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2007 DIGILAW 861 (JHR)

Md. Ishtiyaque v. State Of Jharkhand

2007-11-21

D.G.R.PATNAIK

body2007
JUDGMENT D.G.R. Patnaik, J. 1. This appeal filed by the sole appellant is directed against the judgment and order of conviction and sentence dated 28.2.2001 passed by the Assistant Sessions Judge 2 nd, Jamshepdur, in Sessions trial No. 94 of 2001 whereby the appellant was convicted for offences under Sections 366 and 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 8 years for the offence under Section 366 IPC and 10 years rigorous imprisonment for the offence under Section 376 |PC, though the sentences were ordered to run concurrently. 2. The appellant was put on trial for the aforesaid offences for which earlier, cognizance was taken on the basis of the police report, submitted by the police after investigation into the FIR lodged by the informant (PW6), the mother of the victim girl. The case was registered on the basis of the fard beyan of the informant Malti Devi recorded at the police station on 13.10.2000. 3. The case of the prosecution as per the fard beyan of the informant is that on 12.10.2000 at about 11.00 a.m the informant sent her 7-year old minor daughter (victim girl), to go to the garage and find out whether her son Pankaj Kumar had reported for duty. When The girl did not return home till 2.00 p.m. the informant wanted to send her son Pankaj Kumar in search of the girl, but he was not available and the informant learnt from one Maulvi that the girl had come to the garage, but thereafter she had left the garage and that Pankaj Kumar did not report since morning. Later, her son Pankaj Kumar came and she dispatched him in search of the girl, but when the girl was not found in spite of search, she went to the police station and informed about the missing of the girl. Next morning at about 8.00 a.m. she went in search of her daughter and in course of search she learnt that a minor girl was found near the jail chowk at Sakchi. She went there and found her daughter and on being asked, the girl stated that on the previous day, when she went in search of her brother, she was accosted by one boy near Milkit Hotel who asked her where she was going. She went there and found her daughter and on being asked, the girl stated that on the previous day, when she went in search of her brother, she was accosted by one boy near Milkit Hotel who asked her where she was going. She told him that she came in search of his brother and then he offered to search her brother at Bistupur and he took her along with him. She was reluctant to accompany him and began to cry but he threatened to kill her and thereafter he took her towards the bushes located near the Parasi Temple and committed rape on her. She became unconscious and next morning when she gained consciousness she could not find her way home and strayed towards Sakchi. and eventually came near the Jal chowk at Sakchi. The informant found blood stains on the undergarments of the girl. 4. Further case of the prosecution is that is that on 17.10.2000, the appellant was arrested by the police on being found in suspicious circumstances. Later, on 25.10.2000, he was put on test identification parade and was identified by the victim girl and her mother, the informant. The appellant had pleaded not guilty to the charge and was put on trial. The case of the appellant in defence was total denial of the allegations and his false implication in the case. 5. At the as many as ten witnesses were examined by the prosecution out of whom PWs 1 and 2 are police personnel who had deposed regarding the circumstances in which the appellant was arrested. PW 3 is a local witness who has stated that he met the girl on the morning of 13.10.2000 and on being asked, the victim girl stated that she was subjected to rape by some person. PW4 has been declared hostile since he offered no support to the prosecution case. PW5 is Dr. Saroj Sahay Who has proved the medical, report recorded by her on examining the victim girl. The medial report corroborates the prosecution case that the victim girl was aged about seven years and that she was subjected to rape and the doctor had found the victim girl bleeding from her private part and had to be administered medicines by way of injection to control the bleeding. The medial report corroborates the prosecution case that the victim girl was aged about seven years and that she was subjected to rape and the doctor had found the victim girl bleeding from her private part and had to be administered medicines by way of injection to control the bleeding. The informant (P.W6) is the mother of the victim girl who has reiterated the statement as contained in her fard beyan She has confirmed that on 12.10.2000 she had asked her daughter (victim girl) to go and find out whether her son Pankaj Kumar had reported for duty at the garage, but the girl after leaving her house, did not return home through out the night and on the next morning when she went again in search of the victim girl, she learnt that a minor girl was found at the Sakchi Jail chowk and she went there and found her daughter who said that she was subjected to rape. She adds that thereafter the victim girl was brought to the police station where her fard beyan was recorded by the police officer. In her cross-examination, she admits that the police had called her at the police station a few days after the occurrence and had shown her the present appellant at the police station. Subsequently, the appellant was again shown to her at the test identification parade and she identified the appellant in the test identification parade. PW7 is the victim girl who has supported the prosecution case relating to the commission of rape on her. In her cross examination, she has admitted that she had gone along with her mother to the police station a few days after the occurrence where she had seen the appellant and later, she had seen him also at the jail and had identified him in the test identification parade. PW8 and 9 are father and brother of the victim girl whose statements are almost identical to the evidence of the informant. PW. 10 is the investigating officer of the case. 6. On considering the evidence of the informant and the victim girl along wit the evidence of the doctor, the trial court recorded its finding of guilt against the appellant for offences under Section 366 and 376 of the Indian Penal Code and accordingly convicted the appellant. 7. PW. 10 is the investigating officer of the case. 6. On considering the evidence of the informant and the victim girl along wit the evidence of the doctor, the trial court recorded its finding of guilt against the appellant for offences under Section 366 and 376 of the Indian Penal Code and accordingly convicted the appellant. 7. The appellant has challenged the judgment of conviction and sentence passed by the trial court mainly on the ground that the learned trial court has committed a grave error in failing to appreciate the evidence on record in proper perspective. Sri Atanu Banerjee, learned Counsel for the appellant has submitted that the judgment of conviction recorded by the trial court is based on the solitary ground that the victim girl and her mother had identified the appellant at the test identification parade and later in course of trial, though such evidence could not have been used against the appellant unless the circumstance was put to the appellant in his examination under Section 313 of the Code of Criminal Procedure. Learned Counsel a ids that no reliance can be placed on the evidence relating to the test identification parade on account of the fact that admittedly, the appellant was shown to the witnesses at the police station prior to conduction of the test identification parade. 8. Learned Counsel for the State, on the other hand, would support the finding of guilt against the appellant as recorded by the trial court for both, the offences under Section 366 and 376 of the Indian Penal Code. The contention of the learned Counsel is that the evidence of the victim girl assumes significance inasmuch as, she has not only categorically stated the manner in which she was abducted and subjected to rape but has also identified the appellant as the person who had abducted her. 9. From perusal of the impugned judgment of the trial court, it appears that the trial court has placed reliance on the testimony of the doctor holding that there was enough proof that the victim was subjected to rape. The trial court has also placed reliance on the testimony of the victim girl relating to the identification of the appellant both in the test identification parade as also in course of trial. 10. The trial court has also placed reliance on the testimony of the victim girl relating to the identification of the appellant both in the test identification parade as also in course of trial. 10. From the materials available on the record, admittedly, the appellant was not named in the FIR, nor is it claimed that he was known to the victim girl or her mother prior to the date of the occurrence. The appellant was arrested almost five days after the alleged date of occurrence. As to the circumstance in which the appellant was arrested, the evidence of PW1 who is a police Havildar is that on the basis of confidential information, he had raided the house of the appellant which is a hut located behind the hotel. He has however not revealed the source of information. The evidence of the investigating officer (PW10) does also suggest that the appellant was arrested on the basis of confidential information, but the investigating officer has also not revealed the source of such information. The evidences of both these witnesses do suggest that the appellant was arrested from his house. The claim of the prosecution that the appellant was arrested in suspicious circumstances does not appear to have been demonstrated by the evidence of these witnesses. 11. Prosecution has relied only on the evidence relating to the identification of the appellant in the test identification parade. The appellant has seriously challenged the evidence of test identification parade as being of no consequence and unreliable. There is merit in the submission of the learned Counsel for the appellant on this issue. Admittedly, after his arrest, the appellant was lodged at the police station whereafter the victim girl and her mother (PW6) were invited to the police station and the appellant was shown to them and they were made familiar and acquainted with the features of the appellant and two days thereafter the appellant was put on test identification parade and the same witnesses were asked to identify the appellant. The manner in, which the test identification parade was conducted has apparently rendered the very purpose of the test identification parade as futile and infructuous. No reliance can therefore be placed on the evidence regarding the identification of the appellant at the test identification parade or later, at the trial. The manner in, which the test identification parade was conducted has apparently rendered the very purpose of the test identification parade as futile and infructuous. No reliance can therefore be placed on the evidence regarding the identification of the appellant at the test identification parade or later, at the trial. Further more, the trial court has proceeded to rely on the evidence relating to the identification of the appellant in the test identification parade, but strangely enough, this circumstance was not put to the appellant at the time of his examination under Section 313 of the Code of Criminal Procedure to enable him to explain the purported incriminating circumstance. The trial court could not have therefore used this evidence to arrive at a finding of guilt as recorded by it. 12. Since there is no, other evidence apart from the evidence relating to the identification of the appellant in the test identification parade and subsequently in course of the trial and such evidence being rot worthy of reliance, it cannot be held beyond reasonable doubt that the appellant was the perpetrator of the crime against the victim girl. The trial court does not appear to have considered the evidence on record in proper perspective. 13. For the reasons aforesaid, I find merit in this appeal. Accordingly, this appeal is allowed and the impugned judgment and order of conviction and sentence under Section 366/376 of the Indian Penal Code as imposed against the appellant by the trial court in Sessions Trial No. 94 of 2001 is hereby set aside. The appellant who is in jail is acquitted of the charge and is directed to be released forthwith from custody, if not wanted in Connection with any other case.