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5.8 It is further submitted by the learned counsel appearing on behalf of the accused that there was no light in the hut and the culprits had used torches. It is submitted that it would be highly unlikely that the witnesses could have either been able to get a good look at their faces or even remember them two months later. It is submitted that it is required to be noted that neither PW1 nor PW8 gave details about the description of the culprits – heights, hair, facial features, complexion, beard etc. to the police during the investigation, yet they claim to be able to recognise/identify the accused in the TIP. It is submitted that A1 to A5 were put up in a TIP almost 2 months after the incident and 1 month after the arrest. It is submitted that A6 was put up in a TIP more than one year later and he too is purported to be identified by PW1 & PW8. It is submitted that therefore the accused could not have been convicted on the basis of their being identified by PW1 & PW8 in the TIP, which were conducted after a long time and that too when no specific description was given either by PW1 or PW8 in the FIR and/or in their earlier statements before the police recorded during the investigation.

5.21 In so far as A2 is concerned, it is further submitted by the learned counsel appearing on behalf of the accused that though PW8 claimed that A2 had taken Savita out of the hut and raped her and brought her back in a naked condition, she was unable to identify A2 in TIP. It is submitted that her identification in court of A2, unsupported by a previous identification in the TIP cannot be accepted, especially given the light conditions at that time and the fact that she herself became unconscious during the proceedings. It is submitted that there is no recovery from A2. PW8 is the only one who said that A2 was involved in Savita’s rape. It is submitted that it is on the basis of this statement, uncorroborated by a previous TIP, that A2 has been singled out and given the death sentence. It is submitted that as such the learned Sessions Court erred in holding that PW8 identified all the accused in the TIP and identified A6 in the second TIP. It is submitted that it is a clear error as PW8 did not identify A2 in the first TIP.

5.22 In so far as the identification of and role attributed to A6 is concerned, It is further submitted by the learned counsel appearing on behalf of the accused that A6 was put up for identification in the second TIP conducted by PW13 on 7.10.2004. It is submitted that only PW1 deposes to having identified A6 in the second TIP. PW8 does not speak of attending any TIP where she identified A6. It is submitted that PW13’s statement that PW8 identified A6 in the second TIP is hearsay and inadmissible as such because PW8 does not mention anything about the second TIP. She says that she was called for a TIP where she identified four persons and that these four persons were present in court out of the six accused persons. 5.23 It is further submitted by the learned counsel appearing on behalf of the accused that PW13, the Special Executive Magistrate conducted the TI parade for A6. It is submitted that he is the same magistrate who earlier recorded PW8’s statement on 7.6.2003 where she identified 4 other persons. It is submitted therefore that he had therefore already participated in the investigation prior to this parade. It is submitted that PW13, the executive magistrate, does not mention any precautions taken by him to prevent the witnesses seeing the accused prior to the parade. It is submitted that on the contrary he admits that the parade was held in an open space. It is submitted that TI parade should have been held in a closed room to prevent the witnesses who are outside from seeing the accused being brought to the parade or his place in the line up. It is submitted that there is also no statement that the dummies resembled the accused persons. It is submitted that as such neither PW1 nor PW8 who claimed to be the eye witnesses gave any description with respect to the accused or the persons who committed the offence, and therefore, on what basis dummies were selected is questionable. It is submitted that as such the executive magistrate was required to be selected the dummies himself but he admits that dummies were selected by the police. 5.24 It is further submitted by the learned counsel appearing on behalf of the accused that as per PW13’s evidence, PW8 identified A6 as the person who had assaulted her, dragged her daughter out of the hut and raped her. However, in the absence of PW8 having deposed anything about the second TIP or about having identified A6 in any TIP, this evidence of PW13 is inadmissible as hearsay. 5.25 It is further submitted by the learned counsel appearing on behalf of the accused that PW13’s statement attributed to PW8 that A6 had dragged Savita outside the hut is contradicted by her oral evidence in court where she says that A1, A2 and A4 dragged Savita outside the hut. The persons who had dragged Savita outside the hut were obviously the same ones who had raped her. In her evidence in court PW8 was quite clear that it was three persons who done this, and she named A1, A2 and A4 as those three. In court, she does not attribute this role to A6. It was on this basis that the High Court upheld their death sentence and distinguished their case from the others whose sentences were commuted. Her statement during the TIP contradicts her statement in court and gives an inconsistent account of the events.

5.29 It is further submitted by the learned counsel appearing on behalf of the accused that in so far as the TIP in respect of A6 is concerned, the TIP is vitiated on account of delay as A6 was arrested more than one year later and the TIP for A6 was conducted more than one year later.

5.30 It is further submitted by the learned counsel appearing on behalf of the accused that PW8 has admitted that she had come twice or thrice to court prior to her deposition. It is submitted that during these visits, she would have definitely seen the accused persons in the dock and therefore her deposition in court does not have much significance.