JUDGMENT Hon’ble Arvind Kumar Tripathi (II), J.—The appellants in both criminal appeals have challenged the judgment and order dated 9.4.2002 passed by the learned Additional Sessions Judge, Bahraich in Sessions Trial No. 266 of 1998 (State v. Dhaniram and others) whereby the learned Court below has convicted them under Section 376 and 394 IPC and sentenced them to undergo 10 years RI with fine of Rs. 5000/- each under Section 376 IPC and to undergo 7 years RI and fine of Rs. 5000 each under Section 394 IPC. In default of payment of fine, the appellants have been directed to undergo further 1 year SI. 2. Since both criminal appeals have arisen out of same judgment and common facts are involved, both the appeals are being decided by a common order. 3. Heard Shri Rakesh Pandey, learned counsel for the appellant - Rabbul Husain in Criminal Appeal No. 500 of 2002; Shri G.P. Mishra, learned counsel for the appellant - Dhani Ram in Criminal Appeal No. 714 of 2002 and Shri Sharad Dixit, learned AGA for the State respondent. 4. As per factual matrix, on 31.3.1997, the victim has lodged FIR in Police Station Kotwali, District Nanpara alleging that on 30.3.1997 she alongwith her father in law Asib Khan had gone to Nepal for treatment of his eye. After getting the parcha prepared, they came to Nanpara by bus and in order to spend the night, went to railway station. On railway platform she, her father in law and sister in law (Samdhan) Chunni Begam were napping. At about 10 p.m., two persons touched her feet by a stick and asked her to stay awake, as there are many thieves on the platform. At about 11 p.m., both persons again came there and touched her feet by stick and asked her get up and take care of her luggage, thereafter, one person caught hold of her legs and second person caught hold her hands and threatened her to kill by showing her knife and country made pistol. By gagging her mouth they took her in a quarter nearby, where six persons were present. All of them assault her and raped her turn by turn, in spite of her strong protest. She went on crying but they turned deaf ear to her pleas. They removed all her clothes and after raping, released. By gagging her mouth they took her in a quarter nearby, where six persons were present. All of them assault her and raped her turn by turn, in spite of her strong protest. She went on crying but they turned deaf ear to her pleas. They removed all her clothes and after raping, released. Then she, wrapped herself with a dupatta, went to Masjid and send one person to bring her clothes. After wearing her clothes, in the next morning, she came to railway station where she came to know by some person on platform that a constable of GRP - Dhani Ram had forcibly taken her to his room where she was raped. They snatched her golden nose stud and Rs. 500/-from her. She lodged FIR, scribed by Shahjad Ali. On this, a case under Sections 376, 394 IPC was registered in Police Station G.R.P., District Gonda against Dhani Ram and six unknown persons. 5. The case was handed over for investigation to the Investigating Officer, who inspected the place of occurrence and prepared site plan. He submitted charge-sheet against Dhani Ram, Ramesh Yadav, Prem Kumar, Rabbul Husain and Vijaya Yadav under the aforesaid sections. Learned Judicial Magistrate took cognizance and the case was committed to the Court of sessions. Charge under Sections 376, 394 IPC was framed against the accused persons. Dhani Ram, Ram Kumar, Prem Kumar, Rabbul Husain. 6. Vijaya Yadav could not be arrested and did not appear to face trial. Accused Dhani Ram, Prem, Ramesh Yadav and Rabbul Husain pleaded not guilty and claimed to be tried. 7. Prosecution examined victim as PW-1, Ashik Khan, father in law of victim as PW-2, Shri Harish Pandey, Station Master as PW-3, Dr. Suguna Verma, E.M.O., Bahraich as PW-4, Dr. Sushma Mishra, E.M.O., Sadar Hospital, Bahraich as PW-5, Shri Vishnu Pal Singh, SHO, Police Station Gosaiganj, District Sultanpur as PW-6, Shri Shiv Prasad Verma, Sub Inspector, Police Station Khairabad, District Sitapur as PW-7, Shri Vinod Kumar Dubey, Constaible Muharrir C.P. 529, Police Station Kapilvastu, District Siddharth Nagar. 8. The defence examined Anand Prakash Singh alias Chandra Prakash Singh as DW-1, Shiv Kumar Singh as DW-2, Sudhir Kumar, Junior Electric Engineer, Northern Railway, Nanpara, District Bahraich as DW-3, Riyatullah, H.C., GRP Chowki, Nanpara as DW-4, Dhani Ram examined himself as DW-5. 9. 8. The defence examined Anand Prakash Singh alias Chandra Prakash Singh as DW-1, Shiv Kumar Singh as DW-2, Sudhir Kumar, Junior Electric Engineer, Northern Railway, Nanpara, District Bahraich as DW-3, Riyatullah, H.C., GRP Chowki, Nanpara as DW-4, Dhani Ram examined himself as DW-5. 9. Prosecution has also proved FIR as Ex.Ka.1, Medical report of the victim as Ex.Ka.2, supplementary medical report of the victim as Ex.Ka.3, X-ray report as Ex.Ka.4, pathological report as Ex.Ka.5, medical report as Ex.Ka.6, suppementary medical report as Ex.Ka.7, pathological report as Ex.Ka.8, site plan as Ex.Ka.9, Ex.Ka.10 and Ex.Ka.11, Fard baramadgi as Ex.Ka.12, Fard baramadgi of country made liquor pouch as Ex.Ka.13, chik FIR as Ex.Ka.14 and General Diary as Ex.Ka.14 etc. Apart from the aforesaid, empty gutka pouch, which is Mat.Ex.1, burnt pieces of cigrette, which is Mat.Ex.2, one packet of cigrette, which is Mat.Ex.3, one match box, which is Mat.Ex.4, one empty cartridge as Mat.Ex.5, 17 pieces of bangle, which is Mat.Ex.6, 4 empty pouch of country made liquor, which is Ex.7, outer skin of eggs and onions, as Ex.8 and Ex.9, were also found at the place of occurrence and proved by the prosecution. 10. The Court below, after hearing learned counsel for the parties and going through the evidence on record, acquitted Ramesh Kumar and Prem Kumar and convicted the appellants and sentenced them, as mentioned above. Feeling aggrieved, these criminal appeals have been filed. 11. Shri Rakesh Pandey, learned counsel for the appellant - Rabbul Husain in Criminal Appeal No. 500 of 2002 has submitted that though the complainant was thrown on the ground several times, and number of persons have committed rape with her, but she did not receive any injury on her body, and thus it is wrong to say that any offence has been committed. 12. Learned counsel has further stated that there was no matting of pubic hair with semen. So the theory of rape by accused does not hold water. 13. He has submitted that medical report completely negates the application of any force on her and, therefore, the other supporting evidence was absolutely necessary and it is not safe to rely on the evidences available on record. 14. He submitted that there is nothing on record to establish that human semen found on the petticoat was that of the accused. 15. 14. He submitted that there is nothing on record to establish that human semen found on the petticoat was that of the accused. 15. He further submitted that Smt. Chunni Begum was not examined despite the fact that she is named in the FIR, as the person, who was also present on the platform, on the fateful night. PW-2 also did not raise any alarm and informed the railway authorities. He also stated that there were severals passengers and staff in the railway station, therefore, the story of lifting and taking the victim at some other place seems to be concocted. He submitted that the name of the appellant Rabbul Husain is neither mentioned in the FIR lodged on 31.3.1997, nor in the statement recorded under Sections 161 or 164 Cr.P.C. He submitted that the appellant was also not put to test identification. He submitted that as the evidence against two other co-accused persons, namely, Ramesh Yadav and Prem Kumar, who have been acquitted by the trial Court, is the same, and thus, the conviction of the appellant is liable to be quashed. 16. He also submitted that as per the statement of DW-3, who is an Engineer, the appellant was all along present in his duty from 8 a.m. to 5 p.m. on 31.3.1997 and the prosecution has failed to produce any material contradicting the testomony of DW-3. He further submitted that the scribe of the FIR was one Shahjad Ali, Village Pradhan, who is a political person, and he too has not been examined. 17. Shri G.P. Mishra, learned counsel for the appellant - Dhani Ram in Criminal Appeal No. 714 of 2002 has submitted that that the appellant Dhani Ram was not known to the informant prior to the occurrence. His name has been mentioned in the FIR on the basis of information given to her by some persons present on the platform. Those persons have not been named and examined. It was further submitted that no test identification parade was held, and they were identified in the Court for the first time, as such no reliance should have been placed upon such an identification, moreso, without there was no exceptional circumstance to place reliance upon identification for the first time made in the Court. It was not safe to rely on without being corroborated with previous identification or by any other evidence. 18. It was not safe to rely on without being corroborated with previous identification or by any other evidence. 18. Shri Sharad Dixit, learned AGA appearing for the State respondent vehemently opposed the appeals and submitted that the victim was forcibly taken by the appellants, and thereafter, several accused persons raped her one by one. It was submitted that her eyes was covered with a cloth, but she heard the name of each and every accused persons, as they were calling one another to come and commit rape with her. It was further submitted that the victim any how managed to escape from the place of occurrence in semi nude position wrapped in a dupatta. It was also submitted that all the accused persons were in drunken state. It was submitted that as per the statement of victim they were having alchohol and eggs etc at the place of occurrence. It was submitted that during search outer skin of eggs and onions were recovered from the place of occurrence. It was further submitted that one empty cartridge of brass, pieces of bangles, pouch of gutka, cigrette box and match box were also recovered from the place of occurrence. It was further submitted that the victim was pleading that she is very weak, but they did not pay heed to her begging. It was submitted that the recovery of pieces of bangles of the victim from the place of occurrence prove the involvement of the appellants in the alleged incidence. 19. The prosecution evidence is to be examined in context with above submission regarding identity. Admittedly, in the FIR it has been mentioned that in the morning when the victim reached railway station, she was informed by some person that it was Dhani Ram, who has forcefully taken her in his quarter and raped her. 20. Victim has been examined as PW-1, and during trial she has identified Ramesh and Vijay in the Court to be the person, who had come to her second time. It is on record that Vijay was neither arrested, nor charge was framed against him, so there was no occasion for him to appear in Court during evidence. This clearly leads to the conclusion that she had identified wrong person instead of Vijay. 21. It is on record that Vijay was neither arrested, nor charge was framed against him, so there was no occasion for him to appear in Court during evidence. This clearly leads to the conclusion that she had identified wrong person instead of Vijay. 21. Victim has specifically mentioned in her examination in chief that these two accused asked her to accompany them, as they have to enquire about some theft, and they took her to a room and put her down on the door. The door was closed, which opened on their knocking. Four persons were inside the room. She has further stated that they all removed her clothes and raped her. 22. Victim has further stated that Dhani Ram, Ramesh, Rabbul Husain, Prem Kumar and four other unknown persons raped her turn by turn. She has further stated that accused persons were calling each other by their names and that is why she knew the names of the accused. 23. If that is the case, the name of accused persons should have been mentioned in the FIR, as FIR was lodged in police station, at about 9.30 a.m., next morning. It is also a fact that name of Dhani Ram has been mentioned in FIR, when several persons have told her that it was Dhani Ram, who had forcefully taken her to his quarter. 24. The above facts indicate that the statement of victim about each accused calling other by their name, is after thought, and it also indicate that at least till the lodging of FIR, she was not aware of names of the accused persons other than Dhani Ram. Name of Vijay Kumar has come in her statement under Section 161 Cr.P.C. She has not named other accused persons even in her statement under Section 161 Cr.P.C. 25. It is noteworthy that victim has been examined on 4.9.2000, almost three years after the occurrence. If the statement of victim regarding how she came to know the names of accused persons be believed then, absence of names of accused persons in the FIR and statement under Section 164 Cr.P.C. clearly suggest the poor memory of victim. Thus, recalling the names of the accused three years after the incident creates doubt regarding fairness and authenticity. 26. Section 9 of the Indian Evidence Act deals with the relevancy of fact necessary to explain, or introduce relevant facts. Thus, recalling the names of the accused three years after the incident creates doubt regarding fairness and authenticity. 26. Section 9 of the Indian Evidence Act deals with the relevancy of fact necessary to explain, or introduce relevant facts. It says, inter alia, facts, which establish the identify of any thing or person whose identify is relevant, in so far as they are necessary for the purposes, are relevant. So the evidence of identification is a relevant piece of evidence under Section 9 of the Evidence Act where the evidence consists of identification of the accused at his trial. The identification of an accused by a witness in Court is substantive evidence whereas evidence of identification in test identification parade is though primary evidence but not substantive one and the same can be used only to corroborate identification of the accused by a witness in Court. 27. The Apex Court has in catena of judgments observed that the substantive evidence of a witness is his statement in Court but the purpose of test identification is to test that evidence and the safe rule is that the sworn testimony of witnesses in Court as to the identity of the accused, who are stranger to the witnesses, generally speaking, requires corroboration, which should be in the form of an ealier identification proceeding or any other evidence. 28. It is also well-settled that failure to hold test idnetification parade, which should be held with reasonable despatch, does not make the evidence of identification in Court inadmissible rather the same is very much admissible in law. Question is what is its probative value? Ordinarily identification of an accused for the first time in Court by a witness should not be relied upon, the same being from its very, inherently of a weak character, unless it is corroborated by his previous identification in the test identification parade or any other evidence. 29. The purpose of test identification parade is to test the observation, grasp of memory, capaciry to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in Court. 29. The purpose of test identification parade is to test the observation, grasp of memory, capaciry to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in Court. It a witness identifies the accused in Court for the first time, probative value of such uncorroborated evidence becomes minimal so much so that it becomes as a rule of prudence and not law, unsafe to rely on such a piece of evidence. I am fortified in my view by the decisions of the Apex Court in the cases of Kanta Prasad v. Delhi Administration, AIR 1958 SC 350 ; Vaikuntam Chandrappa v. State of Andhra Pradesh, AIR 1960 SC 1340 ; Budhsen and another v. State of U.P., 1970 (2) SCC 128 ; Kanan and others v. State of Kerala, (1979) 3 SCC 319 , Mohanlal Gangaram Gehani v. State of Maharashtra, (1982) 1 SCC 700 , Bollavaram Pedda Narsi Reddi and others v. State of Andhra Pradesh, (1991) 3 SCC 434 , State of Maharashtra v. Sukhdev Singh and another, (1992) 3 SCC 700 , Jaspal Singh alias Pali v. State of Punjab, (1997) 1 SCC 510 , Raju alias Rajendra v. State of Maharashtra, (1998) 1 SCC 169 , Ronny alias Ronald James Alwaris and others v. State of Maharashtra, (1998) 3 SCC 625 ; George and others v. State of Kerala and another, (1998) 4 SCC 605 , Rajesh Govind Jagesha v. State of Maharashtra, (1999) 8 SCC 428 ; State of H.P. v. Lekh Raj and another, (2000) 1 SCC 247 ; and Ramanbhai Naranbhai Patel and others v. State of Gujarat, (2000) 1 SCC 358 . 30. Apart from the ordinary rule laid down in the aforesaid decisions, certain exceptions to the same have been carved out by the Apex Court where idnetification of an accused, for the first time in Court, without there being any corroboration whatsoever, can form the sole basis for his conviction. 30. Apart from the ordinary rule laid down in the aforesaid decisions, certain exceptions to the same have been carved out by the Apex Court where idnetification of an accused, for the first time in Court, without there being any corroboration whatsoever, can form the sole basis for his conviction. They are (1) if a witness had any particular reason to remember about the identity of an accused, in that event, the cae can be brought under the exception and upon solitary evidence of idnetification of an accused in Court for the first time, conviction can be based; (2) where the witness had a chance to interact with the accused or that in a case where the witness had an opportunity to notice the distinctive features of the accused, which lends assurance to his testimony in Court, the evidence of test identification in Court for the first time by such a witness cannot be thrown away merely because no test identification parade was held; and (3) absence of test identification parade may not be fatal if the accused is sufficiently described in the complaint leaving no doubt in the mind of the Court regarding his involvement or is arrested on the spot immediately after the occurrence, and in either eventuality, the evidence of witness identifying the accused for the first time in Court can form the basis for conviction without the same being corroborated by any other evidence. 31. It is also settled that no test identification parade is called for and it would be waste of time to put accused for identification if the victim mentions the name of the accused in the FIR, or he is known to the prosecution witnesses from before. Reference may be made in this regard to the cases of Dharamvir and another v. State of M.P., (1974) 4 SCC 150 and Mehtab Singh v. State of M.P., (1975) 3 SCC 407 . 32. It is also noteworthy that on the same evidence, Ramesh and Prem have been acquitted, as trial Court has believed their alibi. State has not filed any appeal against their acquittal. 33. In the above factual and legal position, test identification of accused persons during investigation was essential, as the accused persons were not known to her, and she was not acquainted with them. 34. State has not filed any appeal against their acquittal. 33. In the above factual and legal position, test identification of accused persons during investigation was essential, as the accused persons were not known to her, and she was not acquainted with them. 34. It is on record that there was no identification of the accused persons after their arrest. There is nothing on record to show that the accused persons were kept baparda when they were taken in custody. 35. The victim has, in her examination in chief, mentioned that she was firstly taken to a room, and she was raped by Dhani Ram and others, and after that she was again taken to the quarter of Dhani Ram, where she was again raped. This fact is not mentioned in the FIR, and, according to the FIR, she was raped by all the accused persons in same room, and when released, she fled. 36. PW-3, Harish Pandey, Assistant Station Master has stated that on calling of the police on 31.3.1997, he went to the platform with the police personnel and a woman, to railway carriage barrack. This railway carriage barrack was locked. The lock was opened in his presence, and he found one spent cartridge, pieces of bangles, pouch of gutka, cigrette box, match box and stubs of cirgette. In his cross-examination, he has admitted that the railway carriage barrack was allotted in the name of Satguru Prasad, and the key was with him. Satguru Prasad was called in his presence. He further stated that after that they went to the quarter of Dhani Ram, which too was locked, after breaking opened the lock, they went inside, where they found empty pouch of wine, skin of eggs and onions. 37. PW - 6, Shri Vishnu Pal Singh, SHO, Police Station Gosaiganj, District Sultanpur has submitted that in the barrack of Satguru Prasad some students were living, who were preparing for the exams. He further admitted that in his cross-examination that the occurrence took place in the same barrack in the intervening night of 30th and 31st March, 1997. The barrack was locked from inside. When in the morning they went there, the barrack was found locked from out side. 38. He further admitted that in his cross-examination that the occurrence took place in the same barrack in the intervening night of 30th and 31st March, 1997. The barrack was locked from inside. When in the morning they went there, the barrack was found locked from out side. 38. DW-1 Anand Prakash Singh alias Chandra Prakash Singh has stated that during board examination in March, 1997, he was living in a barrack of railway station, Nanpara alongwith Shiv Kumar and Ramesh Chandra. They have been permitted to live in that barrack till the exam by uncle of Ramesh Chandra, who was employed in railway. In the night of 31.3.1997 no incident took place. He further submitted that he and Vijay Kumar were preparing for the examination in the night. It is also noteworthy that believing the statement of this witness and other defence witnesses, Ramesh Yadav and Prem Kumar were acquitted. Another inmate of the barrack Shiv Kumar Singh has also been examined as DW-2, who has reiterated the same thing. 39. PW-6 has again admitted in his FIR that the victim has named Dhani Ram in the FIR and named Dhani Ram and Vijay Kumar in her statement under Section 161 Cr.P.C. This means that the name of Ramesh Yadav, Prem Kumar and Habbul Husain was missing in her statement under Section 161 Cr.P.C., which was recorded by the Investigating Officer on the same day when the FIR was lodged. 40. This witness has also admitted that he did not match the pieces of bangles found in the barrack with the bangles in the hands of victim. 41. No doubt, conviction can be maintained on solitary statement of victim of rape, but her statement must inspire confidence and appear to be natural and truthfull. In the instant case, the infirmity, mentioned above, does not inspire confidence about the identity of the accused persons. From the quarter of Dhani Ram, nothing was recovered, which could suggest that rape was committed in that quarter, only some empty pouches of wine, was found from that place. This does not suggest rape. The victim has stated that when she was released by the accused persons after rape, she fled and went to a Mosque. It has not been explained as to why she did not contact her father in law, and her Samdhan, who were on the platform. This does not suggest rape. The victim has stated that when she was released by the accused persons after rape, she fled and went to a Mosque. It has not been explained as to why she did not contact her father in law, and her Samdhan, who were on the platform. It has further come in evidence that there was a person there, who sent a rickshaw pullar to railway platform, who met her father in law and brought some clothes for her, and after wearing those clothes, she came to platform. The names of the person from Mosque and rickshaw pullar have not been disclosed and they have not been examined even by the Investigating Officer. This fact also does not inspire confidence and corroborate the statement of the victim that she had gone to Mosque to seek help. 42. A perusal of G.D. Entry Ex.Ka.22 reveals that victim was accompanied by her father in law, and Shahjad Ali, Gram Pradhan, who is also the scribe of FIR alongwith Achhaiber Lal Kannaujia, a leader of the area. 43. The accused Dhani Ram has examiend himself, as DW-5. He has stated on oath that Achhaiber Lal Kannaujia was inimical to him, as he was not ready to dence to his tune while posted as Naik in RPF Chowki, Nanpara. He was cross-examined at length, but nothing has come up to suggest that he is not telling the truth. 44. From the above discussions, the prosecution has failed to prove the charges against the appellants beyond reasonable doubt, and thus, the appeals are liable to be allowed. 45. In the result, both criminal appeals are allowed. The judgment and order dated 9.4.2002 passed by the learned Additional Sessions Judge, Bahraich in Sessions Trial No. 266 of 1998 (State v. Dhaniram and others), regarding conviction of the appellants, is hereby quashed. The bail bonds of the appellants are discharged. They are on bail. They need not surrender. —————