Karnataka High Court
Shrikantgouda S/O Parvatagouda @ ... vs The State Of Karnataka on 14 September, 2017
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF SEPTEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL NO.100229/2015
BETWEEN:
SHRIKANTGOUDA
S/O PARVATAGOUDA @ PARTGOUDA PATIL
AGE:26 YEARS, OCC: AGRICULTURIST
R/O: BUDIHAL, TQ: MUNDARGI
DISTRICT GADAG
... APPELLANT
(BY SRI RAVI B.NAIK, SENIOR COUNSEL, FOR
SRI JAGADISH PATIL, ADV.)
AND
THE STATE OF KARNATAKA
REP. BY SPP
HIGH COURT OF KARNATAKA
DHARWAD BENCH
(CPI MUNDARGI POLICE STATION,
MUNDARGI)
... RESPONDENT
(BY SRI RAJA RAGHAVENDRA NAIK &
SRI PRAVEEN K.UPPAR, HCGP)
THIS CRIMINAL APPEAL IS FILED U/SEC.374(2) OF
CR.P.C., PRAYING TO SET ASIDE THE ORDER OF
CONVICTION DATED 20-10-2015 AND SENTENCE DATED
21-10-2015 PASSED BY THE ADDL. DISTRICT AND
SESSIONS JUDGE, GADAG IN SESSIONS CASE
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NO.36/2014 FOR OFFENCE P/U/SEC.376(2)(L), 448, 509,
354 OF IPC AND ACQUIT THE ACCUSED/APPELLANT.
THIS APPEAL COMING ON FOR HEARING, HAVING
BEEN HEARD AND RESERVED FOR JUDGMENT ON
28.07.2017, THIS DAY, THE COURT, DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is preferred by the appellant being aggrieved by the judgment and order of conviction dated 20.10.2015 passed by the Addl. District and Sessions Judge Gadag, in S.C.No.36/2014.
2. The appellant/accused, who has been convicted for the offence punishable under Sections 376(2)(L), 448 and 354(c) of IPC preferred the above appeal challenging the legality and correctness of the same on the grounds as mentioned in the appeal memorandum.
3. Brief facts of the prosecution case as per the complaint averments are that P.W.8 filed the complaint as per Ex.P-15, wherein she has alleged that she is the :3: native of Budihal village residing in the house property, which she owns. On 07.10.2013 morning at about 10.00a.m., she went to the house of one Virupaxappa Mudiayappa Kukanur i.e., P.W.6, to talk with him about the transaction in respect of plot and at that time Shrikant Goudar S/o Parvatha Gouda i.e., accused herein, criminally trespassed into the house of the complainant and when the victim girl i.e., the daughter of the complainant, was taking bath in the said house, the accused removed his clothes and he became nude and he was exhibiting his body to the daughter of the complainant. In order to give sexual excitement to the daughter of the complainant, the accused, exhibited his body before her and he has also seen and observed her parts of the body and when he was making an attempt to commit forcible sexual intercourse on her, the complainant came back to her house, it appeared to her that the said attempt of rape was stopped, but she does not know what has happened earlier to that. She was :4: not able to know what has happened to her daughter, as her daughter is handicapped, deaf and dumb, so it was not possible for her daughter to convey the same to the complainant. Hence, the complainant has requested immediately to arrest the accused person, who has committed such heinous act and take legal action against him by registering the case attempt to rape. On the basis of the said complaint, case came to be registered against the appellant herein for the said offences. The FIR came to be registered for the offences punishable under Sections 511, 509, 376, 448, 354(c) of IPC as per Ex.P-18.
4. Thereafter, the Investigating Officer, after completing the investigation filed the charge sheet against the accused person for the offence punishable under Sections 376(2)(L), 448, 354(c) and 509 of IPC.
5. After hearing both sides, the learned Sessions Judge framed the charge against the accused :5: for the said offences and as the accused pleaded as not guilty, the case was posted for trial.
6. To prove its case, the prosecution, in all, examined 23 witnesses as P.Ws.1 to 23 and produced the documents Exs.P-1 to P-29 and got marked the material objects M.Os.1 to 7. On the side of the defence, no witnesses were examined nor any documents were produced.
7. After hearing the arguments on both sides, the learned Sessions Judge convicted the appellant/ accused for the said offences. Being aggrieved by the same, the appellant is before this Court in the above appeal.
8. Heard the arguments of the learned Senior Counsel appearing for the appellant-accused and also the learned HCGP appearing for the respondent-State. :6:
9. Learned Senior Counsel for the appellant has submitted that when the victim girl is said to be dumb and deaf and mentally retarded, the learned JMFC Court, which recorded the statement of the victim girl under Section 164 of Cr.P.C., ought to have followed the procedure as contemplated under Section 119 of Indian Evidence Act, which procedure is not followed in this case, which vitiates the entire proceedings. He has also submitted that the proceedings of recording the statement under Section 164 of Cr.P.C. is said to have been videographed as per Ex.P-27, but the copy of the said C.D. was not at all furnished to the accused. It is also his submission that the witnesses i.e., P.Ws.13 and 14, who are said to be the experts in translating the evidence of the victim girl by making the signs, were not administered oath by the learned JMFC and whatever the translators told to the Court, the Court recorded the same. He has also submitted that the learned JMFC ought to have recorded what are the signs made by the :7: victim girl and not only the interpretation or translation of the same by the experts. He has also submitted that even according to the complaint averments and the statements of the witnesses i.e., P.Ws.6, 7 and 8, the alleged incident is an attempt to commit rape, but subsequently an improvement has been made in the prosecution case stating it to be a rape by recording the alleged further statement of the complainant as well as the witnesses. He has further submitted that though it is the case of the prosecution that test identification parade has been conducted to establish the identity of the accused by the victim girl, even there also the expert from dumb and deaf school was present and it is the expert, who lead the proceedings and helped the victim girl to identify the accused. He has submitted that the said identification is not by the victim girl independently, but it is at the instance and assistance of P.W.14. In this connection, learned Senior Counsel drew the attention of this Court to the photographs :8: produced, which were said to have been taken at the time of test identification parade.
10. Learned Senior Counsel has further submitted that the accused is not at all staying in the house nearby the house of the complainant and it is a dilapidated house, it was under lock and the appellant/accused along with his family members was staying in Janata Plot, which is far-away from the house of the complainant. It is also his submission that surrounding the house of the complainant on all the sides, there are residential houses and nearby the house there is a temple of deity Basavanna, always public will be there at the said temple and though it is claimed by the complainant that after going to the house and after seeing the incident and the accused in her house, she screamed loudly, even then nobody came to the rescue, is totally unbelievable and it is unnatural. He has also submitted that looking to the evidence of :9: the prosecution, none of the witnesses have supported the case of the prosecution, but the case is only on the evidence of complainant P.W.8, victim girl and the other official witnesses. Even the medical evidence in the case is not supporting the prosecution case, except it is deposed by the Doctor that the hymen was ruptured, there is no other supporting material through the evidence of the Doctor, who examined the victim girl and he has also submitted that another Doctor, who examined the victim girl recorded her mental condition clearly stated in his evidence that her remembering power is very poor and her I.Q. is only 45%. Hence, it is his submission that when that is so, it is not safe to the Hon'ble Court to base conviction basing upon such mentally retarded person.
11. Learned Senior Counsel has also submitted that even the evidence of P.Ws.13 and 14, who are said to be from the deaf and dumb school and that they are : 10 : the experts in the said field to recognize the signs made by the victim girl is not worth believable and worthy of credit. Lastly he submitted that the trial Court has not at all appreciated all these aspects and wrongly read the entire evidence both oral and documentary and wrongly came to the conclusion that prosecution proved its case beyond all reasonable doubt and that the evidence of the victim girl and the mother of the victim girl (complainant) also wrongly held that they are acceptable evidence. Hence, submitted to allow the appeal and to set-aside the judgment and order of conviction passed by the trial Court. In support of his contention, learned Senior Counsel has relied upon the decision of the Hon'ble Apex Court reported in (2012) 5 SCC 789 in the case of State of Rajasthan vs. Darshan Singh alias Darshan Lal.
12. Per contra, learned HCGP during the course of his arguments has submitted that the statement of : 11 : victim girl recorded under Section 164 of Cr.P.C., so also, the evidence of P.Ws.13 and 14, who were present in the Court hall when the statement under Section 164 of Cr.P.C. was recorded, is acceptable. It is also his submission that it has come on record that there was bleeding from the private part of the victim girl when the complainant came to her house and seen her daughter, which fact is also supported by the evidence of the Doctor that there was a bleeding and there were hymenal tears are present and bleeding is present from the tears. Hence, learned HCGP has submitted that this also show that the alleged incident has taken place. He has submitted that the test identification parade was conducted at Mundaragi in the office of the Taluka Executive Magistrate and in the said parade the victim girl identified the appellant/accused, who was standing along with other 5-6 persons.
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13. Learned HCGP has also submitted that Taluka Executive Magistrate has also been examined before the Court, who has spoken about the test identification parade and the victim girl identified the appellant/accused. He has submitted that even if there are some minor defects in the procedural aspects of the test identification parade, the entire case of the prosecution cannot be disbelieved as the test identification parade proceedings are not substantive piece of evidence. He has also submitted that there was no reason for the complainant to lodge the complaint against the appellant/accused if really he was not involved in the said case. It is not brought on record during the course of trial what was the reason for the complainant and the Police Officers to falsely implicate the appellant/accused in the said case. Hence, learned HCGP has submitted that the trial Court considered the entire materials properly and came to the right conclusion in holding that the appellant/accused is : 13 : guilty and accordingly he was punished. Lastly, he has submitted that there is no merit in the appeal and same is to be dismissed. In support of his contention, learned HCGP has relied upon the following decisions:
i. 2017(2) Crimes 109 (SC) in the case of
Charandas Swami vs. State of Gujarat &
Anr.
ii. 2015(4) Crimes 153 (SC) in the case of
Kulwinder Singh & Anr. Vs. State of Punjab iii. The decision of the Hon'ble Supreme Court in Crl.A.No.884/2015 in the case of Tekan alias Tekram vs. State of Madhya Pradesh.
14. I have perused the grounds in the appeal memorandum, judgment and order of conviction dated 20.10.2015 passed by the learned District and Sessions Judge, Gadag in S.C.No.36/2014, oral evidence of PW1 to 23, documents Ex.P1 to P29 and also perused the decisions relied upon by learned Senior Counsel appearing for the appellant/accused, so also the : 14 : decisions relied upon by learned High Court Government Pleader which are referred above.
15. The prosecution case as per the complaint averments Ex.P15 that the alleged incident took place on 07.10.2013 at about 10.00 a.m. in the house of complainant PW8 Smt.Girijamma. It is the contention of the complainant that on that day her husband was not in the house and she went to the house of PW6- Virupaxappa Kukanur to talk about the transaction in connection with a plot and she came back from the house of said Virupaxappa Kukanur at about 10.00 a.m. to her house, the accused slept on her daughter and he was making an attempt to commit rape and as she came it was stopped and the accused ran away from the house. It is also the case of the complainant-PW8 that her daughter PW12 is deaf and dumb and she is mentally retarded. Taking the undue advantage of the same, the accused trespassed into the house of the : 15 : complainant and committed the alleged offence. So the occasion for the accused person to commit the said offence is as victim girl was alone in the house. Let me examine the materials placed on record and in this regard whether really the prosecution established this fact that when victim alone was in the house taking bath at that time the accused trespassed into the house of the complainant and committed the alleged offence. Perusing the evidence of PW8-complainant, she deposed in her examination-in-chief that on 07.10.2013 at about 10.00 a.m. she went to the house of CW8/PW6 to talk about the transaction in respect of a plot and at that time CW4 i.e. victim girl alone was in the house who was taking bath and after talking about half an hour in the house of CW8, she returned back to her house, at that time she has seen the accused after removing his cloths and he embraced the victim girl and he slept on the victim girl. She screamed and seeing the complainant the accused ran away through the kitchen : 16 : portion of the house. In the cross-examination, it was suggested that the accused person has not at all entered into her house and he has not committed the alleged offence, which suggestion has been denied by the witness.
16. I have also perused the oral evidence of PW6/Virupaxappa Kukanur wherein he deposed that he does not know anything about the incident and he has not heard anything about the incident. On the date of the incident, CW1 i.e. the complainant has not at all come to his house and police have not recorded his statement. So this witness turned hostile. But when he has been cross-examined by the Public Prosecutor (the cross-examination by the Public Prosecutor has been wrongly mentioned in the place of cross-examination by the Advocate for the accused. This is why because the deposition goes to show that there is no cross- examination by the Advocate for the accused), looking to : 17 : the cross-examination the witness denied the suggestion of the Public Prosecutor that on 07.10.2013 morning at 10.00 a.m. CW1/complainant came to his house to talk in connection with a plot. He has also denied that he has given the statement before the police as per Ex.P11. So also I have perused the oral evidence of PW5, who is the wife of PW6/Virupaxappa Kukanur, wherein she has also deposed that she does not know anything about the incident, she has not at all heard anything about the incident and on the date of the incident CW1/complainant has not at all come to her house, police has not recorded her statement and she also turned hostile. When cross-examined by the Public Prosecutor she denied the suggestion that on that date CW1 came to her house to talk about the plot. She has also denied the suggestion that she has given statement before the police as per Ex.P9. Therefore, this evidence of PW5 and 6 is material to appreciate the contention of the complainant that she had been to the house of PW5 : 18 : and 6 for half an hour i.e. from 9.30 a.m. to 10.00 a.m. to talk in connection with a plot. The witnesses PW5 and 6 have not supported this version of the prosecution. Therefore, except the oral say of the complainant/PW8, there is no other material to show that she had been to the house of PW5 and 6 during that period and she was not in the house during which time the accused criminally trespassed into her house.
17. The case of the prosecution as per the complaint/Ex.P15 that it was an attempt to commit rape and accordingly the offence came to be registered for the offence under Section 511, 509, 376, 448, 354(c) of I.P.C. as per the document/Ex.P18. Even looking to the statement of the other prosecution witnesses i.e. PW3 that one Sidlingawwa Patil gave the statement as per Ex.P5 and PW6/Vasant Kulkarni as per the statement Ex.P7, PW5/Dyamavva Kukanur as per the statement/Ex.P9, PW6/Virupaxappa Kukanur as per : 19 : the statement Ex.P11 and PW7/Shivaputrappa B.Lingashettar as per Ex.P13. So the prosecution story according to the complaint averments Ex.P15 and the statement of the above said witnesses, it is the case at the first instance that there was an attempt to commit rape by the accused as against the victim girl. But subsequently the complainant said to have given her further statement on 22.11.2013 stating that there is an offence of rape. So also it is the prosecution case that the witnesses i.e. PW3 to PW7 gave their statements before the police as per Ex.P6, Ex.P8, Ex.P10, Ex.P12 and Ex.P14 respectively. So there is a gap of nearly 45 days in recording the further statements of the complainant and the above said witnesses in connection with the said further statements, wherein it is stated that it is an offence of rape. I have gone through the said further statements of the witnesses from PW3 to 7, which statements are dated 22.11.2013. Looking to their statements, it clearly goes to show that it is not : 20 : their personal knowledge that they have seen the accused committing the offence of rape on the victim girl, but in their further statement what is stated by all these witnesses are that they came to know that the victim girl gave her statement before the Court in connection with the rape and they came to know about the same from the police. Therefore, so far as the further statement of these witnesses regarding the incident of rape, they have not stated anything in their statements and the only material regarding the alleged offence of rape is concerned is the further statement of the complainant/PW8. It is no doubt true in the oral evidence PW8 deposed on Page No.3 of her deposition that after seeing the incident she became perplexed and she was not knowing what is to be done and it was also not struck to their mind what is to be done and after some time she lodged the complaint and as she was little hesitant to narrate the incident as it is that was happened. She only mentioned that accused made an : 21 : attempt to commit rape and thereafter in her further statement she has narrated in detail about the act done by the accused on the victim girl. So this is her evidence in connection with she giving the further statement and she has also narrated the reasons as to why at the first instance she gave the complaint for the offence of attempt to commit rape. But looking to her oral evidence in the cross-examination on Page No.5 of her deposition she has stated that after lodging the complaint before the police she has not given any statement before them. But looking to the evidence of the Investigation Officer/PW23, he deposed that on 22.11.2013 he recorded the further statement of CW1/ complainant. Therefore, looking to this evidence of PW23 the Investigation Officer and CW1 the complainant, there is no consistency because the complainant on oath in her cross-examination clearly deposed that after lodging the complaint she has not given any statements before the police. Therefore, : 22 : regarding this further statement of the complainant, the prosecution has not placed the acceptable and cogent material before the Court. Looking to the complaint averments and also the oral evidence of PW1/complainant, it is not her case that she came to know about the accused committing the offence of rape only on 22.11.2013 and not earlier to that. Because her evidence goes to show that though the accused committed the said act on the daughter of the complainant, she was shy to narrate all the things and because of that reason she has not mentioned about the offence of rape and she only mentioned that there was an attempt to commit such rape. If that is so the complainant could have given her further statement within a reasonable period after lodging the complaint/ Ex.P15. But looking to the date i.e. 22.11.2013 the date of recording the further statement, on that date the statement of the victim girl came to be recorded before the JMFC Court at Mundargi as per Section 164 of the : 23 : Cr.P.C. and after that the further statement is given by the complainant. So the materials goes to show that till 22.11.2013 the complainant has not taken any steps to give her further statement stating that really the offence happened is rape itself and for the reasons mentioned in her evidence that she has given the complaint only for the offence of attempt to commit the rape.
18. So far as the victim girl is concerned, it is the prosecution case that she is deaf and dumb and she is also mentally retarded person, aged about 26 years. These facts are also supported by the evidence of mother of the victim girl, so also the evidence of Doctors and the evidence of PW13 and 14 that she is mentally retarded. In that connection one document/Ex.P29 is also produced, which is issued by the District Hospital at Gadag, wherein this certificate goes to show that the victim girl is having I.Q.45% moderate mentally retarded hearing impair. It is also mentioned that she physically : 24 : disabled/visual disabled/speech and hearing disabled and as 76% permanent (physical impairment/visual impairment/speech and hearing impairment). So also the evidence of Doctor/PW.18/Dr.H.Nagaraj wherein he also deposed that on 20.05.2009 he examined the victim of the case on the history of mentally retardation and he found 76% she was physically disabled and she was hearing impaired and mentally retarded and in this regard their Medical Board issued the certificate i.e. Disability Certificate. Looking to the deposition that as the certificate produced was the Xerox copy, the defence raised the objection for marking the same and accordingly it was not marked. But however it is part of the record. So with the evidence of PW18 the Doctor and that certificate issued by the District Medical Board and the oral evidence of complainant prosecution was able to establish the fact that the victim girl is deaf and dumb and she is mentally retarded person. : 25 :
19. Looking to the prosecution material in order to establish the identity of the accused person the prosecution relied upon test identification parade conducted in the office of the Taluka Executive Magistrate at Mundargi and the Taluka Executive Magistrate one Dundappa Heggond has been examined as PW22. In his evidence, he deposed about the requisition by the Mundargi P.S.I. dated 07.05.2014 and on the same day he conducted test identification parade. He further deposed that police brought six persons to his office and those six persons were made to stand in a row and as the victim girl is mentally retarded and she was deaf and dumb to translate her language one Bharathi Teacher/PW14 also came and out of the six persons standing in a row and when he asked the victim girl by making a sign as to who is the accused person and when the same was interpreted by PW14/Bharathi Teacher to the victim at that time the victim girl pointed her finger towards the person who is : 26 : standing at No.3 and he understood the sign and the behaviour (body language) of the victim girl. She identified the person standing in No.3 whose name is Shrikant Gouda Patil i.e. the accused and at that time the photos were taken. The photographs were Ex.P23 and P24 and he has also identified the said accused before the Court. He submitted one report in connection with the identification parade as per Ex.P25. During the course of cross-examination though it was suggested that he has not at all conducted such test identification parade and the victim girl has not at all identified the accused by pointing her finger towards the accused and he is deposing falsely, said suggestion is denied by the witness. He also denied the suggestion that he has submitted false report. The evidence of Investigation Officer goes to show that he has obtained the report/ Ex.P25 from the Taluka Executive Magistrate regarding the test identification parade. During the course of cross-examination by the defence, he deposed that : 27 : seven months after the arrest of the accused he got conducted test identification parade. He further deposed that he has not get it done when they have arrested the accused. It is also deposed that before conducting test identification parade he has not issued any notice to the persons who came to participate in the test identification parade nor he has recorded the statement of such persons. The evidence of PW22 the Taluka Executive Magistrate and PW25 the Investigation Officer goes to show that the test identification parade was conducted seven months after the arrest of the accused. Why it was not conducted immediately after the arrest of the accused, PW25 the Investigation Officer has not at all explained in his evidence even in the examination- in-chief. Therefore, the seven months delay in conducting test identification parade is unexplained delay. Not only that no prior notice was issued to the persons who have to participate in the test identification parade and their statements were also not recorded by : 28 : the Investigation Officer. I have also perused the photographs Ex.P23 and P24. Looking to these photographs, it is clearly visible that there is a active role played by PW14 the interpreter and translator in Ex.P24-photograph, it is clearly visible that she held the hand of victim girl and pointing towards the person at No.3. Regarding the delay in conducting the test identification parade, I am referring to the Division Bench decision of the Hon'ble High Court of Karnataka reported in I.L.R. 2014 Karnataka 4941 in the case of Premakumar @ Kumar @ Vadda and others V/s State of Karnataka, the relevant paragraphs are Para Nos.10 and 11, which reads as under:-
10. The Investigating Officer has proceeded to get the Test Identification parade done with regard to Accused Nos.2 to 4 on 17.2.2009, PW.25 is the Taluka Executive Magistrate to whom the requisition was sent by the Investigating Officer for conducting the Test Identification parade and accordingly, PW.25 came to the prison wherein Accused Nos.3 to 5 were detained and conducted the Test Identification parade.: 29 : As aforementioned, Accused Nos.3 to 5
were arrested on 28.11.2008 and Accused No.2 was arrested on 29.11.2008. The Test Identification parade was held on 17.2.2009 i.e., after the lapse of about 2½ months through the eye-witness (PW.21). The Investigating Officer has not assigned any reasons muchless acceptable reasons for such a long delay in conducting the Test Identification parade. It is by now well settled that the Test Identification parade in order to become acceptable needs to be conducted as early, as possible after the arrest of the offenders or culprits. Even otherwise, the acceptable reasons should be assigned by the Investigating Officer as to why Test Identification parade could not be conducted at an early point of time. It is not for the defence to prove that the parade held was suffering from the legal infirmities because, admittedly, the onus of proof in criminal case never shifts as the accused is presumed to be innocent till proved otherwise beyond all reasonable doubts. The test identification is considered as a safe rule of prudence for corroboration. Though the holding of the identification parades may not be substantive evidence, yet such parades are used for corroboration purposes in order to believe or not the involvement of the persons brought before the Court for the commission of the crime. The holding of identification parade being a rule of prudence is required to be followed strictly in accordance with the settled : 30 : position of law and expeditiously. The delay, if any has to be explained satisfactorily by the prosecution.
11. In this regard, we may usefully refer to certain of the decisions on the point. In the case of STATE OF ANDHRA PRADESH .vs. DR. M.V. RAMANA REDDY (AIR 1991 SC 1938), there was delay of 10 days in conducting the Test Identification parade. In that context, the Apex Court has held that where there is unexplained delay in holding the Test Identification parade, the evidence of the prosecution regarding identity of an accused cannot be held absolutely reliable and in such a case the accused is entitled to the benefit of doubt. The explanation for delay in holding the identification parade offered by the prosecution shall be trustworthy. In the case of RAJESH GOVIND JAGESHA .vs. STATE OF MAHARASHTRA (AIR 2000 SC 160), there was 23 days delay in conducting the Test Identification parade. In that context, the Apex Court has held that it is not for the defence to prove that the parade held was suffering from the legal infirmities because, admittedly, the onus of proof in criminal case never shifts as the accused is presumed to be innocent till proved otherwise beyond all reasonable doubts.
In the case of BUDHSEN .vs. STATE OF U.P (AIR 1970 SC 1321) the Apex Court has held that the Test Identification is : 31 : considered as a safe rule of prudence for corroboration. Though the holding of the identification proceedings may not be substantive evidence, yet such proceedings are used for corroboration purposes in order to believe or not the involvement of the person brought before the Court for the commission of the crime. It is further held therein that the holding of identification parade being a rule of prudence is required to be followed strictly in accordance with the settled position of law and expeditiously. The delay, if any has to be explained satisfactorily by the prosecution.
In the case of HARINATH .vs. STATE OF U.P. (AIR 1988 SC 345) there was unexplained delay of four months in conducting the Test Identification parade. The Apex Court in the said matter has observed that the conduct of an identification parade belongs to the realm and is part of the investigation. The evidence of test identification is admissible under Section 9 of the Evidence Act. But the value of the test identification, apart altogether from the other safeguards appropriate to a fair test of identification, depends on the promptitude in point of time with which the suspected persons are put up for test identification. If there is unexplained and unreasonable delay in putting up the accused persons for a test identification, the delay by itself detracts from the credibility of the test. Where the Test Identification parade is conducted after : 32 : unexplained delay, the benefits of this regrettable and the unexplained delay in holding the test identification enure to the accused.
In the case of SONI .vs. STATE OF UTTAR PRADESH {(1982)3 SCC 368(1)} there was delay of 42 days in conducting the Test Identification parade from the date of arrest of the accused. In that context, the Apex Court held that such delay in holding the identification parade throws a doubt on the genuineness thereof apart from the fact that it is difficult that after lapse of such a long time the witnesses would be remembering the facial expressions of the accused.
In the case of SIDDANKIRAM REDDY .vs. STATE OF A.P. {(2010)7 SCC 697} there was delay of about one month 13 days in conducting the Test Identification parade.
The Apex Court while acquitting the accused by disbelieving the Test Identification proceedings has observed that delay in holding the Test Identification parade is fatal to the case of the prosecution. In the very judgment, relying upon another judgment of the Apex Court in the case of LAL SINGH .vs. STATE OF U.P. {(2003)12 SCC 554} has observed that the eye witnesses had little time to see the accused; where the witness had only a fleeting glimpse of the accused at the time of the occurrence, the delay in holding a test identification parade has to be viewed seriously.
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From the aforesaid judgments, it is clear that the identification parade needs to be held at an early date after the arrest of accused, in order to ward off any suspicion in the mind of the Court.
20. Therefore, even though it is not the mandate of law for conducting the test identification parade, but as a rule of prudence and to have the corroborative evidence in the matter, it is necessary for conducting such test identification parade and as observed by the Division Bench of this Hon'ble Court that it is to be conducted immediately after the arrest of the accused without there being any delay and even if there is a delay it is to be explained properly by the prosecution. Otherwise that delay itself defeats the very purpose and on that ground the contention of the prosecution about the identification of the accused cannot be accepted. Looking to the materials placed on record in this regard so also the photograph Ex.P24 and the role played by the Translator/Interpreter i.e. PW14, it is difficult for the Court to come to the conclusion that it is the victim : 34 : girl identified the accused in such test identification parade.
21. Apart from that as the victim girl who has to identify the accused person is mentally and physically disabled, the process of such identification shall take place under the supervision of a Judicial Magistrate, who shall take appropriate steps to ensure that such person identify the person arrested using methods that person is comfortable with. So in such cases of mentally retarded or physically disabled person a separate procedure for conducting the identification parade is mandated under Section 54A of the Cr.P.C. The said section reads as under:-
54A. Identification of person arrested:-
Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the Court, having jurisdiction, may on the request of the officer in charge of a police station, direct the person so arrested to subject himself to identification : 35 : by any person or persons in such manner as the Court may deem fit.
"Provided that, if the person identifying the person arrested is mentally or physically disabled, such process of identification shall take place under the supervision of a Judicial Magistrate who shall take appropriate steps to ensure that such person identifies the person arrested using methods that person is comfortable with: Provided further that if the person identifying the person arrested is mentally or physically disabled, the identification process shall be videographed."
22. So looking to the provision the identification parade shall have to be conducted under the supervision of the Judicial Magistrate and the said process of identification parade is to be videographed. Admittedly in this case no such procedure was adopted by the prosecution. So this procedure as per Section 54A was inserted by Act No.13 of 2013, Section 12 of the said Act and it came into force with retrospective effect from 03.02.2013. But in this case the alleged offence is dated 07.10.2013. Therefore, as on the date of : 36 : the alleged offence said provision was in force. Hence, test identification parade relied upon by the prosecution will not come to the aid and assistance of the prosecution case for establishing the identity of the accused person.
23. Looking to the medical aspect in the case, P.W.8, who is the mother of the victim girl, has deposed in her evidence that when she came to the house and saw the accused slept on her daughter, who was taking bath, in the bath room and after seeing the complainant accused ran away from the house, she screamed and when she saw, there was bleeding from the private part of the victim girl, she has also deposed that there are bite marks on the face of the victim girl. Even during the course of cross-examination, when it was suggested to her that there were no such bite marks on the cheeks of the victim girl when she has seen the victim and she : 37 : is deposing falsely, the witness has denied the said suggestion.
24. Dr.Tabasum Saragire (P.W.15, the Medical Officer, District Hospital, Gadag, has deposed in her evidence that on 07.10.2013, she received the requisition from Mundaragi Police Station to examine the victim girl on the history of rape. On the same day, she examined the patient in the evening time, during the course of examination, she examined the private part of the victim and found fresh hymenal tears are present and bleeding is present form the tears and she took her vaginal swab and pubic hair for examination of FSL and also collected the nail clippings for FSL examination, there are no foreign hairs found in the pubic area. Her pubic hairs are sent for FSL, there are no blood or seminal stains are found on her clothes, he collected the petticoat of the victim for referring the same to the FSL. The victim was not wearing : 38 : undergarment. There are no marks or injuries seen on the pubic area or thighs. Further, she has not seen the marks or injuries on the breasts, there are no marks are seen on the other parts of the body of the victim. She has also deposed in her evidence that she received FSL report on 23.10.2013, the FSL report of the victim that no seminal stains on the sent items. She is of the opinion that the FSL report though it is negative it does not rules out the rape. She seen her examination report, which is marked as Ex.P-20. The hymen of the victim was ruptured, the vaginal swab, nail clippings, pubic hairs and one petticoat of the victim are M.Os.1 to 4.
25. In the cross-examination, P.W.15 has deposed that in the Police requisition itself the history of the incident was shown. She has not recorded the statement of the mother of the victim in respect of oozing blood from the private part of the victim. She has collected the information from the mother of the : 39 : victim about her previous history of the victim whether she was about her utris and sexual relations and sexual diseases but the same is not stated in her report. She has not mentioned the MC period (menstruation cycle) of the victim in her report. She does not remember whether the victim hymen portion is thick or thin, she know diptriya, but she has no special knowledge about the Boostodiptriya. She does not know in number of skin diseases, the Boostodiptriya is also one of the skin diseases. She cannot say exactly the difference between the tear and rupture, it may be possible that, blood is collected in hymen during mensus period then there is a chance of tear of the hymen. She admitted the suggestion as true that if the blood is clotted and the victim met accident and due to rubbing of the private part also there is a chance of tear in the hymen. Hymen is covered with the skin. She does not know for skin disease to the private part there is a chance of tear in the hymen skin as the hymen portion is covered with : 40 : thin skin. She denied the suggestion that her opinion i.e., rape cannot be ruled out is only on her assumption and presumption. She denied the suggestion that her opinion is without any basis. She denied the suggestion that she issued false report at the request of the Police.
26. I have also perused the document Ex.P-28 report from the FSL regarding the examination of the materials sent for examination. Looking to Ex.P-28, seven items were sent for examination, which are mentioned at Sl.Nos.1 to 7 it shows that the nail clipping, pubic hairs of both the accused and the victim girl were sent and vaginal swab and one petticoat of the victim girl and one inner wear of the accused are also sent for examination. In the opinion column, it is mentioned by the FSL office at No.1 that presence of seminal stain was not detected in items 1, 2, 3, 4, 5, 6 and 7, No.2 presence of skin tissue was not detected in items 2 and 5.
: 41 :
27. Therefore, the materials placed on record by way of oral and documentary evidence show that there are no external injuries seen on the body of the victim girl. Hence, the contention of the complainant that there are bite marks on the face of the victim girl cannot be accepted in view of the evidence of the Doctor and even with regard to the seminal stain and skin tissue are concerned, the report of the FSL is negative. However, the evidence of the Doctor (P.W.15) is to the effect that there is hymnal tears and there was a fresh bleeding.
28. The next aspect is with regard to recording of statement of the victim girl by the J.M.F.C. Court under Section 164 of Cr.P.C. before the J.M.F.C. Court at Mundargi. Said statement is marked as per Ex.P21, it is dated 22.11.2013. I have perused the said statement, it goes to show that oath was administered to the victim girl and looking to the beginning of the said statement, : 42 : the learned Magistrate has mentioned that when the Court by making the sign to the victim girl asked whether she had the meals, she answered as not by way of facial expression and also sign through the hand. It is also mentioned in the next sentence like that so many questions are asked to the victim girl, she answered in her own way by making the signs. But what other those questions are not mentioned in detail by the learned Magistrate. Below that it is mentioned the presence of PW14 one Smt.Bharathi and another person PW13/ Somayya Fakirswamimath and the name of third person is mentioned as Smt.Girijamma w/o Shantayya Kulkarni i.e. the mother of the victim girl. In the statement, it is mentioned by the learned Magistrate the victim girl in the presence of her mother and in the presence of experts PW13 and 14 and by making the sign told about the incident and the experts interpreted to the Court about the signs made by the victim girl by making a sign through her hand and through her body : 43 : language and when it was asked by making a sign with the help of mother of the victim girl that when the incident took place the victim girl by making the sign through the hand answered that it took place earlier and the victim also told by making sign that on the date of the incident she was taking bath through making the sign with her right hand and she also told that when she was taking bath her mother was not in the house, it was also by making the sign through the right hand. At that time the person who came inside her house touched both of her cheeks which was conveyed through her sign by the hand and thereafter the person who came inside the house made her to lie and even though she made an attempt to get relieved from his clutches even then he has not relieved her. This she done by touching both of her hands to the shoulders and she also make a sign through her right hand thumb in respect of the private part of the accused and also shown that same was put into her private part by : 44 : making a sign through her hand. And again by making sign she told that when her mother came inside the house the person went away from the house. It is mentioned that the said proceedings are videographed and it was recorded from 1.00 p.m. to 1.55 p.m. on 22.11.2013. Now what is the evidentiary value of the statement of the victim girl said to have been given is to be considered by the Court. In this connection the prosecution has also examined the learned Magistrate, Mundargi who recorded the said statement, wherein he has deposed in examination-in-chief that on 22.11.2013 Mundargi Police Investigation Officer gave one requisition letter making a request to record the statement of CW4 i.e. the victim girl and on the basis of the said letter on the same day he recorded the statement as the victim girl apart from being deaf and dumb was also mentally retarded the Investigation Officer has brought two persons who are experts in the field in translating/interpreting the statement of the : 45 : deaf and dumb and retarded person and with the help of the said persons and by making the sign and through the body language of the said victim girl he recorded her statement. The mother of the victim girl was also present in the Court when he recorded the statement. He has seen the said statement, which is at Ex.P21, his signature is Ex.P21(a) and there is a thumb impression of the victim girl on the said statement. So also the signatures of interpreters was also obtained as per Ex.P21(b) and (c) and the signature of the mother of victim is as per Ex.P21(d). During the course of cross- examination deposed that before recording the statement he has not sent the victim girl to the hospital in order to ascertain what is the percentage of mental retardation of the said girl. Apart from what is interpreted by the experts and looking to the body language of the victim girl he recorded the statement. He is not having experience of recording such statements in any other case. He denied the suggestion : 46 : that the victim girl was not at all competent to understand about the incident. He wrongly interpreted the signs made by the victim girl and even the interpreters also wrongly interpreted the said signs and accordingly he recorded the statement. In this connection, the evidence of the Doctor/PW18 Dr.H.Nagaraj is also relevant wherein he deposed in the examination in chief that since 12 years he is working as Medical Officer in the Government Hospital at Gadag. He is one of the member of the Medical Board in the District Hospital and they Medical Board Members issue the certificates looking to the ailment of the patients. On 20.05.2009, the victim of this case on the history of mentally retardation and he found 76% she was physically disabled and she was hearing impaired and mentally retarded. In this regard their Medical Board issued the certificate (as objection was raised that it is a Xerox copy, it was not marked). In the cross- examination the Doctor deposed the memory power of : 47 : the victim is poor, but he denied the suggestion that minimum 75% of I.Q. is required to a person for remembering. But he admitted the suggestion as true that the I.Q.45% memory power person can identify other persons i.e. family members and the victim who see a person everyday. He admitted another suggestion as true that if any incident happens the person who is having I.Q. of 45% cannot explain the details about the accident. If the evidence of the victim girl is appreciated in this background keeping in mind the evidence of the experts in the field Dr.H.Nagaraj, it goes to show that the memory of the victim girl found to be poor and even he admitted the suggestion as true that if any incident happens person who is having I.Q. of 45% cannot explain the details about the accident. Apart from that though the incident is said to have taken place on 07.10.2013, but no steps were taken by the police to get her statement recorded at the earliest. But it is said to have been recorded on 23.11.2013. The said statement : 48 : was recorded after the lapse of 1 ½ months i.e. 45 days. When that is so it is difficult for the Court to accept the contention of the prosecution that the victim girl who was having her remembering power and with I.Q. of 45% she cannot explain about all the details of the accident whether really as explained about the incidents by making the sign. It is no doubt true that when her statement under Section 164 Cr.P.C. was recorded PW13 and 14, two experts and also the mother of the victim girl were present in the open court. But in this connection, learned Senior Counsel appearing for the appellant/accused relied upon the decision of the Hon'ble Apex Court reported in (2012) 5 SCC 789, their Lordships have discussed about the effect of non- administration of the oath to witness and interpreter wherein it is observed by their Lordships that in case interpreter is provided he should be person of same surrounding, but should not have any interest in the case and he should be administered oath. Further held : 49 : statement of deaf and dumb witness recorded with aid of a interpreter who is interested in trial without administering oath to him would render evidence unreliable. So in the case on hand and looking to the statement recorded under Section 164 of the Cr.P.C. which is marked as per Ex.P21 and even according to the prosecution case, the two interpreters and the mother of the victim girl were not administered oath. I have carefully gone through the judgment and order of the trial court, but nowhere it is mentioned in the said judgment that the learned trial Judge viewed the C.D. of recording of 164 statement of the victim girl, before writing the judgment.
29. Another important aspect in the matter is that the learned Judge who wrote the judgment has not at all mentioned in the judgment that he has viewed the C.D. marked under Ex.P27, before writing the judgment. There was an opportunity to the learned Trial : 50 : Judge to play the C.D. either in the open court conducting the proceedings in camera or in the chamber of the learned Judge before writing the judgment to get the things cleared in his mind about what is deposed by the learned J.M.F.C., Mundargi who recorded the statement under Section 164 of the Cr.P.C., which is not done in this case. To know what is there in the C.D. this Court by conducting the proceedings in camera and only in the presence of learned counsel appearing for the appellant/accused and the learned High Court Govt.Pleader, the Bench Sheristedar of the Court, the C.D. was viewed. Looking to the said C.D., it is transpired that the interpreters/ translators themselves making the sign to the victim girl making a mention that "he came into her house and simultaneously making a sign and asking her that he ran away from the house, showing that also by making the sign with their hands." So far as the interpreters conveying to the learned Magistrate that through her : 51 : right hand thumb finger she shown that it is a private part of the accused and she also make a sign of that finger towards her private part is not clearly visible and seen in the said C.D. Therefore, the interpreters took little leading role in getting the things interpreted/ translated to the learned J.M.F.C. Court, Mundargi. In the evidence of PW13/Somayya Fakirswamimath deposed in his evidence in the cross-examination basing on his appointment he serving as a Teacher in the deaf and dumb children school and for the first time he interpreted the statement of CW4 victim girl in Mundargi Court. In the school wherein he is working, there are 145 deaf and dumb students, but there are no students who are mentally retarded. The witness PW13 admitted the suggestion as true that as CW4 (victim girl) is mentally retarded, generally whatever the training and the signs they are giving to deaf and dumb students CW4 will not understand. PW14/Smt.Bharati Jivoji another expert deposed that on 22.11.2013 Mundargi : 52 : Police sent one requisition to their office and on the basis of said requisition and oral instruction of her superior officer herself and CW13 came to Mundargi Court as CW4 is mentally retarded she is deaf and dumb. She was deposing by sign before Mundargi Court and she interpreted before the said Court.
30. Looking to the proceedings said to have been conducted before the J.M.F.C. Court at Mundargi while recording the statement of the victim girl under Section 164 of the Cr.P.C., the learned Magistrate ought to have recorded what are the signs made by the victim girl and then referring those signs to the said experts PW13 and 14 he could have get the answers what is the meaning of those signs made by the victim girl, no such procedure is adopted by the learned J.M.F.C., there is no recording of what are the sings made by the victim girl, what is said to have been interpreted by PW13 and 14 is taken as the statement of the victim girl. Apart : 53 : from that referring to the evidence of PW13/Somayya Fakirswamymath in the cross-examination on Page No.2 of the deposition at the beginning he deposed that in the school where he is working 145 deaf and dumb students are studying, but there are no children of mental retardation in their school. He further deposed that CW4(victim girl) has not studied in the deaf and dumb school and he has not studied the special syllabus and the training in that regard and when it was suggested that as CW4(victim girl) is a mentally retarded person, generally whatever the training they are giving to deaf and dumb children and the training and the signs by hand will not be understood by CW4(victim girl) the witness PW13 said 'Yes'. So also looking to the oral evidence of PW14 one Smt.Bharati Jivoji another expert also admitted in her cross- examination on Page No.3 of the deposition that the training for mentally retarded children and to the deaf and dumb children is different. Therefore, even : 54 : considering their deposition during the course of cross- examination it also goes to show that in the school where they are working there are only deaf and dumb students and not the mental retarded person, which they themselves have admitted, under such circumstances again the question will arise whether this PW13 and 14 are able to understand the signs made by the victim girl. Apart from that looking to the cross- examination of PW14 wherein she has stated that when she had been to the police station, the police have explained about the incident in brief. She further deposed that in the police station itself she enquired with the victim girl for about half an hour. So this evidence of PW14 in the cross-examination also goes to show that even before they are proceeding to the J.M.F.C. Court at Mundargi for the purpose of recording the statement of victim girl under Section 164 of the Cr.P.C. the witness PW14 went to the police station and she was explained by the police about the incident and : 55 : so also she enquired with the victim girl for about half an hour. This is without the permission of the Court that such things have taken place in the police station. This is also one of the material aspect to be taken into consideration while attaching any value to the statement said to have been recorded under 164 of the Cr.P.C.
31. I have already made reference to the medical records and the oral evidence of the doctors, the FSL report is negative, but even then the Doctor/PW15 agreed that there is a negative finding from the FSL, but she again deposed that rape cannot be ruled out according to her. So the only evidence on the side of the prosecution on the medical science that the hymen said to have been ruptured and there was a bleeding. So far as this aspect is concerned during the course of cross- examination of PW15, it was established that it may be possible that the blood is collected in the hymen during : 56 : the mensus period then there is a chance of tear of the hymen. In this case admittedly even according to the prosecution the victim girl attained puberty at the age of 16 years and when the alleged incident took place she was at the age of 23 years.
32. So far as the identification of the accused is concerned, I have already made detailed discussion referring to the test identification parade said to have been conducted in the presence of Taluka Executive Magistrate at Mundargi and also the relevant law applicable to the said test identification parade as per Section 54A of Cr.P.C. Even looking to the materials that this test identification parade was conducted 7 months after the alleged incident and looking to the mental faculty of the victim girl is concerned the Doctor/PW18 deposed that he found 76% she was physically disabled and she was hearing impaired and mentally retarded. The memory power of victim is poor : 57 : and PW18 also admitted the suggestion that if any incident happens the person who is having I.Q. of 45% cannot explained the details about the incident. I have also discussed referring to the photographs said to have been taken at the time of conducting test identification proceedings that in one of the photographs it is seen PW14 the said expert holding the hand of the victim girl and pointing towards the person at Sl.No.3.
33. Looking to the prosecution material, there are certain improbable and unnatural factual aspects which were also brought on record that it is the case of the prosecution that the accused person entering into the house of the complainant when the victim girl was taking bath firstly he removed all his cloths and he became nude and it is also her case that when she came back to her house after attending the house of PW5 and 6, she saw the accused person who slept on the body of the victim girl and after seeing her immediately he ran : 58 : away through the hind door of the house running across the kitchen. So it goes to show that he ran away in a nude position itself because so far as his cloths are concerned nothing stated by the prosecution witnesses. I have carefully perused spot panchanama even in the said panchanama also there is no reference made whether the cloths of the accused were lying in the house of the complainant at the spot itself or not. Apart from that looking to the evidence of the complainant/ PW8/Girijamma Kulkarni, she deposed that infront of her house there are 5-6 residential houses, nearby her house there is a Basavanna Temple, nearby her house there is a public tap and inspite of that it is her evidence that though she screamed none of the persons in the neighbouring residential houses came to the said place. But normally in a village life, the mentality of the people that whenever such incident took place and it is come to the notice of the villagers of that locality immediately they will rush to the spot to enquire into : 59 : what has happened. Another aspect is according to the evidence of PW8-complainant, the house of the accused nearby the house of the complainant become dilapidated and it was under lock since six months and the accused person was staying in the Janata Plot, which is away from the house of the complainant. When that is so the contention of the complainant that on that day the accused person came and criminally trespassed into the house of the complainant is also difficult to accept unless there are other some independent materials to show that anybody saw the accused coming and entering into the house of the complainant. Another unnatural factual aspect that though such incident said to have taken place in the house of the complainant, it was not made known to the father of the victim girl, as deposed by the complainant/PW8 herself. In her evidence she deposed that as her husband is a heart patient, it was not brought to his notice immediately. When cross-examined by the defence counsel whether : 60 : any documents are produced to show her husband was suffering from the heart ailments, she said 'No', but it has come in the evidence that on the date of the incident the husband of the complainant had been to Mundargi wherein the house was under construction. So at one breath it is contended that he was a heart patient so it was not brought to his notice immediately until the next day and at another breath that he was not in the house or village as he had been to Mundargi to know the construction work of the house property. Therefore, the reasons stated by the complainant/PW8 in this regard are also not satisfactory and acceptable to the conscience of the Court. The Investigation Officer also not enquired with the husband of the complainant and he was not cited as a witness.
34. So far as lodging the complaint is concerned looking to the evidence of PW8/complainant that she got prepared the complaint through computer and she : 61 : was going to the police station and in the bus stand at Mundargi she met with CW10/PW9. It is also her evidence during the course of cross-examination that when they went to the police station firstly she had not got prepared the complaint and she deposed that firstly she informed about the incident to the police in the police station and thereafterwards she got prepared the complaint. But looking to the evidence of the police it is otherwise they stated that she came to the police station with the written complaint and lodged the complaint. It is not the evidence of the police officers that firstly she came to the police station, informed about the incident and at that time she has not brought the complaint and after going back she again brought the written complaint. Even with regard to the names of four witnesses in the complaint also raises the doubt in the mind of the Court because PW8 deposed that after preparing the said complaint in the process of going to Mundargi police station in the bus stand she met with : 62 : CW10/PW9/Andanagouda Kulkarni and in the evidence of PW9 in the examination in chief he deposed that on 07.10.2013 at about 4.00 p.m. when he was in the Mundargi bus stand CW1/complainant met with him and told that in the morning when CW4(victim girl) taking bath in her house the accused criminally trespassed into the house and he shown his body parts and excited her for sexual advances and she also told before him accused removed his cloths and made an attempt to commit rape on CW4(victim girl) and she has brought one complaint got prepared and she asked him to read the complaint and to put his Dastur signature to the same and he mentioned four persons' names as witnesses and put his Dastur signature. In the cross- examination, he deposed that he mentioned the names of the witnesses in the complaint through his hand writing in the bus stand as told by the complainant. But looking to the cross-examination of PW9 the complainant on Page No.5 of her deposition deposed : 63 : that on the next day of the incident she informed about the incident to CW10/PW9. If she disclosed about the incident to PW9 on the next day i.e. 08.10.2013 then how this PW9 wrote the names of witnesses on the complaint in his hand writing on 07.10.2013 itself is also not properly explained by the prosecution. If she was knowing the names of those four witnesses she could have mention the same and got it typed when the complaint was prepared in the computer.
35. So far as PW9/CW10 is concerned material has come on record that he is also interested in the complainant. The evidence of PW8 in the cross- examination deposed on Page No.4 that when it was suggested that the wife of CW10 worked as Member of the Gram Panchayath so also as a President of the said gram panchayath in their village gram panchayath witness said 'Yes'. The witness also admitted the suggestion that since 10-15 years as there was political : 64 : failure he is residing in Budihal village CW10 is doing the work of selling the tea at Mundargi. She deposed that she does not know about the political rivalry between the accused and Somanna-the brother of the accused and CW10. Therefore, considering this evidence of the PW8 also, it goes to show about the difference of opinions between CW10 and accused and brother of the accused. Considering all these aspects of the matter also the prosecution has not placed the acceptable and worth believable material even in connection with the filing of the complaint and mentioning the names of four witnesses in the complaint.
36. I have also perused the decision of the Hon'ble Apex Court rendered in the matter of Tekan Alias Tekram V/s State of M.P. (now Chhattisgarh) dated 11th February, 2016, which is relied upon by the learned High Court Government Pleader. Looking to the said decision the facts and circumstances in the said : 65 : decision are not one and the same compared to the facts and circumstances in the case on hand. So also another decision 2015(4) Crimes 153(SC). This is with regard to test identification parade. In this regard I have already discussed above that as the victim girl is a mentally retarded and disabled person, the test identification parade as contemplated in Section 54A of the Cr.P.C. will have to be conducted. Therefore, this decision also will not come to the aid and assistance of the prosecution case. Another decision reported in 2017(2) Crimes 108 (SC). I have also gone through the said decision. In view of my above discussion and the factual story of the case on hand, the said decision also not come to the aid and assistance of the contention of the prosecution.
37. Perusing the oral as well as the documentary evidence about which I have made the discussion all these aspects were not taken into consideration by the : 66 : learned Sessions Judge properly, he wrongly read the evidence and wrongly proceeded to convict the accused person. The prosecution has not proved its case beyond all reasonable doubt. Perusing the entire material, there are reasonable doubts arise in the case of the prosecution. Hence, the benefit of the reasonable doubt will have to be given to the accused person. Accordingly, the appeal is allowed.
38. The judgment and order of conviction dated 20.10.2015 and sentence dated 21.10.2015 passed by the learned Addl.District and Sessions Judge, Gadag in S.C.No.36/2014 is hereby set aside and the appellant/accused is acquitted of the charges leveled against him. The bail bonds executed by the appellant/ accused stands cancelled. Fine amount paid/deposited by the accused, if any, same shall be refunded to him.
Sd/-
JUDGE BSR/CLK