CRL.A Nos. 62/2019 & 345/2019 (Khalid B. A. v. State of Kerala; Ibrahim Khaleel v. State of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI FRIDAY, THE 22[ND] DAY OF OCTOBER 2021 / 30TH ASWINA, 1943 CRL.A NO. 62 OF 2019** **IN THE MATTER OF JUDGMENT AND CONVICTION AND SENTENCE DATED 26.12.2018 IN SC 9/2014 OF ADDITIONAL SESSIONS JUDGE-1 (SPECIAL JUDGE), KASARGOD** ## **APPELLANT/2ND ACCUSED:** KHALID.B.A AGED 29 YEARS S/O.ABDULLA KUNHI, BEEJANTHADUKA HOUSE, BADIADUKA VILLAGE. BY ADV NANDAGOPAL S.KURUP ## **RESPONDENTS/STATE & COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOME AFFAIRS,THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI- 31. 2 SUB INSPECTOR OF POLICE, BADIADKA POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY SPECIAL PUBLIC PROSECUTOR (ATROCITIES AGAINST WOMEN & CHILDREN)SMT.AMBIKA DEVI.S THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.10.2021, ALONG WITH CRL.A.345/2019, THE COURT ON 22.10.2021 DELIVERED THE FOLLOWING: Crl.A.Nos.62 of 2019 & 345 of 2019 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI FRIDAY, THE 22[ND] DAY OF OCTOBER 2021 / 30TH ASWINA, 1943 CRL.A NO. 345 OF 2019** **AGAINST CONVICTION AND SENTENCE AS PER JUDGMENT DATED 26.12.2018 IN SC 9/2014 PASSED BY THE ADDITIONAL SESSIONS JUDGE-1, KASARAGOD, KASARGOD** ## **APPELLANT/ACCUSED NO.1:** IBRAHIM KHALEEL, AGED 30 YEARS S/O.ABDULLA A., BARADUKA HOUSE, HIDAYATH NAGAR, BADIADUKA VILLAGE, KASARGOD. BY ADVS. S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921) ## **RESPONDENT/STATE:** STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682031 (CRIME NO.423/2013 OF BADIADKA POLICE STATION, KASARGOD DISTRICT) BY ADV SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.10.2021, ALONG WITH CRL.A.62/2019, THE COURT ON 22.10.2021 DELIVERED THE FOLLOWING: Crl.A.Nos.62 of 2019 & 345 of 2019 3 ## **R.NARAYANA PISHARADI, J ************************ Crl.A.Nos.62 of 2019 and 345 of 2019 ------------------------------------Dated this the 22[nd] day of October, 2021 ------------------------------------------- ## **J U D G M E NT** Crl.Appeal No.62/2019 is filed by the second accused and Crl.Appeal No.345/2019 is filed by the first accused in the case S.C.No.9/2014 on the file of the Additional Sessions Court-I, Kasaragod. 2. The prosecution case, in short, is as follows: The first accused was an autorickshaw driver. The victim girl and the first accused were neighbours. On 15.07.2013, at about 08:30 hours, while the victim girl was on her way to the school, the first accused stopped the autorickshaw near her. He told her that he would take her to the school in the autorickshaw. The victim girl entered into the autorickshaw. The first accused did not take her Crl.A.Nos.62 of 2019 & 345 of 2019 4 to the school. He took her to an uninhabited house at the place Beejamthadukka and committed rape on her at that house. After some time, the second accused reached there and he also committed rape on her. The two accused committed rape on her several times till 15:30 hours. The prosecution has also alleged that, in December, 2012 and February, 2013 also, while the victim girl was on her way to the school, the first accused had enticed her on the promise that he would marry her and took her to a lonely place at Kuchikkadu and committed rape on her. It is stated that the victim girl was aged only 16 years at the relevant time. 3. After the incident on 15.07.2013, the victim girl did not go to the school on the next two days. She was studying in the 10[th] standard at that time. On 17.07.2013, when her mother asked her the reason for not going to the school, the victim girl told her that the first accused took her in the autorickshaw and threatened her. When she did not go to school on the next two days also, her mother asked her what was the matter. On Crl.A.Nos.62 of 2019 & 345 of 2019 5 19.07.2013, she told her mother about the incident that took place on 15.07.2013. 4. On 20.07.2013, the victim girl and her mother went to the police station and reported the incident. PW13, who was the Sub Inspector of Vanitha Cell, Kasaragod, recorded Ext.P3 statement given by the victim. On the basis of that statement, PW10 Assistant Sub Inspector of Badiadukka Police Station registered Ext.P10 FIR. PW14 Circle Inspector conducted the material part of the investigation of the case. PW17 Circle Inspector completed the investigation of the case filed chargesheet against the two accused for the offences punishable under Sections 366A and 376D read with Section 34 of the Indian Penal Code and also under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short 'the Act'). 5. The trial court initially framed charge against the two accused for the offences punishable under Sections 366A and 376D read with Section 34 of the Indian Penal Code and also under Section 4 of the Act. Subsequently, the trial court altered Crl.A.Nos.62 of 2019 & 345 of 2019 6 the charge against the accused to under Sections 366A and 376D of the Indian Penal Code and under Section 5(g) read with Section 6 of the Act. Both the accused pleaded not guilty and they claimed to be tried. 6. The prosecution examined the witnesses PW1 to PW18 and marked Exts.P1 to P29 documents and MO1 to MO6 material objects. No evidence was adduced by the first accused. DW1 was examined and Exts.D1 to D4 documents were marked on the side of the second accused. 7. The trial court found both accused guilty of the offence punishable under Section 376D of the Indian Penal Code and also under Section 5(g) read with Section 6 of the Act. The trial court found the first accused guilty also under Section 366A of the Indian Penal Code. The trial court sentenced the first and the second accused to undergo rigorous imprisonment for a period of twenty years each and to pay a fine of Rs.1,00,000/- each and in default of payment of fine, to undergo rigorous imprisonment for a period of two years for the offence punishable under Section Crl.A.Nos.62 of 2019 & 345 of 2019 7 376D of the Indian Penal Code. The trial court sentenced the first accused to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.25,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of six months for the offence punishable under Section 366A of the Indian Penal Code. The trial court directed that the substantive sentences of imprisonment against the first accused shall run concurrently. No separate sentence was awarded against the accused for the offence punishable under Section 5(g) read with Section 6 of the Act. 8. Aggrieved by the conviction entered against and the sentence imposed on them by the trial court, the first and the second accused in the case have preferred these appeals. 9. Heard the learned counsel for the appellants and also the learned Special Public Prosecutor and perused the records. 10. The prosecution examined 18 witnesses. Out of them, PW1 to PW3, PW7 and PW9 are the material witnesses. PW1 was the Headmaster of the school in which the victim girl was Crl.A.Nos.62 of 2019 & 345 of 2019 8 studying. PW2 is the victim girl and PW9 is her mother. PW3 was the class teacher of PW2. PW7 was the doctor who conducted clinical examination of PW2 at the hospital and issued Ext.P5 medical certificate. ## Testimony of the Victim. 11. PW2, the victim girl, has stated in examination-in-chief as follows: The incident took place on 15.07.2013. She was then studying in Standard X. On that day, at about 08.30 hours, when she was on her way to the school, the first accused Ibrahim Khaleel, her neighbour, stopped the autorickshaw driven by him near her. He told her that he would take her to the school and asked her to get into the autorickshaw. He stopped the autorickshaw in front of an old house near the Old Age Home at Beejamthadukka and took her into that house. There was nobody in that house. She then tried to get out of the house. Khaleel (A1) then closed and locked the door. He took her to another room and closed the door. There was a sari in that room. He put the sari on the floor and made her lie on it. He undressed her Crl.A.Nos.62 of 2019 & 345 of 2019 9 completely and undressed himself and committed sexual intercourse with her without her consent. Thereafter he went out of the house. Then a stranger came there (PW2 identified the second accused in the court as that person). She was then wearing her dress. The second accused removed her dress, made her lie on the sari on the floor and committed rape on her and left the room. Khaleel (A1) then came and he again made her lie on the sari on the floor and sexually assaulted her. She cried and asked him why such act was committed on her. He repeated such act till 15:30 hours. Thereafter, he took her in the autorickshaw to Badiyadukka and left her there. She went home from there in another autorickshaw. She did not go to school for two days. Her mother asked her what was the matter. She told her mother that Khaleel (A1) took her in the autorickshaw and committed rape on her. She went to the Vanitha Cell of the police station alongwith her mother and gave Ext.P3 statement regarding the incident. 12. On cross-examination on behalf of the first accused, PW2 stated that she was in love with Khaleel (A1). She admitted Crl.A.Nos.62 of 2019 & 345 of 2019 10 that, before the incident on 15.07.2013, she had sexual intercourse with Khaleel (A1) twice. She had not told about it to her mother. She would say that nobody threatened her inside the house in which the incident took place. She has also stated that, before she went to the Vanitha Cell, a discussion had taken place between the members of her family and the family of Khaleel (A1) and no decision was taken in that discussion and it was the reason for giving complaint to the police. 13. On cross-examination on behalf of the second accused, PW2 stated that the second accused was a stranger to her. She also stated that she had not told the police the physical features of the second accused. 14. The question now arises whether PW2 can be considered as a sterling witness and whether her whole testimony can be accepted on its face value. ## Who is a Sterling Winess? 15. In **Rai Sandeep v. State : AIR 2012 SC 3157** , the Supreme Court has stated as follows: Crl.A.Nos.62 of 2019 & 345 of 2019 11 _“In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence_ Crl.A.Nos.62 of 2019 & 345 of 2019 12 _committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”_ A three-Judge Bench of the Supreme Court has reiterated the above principles in **Ganesan v. State (AIR 2020 SC 5019)** . Crl.A.Nos.62 of 2019 & 345 of 2019 13 ## Is the Victim (PW2) a Sterling Witness? 16. When PW2 disclosed the incident for the first time to her mother, she did not tell her that Khaleel (A1) had sexually assaulted her. She only told her that Khaleel (A1) took her in the autorickshaw and threatened her. She did not then tell her mother that a stranger had committed rape on her. It was on 19.07.2013 that she told her mother about the sexual assault committed on her by Khaleel (A1). Even at that time, she did not tell her mother about the sexual assault made on her by Khaleel (A1) on the previous occasions. She disclosed the incidents on the previous occasions for the first time when she was examined by the doctor, after she gave Ext.P3 statement to the police. 17. On a careful scrutiny of the testimony of the prosecutrix, it cannot be found that she is a sterling witness. Her statement about the incident, from the starting point, that is, when she disclosed the matter to her mother, till she deposed before the court, is not consistent on all aspects. Her entire testimony cannot be accepted on its face value. Crl.A.Nos.62 of 2019 & 345 of 2019 14 ## Testimony of PW2 is Not Wholly Unreliable. 18. The fact that PW2 could not pass the test of a sterling witness does not mean that her whole testimony is liable to be discarded. What is required by the court is to look for corroboration of her testimony. 19. It is the duty of the Court, in cases where a witness has been found to have given unreliable evidence in regard to certain particulars, to scrutinise the rest of his evidence with care and caution. If the remaining evidence is trustworthy and the substratum of the prosecution case remains intact, then the court should uphold the prosecution case to the extent it is considered safe and trustworthy (See **Ranbir v. State of Punjab: AIR 1973 SC 1409** ). 20. It is the duty of the Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient, or to be not wholly credible. It has to be appraised in each case as to what extent Crl.A.Nos.62 of 2019 & 345 of 2019 15 the evidence is worthy of acceptance. One hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroidery or embellishment. An attempt has to be made to separate truth from falsehood. 21. The Court has to disperse the suspicious cloud and dust out the smear of dust, as all these things clog the very truth. So long as chaff, cloud and dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. So, it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court, within permissible limits, to find out the truth. It means, on one hand that no innocent man should be punished, but on the other hand to see no person committing an offence should go scot free. If inspite of such effort, suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the Court Crl.A.Nos.62 of 2019 & 345 of 2019 16 to accept the evidence (See **Kameshwar Singh v. State of Bihar : AIR 2018 SC 1916** ). ## Testimony of PW3 and PW9. 22. PW3 was the class teacher of PW2. Her evidence shows that PW2 did not attend the class for 3-4 days from 15.07.2013 and she told about it to the guardian of PW2. 23. The mother of the victim girl was examined as PW9. She has deposed that, on 15.07.2013, PW2 came from the school in an autorickshaw which was not the normal practice. Thereafter, on the next two days, PW2 did not go to school. When she called the class teacher of PW2, she told her that on 15.07.2013 also PW2 had not attended the class. She asked PW2 what was the matter and then PW2 told her that Khaleel (A1) took her in the autorickshaw. When she again asked her, PW2 told her about the sexual assault committed on her by the accused. 24. The evidence of PW9 lends corroboration to the testimony of PW2 with regard to the sexual assault committed on Crl.A.Nos.62 of 2019 & 345 of 2019 17 her by Khaleel (A1) on 15.07.2013 at the lonely house. Medical Evidence. 25. PW2 was examined by the doctor at the Government Hospital, Kasaragod at 19.55 hours on 20.07.2013. PW7 is the doctor who examined PW2 and issued Ext.P5 certificate. PW7 has deposed that PW2 was brought with the alleged history of sexual assault by neighbour Khaleel and his friend, by taking her in the autorickshaw while she was going to school on 15.07.2013 to an unoccupied house at Beejanthadukka. PW7 has deposed that, on medical examination of PW2, it was found that the hymen was torn on all directions and that the vagina admitted two fingers. PW7 has opined that the findings were consistent with the history of sexual assault and vaginal penetration. 26. Medical evidence thus corroborates the testimony of PW2 that she was subjected to rape or penetrative sexual assault. ## To What Extent the Testimony of PW2 is Reliable? 27. On a careful analysis of the evidence of PW2, there is Crl.A.Nos.62 of 2019 & 345 of 2019 18 no sufficient reason to disbelieve her testimony that, on 15.07.2013 at about 08.30 hours, Khaleel (A1) got her into the autorickshaw driven by him on the pretext that he would take her to the school and that he took her to a lonely house at Beejamthadukka and that he committed sexual intercourse with her several times and also that another person who came there committed rape on her. The testimony of PW2 in that regard is also corroborated by the evidence of PW9 and also the circumstance that she did not attend the class on 15.07.2013 and the following days. Ext.P3 first information statement given by her corroborates her testimony in this regard. No material contradiction or omission in the testimony of PW2, with regard to the incident that occurred in the lonely house, has been brought out and proved by the defence. Further, medical evidence also corroborates the testimony of PW2 that she was subjected to rape and sexual assault. However, the testimony of PW2 with regard to the sexual assault committed on her by Khaleel (A1) on previous occasions cannot be believed without any Crl.A.Nos.62 of 2019 & 345 of 2019 19 corroborative piece of evidence. Proof of Age of the Victim. 28. PW2 did not state her date of birth before the trial court even when suggestion was made to her by the defence, raising dispute with regard to her age. 29. PW9, the mother of the victim, also did not give any evidence regarding the date of birth or the age of her daughter. 30. PW1 was the headmaster of the school in which PW2 was studying at the time of the alleged incident. He produced before the court Ext.P1 extract of the school admission register in relation to PW2. As per Ext.P1 document, the date of birth of PW2 is 06.05.1997. The evidence of PW1 shows that his school was not the first school in which PW2 was admitted or which was attended by her. ## 31. In **Jarnail Singh v. State of Haryana: AIR 2013 SC** **3467** , the Supreme Court has held that, proper proof for determining the age of a child, who is a victim of a crime, is the extract of the admission register from the school which was first Crl.A.Nos.62 of 2019 & 345 of 2019 20 attended by the victim. 32. Following the above decision, in **Alex v. State of Kerala: 2021 (2) KLD 434** , a Division Bench of this Court has held that, the document produced to prove the date of birth or the age of the child victim, shall be the certificate from the school which the child first attended. This view was reiterated by the Division Bench in **Santhosh v. State of Kerala (2021(4) KHC 527)** . 33. Ext.P1 document produced by the prosecution in this case does not satisfy the above requirement. The defence had specifically disputed the age of the victim. Even if the accused had not disputed the age of the victim, the prosecution has the duty to prove her age. In **Alex** (supra), it has been held that the accused has no obligation to invite the prosecution to establish the date of birth of the victim. It is the bounden duty of the prosecution to establish every material fact and circumstance before the trial court. Crl.A.Nos.62 of 2019 & 345 of 2019 21 34. In the above circumstances, it has to be found that the prosecution has not proved the date of birth or the age of the victim girl as on 15.07.2013. 35. The consequence of not proving the age of the victim girl is that the accused cannot be found guilty of any offence under the Act. The age of the victim is the most significant and basic element to attract the offences under the Act and unless it is established by the prosecution by adducing positive evidence, the provisions under the Act cannot be pressed into service ( **Santhosh v. State of Kerala : 2021(4) KHC 527** ). ## Consent of the Victim 36. Learned counsel for the first accused would contend that once the prosecution failed to prove that the victim girl was aged below 18 years at the relevant time, the prosecution has to prove that the sexual assault was made on her without her consent. 37. Even if it is assumed that the victim was more than 18 years of age, it cannot be a ground to hold that she was a Crl.A.Nos.62 of 2019 & 345 of 2019 22 consenting party to the sexual intercourse ( **State of U.P v. Manoj Kumar Pandey : AIR 2009 SC 711** ). 38. It is not for the victim to show that there was no consent. The question of consent is really a matter of defence by the accused and it is for him to place materials to show that there was consent. Plea of consent shall be taken or made during cross examination and the statement recorded under Section 313 Crl.P.C (See **State of U.P v. Sree Kant Shekari : AIR 2004 SC 4404** ). 39. Explanation 2 to Section 375 of the I.P.C states that, consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. It is also provided that a woman does not physically resist the act of penetration shall not by the reason only of that fact, be regarded as a consenting party to the sexual activity. 40. In the present case, PW2 has categorically stated Crl.A.Nos.62 of 2019 & 345 of 2019 23 before the court that it was without her consent that the first accused had sexual intercourse with her. She has stated on cross-examination that when the first accused undressed her, she resisted but he forcibly removed her dress. Even in examinationin-chief, PW2 has deposed that she resisted the act of the first accused and cried. 41. In the present case, the plea of the first accused is that no incident took place on 15.07.2013 as alleged by the prosecution. Therefore, the plea of consent cannot be raised by him. 42. Even assuming that, without admitting the incident on 15.07.2013, the first accused can raise the plea of consent, the evidence of PW2 is sufficient to prove that he made sexual intercourse with her without her consent. PW2 has stated in examination-in-chief itself that when the first accused undressed her, she said “No”. On cross-examination she stated that the first accused forcibly removed her dress though she resisted him. 43. There is gulf of difference between consent and Crl.A.Nos.62 of 2019 & 345 of 2019 24 submission. Every consent involves a submission but the converse does not follow. Helplessness in the face of inevitable compulsion clouded by fear cannot be considered to be consent as understood in law. Exercise of intelligence based on the knowledge of the significance and the moral effect of the act is required for consent. 44. Merely for the reason that the victim was in love with the first accused and that she had sexual relationship with him on previous occasions, it cannot be presumed that on the particular occasion on 15.07.2013, she had given consent for such act. 45. Even in a case where it is shown that the girl is of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. Even assuming that the victim is previously accustomed to sexual intercourse, that is not a decisive question. On the contrary, the question which is required to be adjudicated is, did the accused commit rape on the victim on the occasion complained of. It is Crl.A.Nos.62 of 2019 & 345 of 2019 25 the accused who is on trial and not the victim (See **State of U.P v. Pappu : AIR 2005 SC 1248** ). 46. Even in cases where there is material to show that the victim woman is habituated to sexual intercourse, consent for sexual intercourse on the particular occasion complained of cannot be presumed. 47. In the aforesaid circumstances, the first accused could not prove that PW2 had consented to have sexual intercourse with him on 15.07.2013 at the uninhabited house. On the other hand, the testimony of PW2 proves that he had sexual intercourse with her without her consent and against her will. ## Identity of the Stranger Culprit 48. As already found, there is no sufficient ground to disbelieve the evidence of PW2 that, apart from the first accused, a stranger to her, came at the lonely house and committed rape on her. 49. PW2 identified the second accused, who was present in the court, as the stranger who committed rape on her at the Crl.A.Nos.62 of 2019 & 345 of 2019 26 uninhabited house. 50. Learned counsel for the second accused contended that the evidence of PW2 identifying the second accused in the court for the first time as the second person who committed rape on her at the lonely house lacks credibility. Learned counsel would contend that PW2 had not told the police the physical features of the second person who committed rape on her and therefore, the investigating officer had no clue as to who was that person but the second accused was falsely implicated in the case. 51. It is trite that substantive evidence is the evidence of identification in the court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Indian Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in the 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 prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly Crl.A.Nos.62 of 2019 & 345 of 2019 27 considered as 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 strangers 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 weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases, the court may accept the evidence of identification even without insisting on corroboration (See **Mahabir v. State of Delhi : AIR 2008 SC 2343** ). 52. The person who committed rape on PW2 for the second time at the lonely house was a total stranger to her. She had no opportunity to know his name on that occasion. On crossexamination, PW2 would say that it was dark in the room in which she was sexually assaulted. The time of the incident was between 08:30 hours and 15:30 hours. How it could be dark in the room at that time is a question which eludes comprehension. Crl.A.Nos.62 of 2019 & 345 of 2019 28 However, unfortunately, the prosecution did not re-examine PW2 and it did not obtain any clarification from her in this regard. It means that, PW2 did not have opportunity to clearly see the face of the stranger who committed rape on her or to note his physical features. 53. Even assuming that the face of the stranger who committed rape on her would have got imprinted in the mind of PW2, the fact remains that she had not given any clue to the investigating officer to trace out that person. She did not tell the police the physical features of that person. Then, it is not known how the investigating officer found out that the second accused was the second person who committed sexual assault on PW2. How the investigating officer zeroed on the second accused as the second person who committed rape on PW2 is not known. No identification parade was also held during the investigation stage to ensure that the second accused was the second person who committed rape on PW2. 54. The incident was on 15.07.2013. The victim girl was Crl.A.Nos.62 of 2019 & 345 of 2019 29 examined as PW2 in the trial court on 29.05.2017. Identification of the second accused in the court by PW2 for the first time nearly four years after the incident lacks credibility and it cannot be accepted as reliable. 55. It is well settled principle that in the absence of any independent corroboration like test identification parade, the evidence of eye-witnesses as to the identification of the accused for the first time before the trial court generally cannot be accepted. If the case is supported by other materials, identification of the accused in the dock for the first time would be permissible subject to confirmation by other corroborative evidence, which is lacking in the case on hand. Much evidentiary value cannot be attached to the identification of the second accused in the court by PW2 as the offender, where the offender was a total stranger to her. This is especially so when she had not given any clue to the police with regard to that person and when identification is made in the court for the first time nearly four years after the incident. Crl.A.Nos.62 of 2019 & 345 of 2019 30 56. In the above circumstances, the prosecution could not prove beyond reasonable doubt that the second accused was the second person who committed rape or sexual assault on PW2 at the uninhabited house on 15.07.2013. ## Offences Proved Against the First Accused 57. The trial court has convicted the first accused for the offences punishable under Sections 366A and 376D of the I.P.C and also under Section 5(g) read with Section 6 of the Act. 58. Since the age of the victim is not legally proved by the prosecution, the conviction of the first accused by the trial court under Section 5(g) read with Section 6 of the Act will not stand and it is liable to be set aside. 59. Section 366A of the I.P.C deals with the offence of inducing any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person. Since the prosecution could not prove that the victim was a minor girl aged below 18 Crl.A.Nos.62 of 2019 & 345 of 2019 31 years at the relevant time, the conviction of the first accused by the trial court under Section 366A of the I.P.C is also liable to be set aside. 60. However, the first accused is liable to be convicted for an offence under Section 366 of the I.P.C. The prosecution could very well prove that the first accused abducted PW2 with the intention to have sexual intercourse with her. 61. Section 362 of the I.P.C defines abduction. It states that, whoever by force compels, or by any deceitful means, induces any person to go from any place, is said to abduct that person. 62. Section 366 of the I.P.C states that, whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may Crl.A.Nos.62 of 2019 & 345 of 2019 32 extend to ten years, and shall also be liable to fine. 63. To constitute an offence under Section 366 of the I.P.C, it is necessary for the prosecution to prove that the accused induced the woman or compelled her by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the woman may be seduced to illicit intercourse and/or that the accused knew it to be likely that she may be seduced to illicit intercourse as a result of her abduction. Once the prosecution leads evidence to show that the abducting of the woman was with the intention to force/seduce her to have illicit intercourse, the offence under Section 366 of the I.P.C is attracted. 64. In the present case, the prosecution could prove that the first accused, by deceitful means, that is, by promising PW2 that he would take her in the autorickshaw and drop her at the school, took her in the autorickshaw to another place and he made forcible sexual intercourse with her. The act of the first accused clearly constitutes the offence punishable under Section Crl.A.Nos.62 of 2019 & 345 of 2019 33 366 of the I.P.C. 65. Now, the question is whether conviction of the first accused under Section 376D of the I.P.C is sustainable or not under law. 66. Section 376D of the I.P.C states that, where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of these persons shall be deemed to have committed the offence of rape. 67. Clause (g) of sub-section (2) of Section 376 IPC (prior to amendment by Act 13 of 2013) dealt with cases of gang rape. Prior to the Amendment Act 2013, Explanation 1 to Section 376(2) of the I.P.C stated that, where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape. The present Section 376D of the I.P.C is more or less in the same language. In order to prove the offence punishable under Section 376D of the I.P.C, the prosecution must adduce evidence to indicate that the woman was raped by one or Crl.A.Nos.62 of 2019 & 345 of 2019 34 more persons constituting a group or acting in furtherance of a common intention. 68. Section 376D of the I.P.C embodies the principle of joint liability and the essence of that liability is the existence of common intention. Common intention pre-supposes prior concert which may be determined from the conduct of offenders revealed during the course of action and it could arise and be formed suddenly. But, there must be meeting of minds. It is not enough to have the same intention independently of each of the offender. 69. The expression “acting in furtherance of a common intention” in Section 376D of the I.P.C indicates the applicability of the principles of Section 34 of the I.P.C. What is required to be proved is the consensus of the minds of the persons participating in the act, which is the common intention and not a similar intention. 70. When one or more persons act in furtherance of their common intention to rape a woman, each person of the group shall be deemed to have committed gang rape. "Common Crl.A.Nos.62 of 2019 & 345 of 2019 35 intention" is dealt with in Section 34 IPC and provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. "Common intention" denotes action in concert and necessarily postulates a pre-arranged plan, a prior meeting of minds and an element of participation in action. The acts may be different and varying in character, but must be actuated by the same common intention, which is different from same intention or similar intention. The expression "acting in furtherance of a common intention" appearing in Section 376D of the I.P.C relates to the intention to commit rape. 71. It is settled law that the common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. Direct proof of common intention is seldom available and, therefore, such intention can only be Crl.A.Nos.62 of 2019 & 345 of 2019 36 inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. 72. In the instant case, according to PW2, the second person who committed rape on her had reached the place immediately after the first accused left the room. The incident happened in an uninhabited house. The first accused took PW2 to that house by deceitful means. These are the only circumstances to infer common intention between the first accused and the second person who committed rape on PW2. There is no evidence as to under what circumstances the second person reached the scene. No fruitful investigation has been done in that direction. As already found, the identity of the second person who committed rape on PW2 is not established by the prosecution. The circumstances mentioned above are not conclusive to find that there was common intention shared by the first accused and the second person who committed rape on PW2 to commit rape on her. Therefore, the first accused is entitled to get benefit of doubt in this regard and he cannot be held liable for committing Crl.A.Nos.62 of 2019 & 345 of 2019 37 an offence under Section 376D of the I.P.C. However, the prosecution has proved beyond reasonable doubt that the first accused committed rape on PW2 and that he committed the offence punishable under Section 376(1) of the I.P.C. 73. Thus, the prosecution has been able to prove beyond reasonable doubt that the first accused committed the offences punishable under Sections 366 and 376(1) of the I.P.C. ## Conclusions 74. In the light of the discussion and findings above, the conclusions are the following: The prosecution has not proved the offences alleged against the second accused and the conviction and sentence against him are liable to be set aside and he is entitled to be acquitted. The prosecution could not prove that the first accused committed the offences punishable under Sections 366A and 376D of the I.P.C and the offence punishable under Section 5(g) read with Section 6 of the Act. But, the prosecution could prove beyond reasonable doubt that the first accused committed the offences punishable under Sections 366 Crl.A.Nos.62 of 2019 & 345 of 2019 38 and 376(1) of the I.P.C. 75. Consequently, the appeal (Crl.A.No.62/2019) filed by the second accused is allowed. The order of conviction and sentence passed against him by the trial court is set aside. He is found not guilty of all the offences charged against him and he is acquitted and he shall be set at liberty. 76. The appeal (Crl.A.No.345/2019) filed by the first accused is allowed in part and it is ordered as follows: (i) Conviction of the first accused by the trial court for the offences punishable under Sections 366A and 376D of the I.P.C and under Section 5(g) read with Section 6 of the Act and the sentence imposed on him by the trial court for these offences are set aside. (ii) The first accused is found guilty of the offences punishable under Sections 366 and 376(1) of the I.P.C and he is convicted thereunder. (iii) The first accused is sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Crl.A.Nos.62 of 2019 & 345 of 2019 39 Rs.25,000/- (Rupees twenty five thousand only) and in default of payment of fine, to undergo rigorous imprisonment for a period of six months for the offence punishable under Section 366 of the I.P.C . (iv) The first accused is sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.50,000/- (Rupees fifty thousand only) and in default of payment of fine, to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 376(1) of the I.P.C. (v) The substantive sentences of imprisonment imposed on the first accused shall run concurrently. (vi) The first accused is entitled to get the benefit of set off under Section 428 Cr.P.C. (vii) If the fine amount is realised, Rs.50,000/- (Rupees fifty thousand only) shall be paid to the victim (PW2) as compensation under Section 357(1) Cr.P.C. Crl.A.Nos.62 of 2019 & 345 of 2019 40 77. The Registry shall immediately send a copy of this judgment to the Superintendent of the jail in which the first and the second accused are detained. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr True Copy P.S.to Judge