Judgment:
1. This Appeal is directed against the judgment dt. 16-4-91 passed by the learned XXII Addl. City Civil and Sessions Judge, Bangalore in S.C. No. 217/89, whereby the appellant herein was convicted and sentenced for an offence under Sec. 376, IPC.
2. The brief facts of the case are as follows :
That on 19-2-89 at about 6.30 p.m., Boramma - P.W. 1 and her cousin sister by name Bhagya were proceeding on Timmenahalli road to reach Vijayanagar bus stand and at that point of time, the appellant and another by name Parameshi came in an autorickshaw and forced P.W. 1 - prosecutrix to get into the autorickshaw and thereafter, they both took her to a remote house situated at Mudalapalya and that the appellant herein and the abovesaid Parameshi raped her repeatedly till the next day morning and thereafter ran away from the place leaving her to her fate. That the cousin sister of P.W. 1, the abovesaid Bhagya who saw P.W. 1 being threatened and taken in an autorickshaw had returned to the house of P.W. 1 and reported the matter to her elder sister, Ningamma - P.W. 2 and thereafter, P.W. 2 searched for P.W. 1 till 9.45 p.m. on that day and thereafter she went to the Vijayanagar Police Station and lodged a complaint before the said Police to the effect that her sister - P.W. 1 was kidnapped by two persons, whereupon the Vijayanagar Police had registered a case in Crime No. 136/89 for an offence under Sec. 363 of I.P.C.
3. That the day next, P.W. 1 - Boramma after regaining her consciousness reached her house and narrated what had come on her in the hands of the appellant and another person to P.W. 2 - Ningamma. That thereafter, both P.Ws. 1 and 2 went to the Vijayanagar Police Station and P.W. 1 had given her statement, Ex. P-1 as against the appellant herein and the other person informing the said act of gang rape by them and the Police had registered a case against the appellant and the other person, under Section 376, IPC. That thereafter, both P.W. 1 and the appellant and the other co-accused - Parameshi were sent to the doctor - Shivashankar P.W. 4, for medical examination. The doctor - P.W. 4 had issued the medical certificate in respect of the appellant herein as at Ex. P-6, in respect of P.W. 1 as at Ex. P-7 and in respect of the other person by name Parameshi as at Ex. P-8. That the appellant together with the co-accused Parameshi were arrested and were charge-sheeted before the jurisdictional Magistrate who in turn had committed the appellant and the co-accused Parameshi to the Court of Sessions for taking trial for the offence under S. 376, IPC.
4 That the prosecution had examined in all 5 witnesses and marked Exs. P-1 and P-12 and further marked M.Os. 1 to 11 in support of their case. The learned Sessions Judge having heard the parties and on appreciation of evidence on record passed the impugned judgment, whereby the learned Sessions Judge had convicted and sentenced the appellant for 7 years R.I. for the said offence under Section 376, I.P.C. The co-accused of the appellant however was given the benefit of doubt and he was acquitted of the charge.
5. The appellant herein having been aggrieved with the impugned judgment and the above sentence, preferred the instant appeal before this Court.
6. I heard the learned counsel for the appellant Sri N. Samba Murthy and Sri B. H. Satish, learned High Court Government Pleader for the respondent-State. I have also perused the case records.
7. At the outset, the learned counsel for the appellant had argued that there are two F.I.Rs. registered and that they are very badly delayed, for both of them reached the Magistrate at one and the same time in the afternoon of the day next. He pointed out that the first F.I.R. was registered by the police at 9.45 p.m. on 19-2-89 for an offence under S. 363 of I.P.C. at the instance of P.W. 2, whereas the second F.I.R. was registered the day next at about 10.30 a.m. for the offence under S. 376 of I.P.C. at the instance of P.W. 1.
8. The learned counsel for the appellant further argued that the learned Sessions Judge had gravely erred in not observing that P.W. 1 - prosecutrix had given evidence before the Court that she did not know the appellant and the co-accused Parameshi and that at the time of the alleged incident of forcing P.W. 1 into an autorickshaw, it was dark and at the time of alleged act of rape, it was pitch dark and there was no chance for P.W. 1 to identify the persons involved in the incident. In this context, he had argued that the prosecution in the facts and circumstances of the case, would have necessarily held an identification parade and that the prosecution having no recourse to the said identification parade, miserably failed to identify the persons involved in the case and therefore he submitted that non-holding of the identification parade is fatal to the case of the prosecution. In support of such an argument, he had also cited before me a reported decision of the Delhi High Court in 1995 (1) Cri LJ 548. He had further argued that the co-accused-Parameshi was in fact acquitted by the learned Sessions Judge for the reason that he was not identified and that he was entitled to for the benefit of doubt. It is therefore his further argument that the said benefit of doubt would have as well be extended to the appellant herein by the learned Session Judge. While pointing out that medical evidence in the case was not corroborative of the evidence of P.W. 1-prosecutrix, he submitted that the recording of the conviction as against the appellant herein is totally unjust and illegal and called for to be interfered with by this Court in the instant appeal. Therefore, he prayed that the impugned judgment passed by the learned Sessions Judge be set aside and the appellant be absolved of the charge.
9. As against the above argument of the learned counsel for the appellant, the learned High Court Government Pleader had counter argued that there is no delay in lodging the F.I.R. at all for the first F.I.R. was registered at about 9.45 p.m. on 19-2-89 by the police at the instance of P.W. 2, when she was informed by her cousin sister Bhagya that P.W. 1 was forcibly taken by two persons (below 30 years of age) in an autorickshaw and the second F.I.R. was registered at about 10.30 a.m. the day next, i.e. 20-2-89 after P.W. 1 returned to ber house at about 6.00 a.m. on that day. That being the position, the learned High Court Government Pleader submitted that there is no delay at all to complain before this Court that there was delay in registering the F.I.R. By pointing out to the above time and the date of registering the first F.I.R. and the second F.I.R., he pointed out that there was no delay worth the name in registering both the F.I.Rs. He further submitted that the first F.I.R. was registered for an offence under S. 363 for the reason that the information to P.W. 2 was, that, her sister P.W. 1 was abducted and forcibly taken by two persons in an autorickshaw and that the second F.I.R. was registered by the police when P.W. 1 had given a statement Ex. P. 1, before them that she was gang raped by the appellant and the co-accused. Therefore, he submitted that these two F.I.Rs. had come into existence in a natural course of event and occurrence. The learned Government Pleader further argued that P.W. 1 - the victim prosecutrix had given her evidence in a very natural way as to what had come on her at the hands of the appellant and the co-accused-Parameshi. He had also pointed out that the evidence of P.W. 1 was corroborated by the evidence of P.W. 2, her sister and further the evidence of P.W. 4-the doctor. It is his further argument that the innocent prosecutrix had no reason to grind axe against the appellant and the co-accused to falsely implicate them in the case to say that she was raped, more so, when she was an unmarried woman. He had also pointed out that in the F.I.R. the name of the appellant had occurred and it is thereafter, appellant as well as the other person by name Parameshi were arrested by the police and subjected to medical examination in the hands of P.W. 4-doctor, that when the appellant and the co-accused had taken the lady at about 6.30 p.m. on 19-2-89 and thereafter P.W. 1 was in the company of the appellant and the co-accused till the next day morning, it is not at all a difficult proposition for P.W. 1 to identify the appellant and the co-accused; let apart he had also pointed out that the appellant was living in the vicinity of her house and that being the position, it was not at all difficult for P.W. 1 to identify the appellant. That being the situation, he submitted that the question of holding an identification parade did not arise for, according to him, there was no necessity of that at all.
10. In support of his argument, the learned Government Pleader hand cited before me the reported decisions in : 1958CriLJ698 to the effect that failure to hold identity parade does not make the identity made by the victim in the Court bad; in : ILR1995KAR2030 , on the point that the identification parade depends upon facts and circumstances of each case and when the evidence of witnesses is that she had sufficient opportunity to see, observe and also to talk with the culprit, her evidence can be accepted without there being any identification parade; in : 1996CriLJ1728 , on the point that the negligence on the part of the investigating agency cannot be a ground to discredit the testimony of the prosecutrix in a rape case; in 1995 SCC 977, on the point that in a rape case corroboration of evidence is not essential and that she was not an accomplice and that her evidence assures to the accusation; in : 1990CriLJ889 , again on the point that when a prosecutrix in a rape case is a competent witness, under S. 118 of Evidence Act, her evidence must receive the same weight as that of the injured witness.
11. While summing up his argument, the learned Government Pleader submitted that the prosecution had proved the guilt of the appellant beyond all reasonable doubt. Therefore, he submitted that the impugned judgment passed by the learned Sessions Judge was just and proper and not called for to be interfered with by this Court.
12. Now the points for my consideration are, whether the impugned judgment passed by the learned Sessions Judge is just and proper and based on the evidence on record and whether the same is called for to be interfered with by this Court in the instant appeal.
13. When my answer to the first point is in the affirmative, my answer to the second point is in the negative for the following reasons :
At the outset, let me take up the first point canvassed by the learned counsel for the appellant that there is a delay in filing the F.I.R. I should point out here that the incident of rape of P.W. 1 had preceded with an act in the hands of the appellant and the co-accused in forcibly taking P.W. 1 in an autorickshaw at about 6.30 p.m. on 19-2-89 and the appellant and the co-accused had gagged her and moved her in an autorickshaw all around for quite some time to buy time and till they reached a remote place in a house in Mudalapalya. It is in the evidence of P.W. 1 that she had protested both at the place when she was forced into the autorickshaw and also at the place where she was ravaged. The said incident of forcibly taking P.W. 1 by the appellant and the co-accused on the crucial day was observed by her cousin Bhagya and it is on her information to the sister of P.W. 1, Ningamma - P.W. 2, P.W. 2 had reported the matter at the first instance to the jurisdictional police, that too, when she failed to know the whereabout of P.W. 1 on that day and naturally the police had registered a case for kidnap (under S. 363, I.P.C.) and it is only thereafter, when P.W. 1 had returned the next day morning, when P.W. 2 came to know in detail all about the incident, P.W. 1 and P.W. 2 proceeded to the Police Station to report the matter to police. It is only thereupon the police had recorded the statement of P.W. 1 as per Ex. P. 1. It is in the said statement, the name of the appellant herein had occurred; the reason is obvious, that the appellant is living in the neighbourhood of P.Ws. 1 and 2 and they had occasion to see him around at their place. If that is the sequence of events, in my considered view, there is no delay worth the name as it has been canvassed by the learned counsel for the appellant and therefore, I have got no hesitation to reject the said argument of the learned counsel for the appellant; accordingly, I reject the same.
14. The learned counsel for the appellant very vehemently argued that non-holding of the identification parade or the test was fatal to the case of the prosecution, for according to him, the alleged incident of forcible taking P.W. 1 in an auto as well as the incident of rape had occurred during the night and there was no occasion for P.W. 1 to identify the appellant and the co-accused as the culprits who indulged in it. Here, I should point out that P.W. 1 had sufficient time at her disposal to observe both the appellant as well as his friend right from 6.30 p.m. on 19-2-89 till the next day morning. Since the incident had occurred at 6.30 p.m. (on 19-2-89) when she was forced into the autorickshaw by the appellant as well as the co-accused, it cannot be said that it was dark at that point of time, for it can be safely said that it was a time when there was twilight all around and in that situation it is not difficult to identify a person, his facial features and appearance and it is not that she was taken in the dark to the secluded place and there was no opportunity to P.W. 1 to see or observe the faces of the appellant and his friend. It is in the evidence of P.W. 1 that she was taken on the road for quite some time before reaching the secluded house in Mudalapalya where she was raped; let apart the appellant was in no way a total stranger to P.W. 1, for he was a resident of the area where P.Ws. 1 and 2 were residing and P.W. 1 as well as P.W. 2 had occasion to see the appellant; quite possibly, they had no occasion to know him personally. In the said facts and circumstances, my considered view is that non-holding of the identification parade by the prosecution is not fatal to the case of the appeal prosecution and therefore, I reject the second yet to part of the argument too, advanced by the learned counsel for the appellant.
15. In the instant case in hand, no doubt the medical evidence was not corroborating the evidence of P.W. 1, but P.W. 4-doctor in his evidence had deposed that on the examination of P.W. 1 by him on 20-2-89, there was no evidence or proof that P.W. 1 had recent intercourse; nevertheless, P.W. 4 had deposed in his evidence that appellant was capable of performing intercourse. Here it is relevant to mention that P.W. 4 had recorded in the column meant to record the history in the bottom of the medical certificate of the appellant, Ex. P. 6 as 'said to have taken the victim girl on 19-2-89 in the autorickshaw with his friend Parameshi and took her to Marutinagar and had intercourse for three times around 9.00 p.m. .....'. It is to be noted here that P.W. 4-doctor had recorded the history in all the three medical certificates referrable to appellant marked as Ex. P. 6, referrable to P.W. 1-prosecutrix marked as Ex. P. 7 and the medical certificate referrable to the other accused Parameshi, marked as Ex. P. 6 as it appeared to have been narrated by all of them individually. It is to be taken note here that P.W. 4-doctor had examined the appellant herein at the first instance at 4.00 p.m. on 20-2-89 and P.W. 1 at 4.30 p.m. on 20-2-89 and the co-accused at about 4.30 p.m. on 22-2-89. That being the position, in my considered view, the evidence of P.W. 1 is as well corroborated by the medical evidence on record; let apart, there is the evidence of P.W. 2, the elder sister of P.W. 1 who had accompanied her to the Police Station and was present when the statement of P.W. 1, Ex. P. 1 was given before the jurisdictional police. It appears to me that the evidence of P.W. 1 and P.W. 2 are given in a very natural way without there being any exaggeration or artificiality it it. According to me, the evidence of P.W. 2 is also in full corroboration of the evidence of P.W. 1.
16. Yet another point that the Court cannot miss is that, there was no reason for P.W. 1 or P.W. 2 to falsely implicate either the appellant or the co-accused, for, P.W. 1 was yet to be married and to be settled in life. It is unnatural for a person as that of the prosecutrix in the instant case to falsely implicate the appellant and the co-accused to say that she was ravaged to blot her own marriage prospects. That being the circumstances, I hold that the evidence of P.W. 1 was fully corroborated by the evidence of P.W. 2 as well as the evidence of P.W. 4-doctor.
17. In this context, I should not fail to refer to yet another point the learned counsel for the appellant-accused argued with reference to the observation of P.W. 4-doctor in the medical certificate Ex. P. 7 pertaining to P.W. 1 that she was accustomed to sexual intercourse. I do not think that is of relevance for the case, vis-a-vis the heinous act of rape of P.W. 1.
18. Yet another limb of the argument of the learned counsel for the appellant is that, when the Sessions Judge had given the benefit of doubt to the co-accused Parameshi, he would have as well extended the very same benefit to the appellant too. I do not think this argument can in any way be appreciable by the Court, for the reason that it is the name of the appellant which had occurred in the F.I.R. and it is the appellant who was identified by P.W. 1 as he happened to be living in the vicinity of P.Ws. 1 and 2. As a matter of fact, P.W. 1 in Ex. P. 1-F.I.R. had not mentioned the name of the co-accused of the appellant and in her evidence she had deposed that she was not knowing the accused No. 2-Parameshi. It was for the reason that she was not at all knowing him. When that is the position, in my view, the appellant herein is not entitled to for that benefit at all, for he was fully identified by P.W. 1 earlier to filing the F.I.R. and also subsequently when appellant was arrested and brought before police on 20-2-89 and further when he had appeared before the Sessions Court when P.W. 1 tendered her evidence. Hence, I have got no hesitation to reject the last limb of tribe argument of the learned counsel for the appellant.
19. For the aforesaid reasons, I hold that the impugned judgment passed by the learned Sessions Judge convicting and sentencing the appellant herein for R.I. for 7 years for the offence under S. 376 of I.P.C. is just and proper, as a matter of fact, the learned Sessions Judge had weighed well the pros and cons in recording the said sentence, with good reasons assigned and discussed. I entirely endorse it.
20. In view of the above, I do not find any merit in the instant appeal and the same fails and therefore, the same stands dismissed.
21. Appeal dismissed.