* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 15th February, 2017
Decided on: 25th May, 2017

+ CRL.A. 534/2002
SACHIN ….. Appellant
Represented by: Mr. Harsh Prabhakar, Amicus
Curiae with Mr. Anirudh
Tanwar, Mr. Harjeet Singh
Sachdeva, Mr. Jai Bhardwaj,
Advs.
versus

THE STATE OF NCT OF DELHI ….. Respondent
Represented by: Ms. Meenakshi Chauhan, APP
with Insp. Rajeev Yadav, PSI
Sher Singh, PS Inder Puri.

+ CRL.A. 540/2002

AMIT YADAV ….. Appellant
Represented by: Mr. Rohit Sharma, Adv.

versus
STATE ….. Respondent
Represented by: Ms. Meenakshi Chauhan, APP
with Insp. Rajeev Yadav, PSI
Sher Singh, PS Inder Puri.
CORAM:
HON’BLE MS. JUSTICE MUKTA GUPTA

1. Vide impugned judgment dated 2nd April, 2002, Sachin and Amit
Yadav were convicted for the offences punishable under Sections 376(2)(g),
341/34 and 506-II IPC. Vide order on sentence dated 21st May, 2002 they
were sentenced to undergo rigorous imprisonment for a period of ten years
and to pay a fine of Rs.100/- for offence punishable under Section

Crl.As. 534/2002 540/2002 Page 1 of 14
376(2)(g)/34 IPC, simple imprisonment for period of one month for offence
punishable under Section 341/34 IPC and rigorous imprisonment for a period
of one year for offence punishable under Section 506 Part II/34 IPC.

2. Learned counsel for the appellants submits that the testimony of PW-1
prosecutrix suffers from material contradictions vis-a-vis her statement
recorded by the Investigating Agency. Variances in the version of the
prosecutrix make it unsafe to act upon her testimony without corroboration.
The testimony of PW-2, husband of the prosecutrix, also suffers from
material improvements/contradictions vis-a-vis the statement recorded under
Section 161 Cr.P.C. Though it is the version of the prosecutrix that she was
successively subjected to sexual intercourse against her will, however, she
did not suffer any external injury and her clothes were not torn. The
circumstances leading to the apprehension of Sachin are shrouded in
suspicion. Placing reliance on the decisions reported as (2013) 9 SCC 113
Kaini Rajan v. State of Kerala, (2003) 2 SCC 401 Lallu Manjhi v. State of
Jharkhand and (2005) 9 SCC 769 State of Punjab v. Praveen Kumar, it is
contended that when the oral testimony of the sole witness is found not to be
wholly reliable, the Court can rely upon the same only after corroboration
from an independent source.

3. Per contra learned APP for the State submits that though the
prosecutrix was declared hostile, however, she stated that Amit, Sachin and
‘P’ had raped her and correctly identified them. The prosecutrix and her
husband were consistent regarding the time and place of the incident. As per
the FSL report, semen was detected on the petticoat of the prosecutrix.
Relying on the decisions reported as 1991 (3) SCC 627 Khujii v. State of
M.P., 1998 (8) SCC 624 Koli Lakhman Bhai Chanabhai v. State of Gujarat

Crl.As. 534/2002 540/2002 Page 2 of 14
and (2010) 8 SCC 536 Prithi v. State of Karnataka, it is submitted that the
evidence of a hostile witness is not effaced altogether and the same can be
accepted to the extent found reliable on a careful scrutiny. Referring to the
decision reported as 1971 Crl.LJ 305 Jadunath Singh v. State of U.P. it is
submitted that absence of test identification parade is not necessarily fatal
and in the present case, till husband of the prosecutrix came back with
police, the prosecutrix had enough time to have sufficient impression about
the identity of the accused persons.

4. FIR No. 23/2001 was registered at PS Inderpuri under Sections
376/506/341/34 IPC on the statement of the prosecutrix wherein she stated
that on 22nd January, 2001 around 4:00 P.M. she along with her husband had
gone to the forest of village Todapur to collect firewood. While they were
searching for firewood, around 5:00 P.M., 6/7 boys stopped them. Two boys
pulled husband of the prosecutrix, and took him towards bushes. Five boys
took the prosecutrix towards the forest. In the meantime, one of the two boys
who had taken her husband came towards the prosecutrix and made her lie
down on the ground and started committing sexual assault upon her. When
she raised alarm, the other five boys standing there did not help her. Those
five boys witnessing the occurrence remarked that Sachin (appellant herein)
should hurry up otherwise somebody would come. Thereafter, Sachin
gagged the mouth of the prosecutrix and threatened her not to raise alarm
otherwise he would kill her. Sachin removed his pants, lifted the saree of the
prosecutrix and committed rape upon her. Thereafter, rape was committed by
two other boys and other three boys were waiting for their turn. In the
meanwhile, husband of the prosecutrix, rescued himself and fled towards the
village Todapur. Around 6:00 P.M., husband of the prosecutrix reached the

Crl.As. 534/2002 540/2002 Page 3 of 14
police station, met PW-10 HC Ganga Ram and narrated the incident to him.
HC Ganga Ram along with Constable Sanjay Kumar and her husband rushed
towards the forest where they found the prosecutrix. The police with the help
of husband of the prosecutrix, apprehended five boys whose names were
revealed as ‘P’ @ Jhumar @ Bona, who committed rape upon her and had
threatened her, Praveen @ Bablu, Rajkumar, ‘S’ and ‘M’. The appellants
Amit and Sachin, who had absconded, had also committed rape upon the
prosecutrix. Thereafter, the prosecutrix was taken for medical examination.
PW-13 SI Puran Chand prepared the site plan. Amit was apprehended by SI
Puran Chand on 29th January, 2001. Sachin was arrested on 7th February,
2001. Medical examination of all the accused persons was conducted.

5. Charge sheet for offences punishable under Sections 376(2)(g),
341/34, 506-II and 120B IPC was filed against ‘P’ @ Jhumar @ Bona,
Sachin, Amit Yadav, Praveen @ Bablu and Raj Kumar. Report qua ‘S’ and
“M’ was filed before Juvenile Justice Board as they were minor. Since
during the course of trial, the prosecutrix did not assign any role to Raj
Kumar and Praveen @ Bablu, they were acquitted by the impugned
judgment whereas ‘P’, Amit Yadav and Sachin were convicted. On an
application filed by ‘P’ claiming the benefit of being juvenile, learned Trial
Court held him to be a juvenile at the time of the offence and sent the matter
to the Juvenile Justice Board. Hence the two appeals before this Court by
Sachin and Amit Yadav.

6. The prosecutrix deposed in Court in conformity with the statement
made before the police on the basis of which FIR was recorded. She stated
that one of the boys raped her twice and remaining boys raped her once. One
of the boys had caught hold of her hands and one boy had gagged her mouth.

Crl.As. 534/2002 540/2002 Page 4 of 14

She pointed out towards Sachin and stated that he had gagged her mouth and
committed rape upon her and he was one of the boys who had taken her
husband towards the bushes. Thereafter, she pointed out towards ‘P’ and
stated that he committed rape upon her twice. While pointing out towards
Amit, she stated that he also committed rape upon her and he was the other
boy who had taken her husband towards the bushes. Since the prosecutrix
did not support the case qua Raj Kumar and Praveen, she was declared
hostile. During cross examination, she stated that the police had only
apprehended ‘P’ in her presence. She denied the suggestion that Amit and
Sachin were apprehended in her presence. She further stated that at the time
of incident she had sustained injuries on her elbow, feet and head.

7. Husband of the prosecutrix, corroborated the version of the
prosecutrix. He further stated that before going to the Police Station he went
to his jhuggi and narrated the facts to the jhuggiwalas. During cross-
examination he stated that he did not state to the police that Praveen and
Rajkumar were arrested in his presence.

8. PW-4 Dr. Shivani Aggarwal, Safdurjang Hospital, deposed that she
had examined the prosecutrix who had come with the alleged history of gang
rape by three persons namely Jhuman, ‘S’ and Sachin. During her medical
examination, there was no evidence of bite marks or nail marks or external
injuries specially on breasts and external genitals. Hymen was not intact. She
exhibited the MLC as Ex. PW-4/1.

9. As per the FSL report exhibited as Ex. PW-13/9, human semen was
detected on Exhibit ‘1’ (petticoat having whitish stains), Exhibit ‘2a’ (a piece
of cotton wool swab described as ‘vaginal swab’) and Exhibit ‘2b’ (a piece of
cotton wool swab described as ‘cervical swab’).

Crl.As. 534/2002 540/2002 Page 5 of 14

10. Assailing the conviction, learned counsels for the appellants contend
that even as per the prosecution case, the appellants were not arrested at the
spot. The prosecutrix in his examination in chief even on suggestion of
learned APP denied that appellants were apprehended on her pointing out
thus not conducting of the test identification parade is fatal to the prosecution
case and the appellants are entitled to be acquitted on this count.

11. No doubt the case of the prosecution as deposed by the investigating
officer was that Sachin and Amit Yadav were apprehended at the instance of
the prosecutrix, who denied the same when she was examined in the witness
box however it is well settled that test identification parade is an aid in
investigation and if the witness has sufficient time to see the accused then
even identification for the first time in the Court can also be accepted. The
offence took place on 22nd January, 2001 and the prosecutrix was examined
before the Court on 3rd August, 2001 and she had sufficient time to see the
accused persons who raped her. As regards Sachin, his name cropped up
even in the FIR because the other co-accused took his name and asked him
to hurry up.

12. Supreme Court in the decision reported as AIR 2008 SC 1813 MD.
Kalam @ Abdul Kalam Vs. State of Rajasthan culling out the law on test
identification parade held-

“7. As was observed by this Court in Matru v. State of
U.P.(1971 (2) SCC 75) identification tests do not constitute
substantive evidence. They are primarily meant for the purpose
of helping the investigating agency with an assurance that their
progress with the investigation into the offence is proceeding on
the right lines. The identification can only be used as
corroborative of the statement in court. (See Santokh Singh v.
Izhar Hussain (1973(2) SCC 406). The necessity for holding an

Crl.As. 534/2002 540/2002 Page 6 of 14
identification parade can arise only when the accused are not
previously known to the witnesses. The whole idea of a test
identification parade is that witnesses who claim to have seen the
culprits at the time of occurrence are to identify them from the
midst of other persons without any aid or any other source. The
test is done to check upon their veracity. In other words, the main
object of holding an identification parade, during the
investigation stage, is to test the memory of the witnesses based
upon first impression and also to enable the prosecution to
decide whether all or any of them could be cited as eyewitnesses
of the crime. The identification proceedings are in the nature of
tests and significantly, therefore, there is no provision for it in the
Code and the Evidence Act. It is desirable that a test
identification parade should be conducted as soon as after the
arrest of the accused. This becomes necessary to eliminate the
possibility of the accused being shown to the witnesses prior to
the test identification parade. This is a very common plea of the
accused and, therefore, the prosecution has to be cautious to
ensure that there is no scope for making such allegation. If,
however, circumstances are beyond control and there is some
delay, it cannot be said to be fatal to the prosecution.

8. It is trite to say that the substantive evidence is the
evidence of identification in Court. Apart from the clear
provisions of Section 9 of the Indian Evidence Act, 1872 (in short
the ‘Evidence Act’) the position in law is well settled by a catena
of decisions of this Court. The facts, which establish the identity
of the accused persons, are relevant under Section 9 of the
Evidence Act. As a general rule, the substantive evidence of a
witness is the statement made in Court. The evidence of mere
identification of the accused person at the trial for the first time
is from its very nature inherently of a weak character. The
purpose of a prior test identification, therefore, is to test and
strengthen the trustworthiness of that evidence. It is accordingly
considered a safe rule of prudence to generally look for
corroboration of the sworn testimony of witnesses in Court as to
the identity of the accused who are strangers to them, in the form
of earlier identification proceedings. This rule of prudence,

Crl.As. 534/2002 540/2002 Page 7 of 14
however, is subject to exceptions, when, for example, the Court is
impressed by a particular witness on whose testimony it can
safely rely, without such or other corroboration. The
identification parades belong to the stage of investigation, and
there is no provision in the Code which obliges the investigating
agency to hold or confers a right upon the accused to claim, a
test identification parade. They do not constitute substantive
evidence and these parades are essentially governed by Section
162 of the Code. Failure to hold a test identification parade
would not make inadmissible the evidence of identification in
Court. The weight to be attached to such identification should be
a matter for the Courts of fact. In appropriate cases it may accept
the evidence of identification even without insisting on
corroboration. (See Kanta Prashad v. Delhi Administration (AIR
1958 SC 350), Vaikuntam Chandrappa and Ors. v. State of
Andhra Pradesh ( AIR 1960 SC 1340), Budhsen and Anr. v. State
of U.P.(air 1970 SC 1321) and Rameshwar Singh v. State of
Jammu and Kashmir (AIR 1972 SC 102).

9. In Jadunath Singh and Anr. v. The State of Uttar
Pradesh (197)) 3 SCC 518), the submission that absence of test
identification parade in all cases is fatal, was repelled by this
Court after exhaustive considerations of the authorities on the
subject. That was a case where the witnesses had seen the
accused over a period of time. The High Court had found that the
witnesses were independent witnesses having no affinity with
deceased and entertained no animosity towards the appellant.
They had claimed to have known the appellants for the last 6-7
years as they had been frequently visiting the town of Bewar.
This Court noticed the observations in an earlier unreported
decision of this Court in Parkash Chand Sogani v. The State of
Rajasthan Criminal Appeal No. 92 of 1956 decided on January
15, 1957, wherein it was observed:

It is also the defence case that Shiv Lal did not know
the appellant. But on a reading of the evidence of P.W. 7 it
seems to us clear that Shiv Lal knew the appellant by sight.
Though he made a mistake about his name by referring to

Crl.As. 534/2002 540/2002 Page 8 of 14
him as Kailash Chandra, it was within the knowledge of Shiv
Lal that the appellant was a brother of Manak Chand and he
identified him as such. These circumstances are quite
enough to show that the absence of the identification parade
would not vitiate the evidence. A person who is well- known
by sight as the brother of Manak Chand, even before the
commission of the occurrence, need not be put before an
identification parade in order to be marked out. We do not
think that there is any justification for the contention that the
absence of the identification parade or a mistake made as to
his name, would be necessarily fatal to the prosecution case
in the circumstances.

10. The Court concluded:

“It seems to us that it has been clearly laid down by this
Court, in Parkash Chand Sogani v. The State of Rajasthan
(supra) (AIR, Cri LJ), that the absence of test identification
in all cases is not fatal and if the accused person is well-
known by sight it would be waste of time to put him up for
identification. Of course if the prosecution fails to hold an
identification on the plea that the witnesses already knew the
accused well and it transpires in the course of the trial that
the witnesses did not know the accused previously, the
prosecution would run the risk of losing its case.”

11. In Harbhajan Singh v. State of Jammu and Kashmir (1975)
4 SCC 480 though a test identification parade was not held, this
Court upheld the conviction on the basis of the identification in
Court corroborated by other circumstantial evidence. In that
case it was found that the appellant and one Gurmukh Singh
were absent at the time of roll call and when they were arrested
on the night of 16th December, 1971 their rifles smelt of fresh
gunpowder and that the empty cartridge case which was found at
the scene of offence bore distinctive markings showing that the
bullet which killed the deceased was fired from the rifle of the
appellant. Noticing these circumstances this Court held:

Crl.As. 534/2002 540/2002 Page 9 of 14

“In view of this corroborative evidence we find no
substance in the argument urged on behalf of the appellant
that the Investigating Officer ought to have held an
identification parade and that the failure of Munshi Ram to
mention the names of the two accused to the neighbours who
came to the scene immediately after the occurrence shows
that his story cannot be true. As observed by this Court in
Jadunath Singh v. State of U.P. (AIR 1971 SC 363) absence
of test identification is not necessarily fatal. The fact that
Munshi Ram did not disclose the names of the two accused
to the villages only shows that the accused were not
previously known to him and the story that the accused
referred to each other by their respective names during the
course of the incident contains an element of exaggeration.
The case does not rest on the evidence of Munshi Ram alone
and the corroborative circumstances to which we have
referred to above lend enough assurance to the implication
of the appellant.”

12. It is no doubt true that much evidentiary value cannot
be attached to the identification of the accused in Court where
identifying witness is a total stranger who had just a fleeting
glimpse of the person identified or who had no particular reason
to remember the person concerned, if the identification is made
for the first time in Court.

13. In Ram Nath Mahto v. State of Bihar (1996) 8 SCC

630) this Court upheld the conviction of the appellant even when
the witness while deposing in Court did not identify the accused
out of fear, though he had identified him in the test identification
parade. This Court noticed the observations of the trial Judge
who had recorded his remarks about the demeanor that the
witness perhaps was afraid of the accused as he was trembling at
the stare of Ram Nath -accused. This Court also relied upon the
evidence of the Magistrate, PW-7 who had conducted the test
identification parade in which the witness had identified the
appellant. This Court found, that in the circumstances if the
Courts below had convicted the appellant, there was no reason to

Crl.As. 534/2002 540/2002 Page 10 of 14
interfere.

14. In Suresh Chandra Bahri v. State of Bihar (1995 Supp
(1) SCC 80), this Court held that it is well settled that substantive
evidence of the witness is his evidence in the Court but when the
accused person is not previously known to the witness concerned
then identification of the accused by the witness soon after his
arrest is of great importance because it furnishes an assurance
that the investigation is proceeding on right lines in addition to
furnishing corroboration of the evidence to be given by the
witness later in Court at the trial. From this point of view it is a
matter of great importance, both for the investigating agency and
for the accused and a fortiori for the proper administration of
justice that such identification is held without avoidable and
unreasonable delay after the arrest of the accused. It is in
adopting this course alone that justice and fair play can be
assured both to the accused as well as to the prosecution.
Thereafter this Court observed:

“But the position may be different when the accused
or a culprit who stands trial had been seen not once but for
quite a number of times at different point of time and places
which fact may do away with the necessity of a TI parade.

15. In State of Uttar Pradesh v. Boota Singh and Ors.
(1979)1 SCC 31), this Court observed that the evidence of
identification becomes stronger if the witness has an opportunity
of seeing the accused not for a few minutes but for some length of
time, in broad daylight, when he would be able to note the
features of the accused more carefully than on seeing the accused
in a dark night for a few minutes.

16. In Ramanbhai Naranbhai Patel and Ors. v. State of
Gujarat (2000 (1) SCC 358) after considering the earlier
decisions this Court observed:

“It becomes at once clear that the aforesaid
observations were made in the light of the peculiar facts and

Crl.As. 534/2002 540/2002 Page 11 of 14
circumstances wherein the police is said to have given the
names of the accused to the witnesses. Under these
circumstances, identification of such a named accused only
in the Court when the accused was not known earlier to the
witness had to be treated as valueless. The said decision, in
turn, relied upon an earlier decision of this Court in the case
of State (Delhi Admn.) v. V.C. Shukla MANU/SC/0545/1980
: 1980CriLJ965 wherein also Fazal Ali, J. speaking for a
three-Judge Bench made similar observations in this regard.
In that case the evidence of the witness in the Court and his
identifying the accused only in the Court without previous
identification parade was found to be a valueless exercise.
The observations made therein were confined to the nature
of the evidence deposed to by the said eye-witnesses. It,
therefore, cannot be held, as tried to be submitted by learned
Counsel for the appellants, that in the absence of a test
identification parade, the evidence of an eye-witness
identifying the accused would become inadmissible or totally
useless; whether the evidence deserves any credence or not
would always depend on the facts and circumstances of each
case. It is, of course, true as submitted by learned Counsel
for the appellants that the later decisions of this Court in the
case of Rajesh Govind Jagesha v. State of Maharashtra
MANU/SC/0703/1999 : 2000CriLJ380 and State of H.P. v.
Lekh Raj MANU/SC/0714/1999 : 2000CriLJ44 , had not
considered the aforesaid three-Judge Bench decisions of this
Court. However, in our view, the ratio of the aforesaid later
decisions of this Court cannot be said to be running counter
to what is decided by the earlier three-Judge Bench
judgments on the facts and circumstances examined by the
Court while rendering these decisions. But even assuming as
submitted by learned Counsel for the appellants that the
evidence of, these two injured witnesses i.e. Bhogilal
Ranchhodbhai and Karsanbhai Vallabhbhai identifying the
accused in the Court may be treated to be of no assistance to
the prosecution, the fact remains that these eye-witnesses
were seriously injured and they could have easily seen the
faces of the persons assaulting them and their appearance

Crl.As. 534/2002 540/2002 Page 12 of 14
and identity would well within imprinted in their minds
especially when they were assaulted in broad daylight. They
could not be said to be interested in roping in innocent
persons by shielding the real accused who had assaulted
them.”

17. These aspects were also highlighted in Malkhansingh
and Ors. v. State of M.P. (2003 (5) SCC 746) and Munshi Singh
Gautam (dead) and Ors. v. State of M.P. (2005) (9) SCC 631) .

18. In view of the evidence which the trial Court and the
High Court have analysed and the identification by PW-3 in the
TI Parade, there is no infirmity in the conclusions of guilt of the
accused. The appellant’s conviction is accordingly maintained.
The sentence also does not warrant interference.”

13. Further contention of learned counsel for the appellant is that though
the prosecutrix deposed that she suffered injuries on her elbow, feet and head
however the MLC does not reveal any external injuries. Though no external
injury had been received by the prosecutrix however since after the incident
within three hours the FIR was registered and she was medically examined,
semen stains of AB Group were found on her petticoat, vaginal swab and
cervical swab. Testimony of the husband of the prosecutrix who
immediately ran to call for the help got two police officers who apprehended
five accused at the spot and the FSL report are sufficient to corroborate the
version of the prosecutrix which can be relied upon even in the absence of
corroboration as noted above.

14. Learned counsels for the appellants have laid emphasis on the fact that
the prosecutrix was declared hostile for the reason she failed to attribute any
role to Praveen @ Bablu and Raj Kumar due to which they were acquitted.
It is well settled that testimony of a hostile witness does not get effaced

Crl.As. 534/2002 540/2002 Page 13 of 14
totally and conviction can be based on the part testimony which is
corroborated in material particular. (See Khujji @ Surendra Tiwari Vs. State
of Madhya Pradesh (1991) 3 SCC 627). Though Praveen @ Bablu and Raj
Kumar were apprehended at the spot however they were the ones who stood
on one side and did not commit rape on the prosecutrix. In such a situation,
the possibility of prosecutrix not having seen them properly cannot be ruled
out. Further merely because she did not identify Praveen @ Bablu and Raj
Kumar as the two boys along with the appellants, who stood on one side, her
testimony qua the appellants herein cannot be ignored.

15. In view of the aforesaid discussion, the impugned order of conviction
and order on sentence are upheld. Bail bonds and surety bonds of appellants
are cancelled. They will surrender to custody to undergo the remaining
sentence.

16. Appeals are dismissed.

17. TCR be returned.

18. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of the Jail record.

(MUKTA GUPTA)
JUDGE
MAY 25, 2017
‘v mittal’

Crl.As. 534/2002 540/2002 Page 14 of 14