1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRI. APPEAL NO. 577/2009 Nanasaheb s/o Rangnath Gaikwad, Age : 37 years, Occupation : Agriculture, R/o Vita Tq. Kannad District : Aurangabad. ........Appellant. Versus The State of Maharashtra, (Copy to be served on Govt. Pleader, High Court of Bombay, Bench at Aurangabad). ...Respondent. ........ Shri N.S. Ghanekar, Advocate for appellant. Shri D.R. Korde, A.P.P. for Respondent / State. CORAM : A.V. NIRGUDE, J. Date : 13 th April, 2010. Judgment 1 This appeal is filed against the judgment and order passed by the learned Additional Sessions Jude-4, Aurangabad in Session Case No. 188/2008, convicting and sentencing the appellant for the offences punishable under section 376 and 506 of Indian Penal Code. 2 2 The prosecutrix is a very young woman aged about 17 years. It is the prosecution case that on 14/04/2008 at about 1.30 to 2.00 p. m., when the prosecutrix was walking alone, on a road near village, a unknown person attacked her, grabbed her, dragged her to a secluded place and then raped her. The incident was reported immediately to a police station and ultimately, on the next day morning, the offence was registered. Even before offence was registered, the police could apprehend the appellant being the culprit. After investigation was over, the charge sheet was sent. 3 The learned judge of the lower court, believed the prosecution case and convicted the appellant. The prosecution case is mainly based on the evidence of prosecution witness no.1 Dr. Anjana who had examined the complainant soon after the incident, prosecution witness no.2, the complainant herself, prosecution witness no.3 Mangesh – uncle of the complainant, prosecution witness no.5 Tatyasaheb – the Police Patil of the village, prosecution witness no.13 Ramesh – the villager who had met the accused an hour prior to the incident near scene of occurrence, and the investigation officer prosecution witness no.16. The prosecution evidence unfolds 3 on record as under. 4 The prosecution witness No.2 stated that while on that day, at about 1.30 p.m., she delivered tiffin to her uncle Mangesh, at his agricultural field and she started walking towards her mother, who was walking ahead of her. Suddenly, she said, a person who was wearing chocolate colour T shirt and black trousers aged about 35 years , came towards her from behind. She said, this person pressed her mouth and then dragged her. She said, when she attempted to raise alarm, he pressed her mouth. She said, the assailant even gagged her mouth with earth to stop her from raising alarm. She said, ultimately the assailant dragged her towards a brook. She said, the assailant even using her Odhani, tried to strangulate her and threatened to kill her. She said, he was even carrying an axe with him. She said, thereafter, at the secluded place, he committed rape on her. She said, due to insertion of his penis, she suffered pain. She said, the assailant then left her and went towards his she- goats which he was grazing nearby. She said, after this incident, she immediately rushed towards her uncle Mangesh and disclosed him about the incident. She said, she then went to her house, along with her uncle and disclosed this incident to her aunt Pooja – prosecution witness no.4. She said, thereafter, her uncle made a phone call to the Police Station. The Police arrived at her house and seized her clothes. 4 She said, she described the appearance of the person to the police saying that her assailant’s right footwear was in broken condition. She said, thereafter, the Police sent her for medical examination. She said, she even showed the place of incident to the Police, during the same night. She said, after this, she came to the Police Station where her statement was recorded. She then said that while she was at Police Station, the Police brought the appellant in the Police Station. She said, when she saw him, she identified him as her assailant. She again identified the appellant as her assailant in the Court. 5 The prosecution witness no.3 Mangesh – uncle of the complainant has more or less similar story. He said that on that day, at about 1.30 p.m., the complainant brought his tiffin to his agricultural field and thereafter at about 4.00 p. m..he said, he saw her again sitting under a tree in his agricultural field. He said, he went towards her and saw that her Odhani was stained with blood. As soon as she saw him, she started weeping. He said, he then took her to their house. He said, she was not disclosing him as to what had happened to her. Therefore, he said, he asked his wife Pooja to ask the complainant as to what had happened to her. He said, Pooja then discreetly made inquiry with the complainant and learnt about the incident of rape. He said, he called-up Police of Deogaon Rangari Police Station. The Police 5 from that Police station, arrived to his house at about 8.00 p.m.. He said, the Police were informed about the rape. The Police, he said, made inquiry with the complainant. He said, the complainant disclosed the incident to the Police in detail. The Police then asked the complainant to show them the place of incident. Accordingly, he said, he, his wife Pooja, the complainant and the Police went towards the place of incident which the complainant showed them. At that moment, the Police of Deogaon Rangari Police Station informed him, the place of incident did not fall within their local limit and so they advised him to go to Shiroor Police station. He said, accordingly, they went to Shiroor Police Station where the Police sent the complainant to hospital at about 12.00 mid-night to 1.00 a. m. during the night. He said, he, his wife and the complainant were at the Medical College Hospital, at Aurangabad. He said, the Police asked him as to whether he could identify the assailant but he said, since he did not saw the assailant, he could not identify him. He said thereafter, he, the complainant and his wife were taken to Police Station again. He said, at that time the Police brought the appellant in front of them. He said, the complainant identified the appellant as her assailant. He said, thereafter, the complaint was lodged. 6 The deposition of prosecution witness no.5, Tatyasaheb the Police Patil of the 6 village, is also quite relevant and gist of it, can be stated as under. The Police Patil deposed that on that day, he heard from his son that an offence of rape was committed with the complainant. He said, he informed this fact to Deogaon Rangari Police Station. He said, when the Police took the complainant to the scene of offence, he also accompanied them. He said, after visiting the scene of offence, during the night hours, he along with Policemen, went towards village Vita. He said, the complainant, her uncle Mangesh and his wife Pooja, went towards Shiroor Police Station. He said, one Ramesh of his village was also with them. He said, they then went to village Vita and took search of the culprit. He said, the complainant had described her assailant as a person who had three she-goats. He said, they then found the appellant as he matched the description given by the complainant. He said, he and Police then apprehended the appellant and brought him to the Police Station. He said, the person to whom he apprehended on that day was the appellant. Prosecution witness no. 4 Pooja wife of Mangesh also deposed similarly. 7 The most important feature of this case that emerges from these depositions is that the complainant did not know the appellant before the incident. She described him, as an unknown person. The complainant had ample opportunity to 7 describe the feature of her assailant, soon after the incident till her statement was recorded formally in the Police Station at about 8.00 a. m.. However, the witnesses mentioned above who had opportunity to hear such description, could not throw much light on the description of the unknown assailant. All that the complainant could tell them about her assailant, was: he was a man aged about 35 to 40 years, who had three she-goats and that his right footwear was in broken condition. On the basis of this incomplete description, the prosecution witness no. 5 Tatyasaheb and the Policemen who accompanied him, could identify the appellant as the assailant. Assuming that the Police and the Police Patil possessed investigating skills and they could apprehend the assailant correctly, but the Police at Shiroor Police Station, could not have produced the so-called assailant before the complainant in the manner which is described above. They ought to have shown the appellant to her in a properly organized identification parade. The failure to hold identification parade of the appellant has proved fatal to the prosecution case. 8 The law on this subject is discussed in many judgments of the Supreme Court and I am aware, the evidence of the witness before the Court identifying her assailant is the substantive evidence and the evidence regarding identification during the course of investigation is only a corroboration. Yet, when the assailant is not 8 previously known to the complainant / witness, the identification of such assailant soon after the arrest is of immense importance. If such assailant is identified by the complainant / witness, the investigation officer would know that his investigation was proceeding in right direction. The Law on this subject, was discussed in the Supreme Court judgment in the case of Rameshwar Singh v/s State of Jammu & Kashmir reported in AIR 1972 S.C. 102 . 6 . “ Before dealing with the evidence relating to identification of the appellant it may be remembered that the substantive evidence of a witness is his evidence in court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the former’s arrest is of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and that all the necessary precautions and safeguards are effectively taken so that the investigation proceeds on correct lines for punishing the real culprit. It would, in addition, be fair to the witness concerned who was a stranger to the accused because in that event the chances of his memory fading are reduced and he is required to identify the alleged culprit at the earliest possible opportunity after the occurrence. It is thus and thus alone that justice and fair play can be assured both to the accused and to the prosecution. The identification during police investigation, it may be recalled, is not substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given in court. The identification proceedings, therefore, must be so conducted that evidence with regard to them when given at the trial, enables the court safely to form appropriate judicial opinion about its evidentiary value for the purpose of corroborating or contradicting the statement in court of 9 the identifying witness.” 9 On the other hand, the learned A.P.P. as well as the learned judge of the Court below, placed reliance on a judgment of this Court to submit that, an identification parade in such a situation is not a must and the absence of identification parade is not fatal to the prosecution case. The case on which they placed reliance is, Balu s/o Dashrath Pawar and another Vs. The State of Maharashtra reported in 2006(3) B. Cr. C. 428. The facts of the Balu’s case were quite different and the learned judge having regard to the importance of identification parade held that in the facts of that case, the complainant and witness had ample opportunity to have inter-action with the accused / appellant and so, the identification parade was not necessary. This judgment is not applicable to the case in hand. In view of this, though the complainant identified the appellant as her assailant in her substantive evidence, there is no corroboration to this substantive evidence through the identification parade and so the appellant deserves benefit of doubt. 10 The other question raised by the defence as to whether the complainant really suffered sexual assault, is required to be answered in affirmative. In this regard, the evidence of the complainant is trustworthy. She was subjected to sexual assault. Her statement that she was subjected to sexual assault and due to which she sustained 10 injury to her private part is confirmed by medical evidence. The Medical Certificate Ex. 17 clearly mentions that there was mark of violence on the vagina of the complainant. Although, the Medical Officer certified that the hymen of complainant was found intact, she certified that there was “perineum tear”. The word “Perineum” is described in Dorland Pocket Medical Dictionary as under: “the region between the thighs bounded in the female by vulva and Anus”. 11 The Medical Officer found tear of this area and so there is clear indication that a violent thrust of hard and blunt object at this area of the complainant was given by her assailent. Though, it seems, the assailant could not penetrate the vaginal orifice of the complainant, the assault was quite forceful and resulted into an injury. The C.A. report Ex. 53 confirmed that there was blood of “B” group on the clothes of the complainant. The C.A. report Ex. 53 also confirms presence of semen marks on the underwear of the appellant. This circumstance can not be used against the appellant. It cannot relate the appellant to the sexual violence that had occurred with the complainant. The appeal therefore, should succeed. O R D E R 1] The appeal is allowed. 11 2] The impugned Judgment and order passed by the learned Additional Sessions Judge-4, Aurangabad, dated 18th September, 2009, in Sessions Case No. 188 of 2008, convicting the appellant under sections 376 and 506 of the Indian Penal Code is set aside and the appellant is acquitted of the offences punishable under section 376(1) and 506 of Indian Penal Code. 3] The appellant- Nanasaheb Rangnath Gaikwad shall be released from custody, if he is otherwise not required in any other case. 4] The fine amount, if deposited by the appellant-accused be refunded to him. [A.V. NIRGUDE, J.] tsk/criapl577.09/ok