Sab & Anr Vs. State of Karnataka
 Insc 41 (22
Raju & S.B. Sinha. S.B. Sinha, J :
appellants herein have been found guilty of commission of offence under Section
376(2)(g) of Indian Penal Code and sentenced to undergo rigorous imprisonment
for five years as also imposition of a fine of Rs. 10,000/-.
31.10.1993, father of PW1 and PW6, her brother had gone to cultivate their
agriculture land. Around 11.30
a.m. when PW 1 was
attending to her household works and nobody was at home, the appellants came to
the house and asked her about the availability of a spray pump. She told the
appellants that she did not have any. A little later again the appellants
approached her and asked for water whereupon she gave them water for drinking.
After some time again the appellants went to her and asked her to give the
cycle pump whereupon she told them that she did not have any cycle pump, whereafter
they went away. Around 12.30, PW 1 went to a nearby nala to fetch water for the
purpose of washing clothes. While she was returning from the canal, both the
accused persons came and took her forcibly to the cotton fields by gagging her
mouth and committed forcible sexual intercourse with her against her consent.
She was unable to cry as the cloth used was put in her mouth. Later, however,
she removed the cloth put in her mouth and cried aloud.
her cries, her father and her brother came running to the spot and found the
accused persons running away at a distance. Her father made an attempt to
apprehend them, but they made good their escape. He also approached one Mahantesh
Patil PW 19 who is an influential person of the village and requested him to
see that something is done in this regard. PW 19 promised him that he will send
for the accused and a panchayat will be held. The father of the prosecutrix,
thereafter, informed the factum of commission of the offence to a number of
persons including PW 2 Krishna Veni, PW 3 Krishna Murthy and PW 14 Sadashiva Rao.
All of them gathered in the hut of PW 1 and made enquiries whereupon she
narrated the acts committed by the accused persons. After 4 days of the
incident the father of the prosecutrix lodged a First Information Report before
the Sirwar Police Station.
the Courts below found the appellants guilty of commission of the said offence.
principal ground urged by the learned counsel appearing on behalf of the
appellants are that:
the identification of the appellants in the Court for the first time by the prosecutrix
without a prior Test Identification Parade having been held, the judgment of
sentence must be held to be bad in law;
having regard to the fact that the place of occurrence being an agricultural
field and the stuff of the agricultural produce was found to be as high as 5
feet to 6 feet, the absence of injury on her person is not probable;
view of the medical evidence, no finding as regard commission of the offence
can be held to have been established.
prosecution in support of its case has examined as many as 26 witnesses. The prosecutrix
Malleshwari examined herself as P.W. 1. She in her evidence detailed the
circumstance in which the offence is said to have been committed. She also
disclosed enough materials to show that she had the occasion to see the accused
persons at least on three occasions almost immediately prior to the commission
of offence and also when she was intercepted and forcibly committed sexual
assault on her. It is further borne out from records that immediately upon hearing
her cries when the appellants allegedly took to heels, her brother P.W. 6 Rambabu
saw the appellants running away from the spot. The other witnesses including
the father of the prosecutrix, the other labourers who were working in the
field i.e. Gobindamma w/o Malappa, resident of Athnoor Village, Kabir Jayamma
w/o Gangappa Malad, Laxmi w/o Amaresh Malad, Nagaraj s/o Gangappa Malad, Viresh
s/o Gangappa Malad, Subamma w/o Rahiman Choudhary of Solapur, Ramjanamma w/o Bhandenawaz,
Hussain s/o Choudhary Abi Sab, Mohammed s/o Lal Sab came immediately to the
place of occurrence. The father of the prosecutrix got hold of the accused
persons and allegedly they confessed their guilt but they refused to come with
him. When the incident was narrated to the labourers and others including the P.Ws.
2, 3, 6 and 14, they expressed their anguish and wanted the boys to be
punished. One Subamma went to the village and assaulted the appellant No. 1
with her chappal.
fact that immediately after the incident the matter was narrated to PWs 2 and 3
is not in dispute. They supported the prosecution case. Further, PW 6 Rambabu
who was then aged about 12 years also saw two persons running away from the
spot. He knew the accused persons.
also not in dispute that the accused were arrested on 6.11.1993 and according
to the investigating officer they were shown to her to ensure that they have
arrested the correct persons and in that view of the matter it was
impracticable to hold a Test Identification Parade.
view of the peculiar facts and circumstances of this case we are of the opinion
that non-holding of a Test Identification Parade cannot be said to have
vitiated the trial. The learned counsel appearing on behalf of the appellants,
however, would submit that the prosecutrix in her evidence categorically
admitted that she did not know the accused persons earlier but despite the same
they have been named in the First Information Report. A bare perusal of the
First Information Report would show that therein it had merely been stated
"I came to know that the boy who has raped me is Dastagir and the boy who
has held me and put the cotton in my mouth is Rajasab and both of them are of Athnoor
village, if shown to me I can identify them".
therefore, not difficult to perceive that before the First Information Report
which was lodged on 5.11.1993 the names of the appellants were disclosed and
the prosecutrix came to know thereabout.
states that non-holding of Test Identification Parade would by itself disprove
the prosecution case. To what extent and if at all the same would adversely
affect the prosecution case, would depend upon the facts and circumstances of
facts of this case, holding of T.I. Parade was wholly unnecessary. Had such
T.I. Parade been held, the propriety thereof itself would have been questioned
before the Trial Court.
this Court emphasized the purpose for holding test identification parade in the
the investigation of a crime the police agency is required to hold
identification parade for the purposes of enabling the witness to identify the
person alleged to have committed the offence particularly when such person was
not previously known to the witness or the informant. The absence of test identification
may not be fatal if the accused is known or sufficiently described in the
complaint leaving no doubt in the mind of the court regarding his involvement.
parade may also not be necessary in a case where the accused persons are arrested
at the spot. The evidence of identifying the accused person at the trial for
the first time is, from its very nature, inherently of a weak character. This
Court in Budhsen v. State Of U.P. ((1970) 2 SCC 128 : 1970 SCC (Cri) 343) held
that the evidence in order to carry conviction should ordinarily clarify as to
how and under what circumstances the complainant or the witness came to pick
out the particular accused person and the details of the part which he
allegedly played in the crime in question with reasonable particularity. In
such cases test identification is 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.
may, however, be exceptions to this general rule, when, for example, the court
is impressed by a particular witness on whose testimony it can safely rely
without such or other corroboration. Though the holding of identification
proceedings are not substantive evidence, yet they are used for corroboration
purposes for believing that the person brought before the court was the real
person involved in the commission of the crime. The identification parade even
if held, cannot, in all cases, be considered as safe, sole and trustworthy
evidence on which the conviction of the accused could be sustained. It is a
rule of prudence which is required to be followed in cases where the accused is
not known to the witness or the complainant." (See also Dana Yadav alias Dahu
and 295) [(2003) 5 SCC 746] this Court observed:
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.
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 day light. 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.
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..." SCALE 732], this Court observed:
as a matter of general principle, the point urged with reference to the
omission to conduct earlier the test identification Parade may be correct, the
question as to whether there is any violation of the same in a given case would
very much depend on the facts and circumstances of each case and there cannot
be any abstract general formula for universal and ready application in all
cases..." In the instant case, as noticed hereinbefore, PW 1 gave
sufficient particulars of the persons committing the offence of criminal
assault on her. They had been identified by their description by her brother.
The appellants were chased and they were caught and allegedly they had made a
confession of their guilt. The relatives of the prosecutrix and other persons
had also approached Mahantesh Patil, PW 19 to see that the culprits are brought
to book and assurance in that behalf had been given. It was only when despite
repeated attempts their grievances were not met, the First Information Report
was lodged. Furthermore, in this case the names of the appellants have been
mentioned in the First Information Report.
been brought on record that immediately after the incident the father of the prosecutrix
went in search of the accused where he also met PW 19 Mahantesh Patil who had
promised that he would send for the accused and see that justice is done but
since he was not available subsequently for 2-3 days, the complaint was filed.
it is well settled that absence of injuries on the person of the prosecutrix
would not by itself be sufficient to discard the prosecution case.
incident took place on 31.10.1993. PW 1 was examined by the Medical Officer at 4.15 p.m. on 5.11.1993.
Vadiraj PW25 categorically stated that any abrasion or marks of violence would
be visible for 24 hours and thereafter the same may disappear. Admittedly,
according to the doctor, rupture of hymen of PW1 took place about one year
prior to the occurrence and that may lead to the possible explanation as to why
no visible injury was found on her private part.
cross-examination, it is elicited from this witness that while taking brief
history of the incident from the victim, she clearly stated that she had been
raped by Dastagir Sab, aged about 28 years and Rajasab, aged 25 years of Athnoor
village on 31.10.1993 at 12
noon. Furthermore, the
witness failed to state as to whether physical exercise also can lead to
rupture of hymen.
learned Session Judge having regard to the materials on record observed:
was wearing at the relevant point of time, one Lahanga, one Davani and a
blouse. The two hooks on the top have been torn and the clothes which P.W. 1
was wearing at the relevant point of time were seized by the Investigating
Officer subsequent to the complaint filed by P.W. 1 and they were subjected to
the chemical analysis by the Investigating Officer. The chemical analysis
report is available at Ex. P.29, item No. 1 is a sealed cloth packed said to
contain one Lahanga. The result of the analysis disclosed that the presumptive
chemical tests for the presence of seminal stains was found positive for item
No. 1 and 5(1). Item No. 5(1) refers to dhoti which was subsequently seized
from the possession of A-1. Therefore, the chemical analysis test positively
proves that there was seminal stain both on Lahanga of the victim and the dhoti
of A-1." We may notice that the appellant No. 1 was examined by Dr. Chikkareddy
PW 20 on 6.11.1993 whereupon the following injuries were found:
Abrasion on the right side of the neck =" x =" with crest formation.
Abrasion on the lt. Side of cheek 3/4" x 3/4" crest formation."
Those injuries, according to the opinion of the doctor could be caused by
scratching with nails.
as the alleged absence of injury on her body having regard to place of
occurrence, as urged by the learned counsel for the appellant, is concerned,
suffice it to point out that the learned Session Judge noticed that 'there were
dried up cotton plants at the spot where the incident took place'. It was
further noticed that when the prosecutrix made her lay on a land where there
were cotton plants, it is natural that she would not sustain any visible
spot mahazar MO-1 showed that at the place of occurrence there were dried up
cotton plants. Having regard to the aforementioned materials, both the learned
Session Judge as also the High Court negatived the submission of the appellant
to the effect that absence of injury on the back of the prosecutrix would lead
to the conclusion that prosecution case should not be relied upon.
etc. [(1994) 5 SCC 728], this Court inter alia observed:
According to the prosecutrix, she had been bodily lifted by Muniyappa and Venkataswamy,
respondents, taken to the field of Gopalappa where Somanna already present in
waiting raped her while she was forcibly laid on the matted jowar crop. Since
there were no marks of injury on the back of the prosecutrix and the field was
reported to be having stones on the surface, the word of the prosecutrix was
doubted by the High Court about the manner in which the crime was committed.
The High Court unfortunately did not appreciate the importance of the use of jowar
stalks, which in the month of October, when the occurrence took place, would
have been more than a man's height and when trampled upon and matted would
provide sufficiently a cushion for the crime being committed without the prosecutrix
receiving any injury on her back. The surrounding crop would also provide a
cover obstructing visibility to a casual passer-by. Thus we view that the
absence of injuries on the back of the prosecutrix can be of no consequence in
the circumstances." The presence of semen on the cloth of the victim also
corroborates the evidence of the prosecutrix.
on the body of the person of the victim is not a sine qua non to prove a charge
of rape. Absence of injury having regard to overwhelming ocular evidence
cannot, thus, be the sole criteria for coming to a conclusion that no such
offence had taken place.
SC 559 : (1980) 4 SCC 262] observed:
facts and circumstances often vary from case to case, the crime situation and
the myriad psychic factors, social conditions and people's life-styles may
fluctuate, and so, rules of prudence relevant in one fact- situation may be
inept in another. We cannot accept the argument that regardless of the specific
circumstances of a crime and criminal milieu, some strands of probative
reasoning which appealed to a Bench in one reported decision must mechanically
be extended to other cases. Corroboration as a condition for judicial reliance
on the testimony of a prosecutrix is not a matter of law, but a guidance of
prudence under given circumstance.
from place to place, from age to age, from varying life-styles and behavioural
complexes, inferences from a given set of facts, oral and circumstantial, may
have to be drawn not with dead uniformity but realistic diversity lest rigidity
in the shape of rule of law in this area be introduced through a new type of
presidential tyranny. The same observation holds good regarding the presence or
absence of injuries on the person of the aggressor or the aggressed."
(1983) 4 SCC 10], this Court observed:
as non-production of a medical examination report and the clothes which contained
semen, the trial court has observed that the complainant being a woman who had
given birth to four children it was likely that there would not have been any
injuries on her private parts. The complainant and her husband being persons
belonging to a backward community like the Santhal tribe living in a remote
area could not be expected to know that they should rush to a doctor. In fact
the complainant has deposed that she had taken bath and washed her clothes
after the incident. The absence of any injuries on the person of the
complainant may not by itself discredit the statement of the complainant.
Merely because the complainant was a helpless victim who was by force prevented
from offering serious physical resistance she cannot be disbelieved. In this
situation the non-production of a medical report would not be of much
consequence if the other evidence on record is believable..." A question
furthermore would arise as to why she would falsely implicate the appellants.
Both the Session Judge as also the High Court had rejected the defence plea
raised in this behalf by the appellants. The learned Session Judge found:
PW1 has withstood the test of cross-examination and consequently her evidence
need not be corroborated by any other eye witnesses or any other witnesses.
There is no reason to doubt the evidence of PW 1 in any manner. The only motive
suggested is that since Veerbhadra wanted to drive away Mohammed who was
cultivating the property, a false complaint was filed against the accused
persons. At any stretch of imagination, this motive suggested on the part of
accused persons against the evidence of PW 1 cannot be accepted.
Mohammed in no way connected to accused persons. He is not the father of A-1
and A-2; he is not the brother of A-1 and A-2 and the accused persons are not
residing in the house of said Mohammed. At any point of time, prior to the
incident, Mohammed and the accused persons were not found together in any
place. They have no common interest. Consequently, it is not possible to
believe that by filing false case against accused persons, CW2 Veerbhadra can
evict the Mohammed from the land. Therefore, such a motive is there is one's
imagination and consequently, such evidence cannot be accepted." We agree
with the said findings recorded by the learned Session Judge.
SC 1475], this Court observed:
found no merit in those contentions because even if communal feelings had run
high, it is inconceivable that an unmarried girl and two married women would go
to the extent of staking their reputation and future in order to falsely set up
a case of rape on them for the sake of communal interest..." 2004], this
The accused was a distant relative whom the prosecutrix had met for the first
time about 5 or 6 years before at the wedding of her sister-in-law.
she had not many occasions to meet him. Her relations with the accused were not
strained. The relations of her husband with the accused were also not strained.
In the circumstances there was no motive or reason for the prosecutrix or her
husband to falsely involve the accused in the commission of a crime which would
not put her chastity at stake. Her husband had come to celebrate Diwali with
his wife and family members and quarrel with anyone, more so a relative, would
be farthest from his thought. Even the complaint filed by the accused on the
23rd was a fall out of the incident at which he was beaten.
the evidence discloses that she and her husband had strong reasons to falsely
implicate the accused, ordinarily the court should have no hesitation in
accepting her version regarding the incident..." For the reasons
aforementioned, we do not find any merit in this appeal, which is dismissed