JUDGMENT
Kuldip Chand Sood, J.
1.The present appeal is directed against the judgment of the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, dated March 31, 1997, in Sessions Trial No. 31-R/7 of 1995, whereby the appellant Amrit Lal, hereinafter referred to as an ‘accused’, has been convicted for an offence punishable under Section 376 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of rupees 2,000/-. In case of default in the payment of fine, the accused is to suffer further simple imprisonment for one year. The accused has also been directed to pay rupees 5000/- as compensation to the victim.
2. Prem Kumari d/o Shri Achhar Singh, is resident of village Pangi. On July 9, 1994, Prem Kumari (PW-1) visited the house of Sukhdev to pay obeisance to ‘Devta’ who was brought to the house of Sukhdev on the same day from Kalpa. Amrit Lal accused, a resident of Kalpa, had accompanied the Devta from Kalpa to the house of Sukhdev in Pangi.
3. The prosecution case: In the early hours of the morning of July 10, 1994, at about 3.00 a.m., Prem Kumari left the house of Sukhdev to bring water for her grandmother. Accused met her near the staircase of the house of Sukhdev. He dragged her to the fields and committed forcible sexual intercourse with her in the fields. Prem Kumari tried to free herself from the clutches of the accused but did not succeed. Accused subjected Prem Kumari to forcible sexual intercourse twice and thereafter, left her in the fields. Prem Kumari narrated the incident to her mother immediately thereafter. She also told her brother Vidya Dev (PW2) of the incident as also her uncle. Her brother and uncle approached the Pradhan of their Gram Panchayat who advised that the matter should be reported to the Police. Accordingly, First Information Report was recorded by prosecutrix Prem Kumari with Police Station, Reckong Peo at 9.30 p.m. on the same day. At the request of Police, prosecutrix Prem Kumari, was immediately examined by Dr. Suresh Bansal (PW6) on July 11, 1994. Dr. Bansal did not find any injury on the person of the prosecutrix. He opined that there was penetration/attempt of penetration of the (sic) vagina. The accused on committal, was charged for the offence punishable under Section 376, I.P.C. Accused claim trial.
4. The prosecution examined fifteen witnesses in support of the case. Accused claims innocence. However, in his statement under Section 313 of the Code of Criminal Procedure, accused admits that he had come to village Pangi in the house of Sukhdev along with the Devta.
5. Learned trial Judge on the basis of testimony of the prosecutrix Prem Kumari, as corroborated by Vidya Dev (PW2) convicted and sentenced the accused, as noticed earlier.
6. Feeling dissatisfied with his conviction, the accused prefers this appeal.
7. I have heard Mr. Jagdish Vats, learned counsel for the appellant and Mr. R.M. Bisht, Assistant Advocate General and have gone through the record.
8. The main thrust of the arguments of the learned counsel for the accused is that this is a case of mistaken identity. The submission of Shri Vats, learned counsel for the accused, is that the accused was unknown to the prosecutrix. The alleged incident took place in the darkness at about 3.00 a.m. No test identification parade was held to identify the accused. The accused was identified by the prosecutrix for the first time in the Court and, therefore, there is no acceptable evidence to show that it was the accused who committed forcible sexual intercourse with Prem Kumari.
9. There is no scope of dispute that accused was not previously known to the prosecutrix. The prosecutrix (PW1) in her evidence at page-16 of the Paper-book admits that the accused is not from her village and she was not knowing the accused Amrit Lal prior to the incident.
10. In her own words, “the accused is not from my village. I was not knowing the accused Amrit Lal prior to the incident” (Emphasis supplied). It is also admitted position that no test identification parade was held during the course of investigation. The prosecutrix identified the accused for the first time when she was examined in the Court on 18-4-1996.
11. It is now well settled that statement of prosecutrix does not require any corroboration. Her testimony is to be considered like that of an injured witness and conviction can be based on the sole testimony of the prosecutrix if believed.
12. Learned counsel for the accused refers me to Harpal Singh v. State of Haryana, (1999) 1 Rec Cri R 445, to fortify his arguments that identification, for the first time in the Court, is not valid identification of the accused.
13. Mr. Bisht, learned Assistant Advocate General, submits that the prosecutrix was subjected to rape twice within an interval of half an hour and, therefore, the prosecutrix would not implicate a wrong person letting the real culprit go scot free. Mr. Bisht refers to the decision of this Court in Kanshi Ram v. State (1993) 1 Sim LC 137 and submits that test identification parade is not necessary if the prosecution witnesses identify the accused.
14. It is important to notice that the entire prosecution case rests on the evidence of the prosecutrix Prem Kumari as corroborated by Vidya Dev (PW2). The evidence may now be examined in this back ground.
15. It is the evidence of Prem Kumari (PW1), the prosecutrix, that she had gone to fetch water for her grand-mother when the accused met her near the staircase of the house of Sukhdev where Devta had come from Kalpa. The accused dragged her to the fields, caught hold of her both arms and committed sexual intercourse with her in the fields in spite of her protests. It is her evidence that she did resist accused by throwing him aside and tried to free herself. Accused, according to the prosecutrix, committed sexual intercourse twice with her and thereafter left the spot. It is her evidence that she thereafter went weeping to her mother and narrated the incident to her. She also narrated the incident to her brother and uncle. Both her uncle and brother went to Pradhan and informed him about the incident. In cross-examination, she admits that large number of people including the residents of other villages have gathered in their village. The visit of the Devta was being celebrated by the villagers by drinking and dancing throughout the night. She admits that when she went to fetch water for her grand-mother, the people were dancing outside the house of Sukhdev. In her own words, “it is correct that when I had gone to bring water for my grand-mother, the people were dancing outside the house of Sukhdev. It is difficult to believe the prosecutrix. Had the accused forcibly dragged the prosecutrix, as the prosecutrix would have us believe, large number of people who had gathered in the village particularly outside the house of Sukhdev would have noticed the incident and interfered.
16. It is also evidence of the prosecutrix that she received injuries on her face when the accused subjected her to sexual intercourse but no injury was found on her person as noticed by Dr. Suresh Bansal (PW6) who medically examined her on the next day. It is the evidence of Dr. Suresh Bansal (PW6) that no sign of violence was found on any part of body of the prosecutrix including face, arms, wrist, thighs, abdomen and back. It may be noticed that the prosecutrix, who at the relevant time was admittedly fifteen years of age, states that the accused subjected her to sexual inter-course twice for five minutes each within the interval of half an hour but Dr. Suresh Bansal (PW6) did not notice any injury or bruising on Labia Majora and Labia Minora though hymen was found lacerated with swollen edges. No spermatozoa was seen by the Doctor in the slides taken from posterior fornix of vagina.
17. It is true that no self-respected woman would implicate a person in a false case of rape against her honour. I am also conscious of the fact that corroboration of the statement of prosecutrix is not necessary as a rule, nevertheless, the Court must look for assurance to satisfy its judicial conscious in cases where doubt as to the identity of the accused is raised. Mr. Bisht, learned Assistant Advocate General refers me to Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635. In this case Their Lordships quoted with approval the following observations in State of Punjab v. Gurmit Singh, (1886) 2 SCC 384: (1996 Cri LJ 1728) (Para 7) :
The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bash fulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement, to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be selfinflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial evidence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.
(Emphasis supplied).
18-19. As observed by their Lordships in Gurmit Singh’s case (supra), corroborative evidence is not an imperative component of judicial credence in every case of rape nor is it a requirement of law but, nevertheless, a guidance of prudence under given circumstances as in the present case.
20. It is true that evidence of mother of prosecutrix Prem Kumari and Vidya Dev (PW2) to whom she is supposed to have immediately narrated the evidence, would be corroborative evidence. In the present case, mother of Prem Kumari, for reasons not disclosed on record, has not been examined. So far evidence of Viday Dev (PW2) is concerned, he maintains that on the fateful day, accused had come along with Devta from village Kalpa to the house of Sukhdev, several people had collected to receive Devta including his sister. It is his evidence that Prem Kumari had come weeping to him and told him that she was dragged by the accused and committed sexual intercourse with her and that one Narsingh Ram was also sitting at that time when prosecutrix narrated him the incident. Both of them went to Prem Raj (PW9) Pradha of the Gram Panchayat and narrated the incident to him as told by Prem Kumari. It is his evidence that Pradhan suggested him to go to Police Station and thereafter he came to Police Station.
21. Now, It is to be noticed that Prem Kumari admits having not known the accused prior to the occurrence. Obviously, she did not know the name of accused at that point of time. Therefore, it was not possible for her to have named the accused when she narrated the incident to Vidya Dev. Narsingh Ram who is supposed to be present when Prem Kumari narrated the incident to Vidya Dev, has not been examined. The presumption under Section 114(g) of the Evidence Act is that had Narsingh Ram been examined, he would not have supported Vidya Sagar.
22. Prem Raj (PW9) is categorical that Vidya Dev alone came to him and told him that one boy from Kalpa side had committed rape with his sister. It is not the evidence of Prem Raj that Vidya Dev (PW2) informed him that it was accused Sukhdev who committed rape with his sister. He also contradicts Vidya Dev that Vidya Dev along with Narsingh Ram went to Prem Raj Pradhan of Gram Panchayat. In the words of Prem Raj “Vidya Dev came to me and he told me that one boy from Kalpa side had committed rape with his sister. I told them the case is not of Panchayat competency and they should report the matter to the Police”. In cross-examination, he states “Vidya Dev came all alone to me.
23. Apparent as it is, the identity of the culprit who subjected Prem Kumari to forcible sexual intercourse was unknown at the time of the occurrence or immediately thereafter, otherwise, Vidya Dev would have named the accused when he reported the matter to Prem Raj (PW9) President of the Panchayat. The accused is named for the first time in the First Information Report (Ext. PW1/A) lodged with the Police at 9.30 p.m. on 10-7-1994. In the F.I.R., prosecutrix states that the ‘diety’ arrived at the house of Sukh Dev around 6.00 p.m. and around 4.00 a.m., she had gone to fetch water from the nearby stream. In her own words, “while I was coming back with water, Amrit Lal, resident of village Kalpa (presently residing in Dakho-Dogri) caught hold of me from my left arm on the way and dragged me to a nearly field. I cried out but he gagged me so that I could not raise alarm”. As already noticed, the prosecutrix admits having not known the accused before the occurrence. In the circusmtances it was not possible for her to have named the accused in the F.I.R. nor was it possible for her to give his permanent and present address. Her evidence regarding the identity of the culprit, in the circumstances is not acceptable. It has to be remembered that First Information Report was lodged after more than 18 hours of the occurrence though the Police Station is about 7 kms. from the place of occurrence as is apparent from the F.I.R. I am satisfied that the naming of the accused as culprit, in the F.I.R., is the result of due deliberations and hearsay.
24. In the facts and circumstances of this case, it is necessary for the investigating agency to have the accused identified in a test identification parade. Thus, failure of the investigating agency to hold test identification parade becomes of paramount importance. It is now well settled that where a witness identifies an accused who is not known to him previously in the Court for the first time, the evidence of such witness is of no assistance to the prosecution. In Jaspal Singh alias Pali v. State of Punjab, (1997) 1 SCC 510 : (1997 Cri LJ 370), father of the deceased Jasbir Singh lodged First Information Report, alleging that on the fateful night, he was sleeping in the courtyard. His younger brother was sleeping on the roof of the house. At about 12.30 a.m., seven terrorists entered in the house by opening the gate and scaling over the wall of whom five were armed with pistols and two were having sten guns. One of the terrorists who was known as ‘Saba’ came forward and demanded a licensed rifle and Rs. one lakh from him. On his reply that neither he has rifle nor cash, the terrorists then entered into the room and searched all the iron boxes lying therein and thereafter came out in the courtyard. One of the terrorists then asked where Jasbir Singh alias Bhure was and to which terrorist or-ganisation he belonged. Father of deceased Jasbir Singh then cross-questioned the terrorists as to which organisation they belonged. The terrorists then left the house warning that they would come back again after few minutes and by that time, he should get the amount of rupees one lakh ready. All the terrorists after few minutes returned back to the house of the father of the deceased and enquired about the cash amount. They also asked Jasbir Singh to accompany them to which father of Jasbir Singh and other members of his family pleaded for mercy and requested the terrorists not to take him away. The terrorists then told the father and the family members that Jasbir Singh would be let off soon. The terrorists carried Jasbir Singh with them and within 5 to 7 minutes, a fire-arm shot was heard from the direction of the street. However, because of apprehension to their lives, none of the family members or father of the deceased went to the spot immediately but after some time when they reached there, they saw Jasbir Singh lying dead with fire-arm injury on the left side.
25. The name of the terrorists was not known to any of the family mebmers at that time. In this context, Their Lordships in para 13 of the judgment observed :
It is common premise that although the appellants were arrested on 27-7-1991, yet the investigating agency did not hold TI parade. The identification of the appellants in the Court made by Gujant Singh (PW3) and Ram Singh (PW4) cannot be accepted with certainty as reliable identification. If this be so, the attempt of the prosecution to establish the identity of the accused in the present crime has to be rejected and, therefore, it is not possible to connect any of the appellants with the present crime.
26. Reference to Kanan v. State of Kerala, AIR 1979 SC 1127 : (1979 Cri LJ 919) may also be made with advantage. Their Lordships observed (Para 1) :
…It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. parade to test his powers of observations. The idea of holding T.I. parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T.I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court.
27. This view was again reiterated in Mohan Lal Gangaram Gehani v. State of Maharashtra, 1982 SCC (Cri) 334: (1982 Cri LJ 630 (3)) where Their Lordships observed (Para 5) :
The only other evidence against the appellant is that of PWs. 3 and 4. So far as PW3 is concerned his evidence also suffers from the same infirmity as that of Shetty. PW3 (Shaikh) admits at page 22 of the Paperbook that he had not seen the accused or any of the three accused before the date of the incident and that he had seen all the three for the first time at the time of the incident. He further admits that the names of the accused were given to him by the police. In these circumstances, therefore, if the appellant was not known to him before the incident and was identified for the first time in the Court, in the absence of a test identification parade, the evidence of PW3 was valueless and could not be relied upon as held by this Court in V.C. Shukla v. State (Delhi Admn.) (1980 Cri LJ 965) where this Court made the following observations :
Moreover, the identification of Tripathi by the witness for the first time in the Court without being tested by a prior test identification parade was valueless.
28. It is true, as observed in Pammi alias Brijendra Singh v. Government of M.P., (1998) 2 SCC 700 : (1998 Cri LJ 1617) that failure to hold test identification parade is not fatal where the accused were previously known to the eye-witnesses and had been named in the F.I.R. In the present case, not only the accused was not known previously to the only eye-witness, i.e., the prosecutrix, but the offence was admittedly committed during the darkness of the night where it was almost impossible to recognise the culprit unless he was previously known. There is no denying the fact that accused is named in the F.I.R. but I have already observed that F.I.R. was lodged after 18 hours of deliberations and identity of the culprit was not known to any person immediately after the commission of the offence. Mr. Bisht, learned Assistant Advocate General refers me to Surendra Narain alias Munna Pandey v. State of U.P., AIR 1998 SC 192 : (1998 Cri LJ 359). In that case, the ocular witnesses knew the accused previously and it is in this context Their Lordships observed (Para 21):
On a perusal of the above rulings it is clear that the failure to hold the test identification parade even after a demand by the accused is not always fatal and it is only one of the relevant factors to be taken into consideration along with the other evidence on record. If the claim of the ocular witnesses that they knew the accused already is found to be true, the failure to hold a test identification parade is inconsequential.
29. The ratio of this case is of no assistance to the prosecution.
30. Similarly, the ratio in the case of Kanshi Ram (supra), on which Mr. Bisht, learned Assistant Advocate General heavily rely is of no assistance to the prosecution. In that case, the identity of the accused persons was correctly established by the various eye-witnesses. It is in this conext that it was observed that test identification parade was not necessary if prosecution witness identify the accused.
31. The failure to hold test identification parade in the present case, thus is fatal to the prosecution.
32. The irresistible conclusion is that the prosecution has failed to establish the identity of the accused as culprit beyond reasonable doubt. The accused in the facts and circumstances of the case is not connected with the offence alleged.
33. No other point is urged before me.
34. In the result, the appeal is accepted, the judgment and conviction of the accused is set aside and the accused is acquitted. His bail bonds are discharged.