THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.Nos.445 of 2005 and 1776 of 2004 Date: 17.06.2011 Crl.R.C.No.445 of 2005: Between: Kavali Venkataiah … Petitioner AND The State of A.P., rep.by its Public Prosecutor, … Respondent Crl.R.C.No.1776 of 2004: Between: Nallikanti Iddaiah … Petitioner AND The State of A.P., rep.by its Public Prosecutor, … Respondent THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.Nos.445 of 2005 and 1776 of 2004 COMMON ORDER: The learned Assistant Sessions Judge, Nagarkurnool convicted the three accused who faced trial before him for the offences under Sections 347, 376 (2)(g) and 323 IPC. He sentenced each of the accused to Rigorous Imprisonment (R.I.) for a period of five years for the offence u/s.376 (2)(g) IPC and fine of Rs.3,000/-. He also sentenced each of the three accused to Simple Imprisonment (S.I.) for a period of one year for the offence u/s.347 IPC, apart from fine of Rs.500/-. He further convicted all the three accused who faced trial to S.I. for a period of one month for the offence u/s.323 IPC. The learned Assistant Sessions Judge did not impose any fine for the offence u/s.323 IPC. He directed that the sentences should run concurrently. 2. A.1 to A.3 preferred appeal before the Sessions Court. The learned VI Additional Sessions Judge, Mahaboobnagar confirmed the conviction and sentences recorded by the trial Court. I may point out that during the pendency of the appeal, A.3 breathed his last. The case as well as the conviction, sentences and fine recorded against A.3 consequently stood abated on the death of A.3. The first accused preferred Crl.R.C.No.445 of 2005 assailing the judgments of conviction, sentences and fine. The second accused in turn preferred Crl.R.C.No.1776 of 2004. Both the accused in the two revisions assail the same trial Court judgment and same appellate Court judgment. Consequently, both the revisions are disposed of through this common judgment. 3. The case of the prosecution is that on 16.06.1996 at about 3 p.m., the accused committed rape upon PW.2 and thus committed various offences. When the case came up before the learned Assistant Sessions Judge for trial, the trial Judge framed charges against all the accused u/s.347, 376 (2)(g), 323, 379 and 411 IPC. 4. As many as 13 witnesses were examined before the trial Court. 23 documents and 4 material objects were marked by the prosecution. The trial Court, as already stated, found the accused guilty of the offences u/s.347, 376 (2)(g) and 323 IPC. The accused were acquitted for the offences u/s.379 and 411 IPC. 5. The prosecutrix is PW.2. PW.1 is her husband. PW.3 is a villager of the village to which the accused belong to. PWs.3 to 5 knew the accused but they did not know PWs.1 and 2. 6. PW.6 was one of the mediators for the mediator’s report under Ex.P.7. PW.8 is a mediator for the mediator’s report under Ex.P.9 under which the clothes of PW.2 were seized by police. PW.9 was a mediator before whom Exs.P.10 to P.12 confessional statements were recorded by police and silver manglasutram with gold pusthelu was seized from the house of PW.2. None of them supported the prosecution story. PW.2 is the victim. PW.1 was her husband. They did not support the prosecution story. PWs.3 to 5 are said to be villagers who were aware about the gang rape. They did not support the prosecution story. PWs.6, 8 and 9 were alleged mediators for the confession of the accused and for seizure of the material objects. They did not support the prosecution story. 7. Sri Meka Rajasekhar Reddy, learned counsel for the accused pointed out that it is only the non-material and official witnesses who supported the prosecution story and that all the material witnesses were considered hostile as they did not support the prosecution version. In spite of PW.2 primarily and PW.1 apart from PW.2 not supporting the prosecution case, the learned trial Judge considered that a case was made out. The learned appellate Judge agreed with the view of the trial Judge and confirmed the conviction. 8. The Sec.164 Cr.P.C. statement of PW.2 was recorded by PW.10, learned Judicial Magistrate of First Class. In Ex.P.15, PW.2 indeed implicated the three accused for the commission of various offences. However, in her evidence as PW.2, PW.2 stated that the incident itself occurred during nighttime, that she was pushed down from behind and that she lost consciousness after which she was raped. The prosecution considered PW.2 to be hostile. The prosecution was accorded permission by the learned trial Judge to put leading questions to PW.2. However, PW.2 was not confronted with her Sec.164 Cr.P.C. statement under Ex.P.15. It is the case of the learned counsel for the revision petitioners that Sec.164 Cr.P.C. statement is not a substantive piece of evidence and that when PW.2 was not confronted with Ex.P.15, reliance cannot be placed upon it. 9. He contended that the learned trial Judge placed reliance upon Ex.P.15 to record the conviction against the accused. The learned Public Prosecutor on the other hand drew my attention to the judgment of the trial Court as well as the judgment of the appellate Court and pointed out that the conviction was not on the basis of Sec.164 Cr.P.C. statement of PW.2. Indeed, the trial Judge as well as the appellate Judge referred to the legal position that Sec.164 Cr.P.C. is not substantive piece of evidence. The question whether Sec.161 Cr.P.C. statement is a substantive piece of evidence is a well- answered question on a much beaten track. However, I may refer to Utpal Das v. State of West Bengal[1] relied upon by the learned counsel for the revision petitioners. In para 16 of the judgment, B. Sudarshan Reddy, J observed that Sec.164 Cr.P.C. statement can never be used as substantive evidence to establish the truth of a fact and that the statement u/s.164 Cr.P.C. can at best be a piece of evidence, which can be used for the purpose of corroboration and contradiction. 10. I may again refer to the contention of the learned Public Prosecutor. The learned Public Prosecutor has pointed out that neither the trial Court nor the appellate Court placed reliance upon Ex.P.15 (Sec.164 Cr.P.c. statement of PW.2) and Ex.P.23 (test identification parade recorded by PW.13) alone to record a conviction and that the trial Court recorded a conviction on the otherwise satisfactory evidence, as the trial Court found corroboration from Exs.P.15 and P.23. 11. I am afraid that the observations of the learned trial Judge as confirmed by the appellate Court are incorrect. The eyewitnesses for the case are PWs.1 and 2. The main material witnesses are PWs.1 to 5. None of them supported the prosecution story. Merely because the other witnesses and official witnesses supported the prosecution case, I consider that the trial Court was incorrect in concluding that there was other substantial evidence pointing out the guilty of the accused much less beyond reasonable doubt. 12. Regarding the test identification parade, it is the case of the prosecution that PW.2 identified the culprits in the test identification parade conducted by PW.13. PW.13 deposed that he recorded the test identification parade under Ex.P.23. Ex.P.23 shows that PW.2 identified the accused before the learned Magistrate. However, when PW.2 was deposing, she not only deposed that her assails attacked her from behind so much so she was not able to identify the accused, she went further and stated that she was seeing the accused for the first time in the Court. Such piece of evidence, I am afraid, is not sufficient to hold that the test identification parade under Ex.P.23 corroborated the case of the prosecution. The case of the prosecution primarily crumbles in view of the evidence of PWs.1 to 5 who did not support the prosecution story. Any amount of corroboration in the shape of Exs.P.15 and P.23 would not be sufficient to bring home the guilt of the accused, as the main witnesses did not support the prosecution story. 13. A curious but added factor is the evidence of PW.12. PW.12 is the Doctor who examined PW.2. The Doctor certified that PW.2 was not subjected to sexual assault. Thus, even the medical evidence did not support the prosecution story. 14. Regarding the test identification parade, the learned counsel for the accused placed reliance upon Ram Babu v. State of U.P.[2]. The Supreme Court reiterated the age old principle that test identification parade may be used for the purpose of corroboration pointing out that it can never be substantive piece of evidence. Consequently, even Ex.P.23 per se is not sufficient to convict the accused for any of the offences. 15. On the top of it, the Investigating Officer was not examined in this case. The learned Public Prosecutor, however, correctly contended that the non-examination of Investigating Officer in this case did not cause any prejudice to the accused and that the non- examination of the Investigating Officer per se cannot be a ground to acquit the accused. Where all the material witnesses turned hostile, the non-examination of the Investigating Officer would not change the result of the cases one way or the other. I wholly agree with the contention of the learned Public Prosecutor that this is not a case where the non-examination of the Investigating Officer would cause prejudice to the case of the accused. Consequently, the accused cannot be acquitted on the ground that the Investigating Officer was not examined. 16. Be that as it may, in view of the evidence of PWs. 1 to 5 primarily and the evidence of the panch witnesses, who did not support the prosecution story, the documentary evidence in Exs.P.15 and P.23 are not sufficient to bring home the guilt of the accused much less beyond reasonable doubt. I am constrained to disagree with the observations and findings reached by the learned trial Judge and the learned appellate Judge. I consider that the prosecution failed to establish the guilt of the accused for any of the three offences under which the revision petitioners were convicted. The revision petitioners deserve to be acquitted for the offences u/s.347, 379 (2)(g) and 323 IPC. 17. Accordingly, both the revisions are allowed. The revision petitioners are found not guilty of the offences u/s.347, 379 (2)(g) and 323 IPC and are acquitted for the same. Their bail bonds stand discharged. The fine amount, if already paid by the revision petitioners, shall be refunded to them. _______________ K.G. SHANKAR, J Date: 17.06.2011 Note: LR copy marked. (B/o.) Isn [1] (2010) 6 SCC 493 [2] AIR 2010 SC 2143