{.. ^^/^ ,T HIGH COURT OF CHHATTISGARH AT BILASPUR rSB: Hon'ble Mr.T.P.Sharma.J.I Criminal Appeal No. 481/2004 APPELLANT VERSUS RESPONDENT Wilson David alias Billoo son of Vinod Syman, aged about 21 years, R/o Behind Sulabh Gautam Nagar, Supela, Police Station Supela, District Durg, C.G. State of Chhattisgarh through SHO Police Station Supela, District Durg, CG. Mr. Uttam Pandey counsel for the appellant Mr. V.V.S. Murthy Deputy AG with Ms. Sangita Mishra PL for the respondent/State. Criminal Appeal No. 487 /2004 APPELLANT VERSUS RESPONDENT Pradeep Kumar aljas Jarha son of Laxmi Prasad Kesharwani, aged about 26 years, resident of Hardwara Line, Supela, District Durg, CG. State of Chhattisgarh through District Magistrate, Durg, CG. Mr. Sunil Sahu counsel for the appellant Mr. V.V.S. Murthy Dy. AG with Ms. Sangita Mishra PL for the respondent/State. Criminal Appeal No. 524 /2004 APPELLANTS 1. 2. VERSUS RESPONDENT Unni Krishna son of Shri Kumar Sundar lyer (Madrasi) aged about 23 years, resident of Mochi Mohalla, Krishna Nagar, Supela, District Durg. Jitendra Kumar atias Khokha alias Langdu son of Shri Suresh Kumar Lohar, aged about 20 years, resident of Lohar Mohalla Supela, Police Station Supela, District Durg, State of Chhattisgarh through the Station House Officer, Poljce Station - Supela, District Durg, CG. Mr. Sanjay Agrawal counsel for tho appellants. Mr.V.V.S. Murthy Dy. AG with Ms. Sangita Mishra PL for the respondent/State. CRIMINAL APPEALS UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDUREJ973. :^". •-S s'^:^ ' ^^^A : '->^M..' JUDGMENT (1\.01.2009) ,7' Since att the aforesaid criminal appeals arise out of the same judgment passed in Sessions Triat No. 172/2003 convicting the accused/appellants for the offences pynishable under Sections 450 and 376 (2) (g) of the Indian Penal Code and sentencing each ofthem to undergo rigorous imprisonment for three years with fine of Rs. 500 in default of payment of fine to further undergo rigorous imprisonment for one month u/s 450 IPC and to undergo rigorous imprisonment for ten years with fine of Rs. 500, in default of payment of fine to further undergo rigorous imprisonment for one month, they are disposed of by this common judgment. 2. Case of the prosecution in brief is that on 20-7-2002 when the prosecutrix namely Sonsir Bai (PW-9) was sleeping in her house, the present appellants along with other accused Chhotu Jabalpuriha entered her house armed with sickle, knife and pistol, They tied a piece of cloth in her mouth, switched offthe light and three of them committed forcible sexual intercourse with her one by one and before the forth person could do that, her husband reached there. When he shouted at the accused persons, they caught hold of him. The prosecutrix on hearing the voice of her husband threw away the cloth tied in her mouth and came out. Thereafter First Information Report (for short the "FIR") Ex. P-13 was filed by the prosecutrix on the same day. She was sent for medical examination vide Ex. P-14 and examined by Dr. Smt. Madhu Shrivastava (PW-1) who vide report Ex. P-1 opined that the prosecutrix was accustomed to sexual intercourse and was carrying the pregnancy of 32-34 weeks. Accused/appellants ,,r' z 6o. /v . * confessed their guilt before the independent Panch witnesses vide Ex. P-3, P-4 and P-5. Cloths were seized from accused Wilson Devjd and Jitendra vide Ex. P-6 and P-7. There was subjected to identjfication vide Ex. P-11. Vaginal slides of prosecutrix were seized vide Ex. P-12. ,<7 Cloths of the prosecutrix were seized vide Ex. P-15. Spot map Ex. P- 16 was prepared. On medical examination of the accused/appetlants they were found to be capable of having sexual intercourse. Cloths and vaginal slides so seized were sent for chemical examination and the presence of sperm on those artictes was confirmed vide Ex. P-24. Pistol was seized from accused/Unnikirhsnan vide Ex. P-30. Knife was seized from accused Witson vide Ex. P-29. 3. Statements of the witnesses were recorded and after completion of the investigation charge sheet was filed in the Court of Judicial Magistrate First Class, Durg, who in turn committed the case to the Court of Sessions from where Additional Sessions Judge, Durg, received the same on transfer for trial. Statements of the accused/appellants were also recorded under Section 313 ofthe Code of Criminal Procedure in which they denied the material appearing against them in the prosecution case and pleaded their innocence and false implication in the case. 4. After conclusion of the trial and giving opportunity of hearing to the parties, learned Additional Sessions Judge, Durg, convicted and sentenced the accused/appeilants as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the impugned judgment ofthe trial Court. 6. Counsel for the accused/appellants submit that they are not disputing the criminal house trespass and commission of gang rape on ^ the prosecutrix. However, they argued that the accused/appetlants are not the persons who committed the alleged offence. According to them, prosecution has not adduced any evidence:4a connect the present appellants with the crime in question as they were not known the prosecutrix or her husband. No Test Identification Parade was conducted. Prosecution has utterty failod to adduce any evidence rela^ing to the identity of the accused/appellants. The' accused/appellants have not made any extrajudicial confession to anyone. The FIR mentions the names of only Jitendra alias Langdu, Kallu and Kalu but Kallu and Kalu are not the accused in this case. In the absence of Test Identification Parade and evidence to connect the accused/appellants with the crime in question, they are not liable to be convicted and sentenced for the offence alleged against them. Accused/appellant Pradeep was arrested only on 20.3.2003 i.e. after about 8 months of the incident vide Ex. P-26. No incriminating evidence has been adduced by the prosecution against accused/appellant Pradeep. Counsel for the appellants placed reliance on the decision of this Court in the matter of Santosh Sahu and others v, State of Chhattisaarh 1 in whjch it has been held that Test Identification Parade is not necessary in alt cases and identification in the Court may be believed, but prudence is required corroboration of identification. They further relied upon the decision of the Orissa High Court in the matter of Ashok Sahoo v. State of Orissa in which it has been held that material contradictions in the statement of the prosecutrix results in acquittal of the accused. They relied upon yet another decision of the Supreme Court in the matter of Viswanathan Y 12007 (2) Acquittal 261 22008(3)Crimes217(Ori.) ,-^ft^ {^ f 7' and others v. State Rep.bv Inspector of Poljce, Tamil Nadu in which it has been held that in case of unknown miscreants test identification parade was required in order to establish their identity, 7. On the other hand counsel for the respondent/State supported the impugned judgment and submits that the prosecution has proved it$ case beyond shadow 6f doubt. The appetlants have been identified by the prosecutrix and her husband Kamal Rao PW-10 as both ofthem wer^-having sufficient opportunity to see the miscreants, In addition to this, there was no occasion for the prosecutrix or her husband to falsely implicate the present appellants. According to the State counsel the statements of the prosecutrix and her husband are trustworthy and inspire confidence which is sufficient for convicting and sentencing the accused/appellants as mentioned above. 8. In the present case counsel for the accused/appellants have not disputed the offence of criminal house trespass and gang rape on the prosecutrix which is punishable with imprisonment for life. However, they vehementty disputed the invotvement ofthe accused/appellants in the said offence. Prosecutrix or her husband was quite unknown to the present appellants and they were not identified either by the prosecutrix or her husband. No Test Identification Parade was conducted. Coniess\ona\ Panchnama said to have been prepared by the Police is not admissible in evidence and the same is hit by the provisions of Article 20 (3) of the Constitution of India and Sections 25 and 26 of the Evidence Act. 9. In order to appreciate the contention of the parties 1 have examined the evidence available on record. Prosecutrix (PW-9) has 2008 STPL (LE) 40068 SC .^':T .^^ f- '^ -6- deposed in her evidence that at the time of incident it was midnjght and she was sleepjng along with her child in her house as her husband was not at home. Five persons entered her house, switched off the light, tied her mouth with ctothand committed forcible sexuat intercourse with her one by one. They were carrying knife, pistol and other weapons. Meanwhite, her husbgnd came there. FIR Ex. P-13 was todged by the prosecutrix on the same day. She was medical!ys examined on the same day by Dr. Smt. Madhu Shrivastava (PW-1). Statement of the prosecutrix is corroborated by her husband. Dr. Madhu Shrivastava (PW-1) has deposed that the prosecutrix was preg^nant by 32-34 weeks and no extemal or internal injury was found on her person. She has further stated that prosecutrix was accustomed to sexual jntercourse. Thus the statement of the prosecutrix which is corroborated by her husband is sufficient to draw an jnference that she was subjected to gang rape. 10. As regards compticity of the accused/appellants in the crime in question, prosecutrix (PW-9):has deposed that accused Unni, Kalu and Jitendra had entered her house. She has also deposed that when the accused persons were talking to each other, she came to know that out offive three persons were Unni, Kalu and Jitendra. She has further deposed in paragraph 8 of her evidence that out of the accused present in the Court she had identified Unnikrishnan, Jitendra and Wilson David as the culprits; in the police station vide Ex. P-11. Kamal Rao (PW-10) has stated in hb evidence that appellant Pradeep was having sickle and others were having knives. 11. Prosecutnx (PW-9) and her husband .Kamal Rao (PW-10) are the husband and wife, They are residents of Pariya Para, Smriti Nagar, Bhilai whereas the accused/appellants are not residents of that area. A -7- Prosecutrix (PW-9) has stated in paragraph 11 of her evidence that when she reached police station, she came to know the names of three accused persons being Kalu, Jitendra and one disabled person. However, she has further stated that she is not in a position to identify as to who is Jitendra and who is Kalu, She has admitted in paragraph 17 of her evidence that accused were talking to each other by using name and so she came to know abcut their names and mentioned the same in the FIR. In paragraph 29 she has stated that only three persons had covered their face with a piece of cloth. Kamal Rao (PW-10) has stated in paragraph 11 of his evidence that accused Pradeep was having sickle and Jitendra was havjng pistol. He has imitted in paragraph 13 that his wife had told him the names of the accused persons as Pradeep, Chhotu, Witson and Jitenctra but prior to the incident they were not known to him. 12. Prosecution has examined Satyanarayan Singh (PW-3) who was the witness to the alleged extrajudicial confession made by the accused persons to the Police but he has not supported the case of the prosecution. Jaiprakash Soni (PW-5) who conducted the identification of the accused persons h9S also not supported the case of the prosecution. He has stated that the identjfication memo (Ex. P-1) signed by him was written by the potice officer. G.R.Gahirwar (PW-7) is the Sub Inspector and he has stated in paragraph 20 of his evidence that identification memo Ex. P-1 1 was prepared by him and columns were filled in by the person who prepared it. Identification memo Ex. P- 11 shows that accused Unnikrishnan, Jitendra and Wilson were identified by the prosecutrix and her husband in the presence ofAnand Das and Ballu alias Sanjay who have even signed the identification memo Ex. P-11 but the prosecution has not examined these persons. -^- Jaiprakash Soni (PW-5) has not supported the facts stated in the identification memo. Prosecutrix (PW-9) has specifically stated that she has signed Ex. P-11 at Police Staion and. there she has identified the accused persons. Prosecutrix (PW-9) and Kamal Rao (PW-10) are the material witnesses to establish the identity of the accused persons. Their statements show that the accused persons were not known to them prior to fhe incident. Prosecutrix named three persons Jitendra, Kalu and Kallu in the FIR (Ex. P-3) though Kalu and Kallu are not the accused in this case. She has not named 9ny other accused in the FIR. She came to know the names of Unnjkrishnan, Kalu and Jitendra because they were tatking to each other by usjng name but she has named Unnikrishnan in the FIR or in the statement recorded under Section 161 ofthe Code of Criminal Procedure, as accused. ^' ^ 13. Test Identification for identifying the accused is not a sine qua non. It is a rule of prudence. Substantive evjdence is the evidence given before the Court. In the matter of Dava Sinqh v. State of Haryana 4 it has been held by the Sapreme Court that power of perception and memorizing differs from man to man and also depends upon strength or trustworthiness of witnesses who have identified accused in the Court. It is further held that delay in trial and identification of accused in Court after seven or eight years would not affect evidence of said witnesses and conviction of accused on the basis of their testimony even in the absence of test identification their statement relating to dock identification can be relied upon. Relevant portion is reproduced as under: <slt is to be borne in mind that purpose of test identification is to have corroboration to the evidence of 4AIR200I SC 1188 ^ /.^ ^ -^? the eyewitness in the form of earlier identification and that substantive evidence of a witness is the evidence in the Court. If that evidence is found to be reliable then absence of corroboration by test identification would not be in any way material. Further, where reasons for gainjng an enduring impress of the identify on the mind and memory of the witnesses are brought on record, it is no use to magnify the theoretical possibilities and arrive at conclusion - what in present day social environment infested by terrorism is really unimportant. In such cases, not holding of identification parade is not fatal to the prosecution." 14. tn the matter of Sampat Tatvada Shinde v. State_of Maharashtra 5 it has been hetd by the Apex Court that the evjdence of test identification is admissibte under section 9 of the Evidence Act. It can be used o'nly to corroborate the substantive evidence given by the witnesses in court regarding identification of the accused. Relevant portiort' reads as under: "The evidence of test identification is admissible under Section 9 of the Evidence Act; it is, at best, supporting evidence. It can be used only to corroborate the substantive evidence given by the witnesses in court regarding identification of the accused as the doer of the criminal act. The earlier identification made by the witnesses at the test identification parade, by itself, has no independent value. Nor is test identification the only type of evidence that can be tendered to confirm the evidence of a witness regarding identification of the accused in court, as the perpetrator of the crime. The identity of the culprit can be fixed by circumstantial evidence also.11 'AIR 1974 SC 791 -(0 - 15. In the matter of Jayawant Dattatraya Suryarao and others v. State of Maharashtra it has been hetd by the Apex Court that where evidence of witness is cogent, consistent and without motive, it cannot be rejected merety on ground that the witness having seen the accused for a few minutes it would be difficult for him to identify the accused because power of perception and memorizing varies from person to person. 16. In the matter of Devinder Sinah and others v, State of Himachal Pradesh 7 it has been held by the Supreme Court that holding of test identification parade may not be necessary in every case, but that depends on the facts and circumstances of each case. Relevant portion reads as under: ((There is another reason for suspecting the case of the prosecution. Though the appellants were arrested within a few days of the incident, they were never put up for identification in a test identification parade. While it is true that in every case the holding of a test identification parade may not be necessary, but that depends on the facts and circumstances of each case. In the instant case the prosecutn'x hadnot said in the course of her deposition that she hQd personally known all the appellants by name or ptherwise. She also does not claim that she had other •^reasons to -know them as to be able to identify them. In her first information report, she had stated that some unknown persons were knocking at her door, but she identified the appellants in court after two years of the incident. The question is whether in the facts and circumstances of this case, holding of a test identification parade was newssary. Since there i$ no evidence to show that the prosecutrix was acquainted with the appellants, or had reasons to know them from before the occurrence, it must be held that the prosecutrix had only a fleeting glimpse of the culprits on the night of the occurrence. Even this appears to be doubtful because of the very unconvincing story narrated by the prosecutrix about her having an opportunity to identify the appellants. In the first information report she stated that after the appellants entered the room they asked her to switch on the light but when she said that there was no light, they lighted ..^ 6 (2001) 10SCC 109 7 (2003) 11 SCC488 ^.;7- -</- a matchstick and took out a torch from her almirah, put cells in it and then lighted the same and started seeing each other. This gave her an opportunity to identify them by face. Thereafter they switched off the torch. In her deposition she has deposed to the same effect, except that lighting of the matchstick and torch took place after she was raped by th^em, and just before they departed. The story appears to be highly improbable and unworthy ofbelief. In the first instance it is difficult to believe that the appellants knew that the prosecutrix had kept a torch in her almirah. Moreover, after discovering the torch they also found cells to be put into the torcb, and thereafter they switched on the torch, The lighting of the torch and flashing it on the faces of the appellants was, as if ohly to give an opportunity to the prosecutrix to see their faces. Thereafter the torch i^§ switched off. Thus, according to the first information report, the prosecutrix had only a glimpse ofthe appellants when they lighted the torch with a view to see each other's face." 17. In the present case, the appetlants were unknown to the prosecutrix and her husband prior to the date of commission of offence. While committing the offence it W98 midnight and the accused persons switched off the light. In stead of conducting proper test identification parade of the accused the prosecution has adopted a totally illegal procedure by recording their confession vide Ex. P-3, P-4 and P-5 which is against the judiciat norms and also against the provisions of Article 20 (3) of the Constitution of India and section 25 .? and 26 of the Evidence Act. Prosecution has not even taken care of obtaining signature of the Panch witnesses before whom the accused persons were identified by the prosecutrix and her husband. Even the prosecutrix and her husband have not stated anything to show that there was sufficient opportunity to see each of the accused persons and'on the basis of their memory they have identified them in the dock identification. Test Identification Parade is not a sine qua non to establish the identity of the accused but it is a rule of caution and rule of prudence. The test identification parade js necessary in the case j 2 ~ ^N^W /nv where the culprit was previously not acquainted with the victim/complainant. In the instant case the prosecutrix has not described the identity ofthe accused persons in the FIR. Out of three personsi.e. Jitendra, Kalu and Kallu named in the FIR, two persons namely Kallu and Kalu are not the accused in this case, The prosecutrix was not in a position to say as to which person is named by what. - .- -^ 18. Statements of the prosecutrix and her husband (PW-9 and PW- 10 respectively) are not sufficient to establish the identity of the accused connecting them to the crime in question. Suspicic'", howsoever grave cannot take the; place of the evjdence. Their statement does not inspire confidence and based on that the conviction under section 376 (2) (g) IPC is not systainable. 19. Thus in view of the aforesaid scrutiny of the material available on record 1 am of the view that the judgment impugned suffers from illegality. The appeat is therefore allowed. Judgment impugned is hereby set aside. Appettants are acquitted of the charges leveled against them. Fine amount if already deposited by the appeltants shatl be refunded to them. Sd/- T.P.Sharma Judge ,,r'