1 cr-appa-1103-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.APPLN. NO. 1103 OF 2010 IN CRI. APPEAL NO. 650 OF 2010 Vikas Chandrakant Unawane ..Applicant Vs. The State of Maharashtra & Anr. ..Respondent .... Mr. Deshmukh A.I. Adv. for applicant Mr. V.B.Konde-Deshmukh APP for State .... CORAM : SMT.V.K.TAHILRAMANI, J. DATE : OCTOBER 15, 2010 P.C.: 1 Heard the learned advocate for the applicant-original accused no.3 and the learned APP for the State. 2 The applicant has been convicted for the offence under Sections 376 r.w. 109, 384 r.w. 34, 323 r.w. 34, 506-II r.w. 34 of IPC 147 and 155(a) of the Indian Railways Act, 1989 r.w. 34 of IPC. 3 The prosecution case is that on 5.12.2005, the prosecutrix was travelling to Mumbai with her husband PW 1 Ranglal by Pawan 2 cr-appa-1103-10 Express train. At about 11.30 p.m. at Nasik Road, some people entered into their compartment. They started demanding money from passengers. One of them demanded money from her husband. They tore the pocket of the shirt of her husband and they pointed out knife at the chest of her husband. Applicant warned her husband that he should not look at her berth. Accused no.2 told the prosecutrix to come to the toilet. She refused. Whereupon accused no.2 pulled her hair due to which, she fell down from the berth. Her husband questioned accused no.2. Thereupon accused no.2 threatened her husband that he should not look at the lower berth. The accused no.2 then committed rape on the prosecutrix. At that time, two Police Hawaldars came there and they separated accused from the prosecutrix. The Hawaldars then took the prosecutrix, her husband and the accused no.2 to the police chowki. 4 The prosecutrix stated in her evidence that when she was being raped, a co-passenger PW 6 Dinesh tried to intervene and questioned accused no.2 whereupon the accused no.3 (present applicant) mishandled the said passenger. The said passenger sustained injury. The prosecutrix has identified the applicant in the Court. 5 The learned advocate for the applicant submitted that the prosecutrix had seen the accused for the first time in the incident which 3 cr-appa-1103-10 occurred in the train. He submitted that the accused were unknown to the prosecutrix, in such case, test identification parade ought to have been held, and in the present no test identification parade was held, however, the prosecutrix has directly identified the accused in the Court. He submitted that such identification for the first time in Court cannot be relied upon. 6 From the evidence of the prosecutrix, it is seen that the accused persons were there in the train compartment for a sufficiently long period of time. In such case, she had sufficient opportunity to observe the applicant and other accused and thus, in my opinion, holding of test identification parade is not at all necessary. Thus, I find no merit in this submission. 7 In the case of Ronny alias Ronald James Alwares and Ors Vs State of Maharashtra, (1998) 3 Supreme Court Cases 625, it is observed that the statement of the witness made in the court is substantive evidence whereas the evidence of identification in the TIP is not a substantive evidence but it is only corroborative evidence. It falls in the realm of investigation. The purpose of test identification parade is to test the observation, grasp, memory, capacity of a witness to recapitulate what he has seen earlier, the strength or trustworthiness of the evidence of the identification of an accused and to ascertain if it can 4 cr-appa-1103-10 be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. But if a witness has seen an accused earlier in such circumstances which lend assurance to identification by the witness in court and if there is no inherent improbability or inconsistency, the evidence of such witness in court about the identification of accused should be relied upon as any other acceptable but uncorroborated testimony. The identification of the accused by a witness if the witness had an opportunity to interact with the accused or to notice his distinctive feature lends assurance to the testimony of the witness in court and absence of corroborative evidence by way of test identification parade would not be material. 8 In the case of Ronny (Supra), the prosecution had relied on the evidence of two witnesses i.e PW 29 and PW 34. Both these witnesses had directly identified the accused for the first time in court. The evidence of both these witnesses was relied upon by the prosecution to show that the accused persons had come to the bungalow of the deceased on the night of the incident. The evidence of both these witnesses was accepted by both the trial court as well as the High Court that the accused persons were seen entering the bungalow of the deceased on the previous night. The Supreme Court has observed that both the courts below had rightly accepted the 5 cr-appa-1103-10 identification of the accused by these two witnesses. The accused persons were not known to both PW 29 and PW 34 prior to the date of incident, however, both these witnesses had a talk with the accused when the accused came to the bungalow. Some talk took place between the witnesses and the accused for about 7-8 minutes. Thereafter, the accused persons entered into the bungalow. On the next day, the inmates of the bungalow were found dead. The Supreme Court held that identification of the accused by a witness if he had an opportunity to interact with him or notice his distinctive features lends assurance to his testimony in court and that the absence of corroborative evidence by way of TIP would not be material. 9 The Supreme Court has considered the evidentiary value of identification of accused by a witness in the court for the first time in a case where the eye witness did not know the accused earlier and where no TIP had been held. The Supreme Court observed that real credence of such evidence would depend upon the facts and circumstances of each case. It was so observed in the case of Ramanbhai Naranbhai Patel and Others Vs State of Gujarat, (2000)1 SCC 358. In the said case, it was held that in absence of TIP, it cannot be said that the evidence of an eyewitness would become inadmissible or totally useless. 10 In the case of Ramanbhai, two witnesses directly identified 6 cr-appa-1103-10 the accused in the court but without any previous TIP. The Supreme Court negatived the contention that such identification is of no assistance to the prosecution. The Supreme Court observed that as the witnesses were injured in the incident, they could have easily seen the faces of the persons assaulting them and the appearance and the identity would remain imprinted in the minds of witnesses especially when there were assaulted in broad day light. 11 In Confirmation Case No.4 of 2009 the Division Bench of this Court [ Coram : Smt. Ranjana Desai and Smt. V.K. Tahilramnai, JJ ] in judgment and order dated 7th September, 2010 observed that looking to the special circumstance that the deceased had requested the witness to exchange his seat with her in the bus and the fact that the witness had conversation with Draupadi (deceased) as well as the accused, it can be said that the witness had sufficient opportunity to observe these two persons. It is not as if he had a fleeting glimpse of a few seconds or even a few minutes of the accused and the deceased. Thus, in the facts and circumstances of the present case, not holding of a TIP would not be fatal to the prosecution. 12 The learned advocate for the applicant thereafter submitted that the present applicant has not committed rape on the prosecutrix and only accused no.2 committed rape on the prosecutrix. As far as this 7 cr-appa-1103-10 aspect is concerned, the evidence of prosecutrix wherein she has stated that when accused no.2 was committing rape on her, one co-passenger (PW 6) tried to intervene by questioning accused no.2, whereupon, accused no.3 i.e. the present applicant manhandled the passenger due to which, the said passenger received injuries. This clearly shows that the applicant has abetted accused no.2 to commit rape on the prosecutrix. Had it not been for the help and assistance rendered by accused no.3 accused no.2 may not have succeeded in committing rape on the prosecutrix. This is a serious incident. The incident of rape had occurred in a train. The accused had boarded the train and demanded money from the passengers at the point of knife and thereafter, with the aid of present applicant co-accused, committed rape in full view of the passengers in the bogey. 13 Looking to the evidence on record, this is not a fit case to grant bail. Hence, application is rejected. [ SMT. V.K.TAHILRAMANI, J.]