LexDASTAGIR SAB AND ANR. versus STATE OF KARNATAKA
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.. ..f A DASTAGIR SAB AND ANR. V. 1. • STATE OF KARNATAKA JANUARY 22, 2004 B [DORAISWAMY RAJU AND S.B. SINHA, JJ.] Evidence Act, 1872: Section 9. c Test Identification Parade-Non-holding of-Whether fatal to prosecution case-Victim saw accused persons on three occasions almost immediately prior to commission of offence and also when she was sexually assaulted by them-Fat her and brother of the victim came to the scene of crime and saw accused running away-Brother identified them by their description-Accused confessed their guilt when caught by father but refused to come with him-IO -= D showed accused to victim before their arrest in order to ensure that the right persons were arrested-Accused also named in the FIR-Held: Under such circumstances, Tl parade not necessary-Hence, non-holding of Tl parade did not-vitiate trial F Criminal Trial: E Rape--lnjlllJ' on the body of victim-Absence of-Effect-Rape victim made to lie on dried-up cotton plants-Victim medically examined after 6 days of the incident-Medical Officer opined that any abrasion or marks of violence would be visible for 24 hours and thereafter would disappear- F Rupture of hymen of victim took place about one year prior to incident- Seminal stains were present on the cloth of the victim-Held: Injury on the body of victim not a sine qua non to prove a charge of rape--Rupture of the -'., hymen explained as to why no visible injury was found on the private part of the victim-As the victim lay on the dried-up cotton plants, there was no injwy on her back-Moreover, presence of semen on the cloth of the victim G corroborated victim's case-Under these circumstances prosecution case fully established-Hence, conviction upheld-Penal Code, 1860-S. 376(2)(g). According to the prosecution, PW-I saw. the appellants-accused on three occasions almost immediately prior to the commission of the offence and also when they forcibly committed sexual assault on her. On hearing H 952 ~ )_ •· , "'" >- ~ DASTAG!R SAB v. STATE OF KARNATAKA 953 the cries of PW-I, her father and brother came to the spot and saw the A appellants running away from the spot. The appellants were identified by ·the brother of PW-I by their description. The appellants were chased and caught by tlfo father of PW-I and the appellants confessed their guilt but they refused to come with him. Subsequently, the appellants were arrested by the Investigating B Officer and were shown to PW-1 in order to ensure that the right persons were arrested. The appellants were also named in the FIR but no Test Identification Parade was held. It was the further case of the prosecution that PW-1 was made to c lie on dried-up cotton plants at the spot where the incident took place. The Medical Officer categorically stated that any abrasion or marks of violence would be visible for 24 hours and thereafter the same would disappear. Rupture of the hymen of PW-1 took place about one year prior to the incident. There were seminal stains also on the cloth of the victim. D The appellants-accused were convicted by the trial court for an offence under Section 376(2)(g) of the Penal code, 1860. The High Court affirmed the conviction. Hence the appeal. On behalf of the appellants, it was contended that non-holding of E the Tl parade and absence of injury on PW-1 were fatal to the prosecution's case. (957-E) Dismissing the appeal, the Court HELD: t.l. Non-holding of Test Identification Parade would not by F itself disprove the prosecution case. To what extent and if at all the same would adversely affect the prosecution case, would depend upon the facts and circumstances of< each case. (957-E] ... (. State of H.P. v. Lekh Raj, (2000) 1 SCC 247; Mdlkhansing v. State of MP., (2003] 5 SCC 746 and Ashfaq v. State(Govt. of NCT of Delhi) (2003) G IO SCALE 732, relied on. Dana Yadav alias Dahu v. State of Bihar, (2002) 7 SCC, referred to. Budhsen v. State of U.P., (1970) 2 SCC 128, cited. H 954 SUPREME COURT REPORTS [2004] I S.C.R. A 1.2. PW-1 had disclosed enough materials to show thaf she had the I ~ ..._ occasion to see the accused persons at least on three occasions almost immediately prior to the commission of offence and also when the accused persons forcibly committed sexual assault on her. PW-1 gave sufficient particulars of the persons committing the offence of criminal assault on B her. They had been identified by her brother. The appellants w
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