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CASE NO.: Appeal (crl.)  1299-1300 of 2002

PETITIONER: Malkhansingh & Ors.                                       

RESPONDENT: Vs. State of Madhya Pradesh                                          

DATE OF JUDGMENT: 08/07/2003

BENCH: N. SANTOSH HEGDE, ASHOK BHAN & B.P. SINGH  

JUDGMENT:

J U D G M E N T

B.P. Singh, J.

       The three appellants herein were tried by the Second  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

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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

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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  

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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

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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

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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

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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.