Paragraph numbers below are the court’s original numbering, recovered from the source text.
1. The hymen ·was freshly ruptured and it was bleeding .
2. Two slides of the vagina were prepared and were handed over to the 10 for chemical examination.
3. According to the doctor the prosecutrix was subjected to sexual intercourse."
4. During the course of investigation the blood-stained soil and the plain soil from the place of occurrence was seized vide Ext. P-14. The caste certificate (Ext. P-13) of the Appellant H A was also seized. Respondent No.1 was arrested vide arrest panchnama Ext.P-18 and was sent for medical examination. PW-13 Dr. D.R. Singraul found him capable of having sexual intercourse. The shirt with red stripes and black trouser were also seized from Respondent No.1 vide Ext.P-17. These B garments were then produced for identification before the witnesses including theAppellantwho identified said garments. Though the Appellant had clearly stated that she would be able to identify the man, no test identification parade was conducted. C During the investigation the age of the Appellant was found to be between 10-14 years by PW-9 Dr.Anil Pratap Singh upon X-Ray examination.
5. After completion of investigation Respondent No.1 D was charged for having committed offences under the aforesaid Sections and sent for trial. The Appellant was examined as PW-1 who stated about the incident in question and re-iterated the contents of the FIR. She also identified Respondent No.1 in court though she did not know the name E of Respondent No.1, nor the village that he belonged. PWs 2, 4 and 6 who after hearing the shouts for help had arrived at the pla¢e of incident, supported her version as regards the fact that she was subjected to rape. However none of these witnesses could identify Respondent No.1. The Investigating F Officer was examined as PW-10 who accepted that from the first information report it appeared that the offence was committed by some unknown person but could not give reason why test'identification parade was not conducted. In his cross examination, a suggestion was given by the defence that G Respondent No. 1-Accused was unable to speak. He explained that on an earlier occasion, a complaint was made by the maternal grandfather of Respondent No. 1 stating about his disability, that he was lost and that Respondent No. 1 was found H in pursuance of such complaint. MS. S v. SUNIL KUMAR & ANR. [UDAY UMESH LAUT, J.] 279
6. The trial court after considering the entire material A on record came to the conclusion that the age of the Appellant was 10-13 years of age and that she was minor at the time of incident. It was held that the medical evidence on record clearly showed that she was subjected to sexual intercourse. Though the statements of the Appellant and PWs 2, 4 and 6 clearly B established the fact that she was subjected to sexual intercourse at the time and in the manner alleged, the trial court observed that PWs 2, 4 and 6 had failed to identify Respondent No.1. Despite the fact that the Appellant had identified C Respondent No.1 in court, the trial court observed that in the absence of any prior test identification parade such identification in court for the first time was not good enough. Though the finding was recorded that the Appellant 0 belonged to Scheduled Caste community nothing was discussed whether the offence under Section 3(2)(V) was otherwise made out. Giving him benefit of doubt on the question of identification, Respondent No.1 was acquitted of the charges leveled against him, vide judgment of the trial court dated E 27.02.2007 in Special Session Case No.68 of2006.
7. The Appellant being aggrieved filed Criminal Revision under Section 397 read with 401 of the Cr. P. C. in the High Court. The High Court affirmed the view taken by the trial court that since no test identification parade was arranged, the identification by the Appellant for the first time in court was not sufficient. For the lapses committed by the Investigating Officer in not arranging the test identification parade, the High Court recommended departmental action against him but went G on to observe that the acquittal by the trial court was on sound reasoning and that there was no illegality or infirmity in the judgment of acquittal. The High Court therefore dismissed the revision. It appears that there was delay of 81 days in A filing the revision and the revision was dismissed both on merits as well as on delay.
8. The present appeal has been preferred by the prosecutrix/ Appellant through Supreme Court Legal Services B Committee. Despite servic~ of notice upon Respondent No.1 no appearance was entered on his behalf and as such this CoLJrt appointed Ms. Vanshaja Shukla, learned advocate as Amicus Curiae to assist the court on behalf of Respondent No.1. We must place on record appreciation forthe assistance C rendered by her.
9. Mr. Kanhaiya Priyadarshi, learned advocate appearing for the appellant submitted that the testimony of the Appellant was cogent and supported by the other evidence on D record. There was immediate reporting and the fact that she was subjected to sexual intercourse was well established. Three witnesses had immediately arrived pursuant to her shouts who corroborated the factum of rape. The Appellant in her first reporting had clearly stated that she would be able to E identify the person and had given sufficient indication regarding his identity. Her identification in court, in the circumstances was not flawed on any count and ought to be accepted. His submissions were well supported by Ms. Shashi Juneja, F learned advocate appearing for the State who invited our attention to Ashok Debbarama @Achak Debbarma v. State of Tripura 1 and submitted that the identification for the first time in court is good enough and can be relied upon if the witness is otherwise trustworthy and reliable. Ms. Vanshaja G Shukla learned Amicus Curiae fairly accepted that it is only as a matter of prudence that the courts require and insist upon test identification parade and that it would entirely depend upon facts and circumstances if the testimony of the witness is otherwise found to be trustworthy and reliable. 1 (2014) 4 sec 747 MS. S v. SUNIL KUMAR & ANR. [UDAY UMESH LAUT, J.] 281
10. It has consistently been held by this Court that what A is substantive evidence is the identification of an accused in court by a witness and that the prior identification in a test identification parade is used only to corroborate the identification in court. Holding of test identification parade is not the rule of law but rule of prudence. Normally identification B of the accused in a test identification parade lends assurance so that the subsequent identification in court during trial could be safely relied upon. However, even in the aqsence of such test identification parade, the identification in court can in given C circumstances be relied upon, if the witness is otherwise trustworthy and reliable. The law on the point is well-settled and succinctly laid down in Ashok Debbarma (supra).
11. In the present case the Appellant was subjected to 0 sexual intercourse during broad day light. The fact that she was so subjected at the time and in the manner stated by her, stands proved. Three witnesses had immediately come on the scene of occurrence and found that she was raped. The immediate reporting and the consequential medical E examination further support her testimony. By very nature of the offence, the close proximity with the offender would have certainly afforded sufficient time to imprint upon her mind the identity of the offender. In Ma/khansingh v. State of M.P.2 in a similar situation where identification by prosecutrix for the F first time in court was a matter in issue, this Court had observed: "She also had a reason to remember their faces as they had committed a heinous c'.Jffence and put her to shame. She had, therefore, abundant opportunity to notice their features In fact on account of her traumatic and tragic experience, the faces of the appellants must have got imprinted in her memory, and there was no chance of 2 (2003) s sec 746 [2015) 5 S.C.R. her making a mistake about their identity."
12. Furthermore, the appellant had gone to the extent of stating in her first reporting that she would be in a position to identify the offender and had given particulars regarding his B identity. The clothes worn by the offender were identified by her when called upon to do so. In the circumstances there · was nothing wrong or exceptional in identification by her of the accused in court. We find her testimony completely trustworthy and reliable. Consequently we hold that the case against C Respondent No.1 stands proved. Sir.ce the trial court had found the age of the Appellant to be 10-13 years of age, we take the age to be on the maximum scale Le. 13 years. In our considered view, the High Court was not justified in dismissing 0 the revision. No other view was possible and the case therefore warrants interference by this Court. We accordingly allow the appeal and convict Respondent No.1 for having committed the offence under Section 376(1) IPC and sentence him to undergo imprisonment for seven years and also impose a fine E of Hs.5,000/- which in its entirety shall be made over to the Appellant. In the event such fine is not deposite<j, Respondent No.1 shall undergo further sentence of simple imprisonment for six months. We, however, confirm the acquittal of Respondent No.1 for the offence under Section 3(2)(V) of the F Act. Respondent No.1 shall be taken into custody forthwith to undergo the sentence as aforesaid. Devika Gujral Appeal allowed.