Ms. S. vs Sunil Kumar

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1581 OF 2009

Ms. S …. Appellant

Versus

Sunil Kumar & Anr. …. Respondents

JUDGMENT

Uday Umesh Lalit, J.

1. This appeal by special leave challenges the judgment and order dated

20.11.2007 passed by the High Court of Chhattisgarh dismissing Criminal

Revision No.550 of 2007 preferred by the Appellant through her natural

guardian. By dismissing said criminal revision the High Court affirmed the

view taken by the trial court acquitting Respondent No.1 herein of the charges

under Section 376(2)(f) of the IPC and Section 3(2)(V) of the Scheduled Signature Not Verified Digitally signed by Gulshan Kumar Arora Date: 2015.04.16 Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 17:02:03 IST Reason:

“the Act”). Though the present appeal has been filed in the name of the

Appellant, in view of Section 228A of the IPC we direct that the cause title 2

shall stand amended and be read as “Ms. S. versus Sunil Kumar and another”.

2 The case of the prosecution is that in the forenoon of 14.01.2006 while

the Appellant was guarding her crops, a person aged about 20-22 years wearing

a shirt with red stripes and black trouser came. He called the Appellant by

making a signal, whereupon she started running. He ran after her, caught her

and after removing her undergarments committed sexual intercourse. He also

bit the lip of the Appellant. She shouted for help which attracted the attention

of three persons, namely, PWs 2, 4 and 6 (the names of these witnesses are not

being given as one of them is the brother of the Appellant and they shall

hereafter be referred to by their designation in the trial). PW-4 i.e. the brother

of the Appellant ran for catching that person but was unable to catch him and

the person ran away.

3. The reporting in respect of the aforesaid incident was immediately made

by the Appellant in Patharia Police Station and FIR Ext.P-1 was registered

under Section 376 IPC. In the first information report itself the Appellant had

stated the complexion of the man to be “sanwla”, that he was wearing shirt

with red stripes and that he was unable to speak. She further stated that she

would be able to identify that man. The Appellant was immediately sent for

medical examination. PW-7 Dr. Vibha Sindur did the medical examination and

found following features:

“1. The age of the prosecutrix was about 10 years.

3 2. There was a cut injury on the lower lip and a swelling on the upper lip.

3. There was an aberration of 3 x 5 cms in the waist.

On internal examination

1. The hymen was freshly ruptured and it was bleeding.

2. Two slides of the vagina were prepared and were handed over to the IO for chemical examination.

3. According to the doctor the prosecutrix was subjected to sexual intercourse.”

4. During the course of investigation the blood-stained soil and the plain

soil from the place of occurrence was seized vide Ext.P-14. The caste

certificate (Ext.P-13) of the Appellant was also seized. Respondent No.1 was

arrested vide arrest panchnama Ext.P-18 and was sent for medical examination.

PW-13 Dr. D.R. Singraul found him capable of having sexual intercourse. The

shirt with red stripes and black trouser were also seized from Respondent No.1

vide Ext.P-17. These garments were then produced for identification before

the witnesses including the Appellant who identified said garments. Though

the Appellant had clearly stated that she would be able to identify the man, no

test identification parade was conducted. During the investigation the age of

the Appellant was found to be between 10-14 years by PW-9 Dr. Anil Pratap

Singh upon X-Ray examination.

5. After completion of investigation Respondent No.1 was charged for 4

having committed offences under the aforesaid Sections and sent for trial.

The Appellant was examined as PW-1 who stated about the incident in

question and re-iterated the contents of the FIR. She also identified

Respondent No.1 in court though she did not know the name of Respondent

No.1, nor the village that he belonged. PWs 2, 4 and 6 who after hearing the

shouts for help had arrived at the place of incident, supported her version as

regards the fact that she was subjected to rape. However none of these

witnesses could identify Respondent No.1. The Investigating Officer was

examined as PW-10 who accepted that from the first information report it

appeared that the offence was committed by some unknown person but could

not give reason why test identification parade was not conducted. In his cross

examination, a suggestion was given by the defence that Respondent No.

1-Accused was unable to speak. He explained that on an earlier occasion, a

complaint was made by the maternal grandfather of Respondent No. 1 stating

about his disability, that he was lost and that Respondent No. 1 was found in

pursuance of such complaint.

6. The trial court after considering the entire material on record came to the

conclusion that the age of the Appellant was 10-13 years of age and that she

was minor at the time of incident. It was held that the medical evidence on

record clearly showed that she was subjected to sexual intercourse. Though the

statements of the Appellant and PWs 2, 4 and 6 clearly established the fact that 5

she was subjected to sexual intercourse at the time and in the manner alleged,

the trial court observed that PWs 2, 4 and 6 had failed to identify Respondent

No.1. Despite the fact that the Appellant had identified Respondent No.1 in

court, the trial court observed that in the absence of any prior test identification

parade such identification in court for the first time was not good enough.

Though the finding was recorded that the Appellant belonged to

Scheduled Caste community nothing was discussed whether the offence under

Section 3(2)(V) was otherwise made out. Giving him benefit of doubt on the

question of identification, Respondent No.1 was acquitted of the charges

leveled against him, vide judgment of the trial court dated 27.02.2007 in

Special Session Case No.68 of 2006.

7. The Appellant being aggrieved filed Criminal Revision under Section

397 read with 401 of the Cr.P.C. in the High Court. The High Court affirmed

the view taken by the trial court that since no test identification parade was

arranged, the identification by the Appellant for the first time in court was not

sufficient. For the lapses committed by the Investigating Officer in not

arranging the test identification parade, the High Court recommended

departmental action against him but went on to observe that the acquittal by the

trial court was on sound reasoning and that there was no illegality or infirmity

in the judgment of acquittal. The High Court therefore dismissed the revision.

It appears that there was delay of 81 days in filing the revision and the revision 6

was dismissed both on merits as well as on delay.

8. The present appeal has been preferred by the prosecutrix/ Appellant

through Supreme Court Legal Services Committee. Despite service of notice

upon Respondent No.1 no appearance was entered on his behalf and as such

this Court appointed Ms. Vanshaja Shukla, learned advocate as Amicus Curiae

to assist the court on behalf of Respondent No.1. We must place on record

appreciation for the assistance rendered by her.

9. Mr. Kanhaiya Priyadarshi, learned advocate appearing for the appellant

submitted that the testimony of the Appellant was cogent and supported by the

other evidence on record. There was immediate reporting and the fact that she

was subjected to sexual intercourse was well established. Three witnesses had

immediately arrived pursuant to her shouts who corroborated the factum of

rape. The Appellant in her first reporting had clearly stated that she would be

able to identify the person and had given sufficient indication regarding his

identity. Her identification in court, in the circumstances was not flawed on

any count and ought to be accepted. His submissions were well supported by

Ms. Shashi Juneja, learned advocate appearing for the State who invited our

attention to Ashok Debbarama @ Achak Debbarma v. State of Tripura1 and

submitted that the identification for the first time in court is good enough and

can be relied upon if the witness is otherwise trustworthy and reliable. Ms.

1 (2014) 4 SCC 747 7

Vanshaja Shukla learned Amicus Curiae fairly accepted that it is only as a

matter of prudence that the courts require and insist upon test identification

parade and that it would entirely depend upon facts and circumstances if the

testimony of the witness is otherwise found to be trustworthy and reliable.

10. It has consistently been held by this Court that what is substantive

evidence is the identification of an accused in court by a witness and that the

prior identification in a test identification parade is used only to corroborate

the identification in court. Holding of test identification parade is not the rule

of law but rule of prudence. Normally identification of the accused in a test

identification parade lends assurance so that the subsequent identification in

court during trial could be safely relied upon. However, even in the absence of

such test identification parade, the identification in court can in given

circumstances be relied upon, if the witness is otherwise trustworthy and

reliable. The law on the point is well-settled and succinctly laid down in Ashok

Debbarma (supra).

11. In the present case the Appellant was subjected to sexual intercourse

during broad day light. The fact that she was so subjected at the time and in

the manner stated by her, stands proved. Three witnesses had immediately

come on the scene of occurrence and found that she was raped. The immediate

reporting and the consequential medical examination further support her

testimony. By very nature of the offence, the close proximity with the offender 8

would have certainly afforded sufficient time to imprint upon her mind the

identity of the offender. In Malkhansingh v. State of M.P.2 in a similar

situation where identification by prosecutrix for the first time in court was a

matter in issue, this Court had observed:

“She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features In fact on account of her traumatic and tragic experience, the faces of the appellants must have got imprinted in her memory, and there was no chance of her making a mistake about their identity.”

12. Furthermore, the appellant had gone to the extent of stating in her first

reporting that she would be in a position to identify the offender and had given

particulars regarding his identity. The clothes worn by the offender were

identified by her when called upon to do so. In the circumstances there was

nothing wrong or exceptional in identification by her of the accused in court.

We find her testimony completely trustworthy and reliable. Consequently we

hold that the case against Respondent No.1 stands proved. Since the trial court

had found the age of the Appellant to be 10-13 years of age, we take the age to

be on the maximum scale i.e. 13 years. In our considered view, the High Court

was not justified in dismissing the revision. No other view was possible and the

case therefore warrants interference by this Court. We accordingly allow the

appeal and convict Respondent No.1 for having committed the offence under

Section 376(1) IPC and sentence him to undergo imprisonment for seven years

2 (2003) 5 SCC 746 9

and also impose a fine of Rs.5,000/- which in its entirety shall be made over to

the Appellant. In the event such fine is not deposited, Respondent No.1 shall

undergo further sentence of simple imprisonment for six months. We,

however, confirm the acquittal of Respondent No.1 for the offence under

Section 3(2)(V) of the Act. Respondent No.1 shall be taken into custody

forthwith to undergo the sentence as aforesaid.

………………………..J. (Pinaki Chandra Ghose)

………………………..J. (Uday Umesh Lalit) New Delhi, April 10, 2015 10

ITEM NO.1D COURT NO.13 SECTION IIA (Corrected) S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Criminal Appeal No(s). 1581/2009

Ms. S Appellant(s)

VERSUS

SUNIL KUMAR & ANR. Respondent(s)

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

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

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

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

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

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

“We accordingly allow the appeal and convict Respondent No.1 for having committed the offence under Section 376(1) IPC and sentence him to undergo imprisonment for seven years and also impose a fine of Rs.5,000/- which in its entirety shall be made over to the Appellant. In the event such fine is not deposited, Respondent No.1 shall undergo further sentence of simple imprisonment for six months. We, however, confirm the acquittal of Respondent No.1 for the offence under Section 3(2)(V) of the Act. Respondent No.1 shall be taken into custody forthwith to undergo the sentence as aforesaid.”

(R.NATARAJAN) (SNEH LATA SHARMA) Court Master Court Master (Signed reportable judgment is placed on the file)