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CASE NO.: Appeal (crl.)  175 of 2003

PETITIONER: Dastagir Sab & Anr.                                      

RESPONDENT: State of Karnataka                                       

DATE OF JUDGMENT: 22/01/2004

BENCH: Doraiswamy Raju & S.B. Sinha.

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       The appellants herein have been found guilty of  commission of offence under Section 376(2)(g) of Indian  Penal Code and sentenced to undergo rigorous imprisonment  for five years as also imposition of a fine of Rs. 10,000/-.

       On 31.10.1993, father of PW1 and PW6, her brother had  gone to cultivate their agriculture land.  Around 11.30 a.m.  when PW 1 was attending to her household works and nobody  was at home, the appellants came to the house and asked her  about the availability of a spray pump.  She told the  appellants that she did not have any.  A little later again  the appellants approached her and asked for water whereupon  she gave them water for drinking.  After some time again the  appellants went to her and asked her to give the cycle pump  whereupon she told them that she did not have any cycle  pump, whereafter they went away.  Around 12.30, PW 1 went to  a nearby nala to fetch water for the purpose of washing  clothes.  While she was returning from the canal, both the  accused persons came and took her forcibly to the cotton  fields by gagging her mouth and committed forcible sexual  intercourse with her against her consent.  She was unable to  cry as the cloth used was put in her mouth.  Later, however,  she removed the cloth put in her mouth and cried aloud.   Hearing her cries, her father and her brother came running  to the spot and found the accused persons running away at a  distance.  Her father made an attempt to apprehend them, but  they made good their escape.  He also approached one  Mahantesh Patil PW 19 who is an influential person of the  village and requested him to see that something is done in  this regard.  PW 19 promised him that he will send for the  accused and a panchayat will be held.  The father of the  prosecutrix, thereafter, informed the factum of commission  of the offence to a number of persons including PW 2 Krishna  Veni, PW 3 Krishna Murthy and PW 14 Sadashiva Rao.  All of  them gathered in the hut of PW 1 and made enquiries  whereupon she narrated the acts committed by the accused  persons.  After 4 days of the incident the father of the  prosecutrix lodged a First Information Report before the  Sirwar Police Station.   

       Both the Courts below found the appellants guilty of  commission of the said offence.   

       The principal ground urged by the learned counsel

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appearing on behalf of the appellants are that:

(i)     the identification of the appellants in the Court  for the first time by the prosecutrix without a  prior Test Identification Parade having been held,  the judgment of sentence must be held to be bad in  law; (ii)    having regard to the fact that the place of  occurrence being an agricultural field and the  stuff of the agricultural produce was found to be  as high as 5 feet to 6 feet, the absence of injury  on her person is not probable; (iii)   in view of the medical evidence, no finding as  regard commission of the offence can be held to  have been established.   

       The prosecution in support of its case has examined as  many as 26 witnesses.  The prosecutrix Malleshwari examined  herself as P.W. 1.  She in her evidence detailed the  circumstance in which the offence is said to have been  committed.   She also disclosed enough materials to show  that she had the occasion to see the accused persons at  least on three occasions almost immediately prior to the  commission of offence and also when she was intercepted and  forcibly committed sexual assault on her.  It is further  borne out from records that immediately upon hearing her  cries when the appellants allegedly took to heels, her  brother P.W. 6 Rambabu saw the appellants running away from  the spot.  The other witnesses including the father of the  prosecutrix, the other labourers who were working in the  field i.e. Gobindamma w/o Malappa, resident of Athnoor  Village, Kabir Jayamma w/o Gangappa Malad, Laxmi w/o Amaresh  Malad, Nagaraj s/o Gangappa Malad, Viresh s/o Gangappa  Malad, Subamma w/o Rahiman Choudhary of Solapur, Ramjanamma  w/o Bhandenawaz, Hussain s/o Choudhary Abi Sab, Mohammed s/o  Lal Sab came immediately to the place of occurrence.  The  father of the prosecutrix got hold of the accused persons  and allegedly they confessed their guilt but they refused to  come with him.  When the incident was narrated to the  labourers and others including the P.Ws. 2, 3, 6 and 14,  they expressed their anguish and wanted the boys to be  punished.  One Subamma went to the village and assaulted the  appellant No. 1 with her chappal.   

       The fact that immediately after the incident the matter  was narrated to PWs 2 and 3 is not in dispute.  They  supported the prosecution case.   Further, PW 6 Rambabu who  was then aged about 12 years also saw two persons running  away from the spot.  He knew the accused persons.

       It is also not in dispute that the accused were  arrested on 6.11.1993 and according to the investigating  officer they were shown to her to ensure that they have  arrested the correct persons and in that view of the matter  it was impracticable to hold a Test Identification Parade.   In view of the peculiar facts and circumstances of this case  we are of the opinion that non-holding of a Test  Identification Parade cannot be said to have vitiated the  trial.  The learned counsel appearing on behalf of the  appellants, however, would submit that the prosecutrix in  her evidence categorically admitted that she did not know  the accused persons earlier but despite the same they have  been named in the First Information Report.  A bare perusal  of the First Information Report would show that therein it  had merely been stated "I came to know that the boy who has

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raped me is Dastagir and the boy who has held me and put the  cotton in my mouth is Rajasab and both of them are of  Athnoor village, if shown to me I can identify them".

       It is, therefore, not difficult to perceive that before  the First Information Report which was lodged on 5.11.1993  the names of the appellants were disclosed and the  prosecutrix came to know thereabout.

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

       In the facts of this case, holding of T.I. Parade was  wholly unnecessary.  Had such T.I. Parade been held, the  propriety thereof itself would have been questioned before  the Trial Court.   

       In State of H.P. Vs. Lekh Raj and Another [(2000) 1 SCC  247], this Court emphasized the purpose for holding test  identification parade in the following terms:

"3...During the investigation of a  crime the police agency is required to  hold identification parade for the  purposes of enabling the witness to  identify the person alleged to have  committed the offence particularly when  such person was not previously known to  the witness or the informant. The  absence of test identification may not  be fatal if the accused is known or  sufficiently described in the complaint  leaving no doubt in the mind of the  court regarding his involvement.  Identification parade may also not be  necessary in a case where the accused  persons are arrested at the spot. The  evidence of identifying the accused  person at the trial for the first time  is, from its very nature, inherently of  a weak character. This Court in Budhsen  v. State Of U.P. ((1970) 2 SCC 128 :  1970 SCC (Cri) 343) held that the  evidence in order to carry conviction  should ordinarily clarify as to how and  under what circumstances the complainant  or the witness came to pick out the  particular accused person and the  details of the part which he allegedly  played in the crime in question with  reasonable particularity. In such cases  test identification is 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.  There may, however, be exceptions to  this general rule, when, for example,  the court is impressed by a particular  witness on whose testimony it can safely  rely without such or other  corroboration. Though the holding of

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identification proceedings are not  substantive evidence, yet they are used  for corroboration purposes for believing  that the person brought before the court  was the real person involved in the  commission of the crime. The  identification parade even if held,  cannot, in all cases, be considered as  safe, sole and trustworthy evidence on  which the conviction of the accused  could be sustained. It is a rule of  prudence which is required to be  followed in cases where the accused is  not known to the witness or the  complainant."   (See also Dana Yadav alias Dahu and  Others Vs. State of Bihar (2002) 7 SCC  295)

       Yet again in Malkhansingh and Others Vs. State of M.P.  [(2003) 5 SCC 746] this Court observed:

"16. 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 day light. 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

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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..."

       In Ashfaq Vs. State (Govt. of NCT of Delhi) [2003 (10)  SCALE 732], this Court observed:

"...Though as a matter of general  principle, the point urged with  reference to the omission to conduct  earlier the test identification Parade  may be correct, the question as to  whether there is any violation of the  same in a given case would very much  depend on the facts and circumstances of  each case and there cannot be any  abstract general formula for universal  and ready application in all cases..."

       In the instant case, as noticed hereinbefore, PW 1 gave  sufficient particulars of the persons committing the offence  of criminal assault on her.  They had been identified by  their description by her brother.  The appellants were  chased and they were caught and allegedly they had made a  confession of their guilt.  The relatives of the prosecutrix  and other persons had also approached Mahantesh Patil, PW 19  to see that the culprits are brought to book and assurance  in that behalf had been given.  It was only when despite  repeated attempts their grievances were not met, the First  Information Report was lodged.  Furthermore, in this case  the names of the appellants have been mentioned in the First  Information Report.

       It has been brought on record that immediately after  the incident the father of the prosecutrix went in search of  the accused where he also met PW 19 Mahantesh Patil who had  promised that he would send for the accused and see that  justice is done but since he was not available subsequently  for 2-3 days, the complaint was filed.   

       Further, it is well settled that absence of injuries on  the person of the prosecutrix would not by itself be  sufficient to discard the prosecution case.

       The incident took place on 31.10.1993.  PW 1 was  examined by the Medical Officer at 4.15 p.m. on 5.11.1993.   Dr. H. Vadiraj PW25 categorically stated that any abrasion  or marks of violence would be visible for 24 hours and  thereafter the same may disappear.  Admittedly, according to  the doctor, rupture of hymen of PW1 took place about one  year prior to the occurrence and that may lead to the  possible explanation as to why no visible injury was found  on her private part.

       In the cross-examination, it is elicited from this  witness that while taking brief history of the incident from  the victim, she clearly stated that she had been raped by  Dastagir Sab, aged about 28 years and Rajasab, aged 25 years  of Athnoor village on 31.10.1993 at 12 noon.  Furthermore,  the witness failed to state as to whether physical exercise  also can lead to rupture of hymen.   

       The learned Session Judge having regard to the

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materials on record observed:

"She was wearing at the relevant point  of time, one Lahanga, one Davani and a  blouse.  The two hooks on the top have  been torn and the clothes which P.W. 1  was wearing at the relevant point of  time were seized by the Investigating  Officer subsequent to the complaint  filed by P.W. 1 and they were subjected  to the chemical analysis by the  Investigating Officer.  The chemical  analysis report is available at Ex.  P.29, item No. 1 is a sealed cloth  packed said to contain one Lahanga.  The  result of the analysis disclosed that  the presumptive chemical tests for the  presence of seminal stains was found  positive for item No. 1 and 5(1).  Item  No. 5(1) refers to dhoti which was  subsequently seized from the possession  of A-1.  Therefore, the chemical  analysis test positively proves that  there was seminal stain both on Lahanga  of the victim and the dhoti of A-1."

                We may notice that the appellant No. 1 was examined by  Dr. Chikkareddy PW 20 on 6.11.1993 whereupon the following  injuries were found:

"1. Abrasion on the right side of the  neck =" x =" with crest formation.

2. Abrasion on the lt. Side of cheek  3/4" x 3/4" crest formation."

       Those injuries, according to the opinion of the doctor  could be caused by scratching with nails.

       So far as the alleged absence of injury on her body  having regard to place of occurrence, as urged by the  learned counsel for the appellant, is concerned, suffice it  to point out that the learned Session Judge noticed that  ’there were dried up cotton plants at the spot where the  incident took place’.  It was further noticed that when the  prosecutrix made her lay on a land where there were cotton  plants, it is natural that she would not sustain any visible  injury.  

       The spot mahazar MO-1 showed that at the place of  occurrence there were dried up cotton plants.  Having regard  to the aforementioned materials, both the learned Session  Judge as also the High Court negatived the submission of the  appellant to the effect that absence of injury on the back  of the prosecutrix would lead to the conclusion that  prosecution case should not be relied upon.  

       In Narayanamma (Kum) etc. Vs. State of Karnataka and  Others etc. [(1994) 5 SCC 728], this Court inter alia  observed:

"4(i) According to the prosecutrix, she  had been bodily lifted by Muniyappa and  Venkataswamy, respondents, taken to the

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field of Gopalappa where Somanna already  present in waiting raped her while she  was forcibly laid on the matted jowar  crop. Since there were no marks of  injury on the back of the prosecutrix  and the field was reported to be having  stones on the surface, the word of the  prosecutrix was doubted by the High  Court about the manner in which the  crime was committed. The High Court  unfortunately did not appreciate the  importance of the use of jowar stalks,  which in the month of October, when the  occurrence took place, would have been  more than a man’s height and when  trampled upon and matted would provide  sufficiently a cushion for the crime  being committed without the prosecutrix  receiving any injury on her back. The  surrounding crop would also provide a  cover obstructing visibility to a casual  passer-by. Thus we view that the absence  of injuries on the back of the  prosecutrix can be of no consequence in  the circumstances."  

       The presence of semen on the cloth of the victim also  corroborates the evidence of the prosecutrix.  

       Injury on the body of the person of the victim is not a  sine qua non to prove a charge of rape.  Absence of injury  having regard to overwhelming ocular evidence cannot, thus,  be the sole criteria for coming to a conclusion that no such  offence had taken place.   

       This Court in Rafiq Vs. State of Uttar Pradesh [AIR  1981 SC 559 : (1980) 4 SCC 262] observed:  

"5...The facts and circumstances often  vary from case to case, the crime  situation and the myriad psychic  factors, social conditions and people’s  life-styles may fluctuate, and so, rules  of prudence relevant in one fact- situation may be inept in another. We  cannot accept the argument that  regardless of the specific circumstances  of a crime and criminal milieu, some  strands of probative reasoning which  appealed to a Bench in one reported  decision must mechanically be extended  to other cases. Corroboration as a  condition for judicial reliance on the  testimony of a prosecutrix is not a  matter of law, but a guidance of  prudence under given circumstance.  Indeed, from place to place, from age to  age, from varying life-styles and  behavioural complexes, inferences from a  given set of facts, oral and  circumstantial, may have to be drawn not  with dead uniformity but realistic  diversity lest rigidity in the shape of  rule of law in this area be introduced  through a new type of presidential

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tyranny. The same observation holds good  regarding the presence or absence of  injuries on the person of the aggressor  or the aggressed."

       In Sheikh Zakir Vs. State of Bihar [AIR 1983 SC 911:  (1983) 4 SCC 10], this Court observed:

"8...Insofar as non-production of a  medical examination report and the  clothes which contained semen, the trial  court has observed that the complainant  being a woman who had given birth to  four children it was likely that there  would not have been any injuries on her  private parts. The complainant and her  husband being persons belonging to a  backward community like the Santhal  tribe living in a remote area could not  be expected to know that they should  rush to a doctor. In fact the  complainant has deposed that she had  taken bath and washed her clothes after  the incident. The absence of any  injuries on the person of the  complainant may not by itself discredit  the statement of the complainant. Merely  because the complainant was a helpless  victim who was by force prevented from  offering serious physical resistance she  cannot be disbelieved. In this situation  the non-production of a medical report  would not be of much consequence if the  other  evidence on record is  believable..."

       A question furthermore would arise as to why she would  falsely implicate the appellants.  Both the Session Judge as  also the High Court had rejected the defence plea raised in  this behalf by the appellants.  The learned Session Judge  found:

"The PW1 has withstood the test of  cross-examination and consequently her  evidence need not be corroborated by any  other eye witnesses or any other  witnesses.  There is no reason to doubt  the evidence of PW 1 in any manner.  The  only motive suggested is that since  Veerbhadra wanted to drive away Mohammed  who was cultivating the property, a  false complaint was filed against the  accused persons.  At any stretch of  imagination, this motive suggested on  the part of accused persons against the  evidence of PW 1 cannot be accepted.   This Mohammed in no way connected to  accused persons.  He is not the father  of A-1 and A-2; he is not the brother of  A-1 and A-2 and the accused persons are  not residing in the house of said  Mohammed.  At any point of time, prior  to the incident, Mohammed and the

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accused persons were not found together  in any place.  They have no common  interest.  Consequently, it is not  possible to believe that by filing false  case against accused persons, CW2 \026  Veerbhadra can evict the Mohammed from  the land.  Therefore, such a motive is  there is one’s imagination and  consequently, such evidence cannot be  accepted."

       We agree with the said findings recorded by the learned  Session Judge.

       In Pramod Mahto and Others Vs. The State of Bihar [AIR  1989 SC 1475], this Court observed:

"9...We found no merit in those  contentions because even if communal  feelings had run high, it is  inconceivable that an unmarried girl and  two married women would go to the extent  of staking their reputation and future  in order to falsely set up a case of  rape on them for the sake of communal  interest..."

       In State of Rajasthan Vs. Shri Narayan [AIR 1992 SC  2004], this Court held:

"5. The accused was a distant relative  whom the prosecutrix had met for the  first time about 5 or 6 years before at  the wedding of her sister-in-law.  Thereafter she had not many occasions to  meet him. Her relations with the accused  were not strained. The relations of her  husband with the accused were also not  strained. In the circumstances there was  no motive or reason for the prosecutrix  or her husband to falsely involve the  accused in the commission of a crime  which would not put her chastity at  stake. Her husband had come to celebrate  Diwali with his wife and family members  and quarrel with anyone, more so a  relative, would be farthest from his  thought. Even the complaint filed by the  accused on the 23rd was a fall out of  the incident at which he was beaten.  Unless the evidence discloses that she  and her husband had strong reasons to  falsely implicate the accused,  ordinarily the court should have no  hesitation in accepting her version  regarding the incident..."

       For the reasons aforementioned, we do not find any  merit in this appeal, which is dismissed accordingly.