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Imran vs State on 22 August, 2019

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A.No. 949/2018
% Judgment reserved on: 08th August, 2019
Judgment pronounced on: 22nd August, 2019
IMRAN ….. Appellant

Through: Ms.Naomi Chandra, Advocate
Versus
STATE ….. Respondent

Through: Ms.Aashaa Tiwari, APP for State.

Insp. Fatesh Singh and SI Shiv Ram, PS
Amar Colony
CORAM:

HON’BLE MR. JUSTICE MANMOHAN
HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J

1. The present appeal has been filed on behalf of the appellant under
Section 374(2) of the Code of Criminal Procedure, 1973, (hereinafter
referred as “SectionCr.P.C.”) against the impugned judgment dated
28.02.2018 and the order of sentence dated 14.03.2018 passed by the
Court of ASJ (Spl. FTC), South East, Saket Courts, New Delhi, in SC
No.1688/2016 (FIR No. 937/2015, P.S. Amar Colony), registered
under Sectionsection 376/Section392/Section506 of the Indian Penal Code, 1860
(hereinafter referred as “SectionIPC”) whereby the appellant was convicted
for the offence punishable under Section 376/Section392/Section506 IPC and was
sentenced to imprisonment for life for the offence punishable under
Section 376 IPC with a fine of Rs.10,000/-, in default rigorous

CRL.A 949/2018 Page 1 of 19
imprisonment for six months; RI for a period of 05 years for the
offence punishable under Section 392 IPC with a fine of Rs.5,000/-,
in default RI for three months and RI for 01 year for the offence
punishable under Section 506 IPC with fine of Rs.5,000/-, in default
RI for three months, all the term sentences to run consecutively.

2. Brief facts of the case, as noticed by the Learned Trial Court, are as
under:-

“On receipt of DD No. 11 dated 22.08.2015
regarding a lady is lying in unconscious condition
with whom a wrong act is done, SI Benktesh and
Ct.Yogesh Kumar reached at the place of incident
where prosecutrix met them and they took the
prosecutrix to the Police Station and information was
sent to NGO and thereafter prosecutrix (name
withheld to protect her identity) made a complaint
wherein she stated that she alongwith her family is
residing in Sarita Vihar, New Delhi and she works of
cleaning the toilet at Lotus Temple since 08.08.2015
and she used to go her work place at Lotus Temple
from Mohan Co-operative via Metro at Kalkaji Metro
Station. On that day, her Jeth dropped her from
motorcycle at about 8:15 AM at Captain Gaur Marg
near Canara Bank in front of Okhla Subzi Mandi
towards the way of Garhi, Lajpat Nagar, where there
is a short way between the broken wall for going to
Lotus Temple through the jungle. She entered into
the Astha Kunj Park, but as she did not know the
correct place, she went on a wrong way and after
crossing some distance, she did not find anyone on
the way. A boy came and asked her if she wanted
something, she refused, but he then caught hold of her
hand. She raised alarm. In the meantime, another
boy came and asked from that boy as to what he was
doing. He asked him to go away. He made him run
away from there. Then second boy caught hold of the

CRL.A 949/2018 Page 2 of 19
hand of the prosecutrix, gagged her mouth and
dragged her towards the bushes of the jungle where
he committed rape upon her. She tried to raise alarm
but could not since he had gagged her mouth. He
then asked her what she has. She told him that she
has nothing. She was having her mobile phone. He
snatched her mobile phone and also slapped her and
threatened her that if she will tell it to anyone, he will
kill her. She ran towards the stand and told the
incident to a person at bus stand. Someone called the
police. On this complaint, the case under Sectionsection
354C/Section376(2)(n)/Section354/Section323 IPC was registered.”

3. The accused person was charged under Sections 376/Section392/Section394/Section506
IPC to which he pleaded not guilty and claimed trial. In order to
bring home the guilt of the accused person, the prosecution had
examined 18 witnesses in all.

4. The accused person was examined and his statement was recorded
under Section 313 of Cr.P.C wherein he denied the allegations of the
prosecution and claimed that he had found the mobile phone
unattended on the road, and he had been falsely implicated in this
case by the police after manipulation of the report. The accused
person also examined one witness in his defence.

5. The learned Trial Court, upon analysis, examination and evaluation
of the prosecution evidence and after considering the rival
submissions recorded conviction against the accused for the charged
offences.

6. Ms. Naomi Chandra, learned counsel for the appellant contended that
the impugned judgment dated 28.02.2018 was based on conjectures,
surmises and had disregarded the cogent evidence, and thus be set

CRL.A 949/2018 Page 3 of 19
aside. Learned counsel further contended that photos of the appellant
were shown to the prosecutrix prior to his arrest, since the victim had
already seen the appellant the TIP would have been a futile exercise
and for this reason he refused to participate in the TIP. In support of
the above, learned counsel for the appellant relied upon the case of
Kanan and Ors. Vs State of Kerala 1979 SCC (Cri) 621.

7. Learned counsel further contended that the prosecutrix was sent for
medical examination, her clothes were seized, slides were prepared
and the vaginal swab of the prosecutrix was taken (Ex. 5 and 6), and
after conducting a thorough medical examination, there was nothing
on record to suggest that it matched the semen DNA (Ex. 7) of the
accused, indicating that no offence of penetrative rape was
committed.

8. Lastly, Ms. Chandra contended that the doctors had observed that
there was no external injury to the prosecutrix and at the most an
offence under Section 354B was committed.

9. Per contra, learned APP for the State contended that PW-1
(prosecutrix) had given a detailed description of the accused while
getting the Rukka prepared, and on that basis, and the information of
an informer the accused was apprehended on 23.08.2015; no photos
of the appellant were shown to the prosecutrix prior to his arrest.
Learned APP further contended that the Appellant had declined to
participate in Test Identification Parade which was sufficient to draw
reasonable and logical inference that he was guilty of the offence
committed.

CRL.A 949/2018 Page 4 of 19

10. Ms. Aasha Tiwari further contended that the FSL report of the
prosecutrix evidently depicts that DNA test was successfully
conducted and the same matched with the semen sample of the
accused. Learned APP further contended that there was no logical
explanation of semen being found in the private parts of the
prosecutrix if there was no penetration, as on the day of the incident
only one person was present on the spot who would have committed
the crime, leaving no possibility of the semen being of someone else.

11. Ms. Aasha Tiwari, learned APP for the State contended that it is a
settled law that the accused can be convicted on the sole testimony of
PW-1 (prosecutrix) if it is trustworthy and inspires confidence; and
that PW-1 (prosecutrix) has been consistent in all her statements.
Lastly, Ms. Tiwari urged the court that the impugned order should be
upheld.

Finding of the Trial Court

12. The trial court in the impugned judgment has held as under:-

“17. To prove the offence of rape, prosecutrix is the most
material witness. It is necessary to analyze the statement
of the prosecutrix. The prosecutrix used to do the work of
cleaning toilets at Lotus Temple, Kalkaji, New Deli and
as per her version, she used to go there by metro train,
got down at Kalkaji Metro Station and from there, she
used to go on foot. However, on 22.08.2015, her jeth
dropped her at Subzi Mandi, Okhla on his motocycle at
about 8 a.m. As per her version, there was a way for
going to Lotus Temple. One wall was broken. From
there public was going. The way was from the jungle.
She also took the way. After covering some distance, she
did not find anyone on the way. A boy came and asked
her if she wanted something. She refused. He caught her.

CRL.A 949/2018 Page 5 of 19

She raised alarm ‘bachao’ ‘bachao’. In the meantime,
another boy came and asked from that boy as to what he
was doing. He asked him to go away. He made him run
away from there. The second boy caught her hand,
gagged her mouth and dragged her towards the bushes of
the jungle where he committed rape upon her. She tried
to raise alarm but since he had gagged her mouth. The
said boy then asked her what she is having. She told him
that she does not have anything. She was having her
mobile phone. He snatched her mobile phone and
threatened her that is she will tell it to anyone, he will kill
her. He also slapped her. She ran towards the stand and
became unconscious. After getting some consciousness,
she told the incident to a person at bus stand. Police
came there and took her to police station, called her
jethani. Then, she was taken to the spot and site plan
was prepared. Then, she was medically examined. The
doctor had taken into possession the clothes she was
wearing and given other clothes to wear. Thereafter, her
statement was recorded by the Magistrate. She also went
to Tihar Jail for TIP of the accused, he the accused had
refused to join the TIP proceedings. The prosecutrix has
identified her clothes as well as her mobile phone which
was later on recovered from the possession of the
accused. She has also identified the accused as the
second boy, who had committed rape upon her.

18. In the cross examination, the prosecutrix has stated
that she was going for the first time to Lotus Temple from
that way. She has also stated that there were two ways
from the broken wall and she lost the way and took the
other way. She also deposed that she does not know the
way to Lotus Temple from Subzi Mandi. During her
cross-examination, she has also deposed that she joined
the job at Lotus Temple on 08.08.2015. The incident had
happened on 22.08.2015 and this fact gives support to
statement of the prosecutrix that she did not now the way
to Lotus Temple and took a wrong way from the temple
which led to the unfortunate incident which has

CRL.A 949/2018 Page 6 of 19
happened with her. She has also deposed that the first
boy had not committed any wrong with her. Nothing
adverse came out in the cross-examination of
prosecutrix.

19. No suggestion is put by the accused to the prosecutrix
with regard to any previous enmity between her and the
accused leading to the implication of the accused in this
case. It is not the case of the accused that prosecutrix
was earlier known to him. There is no reason to
apprehend that the accused has been falsely implicated
by the prosecutrix.”

External Injuries

13. The learned counsel for the Appellant had contended that there were
no external injuries on the body of the prosecutrix when she was
medically examined by the doctors on 22.08.2015. To rebut this
contention learned APP relied upon SectionState of Rajasthan vs. N.K
reported at (2000) 5 SCC 30. Germane portion of the judgment is
quoted below:

” 18. Absence of injuries on the person of the
prosecutrix has weighed with the High Court for inferring
consent on the part of the prosecutrix. We are not at all
convinced. We have already noticed that the delay in
medical examination of the prosecutrix was occasioned by
the factum of the lodging of the FIR having been delayed
for the reasons which we have already discussed. The
prosecutrix was in her teens. The perpetrator of the crime
was an able-bodied youth bustling with energy and
determined to fulfil his lust armed with a knife in his hand
and having succeeded in forcefully removing the victim to
a secluded place where there was none around to help the
prosecutrix in her defence. The injuries which the
prosecutrix suffered or might have suffered in defending
herself and offering resistance to the accused were
abrasions or bruises which would heal up in the ordinary
CRL.A 949/2018 Page 7 of 19
course of nature within 2 to 3 days of the incident. The
absence of visible marks of injuries on the person of the
prosecutrix on the date of her medical examination
would not necessarily mean that she had not suffered
any injuries or that she had offered no resistance at the
time of commission of the crime. Absence of injuries on
the person of the prosecutrix is not necessarily an
evidence of falsity of the allegation or an evidence of
consent on the part of the prosecutrix. It will all depend
on the facts and circumstances of each case. SectionIn Sk.
Zakir [Sk. Zakir v. State of Bihar, (1983) 4 SCC 10 : 1983
SCC (Cri) 76 : 1983 Cri LJ 1285] absence of any injuries
on the person of the prosecutrix, who was the helpless
victim of rape, belonging to a backward community, living
in a remote area not knowing the need of rushing to a
doctor after the occurrence of the incident, was held not
enough for discrediting the statement of the prosecutrix if
the other evidence was believable. SectionIn Balwant
Singh[Balwant Singh v. State of Punjab, (1987) 2 SCC
27 : 1987 SCC (Cri) 249 : 1987 Cri LJ 971] this Court
held that every resistance need not necessarily be
accompanied by some injury on the body of the victim;
the prosecutrix being a girl of 19/20 years of age was not
in the facts and circumstances of the case expected to
offer such resistance as would cause injuries to her body.
SectionIn Karnel Singh [Karnel Singh v. State of M.P., (1995) 5
SCC 518 : 1995 SCC (Cri) 977] the prosecutrix was made
to lie down on a pile of sand. This Court held that absence
of marks of external injuries on the person of the
prosecutrix cannot be adopted as a formula for inferring
consent on the part of the prosecutrix and holding that she
was a willing party to the act of sexual intercourse. It will
all depend on the facts and circumstances of each case. A
Judge of facts shall have to apply a common-sense rule
while testing the reasonability of the prosecution case.
The prosecutrix on account of age or infirmity or
overpowered by fear or force may have been incapable of
offering any resistance. She might have sustained injuries

CRL.A 949/2018 Page 8 of 19
but on account of lapse of time the injuries might have
healed and marks vanished.

19. For the offence of rape as defined in Section 375 of
the Indian Penal Code, the sexual intercourse should have
been against the will of the woman or without her
consent. Consent is immaterial in certain circumstances
covered by clauses thirdly to sixthly, the last one being
when the woman is under 16 years of age. Based on these
provisions, an argument is usually advanced on behalf of
the accused charged with rape that the absence of proof
of want of consent where the prosecutrix is not under 16
years of age takes the assault out of the purview of
Section 375 of the Indian Penal Code. Certainly consent
is no defence if the victim has been proved to be under 16
years of age. If she be of 16 years of age or above, her
consent cannot be presumed; an inference as to consent
can be drawn if only based on evidence or probabilities of
the case. The victim of rape stating on oath that she was
forcibly subjected to sexual intercourse or that the act
was done without her consent, has to be believed and
accepted like any other testimony unless there is
material available to draw an inference as to her consent
or else the testimony of prosecutrix is such as would be
inherently improbable. The prosecutrix before us had just
crossed the age of 16 years. She has clearly stated that
she was subjected to sexual intercourse forcibly by the
accused…”

14. It is apparent that the absence of external injuries on body of the
prosecutrix on the date of her medical examination would not
necessarily mean that she had not been raped or that she had not
resisted at the time of commission of the crime. Absence of injuries
does not indicate her consent or the falsity of the allegations or
discredit the version of the prosecutrix.

CRL.A 949/2018 Page 9 of 19

Scientific Evidence

15. PW-1 (the prosecutrix) was medically examined on 22.08.2015 and
her clothes were seized and slides were prepared. Vulval and vaginal
swabs were taken (Ex. 5 and 6) from the prosecutrix, along with the
DNA sample of the appellant (Ex. 7). The FSL report is reproduced
as under:

Result of analysis

1. Blood was detected on exhibit ‘7’.

2. Blood could not be detected on exhibits ‘1a’, ‘1b’,
‘1c’, ‘1d’, ‘2’, ‘3’, ‘4’, ‘5’, ‘6’ ’10’.

3. Human semen was detected on exhibits ‘1b’, ‘5’
‘6’.

4. Semen could not be detected on exhibits ‘1a’, ‘1c’,
‘1d’, ‘2’, ‘3’, ‘4’, ‘9’ ’10’.

DNA Examination
Exhibits ‘1b’ (salwar of victim), ‘5,6’ (vulval and vaginal
swab smear) and ‘7’ (Gauze cloth piece of accused)
were subjected to DNA isolation. DNA was isolated from
the source of exhibits ‘1b’ (salwar of victim), ‘5,6’
(vulval and vaginal swab smear) and ‘7’ (Gauze cloth
piece of accused). AmpFI STR identifiler PCR
amplification kit were used for STR amplification for
each of the samples and data was analysed by using
Gene Mapper IDx software. Male DNA profile was
generated from the source of exhibits ‘1b’ (salwar of
victim) and ‘7’ (Gauze cloth piece of accused). However
DNA profile could not be generated from the source of
exhibit ‘5,6’ (vulval and vaginal swab smear).
Result of DNA Analysis

DNA (STR) analysis performed on exhibits ‘7’ (Gauze
cloth piece of accused) ‘1b’ (salwar of victim) is

CRL.A 949/2018 Page 10 of 19
sufficient to conclude that DNA profile generated from
the source of exhibit ‘7’ (Gauze cloth piece of accused)
is similar with the DNA profile generated from the
source of exhibit ‘1b’ (salwar of victim).

16. According to FSL report (Ex. PW-13/A) and serological report which
was sent for examination and analysis, it is apparent that the D.N.A.
profile test of semen was conducted on the seized clothes of the
prosecutrix (salwar/Ex. 1B) against the DNA samples of the
Appellant (Ex. 7), and the vaginal swab and vulval swab (Ex. 5 6)
of the prosecutrix.

17. After perusing the FSL report it is evident that human semen was
detected on Ex. 1B, 5 and 6 and the DNA profile generated from the
Ex. 7 of the appellant had matched with Ex. 1B (salwar of the
prosecutrix). However, DNA profile could not be generated from Ex.
5 and 6, which is insignificant as the appellant has failed to explain
how his semen was found on the salwar (Ex. 1B) of the complainant.
Testimony of the Prosecutrix

18. The Apex Court has time and again held that the sole testimony of
the prosecutrix is sufficient to implicate the accused if it inspires
confidence. Reliance can be placed on SectionVijay v. State of Madhya
Pradesh reported in (2010) 8 SCC 191. Relevant paragraph of the
judgment reads as under:

“14. Thus, the law that emerges on the issue is to the
effect that the statement of the prosecutrix, if found to be
worthy of credence and reliable, requires no
corroboration. The court may convict the accused on the
sole testimony of the prosecutrix.”

CRL.A 949/2018 Page 11 of 19

19. Averting to the facts of the present case, the statement of the
prosecutrix was recorded by the police on 22.08.2015, on the basis of
which the Rukka (Exhibit PW-1/A) was registered. Relevant portion
of the same is quoted below :

“After walking a few steps, I met with a boy on the way
who suddenly caught my hand and asked me as to
whether I need something. Due to fear, I raised an
alarm whereupon another boy came there whose name I
did not know. The second boy had slim built, wheatish
complexion, age 22/24 years and had a mark of wound
on right side of his cheek and had kinky teeth. His height
was average. He came over there and asked the first one
as what was he doing, get lost. Thereafter, the first boy
left from there while the second boy dragged me in the
nearby bushes and made me fall on the ground. He
forcibly removed my lower (Salwar) and outraged my
modesty. I started crying loudly. He hold my mouth from
his hand and told me to keep quiet else he would kill
me.”

20. Further, during the trial, the prosecutrix was examined as PW- 1,
wherein she deposed as under:

“I used to do the work of cleaning toilets at Lotus
Temple, Kalkaji, New Delhi. I used to go there by metro
train. I used to get down at Kalkaji Metro Station.
From there I used to go on foot.

On 22.08.2015, my jeth dropped me at subzi
mandi, Okhla on his motorcycle at about 8 a.m. There
was a way for going to Lotus Temple. One wall was
broken. From there public was going. The way was
from the jungle. I also took the way. After covering
some distance, I did not find anyone on the way. A boy

CRL.A 949/2018 Page 12 of 19
came and asked me if I wanted something. I refused.
He caught me. I raised alarm ‘bachao’. In the
meantime, another boy came and asked from that boy as
to what he was doing. He asked him to go away. He
made him run away from there. The second boy caught
my hand, gagged my mouth and dragged me towards the
bushes of the jungle where he committed rape upon me.
I tried to raise alarm but since he had gagged my mouth.
He then asked me what I have. I told him that I do not
have anything. I was having my mobile phone. He
snatched my mobile phone and threatened me that if I
will it to anyone, he will kill me. He also slapped me. I
ran towards the stand and became unconscious. After
getting some consciousness, I told the incident to a
person at bus stand. I do not know who called the
police. Police came there and made me sit in police
gypsy. Police brought me in the police station. The
police called my jethani. She came there. Police took
me to the spot and prepared the site plan. Police
recorded my statement which is exhibited as Ex.PW1/A
bearing my signature at point A. Police took me to the
hospital where I was medically examined vide MLC
Ex.PW1/B bearing my signature at point A.

During cross-examination, PW-1 (Prosecutrix) deposed as under:-

My phone was in working condition but there was zero
balance when the accused apprehended me. When I
raised alarm no one came. I reached the bus stand from
the spot in 10 minutes. I was going for the first time to
Lotus Temple from that way. I did not know the way to
Lotus Temple. I do not know the way to Lotus Temple
from that bus stand. The first boy did not commit rape
upon me. I did not know that boy. Police has asked my

CRL.A 949/2018 Page 13 of 19
mobile number but I did not know that number. There
were 10-12 persons at the bus-stop.

xxxx xxxx xxxx xxxx

It is wrong to suggest that the rape was committed by the
first boy and I left him after taking money. There were
no external injuries on my person. It is correct that the
place was a jungle and there were bushes in the jungle. I
was wearing salwar-suit. Colour I do not remember.
Gagged means accused put his hand on my mouth. It is
wrong to suggest that I falsely implicated the accused
since the accused did not pay me money. My Jeth used
not to drop me daily. I did not know the way to Lotus
Temple from subzi-mandi. I joined the job at Lotus
Temple on 08.08.2015.”

21. It is pertinent to note that PW-1 (prosecutrix) has been consistent
throughout in her statement that intercourse was against her wishes
and that there was no consent as she had forcibly been caught and
threatened and thereafter, she had been subjected to rape.

22. Inspector Rajni Chopra, Investigating Officer was examined as PW-

17, she deposed as under:

“On 22.08.2015 I was posted as Inspector at Police
Station Amar Colony. On receipt of DD No. 12/A
Ex.PW7/A, I along with SI Vanktesh and Ct. Yogesh
Kumar reached at the spot i.e., in front of Captain Gaur
Marg in front of Okhla Subzi Mandi. The prosecutrix
met me there. She was perplexed. She requested me to
take to her to Police Station. I gave her water and made
her comfortable. I called her family members. I brought
her to the police Station. I recorded her statement
Ex.PW1/A. I prepared a rukka Ex.PW17/A and gave it to
duty officer for the registration of the FIR. I sent the
prosecutrix to AIIMS with Ct. Harmeet Kaur and SI

CRL.A 949/2018 Page 14 of 19
Rajesh for her medical examination. ……I made
inquiries from the local persons and tried to search the
accused. I also briefed the secret informer about the
incident who met me near the spot. We returned to
police station. I showed the photographs in criminal
register to the prosecutrix but she could not identify. I
recorded the statement of witnesses.

On 23.08.2015 I alongwith Ct.Dheeraj and
Ct.Yogesh again went to the spot and tried to search the
accused. In that process I met the secret informer near
Okhla mandi who informed me that the accused of this
case is present in house number A-43, Kalicharan Camp,
Okhla Subzi Mandi. The secret informer also disclosed
the name of the accused as Imran. I constituted a raiding
party consisting on myself, Ct.Yogesh and Ct.Dheeraj. I
asked some public persons to join the raiding but none
agreed and left the place without disclosing their name
and addresses. We reached at house number A-43,
Kalicharan Camp, Okhla Subzi Mandi. Uncle and Aunt
of the accused were present in the house. I asked them
about Imran. They produced the accused Imran present
in court today. I apprehended the accused. After
interrogation the accused was arrested vide arrest memo
Ex.PW8/B and conducted his personal search vide memo
Ex.PW8/C.

XXXX XXXX XXXX XXXX
Accused was produced before the court. He was taken on
PC remand. The accused lead us to shop no.104 Okhla
Mandi and got recovered a mobile phone of black colour
Samsung. The phone was converted into a pullanda and
sealed with the seal of RC and seized vide seizure memo
Ex.PW17/D. The said phone was belonging to
prosecutrix which was robbed by the accused at the time
of incident from her possession.”

CRL.A 949/2018 Page 15 of 19

During cross-examination, PW-17 (Inspector Rajni Chopra)
deposed as under :

“…It is wrong to suggest that the photographs of
the accused were shown to the prosecutrix and due to
which he refused to participate in judicial TIP…”

23. A conjoint perusal of the testimonies and statement of the PW-1
(Prosecutrix) and PW-17(IO Rajni Chopra), it is clear that the
prosecutrix had given a detailed description of the accused to the
police on the very day of the incident, and the police had even
received information from an informer regarding the whereabouts of
the appellant, whereafter, the Appellant was apprehended by the
police on 23.08.2015 from his house.

Recovery of mobile phone

24. At this stage we deem it essential to point out the recovery of the
stolen mobile phone of PW-1 (prosecutrix). On the day of the
incident, 22.08.2015, the prosecutrix in her statement to the police
had stated that her mobile phone was stolen by the appellant, and
when the appellant was apprehended on 23.08.2015 from his house,
he led the police to a shop in Okhla Mandi where he had given the
black Samsung phone.

25. In the statement under Section 313, the appellant took the plea that
the phone was found on the road unattended, and his uncle had
started had using the same. However, the uncle was not produced as
the defence witness. Hence, no material witness has been examined
who would point towards the innocence of the appellant, rather all

CRL.A 949/2018 Page 16 of 19
facts are pointing towards the role of the appellant in the commission
of the crime.

Test Identification Parade

26. The learned counsel for the appellant had contended that photos of
the appellant were shown to the prosecutrix prior to his arrest and the
test identification parade was of no consequence and rightly the
appellant had refused to take part in it.

27. The necessity of Test Identification Parade is just primary evidence
to pinpoint that the investigation which is being conducted is going
in the right direction, however, it is not a substantive one. It is
interesting to note that, if TIP is not conducted and the witness
identifies the accused for the first time in the court of law, then, the
evidence regarding identification in the court of law does not ipso
facto becomes inadmissible and cannot be discarded on the ground
that it was not preceded by TIP.

28. The Apex Court in the case of SectionMukesh Anr vs State for NCT of
Delhi Ors. arising out of S.L.P. (Criminal) Nos. 3119-3120 of
2014, wherein the court held that identification in court, which is not
preceded by any test identification parade is also equivalent to
substantial evidence. Relevant portion of the same is quoted below:

145. In the case at hand, the informant, apart from
identifying the accused who had made themselves
available in the TIP, has also identified all of them in
Court. On a careful scrutiny of the evidence on record,

CRL.A 949/2018 Page 17 of 19
we are of the convinced opinion that it deserves
acceptance.

29. Indubitably, the refusal to participate in Test Identification Parade, if
no plausible reason is offered, would be sufficient to draw an adverse
inference against the appellant that had he participated in the Test
Identification Parade he would have been identified by the
prosecutrix. In the present case, all arrangements to hold the Test
Identification Parade were made but the appellant refused to
participate in the Test Identification Parade proceedings. It has also
emerged from the testimony of PW-17 (IO Rajni Chopra) that no
photos of the appellant were shown to the prosecutrix prior to his
arrest. Since the appellant declined to participate in Test
Identification Parade proceedings an adverse inference can surely be
drawn against him at least in order to corroborate the prosecution
case.

Conclusion

30. As per the case of the prosecution, the prosecutrix was heading to her
place of work on 22.08.2015 when she was caught by the appellant
who then raped her and snatched her mobile phone. After thorough
perusal of evidence on record, it is evident that the prosecutrix has
been consistent in her statements and the same inspires confidence
and can be relied upon as it also corroborates with the version of the
IO.

31. The mobile phone was also recovered pursuant to the disclosure
statement of the appellant which would clearly prove his involvement

CRL.A 949/2018 Page 18 of 19
in the crime and the FSL report confirming Appellant’s semen on
salwar (Ex. 1B) of the prosecutrix as well as human semen on
vaginal and vulval swab (Ex. 5 and 6) corroborates with the version
of the prosecution and establishes the appellant’s involvement in the
crime.

32. In our view, the material available on record as recited above coupled
with the law laid down by the Apex Court unerringly lead to one
conclusion and that is the guilt of the appellant. Hence, we find no
infirmity in the judgment passed by the learned Trial Court and we
see no cogent reason to interfere with the same.

33. Accordingly, the present appeal being devoid of merit is dismissed.

34. A copy of this order be also sent to the Superintendent of Jail.

SANGITA DHINGRA SEHGAL, J.

MANMOHAN, J.

AUGUST 22, 2019/SU

CRL.A 949/2018 Page 19 of 19

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