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Judgment
M.R. Verma, J.—Since these three appeals and one Cr.M.P. (M) arise out of the same judgment dated 18.9.2001 passed by the learned Sessions Judge, Kangra at Dharamshala in Sessions, Trial No. 4 of 2000, thereafore, are being disposed of by this common judgment.
Brief facts, relevant for the purpose of disposal of the aforesaid matters, are that the prosecutrix (PW-4), who belongs to a Scheduled Caste, is permanent resident of village Dagoh. Her parents had purchased some land in Village Rakkar. At the relevant time, her father was serving in Chandigarh and she was residing with her mother Kanta Devi (PW-9) in the home village and often used to go to village Rakkar with her mother for doing agricultural work. Before July 7, 1999 she had been residing in village Rakkar with her mother for about a month. On 7.7.1999 at about 11 a.m. the prosecutrix came to Rakkar Bazaar to take bus for her home village Dagoh. When she reached at the Bus Stand, Ashok Kumar (a proclaimed offender) and Arun Kumar (hereafter referred to as ''A-l) met her and asked her whether she would accompany them. On her refusal they threatened her to take her with them forcibly or to kill her. Said Ashok Kumar caught hold of the prosecutrix from the arm and A-l took her purse and thus they took her to the house of Ashok Kumar where they again threatened her that in the event of her making noise they would kill her. None else was present in the house. After bolting the doors A-l went to the upper storey and Ashok Kumar attempted to forcibly remove the Salwaar of the prosecutrix. When she stopped him and tried to cry he again threatened her that in the event of her making noise he would strangulate her. Thereafter Ashok Kumar removed her Salwaar and underwear and committed rape on her. He then called A-l to the room who also subjected the prosecutrix to rape. After that Ashok Kumar and A-l removed the prosecutrix to a Shehtoot Farm. There accused Narender (hereafter referred to as A-2) and accused Saurav (hereafter referred to as A-3) were bathing in a Khad. Expecting that A-2 and A-3 would save her from Ashok Kumar and A-l, the prosecutrix raised cries but on reaching the spot, A-2 and A-3 had a talk with Ashok Kumar and Arun. The prosecutrix was then subjected to rape by all the four of them one after the other. After some time Ashok Kumar sent A-2 to the house of accused Ajay Kumar (hereafter referred to as ''A-5'') with the instructions to make sleeping arrangements for the night and to bring liquor. After some time A-2 came back with liquor. Ashok Kumar, A-l, A-2 and A-3 thereafter again committed rape on the prosecutrix. At about 8.30 p.m. A-5 and accused Devinder Kumar @ Manu (hereafter referred to as ''A-4) who had brought a torch (flash light) with him came there and all of them took the prosecutrix to the house of A-5 in village Biara where they reached at about 9 p.m. Ashok Kumar and accused persons took liquor in the house and A-4 subjected the prosecutrix to rape followed by Ashok Kumar, A-1, A-2 and A-3. A-5, however, was not a participant in committing rape on the prosecutrix. At about 11 p.m. the aforesaid accused persons started making noise whereupon Prithivi Raj (PW-7), Kaushal Kumar (PW-8), Hem Raj and Virender Pal came to the spot. All the accused persons were present in the house and the prosecutrix narrated the occurrence to the persons who had so arrived in the house. A telephonic information was given to the police and police arrived on the spot at about 4.45 a.m. However, before the arrival of the police the accused persons managed to bolt away. The police recorded the statement of the prosecutrix Ext. PG/2 u/s 154 of the Code of Criminal Procedure (hereafter referred to as ''the Code'') on the basis of which formal F.I.R. Ext. PY was recorded at Police Station, Palampur under Sections 376, 341, 342, 120B and 34 I.PC. and Section 3 of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act (hereafter referred to as ''the Act'') and the investigation followed.
The prosecutrix was got medically examined in SDH Palampur. Dr. Sushma Sood (PW-1), who examined the prosecutrix, issued MLC Ext. PB about such examination and opined that according to the injuries found on the person of the prosecutrix there was possibility that she might have been subjected to sexual intercourse. At the time of medical examination two vaginal swabs, two vaginal smears, pubic hairs, shirt and Salwaar of the prosecutrix were also taken in possession and sealed by the Doctor for the purpose of chemical examination. The facts discovered at the time of medical examination of the prosecutrix vide MLC Ext. PB are that the prosecutrix was limping and walking slowly, pubic hairs were stained with blood and mixed discharge, the hymen was torn, red and indurated, swollen and admitted one finger tightly. Blood stained discharge was also present.
During investigation accused persons other than Ashok Kumar, who absconded and is a proclaimed offender, were arrested. A-l to A-4 were got medically examined. A-l was so examined by Dr. S.K. Bhardwaj (PW-2) who prepared and issued MLC Ext. PD opining that there was nothing suggestive of that A-l is incapable of performing sexual intercourse. However, no injuries suggestive of any struggle were found on his person. A-4 was medically examined by Dr. Jaspal Singh (PW-3) who issued MLC Ext. PE opining that there was no evidence to suggest that A-4 was incapable of performing sexual act. No injuries were found on the person of A-4 also. A-3 was medically examined by Dr. Raman Puri (PW-17) who issued MLC Ext. PR opining that there was nothing to suggest that A-3 was not capable of performing sexual intercourse. A-2 was medically examined by Dr. H.K. Vashishat (PW-20) who issued MLC Ext. PT opining that A-2 was capable of performing sexual intercourse. No injury having been found on the person of A-2 at the time of medical examination has been mentioned in the MLC. At the time of medical examination of A-2, his undergarments were preserved by PW-20 and were handed over to the police. Saliva of the accused persons was also taken by the Investigating Officer vide Memo Ext. PAA. From inside the house of Ashok Kumar an underwear lying under the pillow of the bed was also taken in possession vide Memo Ext. PH. Three bangles identified by the prosecutrix as her bangles thrown in the field by the accused were taken in possession by the police vide Memo Ext. PJ. From within the house were the prosecutrix was lastly taken by the accused persons blood stained earth and semen stains fallen on the floor, butts of Biri one Biri bundel, one pair of Chappal, one blanket and a handkerchief having semen stains and one liquor bottle were taken in possession vide Memo Ext. PL. On production by A-3 his wearing apparels, namely, one shirt and one pant which had been washed after the occurrence were taken in possession vide Memo Ext. PM. On production by A-l his pant, which he was allegedly wearing at the time of occurrence, was taken in possession vide Memo Ext. PN. Entries in the School records Ext. PP and birth record Ext. PQ and Ext. PU regarding date of birth of the prosecutrix were also taken in possession by the police. A-5 moved an application dated 31.7.1999 for bail, a photocopy whereof Ext. PS was also taken in possession. One shirt allegedly that of accused Ashok Kumar was taken in possession by the police on production by one Bhikam Ram vide Memo Ext. PZ. Rough site plans of the places of occurrence/recovery were prepared by the Investigating Officer and are Exts. PV, PW and PX.
The saliva of the accused persons and the butts of Biris taken in possession by the police, as aforesaid, were sent for chemical analysis and vide report Ext. PBB it was opined that saliva was detected in the butts of the Biris but it was not sufficient for further analysis. Shirt of Ashok Kumar, the handkerchief, blanket, blood stained earth and semen stains, T-shirt and pant of A-4 and an underwear, vaginal swab, vaginal smear, pubic hairs, Salwaar shirt and underwear of the prosecutrix recovered and taken on possession by the police/Doctors, as aforesaid, were also got analysed in the State Forensic Science Labouratory. Report of the Assistant Director about the analysis of the aforesaid articles is Ext. PC according to which human blood was found on the earth, two underwears, vaginal swab and vaginal slides of the prosecutrix but it was insufficient for further analysis. However, no semen was found on these articles. In Salwaar and shirt of the prosecutrix human blood and human semen were found but the blood was insufficient for further tests. In pant and underwear of A-4 human blood was found which was insufficient for further examination but no semen was detected on these articles. Blood and semen were not found on the Baniyan of A-4.
On completion of investigation and being satisfied of the involvement of the accused persons in the commission of the offences alleged to have been committed by them, the concerned officer in charge of the Police Station submitted a chargesheet against the accused against whom the learned Sessions Judge, Kangra at Dharamshala framed separate charges. The charge so framed against accused Arun Kumar was under Sections 341 and 342 read with Section 34 and 376(g) I.P.C. and Section 3(xi) of the Act. Charges against each of the remaining accused were framed under Sections 342/34, 376(g) I.P.C. and Section 3(xi) of the Act. The accused pleaded not guilty to the said charges. To prove the charges against the said accused persons, prosecution examined 24 witnesses.
Accused were examined u/s 313 Code of Criminal Procedure wherein they denied the incriminating evidence of the prosecution and claimed to be innocent and that they have been falsely implicated in the case. A-5 further claimed that his house in village Biara remains closed and he resides with his sister in Village Patti at a distance of about 4/5 Kms. from village Biara.His uncle Kushal Kumar approached him for making a bail application at the instance of the Investigating Agency as the police wanted to make him approver. Since he was not a party to the crime, therefore, he refused to become an approver and that on the day of occurrence he was not present in Village Biara. A-2 has further claimed that PW-Kushal Kumar and other witnesses have inimical relations with his family and there is litigation between Kushal Kumar and his family, therefore, he has been falsely implicated in the case at the behest of Kushal Kumar. A-3 has also claimed that he has been falsely implicated at the instance of PW Kushal Kumar and other witnesses as there is litigation between Kushal Kumar and his family and their relations are inimical. He has further stated that police officials compelled him to become approver. Even his father, who is also a police official, was also compelled in this regard but he refused to oblige, therefore, he has been falsely implicated in the case. A-2, A-3 and A-4 led defence evidence and examined Lok Ram Sharma DW-1 and Rajesh Kumar Gupta (DW-2) in their defence. DW-1 has been examined to show that the alleged offences could not be committed because of the topography of the concerned area. DW-2 has been examined to prove that from 1st to 9th of July, 1999 A-3 was present in the school.
On consideration and appreciation of the material on record, the learned Trial Judge held A-l guilty of the commission of the offences punishable under Sections 341, 342 and 376(g) read with Section 34 of the Indian Penal Code and Section 3(xi) of the Act and held A-2, A-3 and A-4 guilty of the commission of the offences punishable under Sections 342 and 376(g) read with Section 34 I.P.C. and Section 3(xi) of the Act and accordingly convicted and sentenced them as aforesaid. A-5 was not found guilty of any offence, therefore, he was acquitted.
Being aggrieved by the conviction and sentences, A-2 to A-4 have preferred Criminal Appeal No. 608 of 2001.
Being aggrieved by the acquittal of A-5, the State has preferred Criminal Appeal No. 232 of 2002.
Aggrieved by the inadequacy of quantum of sentences awarded to A-l to A-4, the State has preferred Criminal Appeal No. 331 of 2002 for enhancement of the sentences awarded to them.
At the time of admission a learned Single Judge while dealing with Criminal Appeal No. 608 of 2001 noticed that the Appellants therein had been sentenced to undergo rigorous imprisonment for a period of five years u/s 376(g) of the Indian Penal Code whereas minimum sentence of 10 years has been prescribed for such offence, therefore, notices were issued to the said accused to show cause why their sentence be not enhanced to the minimum prescribed in law in the event of their conviction being maintained On 27.11.2001 it was noticed that A-l who was also convicted and sentenced had not preferred any appeal, therefore, a show cause notice, as aforesaid, was issued to him also. The notice for enhancement of sentence has been registered as Cr.M.P. (M) No. 1384 of 2001.
We have heard the learned Counsel for the accused persons and the learned Additional Advocate General for the State and have also gone through the records.
The first and foremost question which arises for determination in all these matters is whether A-l to A-5 or one or some of them committed rape on the prosecutrix?
The learned Counsel for A-2 to A-4 who have filed appeal against their conviction and sentences and the learned Counsel for A-l who got a right to claim acquittal because of the appeal and show cause notice for enhancement of the sentence, had assailed the impugned conviction on the following grounds :
that the telephonic information given by Kushal Kumar (PW-8) was the FIR in this case and the alleged FIR Ext. PY recorded subsequently on the basis of statement Ext. PG is hit by Section 162 of the Code of Criminal Procedure;
that there had been delay in recording the FIR (Ext. PY) and sending a copy thereof to the concerned Magistrate, affording time for consultations and deliberations which is fatal to the case of the prosecution;
that the accused were not earlier known to the prosecutrix and in the absence of test identification parade, their identity is not established;
that the statement of the prosecutrix is unreliable because it suffers from improbabilities, contradictions, want of corroboration and is contradicted by medical evidence;
that the prosecutrix is not proved below 16 years of age at the relevant time and no injuries on the person of the prosecutrix and the accused were noticed, therefore, even if sexual act with her was committed, it was on wilful submission by her; and
that there is no evidence to warrant conviction of the accused u/s 3 of the Act.
The learned Counsel for A-5 while defending the acquittal of A- 5, in addition to the above grounds, relied on the following ground :
6-A. that there is no evidence that A-5 had any knowledge of the other accused intending to have sexual intercourse with the prosecutrix and admittedly he had not indulged in such act, therefore, he has rightly been acquitted.
Ground No. 1
It was contended for the accused that PW-8 has admitted that he had informed the police about the whole occurrence telephonically, therefore, the information given by him ought to have been treated FIR, in the case. But the police did not do so and proceeded to the spot and thereafter recorded the statement Ext. PG of the prosecutrix which is thus hit by Section 162 of the Code of Criminal Procedure, shaking the very foundation of the prosecution case.
There is no dispute that telephonic information was given to the police by PW-8. In his statement PW-8 has stated that when he along with others reached on the spot, he found the girl not mentally fit and he telephonically informed the police. He has not given the details of the information conveyed by him telephonically in the examination-in-chief. However, in his cross-examination he has stated, that he had given details of the accused as told by the girl (PW-4). However, PW-7, who was present on the scene, does not support the version that full account of occurrence was conveyed to the police telephonically. According to him, the police was informed that the girl was there and some boys misbehaved with her. The version of both these witnesses is as per their recollection of the events. The contemporaneous record of the telephonic information received by the police is daily diary report Ext. PO. According to PW-13, he had written the original daily diary report copy whereof is Ext. PO and that he had not added to or deleted from the telephonic message. It has not been suggested to him that the telephonic information received by him was about the whole occurrence or that he had deleberately avoided to record the information as was received by him. Even otherwise, there is no reason what-so-ever to believe that the information received by him was not recorded by him correctly and completely. As per the contents of Ext. PO the information received by PW-13 was that a girl had been apprehended at the house of Jiwan Ram and action might be taken. On receipt of the information a police party headed by Sukh Lal (PW-15) proceeded to the spot. The information as recorded in the contemporaneous record. Ext. PO is evidently cryptic, vague and laconic.
In Prakash Chand v. State of H.P. (Cr.A. No. 643 of 2001, decided on 19.8.2003) a Division Bench of this Court, while dealing with a similar question as in hand, held as under:
The expression FIR is not defined in the Statute. It is, however, the information first in point of time given to the police officer regarding commission of a cognizable offence which such police officer is duty bound to record by virtue of the provisions of Section 154 of the Code. The purpose of FIR is to set the law in motion and such information can be given by any person. However, such information should not be vague or indefinite. It is not each and every vague, indefinite or cryptic information which may be treated as the First Information Report.
In the case in hand, the informant (PW-4) is not the eye witness of the occurrence. As per his evidence, he was informed of the occurrence at about 7 p.m. by Bhura Ram, who himself is not the eye witness of the occurrence. On receipt of the information from Bhura Ram, PW-4 proceeded to the spot, saw the dead body of the deceased lying on the back side of his house and telephonically sent information to police station, Barmana, Police Post, Namhol and Bilaspur. It is neither in his examination in chief nor suggested in his cross examination that before conveying the information to police, he enquired about the cause of death of the deceased or details of the occurrence from any eye witness of the occurrence or conveyed all the material particulars of the crime to the police. The evidence of the investigating officer (PW-12) in this regard is that a telephonic message was received from Ram Lal (PW-4) in the S.P. Office (Bilaspur) that Mast Ram had been murdered in village Lungri. Evidently, the message as conveyed to PW-12 is not from an eye witness. It is devoid of details, cryptic and laconic. Therefore, it could not be treated as FIR and PW-12 did not commit any illegality in recording the statement Ex. PA of PW-1 who is an eye witness of the occurrence and had given the details of the occurrence as witnessed by her. There is nothing on the record suggestive of any deliberation and consultations.
In Khimi Ram v. State of H.P. Cr.A. No. 627 of 2001, decided on 19.8.2003), this Court, while dealing with the subject under reference, held as under:
The expression ''First Information Report'' has neither been defined nor referred to as such in the Criminal Procedure Code (hereafter referred to as ''the Code''). However, for all intents and purposes the expression ''First Information Report'' means the information relating to the commission of a cognizable offence given to a police officer and reduced into writing by him or under his direction u/s 154 of the Code. Thus, it is one of the essential ingredients of the information so given to be treated as the First Information Report is that it must disclose commission of a cognizable offence. Thus, a message disclosing commission of a cognizable offence sent by telephone to the police officer and recorded by him in writing will be First Information Report. However, if such a message is cryptic and on the face of it does not disclose the commission of a cognizable offence it cannot be treated as First Information Report within the meaning of Section 154 of the Code.
In the case in hand, the information given by PW-8 and recorded in the form of a report in the Daily Dairy (Ext. PW-13/D) is that his niece Leela Devi resident of Village Bharain had expired on the preceding night and the circumstances leading to her death may be enquired. Evidently, this report does not contain any allegation which could be treated as'' commission of a cognizable offence. It is a simple message about the death of the deceased with the request to enquire into the circumstances under which the deceased died. It is statement of PW-12 Ext. PW-12/A which discloses that the deceased had been throttled to death by the accused and thus is the information regarding commission of a cognizable offence and has rightly been treated as F.I.R. Therefore, contention to the contrary, as raised for the accused, is not sustainable.
In Dhananjay Chatterjee alias Dhana Vs. State of W.B., the Hon''ble Apex Court, while dealing with the question in hand, held as under:
We are unable to agree with the opinion of the High Court. The cryptic telephonic message received at the Police Station from Nagardas PW 4 had only made police agency to rush to the place of occurrence and record the statement of Yashmoti PW 3 and thereafter commence the investigation as was admitted by the investigating officer in his testimony which testimony was not challenged during the cross-examination of the investigating officer. The High Court failed to notice that the vague and indefinite information given on the telephone which made the investigating agency only to rush to the scene of occurrence could not be treated as a First Information Report u/s 154 of the Code of Criminal Procedure. The unchallenged statement of the investigating officer that he commenced the investigation only after recording the statement of PW 3 Yashmoti unmistakably shows that it was that statement which alone could be treated as the First Information Report. The High Court fell in error in observing that the statement of PW 3 Yashmoti was recorded after the investigation had already commenced". There is no material on the record for the above opinion of the High Court. The cryptic telephonic message given to the police by Nagardas PW 4 was only with the object of informing the police so that it could reach the spot. The investigation in the case only started after the statement of PW 3 Yashmoti was recorded. Though initially Mr. Ganguli did try to support the finding of the High Court but in the face of the evidence on the record and more particularly in the absence of any challenge to the testimony of the investigating officer, in fairness to Mr. Ganguli, we must record that he rightly did not pursue that argument any further. We, therefore, find ourselves unable to agree with the opinion of the High Court and hold that the statement of Yashmoti PW 3, recorded by the investigating officer PW 28, was rightly treated as FIR in this case by the prosecution and the trial Court.
In Thaman Kumar Vs. State of Union Territory of Chandigarh, the Hon''ble Apex Court held as under:
...It is true that Ext. PL which is copy of the entry made at 1.05 a.m. in DDR No. 52 of Police Post Sector 36, the names of the assailants were not mentioned and only the fact that three persons were assaulting a person was recorded. PW 4 has stated that he gave telephonic message about the incident at Police Post Sector 36 and made a request for sending some police force. The entry in DDR was made by Surender Kumar, SI that after receiving the aforesaid information he is proceeding to the spot along with some other police constables. This was not a first information report of the incident but merely an entry made regarding the departure of the police personnel to the place of occurrence and, therefore, the non-mention of the names of the assailants in this entry cannot have any bearing....
In view of the above settled position in law, the vague, cryptic and laconic information received vide Ext. PO could not be treated as an FIR in the case.
To support the contention for the accused, reliance was placed on State of Andhra Pradesh Vs. Punati Ramulu and others, In this case the police officer deliberately did not record the FIR despite receipt of information regarding commission of a cognizable offence and proceeded to the spot and during investigation obtained a complaint after due deliberation, consultation and discussion and on the basis of such complaint, recorded the FIR. Against this background, the Hon''ble Apex Court held that the complaint could not be treated as FIR and could be a statement u/s 161 of the Code of Criminal Procedure. Thus, the ratio in Punati Ramulu''s case (supra) based on the facts stated hereinabove, is not at all applicable to the facts and circumstances of the case in hand and Ext. PO in no way can be held to be the FIR.
As per the contents of Ext. PO, the information as contained therein was received at Police Post at 2.00 a.m. on 8.7.1999 and PW-15 along with a few other police officials proceeded to the spot where he reached at about 4.45 a.m. and recorded the statement of the prosecutrix Ext. PG which contains the version of the prosecutrix about the occurrence as a whole and discloses commission of cognizable offences. Formal FIR Ext. PY was then recorded on the basis of Ext.PG. There is nothing illegal in treating Ext. PG (formal FIR Ext. PY) as FIR of the case. The contention to the contrary is, therefore, not sustainable.
Ground No. 2
It was contended for the accused that there has been delay in reporting the incident and in sending a copy of FIR to the Magistrate, therefore, FIR is outcome of consultations and deliberations and the delay so caused is fatal to the case of the prosecution.
As already noticed above, soon after the receipt of telephonic information Ext. PO at 2.00 a.m., PW-15 proceeded to the spot, reached there at about 4.45 a.m. and recorded Ext. PG. He had completed writing of Ext. PG at 5.30 a.m. on 8.7.1999 and formal FIR Ext. PY was recorded at 6.30 a.m. at the Police Station as is evident from the contents of Exts. PG and PY. Thus, there had been no delay in recording Ext. PG and PY, therefore, it is not a case of delayed FIR.
Copy of the FIR. Ext. PY appears to have been received by the Magistrate at 6.15 p.m. on 8.7.1999. Thus, some delay on this count appears to have occurred but this delay by itself is not fatal to the case of the prosecution.
In view of the above, the contention raised for the accused is unsustainable.
Ground No. 3
It was contended by the learned Counsel for the accused that the accused were earlier not known to the prosecutrix and no test identification parade was held which is by itself fatal to the prosecution case. To substantiate his contention, the learned Counsel relied on Kanan and Others Vs. State of Kerala, , Mohanlal Gangaram Gehani Vs. State of Maharashtra, , Suresh Chandra Bahri Vs. State of Bihar with Gurbachan Singh, , Shaikh Umar Ahmed Shaikh and Another Vs. State of Maharashtra, , and Ronny @ Ronald James Alwaris Etc. Vs. State Of Maharashtra,
Per contra, the learned Additional Advocate General, repelling the contention of the learned Counsel for the accused, contended that the accused were not utter strangers to the prosecutrix who was kept confined by the accused, and had seen the accused for sufficient time, therefore, test identification parade was not necessary and the accused had been rightly and correctly identified by the prosecutrix.
It may be pointed out here that in the case of Kanan (supra), the accused who was not previously known, was seen by the identifying witness only once in the Court, therefore, in the absence of test identification parade the evidence regarding identification was not excepted. Similarly, in Mohanlal Gangaram Gehani''s case (supra) the witness who identified the accused for the first time in Court, did not know him before, therefore, in the absence of test identification parade evidence was held valueless and unreliable. Thus, the rejection of the testimony of the identifying witnesses was based on the well settled legal proposition that when the accused is not previously known to the witness concerned, the identification of the accused by the witness soon after the arrest of the accused is of great importance because it lends assurance that the investigation is proceeding on the right lines in addition to furnishing corroboration to the evidence by the witness later in Court at the trial. It is from this point of view that it is of great importance for the prosecution, accused and finally the administration of justice that such identification is held soon after the arrest of the accused. However, this principle will apply only to a case where the accused is not earlier known to the witness and not to a case where the accused was earlier known to the witness. Secondly, identification of the accused by the witness in the Court is substantive evidence. Test identification parade is a matter of precaution and safeguard to be taken to lend corroboration to identification of accused by the witness in the Court in a case where the accused was an utter stranger to the witness before the commission of the offence by him. This principle of law has been reiterated in the cases of Suresh Chandra Bahri, Sheikh Umar Ahmed Shaikh and Ronny (supra).
It may be clarified that expression earlier known with reference to the context has to be given widest possible meaning. A witness may not know the place of residence, parentage and name of the accused and may not have ever talked to him but had repeatedly seen him on different occasions enabling to preserve his facial/bodily features so as to identify him in future despite lapse of time, the accused will be previously known to the witness for the purpose of his physical identity.
In Malkhansingh and Others Vs. State of Madhya Pradesh, while dealing with the consequences of failure to hold a test identification parade, the Hon''ble Apex Court held 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 instant case the courts below have concurrently found the evidence of the prosecutrix to be reliable and, therefore, there was no need for the corroboration of her evidence in Court as she was found to be implicitly reliable. We find no error in the reasoning of the courts below. From the facts of the case it is quite apparent that the prosecutrix did not even know the Appellants and did not make any effort to falsely implicate them by naming them at any stage. The crime was perpetrated in broad daylight. The prosecutrix had sufficient opportunity to observe the features of the Appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the Appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the Appellants on a dark night. 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. The occurrence took place on 4.3.1992 and she deposed in Court on 27.8.1992. The prosecutrix appears to be a witness on whom implicit reliance can be placed and there is no reason why she should falsely identify the Appellants as the perpetrators of the crime if they had not actually committed the offence. In these circumstances if the courts below have concurrently held that the identification of the Appellants by the prosecutrix in Court does not require further corroboration, we find no reason to interfere with the finding recorded by the courts below after an appreciation of the evidence on record.
In Harish Kumar and Ors. v. State of H.P. 2001(1) Shim. L.C. 281, this Court held as under:
PW-2, the informant has stated about the arrival of accused Ram Kedar and Laxmi Nand in the hotel at Tapri where the complainant party was staying and regarding inquiries made by them about the complainant party having any permit (pass) to enter Kinnaur. When the witness informed them in the negative, the said accused told them that police would arrest and put them behind the bars for having entered Kinnaur without permit. PW-2 has further stated that these two accused assured them that they would get the requisite pass from SDM. Bhawanagar. So has been stated by PW-1 and PW-3. This discussion was of serious nature so far as the complainant and his companions (PW-1 and PW-3) were concerned. Therefore, they must be attentive during discussion and thus had ample time and opportunity to see Ram Kedar and Laxmi Nand so as to preserve their facial features to identify them at a later stage.
In view of the above, the contention of the learned Counsel for these accused that they were not known to the witnesses earlier and their test identification parade was not held, therefore, their identification by the prosecutrix (PW-1), informant (PW-2) and PW-3 for the first time in the Court is unreliable, is not sustainable.
In Kamaljeet Singh v. State of H.P. (Cr.A. No. 345 of 2002, decided on 21.5.2003), this Court held as under :
In the case in hand, as already stated PW-1 to PW-4 had enough time to preserve the facial features of the accused and his companion to enable them to identify the accused at a later stage. Moreover, the witnesses have identified the wearing apparel i.e. Jacket of the accused having distinct marks and recovered from the accused vide memo Ex. PB. The accused was found travelling in the car in which the dacoits had arrived at the bank and bolted away therefrom and was apprehended with currency notes immediately after the occurrence. Therefore, neither test identification parade of the accused which is not substantive evidence, was necessary not this is a case of mistaken identity. Hence the contention raised for the accused is not sustainable.
In Baldev Singh and Anr. v. State of H.P. (Cr.A. No. 78 of 2003), decided on 21.8.2003), this Court held as under:
There cannot be any dispute with the proposition that where the accused is not previously known to the witness, ordinarily test identification parade must be held to ensure proper identity of the accused. However,it is so required only in such cases where the witnesses have a fleeting view of the accused and had not seen him for such time during which he can preserve his facial features. In case the witness had seen the accused committing the offence when there is sufficient light and the witness has seen the accused for sufficient time to preserve his facial features to identify him at a later stage the failure to hold test identification parade will be rendered inconsequential. It is more so when the identification by the witness is duly supported by other independent and reliable corroborative evidence.
It is in view of the above position in law that the rival contentions of the parties have to be examined and determined.
A perusal of the statement Ext. PG on the basis of which FIR Ext. PY was recorded, reveals that the prosecutrix had named specifically and correctly the absconder, A-l to A-3 an A-5 and had given nick-names of A-2, A-3 and A-4. In case of A-4 the name given in the FIR is Des Raj instead of Devinder Kumar whereas Des Raj is the name of father of A-4 which may be a slip of tongue or in writing as his nick-name has rightly been given in the FIR. While framing the charge and examining A-4 u/s 313 of the Code, his name has been mentioned as Devinder alias Mannu and it was not disputed at any point of time. Thus, there is nothing in the FIR from which it may be inferred that the accused were total strangers to PW-4. At the time of her statement in the Court PW-4 has specifically and correctly identified the accused persons. In her cross-examination for A-5, she has stated that she had not met A-5 prior to the occurrence and learnt his name when the villagers came to his house where she was confined and called his name. In her cross-examination for other accused there is no positive suggestion that they were not seen by the prosecutrix earlier. On the contrary, the prosecutrix has stated that she had seen the accused persons in the Khokha of Ashok (the absconder) when she used to alight from the bus though she did not know their names and parentage nor had ever talked to them. She has denied the suggestion that she did not name the accused persons and has specifically stated that she had named the accused before the police as she had come to know about their names from the talks in between them. Thus, the accused were not total strangers to the prosecutrix and she has given satisfactory explanation as to how she had named them in the FIR. Undisputably, the prosecutrix had been coming to the purchased land and going back to the original place of her residence, therefore, her version regarding her having seen the accused earlier appears to be natural and confidence inspiring. The accused persons had been within the view of the prosecutrix for hours together and four of them committed rape on her. In these circumstances, the prosecutrix had ample time and opportunity to preserve the facial features of the previously seen accused persons as to identify them even after lapse of some time.
The statement of the prosecutrix about the identity of the accused persons is further corroborated by other evidence. It is case of the prosecution that on hearing the noise coming from the house of A-5, the villagers including PW-7 and PW-8 came there and they found the prosecutrix and the accused and Ashok Kumar in the house. PW-7 and PW-8 have corroborated this version regarding presence of the prosecutrix, A-1 to A-4 and Ashok Kumar in the house of A-5. It is nobody''s case that the accused were not earlier known to PW-7 and PW-8. Thus, the evidence of the prosecutrix regarding correct identification of the accused persons is corroborated by two witnesses who are residents of the place where the prosecutrix was lastly taken by the accused.
In view of the evidence hereinabove discussed, test identification parade of the accused persons was not at all called for. Therefore, the contention that the case must fail for want of test identification parade, is not sustainable.
Ground No. 4
It was contended by the learned Counsel for the accused that the statement of the prosecutrix is unreliable for the following reasons:
(i) that it suffers from improbabilities and is self contradictory; and
(ii) that it is not corroborated but is contradicted by those witnesses who are inimical towards the accused as also by medical evidence.
Before we take up the contention raised for the accused for consideration, it may be pointed out that by now the law about appreciation of evidence in criminal cases, the value of the statement of the prosecutrix and effect of contradictions and want of corroboration of the statement of the prosecutrix is well settled. Since a prosecutrix is not an accomplice but a victim of crime and no self-respecting woman or a unmarried girl is expected to make a self defiling statement, therefore, conviction can be based on a confidence inspiring statement of the prosecutrix. In case there is any difficulty in believing the statement of the prosecutrix, the Court may look for assurance short of corroboration from other evidence. Minor and immaterial contradictions in the evidence has to be ignored and due margin has to be given to individual perception, understanding and descriptive ways. Only such contradictions have to be taken note of which go to the root of the case.
In Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, the Hon''ble Supreme Court he''d as under:
...Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person''s mind, whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to except a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important probabilities-factor echoes in favour of the version narrated by the witnesses.
It is now time to tackle the pivotal issue as regards the need for insisting on corroboration to the testimony of the prosecutrix in sex-offences. This Court, in Rameshwar Vs. The State of Rajasthan, , has declared that corroboration is not the sine qua non for a conviction in a rape case. The utterance of the Court in Rameshwar may be replayed, across the time-gap of three decades which have whistled past, in the inimitable voice of Vivian Bose, J. who spoke for the Court-
The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge.... The only rule of law is that this rule of prudence must be present to the mind of the Judge or the Jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must in every case, be corroboration before a conviction can be allowed to stand.
In Appabhai and Another Vs. State of Gujarat, the Hon''ble Supreme Court held as follows:
...The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy, Jaganmohan Reddy, J. speaking for this Court in Sohrab and Another Vs. The State of Madhya Pradesh, observed:
This Court has held that falsus in uno falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered.
In State of Punjab Vs. Gurmit Singh and Others, the Hon''ble Apex Court held as follows:
...The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who comlains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that 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. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken by the victim of sex crime strikes the judicial mind as probable. In State of Maharashtra Vs. Chandraprakash Kewalchand Jain, Ahmadi, J. (as the Lord Chief Justice then was) speaking for the Bench summarised the position in the following words:
A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness u/s 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction of her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence.
In Visveswaran Vs. State Rep. by S.D.M., the Hon''ble Apex Court held as under:
Before we notice the circumstances proving the case against the Appellant and establishing his identity beyond reasonable doubt, it has to be borne in mind that approach required to be adopted by Courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity. Courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the Courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by Courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved.
In Dabe Ram v. State of H.P. Latest HLJ 2003 (HP) 440, this Court held as under:
It may be pointed out that by now it is well settled that in cases involving sexual offences, the inferential considerations having no direct and material bearing on the evidence of the prosecutrix and discrepancies in her statement unless fatal to the case, should not be treated as grounds for discrediting confidence inspiring version of the prosecutrix. While appreciating the testimony of a victim of sexual molestation, it has to be borne in mind that no self respecting woman would come forward just to make a humiliating statement against their honour as in a rape case. It is more so, in the case of an unmarried girl. Therefore, there should be no difficulty to act on the statement of the prosecutrix who is not an accomplice but victim of the crime and conviction can be based on her confidence inspiring statement. In case the Court is hesitant to place full reliance on the testimony of the prosecutrix, it may take into account the other evidence which may lend assurance to her statement.
It is in view of the above settled position in law that the grounds of assailing the credibility of the prosecutrix has to be examined.
It was contended by the learned Counsel for the accused that the bus-stand at Rakkar, the path to the house of Ashok Kumar and then to the orchard and to the house of A-5 are within populated area, therefore, no force could be used to take the prosecutrix from one place to another and in the event of her forcible removal, she could have raised hue and cry which she never did. Therefore, her version that she was forcibly removed by the accused, is improbable. The prosecutrix has stated that from the bus-stand she was dragged to the house of Ashok Kumar. In case she was so dragged, it is improbable that she would not have sustained drag-injuries whereas none was found on her person at the time of her medical examination. It was further contended that as per the statement of the prosecutrix, she was subjected to sexual intercourse repeatedly by five persons and in all not less than 22 times within about 12 hours. However, the physical examination of the prosecutrix by the medical expert, the medical opinion on such examination and the report of the chemical examiner render this version improbable.
The prosecutrix has stated that she was standing by the roadside at Rakkar waiting for a bus when accused Ashok Kumar (absconder) and A-1 came there and asked her to accompany them. On her refusal, they snatched her purse, kept it in the Khokha and on her raising alarm, they told her that nobody can do anything to them and none would listen to her and then forcibly took her to the house of Ashok Kumar. On this aspect of her statement, she has not been cross-examined by A-l. In her cross-examination for A-2 to A-4, she has stated that there are shops at the place where she was standing but the shops were closed and the house of Ashok Kumar is a lonely house and the school was also closed on the relevant day. DW-1 has been examined about the topography of the place and has stated that there are many shops and houses in Rakkar. However, when his cross-examination is read with site plan Ext. PW, it becomes clear that the place from where PW-4 was taken to the house of Ashok Kumar is not densely populated area. It is admitted by DW-1 that there is a Tiala at Rakkar Chawk and about 100 meters from there is a Shiv Mandir and opposite to it is the path to the house of Ashok Kumar and there is no shop/house by the side of this path. The prosecutrix was taken from Tiala to the house of Ashok Kumar which passage as per Ext. PW and statement of DW-1 does not have any shop/house on its sides. S.R. Rana (PW-22) who has prepared the site plan Ext. PW showing the area between Tiala and house of Ashok Kumar, has stated that Ext. PW and marginal notes therein are correct and nothing has been suggested in his cross-examination about anything wrong or incorrect in Ext. PW. Thus, from Ext. PW it appears that a person can be removed from Tiala to Ashok Kumar''s house without being noticed unless a person is present between these two places. It is nobody''s case that at the relevant time any person was present in this part of the place. Thus the contention that forcible removal in a populated area like Rakkar was not possible without attracting shopkeepers/residents etc. is not an improbability.
The prosecutrix in her examination-in-chief has stated that A-l and Ashok Kumar forcibly took her to the house of Ashok Kumar after having snatched away her purse. In the cross-examination she has stated that she was dragged to the house of Ashok Kumar. No drag-marks were noticed on the person of the prosecutrix at the time of her medical examination. When her examination-in-chief and cross-examination are read together. it appears that force was used to remove her to the house of Ashok Kumar what she has described as dragging. This way of expressing the manner of removal of the prosecutrix by the accused does not render her statement unreliable or improbable about her removal by use of force.
As per the version of the prosecutrix in her examination-in-chief, she was raped by Ashok Kumar and A-l in the house of Ashok Kumar shortly after 12.00 noon. Then she was removed to the Shahtoot Garden where she was raped by Ashok Kumar A-l, A-2 and A-4 one after the other. At about 8.30 p.m. she was removed to the house of A-5 where Ashok Kumar and A-l to A-4 committed rape on her. Thus, as per her version in the examination-in-chief, she was subjected to rape 10 times during a period of about 12 hours. There is nothing improbable in this version of the prosecutrix because in a case of forcible sexual intercourse it depends on the desire of the rapist(s) as to how many times he is to satisfy his lust within the available period.
The learned Counsel for the accused persons had submitted on the basis of the statement of the prosecutrix in her cross-examination that according to her, she was raped not less than 22 times which is improbable. The prosecutrix in her cross-examination has stated that "I was raped thrice time each by each of the four accused persons named above in the orchard" and in the house of Ajay "I had been raped once or twice by the accused persons named above." It may be pointed out that this statement was made by the prosecutrix when she had been under the stress and strain of long and searching cross-examination for the accused. Thus, this variation in her version in examination-in-chief and cross-examination has to be ignored as insignificant more so when her version is corroborated on material particulars by other independent evidence.
As per evidence of the prosecutrix, she was subjected to rape by Ashok Kumar and A-l to A-4. There is nothing on the record nor urged to show that the prosecutrix had any reason what-so-ever to falsely implicate the accused persons by making such allegations which are derogatory to her own honour. Her version that she was raped, is fully corroborated by medical evidence. PW-1 who medically examined the prosecutrix, has stated that at the time of medical examination the gate of the prosecutrix was abnormal and she was limping and walking slowly. Her hymen was'' "torn-red and indurated, swollen.... Blood stained discharge was present and local examination was very painful." On the basis of these findings, PW-1 has opined that there is possibility that the prosecutrix had been subjected to sexual intercourse.
It may also be pointed ou