Kerala High Court Upholds Rape Conviction Of Man Spotted And Identified By Minor Victim In Public Place 1.5 Months After Incident

Justice A. Badharudeen observed thus,

“PW5 [prosecutrix] had enough time to have an imprint of the face and features of the accused, who had subjected her to sexual intercourse, despite her resistance and later identified the accused as the culprit while he was sitting in an autorickshaw, by chance, and later identified him at the dock also. In such a case, there is no reason to disbelieve the identity, as argued by the learned counsel for the appellant, and the said contention is found to be unsustainable.”

The appeal was filed by the sole accused convicted under Section 376 (2) (f) for allegedly committing rape on a minor girl.

The Counsel for the appellant submitted two arguments, firstly, the identification of the accused was not proved beyond reasonable doubt. Secondly, the offence of rape was not proved because the hymen of the minor child was intact and there was no penetration. He relied upon the evidence of the doctor who examined the victim after the alleged rape.

The Counsel for the respondent argued that the victim herself has identified the accused from a public place after one and half months of the offence. It was also argued relying upon Tarakeswar Sahu V State of Bihar (2006), Ranjit Hazarika v. State of Assam (1998) and Vahidkhan v. State of Madhya Pradesh (2010) that partial or slightest penetration was sufficient to constitute rape. It was also submitted that proof of rupture of hymen was not needed to prove rape.

The Court found that the offence of rape took place on April 01, 2004 and the victim identified the accused in a public place after one and half months, and the accused was arrested by the police on May 19. The Court found that the accused threatened and committed forceful sexual intercourse with the victim when she was collecting cashew nuts near her property. It found that the victim had sufficient time to have an imprint of the face of the accused, and later she identified the accused as the culprit while he was sitting in an autorickshaw by chance and then identified the accused at the dock also. Thus, the Court found that there was no reason to disbelieve the identity of the accused.

Regarding test identification parade, the Court held that test identification parade does not constitute substantive evidence. It noted that substantive evidence was evidence of identification in court and the test identification parade only provides corroboration to the identification of the witness in court, if required. The Court held that in appropriate cases when the evidence of the victim is reliable and trustworthy, the Court may accept the evidence of identification, even without insisting on test identification parade. It held that failure to hold test identification parade will not make the prosecution evidence inadmissible when the identification made by the victim was reliable.

“However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. In appropriate cases, it may accept the evidence of identification, even without insisting on corroboration.”

The Court then considered the ingredients of rape prior to the amendment of IPC vide Criminal Law Amendment Act, 2013 as the alleged offence took place in 2004. The Court held that it was possible to legally commit the offence of rape even without causing any injury to the genitals or leaving any seminal stains. It held that it was not necessary to prove complete penetration, emission of semen and rupture of hymen to constitute rape.

“Thus absolute penetration of penis to the vagina is not a mandate to commit an offence punishable under Section 376 of IPC and even partial or slightest penetration of the male organ in the labia majora or the vulva or pudenda with or without any emission of semen and even an attempt of penetration into the private parts of the victim would be quite enough for the purpose of sections 375 and 376, IPC. Be it so, it is possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains.”

The Court relied upon State of UP v. Pappu (2005) to state that rape victim stands on a higher pedestal than an injured witness and her testimony can be accepted without further corroboration. Further, it referred to various Apex Court decisions to state that conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the Court for corroboration of her statement. The Court held that Conviction can be upheld on the sole testimony of the victim and her evidence has to be appreciated considering the facts of the entire case.

“Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity.”

After considering the entire evidence, the Court found that there was forceful sexual intercourse against the victim and that the prosecution has established the offence of rape punishable under Section 376 of IPC by the accused.

Counsel for the appellant: Advocates Sasthamangalam S. Ajithkumar and V.S.Thoshin

Counsel for the respondent: Special Government Pleader For Atrocities Against Women & Children Ambika Devi

Citation: 2023 LiveLaw (Ker) 465

Case title: Anil Kumar V State of Kerala

Case number: CRL.A No. 573 Of 2016

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