Malkhansingh & Ors vs State Of Madhya Pradesh

Additional Sessions Judge, Vidisha, M.P. in Sessions Trial No. 76

of 1992 charged of offences under section 3(1)(x) of the Scheduled

Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989;

section 376 (2)(G) and section 506 of the Indian Penal Code on the

allegation that they had, on March 4, 1992, committed gang rape

and criminally intimidated Kumari Lusia a tribal woman, who was

posted as Assistant Teacher in the Primary Government School at

Village Bagod. The trial court acquitted them of the charge under

the Scheduled Castes & Scheduled Tribes (Prevention of

Atrocities) Act, 1989 but found them guilty of the offence under

section 376(2)(G) of the Indian Penal Code and sentenced them to

ten years rigorous imprisonment and a fine of Rs.2,000/- each

under that section. It further found them guilty of the offence

under section 506 Part II of the Indian Penal Code for which they

were sentenced to one year rigorous imprisonment. Aggrieved by

the judgment and order of the trial court, the appellant

Malkhansingh preferred Criminal Appeal No. 49 of 1997 while the

other two appellants filed Criminal Appeal No. 76 of 1997 before

the High Court of Madhya Pradesh at Jabalpur. The High Court by

its impugned judgment and order of March 11, 2002 dismissed the

appeals. The appellants have preferred these two appeals by

special leave.

The case of the prosecution is that the prosecutrix Kumari

Lusiya was working as Assistant Teacher in the Government

Primary School at village Bagod. She was aged about 28 years

and was unmarried. On March 4, 1992 at about 11.30 a.m. she

boarded a bus to go to Bagod and alighted from the bus at about

1.00 p.m. at a place known as Zero Chain Puliya from where her

school was located at a distance of about 1 kilometer. After

alighting from the bus she proceeded on foot to the school in

village Bagod. When she was near the tapara of Baldar Khan she

noticed that she was being followed by three persons. When she

proceeded some distance she suspected that some of them had

come very close to her. She moved to the edge of the path-way

giving way to the persons behind her to go ahead. However, one

of them, later identified at appellant Maharajsingh, caught hold of

her hands from behind. The prosecutrix objected and raised an

alarm calling out for Baldar Khan but no one came to her rescue.

On the other hand appellant Malkhansingh took out a knife and

threatened her. Appellant Musab Khan also took out a knife and

threatened her into silence. Two of them then dragged her towards

the canal where she was further threatened and made to lie on the

ground. When again she persisted in raising alarm, appellant

Maharajsingh placed a knife on her neck and tried to press her

neck. Thereafter the appellants Musab Khan and Malkhansingh

removed her clothes and Musab Khan was the first person to

sexually assault her followed by Maharajsingh and Malkhansingh.

Thereafter they left her giving threats of dire consequences if she

reported the matter to the police and reminded her that she would

meet the same fate, which Madam Rekha had met, if she reported

the matter to the police.

After the occurrence the prosecutrix left for her home at

Bagod and went to school at about 3.00 p.m. On the next day she

attended the school but thereafter went to Vidisha accompanied by

another teacher Mangalsingh. At Vidisha she met the Deputy

Director of Education, one Mr. Dutta, on March 6, 1992 to whom

she narrated the incident and told him that the three boys were after

her life and it was not safe for her to go back to Bagod. She

requested that she may be transferred to some other school.

According to the prsocutrix, Mr. Dutta attached her to a school at

Khamkheda with effect from March 10, 1992. She narrated the

incident to her colleague Shri Mangalsingh on March 12, 1992,

who inturn reported the matter to Kaluram, PW.3, who was the

President of District Teachers Association. On March 14, 1992

Shri Kaluram, PW.3, took her to the residence of Superintendent of

Police, Vidisha where the prosecutrix handed over a typed

complaint to the Superintendent of Police. The said complaint was

forwarded to the Kotwali, Vidisha, where a crime was registered.

The prosecutrix was thereafter medically examined by Dr. Manju

Singhai, PW.1, on the same day at about 6.45 p.m. Her clothes

were seized and handed over to the police. The Vidisha police sent

the relevant papers to Police Station Satpada, since village Bagod

fell within the jurisdiction of that police station. The case was

investigated and ultimately Musab Khan was arrested on March

29, 1992 while the others were arrested on March 26, 1992. The

appellants were put up for trial before the Additional Sessions

Judge, Vidisha, where the prosecutrix identified them as the three

persons who had subjected her to sexual assault and criminal

intimidation.

A few facts which may be noticed at the threshold are that

the investigating officer did not consider it necessary to hold the

test identification parade. Surprisingly, the prosecution did not

examine its witnesses Shri Mangal Singh and Shri Dutta, Deputy

Director of Education, to whom she had narrated the incident on

March 6, 1992. Before the trial court as well as before the High

Court it was urged on behalf of the defence that there was

considerable delay in lodging the first information report and

therefore not much reliance could be placed upon the testimony of

the prosecutrix. It was also urged that the medical evidence on

record did not support the case of the prosecution. Lastly it was

submitted that in the absence of a test identification parade, the

identification of the appellants by the prosecutrix before the trial

court had no value whatsoever and, therefore, the conviction of the

appellants was not justified in law.

The trial court as well as the High Court have carefully

considered the evidence on record and have come to the conclusion

that the delay, if any, in lodging the first information report was

fully explained by the prosecutrix and was strongly supported by

the circumstantial evidence on record. The courts below have

noticed the fact that the prosecutrix was living all alone and was an

unmarried person, about 28 years of age. She did not have any

family member to whom she could have narrated her story

immediately after the occurrence. Moreover the sense of shame

coupled with the fear on account of threats given out by the

appellants must have deterred her from immediately reporting

about the occurrence to others. Even so, according to her, she

narrated the incident to Shri Dutta, Deputy Director of Education

on March 6, 1992. Later she narrated the incident to one of her

colleagues whom she found to be sympathetic towards her and

thereafter when her cause was taken up by the teachers association,

she could muster courage to lodge a report with the Superintendent

of Police. The courts below have, therefore, rightly held that in the

facts and circumstances of the case, the mere delay in lodging of

the first information report does not discredit the prosecution case.

The courts below have also examined the medical evidence on

record and have observed that the medical evidence, to some

extent, supported the case of the prosecution that the prosecutrix

may have been subjected to forcible sexual intercourse within a

week or two of her medical examination. The medical evidence

also indicated that the prosecutrix was not habituated to sexual

intercourse. We find no reason to dis-agree with the findings

recorded by the courts below on these aspects of the matter.

The principal submission urged before the courts below as

also before us is whether the conviction of the appellants can be

sustained on the basis of the identification of the appellants by the

prosecutrix in court without holding a test identification parade in

the course of investigation. While the appellants contend that the

identification in court not preceded by a test identification parade

is of no evidentiary value, the prosecution contends that the

substantive evidence is the evidence of identification in court and,

therefore, the value to be attached to such identification must

depend on facts and circumstances of each case. No general rule

could be laid that such identification in the court is of no value.

It is trite to say that the substantive evidence is the evidence

of identification in court. Apart from the clear provisions of

section 9 of the Evidence Act, the position in law is well settled by

a catena of decisions of this Court. The facts, which establish the

identity of the accused persons, are relevant under section 9 of the

Evidence Act. As a general rule, the substantive evidence of a

witness is the statement made in court. The evidence of mere

identification of the accused person at the trial for the first time is

from its very nature inherently of a weak character. The purpose

of a prior test identification, therefore, is to test and strengthen the

trustworthiness of that evidence. It is accordingly considered a

safe rule of prudence to generally look for corroboration of the

sworn testimony of witnesses in court as to 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 exceptions, when, for example, the court is impressed by

a particular witness on whose testimony it can safely rely, without

such or other corroboration. The identification parades belong 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. They do not constitute substantive evidence

and these parades are essentially governed by section 162 of the

Code of Criminal Procedure. Failure to hold a test identification

parade would not make inadmissible the evidence of identification

in court. The weight to be attached to such identification should be

a matter for the courts of fact. In appropriate cases it may accept

the evidence of identification even without insisting on

corroboration. (See Kanta Prashad vs. Delhi Administration :

AIR 1958 SC 350; Vaikuntam Chandrappa and others vs. State

of Andhra Pradesh: AIR 1960 SC 1340 ; Budhsen and another

vs. State of U.P. : AIR 1970 SC 1321 and Rameshwar Singh vs.

State of Jammu and Kashmir : (1971) 2 SCC 715 ). In Jadunath Singh and another vs. The State of Uttar

Pradesh : (1970) 3 SCC 518 the submission that absence of test

identification parade in all cases is fatal, was repelled by this Court

after exhaustive considerations of the authorities on the subject.

That was a case where the witnesses had seen the accused over a

period of time. The High Court had found that the witnesses were

independent witnesses having no affinity with deceased and

entertained no animosity towards the appellant. They had claimed

to have known the appellants for the last 6-7 years as they had

been frequently visiting the town of Bewar. This Court noticed the

observations in an earlier unreported decision of this Court in

Parkash Chand Sogani vs. The State of Rajasthan : (Criminal

Appeal No.92 of 1956 decided on January 15, 1957) wherein it

was observed :-

"It is also the defence case that Shiv Lal did not

know the appellant. But on a reading of the

evidence of P.W. 7 it seems to us clear that

Shiv Lal knew the appellant by sight. Though

he made a mistake about his name by referring

to him as Kailash Chandra, it was within the

knowledge of Shiv Lal that the appellant was a

brother of Manak Chand and he identified him

as such. These circumstances are quite enough

to show that the absence of the identification

parade would not vitiate the evidence. A

person, who is well-known by sight as the

brother of Manak Chand, even before the

commission of the occurrence, need not be put

before an identification parade in order to be

marked out. We do not think that there is any

justification for the contention that the absence

of the identification parade or a mistake made

as to his name, would be necessarily fatal to the

prosecution case in the circumstances."

The Court concluded :

"It seems to us that it has been clearly laid down

by this Court, in Parkash Chand Sogani V. The

State of Rajasthan (supra), that the absence of test

identification in all cases is not fatal and if the

accused person is well-known by sight it would be

waste of time to put him up for identification. Of

course if the prosecution fails to hold an

identification on the plea that the witnesses already

knew the accused well and it transpires in the

course of the trial that the witnesses did not know

the accused previously, the prosecution would run

the risk of losing its case".

In Harbajan Singh vs. State of Jammu and Kashmir :

(1975) 4 SCC 480, though a test identification parade was not held,

this Court upheld the conviction on the basis of the identification

in court corroborated by other circumstantial evidence. In that

case it was found that that the appellant and one Gurmukh Singh

were absent at the time of roll call and when they were arrested on

the night of 16th December, 1971 their rifles smelt of fresh

gunpowder and that the empty cartridge case which was found at

the scene of offence bore distinctive markings showing that the

bullet which killed the deceased was fired from the rifle of the

appellant. Noticing these circumstances this Court held :-

"In view of this corroborative evidence we find

no substance in the argument urged on behalf of

the appellant that the Investigating Officer

ought to have held an identification parade and

that the failure of Munshi Ram to mention the

names of the two accused to the neighbours

who came to the scene immediately after the

occurrence shows that his story cannot be true.

As observed by this Court in Jadunath Singh

vs. State of U.P., absence of test identification

is not necessarily fatal. The fact that Munshi

Ram did not disclose the names of the two

accused to the villages only shows that the

accused were not previously known to him and

the story that the accused referred to each other

by their respective names during the course of

the incident contains an element of

exaggeration. The case does not rest on the

evidence of Munshi Ram alone and the

corroborative circumstances to which we have

referred to above lend enough assurance to the

implication of the appellant."

It is no doubt true that much evidentiary value cannot be

attached to the identification of the accused in court where

identifying witness is a total stranger who had just a fleeting

glimpse of the person identified or who had no particular reason to

remember the person concerned, if the identification is made for

the first time in court.

In Ram Nath Mahto vs. State of Bihar : (1996) 8 SCC 630

this Court upheld the conviction of the appellant even when the

witness while deposing in Court did not identify the accused out of

fear, though he had identified him in the test identification parade.

This Court noticed the observations of the trial judge who had

recorded his remarks about the demeanour that the witness perhaps

was afraid of the accused as he was trembling at the stare of Ram

Nath, accused. This Court also relied upon the evidence of the

Magistrate, PW.7 who had conducted the test identification parade

in which the witness had identified the appellant. This Court

found, that in the circumstances if the Courts below had convicted

the appellant, there was no reason to interfere.

In Suresh Chandra Bahri vs. State of Bihar : 1995 Supp (1)

SCC 80 this Court held that it is well settled that substantive

evidence of the witness is his evidence in the court but when the

accused person is not previously known to the witness concerned

then identification of the accused by the witness soon after his

arrest is of great importance because it furnishes an assurance that

the investigation is proceeding on right lines in addition to

furnishing corroboration of the evidence to be given by the witness

later in court at the trial. From this point of view it is a matter of

great importance both for the investigating agency and for the

accused and a fortiori for the proper administration of justice that

such identification is held without avoidable and unreasonable

delay after the arrest of the accused. It is in adopting this course

alone that justice and fair play can be assured both to the accused

as well as to the prosecution. Thereafter this Court observed :-

"But the position may be different when the

accused or a culprit who stands trial had been

seen not once but for quite a number of times at

different point of time and places which fact

may do away with the necessity of a TI

parade."

In State of Uttar Pradesh vs. Boota Singh and others :

(1979) 1 SCC 31 this Court observed that the evidence of

identification becomes stronger if the witness has an opportunity of

seeing the accused not for a few minutes but for some length of

time, in broad day light, when he would be able to note the features

of the accused more carefully than on seeing the accused in a dark

night for a few minutes.

In Ramanbhai Naranbhai Patel and others vs. State of

Gujarat : (2000) 1 SCC 358 after considering the earlier decisions

this Court observed :-

"It becomes at once clear that the aforesaid

observations were made in the light of the

peculiar facts and circumstances wherein the

police is said to have given the names of the

accused to the witnesses. Under these

circumstances, identification of such a named

accused only in the Court when the accused

was not known earlier to the witness had to be

treated as valueless. The said decision, in turn,

relied upon an earlier decision of this Court in

the case of State (Delhi Admn.) vs. V.C. Shukla

wherein also Fazal Ali, J. speaking for a three-

Jude Bench made similar observations in this

regard. In that case the evidence of the witness

in the Court and his identifying the accused

only in the Court without previous

identification parade was found to be a

valueless exercise. The observations made

therein were confined to the nature of the

evidence deposed to by the said eyewitnesses.

It, therefore, cannot be held, as tried to be

submitted by learned counsel for the appellants,

that in the absence of a test identification

parade, the evidence of an eyewitness

identifying the accused would become

inadmissible or totally useless ; whether the

evidence deserves any credence or not would

always depend on the facts and circumstances

of each case. It is, of course, true as submitted

by learned counsel for the appellants that the

later decisions of this Court in the case of

Rajesh Govind Jagesha vs. State of

Maharashtra and State of H.P. vs. Lekh Raj

had not considered the aforesaid three-Judge

Bench decisions of this Court. However, in our

view, the ratio of the aforesaid later decisions

of this Court cannot be said to be running

counter to what is decided by the earlier three-

Judge Bench judgments on the facts and

circumstances examined by the Court while

rendering these decisions. But even assuming

as submitted by learned counsel for the

appellants that the evidence of these two

injured witnesses i.e. Bhogilal Ranchhodbhai

and Karsanbhai Vallabhbhai identifying the

accused in the Court may be treated to be of no

assistance to the prosecution, the fact remains

that these eyewitnesses were seriously injured

and they could have easily seen the faces of the

persons assaulting them and their appearance

and identity would well remain imprinted in

their minds especially when they were assaulted

in broad daylight. They could not be said to be

interested in roping in innocent persons by

shielding the real accused who had assaulted

them."

In the light of the principle laid down by this Court we may

now examine the facts of this case.

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 March 4, 1992 and she

deposed in Court on August 27, 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.

We, therefore, find no merit in these appeals and the same

are accordingly dismissed.