Himachal Pradesh High Court
Arjun Alias Joun & Ors vs State Of H.P on 20 July, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 83 of 2014.
Reserved on: July 16, 2015.
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Decided on: July 20, 2015.
Arjun alias Joun & ors. ......Appellants.
Versus
State of H.P. .......Respondent.
Coram
of
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? 1 Yes.
For the appellants: rt M/S G.R.Palsra and Ravinder Thakur, Advocates.
For the respondent: Mr. Ramesh Thakur, Asstt. AG.
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Justice Rajiv Sharma, J.
This appeal is instituted against the judgment dated 17.12.2013, rendered by the learned Sessions Judge, Kullu, H.P. in Sessions Trial No. 112 of 2013, whereby the appellants-accused (hereinafter referred to as the accused) who were charged with and tried for offences punishable under Sections 376-D and 392/34 IPC, were convicted and sentenced to undergo rigorous imprisonment for a period of 20 years each and to pay fine of Rs. 10,000/- each (30,000/- in all) for the commission of offence under Section 376 -D/34 IPC. They were further ordered to undergo rigorous imprisonment for a period of two years in case of default of payment of fine. The accused were also sentenced to undergo rigorous imprisonment of 5 years and to pay fine of Rs. 5,000/- each (15,000/- in all) for the commission of offence under 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 18:36:30 :::HCHP 2Section 392/34 IPC and in default of payment of fine to further undergo rigorous imprisonment for one year.
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2. The case of the prosecution, in a nut shell, is that the prosecutrix, an American National, had come to Manali on 3.6.2013 and was staying in Sunrise Guest House, Manali. At 10:00 PM, she had gone to Vashishat to see her friends. In the intervening night of 3rd and 4th of June, 2013, at about 1:00 AM, she was coming back from Vashishat to old Manali. She was looking for a taxi or auto rickshaw. All the three accused persons, namely, Arjun, Lucky and Som Bahdur were present on rt the spot. They offered lift to the prosecutrix in their truck. The prosecutrix accepted their offer and accused drove the truck towards mountain side for about 20 minutes. They attacked the prosecutrix and gave her beatings and took away Rs. 5000/-, I-phone, Nokia mobile, Nikon camera, 30 US dollars and about 1500 Thai currency. All the three accused persons committed sexual intercourse with the prosecutrix and dropped her at Manali bus stand at about 3:00 AM. Consequently, the prosecutrix reported the occurrence to the police. FIR was registered.
The prosecutrix was medically examined. The recoveries were made. The Assistant Director from RFSL, Mandi also visited the spot. The truck was also taken into possession by the police. The prosecutrix told that she had kicked the left front of the wind screen of the truck which got cracked. The police lifted hair from the broken part of the speaker of the truck. Liquor bottle, wrapper and blood stains were also lifted. The ::: Downloaded on - 15/04/2017 18:36:30 :::HCHP 3 police also took into possession seat cover, I-phone, two speakers and the aforesaid articles were sealed in parcel and sent for chemical examination.
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The accused persons were arrested and were medically examined. The matter was investigated and challan was put up after completing all the codal formalities.
3. The prosecution has examined as many as 17 witnesses to of prove its case. The accused were also examined under Section 313 Cr.P.C to which they pleaded not guilty. They pleaded innocence and false implication. The learned Trial Court sentenced and convicted the accused rt on 17.12.2013. Hence, the present appeal.
4. M/S. G.R.Palsra and Ravinder Thakur, Advocates for the respective accused, have vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. Ramesh Thakur, learned Asstt. Advocate General, appearing for the State has supported the judgment of the learned trial Court dated 17.12.2013.
5. We have gone through the impugned judgment and records of the case carefully.
6. PW-1, prosecutrix deposed that she came to India for second time on 16.5.2012. She reached Manali on 3.6.2013. She took room in Sunrise Guest House. On the same day, at about 10:00 PM, she took Auto from Old Manali and went to Vashishat to visit a friend. She left Maya Guest House at Vashishat at 1:00 AM in the midnight. She was looking for a taxi and auto to go back to old Manali. She saw all the three ::: Downloaded on - 15/04/2017 18:36:30 :::HCHP 4 accused standing behind the truck. She asked them for taxi or auto to old Manali. They offered her lift in their truck. She accepted their offer.
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They drove the truck towards mountain for 20 minutes. They stopped the truck and attacked her and they raped her one by one. They also gave beatings to her. They took away her I-phone, Nokia mobile, Nikon camera, sliver flash light torch, rupees 5000/- and 1500 Thai currency.
of They also took away her I-Phone and Nokia charger. They drove her back to Manali and dropped her near bus stand at about 3:00 AM. They told their names before they dropped her. They were in the age group of 19 to rt 25 years. She identified the accused in the Court. Lady Constable took her to hospital. She gave her consent and put her signature on the MLC Mark "A" with red circle. On 5th June, she was taken to hospital for second medical examination at 6:00 PM. The police prepared the spot map. She identified the case property in the Court. The Forensic Team had inspected her purse and from her purse, they had taken finger prints from one ten rupee note. She identified the truck. When she was raped, she kicked the left front of the window screen with her foot. The glass cracked. The sexual intercourse was committed upon her without her consent. Her hair were recovered from three places of the truck. She identified the truck Ext. P-28. In her cross-examination, she denied the suggestion that she was invited to Vashishat by her friends to attend a cocktail party. She had not consumed beer or some other drink. She denied the suggestion that nobody has committed rape with her. She ::: Downloaded on - 15/04/2017 18:36:30 :::HCHP 5 could see the accused in the light of passer by vehicles. Volunteered that she had already seen accused at Vashishat where there was sufficient .
light. She also requested the accused to stop the vehicle. She also raised alarm. The rape was committed inside the vehicle. The vehicle was parked at the time of rape. She identified the accused in the Court.
When one accused was raping her, the other had put his hand on her of mouth and third one had caught hold of her. She narrated these details in her supplementary statement. She also resisted. All the three accused discharged their semen inside her vagina. She sustained injuries on her rt back, neck and forearm.
7. PW-2 Vinod Kumar deposed that the accused Arjun had come to his shop for hair cut. He cut the hair of the accused and charged rupees 30 for the same.
8. PW-3 Dr. Shashi Wapa, has examined the prosecutrix. She noticed the following injuries:
" 1. There were multiple abrasions on a lower back ranging from 5cm x 3 cm to 7cm x 3 cm in size which were found to be red in colour;
2. Abrasion on both the elbows- 6cm x 4 cm in size with skin abrasion, simultaneously, seen around it and were red in colour;
3. A circular contusion on left forearm light blue in colour;
4. Two parallel contusion marks were seen on left side of neck about 4 cm from trachea blush in colour.
Secondary sexual Characters were fully developed. On Local Examination:::: Downloaded on - 15/04/2017 18:36:30 :::HCHP 6
1. No injury marks were seen on inner thigh or vaginal;
2. Redness of labia majora and labia minora were seen.
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3. Introitus was allowing two fingers with ease;
4. Three vaginal swabs were taken from the introitus; pubic hair were shaved;
5. One vaginal swab was taken from the introitus. Patient was feeling pain during examination and was not very co-
operative;
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6. Inner Pajama was preserved for forensic examination; and
7. Person had passed urine before the examination."
She issued MLC Ext. PW-3/B. The duration of injuries were rt within 6 to 10 hours. The victim was exposed to coitus. She also took 5 ml. blood sample and hair and sealed the same and handed over to the police for the purpose of DNA examination. She gave her final opinion as under:
"Human semen was detected from slacks (Payjama), vaginal smear and swab. According to final opinion, the victim has been exposed to coitus and according to FSL reports, DNA profile of Som Bahadur and Lucky matched with DNA profile from the vaginal swabs of the victim and her slacks. The final opinion is within red circle on the reverse of Ext. PW-3/B. The injuries mentioned in MLC Ext. PW-3/B are possible while a lady would try to save herself from being raped by three persons."
9. PW-4 Dr. Ashok Rana, has examined all the accused and issued MLCs Ext. PW-4/B, Ext. PW-4/C and PW-4/D. ::: Downloaded on - 15/04/2017 18:36:30 :::HCHP 7
10. PW-5 LC Harsh Latta, has taken the victim for medical examination.
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11. PW-6 HC Rakesh Kumar, deposed that the prosecutrix had produced one black coloured T-shirt Ext. P-8 to the police which was taken into possession vide recovery memo Ext. PW-1/C.
12. PW-7 ASI Kamal Kant, deposed that in his presence, Forensic of team had taken Rs. 10/- from the purse of the victim. It was sealed in a parcel Ext. P-10 with five seals of seal impression "S". Memo Ext. PW-
1/D was prepared. The truck was recovered. The front window screen of rt the truck from the left side was cracked. The number of the truck was HP-58-3649 and the victim identified the truck. The Forensic team also examined the truck.
13. PW-10 Sanjeev Sharman, deposed about the recoveries made from the spot. On 6.6.2013, accused Arjun gave statement to the police that he had kept the articles of lady in his quarter and he could get the same recovered. He also gave statement to the effect that he could recover jacket, pant and T-shirt. Accused Lucky also gave statement that he has kept one camera, charger and torch in the dustbin of his house and he could get the same recovered. Accused Som Bahadur also deposed that he was having some foreign currency kept in his house with his wife. Thereafter, recoveries were effected. The recovery memos were prepared on 6.6.2013.
14. PW-11 Tek Chand has proved report Ext. PW-11/A. ::: Downloaded on - 15/04/2017 18:36:30 :::HCHP 8
15. PW-12 Dr. Vivek Sahajpal, has proved report Ext. P-50 (4 pages).
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16. PW-13 Manoj Kumar deposed that he deployed John alias Arjun for two days as driver on his Tipper on daily wages.
17. PW-14 HC Sher Singh deposed that the case property was deposited with him. He made entries in the Register. He sent 12 sealed of parcels and 4 sealed envelopes to FSL Junga on 9.6.2013 through Const.
Sohan Singh.
18. PW-15 HC Sohan Singh deposed that he took the case rt property 12 sealed parcels and four sealed envelope vide RC No. 120/13 and one another sealed parcel alongwith documents vide RC No. 121/13 to FSL Junga.
19. PW-17 Insp. Neel Chand was the I.O. He got the site identified. He prepared spot map Ext. PW-17/B. The vehicle was recovered. It was got identified from the victim. RFSL team also inspected the vehicle. He prepared the spot map vide Ext. PW-17/B. The accused were arrested on 6.6.2013. The recoveries were got effected from the accused persons. He also obtained MLCs of the accused persons. He prepared the supplementary challan and report of FSL Junga is Ext. P-49 and Ext. PA-46.
20. The case of the prosecution, precisely, is that the prosecutrix was coming from Vashishat to old Manali. She was looking for taxi or auto to reach old Manali. The accused were present on the spot. They ::: Downloaded on - 15/04/2017 18:36:30 :::HCHP 9 offered her lift in their truck. She accepted their offer. They drove the truck towards mountain for about 20 minutes. They stopped the truck .
and attacked her and they raped her one by one. She resisted their attempt. The window screen of the truck was also cracked in the process.
Thereafter, they took her back to Manali and dropped her near bus stand at about 3:00 AM. She was medically examined. The doctor issued MLC of and noticed the injuries on her person. The DNA profiling was also undertaken. The recoveries were got effected at the instance of accused persons. rt
21. PW-1, prosecutrix has deposed that she had gone to Vashishat to see her friends. She was coming back and looking for taxi or auto. The accused offered her lift in their truck. They drove the truck towards mountain for 20 minutes. They stopped the truck and attacked her and they raped her one by one. She had kicked the left front of the wind screen with her foot. The glass cracked. Thereafter, they drove her back to Manali and dropped her near bus stand at about 3:00 AM. In her cross-examination, she has categorically stated that the accused have ejaculated inside her vagina. She sustained injuries on her back, neck and forearm. The two accused persons took two minutes each, whereas the third one had taken about 5-10 minutes in raping her. She identified the accused due to light of passer by vehicles and also at Vashishat where there was sufficient light. She was raped one by one by the accused. The rape was committed inside the vehicle. Her belongings were also taken ::: Downloaded on - 15/04/2017 18:36:30 :::HCHP 10 away by the accused. She identified the case property in the Court. The sexual intercourse was committed upon her without her consent. She .
also tried to raise alarm. When one accused was raping her, the other had put his hand on the mouth and the 3rd one caught hold of her.
22. PW-3 Dr. Shashi Wapa has noticed multiple abrasions on a lower back ranging from 5 cm x 3 cm to 7 cm x 3 cm in size. She also of noticed abrasion on both the elbows 6 cm x 4 cm in size with skin abrasion. A circular contusion was also seen on left forearm, light blue in colour and two parallel contusion marks were seen on left side of neck rt about 4 cm from trachea blush in colour. Redness of labia major and labia minora was also seen and no injury marks were seen on her inner thigh or vagina. The duration of injuries was within 6 to 10 hours.
According to her final opinion, human semen was detected from slacks (Payjama), vaginal smear and swab. According to the FSL reports, DNA profile of Som Bahadur and Lucky matched with DNA profile from the vaginal swabs of the victim and her slacks.
23. According to Ext. PW-11/A, duly proved by PW-11 Tek Chand, the occurrence of some incriminating act inside the vehicle could not be ruled out. According to Ext. P-50, the first profile matched with DNA profile obtained from Ext. 9b (blood sample of Som Bahadur) and second DNA profile matched with the DNA profile obtained from Ext. 10b ( blood sample of Lucky).
::: Downloaded on - 15/04/2017 18:36:30 :::HCHP 1124. Mr. G.R. Palsra and Ravinder Thakur have vehemently argued that identification of the accused was doubtful since no .
identification parade has been held. PW-17 Inspector Neel Chand has categorically deposed that he had moved an application on 7.6.2013 before the Judicial Magistrate 1st Class, Manali to carry out identification parade of the accused persons, but they refused for identification parade.
of The non-examination of prosecutrix's friend to whom she had gone to see was not fatal to the case of prosecution.
25. Their lordships of the Hon'ble Supreme Court in the case of rt Kanta Prashad vrs. Delhi Administration, reported in AIR 1958 SC 350, and connected matters, have held that failure to hold an identification parade does not make inadmissible the evidence of identification in the Court. Their lordships have held as follows:
"5. As for the test identification parade, it is true that no test identification parade was held. The appellants were known to the police officials who had deposed against the appellants and the only persons who did not know them before were the persons who gave evidence of association, to which the High Court did not attach much importance. It would no doubt have been prudent to hold a test identification parade with respect to witnesses who did not know the accused before the occurrence, but failure to hold such a parade would not make inadmissible the evidence of identification in court.
The weight to be attached to such identification would be a matter for the courts of fact and it is not for this Court to reassess the evidence unless exceptional grounds were established necessitating such a course."
26. In the instant case, the prosecutrix had the opportunity to see the accused in the light at Vashishta and thereafter in the light of passer by vehicles. She remained in the company of the accused persons for about half an hour.
::: Downloaded on - 15/04/2017 18:36:30 :::HCHP 1227. In the case of State of Madhya Pradesh vrs. Sunder Lal, reported in 1992 Cri. L.J. 2519, their lordships of the Hon'ble Supreme .
Court have held that the girl who was 13 years old could not have forgotten the face of a man who committed ghastly crime upon her. It has been held as follows:
"3. We have perused the judgments of both the courts and also of have evidence of PWs- 2 and 4. We are of the opinion that the High Court was in error in disbelieving the testimony of PW-2 with respect to the identity of the accused. The girl was 13 years' old and she could not have forgotten the fact of the man who committed such ghastly crime upon her. It is not the case of the defence that rt there was no light. On the contrary, the prosecution evidence is that accused himself made PW-4 prepare lamps, and light them, before taking away PW-2. It is not a case where PW-2 had a mere fleeting glimpse of the accused. We are, therefore, of the opinion that the identity of the accused has been amply established by the evidence of PWs- 2 and 4. Accordingly, we set aside the judgment of the High Court and restore that of the learned Trial Judge."
28. In the case of Visveswaran vrs. State Rep. by S.D.M., reported in AIR 2003 SC 2471, their lordships of the Hon'ble Supreme Court have held that the approach required to be adopted by the Courts in rape cases has to be different. The ground realities are to be kept in view. Moreover, their lordships have further held that the identification of accused either in Court or in test identification parade is not a sine qua non for conviction. In every case, the guilt can be proved from other circumstances. It has been held as follows:
"11. It is unfortunate that despite the aforesaid facts, the test identification parade was not held. An important aspect of the case is that the appellant had beard and moustaches when PW1 and PW2 were examined as witnesses for the prosecution. It was not so at the time of the occurrence. PW1 and PW2, therefore, it is evident, could ::: Downloaded on - 15/04/2017 18:36:30 :::HCHP 13 not identify him in Court and stated in their deposition that the said person is not in Court. It does not mean that the acquittal is to follow as a natural corroboratory from the statements of PW1 and PW2.
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The identification of the accused either in test identification parade or in Court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. Many a times, crimes are committed under cover of darkness when none is able to identify the accused. The commission of crime can be proved also by circumstantial evidence. In the present case, there are clinching circumstances unerringly pointing out the accusing finger towards the appellant beyond any reasonable doubt.
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12. Before we notice the circumstances proving the case against the appellant and establishing his identity beyond reasonable doubt, it has to be borne in mind that approach required to be adopted by courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity, courts have to show greater responsibility when trying an accused on charge of rape. In such rt cases, the broader probabilities are required to be examined and the courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by Courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved."
29. In the case of Dastagir Sab and another vrs. State of Karnataka, reported in (2004) 3 SCC 106, their lordships of the Hon'ble Supreme Court have held that when the prosecutrix had the occasion to see the accused on three occasions, the non-holding of test identification parade was not fatal. It has been held as follows:
"5. The prosecution in support of its case has examined as many as 26 witnesses. The prosecutrix Malleshwari examined herself as P.W. 1. She in her evidence detailed the circumstance in which the offence is said to have been committed. She also disclosed enough materials to show that she had the occasion to see the accused persons at least on three occasions almost immediately prior to the ::: Downloaded on - 15/04/2017 18:36:30 :::HCHP 14 commission of offence and also when she was intercepted and forcibly committed sexual assault on her. It is further borne out from records that immediately upon hearing her cries when the appellants .
allegedly took to heels, her brother P.W. 6 Rambabu saw the appellants running away from the spot. The other witnesses including the father of the prosecutrix, the other labourers who were working in the field i.e. Gobindamma w/o Malappa, resident of Athnoor Village, Kabir Jayamma w/o Gangappa Malad, Laxmi w/o Amaresh Malad, Nagaraj s/o Gangappa Malad, Viresh s/o Gangappa Malad, Subamma w/o Rahiman Choudhary of Solapur, Ramjanamma w/o Bhandenawaz, Hussain s/o Choudhary Abi Sab, Mohammed s/o Lal Sab came immediately to the place of of occurrence. The father of the prosecutrix got hold of the accused persons and allegedly they confessed their guilt but they refused to come with him. When the incident was narrated to the labourers and others including the P.Ws. 2, 3, 6 and 14, they expressed their anguish and wanted the boys to be punished. One Subamma went to the village and assaulted the appellant No. 1 with her chappal.9.
rt No law states that non-holding of Test Identification Parade would by itself disprove the prosecution case. To what extent and if at all the same would adversely affect the prosecution case, would depend upon the facts and circumstances of each case.
10. In the facts of this case, holding of T.I. Parade was wholly unnecessary. Had such T.I. Parade been held, the propriety thereof itself would have been questioned before the Trial Court.
14. In the instant case, as noticed hereinbefore, PW 1 gave sufficient particulars of the persons committing the offence of criminal assault on her. They had been identified by their description by her brother. The appellants were chased and they were caught and allegedly they had made a confession of their guilt. The relatives of the prosecutrix and other persons had also approached Mahantesh Patil, PW 19 to see that the culprits are brought to book and assurance in that behalf had been given. It was only when despite repeated attempts their grievances were not met, the First Information Report was lodged. Furthermore, in this case the names of the appellants have been mentioned in the First Information Report."
30. In the case of Toorpati Majsaiah and another vrs. State of A.P., reported in 2005 Cri. L.J. 568, the learned Single Judge of the Andhra Pradesh High Court has held that identification of the accused in the open Court by the prosecutrix cannot be disbelieved on the ground of ::: Downloaded on - 15/04/2017 18:36:30 :::HCHP 15 lapse of time and absence of identification parade. It has been held as follows:
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"16. On the strength of this Ex. P-1, crime was registered and investigation was taken up, completed and the accused were charge- sheeted referred to supra. From the evidence available on record, there cannot be any doubt that the incident as such happened but the only question which had been elaborately argued by the learned counsel representing the appellants is that these accused cannot be connected with these offences unless there is legally acceptable of evidence. The counsel would submit that it is highly improbable that after a long lapse of time in view of the fact that this incident had happened at odd hours, P.W. 5 could have identified A-1 and A-2. By mere lapse of time or by the mere fact that the test identification parade was not conducted so far it relates to P.W. 5 is concerned. rt The identification made by P.W. 5 in the open Court cannot be disbelieved. No doubt, she deposed that she had participated in the test identification parade but it appears to be not a fact. However, there was sufficient opportunity for P.W. 5 to identify the accused since the switching off the light and the other aspects, they are of at the later point of time. The medical evidence clearly supports the prosecution version that the offence of rape had been perpetrated as against P.W. 5. It is no doubt true, as far as the seizure of other material objects is concerned the panch witnesses were declared hostile. But as far as the offence relating to Section 376(g), I.P.C. is concerned, the evidence is clear. The evidence of P.Ws. 5 and 6 is well corroborated by the medical evidence. Hence, there cannot be any doubt that the prosecution had established the guilt of the accused under Section 376(g) of I.P.C. As far as the seizure of M.Os. 1 to 3 is concerned, both the witnesses P.Ws. 3 and 4 were declared hostile. No doubt, the Investigating Officer had deposed about the seizure of M.Os. 1 to 3, in the light of the fact that there is acceptable evidence in relation to the incident in the light of the clear evidence of Investigating Officer relating to seizure of M.Os. 1 to 3. Merely because P.Ws. 3 and 4 were declared hostile, the aspect of seizure of M.Os. 1 to 3 also cannot be disbelieved and hence the learned Judge had arrived at the correct conclusion in recording the said findings."
31. In the case of Mohd. Jamil vrs. State of Madhya Pradesh, reported in 2005 Cri. L.J. 1470, the learned Single Judge of the Madhya Pradesh High Court has held that the object of conducting the test identification parade is two folds. First is to enable the witness to satisfy ::: Downloaded on - 15/04/2017 18:36:30 :::HCHP 16 themselves that the prisoner whom they suspect is real one who was seen by them in connection with commission of crime. Second is to satisfy the .
investigating authorities that the suspect is the real person whom the witnesses have seen in connection with the said occurrence. Thus, merely because the test identification parade was not arranged by the Investigating Agency, would not discredit the clear, cogent and of trustworthy evidence of the witness. It has been held as follows:
"17. We have discussed hereinabove the evidence of Vijay Kumar Shrivastava in its entirety and after appreciating the evidence we can rt say that his evidence is clear, cogent and trustworthy. It is no use to imagine and magnify theoretical possibility with regard to the state of mind of the witness and with regard to their power of memorizing the identity of the assailant. Power of perception and memorizing differs from man to man and also depends upon situation. It would also depend upon capacity to recapitulate what has been seen earlier. The Apex Court in the case of State of Maharashtra v. Suresh, (2000) 1 SCC 471, while considering the scope of test identification parade categorically held and laid down the law of land that identification parades are not primarily meant for the Court. They are meant for investigation purposes. The object of conducting test identification parade is two-fold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is real one who has seen by them in connection with commission of crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses have seen in connection with the said occurrence. Thus, merely because the test identification parade was not arranged by the Investigating Agency, would not discredit the clear, cogent and trustworthy evidence of Vijay Kumar Shrivastava who firmly said, that he had an occasion to see the accused for considerable time in broad day light he had also seen the accused/appellant who had fired by 'Katla' to the deceased. This witness had seen the entire act of appellant right from very beginning. Thus, the argument in this regard advanced by learned Counsel for the appellant can not be accepted."
32. In the instant case, the accused persons have duly been identified by the prosecutrix in the Court. The prosecutrix has received ::: Downloaded on - 15/04/2017 18:36:30 :::HCHP 17 the injuries. The accused had committed forcible intercourse with her without her consent. Her belongings, as noticed by us hereinabove, were .
also taken away by the accused during the course of commission of the crime. These belongings were recovered and identified by the prosecutrix.
The statement of the prosecutrix has duly been supported by the medical evidence. There was no occasion for her to falsely implicate the accused.
of Thus, the prosecution has proved the case against the accused under Section 376-D/34 IPC as well as under Section 392/34 IPC.
33. The learned Advocates appearing on behalf of the accused rt persons have vehemently argued that lenient view be taken taking into consideration the young age of the accused. However, we are of the considered view, the manner in which the crime has been committed by the accused, no leniency can be shown towards them.
34. Accordingly, there is no merit in this appeal and the same is dismissed. There is no occasion for this Court to interfere with the well reasoned judgment of the learned trial Court dated 17.12.2013.
( Rajiv Sharma ), Judge.
July 20, 2015, ( Sureshwar Thakur ),
(karan) Judge.
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