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Sunday, April 12, 2015

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.-"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."

                                                                  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


ITEM NO.1D              COURT NO.13               SECTION IIA

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

                     Criminal Appeal  No(s).  1581/2009

Satwantin Bai                                             Appellant(s)

                                VERSUS

SUNIL KUMAR & ANR.                                 Respondent(s)



Date : 10/04/2015      This appeal was called on for pronouncement of
            judgment today.


For Appellant(s)       Mr. Kanhaiya Priyadarshi, Adv. (SCLSC)


For Respondent(s)      Ms. Shashi Juneja, Adv.
                       Mr. C. D. Singh, Adv.

                       Ms. Vanshaja Shukla, Adv. (A.C.)


      Hon'ble  Mr.  Justice  Uday  Umesh  Lalit  pronounced  the  reportable
judgment of the Bench comprising Hon'ble Mr. Justice  Pinaki  Chandra  Ghose
and His Lordship.

      The appeal is allowed in terms of the signed  reportable  judgment  as
follows:-

"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."


      (R.NATARAJAN)                                 (SNEH LATA SHARMA)
       Court Master                                    Court Master
          (Signed reportable judgment is placed on the file)
-----------------------
[1]    (2014) 4 SCC 747
[2]    (2003) 5 SCC 746

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