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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1581 OF 2009

Ms. S     …. Appellant

Versus

Sunil Kumar & Anr.                  …. Respondents

J U D G M E N T  

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  

Castes and Scheduled Tribes (Prevention of Atrocities) Act,  1989 (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 direct that the cause title

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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.

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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

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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

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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

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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

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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

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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

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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

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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)