T'"^1 '~."cr.; CF0000058489 ^(^"^ IN THE HIQil COURT OP H^^tYJLPiy^>ESH AT JABALPUR. ey, Appeal NG. ^6^> /94 APPELLANT^t l« Babloo @ Babulak^ ,^°» ~ ^" ^..^ f'w"^!^.^°t."l-~ .AU^ /./' ^.1:0 0.8. Di3.?7.^A^ t9»v ^o^'O RESPOHDENT» S/@ Kariya ra®aged aboiat 20 years^ R/@ Nenagaoa P^S^ Jasl^mr K§gar^ f 2^ Jageshwar S/o €tottiaur< / ageda©^&t 20 years^ / It/6 Ratamati P^S^ Jaab^iar Kagar^ ©lstt<Raigarb* v»» Tbe atate ef M»P«tteotigh S^M^O^ f P^S^ Jasfa|mr Nagar< APPEAL UNDER SECTI'-C^ 374(2) @P CR, PR©OE©^RECODE ^n HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 1047 of 1994 APPELLANTS RiSPONDENT VERSUS Babloo alias Babulal and another State of Madhya Pradesh. Ms. Sharmila Singhai counsel for the appellants. Shri Vaibhav Goverdhan PL for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINALPROCEDURE. JUDGMENT (07.01.2011) This appeal is directed against the judgment dated 19.8.1994 passed by the Additional Sessions Judge Jashpurnagar in Sessions Trial No. 91/1993 convicting the appellants under Section 376 of the Indian Penal Code and sentencing each of them to undergo rigorous imprisonment for ten years and pay fine of Rs. 2000, in default of payment of fine to further undergo rigorous imprisonment for four months. 2. Case of the prosecution in brief is that on 16.11.1992 FIR Ex. P- 1 was lodged by the prosecutrix aged about 16 years alleging that on 14.11.1992 after receiving invitation from her friend Rijhi she had gone to her house along with her friends and after taking meals she stayed there in the night. According to the further case of the prosecution, at about 11 p.m. the prosecutrix came out of the house to answer the call of nature and while she was getting back, accused/appellants caught hold of her, took her outside the township and when she tried to raise her cry for help, they gagged her mouth, threw on the field, accused Jageshwar tore-off her underwear and committed forcible sexual intercourse with her which subsequently was followed by accused/appellant Babloo alias Babulal also. Based on the report -^L— lodged by the prosecutrix, investigation was done by the police and challan was filed on 29.1 1.1992. 3. So as to hold the accused/appellants guilty, prosecution has examined as many as 14 witnesses in support of its case. Statements ofthe accused/appellants were also recorded under section 313 ofthe Code of Criminal Procedure in which thy denied the charge levelled against them and pleaded their innocence and false implicatiorr in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellants as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the appellants informs that during the pendency of this appeal, accused/appellant No.2 Jageshwar has expired on 11.5.2000 and the present appeal confines to accused/appellant No.1 Babloo alias Babulal only. 7. Counsel for the appellant submits that the accused/appellant has been falsely implicated in the case and as per the evidence of the prosecutrix, the accused persons were not known to her previously yet the FIR has been lodged mentioning the names of the accused persons. She submits that in the absence of test identification parade or any other material showing the identity of the accused persons, entire prosecution case fails. She submits that medical report of the prosecutrix does not support her version as Dr. Lata Goyal (PW-14) has categorically opined that no definite opinion can be given about rape. In addition to this, she submits that there is inordinate delay in making the FIR as the incident had taken place in the intervening night of 14/15-11-1992 whereas the report has been lodged on 16.11.1992 at 12.30 after noon i.e. after about 48 hours of the incidentand no sufficient explanation has been offered by the prosecution for such .^..^, '-^, /sT^ ls^ S ^^^ 1 1 ' s>sl I '^- '%^^fjy -3— inordinate delay in doing so. It is argued that after the incident the prosecutrix kept quiet and did not disclose the incident of rape to anyone. It is argued that the fact that at the time of incident accused persons were calling each other by name is not the sufficient evidence to implicate the accused persons especially when they were not known to the prosecutrix and no other evidence is there on record to this effect. In support of her submission she placed reliance on the decisions ofthe Supreme Court in the matter of Bal Kishan v. State of Himachal Pradesh reported in AIR 2009 SC 812, in the matter of Mahabir v. State of Delhi reported in AIR 2008 SC 2343 and in the matter of Lalliram and another v. State of Madhya Pradesh reported in (2008)108cc 69. 8. Opposing the submission of the counsel for the appellant it has been argued by the State counsel that before the trial Court accused persons have taken a plea of consent and as according to the prosecutrix herself she was in the company of the appellant for about 4-5 hours, it cannot be said that the accused persons were not known to the prosecutrix. He submits that as per thestatement of Dr. Lata Goyal (PW-14) on touch the prosecutrix was complaining pain on her both hands and private part. Furthermore, this witness has stated that the prosecutrix could have been subjected to sexual intercourse but no definite opinion of rape on her could be given. In respect of identity of the accused persons, he submits that the judgment of the Supreme Court in the matter of Bal Kishan v. State of Himachal Pradesh (supra) is distinguishable in the facts and circumstances ofthe case as in that case the prosecutrix had hardly seen the accused persons but in the present case in the function for which she was invited, she had seen the accused persons as they had come there to install the loudspeaker in the said house. He submits that the prosecutrix was taken by the accused persons from the house to an isolated place and thereafter subjected to forcible sexual intercourse and made to stay with them for four-five hours. He submits that though the test identification parade could have helped the prosecution to prove its case yet the same is merely a corroborative piece of evidence and thus ^^&^-. ^ ,.;,'' ^ %. (I '^i^ss|. ^\^..^- -'^&^' -^- the accused persons are liable to be convicted on the basis of the statement of the prosecutrix alone. As dock identification of the accused persons is there and more so the evidentiary value of the said dock identification is important because the present is a case where the prosecutrix had spent sufficient time with the accused persons. Not conducting the test identification in the present circumstances is not fatal. He submits that the FSL report Ex. P-18 is positive. According to the State counsel, the accused persons have not suggested anything to the prosecutrix regarding their false implication and the prosecutrix remained firm with her statement and this being the factual position the conviction clamped by the Court below is in accordance with law. 9. Prosecutrix (PW-1) has stated in her evidence that on the date of incident she received invitation from her friend and had gone to her house along with her other friends and after taking meals she stayed there in the night. At about 11 p.m. she had gone to answer the call of nature and while returning the accused/appellants caught hold of her, took her outside the township and when she tried to raise cry for help, they had gagged her mouth. She has further stated that near a tree accused/appellant Jageshwar made an attempt to throw her on the ground but he could not succeed in it. Thereafter, other accused Babloo alias Babulal came there but he too could not succeed in throwing her on the field and then both of them together threw her on the field, accused Babtoo alias Babulal caught hold of her leg and after removing her cloths, accused Jageshwar tore off her underwear and then inserted his private part into that of her and likewise the said act was followed by accused Babloo alias Babulal also. At that time three boys from the village came there and asked the accused persons to leave her and then she was left off by them. Thereafter, she went back to the village along with those three boys. She retumed back to the house of Helna but did not disclose the incident to anyone. According to the prosecutrix, both the accused persons present in the Court are the persons who had come to the house of her friend Helna along with loudspeaker. On 16.11.1992 she came back to her village and narrated the entire incident to her mother. She clarified that at the time of —s— commission of offence she was having her menses period and the cloth which was being used for that purpose was also removed by accused Jageshwar. Thereafter she came to Jashpurnagar police station where FIR Ex. P-1 was lodged, she was sent for medical examination and hersari, petticoat and blouse were seized vide Ex. P- 2. In cross examination this witness has stated that accused persons belong to her caste but they did not visit the church. She has stated that accused/appellants were not known to her before the incident and at the time of incident when she was attending the call of nature she saw them coming fromthe other side. According to her, when the accused persons had picked her up, she tried to raise cry but as her mouth was tightly gagged she could not do that. She has stated that before the incident she was not aware of the names of the accused persons but as they were calling each other by name, she could come to know about the same. She has categorically denied the fact that accused persons had merely done the eve teasing but she has stated that she was subjected to rape. This witness has denied the fact that as three boys had seen her with the accused persons, a false report was lodged by her. This witness has stated that she was in the company of accused persons for about 4-5 hours without her consent. She has clarified that when three boys reached near the spot, she called them and went with them. She has further clarified in her cross examination that as the accused persons were talking to each other by taking eachother's names, she has lodged the named FIR stating that one of the accused persons was fair complexioned and the other was dark complexioned. Bertha (PW-2) is the mother of the prosecutrix who has stated in her evidence that her daughter had gone to the house of Rijhi and after return there-from she informed her about the commission of rape on her by the accused persons. According to this witness she saw the blood on the petticoat and sari of the prosecutrix and then the report was lodged. -fc- Thomas Minj (PW-3) and Anil Kumar Minj (PW-4) are among the three boys who had seen the prosecutrix and accused personson the place of incident but they have not supported the case of the prosecution and have been declared hostile. Amrita Beg (PW-5) is the sister of Rijhi who has also not supported the case of the prosecution and has been declared hostile. Dr. T.N. Sharma (PW-6) is the witness who had medically examined the prosecutrix to determine her age and the report given by him is Ex. P-6. According to this witness, the ageof the prosecutrix at the relevant time was between 12 and 17 years. Rijiniyush Beg (PW-7) is the headmaster of the school and has produced the school register showing her date of birth as 1.2.1976 and if this date is taken to be correct, her age on the date of incident was more than 16 years. Ram Prakash Pandey (PW-8) is the police constable who took certain seized articles to Forensic Science Laboratory for chemical examination. Assistant Sub Inspector namely B.N. Singh (PW-9) is the investigating officer and he has supported the case of the prosecution. Ghuniram (PW-10) is the Patwari who had prepared spot map Ex. P-13. Linus Kujur (PW-11) is the seizure witness of undergarments of the accused persons made under Ex. P-9 and P-10. Fabiyola (PW-12) has not stated anything in support of the case of the prosecution and has been declared hostile. Dr. Sanjay Goyal (PW-13) who had examined the accused persons and vide his reports Ex. P-15 and Ex. P-16 he opined that they were capable of performing sexual intercourse. Dr. Lata Goyal (PW-14) is the witness who had medically examined the prosecutrix. According to her report Ex. P-14 there was no injury on the person of the prosecutrix but she was complaining pain on her both hands which on examination was found to be correct. This witness has stated that the prosecutrix was having menses period and there was no injury on her private part and two fingers easily entered her vagina. According to this witness, on examination, she noticed pain on the private part of the prosecutrix. This witness has opined that sexual intercourse may have taken place with the prosecutrix but no definite opinion of rape could be given as she was habitual to sexual intercourse. According to this witness, ^^w-k"- ^""^1"^ .,y^"" .^'- ^-?s?^^,,^ —7— slides could not be prepared as she was having her menses period. In cross examination no question was put to this witness. 10. If a minute examination of the statements of the witnesses particularly that ofthe prosecutrix is taken into consideration, it is clear that the prosecutrix was subjected to rape by the accused persons against her will and without her consent. Defence of the accused persons is that they have been falsely implicated in the case whereas an attempt has been made before the trial Court that the prosecutrix was a consenting party. Question put to the prosecutrix that she spent 4-5 hours with the accused persons and she has falsely implicated the accused persons simply because three village boys had seen them in an objectionable condition has been denied by her. This Court does not find force in the argument of the counsel for the appellant that merely on the basis that the accused persons were calling each other by name at the time of incident, accused persons cannot be roped in a false case because no test identification parade has been conducted by the prosecution. Test Identification Parade is merely a corroborative piece of evidence and the same can be looked into if there is no other cogent evidence available on record against the accused persons. In the present case the prosecutrix has categorically stated that she saw the accused persons in the house of her friend as they had come there with the loudspeaker. Further, as per the case of the prosecution itself the prosecutrix and the accused persons remained there for sufficient time, she was subjected to rape by them one after the other and accused Jageshwar even repeated the offence of rape. This apart, the prosecutrix has given description of accused persons saying that one was fair complexioned whereas the other was dark complexioned and both of them were of short height. Prosecutrix has also stated that the accused persons belong to her caste though they did not visit the church. Though the prosecutrix has stated that accused persons were not known to her previously, if her entire evidence is taken into consideration it appears that she was in a position to identify them in a proper manner as she was picked up by them, taken to some distant place and was subjected to rape by them. Decision of the Supreme ^s^'^-^:- x; ^^-^""^ ff ^^^ ^^. ^ %.>-.: 1 -%- Court in the matter of Bal Kishan (supra) is not attracted to the case in hand as facts of that case and those of the present one are altogether different. In the case of Bal Kishan (supra) there was hardly an occasion for theprosecutrix to identify the accused persons but in the present case the prosecutrix had sufficient opportunity to identify the accused persons apart from the fact that they called each other by their names. Further in the court the prosecutrix has categorically identified the accused persons and stated that "when she came out to attend the call of nature, the persons present in the Court were seen by her and they had come to the house of Helna along with loudspeaker". She has stated that "two persons present in the court had caught hold of her and taken outside the township". Thus in the circumstances when considerable evidence of the witnesses particularly that of the prosecutrix is available on record, the non-conduction of the test identification parade would not be fatal to the case ofthe prosecution. 11. This Court finds no force in the argument of the counsel for the appellants that though the prosecutrix was subjected to gang rape, she did not suffer any injury on her person and therefore the accused/appellant is entitled for acquittal. Decision of the Supreme Court inthe matter of Lalliram and another (supra) is also distinguishable on facts because the testimony ofthe prosecutrixin this case is very clear and no contradictions and omissions in the same are visible. In the medical report the lady doctor who had medically examined the prosecutrix has opined that the prosecutrix was complaining pain on both her hands which on medical examination was found to be so. The lady doctor examining the prosecutrix has stated that on touch she was complaining pain on her private part also. Argument of consent cannot be accepted because on the one hand the appellants have taken the plea of false implication saying that they were not known to the prosecutrix prior to the incident and on the other hand they have taken a plea of consent. This apart, the prosecutrix was having her menses period and therefore the question of allowing the accused persons to sexual intercourse with her becomes a remote possibility. ^ \^^^.. 11 "--"'' ;''.^ ^* ^•.. ;•;-- ^£;^ -^— 12. While dealing with the impact of test identification parade it has been held by the Apex Court in the matter of Ronny alias Ronald James Alwaris etc. v. State of Maharashtra reported inAIR 1998 SC 1251 asunder: "19 - Section 9 of the Evidence Act deals with relevancy of facts necessary to explain or introduce relevant facts. It says, inter alia, facts which establish the identity of any thing or person whose identity is relevant, insofar as they are necessary for the purpose, are relevant. So the evidence of identification is a relevant piece of evidence under Section 9 of the Evidence Act where the evidence consists of identification of the accused person at his trial. The statement of the witness made in the Court, a fortiori identification by him of an accused is substantive evidence but from its very nature it is inherently of a weak character. The evidence of identification in the TIF is not substantive evidence but is only corroborative evidence. It falls in the realm of investigation. The substantive evidence is the statement of the witness made in the Court. The purpose of test identification parade is to test the observation, grasp, memory capacity to recapitulate what he has seen earlier, strength of trustworthiness of the evidence of the identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused in the Court. If a witness identifies the accused in the court for the first time after a long time, the probative value of such uncorroborated evidence becomes minimal, so much so that it becomes unsafe to rely on such piece of evidence. But if a witness has known an accused earlier in such circumstances which lend assurance to identification by him in court and if there is no inherent improbability of inconsistency, there is no reason why his statement in court about the identification of accused should not be relied upon as any other acceptable but uncorroborated testimony. 24. The identification of appellants by PW-29, PW-34, PW-42 and PW-45 in Court for the first time without prior identification by them in the test identification parade has been the subject matter of comment. Insofar as the identification of appellants by PW-42 and PW-45 are concerned, the trial Court as well as the High Court had not accepted the same but the identification of appellants by PW-29 and PW-34 had been accepted by both the trial Court as well as the High Court and in our v/'ew rightly. We have already laid down above that the identification of the accused by a witness if he had an -|0_ opportunity to interact with him or to notice his distinctive features lends assurance to his testimony in court and that the absence of corroborative evidence by way of test identification parade would not be material. From the abovementioned aspect, the evidence of PW- 42 and PW-45 has been rightly rejected by the trial Court and the High Court as PW-42 is a rickshaw driver who had no opportunity to see closely the appellants whom he took to Rooman bungalow in the night. So a/so PW-45's identification of A-1 in Court without his participation in the TIP has also no probative value inasmuch as he went to the shop of the witness as one of the customers and there was no specific reason why he should watch A-1 closely. But the same is not the position with PW-29 and PW-34. They were talking to the deceased Rohan Ohol at the time when the appellants came to Rooman bungalow. In deed, A-1 wished the deceased Rohan who introduced A-1 as Nitin Anil Swargey. Thereafter, A-1 introduced A-2 and A-3 to Rohan Ohol and PW-29 and PW-34. They talked together for about 7-8 minutes and on Rohon Ohol's saying them to sit inside the house, they left their soiled shoes in the verandah and entered the house. It can safe/y be presumed that had they not given the name and description of the appellants at the earliest when their statement was recorded by the police on 24th July 1992, the defence in their searching and lengthy cross- examination would have brought on record omissions and contradictions with reference to their earlier statement given to the police. As such evidence of identification of the appellants at their trial by the said witnesses even without the corroboration of the identification parade, had been rightly relied upon by the trial Court as well as by the High Court. We, therefore, find no illegality in the judgment of the courts below in accepting their evidence of identification. Similarly, in the matter of Malkhansingh and others v. State of Madhya Pradesh reported in 2003 AIR SCW 3336 it has been held by the Apex Court thus: "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 facts 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 errorin the reasoning ofthe Courts below. From the facts ofthe case it isquite apparent that the prosecuthx 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 night. The prosecutrix had sufficient opportunity