MS.S versus SUNIL KUMAR & ANR.
[2015] 5 S.C.R. 274, Supreme Court of India, 2015
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
A 
B 
c 
[2015] 5 S.C.R. 274 
MS.S 
v. 
SUNIL KUMAR &ANR. 
(Criminal Appeal No. 1581of2009) 
APRIL 10, 2015 
[PINAKI CHANDRA GHOSE AND 
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. 
2003 (1 j Suppl. SCR 443 relied on. 
para 9 
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 D 
following features: 
"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 
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. 
F 
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 
2 (2003) s sec 746 
H
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 
0 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 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