MS.SversusSUNIL KUMAR & ANR.

                         [2015] 5 S.C.R. 274


A                               MS.S

                                  v.
                       SUNIL KUMAR &ANR.
B                (Criminal Appeal No. 1581of2009)

                           APRIL 10, 2015

                 [PINAKI CHANDRA GHOSE AND
c                    UDAY UMESH LALIT, JJ.]

          Penal Code, 1860: s.376(2)(f) - Rape - Trial Court
  recorded finding that statements of prosecution witnesses
  established the fact that prosecutrix was subjected to rape,
o however the prosecution witnesses failed to identify
  respondent no. 1 -Although prosecutrix identified accused-
  respondent in court, trial court observed that in the absence
  of any prior test identification parade, such identification in
  court for the first time was not sufficient and acquitted accused-
E respondent - Held: 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
F circumstances be relied upon, if the witness is otherwise
  trustworthy and reliable - In the instant case, testimony of
  prosecutrix was completely trustworthy and reliable -
  Immediate reporting and consequential medical examination
G supported her testimony - Case against the accused-
  respondent was proved- Respondent was liable to conviction
  - Test Identification Parade.

         Criminal law: Identification by prosecutrix for the first
H time in court - Reliability of.
                                  274
             MS. S v. SUNIL KUMAR & ANR.                     275


      Allowing the appeal, the Court                          A

       HELD: 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 stood proved. Three witnesses            B
had immediately come on the scene of occurrence and
found that she WdS raped. The immediate reporting and
the consequential medical examination further
supported her testimony. By very nature of the offence,
the close proximity with the offender would have certainly    C
afforded sufficient time to imprint upon her mind the
identity of the offender. 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
                                                              0
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. Her testimony was completely                E
trustworthy and reliable. Consequently, the case against
Respondent No. 1 stood proved. He is convicted for
having committed the offence under Section 376(1) IPC
and sentence him to undergo imprisonment for seven
years. [Paras 11, 12] [281-D-F; 282-B, D-E, F]                F

  Ashok Debbarama @ Achak debbarma v. State of
  Tripura (2014) 4 SCC 747: 2014 (4) SCR 287;
  Malkhansingh v. State ofM.P (2003) 5 SCC 746: 2003
  (1) Suppl. SCR 443 - relied on.                            G

                  Case Law Reference

      2014 (4) SCR 287         relied on.     para 9
      2003 (1 j Suppl. SCR 443 relied on.     para 10
                                                             H
276        SUPREME COURT REPORTS                 [2015] 5 S. C.R.


A           CRIMINAL APPELLATE JURISDICTION : Criminal
      Appeal No. 1581of2009

        From the Judgment and Order dated 28.11.2007 of the
  High Court of Chattisgarh at Bilaspur in Cr. Rev. No. 550 of
B 2007

           Kanhaiya Priyadarshi, fortheAppellant.

         Shashi Juneja, C. D. Singh, Vanshaja Shukla (A.C.) for
C the Respondents.

           The Judgment of the Court was delivered by

          UDAY UMESH LAUT, J. 1. This appeal by special
  leave challenges the judgment and order dated 20.11.2007
D 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)
E of the IPC and Section 3(2)(V) of the Scheduled Castes and
  Scheduled Tribes (Prevention of Atrocities)Act, 19e9 (for short
  "the Act"). Though the present appeal has been filed in the
  name of the Appellant, in view of Section 228A of the IPC we
F direct that the cause title 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
G 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
H for help which attracted the attention of three persons, namely,
MS. S v. SUNIL l\UMAR & ANR. [UDAY UMESH LAUT, J.) 277


PWs 2, 4 and 6 (the names of these witnesses are not being A
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.
                                                                  B
         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 C
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:
                                                                   D

   "1. The age of the prosecutrixwas about 1_0 years.
   2. There was a cut injury on the lower lip and a swelling
   on the upper lip.                                              E

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

  On internal examination
                                                                  F
                                                    .
   1. The hymen ·was freshly ruptured and it was bleeding .

  2. Two slides of the vagina were prepared and were
  handed over to the 10 for chemical examination.

  3. According to the doctor the prosecutrix was                  G
  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 H
278       SUPREME COURT REPORTS                   [2015] 5 S.C.R.


A 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
B garments were then produced for identification before the
  witnesses including theAppellantwho identified said garments.
  Though the Appellant had clearly stated that she would be able
  to identify the man, no test identification parade was conducted.
C 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
D was charged for 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
E 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
  pla¢e 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
F 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
G 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
H in pursuance of such complaint.
MS. S v. SUNIL KUMAR & ANR. [UDAY UMESH LAUT, J.] 279


        6. The trial court after considering the entire material A
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 B
established the fact that 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 C
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
                                                                0
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 E
27.02.2007 in Special Session Case No.68 of2006.

        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 F
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 G
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
                                                                 H
280          SUPREME COURT REPORTS                   [2015] 5 S.C.R.


A filing the revision and the revision 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
B Committee. Despite servic~ of notice upon Respondent No.1
  no appearance was entered on his behalf and as such this
  CoLJrt 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 forthe assistance
C 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
D     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
E     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,
F     learned advocate appearing for the State who invited our
      attention to Ashok Debbarama @Achak Debbarma v. State
      of Tripura 1 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. Vanshaja
G     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.
H
      1 (2014) 4   sec 747
MS. S v. SUNIL KUMAR & ANR. [UDAY UMESH LAUT, J.] 281



        10. It has consistently been held by this Court that what A
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 B
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 aqsence of such
test identification parade, the identification in court can in given C
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
                                                                0
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 E
examination further support her testimony. By very nature of
the offence, the close proximity with the offender would have
certainly afforded sufficient time to imprint upon her mind the
identity of the offender. In Ma/khansingh v. State of M.P. 2 in
a similar situation where identification by prosecutrix for the F
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 c'.Jffence and put her to shame.        G
   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
                                                                    H
2 (2003) s sec 746
282         SUPREME COURT REPORTS                  [2015) 5 S.C.R.


A      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
B    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
C   Respondent No.1 stands proved. Sir.ce 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 Le. 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
0
    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 and also impose a fine
E   of Hs.5,000/- which in its entirety shall be made over to the
    Appellant. In the event such fine is not deposite<j, 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
F   Act. Respondent No.1 shall be taken into custody forthwith to
    undergo the sentence as aforesaid.

    Devika Gujral                                     Appeal allowed.


G