Chandra Prakash vs State of U.P.

Saroj Bala, J.—The legality of judgment and order dated 21.8.2002, passed by the Additional Sessions Judge/F.T.C. IV District Banda, whereby convicting all the five Appellants Chandra Prakash, Dharmvrat alias Pappu, Surjan Singh, Hasan and Iqbal for the offence punishable u/s 376(g), I.P.C. and sentencing each of them with rigorous imprisonment for ten years and fine of Rs. 1,000 and in default to undergo rigorous imprisonment of one month has been called in question by way of these appeals.

The prosecution case as unfolded during the trial is essentially as follows:

The victim alongwith first informant, her father-in-law had gone to her parental home situated in village Visanda District Banda. On 12.6.1992, the first informant alongwith victim proceeded from village Visanda for going to his residence in District Kanpur but could not catch Kanpur Passenger Train. Both of them stayed in room No. 5 of Bundelkhand Lodge situated at a short distance from the railway station. At about 12.30 a.m. at night the watchman of Bundelkhand Lodge knocked at the door and asked the first informant to open the door. On identifying the voice of watchman the first informant opened the door. No sooner the door was opened five persons namely Dharmvrat alias Pappu, Lalla (died during trial), Surjan Singh, Hasan and Iqbal trespassed into the room and caught hold of first informant and his daughter-in-law and the door was closed from outside by the watchman. Thereafter the above named accused committed gang rape on informant''s daughter-in-law one after another. After commission of rape the accused got opened the door and fled away. The names of accused and watchman came to be known as they were calling each other by their names. The first informant scribed the written report (Ext. Ka-6) and lodged it on 13.6.1992 at 2.05 a.m. at P.S. Kotwali Nagar district Banda on the basis of which chick F.I.R. (Ext. Ka-2) was prepared and crime was registered in the general diary. The relevant entry is (Ext. Ka-3).

The victim was medically examined by Dr. Manorama Srivastava (P.W. 2) on 13.6.1992 at 9.10 a.m. and by a panel of doctors consisting of Dr. Shiva Bhardawaj (P.W. 6), Dr. Manorama Srivastava (P.W. 2) and Dr. Shashi Saxena (P.W. 7) at 7 p.m. on 13.6.1992. According to medical examination report (Ext. Ka-8) labia majora and minoro were well developed, UI-A.V. N/S tenderness was present. The vagina admitted two fingers easily. No bleeding or discharge was present per vagina. No external injury was present on the private parts. According to final medical report (Ext. Ka-1) submitted by the panel of doctors presence of spermatozoa in the vaginal smear was suggestive of recent intercourse. The doctors opined that in view of the injuries on the left breast and tenderness as per vagina examination and presence of sperm in vaginal smear the possibility of rape could not be ruled out. However no definite opinion could be given. According to the radiologist Dr. M.P. Mittal (P.W. 4) the radiological age of the victim was above eighteen years. The pathological test report (Ext. Ka-9) indicated that vaginal smear was positive for spermatozoa.

The then S.I. Sheorati Prasad (P.W. 9) took the responsibility to investigate the crime. He interrogated the victim and first informant Nathu Ram Gupta at the police station. He visited the place of offence and prepared the site plan (Ext. Ka-10) and took in police custody the broken bangle pieces, underwear, bed sheet from the bed of victim under the memo (Ext. Ka-7). He arrested accused Chandra Prakash on 13.6.1992. The accused Dharmvrat alias Pappu, Surjan Singh, Lalla (deceased) were also arrested thereafter. He took their underwears in police custody. The relevant pages of register of Bundelkhand Lodge were collected under the memo (Ext. Ka-11). After completing all the necessary formalities he submitted the charge-sheet (Ext. Ka-13) against the accused persons on 4.8.1992.

The committal proceedings were conducted by the 1st A.C.J.M., Banda, who by an order dated 19.10.1996 committed the accused persons to the Court of Sessions Judge for standing trial for the offence punishable u/s 376, I.P.C. The accused-Appellant Chandra Prakash was charged for the offence punishable u/s 376 read with Section 109, I.P.C. The rest of the five accused were charged for the offence punishable u/s 376, I.P.C. The accused person pleaded not guilty and claimed to be tried. They alleged their false implication due to the conspiracy of their enemies.

To substantiate the charge the prosecution examined the victim (P.W. 1), and Nathu Ram Gupta (P.W. 5) the first informant. Dr. Manorama Srivastava (P.W. 2), Dr. Shikha Bharadwaj (P.W. 6), Dr. Shashi Saxena (P.W. 7) are doctors of the panel constituted for medical examination of victim. Dr. M.P. Mittal (P.W. 4) is the radiologist. Pahalwan Singh (P.W. 8) was Lab Chemist in Pathology department Sadar Hospital Banda C. P. Ram Gopal Singh (P.W. 3) was examined to prove the chick F.I.R., general diary entry relating to the registration of crime and memo (Ext. Ka-4) of cotton petticoat of victim stained with semen marks. S.I. Sheorati Prasad (P.W. 9) was the Investigating Officer of this case.

After considering the evidence of victim (P.W. 1), her father-in-law (P.W. 5) and medical evidence the trial court found that accusations have been established and recorded the finding of conviction and sentenced all the five Appellants with minimum sentence prescribed.

We have heard Shri Rishi Kesh Tripathi and Shri K. D. Tewari, learned Counsel for the Appellant Chandrapraksh, Shri Viresh Mishra the learned Counsel for the Appellants Surjan Singh and Dharamvrat alias Pappu, Shri G.S. Chaturvedi, learned senior advocate assisted by Shri Sumit Gopai, learned Counsel for the Appellants Hassan and Iqbal, Shri A.K. Dwivdi, learned A.G.A. and have perused the original record.

The learned Counsels for the Appellants submitted the offence was committed at the dead hours of night and there was no light to identify the Appellants who were strangers to the victim ; non-holding of test identification parade is fatal to the prosecution case ; the prosecutrix had no opportunity to notice the facial features of Appellants in the absence of light ; the identification of Appellants in Court five years after the incident was improbable ; it was highly improbable for the accused persons to call each other by their names while committing rape to probabilise their identification ; reliance was placed on the decision in the case of Devinder Singh and Others Vs. State of Himachal Pradesh, the prayer made by accused-Appellants for test identification was declined ; medical evidence does not support the prosecution case ; arrest of Appellants Surjan Singh, Dharamvrat alias Pappu, Chandra Prakash within two hours of the incident speaks about their innocence ; conduct of first informant and victim to stay in the Bundelkhand Lodge to and fro Kanpur and Visanda and not to search other conveyance create suspicion ; the presence of Appellant Chandra Prakash watchman of Bundelkhand lodge was doubtful ; there is no evidence that he had acted in concert with common intention of accused-Appellants who committed rape or there was prior meeting of minds ; mere presence of Chandra Prakash not sufficient to rope him with the aid of Explanation (1) appended to Section 376(2), I.P.C. ; reliance was placed on the decision in the case of Pradeep Kumar v. Union Administration Chandigarh, (LVI) 2006 ACC 502.

The contention of the learned A.G.A. was that the accused-Appellants while committing rape had been calling each other by their names and their names were mentioned in the first information report which was lodged within an hour of the commission of offence and there was electric light in the lodge as well as in the room where the offence was committed to enable the victim to notice the facial features of the accused-Appellants. Failure to hold test identification parade would not make the evidence of identification in Court inadmissible.

We have given our thoughtful consideration to the submissions made on behalf of both the parties.

In order to appreciate the contentions raised a brief discussion of evidence of victim (P.W. 1) and first informant Nathu Ram Gupta (P.W. 5) will not be out of place.

The victim (P.W. 1) testified that she was married to Awdesh in Kanpur one and half month before the incident and she stayed at Kanpur after her marriage. One and half month after her marriage on 6.6.1992 she came to her parental home situated in village Visanda alongwith her father-in-law and stayed there uptill 12.6.1992. According to her the distance between Visanda and district Banda is 30-32 km. and at that time the only source of conveyance to and fro Visanda Banda was private Bus. On 12.6.1992, she alongwith her father-in-law came to Banda from Visanda by bus for going to Kanpur and reached Banda railway station at 6.15 p.m. but could not catch the train for Kanpur. Since none of her relative resided at Banda her father-in-law took her to Bundelkhand Lodge and room No. 5 was allotted by the watchman of the Lodge and entries were made in the register by her father-in-law. She as well as her father-in-law stayed in the said room. At about 12.30 a.m. while she and her father-in-law were asleep the door of their room was knocked by the watchman who asked them to open the door. Her father-in-law opened the door recognising the voice of the watchman. The watchman stood at the door and five persons pushing the door entered their room. Two persons caught hold of her father-in-law and three of them came near her. On seeing those persons both of them out-cried. One of them gagged her mouth. One of them caught hold of her hands and another committed rape on her. Thereafter the person gagging her mouth committed rape on her and first one gagged her mouth. Likewise the third person who was catching hold of her hands committed rape on her and second one caught hold of her hands. Thereafter they caught hold of her father-in-law and two persons who were earlier catching hold of him committed rape one after the other. She further stated that accused persons were calling each other by their names while committing rape on her. She gave out that accused persons came to be known to her with their names while they were calling each other by their names and she could relate their names. She correctly identified the accused Iqbal, Hasan, Pappu, Surjan and Chandra Prakash and stated that the name of the accused not present was Lalla. She went on to state that accused Pappu thereafter Lalla, Surjan, Hasan and Iqbal committed rape on her one after the other. She testified that the accused had got the door closed by the watchman from outside and got it opened after the incident and went away. It is there in her testimony that her bangles were broken due to catching hold of her hands but she did not sustain abrasions. She stated that her mouth was gagged with force but she did not sustain any injuries on her cheeks. According to her legs were pulled with force by the person committing rape but she sustained no injury in her thighs and external side of private part. She gave out that she sustained injury on her breast. She refuted the suggestion that her father-in-law attempted to commit rape on her and when she out-cried the persons staying in the adjoining rooms collected and knocked at their door and thereafter the watchman was called. She refuted the suggestion that accused present in the Court were identified by her on being shown and introduced with their names by her counsel.

The witness Nathu Ram Gupta (P.W. 5) is father-in-law of the victim and was present in the room at the time of commission of sexual assault. He testified that on 12.6.1992, he had been returning to Kanpur alongwith her daughter-in-law but having missed the train they stayed in room No. 5 of Bundelkhand Lodge in district Banda. The same night at about 12.30 a.m., the watchman having knocked at the door, he opened the door after switching on the light. Six persons including the watchman entered their room. Three persons caught hold of them and two of them caught hold of the victim and Chandra Prakash watchman closed the door from outside. Their weeping and lamentation had no effect on the accused-Appellants and they committed rape on his daughter-in-law. He further stated that first of all accused Pappu committed rape and thereafter Lalla, Surjan, Hasan and Iqbal committed rape on her one after another. In the cross-examination he deposed that at about 12.30 a.m. they were asleep and light was put off before sleeping. According to him there was a bulb in their room and he had switched on the light before opening the door. He denied having disclosed to the Investigating Officer that the light was switched on by the accused persons after entering the room. It is spelt out from his deposition that they reached the Lodge at 6-6.15 p.m. and entries were made by accused Chandra Prakash in the Lodge register. He stated that the accused remained inside the room for about 20-25 minutes.

The victim (P.W. 1) categorically stated that she was subjected to sexual ravishment by the accused-Appellants excluding the Appellant Chandra Prakash. The deposition of Nathu Ram Gupta (P.W. 5) was that accused-Appellants and co-accused Lalla excluding Appellant Chandra Prakash committed rape one after the other on his daughter-in-law in between the night of June 12/13, 1992 at about 12.30 a.m. The testimony of victim of sexual assault does not require corroboration from any other evidence including the evidence of doctor. The Apex Court in the case of State of Tamil Nadu v. Ravi alias Nehru, (2006) 10 SCC 534: 2006 (2) ACR 2223 (SC), has held:

It is now well-accepted principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. It is also well-accepted principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence. A woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person''s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion treating her as if she were an accomplice.

In the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, the Apex Court held:

The evidence of a victim of sexual assault stands on a par with the evidence of an injured witness. Just as a witness who has sustained an injury is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offender is entitled to great weight, absence of corroboration notwithstanding.

In the instant case, the testimony of the victim receives corroboration from medical evidence. Five abraded contusions fresh in duration over left breast and spermatozoa in her vaginal smear were found. The panel of doctors comprising of Dr. Manorama Srivastava (P.W. 2), Dr. Shiva Bhardawaj (P.W. 6), Dr. Shashi Saxena (P.W. 7) opined that possibility of rape could not be ruled out. The victim is a married woman. The medical examination report of the victim shows that she received contusions on breast. The mere fact that no injuries were found on private part cannot be a ground to hold that no sexual assault was committed on the victim. These are absolutely no reasons for making false allegations as the nature of offence involves her character, reputation and married life. The testimony of the victim that she was subjected to sexual violence between night of June 12/13, 1992 at about 12.30 a.m. cannot be disbelieved.

The commission of sexual offence took place at about 12.30 a.m. in room No. 5 of Bundelkhand Lodge situated at a short distance from the railway station. The victim and her father-in-law having missed the train for Kanpur stayed for night in the said Lodge. At about 12.30 a.m., the accused-Appellant Chandra Prakash watchman of the Lodge knocked the door of the said room and asked the first informant to open the door. On opening of the door accused-Appellants Dharamvrat alias Pappu, Surjan Singh, Hasan, Iqbal and Lalla (died during trial) entered the room and overpowered the first informant and victim and committed rape on her. There is omission of mentioning of source of light in the first information report. The first informant Nathu Ram Gupta (P.W. 5) in his deposition testified that there was a bulb in the room and before opening the door he had switched on the light. He denied having disclosed the fact of switching on the light for the first time in Court after being tutored by his counsel. Sheorati Prasad (P.W. 9) the Investigating Officer deposed that when he reached the spot the lights in the rooms of the Lodge were burning. According to the Investigating Officer the first informant in his previous statement disclosed that accused had switched on the light. It was not suggested to the victim by the defence that the offence was committed under the cover of darkness. The place of offence being a traveller''s Lodge, situated in the city, there is presumption of source of light. The lapse on the part of first informant to mention the source of light in the first information report may be due to his mental disposition after the shocking incident or he did not consider it to be an important fact. Nathu Ram Gupta (P.W. 5) categorically stated that he had disclosed in his previous statement about having switched on the light before opening the door. His natural and normal conduct would have been to switch on the light before opening the door. His testimony about the presence of light receives support from the evidence of Investigating Officer Sheorati Prasad (P.W. 9). It is manifest from the testimony of Nathu Ram Gupta (P.W. 5) that there was electric light coming from bulb to enable him and the victim to see and identify the offenders.

Coming to the question of identification of accused-Appellants who were strangers to the victim and her father-in-law. The accused-Appellant and co-accused Lalla (deceased) are named in the first information report. Their names came to be known to the victim and first informant as the Appellants and co-accused Lalla (died during trial) were calling each other by their names. The accused-Appellants were not put up for test identification but they were correctly identified by the victim (P.W. 1) and first informant Nathu Ram Gupta (P.W. 5) in Court at the time of their evidence. The victim (P.W. 1) correctly identifying and naming the accused-Appellants present in the dock deposed that first of all Dharamvrat alias Pappu thereafter Lalla (died during trial), Surjan Singh, Hassan and Iqbal committed rape on her one after the other. The accused-Appellants and co-accused Lalla (deceased) excluding Appellant Chandra Prakash having remained in the room for about 25-35 minutes and committed rape on the victim one after the other, she had ample opportunity of closely noticing their facial features. The non-holding of test identification parade does not affect the prosecution evidence as victim had seen the faces of accused-Appellants in electric bulb light for a considerable long time, their facial features must have embossed on her mental screen to enable her to identify them in Court at the trial. The victim was married one and half month before and she was put to shame by the accused-Appellants excluding Chandra Prakash by committing sexual act in the presence of her father-in-law, she had a strong reason to remember their faces. Sexual violence leaves behind a traumatic experience which leaves a scar on the dignity, honour and reputation of a woman, therefore, it is not easy to forget the faces of culprits. The accused-Appellants were also correctly identified by Nathu Ram Gupta (P.W. 5) in Court at the trial as the perpetrators of commission of gang rape on his daughter-in-law. In the case of Main Pal and Another Vs. State of Haryana and Others, repelling the contention that it was improbable that accused persons called each other by name, the Apex Court held that P.W. 1 was in a position to identify the accused persons."

The Apex Court in the case of Simon and Ors. v. State of Karnataka, 2004 SCC 646: 2004 (2) ACR 1771 (SC), considered the question of identification by the witnesses at trial without prior test identification and held:

The legal position on the aspect of identification is well-settled. u/s 9 of the Indian Evidence Act, 1872, the identity of the accused persons is a relevant fact. We have no difficulty in accepting the contention that evidence of mere identification of an accused person at the trial for the first time is from its nature inherently of a weak character. The purpose of prior test identification is to test and strengthen the trustworthiness of that evidence. Courts generally look for corroboration of the sole testimony of the witnesses in Court so as to fix the identity of the accused who are strangers to them in the form of earlier identification proceedings. This rule of prudence, however, is subject to exception, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. It has also to be borne in mind that the aspect of identification parade belongs to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. Mere failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. What weight is to be attached to such identification is a matter for the Courts of fact to examine. In appropriate cases, it may accept the evidence of identification even without insisting on corroboration.

In the case of Malkhansingh and Others Vs. State of Madhya Pradesh, it was held by the Apex Court as under:

It is well settled that the substantive evidence is the evidence of identification in Court and the test identification parade provides corroboration to the identification of the witness in Court, if required. However, what weight must be attached to the evidence of identification in Court, which is not preceded by a test identification parade, is a matter for the Courts of fact to examine.

In the case of Dastagir Sab and Another Vs. State of Karnataka, it was held as below:

No law states that non-holding of test identification parade would by itself disprove the prosecution case. To what extent and if at all the same would adversely affect the prosecution case, would depend upon the facts and circumstances of the each case.

The non-holding of test identification does not adversely affect the prosecution case. The testimony of the victim is truthful and trustworthy. Her testimony receives corroboration from the medical evidence. The absence of injuries on private part of the victim, a married woman does not impair her testimony. Moreover the accused-Appellants Dharmvrat alias Pappu, Surjan Singh and co-accused Lalla (died during trial) were arrested the same night and semen stained briefs worn by them at the time of their arrest were taken in police custody and sent to Forensic Science Laboratory. In the chemical examination report spermatozoa and semen were found on their briefs.

The Appellant Chandra Prakash was the watchman of Bundelkhand Lodge at the time of the incident. The victim (P.W. 1), Nathu Ram Gupta (P.W. 5) Sheroti Prasad (P.W. 9) the Investigating Officer have stated that Chandra Prakash was the watchman of Lodge at the time of incident. Accused-Appellant Chandra Prakash got the door of room occupied by the victim and her father-in-law opened at night by knocking at the door and facilitated the entry of co-accused-Appellants and commission of sexual offence by them and closed the door from outside while they were committing rape on the victim. He opened the door after the commission of offence to facilitate their escape. The conduct of the Appellant Chandra Prakash shows his connivance and pre-concert to facilitate the commission of offence. The facts of Pradeep Kumar''s case (supra) are distinguishable as in that case the Appellant reached the spot after the commission of rape and did not commit rape on the prosecutrix. The prosecution evidence proves that the Appellant was a member of a group which acted in concert to commit rape on the victim and in furtherance of their common intention rape was committed by co-accused-Appellants. By virtue of Explanation 1 to Section 376(2)(g), I.P.C. all members of a group would be liable for the acts committed by other members of that group when the act is committed in furtherance of their common intention. The Appellant Chandra Prakash did not do anything to thwart the commission of offence he rather facilitated its perpetration therefore he is equally guilty.

Having given our anxious consideration to the submission made by the learned Counsel for the Appellants we are of the opinion that prosecution has established its case against the Appellants beyond any shadow of doubt and the learned Sessions Judge has rightly convicted and sentenced the Appellants for the offence punishable u/s 376(2)(g), I.P.C.

In view of the foregoing discussions the above mentioned appeals are decided as under:

Criminal Appeal No. 3392 of 2002 Chandra Prakash v. State of U.P. is dismissed. The conviction and sentence awarded by the trial court to the Appellant Chandra Prakash is affirmed. He is on bail by an order dated 28.11.2002 passed at the admission stage. The C.J.M., Banda shall cause him to be arrested and lodged in jail to serve out the sentences awarded by the trial court and affirmed by us.

Criminal Appeal No. 4480 of 2002 Surjan Singh v. State of U.P., is dismissed. The conviction and sentence awarded by the trial court to the Appellant Surjan Singh is affirmed. He is on bail by an order dated 25.11.2002 passed at the admission stage. The C.J.M., Banda shall cause him to be arrested and lodged in jail to serve out the sentences awarded by the trial court and affirmed by us.

Criminal Appeal No. 4535 of 2002 Dharmvrat alias Pappu v. State of U.P., is dismissed. The conviction and sentence awarded by the trial court to the Appellant Dharmvrat alias Pappu is affirmed. He is on bail by an order dated 25.11.2002 passed at the admission stage. The C.J.M., Banda shall cause him to be arrested and lodged in jail to serve out the sentences awarded by the trial court and affirmed by us.

Criminal Appeal No. 4538 of 2002, Hasan and Iqbal v. State of U.P., is dismissed. The conviction and sentence awarded by the trial court to the Appellants Hasan and Iqbal is affirmed. They are on bail by an order dated 25.11.2002 passed at the admission stage. The C.J.M., Banda shall cause them to be arrested and lodged in jail to serve out the sentences awarded by the trial court and affirmed by us.

Certify the judgment to the lower court within a week. The record of the case be also transmitted to the court below immediately. The compliance shall be reported by the Chief Judicial Magistrate, Banda within four weeks from date of receiving the copy of this order.