Rajasthan High Court - Jaipur
Raju @ Rajkumar @ Rajesh Joshi vs State Of Rajasthan on 13 November, 2003
Equivalent citations: RLW2004(4)RAJ2259, 2004(2)WLC348
JUDGMENT Sunil Kumar Garg, J.
1. This appeal has been filed by the accused appellant against the judgment and order dated 6.11.2001 passed by the learned Sessions Judge, Udaipur in Sessions Case No. 335/2000 by which he convicted the accused appellant for the offence under Section 376(1) and 379 IPC and sentenced him in the following manner:-
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Name of accused Convicted Sentence awarded appellant under Section
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Raju @ Rajkumar 376(1) IPC RI for 10 years and to pay fine
@ Rajesh Joshi of Rs. 500/-, in default of
payment of fine, to further
undergo 2 months RI.
379 IPC RI for one year and to pay fine
of Rs: 500/-, in default of
payment of fine, to further
undergo 2 months RI.
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Both the substantive sentence were ordered to run concurrently.
2. It arises in the following circumstances:-
On 30.10.2000 at about 9.00 PM, PW 1 Rose Salient Aguilera, a Spanish girl (hereinafter referred to as the prosecutrix) lodged a written report Ex.P/1 in the Manila Police Station, Udaipur before PW 9 Amar Kanth, SHO of that Police Station stating inter- alia that she was lost in the park and one door was closed and one Indian boy asked her for a cigarette, which she gave to him and she requested him to make available the gate so that she could go outside, but that boy caughthold her and threw her in the forest and upon this, she cried for help, but since nobody was there in the park, therefore, nobody came to help her and that boy did not allow her to say and thing. It was further stated in the report that thereafter, that boy broke her shirt, pent and all wears and had sex with her. It was further stated in the report that she tried to relieve herself from the clutches of that boy, but he continuously caughthold her and after having sex with her, he asked her to wait for ten minutes and thereafter, he ran away. It was further stated in the report that thereafter, she went near the temple where she saw some light and since her clothes and bag were not in the park, therefore, she went there in a naked condition where one lady gave clothes to her. In that report ex.P/1, the description of that boy, who had committed rape with her, was also given stating that the said boy was aged about 20-26 years and his height was not much and he was having strong complexion and he was wearing trousers and shirt. It was further stated in the report Ex.P/1 that the said boy was so strong that he threw her every moment more inside in the forest and caughthold her very strongly and forcibly did sex with her including penetration.
On this report, PW9 Amarkanth registered the case for the offence under Section 376 IPC and chalked out regular FIR Ex.P/7 and started investigation and thereafter, the investigation was handed over to PW 10 Dharmendra Singh, Dy. SP.
During investigation, PW 5 Fateh Singh stated before the police that the accused appellant had committed rape with the prosecutrix PW 1 Rosa Salient Aguilera and therefore, on that information, further investigation was started.
During the course of investigation, the prosecutrix PW1 Rosa Salient Aguilera was not medically examined on the same day on 30.10.2000 at 11.00 PM by PW 11 Dr. G.L. Dad for the purpose of ascertaining whether rape was committed with her or not and her injury report is Ex.P/2.
The site plan Ex.P/3 was got prepared by PW 10 Dharmendra Singh in presence of PW 2 Venu Goswami and Suraj Sharan and on the site through fard Ex.P/4, T-shirt, paiyaja and penties belonging to the prosecutrix were also seized by PW 10 Dharmendra in presence of PW 2 Venu Goswami and Suraj Sharan.
During investigation, On 31.10.2000, the prosecutrix PW 1 Rosa Salient Aguifera produced her clothes (Chunni, Kurta and salwar) before PW 10 Dharmendra Singh and the same were seized by PW 10 Dharmendra Singh through fard Ex.P/8 in presence of PW 3 Kamal Nayan and PW 4 Yogesh Vaishnav and that kurta was found stained with blood and semen.
The further case of the prosecution is that on 31.10.2000 at about 4.05 PM, the accused appellant was got arrested by PW 10 Dharmendra Singh through arrest memo Ex.P/9 in presence of PW 3 Kamal Nayan and PW 4 Yogesh Vaishnav and in that arrest memo Ex.P/9, it was mentioned that the accused appellant was kept baparda.
The accused appellant was also got medically examined by PW 12 Dr. Anls Ahmad and his injury report is Ex.P/23, which shows two injuries on his person.
The further case of the prosecution is that through fard Ex.P/10, PW 10 Dharmendra Singh seized the underwear of the accused appellant in presence of PW 3 Kamal Nayan and PW 4 Yogesh Vaishnav, and that underwear and also having spots of semen.
Through fard Ex.P/11, the accused appellant in presence of PW 3 Kamal Nayan and PW 4 Yogesh Vaishnav pointed out the place of occurrence to PW 10 Dharmendra Singh.
The further case of the prosecution is that the accused appellant gave information Ex.P/18 to PW 10 appellant gave information Ex.P/18 to PW 10 Dharmendra Singh to the effect that he could get recovered a bag belonging to the prosecutrix and in consequence of that information Ex.P/18, a bag was got recovered through fard Ex.P/12 by PW 10 Dharmendra Singh in presence of PW 3 Kamal Nayan and PW 4 Yogesh Vaishnav.
The further case of the prosecution is that during investigation, identification parade was also got conducted in jail by PW 8 Rajeev Bijlani, judicial Magistrate (North), Udaipur and in the identification parade, the prosecutrix PW1 Rosa Salient Aguilera identified the accused appellant as the man, who committed rape with her and that identification parade memo is Ex.P/5. At the time of identification parade, 10 persons were included and the name of these ten persons are shown in the fard Ex.P/17.
The further case of the prosecution is that the bag, which was got recovered at the instance of the accused appellant through fard Ex.P/12, was also identified by the prosecutrix PW 1 Rosa Salient Aguilera in presence of PW 8 Rajeev Bijlani, Judicial Magistrate (North), Udaipur and that identification memo is Ex.P/6.
After usual investigation, police submitted challan for the offence under Sections 376 and 379 I(PC against the accused appellant in the Court of Magistrate and from where, the case was committed to the Court of Session.
On 4.11.2000, the learned Sessions Judge, Udaipur framed the charges for the offence under Section 376(1) and 379 IPC against the accused appellant. The charges were read over and explained to the accused appellant, who pleaded not guilty and claimed trial.
During trial, the prosecution got examined as many as 13 witnesses and exhibited several documents. Thereafter, the statement of the accused appellant under Section 313 Cr.P.C. was recorded in which he has stated that he has been falsely implicated by the police. In defence, no evidence was led by the accused appellant.
After conclusion of trial, the learned Sessions Judge, Udaipur through judgment and order dated 6.11.2001 convicted the accused appellant for the offence under Section 376(1) and 379 IPC and sentenced him in the manner as stated above holding inter-alia:-
(i) That so far as the point of rape with the prosecutrix PW 1 Rosa Salient Aguilera is concerned, there was no dispute on that point as that fact is very well established by her statement and her injury report Ex.P/2 and the learned counsel appearing for the accused during trial had also conceded that fact.
(ii) That on point whether the rape was committed by the accused appellant with the prosecutrix or not the learned trial Judge placing reliance on identification evidence, which is found in the statement of PW 8 Rajeev, Bijlani, Judicial Magistrate (North), Udaipur, recovery of bag etc. and the statement of the prosecutrix PW 1 Rosa Salient Aguilera came to the conclusion that the accused appellant was the person who committed rape with the prosecutrix PW 1 Rosa Salient Aguilera and thus, the prosecution has proved its case beyond all reasonable doubts against the accused appellant for the offence under Sections 376(1) and 379 IPC.
Aggrieved from the said judgment and order dated 6.11.2001 passed by the learned Sessions Judge, Udaipur, this appeal has been filed by the accused appellant.
3. During the course of arguments, the learned counsel for the accused appellant has submitted that the commission of offence of rape with the prosecutrix PW 1 Rosa Salient Aguilera is not in dispute and he has not pressed this point, but he has raised the issue that the prosecution has not been able to prove the identity of the same, who committed rape with her and for that, he has raised the following submissions:-
(i) That the sole evidence, which led the investigation towards accused appellant, was the statement of PW 5 Fateh Singh, before whom it was alleged that the accused appellant made extra- judicial confession, but he has been declared hostile and therefore, the findings of the learned trial Judge that it was the accused appellant, who committed rape with the prosecutrix PW 1 Rosa Salient Aguilera are wholly erroneous one.
(ii) That the findings of guilt arrived at by the learned trial Judge against the accused appellant are solely based on the evidence of identification of the accused appellant by the prosecutrix PW 1 Rosa Salient Aguilera on 2.11.2000 before PW 8 Rajeev Bijlani, Judicial Magistrate (North), Udaipur, but that identification evidence should be treated as Nil in the present case as there is ample evidence on record that the accused appellant was not kept in parda and was shown to the prosecutrix before identification parade was held and thus, no reliance should have been placed by the learned trial Judge on identification evidence and when this evidence is excluded, there remains no evidence against the accused appellant and hence, he is entitled to acquittal.
(iii) That another evidence, which has been relied upon by the learned trial Judge, is that of recovery of bag at the instance of the accused appellant, but that evidence is also of no value as the prosecutrix and other witnesses have stated that the bag was found at the site and it was not recovered at the instance of the accused appellant. Therefore, in this case, there is no evidence connecting with the accused appellant with the commission of crime. Hence, he is entitled to acquittal.
4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Sessions Judge, Udaipur.
5. I have heard the learned counsel appearing for the accused appellant and the learned Public Prosecutor and gone through the record of the case.
6. Before proceeding further, first medical evidence of this case has to be seen.
7. PW 11 Dr. G.L. Dad has stated in his statement recorded in Court that on 30.10.2000 he was Medical Jurist in M.B. Hospital, Udaipur and on that day, he medically examined prosecutrix PW 1 Rosa Salient Aguilera and found the following injuries on her person:-
(1) Lacerated wound 1x0.25 cm x skin deep at posterior vaginal wall. Fresh bleeding present.
(2) Bruise 2x2cm right thing upper half medial side.
(3) Abrasion 1x0.75 cam at neeple of left side breast.
(4) Abrasions 2 in No. linear shaped 6x1/8cm on left side chest lower part going to lumber region.
(5) Multiple tiny abrasions and bruises of varying size 1x0.25 to 3x0.5 cm on left side chest back.
(6) Multiple tiny abrasions of varying size 1x0.25 to 2x0.5 cm on back of chest right side.
(7) Abrasion right knee 1x1 cm.
(8) Abrasions 2 in No. each 0.5x0.5 cm medical side left ankle.
(9) Rub abrasion 3x1cm right leg upper and leteral side.
(10) Abrasions 3 in No. Right thing 1x1/4 cm size each approx.
(11) Abrasions 3 in No. 3x1/4 cm each approx. Left of lateral region.
(12) Abrasion 1x1 cm left elbow.
He has further stated that there was evidence of recent penetration in the vagina of the prosecutrix. He has proved her injury report Ex.P/2.
8. Thus, from the statement of PW11 Dr. G.L. Dad, it is clear that the prosecutrix PW 1 Rosa Salient Aguilera received as many as 12 injuries in her person and she received injuries not only on private part but also on other parts of her body.
9. Before proceeding further, injuries of the accused appellant may also be mentioned here.
10. PW12 Dr. Anis Ahmad has stated in his statement recorded in Court that on 31.10.2000 he was Medical Jurist in M.B. Hospital, Udaipur and on that day, he medically examined the accused appellant and found the following injures on his person:-
(1) Abrasion 0.2x0.2cm left cheek.
(2) Abrasion 1x0.2 cm left side neck. He has proved the injury report Ex.P/23.
The relevancy of the injury report Ex.P/23 of the accused appellant would be discussed later on at appropriate place.
11. Before proceeding further, it may be stated here that so far as the fact of commission of offence of rape with the prosecutrix PW 1 Rose Salient Aguilera is concerned, the same is well proved from the statement of the prosecutrix PW 1 Rosa Salient Aguilera herself and her statement is fully corroborated by the medical evidence, which is found in the injury report Ex.P/2, which reveals that she received so many injuries on private part as well as on other parts of her body. When forcible sexual intercourse is committed, there would be injury on the person of the victim. Therefore, the injuries on the person of the prosecutrix especially on her private part in the present case have corroborative value.
Apart from this, the fact of commission of offence of rape with the prosecutrix PW 1 Rosa Salient Aguilera has not been disputed by the learned counsel for the accused appellant.
12. Thus, the findings of the learned Sessions Judge to the effect that rape was committed with the prosecutrix PW I Rosa Salient Aguilera are liable to be confirmed one.
13. However, the only issue in dispute is the identity of the accused appellant whether he is the same person, who committed the rape with the prosecutrix PW1 Rosa Salient Aguilera or not.
14. The learned Sessions Judge after placing reliance on the statement of the prosecutrix PW 1 Rosa Salient Aguilera and the evidence of identification parade and recovery of bag at the instance of the accused appellant has come to the conclusion that it was the accused appellant, who committed rape with the prosecutrix PW 1 Rosa Salient Aguilera.
15. The question for consideration is whether there above findings of the learned trial Judge that it was the accused appellant, who committed rape with the prosecutrix PW 1 Rosa Salient Aguilera are liable to be confirmed one or not.
Evidence of the prosecutrix PW 1 Rosa Salient Aguilera
16. Before examining the evidence of the prosecutrix PW 1 Rosa Salient Aguilera, some thing should be said about legal aspect with respect to appreciation of evidence of prosecutrix and the same can be summarised in the following manner:-
1. that the main evidence in all such cases it that of victim herself.
2. That corroboration of the testimony of the prosecutrix in rape case is not required as a rule of law. But, corroboration should ordinarily be required in the case of a woman having attained majority and who is habitual to sexual intercourse and is found in a compromising position, as in such cases there is likelihood of her having leveled such an accusation on account of instinct of self-preservation or when the probabilities factor is found to be out of time.
3. That corroboration may be by facts and circumstances.
4. That the injury on the person of the victim, especially her private parts, had corroborative value.
5. That if the evidence of the victim does not suffer from any basic infirmity and the probabilities factor does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming.
17. In State of Punjab v. Gurmit Singh, AIR 1996 SC 1393, the Hon'ble Supreme Court has held that the testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.
Burden of proof
18. In a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and who in a rape case the victim and her mother have falsely implicated the accused. The evidence of prosecution witnesses cannot be accepted merely because an accused person has not been able ,to say as to why they have come forward to depose against him. However great the suspicion against the accused and however strong the moral belief and conviction of the Judge, unless the offence of the accused is established beyond reasonable doubt or beyond the possibility of reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring the offence home to the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt.
19. If the victim is unwilling to yield to sexual intercourse, she is expected to receive injuries on her person. The absence of injuries on the body of the prosecutrix, generally, gives rise to an inference that she was consenting party to coitus. Where the prosecutrix had received multiple injuries on the various parts of her body it indicated that she offered resistance when she was subjected to sexual intercourse. The absence of injuries either on the accused or on the prosecutrix shown that the prosecutrix did not resist but absence of injuries is not by itself sufficient to hold that the prosecutrix was a consenting party.
20. It may be stated here that in a rape case, it is also the duty of the prosecution to get the accused medically examined to ensure whether rape was committed by him or not and where the medical evidence reveals that accused had injuries on his person, such evidence is also a valuable piece of evidence connecting the accused with the commission of crime.
21. In the light of the above legal position, the statement of the prosecutrix PW 1 Rosa Salient Aguilera is being examined.
22. The prosecutrix PW 1 Rosa Salient Aguilera in her examination-in-chief has stated:-
(i) That on 30.10.2000 at about 6.00 PM, she went to the market and near City Place, Udaipur, a man was standing with cycle and that man asked about her caste and country and so, she gave reply to him.
(ii) That when she was walking (present accused appellant, who was recognized in Court also) followed her. She asked him not to follow her, but he followed her continuously.
(iii) That she asked the accused appellant to show the way of the hotel, but he took her towards wrong direction and he took her to the part where she lost the way and when she could not get the gate, she asked him to leave her alone and thereupon, he showed the way but that way was wrong and gate was found closed.
(iv) That when she was returning back, the accused appellant asked for a cigarette, which she gave to him and thereafter, he caughthold her and took her towards bushes and at that time, she cried for help, but nobody was there to help her and at that time, it was very dark and there was no park light near bushes.
(v) That thereafter, the accused appellant put his hand on her mouth and nose strongly and torn her shirt. She tried to escape from his hands, but he strongly caughthold her and took her towards bushes and after putting off her clothes, he bite her breasts and kissed her all body and at that time, she tried to escape from the hands of the accused appellant, but he took her further towards bushes and did not leave her and thereafter, the accused appellant threw her trouser and made her completely naked and then penetrated his penis into her vagina two or three times and finished within three minutes,
(vi) That thereafter, the accused appellant asked her to wait for ten minutes and then, he ran away and disappeared.
(vii) That she searched her clothes, but could not find the same and she was shivering and crying and after seeing some light, she went in a naked condition there and that place was temple, where she found two men and she asked them for clothes and they gave lungi to her. One of them went outside and came back with two ladies and then, she went to the house of those ladies with them and they gave kurta and other clothes to her, which she put on.
(viii) That she had left one bag in the park and she went to the police station with ladies and lodged the report Ex.P/1.
(ix) That thereafter, she was taken to the hospital for medical examination.
(x) That she received injuries all over her body including vagina:
(xi) That on the same day, police also recovered her clothes, bag etc. from the park and prepared recovery memo Ex.P/4.
She was cross-examined at length and in cross-examination, she has admitted the following facts:-
(i) That when the accused appellant met her in the market, there was light.
(ii) That after the alleged incident, she saw the accused appellant first time in jail at the time of identification parade and earlier she did not see the accused appellant at police station.
(iii) That she has categorically denied the fact that before identification parade, the accused appellant was shown to her.
(iv) That the accused appellant asked questions upon questions and she gave reply to him friendly.
(v) That she has also denied the suggestion put forward by the learned counsel for the accused appellant appearing in trial court that the accused appellant had sex with her with her consent.
23. From the statement of the prosecutrix PW 1 Rosa Salient Aguilera, one fact has become very much clear that no doubt at the time when the alleged incident took place in the part, there was darkness and nobody was there, but the person, who committed rape with her was accused appellant, who met her first in the market and at that time, she was in a position to see him easily as between the prosecutrix PW 1 Rosa Salient Aguilera and the accused appellant, some conversations took place and at that time, there was light and he followed her from the market upto the part. Thus, in view of this fact, it can easily be concluded that the face of the accused appellant had become familiar to the prosecutrix PW 1 Rosa Salient Aguilera just before the rape was committed with her in the part. Furthermore, she has categorically stated that the accused appellant committed rape with her and she identified the accused appellant in the identification parade and in the Court and since she did not know the name of the accused appellant, therefore, she described the personality of the accused appellant in her report Ex.P/1
24. Apart from this, she has further stated that she offered resistance and tried her best to save herself from the clutches of the accused appellant, when the accused appellant committed rape with her and during struggle, she received injuries on private part as well as other parts of her body and that statement is corroborated from the medical evidence, which is found in the injury report Ex.P/2, which shows that she received injuries on private as well as other parts of her body.
25. Furthermore, during struggle, there is possibility that the accused appellant might have received injuries and there is injury report of the accused appellant Ex.P/23, which shows that he received two injuries and these injuries corroborate the statement of the prosecutrix PW 1 Rosa Salient Aguilera that it was the accused appellant, who committed rape with her.
26. Moreover, ordinarily a woman, who has been raped, would not forget the face of the person, who had committed forcible intercourse with her and when she has categorically stated that such person had committed rape with her, her statement should be accepted. In the present case, since the prosecutrix PW 1 Rosa Salient Aguilera has categorically stated that it was the accused appellant, who committed rape, therefore, her statement should be accepted, especially when there is nothing on record to suggest that she was telling He or falsely implicating the accused appellant and since she is a foreigner, it cannot reasonably be inferred that she has any enmity with the accused appellant.
27. Thus, in view of the above, the statement of the prosecutrix PW 1 Rosa Salient Aguilera that it was the accused appellant, who committed rape with her appears to be reliable and trustworthy and therefore, the learned Sessions Judge was right in placing reliance on her statement while holding the accused appellant guilty for the offence under Section 376(1) IPC.
Evidence of identification .
28. Before examining the evidence of identification, something should be said on identification parade.
On identification parade
29. In State of Maharashtra v. Suresh, 2000(1) SCC 471, the Hon'ble Supreme Court observed that test identification parades have two objects. First to enable the witnesses to satisfy themselves that the person whom they suspect is really the one who was seen by them in connection with the commission of the crime. The second object is the satisfaction of the investigating authorities to ensure that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. It was to be ensured while conducting a test identification parade that the object of the parade is achieved. In case of dilution of modalities in a parade it should be seen that relaxation does not impair the purpose of the parade. In that case, the safeguards adopted by the executive Magistrate were quite sufficient for ensuring the conduct of the parade in a reasonably foolproof manner.
30. Although in assessing the evidence of identification it is neither possible nor desirable to lay down any hard and fast rule, certain guiding principles can be stated. Evidence of identification can be accepted only if the court is satisfied:-
(1) That the witness had atleast a fair, if not good opportunity of seeing the dacoits which naturally raises the question of sufficiency of light and proximity of the witness to. the offender.
(2) That the identification parade was held within a reasonable time of incident.
(3) That the witness has the reliable powers of observation to be judged from the fact that the parade was not made too easy for him to pick out the suspect and that he did not commit so many mistakes that it would create any doubt in the minds of reasonable men.
(4) That the statement of the witnesses that he did not know the suspect from before is believable.
(5) That the witnesses were not given an opportunity to see the accused after their arrest and that the investigation conducted in the case inspires confidence.
31. One of the methods for establishing the identity of the accused is test identification parade. Its evidence is received under Section 9 of the Indian Evidence Act.
32. Even conviction can be based on the evidence of test identification parade alone when the Court concludes that the testimony of identification witnesses was beyond suspicion. But it is a rule of prudence and not a rule of law.
33. Keeping the above legal position in mind, the evidence of identification of (his case is being examined.
34. In the present case, the prosecutrix PW 1 Rosa Salient Aguilera identified the accused appellant in the identification parade conducted in Jail by PW 8 Rajeev Bijlani, Judicial Magistrate (North), Udaipur and placing reliance on identification evidence, the learned Sessions Judge came to the conclusion that it was the accused appellant, who committed rape with her.
35. The learned counsel appearing for the accused appellant has assailed the evidence of identification on the following grounds:-
(i) That P?W 3 Kamal Nayan, who is witness of arrest memo of accused appellant Ex.P/9, has stated in his cross-examination that he alongwith PW4 Yogesh Vaishnav went to the police station where the prosecutrix PW 1 Rosa Salient Aguilera was also there, but at that time, that face of the accused appellant was not covered. Similar is the statement of PW 4 Yogesh Vaishnav, who has been declared hostile.
(ii) That PW 5 Fateh Singh, who was witness of extra judicial confession and who has been declared hostile, who also admitted in cross-examination that when he saw the accused appellant in the Police Station, the prosecutrix PW 1 Rosa Salient Aguilera was also there.
(iii) That PW 6 Sanjay Mundra is another witness, who was at the relevant time, Manager of the Lalghat Guest House, where the prosecutrix was staying. He has also stated that when the police came in the hotel alongwith the accused appellant, his face was not covered.
(iv) That PW 8 Rajeev Bijlani, Judicial Magistrate (North), Udaipur while conducting identification parade has observed that he did not find any special features on the face and body of the accused appellant, while the injury report of the accused appellant Ex.P/23 states otherwise. Therefore, no importance should have been attached to the identification parade conducted by PW 8 Rajeev Bijlani.
36. I have given my thoughtful consideration to this aspect of the matter.
37. In the present case, the identification parade was got conducted by PW 8 Rajeev Bijlani, judicial Magistrate (North), Udaipur in jail. In his statement recorded in Court, he has stated that on 2.11.2000 he conducted the identification parade of the accused appellant in jail and in the identification parade, he mixed 10 persons, who names are mentioned in Ex.P/17 and the prosecutrix PW 1 Rosa Salient Aguilera identified the accused appellant properly and he has proved the identification parade memo Ex.P/5.
This witness was cross-examined and in his cross-examination, he has frankly admitted that it was his first identification parade.
38. A perusal of the identification parade memo Magistrate (North), Udaipur shows that the prosecutrix PW 1 Rosa Salient Aguifera identified the accused appellant.
39. In my considered opinion, looking to the statement of the prosecutrix PW 1 Rosa Salient Aguilera, when this fact has come on record that the accused appellant was in the company of the prosecutrix PW 12 Rosa Salient Aguilera from the evening and he was following her and on being asked, she gave a cigarette to the accused appellant and further, when the accused appellant first met with her in the market, there was some light and some conversations took place between her and the accused appellant and therefore, in these circumstances, it can easily be concluded that she had full opportunity to observe his face. Sine she was a Spanish girl, she could not speak Hindi and did not know the name of the accused appellant, therefore, in her report Ex.P/1, she has given the description of the personality of the accused appellant.
40. Furthermore, in case of identification of accused, a distinction has to be drawn between the case (i) where the accused was in the company of the victim for some time prior to the actual incident and (ii) where the accused was found in the company of the victim at the time of actual occurrence, 1 former case, the victim has the opportunity to see the fact of the accused while in the latter case, this facility was not available to the victim.
41. In the present case, no doubt there was darkness at the time when the accused appellant committed rape with the prosecutrix PW1 Rosa Salient Aguilera, but since the accused appellant was following her from the market and both had some conversations with each other and not only this, on demand by the accused appellant, she offered him a cigarette, therefore, in these circumstance s, she had fully opportunity to observe the face of the accused appellant, but the name of the accused appellant was not known to her as she was a Spanish girl and had the name of the accused appellant would have been in her knowledge, she would have mentioned his name in her report ex.P/1, but since his name was not known to her, therefore, she gave description of the personality of the accused appellant in her report Ex.P/1.
42. In view of the above, if the prosecutrix PW1 Rosa Salient Aguilera had identified the accused appellant in the identification parade conducted in jail by PW 8 Rajeev Bljlani, Judicial Magistrate, it does not appear that she identified the accused appellant wrongly or under-any pressure of anybody. Because the fact of the accused appellant was very much in her mind, but since the name of the accused appellant was not known to her, therefore, she identified the accused appellant in the identification parade conducted in jail by PW 8 Rajeev Bijlani, Judicial Magistrate. Even for the sake of argument, the accused appellant was shown to her even before the identification parade was held, the present identification parade would not be affected in any manner. Had the accused appellant would have met the prosecutrix PW I Rosa Salient Aguilera for the first time in the park where there was darkness, the argument of the learned counsel for the accused appellant that because of darkness, she could not recognize the face of the accused appellant would have been appreciated, but the position in the present case is otherwise and therefore, this argument has no meaning.
43. Apart from this, ordinarily a woman, who has been raped, would not forget the face of the person, who had committed forcible intercourse with her and the evidence of identification had a corroborative value and in my considered opinion, even in absence of identification parade, the evidence of the prosecutrix, who categorically states that such man has committed rape with her, her statement should be accepted. The victim of a rape has a more incentive to observe and memorise the offender's appearance than the victim of a mere theft or robbery.
Since the prosecutrix PW 1 Rosa Salient Aguilera is a matured girl, therefore, she could not forget that man, who had committed forcible intercourse with her. In these circumstances, from this point of view also, her recognition of the accused appellant at the time of identification parade cannot be doubted in any manner.
44. Apart from this, in the present case, the alleged incident took place on 30.10.2000 and the identification parade was got conducted on 2.11.2000 in jail by PW 8 Rajeev Bijlani, Judicial Magistrate and therefore, it can easily be concluded that the identification parade was held within a reasonable time of the alleged incident.
45. Since the prosecutrix PW1 Rosa Salient Aguilera was a Spanish girl, therefore, the question that she knew the accused appellant earlier to the alleged incident does not arise.
46. So far as the question that after the arrest of the accused appellant, he was not kept in parda and the prosecutrix PW 1 Rosa Salient Aguilera was given opportunity of seeing the accused appellant before identification parade was held is concerned, it may be stated here that the prosecutrix PW 1 Rosa Salient Aguilera has categorically denied this fact that the accused appellant was shown to her before conducting the identification parade in jail..
In the arrest memo Ex.P/9, there is a clear mention of the fact that the accused appellant was kept in parda and therefore, if witnesses, namely, PW 3 Kamal Nayan Joshi and PW 4 Yogesh Vaishnav state otherwise, it would not affect the case of the prosecution, especially when these two witnesses have been declared hostile and therefore, it can be said that they have been won over by the accused appellant.
So far as the statement of PW 5 Fateh Singh is concerned, he was a star witness of extra-judicial confession alleged to have been made before him by the accused appellant, but since he has been declared hostile, therefore, his version that the accused appellant was not kept in parade is also not believable in the same manner as the statements of PW 3 Kamal Nayan Joshi and PW4 Yogesh Vaishnav are not believed.
47. For the reasons stated above, the argument of the learned counsel for the accused appellant that since the accused appellant was shown to the prosecutrix PW1 Rosa Salient Aguilera before conducting identification parade, therefore, the identification parade conducted in jail was not proper and false one, stands rejected and the findings of the learned Sessions Judge that the identification parade was properly conducted in the present case and the prosecutrix PW1 Rosa Salient Aguilera identified the accused appellant correctly are liable to be confirmed One.
48. So far as the argument that since PW5 Fateh Singh before whom extra-judicial confession alleged to have been made by the accused appellant, has been declared hostile, therefore, in absence of his evidence, the case of the prosecution should have not been believed is concerned, in my considered opinion, this argument has no value because apart from that evidence, there are so many evidence in this case, which connects the accused appellant with the commission of crime for the offence under Section 376(1) IPC.
49. Another piece of evidence which is against the accused appellant is that when he was got arrested by PW 10 Dharmendra Singh, PW 10 Dharmendra Singh through fard Ex.P/10 seized the underwear of the accused appellant in presence of PW 3 Kamal Nayan and PW 4 Yogesh Vaishnav and that underwear was stained with semen. The FSL report Ex.P/22 establishes that fact that human semen was detected on underwear. The incident took place on 30.10.2000 and the accused appellant was arrested on 31.10.2000 and therefore, the possibility that he was wearing the same underwear, which he was wearing at the time of alleged occurrence cannot be ruled out and from this point of view also, it gives a clue that the accused appellant was the same person, who committed rape with the prosecutrix PW 1 Rosa Salient Aguilera.
On evidence of recovery
50. So-far as the recovery of bag is concerned, the prosecutrix PW1 Rosa Salient Aguilera has clearly stated in her statement that her clothes and bag were recovered from the park and two witnesses of recovery memo Ex.P/12 are PW 3 Kamal Nayan and PW 4 Yogesh Vaishnat and both of them have been declared hostile and therefore, recovery of bag at the instance of the accused appellant appears to be doubtful. But, it would not affect the case of the prosecution on the point that it was the accused appellant, who committed the rape with the prosecutrix PW 1 Rosa Salient Aguilera.
51. In view of the above, since the recovery of bag at the instance of the accused appellant cannot be held to be proved, therefore, the accused appellant cannot be convicted for the offence under Section 379 IPC and the findings of the learned Sessions Judge convicting the accused appellant for the offence under Section 379 IPC are liable to be set aside.
52. For the reasons stated above, it is held that the prosecution has proved its case beyond all reasonable doubts against the accused appellant for the offence under Section 376(1) IPC and there is no scope for any doubt. Apart from this, the conscience of the Court is satisfied in this case that it was the accused appellant, who committed the rape with the prosecutrix PW 1 Rosa Salient Aguilera. Therefore, the findings of the learned Sessions Judge convicting the accused appellant for the offence under Section 376(1) IPC are liable to be confirmed.
However, the prosecution has not been able to prove the case beyond reasonable doubt against the accused appellant for the offence under Section 379 IPC and therefore, the findings of the learned Sessions Judge convicting the accused appellant for the offence under Section 379 IPC are liable to be set aside and he is entitled to acquittal for the offence under Section 379 IPC.
Accordingly, this appeal filed by the accused appellant Raju @ Rajkumar @ Rajesh Joshi is partly allowed in the following manner:-
(1) That the appeal against conviction of the accused appellant for the offence under Section 376(1) IPC is dismissed, after confirming the judgment and order dated 6.11.2001 passed by the learned Sessions Judge, Udaipur convicting the accused appellant for the offence under Section 376(1) IPC.
(2) That however the appeal against conviction of the accused appellant for the offence under Section 379 IPC is allowed and the judgment and order dated 6.11.2001 passed by the learned Sessions Judge, Udaipur convicting the accused appellant for the offence under Section 379 IPC are set aside and he is acquitted of the charge for the offence under Section 379 IPC.