Appellant was found to be between
10-14 years by PW-9 Dr. Anil Pratap Singh upon X-Ray examination.

5. After completion of investigation Respondent No.1 was charged for
having committed offences under the aforesaid Sections and sent for trial.
The Appellant was examined as PW-1 who stated about the incident in
question and re-iterated the contents of the FIR. She also identified
Respondent No.1 in court though she did not know the name of Respondent
No.1, nor the village that he belonged. PWs 2, 4 and 6 who after hearing
the shouts for help had arrived at the place of incident, supported her
version as regards the fact that she was subjected to rape. However none
of these witnesses could identify Respondent No.1. The Investigating
Officer was examined as PW-10 who accepted that from the first information
report it appeared that the offence was committed by some unknown person
but could not give reason why test identification parade was not conducted.
In his cross examination, a suggestion was given by the defence that
Respondent No. 1-Accused was unable to speak. He explained that on an
earlier occasion, a complaint was made by the maternal grandfather of
Respondent No. 1 stating about his disability, that he was lost and that
Respondent No. 1 was found in pursuance of such complaint.

6. The trial court after considering the entire material on record came
to the conclusion that the age of the Appellant was 10-13 years of age and
that she was minor at the time of incident. It was held that the medical
evidence on record clearly showed that she was subjected to sexual
intercourse. Though the statements of the Appellant and PWs 2, 4 and 6
clearly established the fact that she was subjected to sexual intercourse
at the time and in the manner alleged, the trial court observed that PWs 2,
4 and 6 had failed to identify Respondent No.1. Despite the fact that the
Appellant had identified Respondent No.1 in court, the trial court observed
that in the absence of any prior test identification parade such
identification in court for the first time was not good enough.
Though the finding was recorded that the Appellant belonged to
Scheduled Caste community nothing was discussed whether the offence under
Section 3(2)(V) was otherwise made out. Giving him benefit of doubt on the
question of identification, Respondent No.1 was acquitted of the charges
leveled against him, vide judgment of the trial court dated 27.02.2007 in
Special Session Case No.68 of 2006.

7. The Appellant being aggrieved filed Criminal Revision under Section
397 read with 401 of the Cr.P.C. in the High Court. The High Court
affirmed the view taken by the trial court that since no test
identification parade was arranged, the identification by the Appellant for
the first time in court was not sufficient. For the lapses committed by
the Investigating Officer in not arranging the test identification parade,
the High Court recommended departmental action against him but went on to
observe that the acquittal by the trial court was on sound reasoning and
that there was no illegality or infirmity in the judgment of acquittal.
The High Court therefore dismissed the revision. It appears that there was
delay of 81 days in filing the revision and the revision was dismissed both
on merits as well as on delay.

8. The present appeal has been preferred by the prosecutrix/ Appellant
through Supreme Court Legal Services Committee. Despite service of notice
upon Respondent No.1 no appearance was entered on his behalf and as such
this Court appointed Ms. Vanshaja Shukla, learned advocate as Amicus Curiae
to assist the court on behalf of Respondent No.1. We must place on record
appreciation for the assistance rendered by her.

9. Mr. Kanhaiya Priyadarshi, learned advocate appearing for the
appellant submitted that the testimony of the Appellant was cogent and
supported by the other evidence on record. There was immediate reporting
and the fact that she was subjected to sexual intercourse was well
established. Three witnesses had immediately arrived pursuant to her
shouts who corroborated the factum of rape. The Appellant in her first
reporting had clearly stated that she would be able to identify the person
and had given sufficient indication regarding his identity. Her
identification in court, in the circumstances was not flawed on any count
and ought to be accepted. His submissions were well supported by Ms.
Shashi Juneja, learned advocate appearing for the State who invited our
attention to Ashok Debbarama @ Achak Debbarma v. State of Tripura[1] and
submitted that the identification for the first time in court is good
enough and can be relied upon if the witness is otherwise trustworthy and
reliable. Ms. Vanshaja Shukla learned Amicus Curiae fairly accepted that
it is only as a matter of prudence that the courts require and insist upon
test identification parade and that it would entirely depend upon facts and
circumstances if the testimony of the witness is otherwise found to be
trustworthy and reliable.

10. It has consistently been held by this Court that what is substantive
evidence is the identification of an accused in court by a witness and that
the prior identification in a test identification parade is used only to
corroborate the identification in court. Holding of test identification
parade is not the rule of law but rule of prudence. Normally
identification of the accused in a test identification parade lends
assurance so that the subsequent identification in court during trial could
be safely relied upon. However, even in the absence of such test
identification parade, the identification in court can in given
circumstances be relied upon, if the witness is otherwise trustworthy and
reliable. The law on the point is well-settled and succinctly laid down in
Ashok Debbarma (supra).

11. In the present case the Appellant was subjected to sexual intercourse
during broad day light. The fact that she was so subjected at the time and
in the manner stated by her, stands proved. Three witnesses had
immediately come on the scene of occurrence and found that she was raped.
The immediate reporting and the consequential medical examination further
support her testimony. By very nature of the offence, the close proximity
with the offender would have certainly afforded sufficient time to imprint
upon her mind the identity of the offender. In Malkhansingh v. State of
M.P.[2] in a similar situation where identification by prosecutrix for the
first time in court was a matter in issue, this Court had observed:
“She also had a reason to remember their faces as they had committed a
heinous offence and put her to shame. She had, therefore, abundant
opportunity to notice their features In fact on account of her traumatic
and tragic experience, the faces of the appellants must have got imprinted
in her memory, and there was no chance of her making a mistake about their
identity.”

12. Furthermore, the appellant had gone to the extent of stating in her
first reporting that she would be in a position to identify the offender
and had given particulars regarding his identity. The clothes worn by the
offender were identified by her when called upon to do so. In the
circumstances there was nothing wrong or exceptional in identification by
her of the accused in court. We find her testimony completely trustworthy
and reliable. Consequently we hold that the case against Respondent No.1
stands proved. Since the trial court had found the age of the Appellant to
be 10-13 years of age, we take the age to be on the maximum scale i.e. 13
years. In our considered view, the High Court was not justified in
dismissing the revision. No other view was possible and the case therefore
warrants interference by this Court. We accordingly allow the appeal and
convict Respondent No.1 for having committed the offence under Section
376(1) IPC and sentence him to undergo imprisonment for seven years and
also impose a fine of Rs.5,000/- which in its entirety shall be made over
to the Appellant. In the event such fine is not deposited, Respondent No.1
shall undergo further sentence of simple imprisonment for six months. We,
however, confirm the acquittal of Respondent No.1 for the offence under
Section 3(2)(V) of the Act. Respondent No.1 shall be taken into custody
forthwith to undergo the sentence as aforesaid.
………………………..J.
(Pinaki Chandra Ghose)
………………………..J.
(Uday Umesh Lalit)
New Delhi,
April 10, 2015