Gauhati High Court
Somnath Deka And Anr. vs State Of Assam on 20 September, 2006
Equivalent citations: 2007(1)GLT53
Author: I.A. Ansari
Bench: I.A. Ansari
JUDGMENT I.A. Ansari, J.
1. By this common judgment and order, I propose to dispose of the two appeals, namely, Crl. Appeal Nos. 114/2005 and 116/2005, for, both the appeals have arisen out of the judgment and order, dated 20.5.2005, passed, in Sessions Case No. 6(BGN)2002, by the learned Additional Sessions Judge (Adhoc), Bongaigaon. While the accused-appellant, Somnath Deka, stands convicted under Section 376 IPC, the accused-appellant, Rajib Dasgupta, stands convicted under Section 376 read with Section 109 IPC; but both of them stand sentenced to rigorous imprisonment for 10 years with fine of Rs. 5,000/- each and to suffer, in default of payment of fine, rigorous imprisonment for two months.
2. The case against the accused-appellants, as unfolded at the trial, may, in brief, be stated as follows:
On 6.3.2001, at about 5.30 p.m., Smti SS, mother of the alleged victim P, went along with her son, NS, to their local market. Her husband, BS, had not come back home from work till then. While so leaving her home, Smti SS left behind her 13 years old daughter, P, who was a student of Class-VI, and her younger son PS, aged about 5 years. Taking advantage of the absence of P's mother and other elder male members of her family, accused Somnath, accompanied by accused Rajib, came, to the house of SS on a motorcycle, bearing registration No. AMP 1155, which had been borrowed by them from the elder brother of Zakir Hussain, owner of the said motor cycle. Parking the motorcycle in front of the house of Smti. SS, both the accused entered the compound of the said house, went near P and asked her about someone's address. Though P told them that she was not aware of the address of the person, whose address the accused had been enquiring about, accused Somnath caught hold of P, dragged her inside the house, threw her on a bed, closed her mouth with his hands making her unable to raise cry for help, got up on her and forcibly had sexual intercourse with her. During the time, when accused Somnath was forcibly having sexual intercourse with P, accused Rajib was not present there; but he kept guard and when accused Rajib noticed Smti. SS and her son, NS, coming home, he came to the room, where accused Somnath was present, and told him that 'Bhaiti' (i.e. brother of P) was coming. On hearing that P's brother was coming, Somnath went out of the room with Rajib; but before leaving the room, he threatened P and, then, both the accused went running to the said motorcycle and fled away. However, while the said motorcycle was lying parked in front of the house of Smti. SS, the same had been noticed by MT, a young boy of class-VII and a nephew of Smti S.S. In the light of the lamp, which was kept lit at the varanda of Smti SS, Smti SS too and her son, NS, saw the said motor cycle and also noticed that its number was AMP 1155. When the two accused were running away with the said motorcycle, they were noticed by Smti SS and her elder son, NS, there being sufficient light outside the house of SS. When Smti SS arrived home, she was reported about the occurrence by her daughter, P. Shortly thereafter, when SS's husband, BS, reached home, he was reported about the occurrence by his wife and also by the victim. Smti SS, then, accompanied by her husband and also the victim, went to Bongaigaon Police Station and lodged their FIR. Police got the victim medically examined on that very day and when Smti SS returned to the police station, they found that the police had already picked up the two accused. The doctor opined to the effect that the victim was below 16 years of age and she had been sexually abused. On the very day of the occurrence, at about 9 p.m., police came to the house of Zakir and seized the said motor cycle and Zakir's elder brother, Dul Ahmed, confirmed that the said motor cycle had been borrowed and taken away by accused Rajib at about 4 'O' clock in the afternoon on that very day and that accused Rajib had returned the said motor cycle at about 7 p.m. Based on the FIR, which Smti SS had lodged, Bongaigaon Police Station Case No. 44 of 2001, under Section 376/34 IPC, was registered against both the accused. On completion of investigation, police laid charge against accused Somanath under Section 376 IPC and against accused Rajib under Section 376 read with Section 109 IPC. To the charges framed accordingly at the trial, the two accused pleaded not guilty to the respective charges framed against them.
3. In support of their case, prosecution examined altogether 9 witnesses. The accused were, then, examined under Section 313 Cr. P.C. and in their examination aforementioned, both of them denied that they had committed the offences alleged to have been committed by them, the case of the defence being that of denial. No evidence was adduced by the defence. Having, however, found the accused persons guilty of the offences charged with, the learned trial Court convicted them accordingly and passed sentence against them as indicated hereinabove. Aggrieved by their conviction and the sentence passed against them, the two accused have preferred the present appeal.
4. I have heard Mr. J.M. Choudhury, learned Senior counsel, appearing on behalf of the accused-appellants, and Mr. B.S. Sinha, learned Additional Public Prosecutor, Assam.
5. While considering the evidence on record, it is important to bear in mind that a victim of sexual assault does not stand on the same footing as does an accomplice. Hence, her evidence does not need corroboration. If her evidence is found believable and trustworthy, no further corroboration may be insisted. (See State of H.P. v. Raj and Anr. ). Clarified the Supreme Court, in State of Punjab v. Gurmit Singh, , that if the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars and, if for some reason, the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence, which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. Further observed the Supreme Court, in Gurmit Singh (supra), that the testimony of a prosecutrix must be appreciated in the background of the entire case and the trial Court must remain alive to its responsibility and be sensitive, while dealing with cases involving sexual molestation.
6. Referring to State of Maharastra v. Chandraprakash Kewalchand Jain, , the Supreme Court, in Gurmit Singh (supra), held:
The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman comes 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 case 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 fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness 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 to 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 (Emphasis is supplied)
7. Bearing in mind the principles, which govern the appreciation of evidence of a victim of sexual assault, let me, first, come to the evidence of the alleged victim (PW 4).
8. While considering the evidence of PW4, what may be kept in mind is that the identification of the two accused-appellants were, admittedly, not known to PW4 and/or to the members of her family. What may also be kept in mind is that there is no dispute that at the time of the alleged occurrence, the alleged victim, (PW4), was in Class VI and she was aged less than 16 years. Hence, sexual intercourse, if any, with her by accused Somnath would, if true, amount to rape in terms of the definition of rape contained in Section 375 IPC irrespective of the fact whether such sexual intercourse was with her consent or without her consent.
9. Bearing in mind what has been indicated hereinabove, let me, now, discuss the evidence of PW 4. According to her evidence, on the day of the occurrence, at about 5.30 p.m., when her mother, accompanied by her elder brother, had gone out of their house and she (PW4) was present at her house with her 5 years old brother, the two accused came on a motorcycle and parking the same in front of her house, they came to her and one of them asked her about the address of a person and as she told them that she was not aware of any such' address, accused, whom she, later on, came to know as Somnath, entered into their house, forcibly dragged her into a room, threw her on a bed, put his hands on her mouth, removed her clothes and forcibly had sexual intercourse with her. While accused Somnath was still present in the said room, accused Rajib came there and told Somnath that 'Bhaiti' (i.e., PW4's elder brother) was coming and, on hearing the same, both the accused left; but before leaving the room, accused Somnath threatened her. It is in the evidence of PW 4 that while the two accused were talking to each other, she could learn their names. It is also in the evidence of PW4 that when her mother and her elder brother came home, she reported to them about the occurrence. P W4 has deposed that her mother took her to Bongaigaon Police Station, where she was interrogated by police and the police got her medically examined.
10. I have minutely scrutinized the cross-examination of PW4 by the defence; but I notice that nothing, in particular, was elicited from her cross-examination by the defence to show that what she had deposed was untrue or false. In her cross examination, PW 4 has admitted that she did not know the two accused; but she, at the same time, clarified that while accused Somnath and Rajib were talking to each other, the names by which they had called each other, she learnt as to what the names of these two persons were. That is to say, from the names by which the two accused had addressed or called each other, PW4 came to know that the boy, who had sexual intercourse with her, was Somnath and the other one, who had kept guard at the house, was Rajib.
11. It has been pointed out, at the time of hearing of the present appeal, on behalf of the accused-appellants, that according to PW 4, she had cried for help; but her brother, PS, who was 5 years old, had not come into the room, where rape was committed. This is, contends Mr. Choudhury, unbelievable and shows that PW 4 is not a reliable witness. While considering this grievance, it is necessary to note that there is no cogent and concrete evidence as to where exactly PS was at the time, when accused Somnath had, according to the evidence of PW4, subjected her to rape and when it is also not discernible from the evidence on record as to how PW4's brother had been kept busy and away from the room, where the alleged occurrence took place, the evidence of PW4 cannot be discarded. It is also pointed out, on behalf of the accused-appellants that according to PW4, accused Rajib was in the outer-room of her house; but she, at another place, deposed that Rajib was on the motorcycle. While considering this aspect of PW4's evidence, it is important to note that PW 4 remained all along in the room; hence, her evidence as to where accused Rajib was, at the time, when the alleged occurrence took place, can be nothing, but presumptuous. Hence, merely on the ground that PW 4 has, at one stage, deposed that Rajib was in the outer-room of their house and, at another place, she claimed that Rajib was sitting on the motorcycle cannot make the Court discard her evidence as concocted or untrue.
12. Apart from the fact that there is no dispute that PW4 was a minor and was subjected to rape, PW5 Dr. B. Baishya, who had, admittedly, examined P, on 6.3.2001, at about 10.30 p.m., found as follows:
Labia minorae--Lacerated and swollen, (Right side).
Hymen--Lacerated.
Fourchette--Fresh abrasion about 1 cm. in diameter, bleeding present.
13. Based on the above findings, PW 5 opined that P was sexually abused. The evidence, so given by PW 5, could not be shaken, in cross-examination, by the defence except that the defence elicited from PW3 that the injury, found on the hymen of PW4, could have been caused due to penetration by any hard substance. However, in the face of the unshaken evidence given by PW4 that she was forcibly subjected to sexual intercourse and the medical evidence on record fully corroborate the evidence of PW4, one cannot help but told that the learned trial Court correctly concluded that PW4 had, indeed, been subjected to rape.
14. What is, now, extremely important to note is that the evidence of PW4 shows that the defence merely asserted that the two accused had not come to the house of PW4. While considering this suggestion of the defence put to PW4, it is of immense importance to note that the fact that PW4 was subjected to rape inside her house at the time, when her mother and her elder brother had gone to the market, and the fact that her father was also not present at home has not been disputed at all by the defence. This apart, medical evidence on record, as discussed above, substantially corroborates the evidence of PW4 that she had been subjected to rape. Moreover, I have already indicated hereinabove that when PW 4 was, admittedly, a minor, the question as to whether the sexual intercourse, which accused Somnath allegedly had with PW4, was with her consent or without her consent is wholly immaterial.
15. Thus, in the face of the undisputed evidence of PW4 that she had been subjected to rape inside her house in the absence of her parents and elder brother, the only question, which remains to be determined is as to whether it was accused Somnath, who had subjected her to rape, and whether accused Rajib had aided the offence of commission of rape committed on PW4 by accused Somnath or whether some other person or persons were involved in the commission of the offence of rape on PW4.
16. Bearing in mind, therefore, the question, posed above, as to whether the two accused had come to the house of PW4 as claimed by her (PW4), let me, now, turn to the evidence of PW3, a nephew of BS, who was, as already indicated above, a student of Class VII at the relevant point of time. While considering the evidence of PW3, it is important to bear in mind that the house of PW3 is, admittedly, situated in front of the house PW4. It is in the evidence of PW3 that while he was standing in front of his house, in the evening, he saw two boys coming on a motorcycle, getting down from the motorcycle in front of the house of PW4, the number of the motorcycle being AMP 1155. I may pause here to point out that PW3 identified the two accused at the trial as the said two boys. It is also in the evidence of PW3 that he, thereafter, left for the market and when he returned after about 45 minutes, he saw both the accused hurriedly getting up on the motorcycle and running away. PW4 has deposed that later on, he came to learn that the two accused had committed rape on P (PW4).
17. Though PW3 was put to cross-examination by the defence, nothing could be elicited by the defence to show that this witness's evidence cannot be relied upon. Far from this, the evidence of PW3 is that after about half an hour of his returning home, police had arrived there. In such a situation, it is not unlikely that PW3 would remember the registration number of the said motorcycle as 1155, which is a number likely to be remembered, and when the occurrence came to be known to PVV3 shortly after he had seen the boys running away, it was quite possible that he would remember the said two boys, whom he, eventually, identified, at the trial, in the Court-room. In these circumstances, it was not impossible for PW3 to remember the faces of the said two boys or the number of the said motorcycle.
18. What is, now, most curious to note is that while cross-examining PW3, the defence never disputed his evidence that he had seen two boys coming on a motorcycle, parking the same in front of P's house and while he was returning from market, after about 45 minutes, he saw the same boys, hurriedly, running away on the said motorcycle. In such a situation, the mere fact that there was no TIP held, the assertion of PW3 to the effect that he had seen the two accused, as described hereinbefore, cannot be rejected as unsafe. This apart, and as already pointed out above, the defence did not dispute the fact that PW3 had seen the two boys coming on a motorcycle, bearing No. AMP 1155, to the house of P, getting down from the motorcycle and that while PW3 was returning back home from the market, he saw the same boys running away on the motorcycle. Thus, the fact that two boys came, on a motorcycle, bearing No. AMP 1155, to the house of PW4 and were seen running away after about 45 minutes, are admitted by the defence. The only question, therefore, which remains to be decided is as to whether the present two accused-appellants are the ones, whom PW3 had seen. In this regard, the defence did not even specifically deny PW3's evidence that the two accused had not been seen by him. An omnibus suggestion was offered to PW3 by the defence that whatever he had deposed had been deposed to by him according to what had been instructed by his maternal uncle, i.e., PW4's father. Such suggestion, having been denied by PW3, can be of no avail to the defence unless the defence probablizes such suggestion with the help of the evidence on record. The defence has, however, miserably failed to probablise the suggestion offered to PW3 that his evidence is nothing, but what he had been tutored by PW4's father to depose.
19. Let me, now refer to the evidence of PW7, who is a businessman and elder brother of Zakir Hussain, owner of the said motorcycle. According to the evidence of this witness, one day, at about 4 p.m., accused Rajib came to their house and borrowed Zakir's said motorcycle and at about 7 p.m., accused Rajib brought back the motorcycle and at about 9 p.m., on that very day, police arrived there and seized the said motor cycle by Ext. 6. This apart, the evidence of PW7 is fully corroborated by PW6, who has deposed to the effect that at about 9 p.m., on that day, police came to his house and, accompanied by him, police came to the house of Zakir's elder brother and seized the motorcycle bearing registration No. AMP 1155. There is absolutely nothing, in the cross-examination of PWs 6 and 7, to show that what they deposed was untrue or false. In fact, some suggestions were offered by the defence to these two witnesses to show that their evidence, given in the Court, is, somewhat, different from what they had stated before the police. No such contradisction was, however, confirmed by the Investigating Officer; hence, the contradicting, in their previous statements, as suggested by the defence, remained not proved, Considered thus, it is clear that the evidence of these two witnesses remained completely unshaken and their evidence lends great credibility to the evidence of PW3 that he had seen two boys coming, on motorcycle No. AMP 1155, to the house of his maternal uncle in the manner as described by him and as discussed hereinbefore and that the said two boys left the said house by the same motorcycle. Therefore, unless shown otherwise, there can be no escape from the conclusion that accused Rajib did come, on the said motorcycle, to the house of P with another boy and fled away from there in the manner as has been pointed out hereinabove.
20. Closely lending support to the evidence of her daughter (PW4) and her nephew (PW3), PW1 has deposed that on the day of the occurrence, when her husband was away from home on duty, she, accompanied by her elder son, NS, left her home, at about 5.30 p.m., for the local market leaving behind P and her 5 year old son, PS, at home and when she returned, after about 45 minutes from the market, she noticed a motorcycle lying parked in front of her house. It is in the evidence of PW1 that it was her son, who, first, entered the house and she followed him and at the moment, when her son was entering into the house, she found the two accused getting up on the motorcycle and moving away and when they entered into the house, they found P crying and, upon query made by them, PW4 told them that while Rajib was keeping guard, accused Somnath had committed rape on her. On hearing what PW4 had reported, when PW1 came running out of the house, she found that the two accused had already fled away with their motorcycle. It is in the evidence of PW1 that she, however, remembered the number of the motorcycle, which was AMP 1155, and that she had noticed the number in the focus of the streetlight and also the electric bulb, which was kept lit at the veranda of her house. It is in the evidence of PW1 that shortly thereafter, her husband came home and he too was reported about the occurrence, whereupon she did and her husband, along with her daughter P, went to the police station and she (PW1) lodged an FIR there and, then, PW4 was examined by doctor and when they returned to the police station from the doctor, they found that both the accused had already been apprehended by the police and brought to the police station.
21. Broadly in tune with the evidence of PW1, PW2 has given evidence to the effect that on reaching home, he was reported about the occurrence, he came with his wife and his victim daughter to the police station and reported the occurrence to the police and after lodging the FIR, they went to the doctor and when they came back from the doctor to the police station, both the accused had already been apprehended and brought to the police station. From the cross examination of PWs 1 and 2, the defence has elicited nothing to show that what they had deposed was untrue or false.
22. It has been submitted, on behalf of the accused-appellants, at the time of hearing of the present appeal, that the FIR, in the present case, mentions not only the complete name, but even titles of the two accused-appellants and that the FIR also mentions as to whose sons the two accused are. This shows, contends Mr. Choudhury, that the police had first apprehended the two accused and, then, their names were mentioned in the FIR.
23. While considering the above aspect of the submission of the defence, what needs to be noted is that when the informant, namely, PW1 was put under cross-examination by the defence, the defence did not make any inquiry from PW1 as to how she had mentioned the names of the two accused along with their titles in the FIR, though PW1 was the best witness to answer the inquiry as to how she happened to mention the names of the two accused with their title, etc., in the FIR. Having given no opportunity to PW1 to explain how she happened to incorporate the names aforementioned, no adverse inference can, now, be drawn against the prosecution, particularly, when the unshaken evidence of the alleged victim, i.e., PW4, is that from the names, which the two accused had used for addressing or calling each other, she had gathered that their names were Somnath and Rajib.
24. When it was pointed out by this Court to Mr. Choudhury that the defence could have questioned, but chose not to question, the informant, namely, W1 as to how she happened to mention the names of the two accused with their respective titles in the FIR, Mr. Choudhury submits that cross-examination is not the only way to impeach the credibility of a prosecution witness. Though the submission, so made, is, as a proposition of law, correct, the fact remains that it is in the facts and circumstances of a given case that the court has to determine the effect of omission of the defence to put a pertinent or material question to a witness under cross-examination by the defence at the trial. When an accused is found not to have put a question to a witness, who could have explained his or her writings, which forms the subject-matter of a trial, the court may infer that the defence did not deliberately put the question to the witness so that the witness can be impeached or the prosecution's case can be shaken without giving the witness concerned or the informant an opportunity of explaining as to how a particular fact or a particular name happens to be found mentioned in the FIR. In the case at hand, it was PW1 and PW1 alone, who could have clarified as to how she happened to mention the names of the two accused-appellants with their respective titles in the FIR. Since the defence felt shy to make any query, in this regard, from the informant, it cannot, now, at the appellate stage, be allowed to take advantage of the situation as has emerged in the present case, particularly, when the evidence of PW4, i.e., the alleged victim, speaks loud and clear that the present appellants were the ones involved in the occurrence and her evidence receives credible support from other evidence on record as discussed hereinabove.
25. Turning to the submissions made on behalf of the accused-appellants that since, in the case at hand, no Test Identification Parade (in short, 'the TIP') was held and when the two accused had seen the accused-appellants at the police station, the identification of the accused-appellants, at their trial, is valueless, necessary it is to point out that in Kanta Prasad v. Delhi Administration , the Apex Court has made it clear that failure to hold a TIP does not make the evidence of identification, at the trial, inadmissible. However, the weight to be attached to such identification would be for the court of fact to decide and that it is prudent to hold TIP with respect to witnesses, who did not know the accused before the occurrence. The relevant observations made in Kanta Prasad (supra) run as follows:
It would no doubt have been prudent to hold a test identification parade respect to witnesses who did not know the accused before the occurrence, but failure to hold such a parade would not make inadmissible the evidence of identification in Court, The weight to be attached to such identification would be a matter for the Courts of fact and it is not for this Court to reassess the evidence unless exceptional grounds were established necessitating such a course.
26. Having taken into account the decisions in Kanta Prasad (supra), Harhhajan Singh v. State of Jammu and Kashmir , Jadunath Singh v. State of U.P. and some other authorities, the Apex Court held, in George and Ors. v. State of Kerala and Anr. , as follows:
It cannot be denied however that though not fatal, absence of the corroborative evidence of prior identification in a T.I. Parade makes the substantive evidence of identification in Court after a long lapse of time a week piece of evidence and no reliance and no reliance can be placed upon it unless sufficiently and satisfactorily corroborated by other evidence.
27. From what have been observed in George (supra), it is clear that though absence of identification parade does not make the evidence of identification, at the trial, inadmissible, the court has the duty to ascertain as to how far the evidence of identification of the accused, at the trial, can be safely relied upon. In short, while the evidence of identification of an accused, at a trial, is admissible and substantive piece of evidence, it will depend on the facts of a given case as to whether or not such a piece of evidence can be relied upon as the sole basis of conviction of an accused. The rule of prudence may urge a court, in a given case, that the court should look for some corroborative piece of evidence.
28. During the stage of investigation of a crime, the investigating agency is required to hold identification parade for the purpose of enabling the witness to identify the person alleged to have committed the office, 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. Identification parade may also not be necessary in a case, where the accused persons are arrested at the spot. The evidence of identification of an accused person, for the first time, at the trial is, from its very nature, inherently of a weak character. The Supreme Court, in Budhsen v. State of U.P. , held that the evidence of identification of an accused, at the trial, in order to carry conviction should, ordinarily, clearify as to how and under what circumstances the complaint or the witness came to pick out the particular accused person and the details of the part, which the accused 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. There 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 and in order to enable the court to believe 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 the case, where the accused is not known to the witness or the complainant. (See State of H.P. v. Lekh Raj and Anr. ).
29. In the case of Malkhan Singh and Ors. v. State of M.P., , the Apex Court has clarified that the T.I.P. is not substantive piece of evidence and to hold the TIP is not even the rule of law, but a rule of prudence so that the identification of the accused inside the Courtroom, at the trial, can be safely relied upon. In Malkhan Singh (supra), the Court, while observing that identification of an accused in a Court should, as a rule of prudence, be preceded by a TIP, has, in no uncertain words, clarified that this rule of prudence is, however, subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can, without such TIP on other corroboration, safely rely. The Apex Court has also clarified, in Malkhan Singh (supra), that 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; the TIPs do not, points out the Apex Court in Malkhan Singh (supra), constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure and, hence, failure to hold a test identification parade would not make inadmissible the evidence of identification in the court, though the weight to be attached to such identification should be a matter for the courts of fact to determine. Clarified the Apex Court, in Malkhan Singh (supra), that in appropriate cases, the Court may accept the evidence of identification even without insisting on corroboration. (Kanta Prasad v. Delhi Administration : Vaikuntam Chandrappa and Ors. v. State of Andhra Pradesh Budhsen and Anr. v. State of UP. and Rameshwar Singh v. State of Jammu and Kashmir .
30. What emerges from the above discussion is that the identification of an accused inside the court-room, at a trial, is an admissible piece of evidence and because such identification of an accused is admissible in evidence, such evidence of identification is a substantive piece of evidence. It is, therefore, permissible to rely on such piece of evidence as a rule of law; but the rule of prudence demands that in the absence of a TIP having been held properly and in accordance with law, the conviction of an accused must not be based entirely on his being identified, at the trial, by a witness, who did not know the accused. There is, however, no legal impediment in convicting an accused on the basis of his identification at the trial provided that the court has good reasons to believe the evidence of identification at the trial, particularly, when there is other corroborative evidence on record, direct or circumstantial.
31. The present one, we must bear in mind, same as the case of Malkhan Singh (supra), is not one of those cases, where the witness, such as, PW 4, had only a fleeting glimpse of the appellants; rather, from the events, as unfolded by the evidence of PW4, it is clear that PW 4 had sufficient time and opportunity to observe the accused-appellants. In such circumstances, the fact that the identification of the accused-appellants, at the trial, by PW 4, did not precede by a TIP can be of no serious consequence and cannot adversely affect the veracity of the evidence of PW 4 if her evidence, is, otherwise, found to be trustworthy and reliable.
32. It is true, as pointed out by Mr. J.M. Choudhury, that no TIP was held in the present case; but when PW4, who had been subjected to rape, had sufficient time to see both the accused and it was not a case of the victim having only a fleeting glimpse of the accused and when PW4 claims that she had seen accused Somnath and accused Rajib at the police station, there is no reason for this Court to doubt the veracity of the evidence given by PW4. This apart, the fact that accused Rajib had used the said motorcycle and the motorcycle had been brought to the house of PW1 as seen by PW1 and PW3 stand well established on record. When these facts are considered, in the light of the evidence of PW1 that she had also seen the two accused running away from her house and, shortly thereafter, she saw them, once again, at the police station, there remains no room for doubt that her evidence is safe enough to place reliance upon.
33. Though it is true that ideally, the Investigating Officer could have held a TIP without showing the two accused to the prosecution witnesses, yet on the failure of the investigating agency to hold TIP, the evidence of PWs 1, 4 and other witnesses cannot be thrown away, for, their evidence needs to be considered for its own consistency and veracity. On a close and dispassionate scrutiny of the evidence of the prosecution witnesses, particularly, PW4, there remains absolutely no doubt that it was accused Somnath, who forcibly had sexual intercourse with PW4, and committed thereby the offence of rape. It also surfaces unshaken from the evidence on record that accused Rajib aided the act of accused Somnath's having sexual intercourse with PW4 by keeping guard as to who was coming to the house and as soon as accused Rajib saw PW4's elder brother, NS, returning home, he informed accused Somnath about the same and both of them, then, immediately, fled away. There can, therefore, be no escape from the conclusion that the accused-appellant, Rajib, had committed an offence under Section 376 read with Section 109 IPC.
34. Because of what have been discussed and pointed out above, I see absolutely no reason to interfere with the findings of guilt reached by the learned trial Court. The conviction of the accused-appellants cannot, therefore, be interfered with.
35. Turning to the question of sentence passed against the accused-appellants, it needs to be noted that the present one is a case of rape on a minor girl. Apart from the fact that the mental agony, which PW4 and her family must have suffered, following the offence of rape, the stark reality is that in the eyes of the society, PW4 may have to bear the scar of having become a victim of rape at the cruel hands of the two accused-appellants. Viewed thus, I am firmly of the view that the sentence passed against the accused-appellants call for no interference. In short, I find absolutely no merit in the present appeal. Both the appeals are, therefore, dismissed.
Send back the LCRs.