Karnataka High Court
State Of Karnataka vs Sharan @ Rohidas on 31 October, 2022
Author: K.Somashekar
Bench: K.Somashekar
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF OCTOBER, 2022
PRESENT
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE C.M.JOSHI
CRIMINAL APPEAL NO.1042 OF 2016
BETWEEN:
State of Karnataka
By Mangaluru Rural Police Station
Dakshina Kannada District
Rep. by SPP
High Court Building
Bangalore - 575001.
...Appellant
(By Sri. Abhijith K.S. - HCGP)
AND:
Sharan @ Rohidas
S/o Sadashiva Poojary
Aged 33 years
R/o Manikanta Nilaya
Ananda Nagara
Akshabhavana, Kavoor Village
Mangaluru Taluk - 575001.
...Respondent
(By Smt. Pooja Kathimani - Advocate for
Sri. R.B. Deshpande - Advocate)
2
This Criminal Appeal filed under Sec.378(1) and
(3) of Criminal Procedure Code, by the Advocate for the
appellant praying to i) grant leave to appeal against the
judgment and order of acquittal dated 18.12.2015
passed by the VI-Addl. District and Sessions Judge,
D.K., Mangaluru in Sessions Case No.53/2008, thereby
acquitting the respondent / accused for the offences
punishable under Sections 376 and 392 of IPC;
ii)set aside the aforesaid judgment and order of acquittal
dated 18.12.2015 passed by the VI-Addl. District and
Sessions Judge, D.K., Mangaluru in Sessions Case
No.53/2008, thereby acquitting the respondent /
accused for the offences punishable under Sections 376
and 392 of IPC and convict and sentence the
respondent / accused for the offences punishable under
Sections 376 and 392 of IPC.
This criminal appeal coming on for dictating
judgment this day, K Somashekar .J., delivered the
following:
JUDGMENT
This appeal is directed against the judgment of acquittal rendered by the Court of the VI Addl. District & Sessions Judge, D.K, Mangaluru, in S.C.No.53/2008 dated 18.12.2015 acquitting the accused for offences punishable under Sections 376 and 392 of the IPC, 1980. This appeal has been filed by the State seeking to set-aside the judgment of acquittal rendered by the Trial 3 Court and to consequently to convict the accused for the offences leveled against him.
2. Heard the learned counsel Smt. Pooja Kattimani for the respondent / accused and the learned HCGP for the appellant / State. Perused the judgment of acquittal rendered by the Trial Court in S.C.No.53/2008 consisting the evidence of PW-1 to PW-23 and several documents got marked at Exhibits P1 to P29 and so also the material objects got marked at MO-1 to MO-9.
3. The factual matrix of the appeal is as under:
It transpires from the case of the prosecution that on 09.03.2008 at around 11.30 p.m., PW-1 who is the victim, was waiting for bus near the roadside in front of Fisheries College, Yekkur, to go to Manjeshwara. The accused and another person are said to have come in a Honda Activa scooter bearing No.KA-19-U-6281 and had asked her as to why she was standing there in that odd hour. She had told them that she was waiting for 4 bus to go to Manjeshwara. The appellant / accused is said to have told her that he would drop her in his scooter to Manjeshwara. Believing his words, the victim PW-1 is said to have agreed to go with him in his vehicle. Hence, accused had left the pillion rider who was traveling with him in the said place itself and is said to have taken the victim in his Honda Activa vehicle. However, when he was nearing Bagambila, Kotekar village, Mangaluru, he is said to have stopped the vehicle and is said to have threatened her by showing a knife and at knife point, is said to have had sexual intercourse with the victim. Thereafter, he is further said to have robbed from the victim woman golden articles namely mangalya chain, pearl chain, four bangles, one necklace worth Rs.1,60,000/- including cash of Rs.22,000/-. Hence, accused is said to have committed offences under Sections 376 and 392 of the IPC, 1860.5
4. In pursuance of the act of the accused and based on the complaint made by PW-1, criminal law was set into motion by recording an FIR as per Exhibit P-14. Subsequent to criminal law being set into motion, the Investigating Officer had taken up the case for investigation and done investigation thoroughly and during investigation, conducted spot mahazars at Exhibit P2, P3 and P4 and so also conducted mahazars at Exhibit P8, Exhibit P9 inclusive of mahazar at Exhibit P11. During investigation, the statement of witnesses were recorded and wound certificate of the victim was secured and recorded the voluntary statement of PW-12 / Devaraj Shetty as per Exhibit P13 and so also secured the FSL report at Exhibit P15 inclusive of securing the X-ray report at Exhibit P19 and so also Identification Parade at Exhibit P22. These are the material documents secured by the I.O. during the course of investigation. After completion of investigation under Section 173(2) Cr.P.C., the Investigating Officer had laid 6 the charge-sheet against the accused before the Committal Court.
5. Subsequently, the Committal Court had passed an order under Section 209 of the Cr.P.C. and committed the case to the Court of Sessions and the case was assigned S.C.No.53/2008. The Trial Court, after hearing the arguments of the learned Public Prosecutor and the Defence Counsel had framed charges under Sections 376 and 392 of the IPC, 1860. Subsequent to framing of charges, the prosecution had let in evidence by subjecting to examination PW-1 to PW-23 and got marked several documents at Exhibits P1 to P29 and marked Material Objects namely MO-1 to MO-9. Subsequent to closure of the evidence on the part of the prosecution, the accused was subjected to examination as required under Section 313 of the Cr.P.C. relating to incriminating evidence appearing against him. Accordingly, the evidence of the prosecution was brought to the knowledge of the 7 accused and his statement was recorded wherein the accused has declined the evidence of the prosecution adduced so far. Accordingly it was recorded. Subsequently, the accused was called upon to enter into defence evidence as contemplated under Section 233 Cr.P.C. But the accused did not come forward to adduce any defence evidence. Accordingly, it was recorded.
6. Subsequently, the Trial Court had heard the arguments advanced by the learned Public Prosecutor and so also the counter arguments advanced by the Defence Counsel and had perused the evidence of PW-1 and so also the evidence of PW-2 who is none other than the son of PW-1; the evidence of PW-3 who was well-acquainted with the family members of the victim and so also the evidence of PW-7 / Jayaprakash who is none other than the brother of the victim PW-1; PW-6 being the panch witness relating to Exhibits P2 and P4; apart from the evidence of PW-13 / Dr. Sundari who is 8 said to have examined PW-1 / victim and issued Medical Certificate; PW-16 / Dr. Geethalaxmi who is a Scientific Officer had also examined the materials secured during the course of investigation by the I.O; PW-17 / Jayantha V. Shetty is the Investigating Officer who investigated the case thoroughly and laid the charge-sheet against the accused; in addition, the evidence of PW-20 / Raju Mogaveera who is the Taluk Executive Magistrate who conducted Test Identification Parade proceedings and issued a report relating to identification of the accused by PW-1 / victim. PW-21 / Dr. Nazarath Jaban is the Doctor who had subjected to examination the accused. These are all the evidence which have been got marked on the part of the prosecution. The Trial Court having thoroughly gone through by the evidence inclusive of the Material Objects as well as the fulcrum of the several mahazars such as the mahazars at Exhibits P2, P3 and P4 and so also the fulcrum of the mahazars at Exhibits P8, P9 and 9 P11 inclusive of the Wound Certificate of the victim which is marked at Exhibit P12, had rendered an acquittal judgment relating to offences under Sections 376 and 392 of the IPC, 1860. But the Trial Court had commanded the evidence of PW-1 / victim being the author of the complaint at Exhibit P1 and held that the evidence of the victim is not believable version, that on 09.03.2008 at about 11.30 p.m. when she was waiting for bus near the roadside in front of Fisheries College, Yekkur to go to Manjeshwara, accused along with another person had come there in a Honda Activa vehicle and convinced her to drop her in his two-wheeler to Manjeshwara, to which she had agreed and further that in the midway near Bagambila, Kotekar village, Mangaluru, accused at knife-point had raped her and also took away her gold ornaments and cash from her possession. The Trial Court has held that the prosecution has not established the guilt against the accused by rendering worthwhile evidence and even on 10 scanning of the entire evidence of the prosecution, it is held that the prosecution has not proved the guilt against the accused beyond all reasonable doubt. Consequently, the Trial Court had arrived at a conclusion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt that the accused has committed offences under Section 376 IPC relating to committing sexual intercourse on PW-1 / victim as well as robbed her of her gold ornaments in her possession inclusive of cash of Rs.22,000/-. Hence, the Trial Court has rendered an acquittal judgment by extending the benefit of doubt in favour of the accused. It is this judgment which is under challenge in this appeal by urging various grounds.
7. It is contended by the learned HCGP for the appellant / State by referring to the evidence of the prosecution witnesses and mainly on the evidence of PW-1 who is none other than the victim and also alleging that the accused committed sexual intercourse 11 on her forcibly and so also robbed gold items inclusive of cash of Rs.22,000/- from her possession. Based upon the complaint made by her, criminal law was set into motion and a case in Cr.No.56/2008 came to be registered by recording an FIR at Exhibit P1.
8. Learned HCGP has taken us through the evidence of PW-1 being the victim who had categorically stated that on 09.03.2008, she had conducted the marriage of her daughter. After the marriage of her daughter, she had collected all the gold articles and kept it in a bag and was waiting for autorickshaw or bus to go to the house of PW-5 / Jagadish to keep the said ornaments and money in his house. It was at that time that the accused / appellant herein had come in a two- wheeler along with a pillion and had stopped the vehicle and had asked the victim who was waiting for an autorickshaw as to where she wanted to go. Thereafter, he had forcibly taken the victim to a remote place and 12 thereafter is said to have removed her clothes and is said to have had forcible sexual intercourse with her, after which the complaint was lodged. She has stated in her evidence that in the Test Identification Parade conducted by the Taluk Executive Magistrate, she had identified the accused. It is contended by the learned HCGP that in spite of her categorical statement, the learned Sessions Judge has disbelieved the evidence of the victim and has acquitted the accused, which has resulted in a miscarriage of justice.
9. The second limb of arguments is that the evidence of PW-1 / victim is in consonance with the evidence of PW-13 / Dr. Sundari who had treated the victim and issued the Wound Certificate as per Exhibit P12. The Doctor had clearly stated that at the time of her examination, she had found blood stains in the vaginal swab and hence she has opined that there was forcible sexual intercourse on the victim. In spite of the same, it is contended that the learned Sessions Judge 13 has sat over the evidence of two witnesses and has granted an order of acquittal on erroneous grounds.
10. The further limb of arguments advanced by the learned HCGP is that the learned Sessions Judge while discussing the evidence of PW-1, has held that the delay in lodging the complaint has not been explained with acceptable reasons. The incident took place as on 09.03.2008 and the complaint came to be lodged by the victim as on 19.03.2008. However, as regards the same, it is contended that in her complaint itself she had stated that as on the date of the incident, the marriage of her daughter was held. The incident of rape and robbery was committed on the very night of the marriage of her daughter. Subsequent to the marriage of her daughter, there were functions and other rituals in her house and hence, the complainant / victim was not able to rush to the police station and lodge the complaint in time in view of the fact that her family reputation would be spoiled. Hence it is contended that 14 though the delay in lodging the complaint has been properly explained by the victim in her complaint itself, the same has not been properly appreciated by the Trial Court.
11. Further, as regards the mahazar at Exhibit P9 regarding seizure of golden pearl necklace, it is contended that PW-10 / Jithesh D. Amin had stated that on 15.03.2008, accused had come to his shop and pledged the pearl necklace in the name of Rajesh. Hence, the seizure of the pearl gold necklace as per Exhibit P9 cannot be denied.
12. PW-12 / Devaraj Shetty in his evidence has stated that his friend Santhosh had taken his scooter on 09.03.2008. However, when Santhosh had returned alone without the scooter, PW-12 had enquired him as to where his scooter was. Santhosh had told PW-12 that his friend Sharan / accused had taken the scooter to drop a lady to Manjeshwara who was waiting for bus at Yekkuru. Further, the said scooter was also 15 produced to the police. Hence, learned HCGP contends that the evidence of PW-12 / Devaraj Shetty proves that the accused / appellant herein had taken PW-1 / complainant in the said scooter.
13. It is the further contention of the learned HCGP that the Sessions Judge has failed to consider the evidence of PWs 4 and 5 who are said to be the friends of the accused. Though the said two witnesses have turned hostile, but in their cross-examination, the prosecution has elicited as to why these two witnesses have turned hostile. Further, though PWs 8 and 11 are mahazar witnesses who have also turned hostile to the case of the prosecution, the prosecution has proved the said mahazars by examining PWs 1, 10, 17 and 22. In spite of the same, the learned Sessions Judge has ignored the evidence of these witnesses and has erroneously granted an order of acquittal. It is contended that the Sessions Judge has unjustly ignored the evidence and misread the material evidence and 16 documents. Further, the learned Sessions Judge has not raised proper probabilities and inferences on the basis of the evidence on record and has not appreciated the evidence available on record in a proper perspective and had erroneously rendered an acquittal judgment. Thus, viewed from any angle, it is contended that the impugned judgment and order of acquittal rendered by the Trial Court is illegal and erroneous. Hence, on all these premise, the learned HCGP seeks emphatically to set aside the impugned judgment in S.C.No.53/2008 dated 18.12.2015 and thereby to convict the appellant / accused for the offences leveled against him.
14. The learned HCGP in support of his arguments, has placed reliance on a judgment of the Hon'ble Supreme Court in the case of STATE GOVT. OF NCT OF DELHI vs. SUNIL AND ANOTHER (2000 AIR SCW 4398) as regards the scope of Section 100 of the Evidence act and Section 27 of the Evidence Act relating 17 to recovery and seizure of articles made in pursuance of statement by accused. It is held that mere absence of independent witnesses is not a ground to discard seizure evidence under Section 27 of the Evidence Act. On all these grounds, the learned HCGP prays for allowing the appeal and thereby to set aside the acquittal judgment rendered by the Trial Court and thereafter to convict the accused for the offences leveled against him.
15. Contrary to the arguments advanced by the learned HCGP for the appellant / State, the learned counsel Ms. Pooja Kattimani appearing for the respondent / accused has taken us through the evidence of PW-1 / victim based upon whose complaint criminal law was set into motion by recording an FIR.
16. Learned counsel for the respondent / accused contends that the evidence of PW-1 / victim, her complaint and re-statement before the police, do not 18 corroborate each other. While in her evidence she has stated that on 09.03.2008 at 11.00 p.m. near Fisheries College, Yekkur, she was waiting for an autorickshaw to go to Manjeshwara, in her complaint she has stated that she was waiting for bus to go to Manjeshwara.
17. PW-1 in her evidence, has stated at the time of lodging the complaint before the police that there was light in the place of the incident. However, PW-19 / Bharathi, PSI, in her evidence has stated that PW-1 had stated to her that there was no light in the scene of occurrence.
18. Further, PW-1 in her evidence has stated that on 10.03.2008, she had informed the incident to PW-3 / Balakrishna and to CWs 2 and 3 who were her son and daughter-in-law. However, PW-2 / Shashikeshava, the son of PW-1 has stated that his mother had informed the incident that occurred on 09.03.2008 to him as on 19.03.2008. Hence, it is contended that there is 19 inconsistency in the evidence of PW-1 and PW-2 in this regard.
19. Further, the evidence of PW-1 is not corroborative with the evidence of PW-2, PW-19 and PW-20. Though PW-16 / Dr. Geethalakshmi has stated in her evidence that the blood stains in the vaginal swab belongs to the accused, in this case, there is no evidence that the blood group of the accused was tested. Further, in view of the fact that the victim had lodged the complaint nearly 10 days after the occurrence of the alleged rape, it is contended that the medical examination of the victim at a later point of time or the report given by the Doctor in this regard, would have no significance. Hence, it is contended that medical evidence in this regard is not at all established.
20. Though it is contended by the learned HCGP that PW-10 / Jithesh D Amin had received the pearl necklace, he has not stated that the accused / appellant 20 himself had gone to his shop and pledged the same in the name of Rajesh. But the Investigating Officer has not seized the ledger extract from PW-10 to establish that the accused had pledged the pearl gold necklace in the name of Rajesh. Further, PW-8 / Prashanth and PW-11 / Ranjith Kumar have not stated that the police had seized gold pearl necklace from PW-10 and drawn the mahazar at Exhibit P9. They have also not stated that the police had seized gold necklace, one pair of bangles and knife from the accused and drawn the mahazar at Exhibit P9. The said fact goes to show that the prosecution has not proved the recovery of the properties and drawn the mahazars at Exhibits P8 and P9, beyond all reasonable doubt. Even if it is assumed that accused had robbed the gold articles as alleged by the prosecution as on 09.03.2008 from PW-1, he would not have kept the gold necklace and gold bangles in his pocket till 15.04.2008 without selling the said ornaments but he would have kept it in some other safe 21 place. It is hence contended that the said circumstances goes to show that the case was framed against the accused. Further, during the conduct of the Test Identification Parade, all the persons who stood for the test were required to wear the same colour dress. But however, each and every person was wearing different colour lungi and shirts. Hence, it is contended that there were chances of the police already having informed PW-1 to identify Sharan @ Rohidas as the accused in order to fix him in the said case.
21. The next limb of arguments advanced by the counsel for the respondent / accused is that there was a grudge carried with accused by Siddappa for the reason that he had fought with Siddappa, Traffic Sub- Inspector as regards a case registered against the accused in Cr.No.64/2008 of Mangaluru South Police. This circumstance is even revealed from the statement given by the accused under Section 313 Cr.P.C. wherein he has explained as to how the case was framed against 22 him instead of tracing the real culprit, on the wrong impression that accused had fought with Siddappa, Traffic Sub-Inspector. Hence, it is contended that the accused has been falsely implicated in the case on the basis that there was previously a case registered against him, though he has not committed the said offences. Hence, it is contended that the prosecution has failed to prove the guilt against the accused for offences under Sections 376 and 392 of the IPC.
22. But it is the domain vested with the prosecution to prove the guilt against the accused beyond all reasonable doubt and also on acceptable evidence.
23. The Trial Court had considered several citations, which are reflected in the impugned judgment of acquittal. In the decision in the case of STATE OF UTTAR PRADESH vs. KRISHNA MASTER AND OTHERS ((2011) 1 SCC (CRI) 381)), the Hon'ble Apex Court has 23 held that the Court should read the whole evidence and then appreciate the evidence of the prosecution witnesses. Further, in the case of MADHU @ MADHURANATHA & ANR. Vs. STATE OF KARNATAKA ((2013) 4 CRIMES 571)), the Apex Court has held that minor discrepancies in the evidence of witnesses would not affect the case of the prosecution. Further, in the case of O.M. BABY (DEAD) BY LEGAL REPRESENTATIVE vs. STATE OF KERALA ((2013) 1 SCC (Cri) 658, the Hon'ble Apex Court has held that, testimony of the victim cannot be ignored, unless inconsistencies or contradictions are sufficiently shown. After referring to a plethora of decisions, lastly, the Trial Court has come to the conclusion that the prosecution has miserably failed to establish the guilt against the accused by facilitating worthwhile evidence and more so held that PW-1 / victim was forcibly taken by the accused by making her believe that he would drop her to her destination point. Subsequently he is said to have 24 stopped the vehicle in the midway, i.e., in the scene of crime and is alleged to have forcibly committed sexual intercourse on her, that is on 09.03.2008 at around 11.30 p.m. and thereafter is said to have robbed her gold jewellery and also cash in a sum of Rs.22,000/- which was in her possession. But PW-1 who was subjected to examination and also being the author of the complaint at Exhibit P1 and even in her presence the spot mahazars at Exhibits P2, P3 and P4 were drawn. These are the spot mahazars conducted by the I.O. in the presence of PW-1 and also in the presence of panch witnesses secured. But PW-1 has lodged the complaint after a lapse of 10 days, that is on 19.03.2008. Even though she has explained relating to the delay in lodging the complaint, but her evidence and so also the contents of the complaint at Exhibit P1 as well as her further statement are not found to be consistent with each other and inclusive of the evidence of PWs 2 and 3. Consequently, the Trial Court had 25 extended the benefit of doubt and rendered an acquittal judgment for the offences under Sections 376 and 392 of the IPC, 1860. Hence it is contended that there is no perversity or absurdity in the judgment of acquittal rendered by the Trial Court requiring for intervention, as contended by the learned HCGP for the State. Therefore, it is contended by the learned counsel for the respondent / accused that the appeal requires to be dismissed as being devoid of merits.
24. In the context of contentions made by the learned HCGP for the State by referring to the evidence of PW-1 the author of the complaint at Exhibit P1 and so also the victim whereby after a lapse of 10 days, criminal prosecution was launched on filing a complaint at Exhibit P1, it is seen that the said incident of rape and robbery occurred on 09.03.2008 and complaint was filed on 19.03.2008 and Test Identification Parade was conducted by the Taluk Executive Magistrate on 29.03.2008. These are the events narrated and find 26 place on the part of the prosecution. But it is relevant to refer to Section 376 of the IPC, 1860, which reads thus:
"376. Punishment for rape.--
(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Whoever,--
(a) being a police officer commits
rape--
27
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's insti-tution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or 28
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years."
25. But the ingredients in respect of the said offences that too committing sexual intercourse forcibly on the victim in respect of the ingredients is very much required to be established by the prosecution by facilitating worthwhile evidence and also evidence which should be corroborative, positive and consistent, in order to secure conviction. Therefore, domain is vested with the Trial Court to appreciate the evidence under 29 Section 3 of the Indian Evidence Act, 1872. But the evidence must be weighed and not counted. The test is whether the evidence has a ring of trust, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. Further, the theory of the prosecution requires corroboration and accused persons cannot be convicted solely on certain evidence let in by the prosecution unless it is acceptable evidence. The evidence must be acceptable relating to the ingredients of the offences and so also the provisions of Section 376 of the IPC, 1860 inclusive of Section 392 of the IPC, 1860. It is the duty of the Court to scrutinize the evidence carefully and to see that there is acceptable evidence.
26. In the case on hand, though it is alleged that the accused had committed rape on the victim woman and also robbed her gold items inclusive of cash of 30 Rs.22,000/-, it is seen that there are material contradictions in the evidence of the witnesses which creates reasonable doubt in the mind of the Court as regards the case of the prosecution. It is stated that on 10.03.2008 in the morning, that PW-1 victim had been to the house of PW-3 / Balakrishna by wearing a nighty. She seemed to be perturbed and when PW-3 had enquired her about it, she had revealed the incident of rape and her gold ornaments and cash being robbed by the accused on the night of 09.03.2008. Thereafter, after 10 days, criminal law was set into motion by lodging a complaint at Exhibit P1. Subsequently, the Investigating Officer had taken up the case for investigation and done thorough investigation and laid the charge-sheet against the accused. Therefore, PW-20 being a responsible Taluk Executive Magistrate had conducted TIP of the accused. As per Section 9 of the Evidence Act, facts which establish the identity of an accused are relevant. Identification parade belongs to 31 investigation stage and if adequate precautions are ensured, the evidence with regard to test identification parade may be used by the court for the purpose of corroboration. The purpose of test identification parade is to test and strengthen trustworthiness of the substantive evidence of a witness in court. It is for this reason that test identification parade is held under the supervision of a Magistrate to eliminate any suspicion or unfairness and to reduce the chances of testimonial error as Magistrate is expected to take all possible precautions. Relating to this concept, the Hon'ble Supreme Court has rendered a judgment in the case of RAM BABU vs. STATE OF UP (AIR 2010 SC 2143). If the TIP regarding accused was not conducted properly and suffered from unexplained delay, then he is entitled to benefit of doubt. This concept was extensively addressed in the case of RAJESH GOVIND JAGESHA vs. STATE OF MAHARASHTRA (AIR 2000 SC 160).
32
27. When conviction was based on evidence of eye- witnesses and not on identification parade, it cannot be set aside on the ground that identification was not reliable. The same is held in the case of ((MULLAGIRI VAJIRAM vs. STATE OF ANDHRA PRADESH (AIR 1993 SC 1243))
28. The object of identification parade is that witnesses who claimed to have seen the culprits at the scene of occurrence are to identify them from the midst of other people without any aid or any other source. Test is done to check upon their veracity. In other words, the main object of holding an identification parade during the investigation stage is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye-witnesses of the crime. The same has been held in the case of SHYAMAL GHOSH vs. STATE OF WEST BENGAL (AIR 2012 SC 3539) 33
29. According to Section 9 of the Indian Evidence Act, facts which establish the identity of an accused are relevant facts. In the instant case, at a cursory glance of the evidence, it is seen that the evidence of PW-1, PW-2 and PW-3 are camouflaged and are not consistent with each other relating to the offences lugged against the accused. After a lapse of 10 days of the alleged offence of rape, a complaint has been lodged by the complainant for offence under Section 376 IPC inclusive of offence under Section 392 of the IPC. At a cursory glance of the evidence of PW-1 inclusive of the evidence of PW-2 as well as the evidence of PW-7, and in their examination-in-chief as well as in the cross- examination, PW-8, PW-9, PW-10 they have been subjected to examination and they are mahazar witnesses but they did not support the case of the prosecution and have given a go-by to the versions and fulcrum of the mahazar at Exhibits P1, P3 and P4 and Exhibit P8, Exhibit P9 and Exhibit P11 and have also 34 not been proved by the prosecution. Even at a cursory glance of the evidence of PW-13 / Dr. Sundari who had subjected to examination PW-1 victim, her opinion expressed also does not corroborate with the evidence of the victim insofar as the alleged sexual assault.
30. In Exhibit P1 of the complaint, there is no specific allegation of the place where the accused person took her in a scooter and whether there was light in the scene of offence or not. Even in the complaint, the complainant has not stated that she saw the accused person clearly and that if she sees him again she would identify the accused person. These are the evidence that have been let in on the part of the prosecution.
31. Further, PW-1 has lodged the complaint 10 days after the alleged incident of rape. PW-10 / Dr. Sundari had stated that PW-1 / victim had attained menopause before 1 ½ years prior to the incident. If forcible sexual intercourse is committed on the 35 aforesaid person, there were some chances of blood stains being found on her private parts. However, it is to be taken into consideration that the alleged rape was reported only after 10 days of the said incident. Hence, evidence recorded by the prosecution in this regard cannot be relied completely to safely arrive at a conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt.
32. Further, PW-1 has not specifically narrated in her complaint as regards the design or pattern of the gold ornaments which the accused had robbed from her possession. This circumstance also creates a doubt in the theory of the prosecution.
33. Though plethora of evidence has been let in by the prosecution and even plethora of citations have been relied upon by the counsel, it is seen that there are discrepancies and contradictions in the evidence of the prosecution witnesses as well as in the evidence of the 36 defence witnesses. Unless there is corroborative evidence, this Court cannot give credentiality to the evidence of all the witnesses. Further, though several material objects including the gold jewellery have been got marked on the part of the prosecution, it is seen that the prosecution has not facilitated worthwhile evidence to prove the guilt of the accused beyond all reasonable doubt. In view of the discrepancies and inconsistencies in the evidence of the prosecution, the Trial Court has rendered an acquittal judgment by holding that the prosecution has failed to bring home the guilt of the accused as regards offences under Sections 376 and 392 of the IPC beyond all reasonable doubt.
34. At a cursory glance of the evidence of the material witnesses and even the grounds urged by the learned HCGP for the State, we find that there is no perversity or absurdity or any illegality committed by the Trial Court in rendering an acquittal judgment. The 37 Trial Court has arrived at a conclusion that the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt relating to the offences under Sections 376 and 392 of the IPC and more so, the ingredients of the aforesaid offences. Consequently, it had extended benefit of doubt and on that concept, rendered an acquittal judgment by assigning sound reasons and also justifiable reasons. Therefore, in this appeal, it does not arise to call for interference as contended by the State / appellant. Consequently, the appeal deserves to be rejected as being devoid of merits. In terms of the aforesaid reasons and findings, we proceed to pass the following:
ORDER The appeal preferred by the appellant / State under Section 378(1) and (3) of the Cr.P.C. is hereby rejected. Consequently, the judgment of acquittal rendered by the Trial Court in S.C.No.53/2008 dated 38 18.12.2015 acquitting the accused for offences punishable under Sections 376 and 392 of the IPC is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE KS