Vaijnath vs State Of Maharashtra
2005 Latest Caselaw 1114 Bom

JUDGMENT

R.S. Mohite, J.

1. This appeal filed by the appellant Vaijinath Rangnath Jagtap (hereinafter referred to as the "accused") impugnes the judgment and order dated 6-1-2000 passed by the learned Additional Sessions Judge, Osmanabad, in Sessions Case No. 91/1999. By the impugned judgment and order, the trial Court convicted the accused for the offence punishable under Sections 363 and 376(2)(f) of the Indian Penal Code. For the offence punishable under Section 363 the accused has been sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/- in default to suffer further rigorous imprisonment for one month. For the offence punishable under Section 376(2)(f) the accused has been sentenced to imprisonment for life and to pay a fine of Rs. 1,000/- in default to suffer further rigorous imprisonment for three months. The substantive sentences are to run concurrently.

2. The brief facts of the prosecution case were as under :

(a) The prosecutrix Laxmi Surwase was, at the time of the incident, a child aged about 7 years. She was a student studying in the first standard and used to reside near Shivaji statue in Osmanabad town. PW-5 Manisha Pawar was a young girl aged about 9 years and at the time of the incident and she also used to reside at Wadarwada, located near Shivaji statute in Osmanabad town. Another witness PW-9 Sunil Dhotre was a young boy aged 12 years who also was residing in the neighbourhood of Laxmi and Manisha.

(b) The incident of kidnapping and rape occurred on 5-2-1999.

(c) On 5-2-1999 at about 7.30 a.m. PW-8 Pinki Pawar, who was a girl aged 15 years and who was working as a maid-servant, was going to her place of work which was the house of persons from Jain community. When she reached near the Ganpati temple, she found the accused following her. The accused asked her whether she was interested in corning for doing some work. When she declined the accused went away elsewhere.

(d) In the same morning, according to the evidence of PW-9 Sunil Dhotre, when he was going towards a fire place the accused came to him and asked him whether he would come alongwith him for collecting Wada (part of the sugar-cane plant containing leaves).

Sunil refused to go alongwith the accused though the accused asked him thrice. The accused then left the place.

(e) About 20 minutes later on the same day, the prosecutrix PW-6 Laxmi and her friend PW-5 Manisha had come to a shopping centre to purchase some oil to be used for cooking. The accused approached these two small girls and asked to come for removing Wada. Laxmi refused but the accused paid Rs. 20/- to her. Of this money, Laxmi handed over Rs. 10/- to her friend Manisha but Manisha threw the money. Laxmi picked up the Rs. 10/-.

(f) The accused then stopped a rickshaw and again asked both these girls to come alongwith him, PW-6 Laxmi agreed to go with him while PW-5 Manisha refused.

(g) The accused then Sat in the rickshaw with PW-6 Laxmi and went towards Shingoli area of the town. On reaching Shingoli area, the accused paid Rs. 20/- to the rickshaw driver and then the rickshaw driver went away.

(h) The accused then took the prosecutrix to a secluded place by threatening her with a stone. There, under the threat of injury by the stone he inserted his finger in the private part of Laxmi and he ultimately committed rape on her. PW-6 Laxmi suffered bleeding injuries on her private part because of the rape. The accused went away and Laxmi remained at the spot weeping. Two persons came to that spot and they asked Laxmi as to why she was weeping. They took Laxmi on their motor cycle and left her near the jail. Laxmi was then weeping and walking along the road.

(i) In the meanwhile, PW-5 Manisha ran to the house of Laxmi and informed about the incident to PW-3 Anusayabai -- the mother of Laxmi. She told Anusayabai that one person had attempted to take her and Laxmi but she ran away by giving a jerk. The said person had taken away Laxmi in a rickshaw.

(j) on receiving such information PW-3 Anusayabai started searching for her daughter. She went to the police station and alongwith the police they proceeded to various places such as Dnyaneshwar temple and reached upto Shingoli area. In the course of their search they came across Laxmi who was walking on the road towards the town. Anusayabai collected Laxmi from the road.

Laxmi was vomiting and weeping. Anusayabai found that her daughter had been raped. There was blood on her clothes including her frock, nicker and skirt. Blood was also oozing from her private part.

(k) The police and Anusayabai took Laxmi to the civil hospital, Osmanabad, where Laxmi was admitted and was given treatment.

(l) PW-10 Shaukat Jamdar was the Police Sub-Inspector at Osmanabad City Police Station. On 5-2-1999 at about 12.30 p.m. he received information that a girl named Laxmi had been admitted in the civil hospital and was being administered treatment. He proceeded to the civil hospital and met Anusayabai who was with Laxmi. He recorded the First Information Report (Exhibit 20) of Anusayabai as per her narration. He returned to the police station and registered Crime No. 35 of 1999 for offences punishable under Sections 363 and 376(2)(f) of the Indian Penal Code and commenced the investigation. At about 4 p.m. of the same day, Anusayabai produced clothes of her daughter Laxmi and PSI Jamdar seized the same under a panchanama (Exhibit 18). He then recorded the statements of some witnesses.

(m) On 6-2-1999 he recorded the statement of Laxmi and handed over the investigation to Police Inspector Deepak Jatkar as per the directions of the Deputy Superintendent of Police. Police Inspector Deepak Jatkar who took over the investigation on 6-2-1999 commenced the search of the accused. The accused was arrested on 11-2-1999. On the same day, PI Jatkar seized the underpant of the accused under panchanama (Exh. 23). He recorded the statements of several witnesses.

(n) On 12-2-1999 PI Deepak Jatkar made a requisition to Tahsildar Sudhakar Mahajan (PW-7) for holding an identification parade of the accused. The identification parade was held by the Tahsildar on 15-2-1999 in which three witnesses i.e. PW-5 Manisha, PW-6 Laxmi and PW-9 Sunil identified the accused. In the course of investigation the Investigating Officer received the medical certificate (Exhibit 16) of Laxmi which clearly established that Laxmi had been raped. He also received the medical certificate of the accused. He sent the seized articles and samples to the Chemical Analyser under his covering letter (Exhibit 30). Upon receipt of the Chemical Analyser's report (Exhibit 14) he filed the charge-sheet in the Court on 10-5-1999.

3. After framing of the charge, the trial commenced. The prosecution led the evidence of 11 witnesses, of which the eye-witness to the rape and kidnapping was PW-6 Laxmi. PW-5 Manisha Pawar was examined as the child who was an eye-witness to the kidnapping of Laxmi. Other corroborating evidence to establish the presence of the accused at the spot of the offence was sought to be brought on record through the evidence of PW-8 Pinki and PW-9 Sunil. The prosecution examined PW-3 Anusayabai --mother of Laxmi. The medical evidence was brought on record through the evidence of PW-1 Dr. Sunita Garad. The identification to the accused at the test identification parade was through the evidence of PW- 7 Tahsildar Sudhakar Mahajan. PW-2 Vijay Vasant Jadhav was the panch to prove the panchanama relating to the seizure of clothes of Laxmi. PW-4 Pratap Kird was the panch to prove the panchanama relating to the seizure of the underpant of the accused. Finally the prosecution also examined two Investigating Officers i.e. PW-10 PSI Shaukat Jamdar, and PW-11 Police Inspector Deepak Jatkar.

4. The defence of the accused was of total denial. No defence evidence was led on behalf of the accused. After recording the statement of the accused under Section 313 of the Code of Criminal Procedure and on consideration of the evidence -- both ocular and documentary, the trial Court delivered the impugned judgment and order convicting and sentencing the appellant as aforesaid. The accused has thus filed this appeal in this Court.

5. On behalf of the accused, it was urged that the prosecution case rested solely on the question of identification of the accused. It was not seriously disputed that the prosecutrix Laxmi had been raped. The argument was that there was reasonable doubt as to whether the accused had committed the said crime. It was pointed out that PW-5 Manisha, PW-6 Laxmi and PW-9 Sunil were the three witnesses who had identified the accused at the identification parade. All these witnesses had categorically admitted that the accused had been shown to them by the police. PW-6 Laxmi had further admitted that when they were going to the Tahsil office, the police had shown the accused to them. She had further stated that she, Manisha and Sunil were taken to the Tahsil office in a police jeep, PW-9 Sunil also had admitted in his cross-examination that he, Laxmi and the complainant had gone to see the person arrested by the police at the police station.

6. It was contended that if the police had shown the accused to these three witnesses, then the identification of the accused by these witnesses at the identification parade as well as the identification in the Court were valueless. Insofar as PW-8 Pinki is concerned, it was contended that her evidence even if accepted could not be the basis for convicting the accused for the offence punishable under Section 376 of the Indian Penal Code. At the highest the prosecution has established that the accused was present near Ganpati temple of the town. It was urged that on the basis of lack of acceptable identification the appeal ought to have been allowed.

7. The learned Additional Public Prosecutor supported the reasoning given by the trial Court in the impugned judgment and order. It was urged that the evidence of PW-5 Manisha, PW-6 Laxmi, PW-8 Pinki and PW-9 Sunil was consistent and they had all identified the accused in the identification parade held within ten days of the incident. It was urged that Manisha, Laxmi, Sunil and Pinki had no grouse against the accused. There was no reason to these three children to falsely implicate the accused in such a serious crime. It was contended that the identification in the Court was substantive evidence and could not be discarded only because the Police Officer had shown some over-enthusiasm partly when the three witnesses Laxmi, Manisha and Sunil were innocent minor children. That these children who were taken in a police jeep would have been helpless and would have no control over the activities of the Investigating Officer. It was argued that the identification of the accused by these witnesses was further corroborated by the identification made by Pinki who was an older girl and there was no reason to discard the evidence of Pinki.

8. We have perused the entire evidence. In our view, the conviction of the accused will have to be confirmed for the reasons which are given hereinbelow. We are of the further view that the sentence of the accused insofar as the offence under Section 376 (2)(f) of the Code is concerned requires modification for the reasons which are mentioned hereafter.

9. As already mentioned hereinabove, the learned Advocate for the defence did not seriously contest the fact that PW-6 Laxmi had been raped. In fact, the medical evidence conclusively establishes that Laxmi was raped. The argument was, therefore, limited to the question of identification.

10. Insofar as three witnesses PW-5 Manisha, PW-6 Laxmi and PW-9 Sunil who had identified the accused at an identification parade after the accused was shown by the police are concerned, the learned Advocate for the accused placed reliance upon a judgment of the Apex Court in the case of Mohanlal Gangaram Gehani v. State of Maharashtra AIR 1982 SC 839. In that case, one of the eye-witnesses by name Shetty had admitted that he did not know the accused before the occurrence. That the accused was shown to him by the police at the police station. That thereafter no test identification parade was held to test his power of identification. In this background the Apex Court held that the identification of the accused by witness Shetty in the Court became absolutely valueless. The relevant paragraphs being paragraphs 19 and 20 relied on by the learned Advocate for the accused are in the following terms :

19. Another important circumstance which discredits the testimony of P.W. 5 (Shetty) is that he admits that although he did not know the accused from before the occurrence yet the accused was shown to him by the police at the police station. The relevant statement of PW-5 may be extracted thus :

I had seen the accused before coming to the Court and after the incident. I had seen the accused ten days after I was discharged from the hospital. I was shown these accused by the police at the police station.

20. Thus, as Shetty did not know the appellant before the occurrence and no Test Identification parade was held to test his power of identification and he was also shown by the police before he identified the appellant in Court, his evidence becomes absolutely valueless on the question of identification. On this ground alone, the appellant is entitled to be acquitted. It is rather surprising that this important circumstance escaped the attention of the High Court while it laid very great stress in criticising the evidence of Dr. Heena when her evidence was true and straightforward.

11. In the present case, we find that the factual situation is different. Three children Manisha, Laxmi and Sunil were very young when the investigation was going on. Laxmi must have been aged 7 years, Manisha 9 years and Sunil 11 years. They had no control whatsoever over the activities of the Investigating Officer. They had also no reason to falsely implicate or identify anybody with a view to implicate him in the crime. It may be that the police officer might have in his over-enthusiasm shown the accused to the three children witnesses on the date when the identification parade was held by the Tahsildar. We hasten to add that no such suggestion has been put to the Investigating Officer who was investigating the crime on 15-2-1999. In other words, there was no cross-examination of Police Inspector Deepak Jatkar on the point of his showing the accused to the children on 15-2-1999. Even assuming that on the way to the tahsil office the children were shown the accused we find no reason as to why such an action on the part of the police officer, perpetuated on small children who had no means of control over the acts of the Investigating Officer, should be used in such a manner as to completely efface the identification of the accused by three children in the Court. It must be remembered that the identification in the Court is the only substantive evidence of identification. The evidence pertaining to the identification at a test identification parade is an event during investigation process. Such parades do not constitute substantive evidence and the test identification parade evidence provides corroboration to the identification of the accused by the witnesses in the Court, if required. In the present case, none of the three witnesses Laxmi, Manisha or Sunil were put any question about their having been tutored before their evidence was recorded. There is no suggestion of tutoring by the police or even by any relative. There is no major omission amounting to a contradiction which is brought on record. The omissions brought on record pertain to small details. There is absolutely no reason for these small children to falsely implicate the accused. The accused was from a different village situated 23 kms away. It must be remembered that the incident of kidnapping had occurred in broad day-light. Laxmi, Manisha and Sunil had occasion to see the accused in good light and for a reasonable period of time. It is not suggested to any of these witnesses that the police officer at any point of time suggested to these witnesses that they should falsely identify the accused. No such suggestion is also put to the concerned Police Officer.

12. We further find that the identification of the accused by these three witnesses finds corroboration from the evidence of PW-8 Pinki who was an older girl aged 14 years. The evidence of Pinki clearly establishes that the accused was near Ganpati temple situated in Osmanabad town at 7.30 a.m. i.e. just prior to the kidnapping of Laxmi. The said evidence also establishes that the person who approached her was asking her to come for work. These circumstances are important because it is also the case of Manisha and Laxmi that the accused asked them to accompany him for work. Similarly of the request for work made to Pinki being the same as the requests made to Laxmi, Manisha and Sunil by the accused, also lends credence to the fact that the person who accompanied Laxmi must have been the same who had requisitioned Pinki earlier in the morning. No suggestion has been made to Pinki in her cross-examination that she was tutored by the police or anybody else. There is nothing in the cross-examination of Pinki which could lead us to cast a doubt on her version. Insofar as the evidence of Pinki is concerned in order to persuade us to disbelieve her version, it was argued that the prosecution had failed to get the accused identified by Pinki at the identification parade held on 15-2-1999. Reliance was placed upon the judgment of the Apex Court in the case of Kanan and Ors. v. State of Kerala . In the said case the Apex Court observed as under :

It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valuless unless there has been a previous T.I. parade to test his powers of observations. The idea of holding T.I. parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T. I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court. If these circumstances, therefore, we feel that it was incumbent on the prosecution in this case to have arranged T.I. parade and get the identification made before the witness was called upon to identify the appeal in the Court. On this ground alone, the testimony of P.W. 25 becomes unworthy of credence and must be excluded from consideration. 13. We have noted that the aforesaid judgment of the Apex Court was of a bench of two-Judges. We have also considered a more recent judgment of the larger Bench of three Judges of the Apex Court, in the case of Malkhansingh and Ors. v. State of M.P. in which the effect of failure to hold test identification parade has been considered. In this case, the Apex Court observed in paragraphs 6 and 7 as under :

6. The principal submission urged before the Courts below as also before us is whether the conviction of the appellants can be sustained on the basis of the identification of the appellants by the prosecutrix in Court with holding a test identification parade in the course of investigation. While the appellants contend that the identification in Court not preceded by a test identification parade is of no evidentiary value, the prosecution contends that the substantive evidence is the evidence of identification in Court and therefore, the value to be attached to such identification must depend on facts and circumstances of each case. No general rules could be laid that such identification in the Court is of no value.

7. 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 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 stranger to them, in the form of earlier identification proceedings. This rule of prudence, 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 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. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. 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.

14. It is clear from the aforesaid judgments that notwithstanding the fact that the test identification parade was not held, in appropriate cases, the Court can accept the evidence of identification even without insisting on corroboration. In the present case, we find that Pinki had absolutely no reason to falsely implicate the accused. She had gone to see the accused at 7.30 a.m. in the morning when there was reasonably good light. It is true that as a matter of prudence the Investigating Officer should have got the accused identified by her at the test identification parade so that he too would be assured that the investigation was proceeded along correct lines and also as such corroborative evidence would have further strengthened the substantive identification by Pinki in the Court. It must, however, be remembered that Pinki, who was also a minor had no control over the investigation process. There is no reason for Pinki to involve the accused falsely. As observed hereinabove, no suggestion of tutoring or false involvement of the accused has been made to Pinki in her cross-examination. In the net result, we find that the evidence of PW-5 Manisha, PW-6 Laxmi, PW-8 Pinki and PW-9 Sunil is acceptable on the point of identification.

15. It was brought to our notice that in the first information PW-3 Anusayabai stated that Laxmi had disclosed to her that she was raped by two persons. The defence in the present case has failed to bring this contradiction on record during the evidence of PW-3 Anusaya. The first information of Anusaya can only be used to contradict or corroborate its maker. Laxmi was examined as a witness. No suggestion that she was raped by two persons was put to her in her cross-examination. The first information report could not have been used to contradict the evidence of PW-6 Laxmi.

16. In the circumstances, on merits the appeal must fail. We have given our anxious consideration to the question of sentence. In our view the sentence of imprisonment for life for offence under Section 376(2)(f) of the Code is a little harsh. Nothing has been brought on record to show that the accused was earlier guilty of any such crime or was a habitual offender. Section 376(2)(f) which deals with rape on a child below 12 years provides for punishment which is normally not to be less than 10 years but which may extend to life. The Courts are also empowered, for adequate and special reasons to be mentioned in the judgment to impose a sentence of imprisonment of either description for a term which is less than ten years. In the present case, we do not find any adequate or special reasons to sentence the accused for less than ten years rigorous imprisonment. The facts of the case indicate that the accused at the initial stages did not seem to have fixed plan to rape anybody. We say this because he even asked Sunil, who is a boy, to accompany him for work. We have not lost sight of the fact that the intention to commit rape can be formed and could have been formed even at a subsequent stage. Apart from the heinous crime of rape on a small girl for which we intend to impose severe punishment, the child was not otherwise harmed. We feel that this is a case where ends of justice would suffice if sentence of ten years coupled with fine already awarded is imposed upon the accused.

17. In the result, the appeal is partly allowed. The conviction of the accused for the offences punishable under Sections 363 and 376(2)(f) of the Indian Penal Code is maintained. The sentence for offence punishable under Section 363 of the Indian Penal Code as awarded by the trial Court is also maintained. However, the sentence of imprisonment for life imposed by the trial Court on the accused for the offence punishable under Section 376(2)(f) of IPC is reduced to rigorous imprisonment for ten years with a fine of Rs. 1,000/- in default, the accused to suffer further rigorous imprisonment for three months. Both the substantive sentences to run concurrently. The accused shall be entitled to set-off of any period already undergone by him. The accused shall surrender to his bail bond on 17-10-2005 to undergo his sentence. The ball bond of the accused to stand cancelled on 18-10-2005 and if the accused does not surrender on 17-10-2005 the Sessions Court will issue a non-bailable warrant to secure his custody. The appeal stands disposed off accordingly.