Criminal Appéal No. 993 o! 2003 Santosh Sahu and 2 others Versus State of Chhattisgarh JUDGMENT Post for: 1 1.06.2007 - Sdl- Sunil Kumar Sinha i Judge 25.0. 007 5 2 HIGH COURT OF CHHATTISGARH, BILASPUR HIGH COURT OF CHHATTISGARH. BILASPUR Criminal Appeal No.99312003 ; APPELLANTS 1 Santosh Sahu S/o Chova Ram sahu, 3 11NJAIL) agad about 2O ycars, R] o Village Morid, Thana Utai Dishict — Durg (C.G.) 2. DeV§ndra Sahli, S/o Punara'm sahu, agcd’about 19 years, R/ o Village Sopali, Thana Uttai, District — Dug 3. Manoj Kumar sahu, S/o Chee’dan lal Sahu, aged about 19 years, Village Morid, Thana Uttai, District — Durg (C.G.) Versus REsPONDENT State of Chhattjsgarh, Through 8.1-1.0; Thana Uttai, Distn'ct— Durg (Appeal under Section 374 (2] of Cr.P.C.l Appearance: Shri Uttam Pandey, counsel for the appellants. Shn’ G.K. Beriwal, Dy. Advocate General for the State. JUDGMENT (11.06.2007) SUNIL KUMAR SINHA, J. (1) This appeal is dilected against the judgment of conviction and oxder of sentence dated 2/7/2003 passed in S.T. No.41/2003 by the First Additional Sessions Judge, Durg (C,G.), whereby, the appellants have been convicted under Section 376 (2) (g) of IPC and sentenced to undergo R.I. for 10 years and to pay a hne of Rs.500/-, in default of payment of fine to further undergo R.I. for 1 month. . ‘= 2 Criminal Appeal No.99312003 @ (2) Seven accused persons namely Santosh Sahu, Devendra Sahu, Manoj Knmar (appellants herein}, Naresh, Soni, Jaggu and Rajesh (juvenile offenders) allegedly committed gang rape against 2 minor girls namely K11. Shyama Nirmalkar (PW- 1) and lKu. Sita (PW-2) at about 11:00 pan. on 25/12/2002. A11 the juvenile oeenders namely Nafesh, Soni, Jaggu and Rajesh have been acquitted by the Juvenile Juso'ce Board, Pulgaon vide i judgment ‘dated 12/11/2003 passed in Cn'minal Case No.§5/2003. However, these appellants have been convicted by the Iegular Conrt in the above Sessions Trial. (3) The case of the prosecuu’on is that 2 victims namely K11. Shyama (PW- 1) and Ku. Sita (PW-2), both are residents of Village — Pachpedi. They are in close relations, as Sita is the daughter of eldest sister of Shyalma. Both had gone to visit village - Morid, where, uncle of Sita namely Santosh Nirmalkar (PW-4) was Iesiding with his family. In the night of 25/ 12/2002, both had gone to see a dance pmgramme in the village. The allegations ale that at about 11 p.m., when they were returning back afteri seeing the dance programme, all the 7 accused persons met them on the Way, Shyama (PW- 1) was caught by accused — Santosh, Devendra, Naresh, Jaggu and Rajesh, Whereas, Sita (PW-2) was caught by accused —- Manoj and Soni. They were taken to diEerent sites. Shyama was taken to a nearby place i known as Byara, where some paddy snaw was kept; she was x 3 Criminal AMaI No.993l2003 mada undressed and was thrown on thc ground. Naresh caught her both the hands and three accused persons committed rape against her. Thereafter, when the foulth one namely Devendra iried to commit rape, she gave him a teeth bite on left side of his forehead and ran away from the place of occurrence. Sita was taken to another place near ardam, Where Soni Goswami gagged her mouth and accused — Manoj and Soni Goswami committed i rape against her. When Shyama narrated the story to her aunt - Dulasiya Bairthey went in search of Sita, who met them on the way and she also narrated the story to them. Thereafter, they narrated the story to the other villagers and ultimately, F.I.R. vide EXP] 1 was lodged by Kn. Shyama (PW- 1) in Police Station — Utai on 26f 12/2002, at about 11:30 am. The F.I.R. contains ‘ the names of all the 7 accused persons. (4) During the course of investigation, the victims were sent for medical examination. Victim — Shyama (PW- 1) was examined by Dr. Kalpana Shanna (PW-9). She prepared her report EXP] 22. According to her, there were no external injuries on the body of the victim except that‘she was complaining some pain on her left breast. There were no external injuries on her private parts, hymen was ruptured and no definite opinion could be gven regarding recent sexual intercourse. Victim — Sita (PW- 2) was examined by Dr. (Smt.) P. Dani (PW-8). She prepared her report EXP] 20. According to her, there were no external injuries “.3, Criminal Appeal No.993l2003 on the body of the vich'm, vagina was admitting one tinger and uterus was normal. However, there was a linier abrasion on the post-side of vagina and no definite opinion could be given about sexual intercourse. The accused persons wele also sent for medical examination. Jaggu @ Jageshwar, Manoj Sahu, Santosh Sahu and Devendra Sahu were examined by Dr. ‘Anil Agrawal (W511), who prepared the reports vide Ex.P/24-A, Ex.P/26-A, Ex.P/28-A and EX.P/29—A Iespectively. The fnedical reports of all the Accused persons were normal and they were shown to be capable to perform sexual intercourse. There were no external injuries on the bodies of these accused persons except that of Devendra, as there was an abrasion over the left side of his forehead at about 1 $’2 inch away from the eye-brow admeasuling 1 1/2 cm x V2 cm, irregular in shape, reddish in colour, skin slough out, in which clotted‘blood was seen over the injury region. According to the report, this injury may have been caused by a hard object and it was simple in nature. k« t (5) Apart from the above, evidence pertaining to the age of the gvictims were also collected and after completion of usual t investigation, charge sheet was filed in the Court of Judicial Magistrate F‘irst Class, Durg vide Criminal Case No.12/2003, j who in tum committed the matter to the Court of Sessions vide i Older dated 6/2/2003, from where, it was received on transfer Q I 5 Criminal Appeal No.99312003 by the First Additional Sessions Judge, Durg, Who conducted the trial and passed the impugned judgment. (6) The Sessions Court recorded a finding that victim —- ‘Shyama (PW—1) wae aged about 15 years 8 months 26 days, whereas, victim — Sita (PWL2) was aged about 12 years 11 months 20 days on the date of incident. Relying on the e f testimonies pf these two witnesses, it fulther recolded a dnding that these two minor victims were subjected to foxceful sexual s intercourses by the accused persons, whexeby, they were guilty of the odence punishable under Section 376 (2)(g) of IPC. (7) Leanled counsel for the appellants has not disputed the finding pertaining to the age of the victims. His submission was that according to prosecution itself, the victims were the residents of a diiferent Village and they had come to their uncle’s place i.e. Village — Morid for the hrst time and the appellants were not previously known to them, therefore, lodging of the F.I.R. by Shyama (PW-1) containing the names of accused persons appears to be unnatural and suspicious. He also : submitted that it has come in the evidence of both the victims that they did not know the accused persons, therefore, conducting of an identification parade was essential in this case, which has not been done by the prosecution. He further 4 ' 1 submitted that even otherwise also, the important admissions on _, q 6 Criminai Appeal No.993l2003 the part of the victims regarding factum of identification of the accused persons, which creates suspicion regarding their parh‘cipation in commission of the crime, have been ignored by ? the Sessions Judge and on the face ofit, tesfimonies of these two vicu'ms pertaining to participation of the appellants and their dock identincah‘on should he disbelieved and they should be acguitted, (8) On the other hand, learned counsel-for the State opposed theae arguments and supported the judgment of conviction and order of sentence passed by the Sessions Court. (9) I have heald learned counsel for the parh'es at length and have also perused the records of the Sessions Trial. (10) So far as requirement of Test ldentincation Parade (T.I.P.) is concerned, the law is that even without T.I.P., identification in Court can be behaved. It has been held by the Apex Court in the matter of Ronny v. State ofMaharashtra AIR 1998 S.C. 1251 that the identiiication of the accused by a witness if he had an opportunity to interact with him or to notice his distinctive i i features lends assurance to his tesiilnony in Court and that the absence of corroborative evidence by Way of test identification parade would not be material. 7 Criminal Appeal No.993l2003 ( 1 1) 111 the matter of George v. State afKeralaAm 1998 S.C. 1376, the Apex Court further held that the identification of an accused in Court is the subatantive evidence of the person identifying and his earlier identiiication in a TJ. parade corroborates the same. In other words, want of evidence of earlier identiiication in a T.I. palade does not anect the admissibility ofthe evidence of identincation in Court. 2., (12) The Apex Court again held in the matter of Dastagir Sub 3 and another us. State ofKarnataka (2004) 3 S.C.C. 106 that non-holding of T.I. parade would not by itself disprove the prosecution'case. To what extent and if at all the same would adversely anect the prosecution case; would depend upon the facts and cincumstanees ofeach case. t\!. w (13) Therefore, it is settled that even without T.I.P., identincation in Court can be believed and the result of T.I.P. is not substantive evidence, it can be used only for corroboration or contradich’on. Prudence requires corroboration of identincation in court by prior T.I.P., but absence of T.I.P. is not fatal if accused persons were known earlier to Witness or if they had been su$ciently described in the complaint or if accused persons had been arrested at the spot. 7; l (14) In the present case, admittedly, the accused persons have been named in the FIR lodged by the victim - Shyama (PW- 1). So , 8 Criminal Appeal No.99312003 far as prosecution is concerned, their contention is that sinca the accused persons were named in the FIR, themfcre, there was no necessity ofT’I. parade in this case. The question arises as to lwhat was the source of information with the maker of the FIR to mention the names of the accused persons therein? If we look into the evidence of Shyama '(PW- 1), it comes in para 8 of her‘ owes-examination that since the accused persons were calling each other Hy taking their names, she could come to know about their names and on this basis only, she has named them in the FIR. Her admission in this regard is clear and unambiguous, which reads as follows : , ‘ “wmwe,%1¥atqa-us1¥a1tt emnummahmamaat$wnm ehatwhgs‘mnfuvsmmtaei wmw %,%€3aaasfat$mwm¢l€fméaiii” Apart n‘om the above, she has also admitted in this paragraph that since there was darkness, she cannot tell that who had caught her hands and who gagged her mouth. She has further added that there was also darkness in Byara (place of occun‘ence), where some paddy straw was kept, therefom,‘ she could not identiht any of the assailants. Therefore, the fact remains that so far as this Witness is concerned, she has lodged the FIR by mentioning the names of assailants only on the basis i that the assailants were calling each other by taking the above 9 Criminal Appeal No.993/2003 ‘names, So far as dock identification is concerned, that also becomes suspicious on the admission of this witness that there was compleft dafkness on the road, wherc She and the other victim were caught by the assailante, due to which, she ebuld not identify any of them and even she could not identify the ‘ assailants at the time of eofnmission of sexual intemourses in Qyara, because there was complete darkness at that place also. (15) As far as PW-2 — Sita is concerned, she has also admitted i in last 4 lines of her cross-examination that she cannot say as to ’ whether appellant — Manoj, who is present in the Court, had committed sexual intercourse against her or not, She has explained that since the other boy (one of the juvenile oh'enders), who is not present, was calling like “Manoj Manoj, come this side Manoj", therefore, she is telling that Manoj, who is present in the Comt, had committed sexual intercourse against her. (16) Therefore, in the facts and circumstances of this case, 2 things appear to be very clear. Firstly, the victims did not x» previously know the accused persons, as they were strangers to i them and PW-l - Shyama had mentioned their names in the FIR on the basis that assailants were calling each other by these i names at the time of occurrence and secondly, in fact, as per the admissions of PW—l and PW-2 vide para 8 and para 5 of their evidence respectively, they could not identify the persons Who 10 Criminal Appeal No.993l2003 had committed sexual intemourses against them. Therefore, &tst1y, a quick identification was necessary, which has not been done by the proseéiltion and the dock identiflcation is also not of very much use because in the cross—examinations the victims have admitted that they could not identify the assailants due to darkness. ($7; Another important piece of prosecution evidence is about teeth bite, said to have been given by victhh — Shyama (PW- 1) to accilsed Devendra. Admittedly, Devendra was examined by Dr. Anil Agrawal (PW-11), who gave his Ieport vide Ex.P/29-A, in which, he found one abrasion over the left side of his forehead admeasuring 1 V2 cm x ‘/2 cm having irregular shape. About this injury, he has admitted vide para 7 of his cross—examination that the said injury cannot be caused by a teeth bite and this was an injury caused Within a dulation of 24 hours from the time of his examination, which was conducted by him at 1:50 p.111. on 27/ 12/ 2002, whereas the incident took place on 25. 12.2002. (18) No doubt, the victim of rape stands at par with an injured witness and her evidence is to be given much weightage notwithstanding corroboration and the conviction can well be based on her sole testimony, as our legal system has emphasized on value, weight and quality of evidence, rather than quantity, multiplicity or plurality of the Witnesses, but principally; the fact > remains intact that her such testimony must inspire conhdence ‘ r @ 11 Criminal Aggeal No.993l2003 of the Court so as to_ solely depend on it to mcord a conviction, leaving no room for a doubt or suspicion against the guilt of the accused. : (19) In the present case, on the face of cross-examinaa'on of 2 victims, particularly admissions made by them regarding identification of the assailalits, their evidence db not inspire qgahdence of this Court so as to Iecold a conviction of the appellants (in it 4 a (20) In the opinion of this Court, the Sessions Court committed en'or of law by convicting the accused pelsons on such evidence 'of the Victims by completely ignoring their valuable admissions, due to which, dock identification of the accused persons as also mentioning of their names in the FIR both become baseless. The conviction and sentence awarded to the appellants cannot be sustained on such evidence and the ‘same deserve to be set aside. mm, Sunil Kumar Sinha Judge . (21) In the result, the appeal is allowed. The convicuon and t: sentence awarded to the appellants an: set aside. They are l acquitted of the charges under Section 376 (2) (g) of IPC. It is stated that the appellants are continuously in jail since j 27/ 12/2002f They be released forthwith if not required in any other case. ix Sdl- “x