VISVESWARANversusSTATE REP. BY S.D.M.

A                                  VISVESWARAN
                                         v.
                                STATE REP. BY S.D.M.

                                    APRIL 28, 2003

B                     [Y.K. SABHARWAL AND H.K. SEMA, JJ.)


            Penal Code, 1860: ss. 346, 366 and 376:

            Rape of a young woman by a police constable-Conviction by Trial
C Court-Affirmed by the High Court-Victim and 01her witnesses failed to
      identifY accused in the Court-Test identification parade not conducted-
      Ef!ect of-Conviction-Correctness of-Held: when the guilt of the accused is
      established by the circumstantial evidence or otherwise, identification of the
      accused either in test identification parade or in the Court is not necessary to
D     convict him-Any defect in the investigation need not necessarily result in the
      acquittal-Rape cases are required to be dealt with utmost sensitivity by the
      Court-Minor contradictions/insignificant discrepancies may be ignored

           Evidence-Appreciation of-Courts to take extra caution while evaluating
      evidence-Evidence must be appreciated having regard to the entire
E     background of the case-Under the facts and circumstances of the case
      commission of rape was fully established-Non-holding of test identification
      parade not fatal and does not create any reasonable doubt in the case of
      prosecution-Evidence Act, 1872-Circumstantial evidence.

             According to the prosecution, the victim, her husband and other
F     relatives had been pursuing the profession of lead coating to vessels/utensils.
      On the fateful night when the victim and others were sleeping, appellant,
      a police constable, had taken the victim and her husband in a taxi on the
      pretext of some inquiry and on the way, pushed her husband and later
      raped her in a hotel. In the morning, the victim escaped and narrated the
G     incident to her husband and others. They had lodged an FIR in the nearby
      Police Station. Matter was investigated and the final report was submitted
      against the police constable under Sections 366 and 376 IPC.

           Trial Court found the accused guilty of offences under Sections 346,
      366 and 376 IPC, and convicted and sentenced him accordingly. The
I-I                                        978
                  VISVESWARAN v. ST ATE REP. BY S.D.M.                    979
conviction/sentence was affirmed by the High Court. Hence the present             A
appeals.

      It was contended for the appellant that in the absence of any evidence
establishing identity of the appellant as the accused who committed the rape
on the victim, he could not be held liable for the offences charged; and that
non-holding of test identification parade was fatal to the case of prosecution.   B

      Dismissing the appeals, the Court

      HELD: I.I. In view of the background of the case, the strata of society
to which the victim belongs and the nature of her profession and the              C
established fact that the victim was picked up by a Police Constable
ostensibly for interrogation on the pretext of suspicion on some complaint
having been made and then used to fulfil sexual hunger, there is no material
to come to the conclusion that the appellant was falsely implicated since
his involvement in the crime has been established from the circumstances
of the case beyond any reasonable doubt. [984-E)                                  D

      1.2. It is unfortunate that test identification parade was not held. An
important aspect of the case is that the appellant had beard and moustaches
when the victim and her husband were examined as witnesses for the
prosecution. It was not so at the time of the occurrence. Thus, they could        E
not identify him in the Court. It does not mean that the acquittal is to follow
as a natural corroboratory from their statements. The identification of the
accused either in test identification parade or in Court is not a sine qua
non in every case if from the circumstances the guilt is otherwise
established. The commission of crime can also be proved by circumstantial
evidence. In the instant case, there are clinching circumstances unerringly       F
pointing out the accusing finger towards the appellant beyond any
reasonable doubt. 1985-A-CI

      1.3. The approach required to be adopted by courts in such cases has
to be different. The cases are required to be dealt with utmost sensitivity.      G
Courts have to show greater responsibility when trying an accused on
charge of rape, the broader probabilities are required to be examined and
the courts are not to get swayed by minor contradictions or insignificant
discrepancies which arc not of substantial character. The evidence is
required to be appreciated having regard to the background of the entire
case and not in isolation. The ground realities are to be kept in view and        H
                                                                                       +
    980                     SUPREME COURT REPORTS                   [2003] 3 S.C.R.

A that every defective investigation need not necessarily result in the acquittal.
                                                                                           --
    In defectiv~ investigation, the only requirement is of extra caution by
    Courts while evaluating evidence. It would not be just to acquit the accused
    solely as a result of defective investigation. Any deficiency or irregularity
    in investigation need not necessarily lead to rejection of the case of
    prosecution when it is otherwise proved. In the instant case, it is no doubt
B   true that if the evidence of witnesses was examined in isolation, without
    having regard to the said principles, identity of the appellant could not be
    established due to defective investigation of not holding test identification
    parade and the benefit should go to the appellant. However, when the case
    is examined having regard to these legal principles, the 1esult would be
C   otherwise. (985-D-H(

          1.4. The circumstances which had been taken into consideration
    against the appellant by the trial court as well as the High Court were that
    the appellant, a Police official, was caught from a room in a hotel. The hotel
    record showed booking of the room in that hotel by the appellant and also
D   payment of an advance. The appellant could not explain his whereabouts
    during the time the offence was committed. He was not cooperative during
    investigation. He declined to give sample of his semen. He was having
    different appearance at the time of examination of the prosecution
    witnesses. (985-H; 986-A, Bl
E
          1.5. The testimony of the prosecution witnesses was straightforwa1.·d.
    The witnesses immediately after the commission of offence, had named the
    appellant. The non-holding of the test identification parade, having reg,ard
    to the facts of the case, is not fatal and does not create any reasonable d1Jubt
    in the case of the prosecution. (986-C, DI
F
         CRIMINAL APPELLATE JURISDICTION : Criminal Appe:al No.
    929-930 of 2002.

         From the Judgment and Order dated 7.3.2001 and 19.7.200,t of the
    Chennai High Court in Crl. A. No. 682 of 1993.
G
        K.V. Viswanathan, K.V. Venkataraman, Atul K. Sinha, K•unwar Ajit
    Mohan Singh, K.V. Vijay Kumar for the Appellant.

          Krishnan Venugopal and P.N. Ramalingam for the Resp,ondent.

H         The Judgment of the Court was delivered by
        VISVESWARAN v. STA TE REP. BY S.D.M. [SABHARWAL, J.)            981
      Y.K. SABHARWAL, J. The appellant has been convicted by the trial A
court for wrongful confinement (Section 346), abduction (Section 366) and
rape (Section 376). On conviction, rigorous imprisonment for a period of
seven years and fine of Rs. I0,000 for offence under Section 376 and lesser
punishments for other offences were imposed. The conviction and sentence
has been maintained in appeal by the High Court in terrns of the impugned B
judgment which is under challenge on grant of leave.

      The appellant at the relevant time was posted as a Constable in the
Prohibition Wing of Conoor Police Station. The victim, PW!, was a young,
recently married rustic woman. The commission of crime on the person of
the victim by a Police Constable has also been fully established and is not a   C
matter in issue. The issue that has been raised in this appeal is about the
identity of the accused.

      The established facts are that during March 1989, PW!, her husband
(PW2), Uncle of PW2 (PW4) and their other relatives pursuing the profession
of lead coating to vessels/utensils, used to go from place to place for the D
purpose of their profession. At the relevant time, they were at Kethi in
Udhagamandalam for the said purpose. Their native place is Pondicherry. On
the night between I Ith and 12th March, 1989, while all these persons were
sleeping on the bus stand, a Police Constable came in a taxi at about I a.m.
and asked PW! and PW2 about their identity and profession. On PW! replying
that PW2 is her husband and they had come for the purpose of their profession E
of lead coating to vessels, they were told that there was a suspicion on them
and were asked to board that taxi. Under these circumstances, they were
made to board the taxi. After covering some distance, PW2 was pushed out
from the taxi and when asked why was he pushed out, PW! was told that her
parents had made a complaint and she had to be interrogated alone. She was F
forcibly taken into a room in Woodlands Hotel at Udhagamandalam. The
room was bolted from inside and rape committed on her. In the morning, the
taxi-driver came and tapped the door, the Police Constable went inside the
bathroom instructing the driver to bring the taxi. When he was in the bathroom,
PW! bolted the door from outside and came out of the hotel. PW! thereafter
with the help of an old man reached the bus stand and narrated the incident G
to PW2 and PW4. They then went to the Police Station Kethi and she narrated
the incident which was reduced into writing by Sub-Inspector of Police. It is
Exhibit P-1. Exhibit P-1 was signed by PWI. PWl2 registered a case under
Sections 366 and 376 !PC and submitted it to the Inspector of Police. Exhibit
P-19 is the First Information Report. PW I 3, the Inspector of Police received H
    982                    SUPREME COURT REPORTS                  [2003] 3 S.C.R.

A a copy of Exhibit P-19 and recorded statements of PWI and PW2 and thereafter
    sent PW! for medical examination in the hospital. As the accused was serving
    in the Police department, PWl3 submitted the file to the Revenue Divisional
    Officer (PW14). Exhibit P-20 is the letter written by PWl3 submitting the
    file to PWl4. The accused was not available when PWl4 searched for him.
B   All this happened on 12th March.

        On 13th March, PWl4 went to the hospital and seized the clothes worn
  by PWI and arrested the accused in Woodlands Hotel. As the accused was
  in intoxicating mood, a certificate from the doctor was obtained. The clothes
  of the accused were also seized. The car driver (PW5) and the cleaner (PW6)
C were located at 10 p.m. and so also the taxi. PWl4 recorded the statement
  of PWS, PW6 and PW7 on 13th March. PW7 is a car mechanic in whose
  presence taxi was hired for conducting a raid. Accused was sent for medical
  examination on 14th March, 1989. The car was also seized on 14th March
  under Exhibit P-23 and PWs.5, 6 and 7 were arrested. The doctor who
  examined PWI appeared as a prosecution witness (PWIO). PW! told PWIO
D that she had been raped by a Police Constable. PWI 5 another doctor, who
  examined the accused at 11.15 a.m. on 14th March, found following injuries
  on the accused :

          "I. Abrasion with constusion 1/2 cm long in the right side of the
               chest in the region.
E
          2.   Abrasion 1/2 cm long in the left side of the chest just below the
               lateral end of the left clavicle.
          3.   Abrasion in front of left shoulder 1/2 cm long."

          PWl5 found the above injuries when the accused was produced before
F him to find out his potency. PW15 also found dried semen at the lower
    portion of male organ of the accused. The accused, however, did not permit
    PWJ5 to take the sample of semen stating that he was impotent at that time.
    PW 15 also deposed that it is possible for the injuries to be caused when the
    nails of a girl come in contact when she is raped. The Revenue Divisional
G   Officer, Conoor, after recording the statement of witnesses laid the final
    report against the accused under Sections 366 and 376 !PC.

          The prosecution examined 15 witnesses. None was examined by the
    accused. In his statement under Section 313 Cr.P.C., the accused stated that
    the evidence given by the prosecution witnesses is false. The courts below,
H   on appreciation of evidence, convicted and sentenced the accused as above
          VISVESW ARAN v. ST ATE REP. BY S.D.M. [SABHAR WAL, J.]          983
stated.                                                                           A
       It stands established from evidence and could not be questioned that
PWJ was picked up and raped by a Police Constable substantially in the
manner deposed by her. The only dispute that has been raised is about the
identity of the accused. Learned counsel for the appellant contends that the
prosecution has miserably failed to establish that the appellant committed the B
crime. The contention of Mr. Viswanathan is that it is a case of no evidence
since there is not even an iota of evidence to connect the appellant with the
commission of the offence and, in fact, it stands disproved that the appellant
is the person who committed the crime.

       In order to properly appreciate the contention of learned counsel, it      c
would necessary to bear in mind the background of the case including the
stata of society to which the victim belongs, her profession as also of the
accused and the manner in which investigation was conducted. It is a common
practice with those carrying the profession which PWJ and PW2 were carrying,
to sleep during night on roadside or such similar place, while going from         D
place to place. As above noticed, PWJ, PW2 and PW4 were sleeping on          a
bus stand when PW 1 and PW2 were picked up by a Constable ostensibly for
interrogation on a suspicion allegedly on a complaint made. It is also apparent
from record that the investigation has been highly defective. The question to
be examined, however, is whether despite discrepancies and deficiencies
pointed out and strongly pressed into service by learned counsel for the          E
appellant, has the prosecution been able to prove, beyond reasonable doubt,
the guilt of the appellant.

       The evidence of PWl and PW2 was recorded by the trial court in
September 1993. The main discrepancy and deficiency in the case of the F
prosecution that has been heavily relied upon by Mr. Viswanathan is that
none of the witnesses including PWJ and PW2 could identify the appellant.
It is correct, as pointed out by the learned counsel, that both PW I and PW2
stated in their evidence that the person who took them in the car was not
present in the Court. Similar was the statement of PW4. PW5 who was driver
of the vehicle in the question was declared hostile. PW6, the cleaner of the G
vehicle, was also declared hostile. He also did not name the appellant. PW7,
a car mechanic who was present when the taxi was hired from the taxi stand,
was examined in the Court of Judicial Magistrate where he stated that the
appellant had engaged a taxi and brought a boy and a girl and went with the
girl. However, in cross-examination, he stated that the said statement was H
    984                     SUPREME COURT REPORTS                    [2003J 3 S.C.R.
A given at the instance Of the Police and that when he was examined by RDO-
  PWl4, he had only stated that the person was a Police Constable and had not
  told his name but in the Court of Judicial Magistrate, the name of the Police
  Constable as Visveswaran - the appellant was stated only after the Police had
  told him to do so. In view of this evidence, it was strenuously contended that
                                                                                        .
B the present case is of no evidence and, therefore, the appellant is entitled to
  a clean honourable acquittal and not an acquittal ·as a result of a reasonable
  doubt in the prosecution case. The further contention of learned counsel was
  that under these circumstances, the non holding of test identification parade
  was fatal to the case of the prosecution. At the first blush, we were much·
  impressed by the contentions but on deeper consideration, we are of the view
C that in the facts and circumstances of the case, no interference is called for
  with the findings arrived at by the trial court and affirmed by the High Court
  on appreciation of evidence despite the aforesaid deficiencies and discrepancies
  pointed out on behalf of the appellant.

           Having already noticed the background of the case, the stata of society
D   to which the victim belongs and the nature of her profession and the established
    fact that the victim was picked up by a Police Constable ostensibly for
    interrogation on the pretext of suspicion on some complaint having been
    made and then used to fulfil sexual hunger, we find no material to come to
    the conclusion that the appellant was falsely implicated since his involvement
E   in the crime has been established from the circumstances of the case beyond
    any reasonable doubt. PW! 's deposition was that she could identify the person
    who raped her. She also told so to the Police. She further stated that his name
    starts with word 'Visu'. She also told PW14 that she could identify the
    person who raped her. To the similar effect was the statement of PW2. PW2,
    on examination by RDO, gave the name of the person as Visveswaran - the
F   Appellant. PW6, though declared hostile, did support the case of the
    prosecution to the extent that a boy and a girl were taken in the car by the
    driver at the request of a Police Constable and on way the boy was dropped.
    He, however, stated that the girl was sent back after interrogation. As already
    noticed, PW7, though stated before the Judicial Magistrate that the appellant
G   had engaged the taxi and brought a boy and a girl and went with the girl, but
    in cross-examination, stated that the name of the appellant was given by him
    at the instance of the Police. The victim was raped by a Police Constable in
    a hotel. The question is as to the identify of that Police Constable. Was the
    appellant the said Police Constable, or there was some other Police Constable?

H         It is unfortunate that despite the aforesaid facts, the test identification
     "t·


                   VISVESWARAN v. STATE REP. BY S.D.M. [SABHARWAL,J.)                985
           parade was not held. An important aspect of the case is that the appellant had    A
           beard and moustaches when PW I and PW2 were examined as witnesses for
           the prosecution. It was not so at the time of the occurrence. PW! and PW2,
·;         therefore, it is evident, could not identify him in Court and stated in their
           deposition that the said person is not in Court. It does not mean that the
           acquittal is to follow as a natural corroboratory from the statements of PW!
           and PW2. The identification of the accused either in test identification parade   B
           or in Court is not a sine qua non in every case if from the circumstances the
           guilt is otherwise established. Many a times, crimes are committed under
           cover of darkness when none is able to identify the accused. The commission
           of crime can be proved also by circumstantial evidence. In the present case,
           there are clinching circumstances unerringly pointing out the accusing finger     C
           towards the appellant beyond any reasonable doubt.

                  Before we notice the circumstances proving the case against the appellant
           and establishing his identity beyond reasonable doubt, it has to be borne in
           mind that approach required to be adopted by courts in such cases has to be
           different. The cases are required to be dealt with utmost sensitivity, courts D
           have to show greater responsibility when trying an accused on charge of
           rape. In such cases, the broader probabilities are required to be examined and
           the comts are not to get swayed by minor contradictions or insignificant
           discrepancies which are not of substantial character. The evidence is required
           to be appreciated having regard to the background of the entire case and not E
           in isolation. The ground realities are to be kept in view. It is also required
           to be kept in view that every defective investigation need not necessarily
           result in the acquittal. Jn defective investigation, the only requirement is of
           extra caution by Courts while evaluating evidence. It would not be just to
           acquit the accused solely as a result of defective investigation. Any deficiency
           or irregularity in investigation need not necessarily lead to rejection of the F
           case of prosecution when it is otherwise proved.

                 Reverting to the instant case, it i~ no doubt true that if the evidence of
           witnesses is examined in isolation, without having regard to the aforesaid
           principles, there may be considerable force in the submission that the identity
           of the appellant has not been established and likewise as a result of defective G
           investigation of not holding test identification parade, the benefit should go
           to the appellant. However, when the case is examined having regard to the
           aforesaid legal principles, the result would be otherwise. Circumstances which
           have been taken into consideration against the appellant by the trial court as
           well as the High Court are that the appellant, a Police official, was caught H
                                                                                      +
    986                     SUPREME COURT REPORTS                  [2003] 3 S.C.R.

A from a· room in a hotel. The proprietor of the hotel was examined as PW3.
    The hotel record (Exhibits P-4 and P-5) showed booking of the room in that
    hotel by the appellant and also payment of advance of Rs. I00/-. PW3 had
    also been examined by PW14. The appellant could not explain his whereabouts
    during the time the offence was committed. He was not cooperative during              ..
B   investigation. He declined to give sample of his semen. He was having different
    appearance at the time of examination of PW I and PW2 in Court. At the time
    of commission of offence, he did not have beard and the moustaches. However,
    when PWI and PW2 were examined in Court, he had beard and the moustaches
    and was wearing Dhoti. The testimony of PW I and PW2 was straightforward.
    The witnesses, immediately after the commission of offence, had named the·
C   appellant. The non-holding of the test identification parade, having regard to
    the facts of the case, is not fatal and does not create any reasonable doubt in
    the case of the prosecution. We are unable to accept the contention that the
    identity of the appellant had not been proved. From the proved circumstances,
    it has been fully established that PW! was picked up and raped in a hotel
    room as per the case set up by the prosecution by a Police Constable who
D   was none other than the appellant. There is no infirmity in the impugned
    judgment of the High Court. The appeals are accordingly dismissed.

    S.K.S.                                                    Appeals dismissed.