Malkhansingh
& Ors Vs. State of Madhya
Pradesh [2003] Insc
290 (8 July 2003)
N. Santosh
Hegde, Ashok Bhan & B.P. Singh B.P. Singh, J.
The
three appellants herein were tried by the Second Additional Sessions Judge, Vidisha,
M.P. in Sessions Trial No. 76 of 1992 charged of offences under section 3(1)(x)
of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act,
1989;
section
376 (2)(G) and section 506 of the Indian Penal Code on the allegation that they
had, on March 4, 1992, committed gang rape and criminally intimidated Kumari Lusia
a tribal woman, who was posted as Assistant Teacher in the Primary Government
School at Village Bagod. The trial court acquitted them of the charge under the
Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989
but found them guilty of the offence under section 376(2)(G) of the Indian
Penal Code and sentenced them to ten years rigorous imprisonment and a fine of
Rs.2,000/- each under that section. It further found them guilty of the offence
under section 506 Part II of the Indian Penal Code for which they were
sentenced to one year rigorous imprisonment. Aggrieved by the judgment and
order of the trial court, the appellant Malkhansingh preferred Criminal Appeal
No. 49 of 1997 while the other two appellants filed Criminal Appeal No. 76 of
1997 before the High Court of Madhya Pradesh at Jabalpur. The High Court by its impugned judgment and order of March 11, 2002 dismissed the appeals. The
appellants have preferred these two appeals by special leave.
The
case of the prosecution is that the prosecutrix Kumari Lusiya was working as
Assistant Teacher in the Government Primary School at village Bagod. She was aged about 28 years and was
unmarried. On March 4,
1992 at about 11.30 a.m. she boarded a bus to go to Bagod and alighted from
the bus at about 1.00
p.m. at a place known
as Zero Chain Puliya from where her school was located at a distance of about 1
kilometer. After alighting from the bus she proceeded on foot to the school in
village Bagod. When she was near the tapara of Baldar Khan she noticed that she
was being followed by three persons. When she proceeded some distance she
suspected that some of them had come very close to her. She moved to the edge
of the path-way giving way to the persons behind her to go ahead. However, one
of them, later identified at appellant Maharajsingh, caught hold of her hands
from behind. The prosecutrix objected and raised an alarm calling out for Baldar
Khan but no one came to her rescue.
On the
other hand appellant Malkhansingh took out a knife and threatened her.
Appellant Musab Khan also took out a knife and threatened her into silence. Two
of them then dragged her towards the canal where she was further threatened and
made to lie on the ground. When again she persisted in raising alarm, appellant
Maharajsingh placed a knife on her neck and tried to press her neck. Thereafter
the appellants Musab Khan and Malkhansingh removed her clothes and Musab Khan
was the first person to sexually assault her followed by Maharajsingh and Malkhansingh.
Thereafter
they left her giving threats of dire consequences if she reported the matter to
the police and reminded her that she would meet the same fate, which Madam Rekha
had met, if she reported the matter to the police.
After
the occurrence the prosecutrix left for her home at Bagod and went to school at
about 3.00 p.m. On the next day she attended the
school but thereafter went to Vidisha accompanied by another teacher Mangalsingh.
At Vidisha she met the Deputy Director of Education, one Mr. Dutta, on March 6, 1992 to whom she narrated the incident
and told him that the three boys were after her life and it was not safe for
her to go back to Bagod. She requested that she may be transferred to some
other school.
According
to the prsocutrix, Mr. Dutta attached her to a school at Khamkheda with effect
from March 10, 1992. She narrated the incident to her
colleague Shri Mangalsingh on March 12, 1992,
who inturn reported the matter to Kaluram, PW.3, who was the President of District
Teachers Association. On March
14, 1992 Shri Kaluram,
PW.3, took her to the residence of Superintendent of Police, Vidisha where the prosecutrix
handed over a typed complaint to the Superintendent of Police. The said
complaint was forwarded to the Kotwali, Vidisha, where a crime was registered.
The prosecutrix
was thereafter medically examined by Dr. Manju Singhai, PW.1, on the same day
at about 6.45 p.m. Her clothes were seized and handed
over to the police. The Vidisha police sent the relevant papers to Police
Station Satpada, since village Bagod fell within the jurisdiction of that
police station. The case was investigated and ultimately Musab Khan was
arrested on March 29,
1992 while the others
were arrested on March
26, 1992. The
appellants were put up for trial before the Additional Sessions Judge, Vidisha,
where the prosecutrix identified them as the three persons who had subjected
her to sexual assault and criminal intimidation.
A few
facts which may be noticed at the threshold are that the investigating officer
did not consider it necessary to hold the test identification parade.
Surprisingly, the prosecution did not examine its witnesses Shri Mangal Singh
and Shri Dutta, Deputy Director of Education, to whom she had narrated the
incident on March 6,
1992. Before the trial
court as well as before the High Court it was urged on behalf of the defence
that there was considerable delay in lodging the first information report and
therefore not much reliance could be placed upon the testimony of the prosecutrix.
It was also urged that the medical evidence on record did not support the case
of the prosecution. Lastly it was submitted that in the absence of a test
identification parade, the identification of the appellants by the prosecutrix
before the trial court had no value whatsoever and, therefore, the conviction
of the appellants was not justified in law.
The
trial court as well as the High Court have carefully considered the evidence on
record and have come to the conclusion that the delay, if any, in lodging the
first information report was fully explained by the prosecutrix and was
strongly supported by the circumstantial evidence on record. The courts below
have noticed the fact that the prosecutrix was living all alone and was an
unmarried person, about 28 years of age. She did not have any family member to
whom she could have narrated her story immediately after the occurrence.
Moreover the sense of shame coupled with the fear on account of threats given
out by the appellants must have deterred her from immediately reporting about
the occurrence to others. Even so, according to her, she narrated the incident
to Shri Dutta, Deputy Director of Education on March 6, 1992. Later she narrated the incident to one of her colleagues
whom she found to be sympathetic towards her and thereafter when her cause was
taken up by the teachers association, she could muster courage to lodge a
report with the Superintendent of Police. The courts below have, therefore,
rightly held that in the facts and circumstances of the case, the mere delay in
lodging of the first information report does not discredit the prosecution
case.
The
courts below have also examined the medical evidence on record and have
observed that the medical evidence, to some extent, supported the case of the
prosecution that the prosecutrix may have been subjected to forcible sexual
intercourse within a week or two of her medical examination. The medical
evidence also indicated that the prosecutrix was not habituated to sexual
intercourse. We find no reason to dis-agree with the findings recorded by the
courts below on these aspects of the matter.
The
principal submission urged before the courts below as also before us is whether
the conviction of the appellants can be sustained on the basis of the
identification of the appellants by the prosecutrix in court without holding a
test identification parade in the course of investigation. While the appellants
contend that the identification in court not preceded by a test identification
parade is of no evidentiary value, the prosecution contends that the
substantive evidence is the evidence of identification in court and, therefore,
the value to be attached to such identification must depend on facts and
circumstances of each case. No general rule could be laid that such
identification in the court is of no value.
It is
trite to say that the substantive evidence is the evidence of identification in
court. Apart from the clear provisions of section 9 of the Evidence Act, the
position in law is well settled by a catena of decisions of this Court. The
facts, which establish the identity of the accused persons, are relevant under
section 9 of the Evidence Act. As a general rule, the substantive evidence of a
witness is the statement made in court. The evidence of mere identification of
the accused person at the trial for the first time is from its very nature
inherently of a weak character. The purpose of a prior test identification,
therefore, is to test and strengthen the trustworthiness of that evidence. It
is accordingly considered a safe rule of prudence to generally look for
corroboration of the sworn testimony of witnesses in court as to the identity
of the accused who are strangers to them, in the form of earlier identification
proceedings. This rule of prudence, however, is subject to exceptions, when,
for example, the court is impressed by a particular witness on whose testimony
it can safely rely, without such or other corroboration. The identification
parades belong to the stage of investigation, and there is no provision in the
Code of Criminal Procedure, which obliges the investigating agency to hold, or
confers a right upon the accused to claim, a test identification parade. They
do not constitute substantive evidence and these parades are essentially
governed by section 162 of the Code of Criminal Procedure. Failure to hold a
test identification parade would not make inadmissible the evidence of
identification in court. The weight to be attached to such identification
should be a matter for the courts of fact. In appropriate cases it may accept
the evidence of identification even without insisting on corroboration. (See Kanta
Prashad vs. Delhi Administration :
AIR
1958 SC 350; Vaikuntam Chandrappa and others vs. State of Andhra Pradesh: AIR 1960 SC 1340 ; Budhsen and
another vs. State of U.P. : AIR 1970 SC 1321 and Rameshwar
Singh vs. State of Jammu
and Kashmir : (1971)
2 SCC 715 ).
In Jadunath
Singh and another vs. The State of Uttar Pradesh : (1970) 3 SCC 518 the
submission that absence of test identification parade in all cases is fatal,
was repelled by this Court after exhaustive considerations of the authorities
on the subject.
That
was a case where the witnesses had seen the accused over a period of time. The
High Court had found that the witnesses were independent witnesses having no
affinity with deceased and entertained no animosity towards the appellant. They
had claimed to have known the appellants for the last 6-7 years as they had
been frequently visiting the town of Bewar. This Court noticed the observations in an earlier unreported decision
of this Court in Parkash Chand Sogani vs. The State of Rajasthan : (Criminal
Appeal No.92 of 1956 decided on January 15, 1957) wherein it was observed :-
"It is also the defence case that Shiv Lal did not know the appellant. But
on a reading of the evidence of P.W. 7 it seems to us clear that Shiv Lal knew
the appellant by sight. Though he made a mistake about his name by referring to
him as Kailash Chandra, it was within the knowledge of Shiv Lal that the
appellant was a brother of Manak Chand and he identified him as such. These
circumstances are quite enough to show that the absence of the identification
parade would not vitiate the evidence. A person, who is well-known by sight as
the brother of Manak Chand, even before the commission of the occurrence, need
not be put before an identification parade in order to be marked out. We do not
think that there is any justification for the contention that the absence of
the identification parade or a mistake made as to his name, would be
necessarily fatal to the prosecution case in the circumstances." The Court
concluded :
"It
seems to us that it has been clearly laid down by this Court, in Parkash Chand Sogani
V. The State of Rajasthan (supra), that the absence of test
identification in all cases is not fatal and if the accused person is
well-known by sight it would be waste of time to put him up for identification.
Of course if the prosecution fails to hold an identification on the plea that
the witnesses already knew the accused well and it transpires in the course of
the trial that the witnesses did not know the accused previously, the
prosecution would run the risk of losing its case".
In Harbajan
Singh vs. State of Jammu and Kashmir : (1975) 4 SCC 480, though a test
identification parade was not held, this Court upheld the conviction on the
basis of the identification in court corroborated by other circumstantial
evidence. In that case it was found that that the appellant and one Gurmukh
Singh were absent at the time of roll call and when they were arrested on the
night of 16th December, 1971 their rifles smelt of fresh gunpowder and that the
empty cartridge case which was found at the scene of offence bore distinctive
markings showing that the bullet which killed the deceased was fired from the
rifle of the appellant. Noticing these circumstances this Court held :-
"In view of this corroborative evidence we find no substance in the
argument urged on behalf of the appellant that the Investigating Officer ought
to have held an identification parade and that the failure of Munshi Ram to
mention the names of the two accused to the neighbours who came to the scene
immediately after the occurrence shows that his story cannot be true.
As
observed by this Court in Jadunath Singh vs. State of U.P., absence of test identification is not necessarily
fatal. The fact that Munshi Ram did not disclose the names of the two accused
to the villages only shows that the accused were not previously known to him
and the story that the accused referred to each other by their respective names
during the course of the incident contains an element of exaggeration. The case
does not rest on the evidence of Munshi Ram alone and the corroborative
circumstances to which we have referred to above lend enough assurance to the
implication of the appellant." It is no doubt true that much evidentiary
value cannot be attached to the identification of the accused in court where
identifying witness is a total stranger who had just a fleeting glimpse of the
person identified or who had no particular reason to remember the person
concerned, if the identification is made for the first time in court.
In Ram
Nath Mahto vs. State of Bihar : (1996) 8 SCC 630 this Court upheld the
conviction of the appellant even when the witness while deposing in Court did
not identify the accused out of fear, though he had identified him in the test
identification parade.
This
Court noticed the observations of the trial judge who had recorded his remarks
about the demeanour that the witness perhaps was afraid of the accused as he
was trembling at the stare of Ram Nath, accused. This Court also relied upon
the evidence of the Magistrate, PW.7 who had conducted the test identification
parade in which the witness had identified the appellant. This Court found,
that in the circumstances if the Courts below had convicted the appellant,
there was no reason to interfere.
In
Suresh Chandra Bahri vs. State of Bihar : 1995 Supp (1) SCC 80 this Court held
that it is well settled that substantive evidence of the witness is his
evidence in the court but when the accused person is not previously known to
the witness concerned then identification of the accused by the witness soon
after his arrest is of great importance because it furnishes an assurance that
the investigation is proceeding on right lines in addition to furnishing
corroboration of the evidence to be given by the witness later in court at the
trial. From this point of view it is a matter of great importance both for the
investigating agency and for the accused and a fortiori for the proper
administration of justice that such identification is held without avoidable
and unreasonable delay after the arrest of the accused. It is in adopting this
course alone that justice and fair play can be assured both to the accused as
well as to the prosecution. Thereafter this Court observed :- "But the
position may be different when the accused or a culprit who stands trial had
been seen not once but for quite a number of times at different point of time
and places which fact may do away with the necessity of a TI parade." In
State of Uttar Pradesh vs. Boota Singh and others : (1979)
1 SCC 31 this Court observed that the evidence of identification becomes
stronger if the witness has an opportunity of seeing the accused not for a few
minutes but for some length of time, in broad day light, when he would be able
to note the features of the accused more carefully than on seeing the accused
in a dark night for a few minutes.
In Ramanbhai
Naranbhai Patel and others vs. State of Gujarat : (2000) 1 SCC 358 after
considering the earlier decisions this Court observed :- "It becomes at
once clear that the aforesaid observations were made in the light of the
peculiar facts and circumstances wherein the police is said to have given the
names of the accused to the witnesses. Under these circumstances,
identification of such a named accused only in the Court when the accused was
not known earlier to the witness had to be treated as valueless. The said
decision, in turn, relied upon an earlier decision of this Court in the case of
State (Delhi Admn.) vs. V.C. Shukla wherein also Fazal Ali, J. speaking for a
three- Jude Bench made similar observations in this regard. In that case the
evidence of the witness in the Court and his identifying the accused only in
the Court without previous identification parade was found to be a valueless
exercise. The observations made therein were confined to the nature of the
evidence deposed to by the said eyewitnesses.
It,
therefore, cannot be held, as tried to be submitted by learned counsel for the
appellants, that in the absence of a test identification parade, the evidence
of an eyewitness identifying the accused would become inadmissible or totally useless
; whether the evidence deserves any credence or not would always depend on the
facts and circumstances of each case. It is, of course, true as submitted by
learned counsel for the appellants that the later decisions of this Court in
the case of Rajesh Govind Jagesha vs. State of Maharashtra and State of H.P.
vs. Lekh Raj had not considered the aforesaid three-Judge Bench decisions of
this Court. However, in our view, the ratio of the aforesaid later decisions of
this Court cannot be said to be running counter to what is decided by the
earlier three- Judge Bench judgments on the facts and circumstances examined by
the Court while rendering these decisions. But even assuming as submitted by
learned counsel for the appellants that the evidence of these two injured witnesses
i.e. Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai identifying the accused
in the Court may be treated to be of no assistance to the prosecution, the fact
remains that these eyewitnesses were seriously injured and they could have
easily seen the faces of the persons assaulting them and their appearance and
identity would well remain imprinted in their minds especially when they were
assaulted in broad daylight. They could not be said to be interested in roping
in innocent persons by shielding the real accused who had assaulted them."
In the light of the principle laid down by this Court we may now examine the
facts of this case.
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 fact 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 error
in the reasoning of the courts below. From the facts of the case it is quite
apparent that the prosecutrix 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 daylight. The prosecutrix had sufficient opportunity to
observe the features of the appellants who raped her one after the other.
Before the rape was committed, she was threatened and intimidated by the
appellants.
After
the rape was committed, she was again threatened and intimidated by them. All
this must have taken time. This is not a case where the identifying witness had
only a fleeting glimpse of the appellants on a dark night. 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. The occurrence took place
on March 4, 1992 and she deposed in Court on August 27, 1992. The prosecutrix
appears to be a witness on whom implicit reliance can be placed and there is no
reason why she should falsely identify the appellants as the perpetrators of
the crime if they had not actually committed the offence. In these
circumstances if the courts below have concurrently held that the
identification of the appellants by the prosecutrix in court does not require
further corroboration, we find no reason to interfere with the finding recorded
by the courts below after an appreciation of the evidence on record.
We,
therefore, find no merit in these appeals and the same are accordingly
dismissed.
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