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Test Identification parade not required.

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

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