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Ramachandra Giri and Three ors. and Madhab Karua Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Appeal No. 265 of 1983 and Jail Criminal Appeal No. 338 of 1983
Judge
Reported in1985(II)OLR68
ActsIndian Penal Code (IPC), 1860 - Sections 375 and 376; Code of Criminal Procedure (CrPC) , 1973 - Sections 164; Evidence Act, 1872 - Sections 9
AppellantRamachandra Giri and Three ors. and Madhab Karua
RespondentState
Appellant AdvocateP.K. Dhal and ; R.K. Patnaik in Criminal Appeal No. 265 of 1983 and ; Krutibas Kar, amicus curiae in Jail Criminal Appeal No. 338 of 1983
Respondent AdvocateA. Rath, Addl. Stand. Counsel
DispositionAppeal allowed
Cases ReferredMohd. Abdul Hafeez v. State of U. P.
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 11's) servant kalakar kara (not examined) and majura karua (not examined), who had been sleeping in his quarters in that night, had unsuccessfully searched for p w. 1 and 6 and therefore, the orders of conviction in respect of different offences are.....b.k. behera, j.1. arising out of the same judgment and order, these two appeals have been heard together and will be governed by this common judgment.2. i would state briefly the case of the prosecution presented at the trial. hailing from the neighbouring district of mayurbhanj, anita mohapatra, (p. w. 6) joined as an auxiliary nurse-cum-midwife at palaspanga in the district of keonjhar en september 8, i982. an unmarried girl then, she came with her father to palaspanga and as the quarters meant for her occupation was not habitable, stayed for a day with her father in the quarters of banamali misra (p. w. 1), the agricultural extension officer stationed at the same place, in front of her quarters intervened by a road, whereafter she occupied her quarters, after a few days, the father of.....
Judgment:

B.K. Behera, J.

1. Arising out of the same judgment and order, these two appeals have been heard together and will be governed by this common judgment.

2. I would state briefly the case of the prosecution presented at the trial. Hailing from the neighbouring district of Mayurbhanj, Anita Mohapatra, (P. W. 6) joined as an Auxiliary Nurse-cum-Midwife at Palaspanga in the district of Keonjhar en September 8, i982. An unmarried girl then, she came with her father to Palaspanga and as the quarters meant for her occupation was not habitable, stayed for a day with her father in the quarters of Banamali Misra (P. W. 1), the Agricultural Extension Officer stationed at the same place, in front of her quarters intervened by a road, whereafter she occupied her quarters, After a few days, the father of P. W. 6 want away leaving P. W. 6 alone in the quarters. Doting some nights, stones and brickbates were thrown at her quarters and doors and shutters were knocked for which on the advice of P' W. 1, who had been requested by her father to look after her and of the doctor (P. W. 7) of the Padmapur Hospital, with whom she was serving, she went and brought her mother (P. W. 10) to remain with her. P. Ws. 1 and 6 were on visiting terms and at times, P. W. 6 used to take food with P. W. 1. On October 11, 1982, of the invitation of P. W. 1, P. W. 6 left her quarters leaving her mother and went to the quarters of P. W. 1 with a torchlight with her as it was a dark night for having 'dinner with him. After finishing her dinner and having chitchat for some time with P. W. I, P. W. 6 was returning home being accompanied by P. W. 1 who was going ahead 1 when the appellant Petra alias Madhab Karua came running and dealt a push to P. W, 1 as a result of which he fell down. P. W. 6 ran away towards her quarters calling out her mother, but before she could reach, she was caught by the other four appellants and a piece of cloth was thrown on her face and her mouth was gagged by hand. The torchlight she had was snatched away and when she struggled, she was bodily lifted and carried away by these four persons being joined by the appellant Madhab. With the flashing of the torchlight which P. W. 1 had, he had been able to identify the appellants during the night of occurrence. P. W. 6 was carried away by the time appellants to the unoccupied Stockman Centre of the Veterinary Department and on its verandah, was raped by all the appellants one after the other and while one was ravishing her, the others had caught hold of her hands and legs, She lost her senses and when she regained, asked for some water. She was taken to a tank and given some water and when she was near the tank, she was again raped by the appellants other than the appellant Surendra and on her protest, the ' appellant Madhab assaulted her by giving blows by means of a stone oil her waist. P. W. 6 had then recognised and identified the appellants by the light of the moon and by the torchlight being focused by them. An attempt was made by the culprits to again rape her, but she fell flat at their feet and requested to leave her after making a promise not to disclose the incident before anybody as desired by the culprits. On her request, she was taken by the appellants Ramachandra and Madhab and left under a mango tree at some distance from her quarters. In the meantime, P. W. 1, being accompanied by P. W. 11, then working as the Watchman in the office of P. W. I and staying with him and his (P. W. 11's) servant Kalakar Kara (not examined) and Majura Karua (not examined), who had been sleeping in his quarters in that night, had unsuccessfully searched for P W. 6. On returning to her quarters, P. W. 6 narrated the incident to her mother and P. W. 1. Next day, P. W. 6 went to the doctor (P. W. 7) of the Padmapur Hospital and reported to him about the incident. P. W. 7 reported about the occurrence to the police authorities as per Fx. 6, examined the person of P. W. 6 partially and sent her to the Lady Doctor (P. W. 8) for examination of her private parts. The appellants were arrested and examined by the doctor (P. W. 9) who noticed injuries on their persons. The saree (M. O. I), saya (M. O. II) and blouse (M. O. III) belonging to P. W. 6 which had been worn by her at the time of the occurrence had been seized on production by her in the course of investigation and sent for chemical examination. M. Os. I and II contained human blood and semen. Four Lungis (M. Os. IV to VII) seized from the possession of four of the appellants were sent for chemical examination, but no incriminating substance was found. On the completion of investigation, a charge-sheet was placed and the appellants were prosecuted.

3. The appellants had denied the charges and according to them, there had been illicit relationship between P. Ws. 1 and 6 and during the night of occurrence, while P. Ws. 1 and 6 were found in a compromising position being engaged in sexual intercourse by some youngsters, they went to call the villagers to catch hold of them. For this, P. Ws. 1 and 6 have joined hands and foisted a false case. In support of the defence version, two witnesses including a doctor (D. W. 1) have been examined. The other witness had testified to have seen P. Ws 1 and 6 indulging in sexual intercourse during the night of occurrence,

4. On a consideration of the evidence of the thirteen witnesses examined for the prosecution and the evidence of the two witnesses examined for the defence, the trial Court has accepted the case of the prosecution against the appellants and has rejected the plea of the defence. Each of the appellants has been convicted under Section 376 of the Indian Penal Code (for short, the Code') and sentenced thereunder to undergo rigorous imprisonment for a period of ten year. Each of them, has been convicted under Section 341 of the Code for wrongfully restraining P. W. 6 and sentenced to suffer simple imprisonment for one month. Each of them has also been convicted under Section 379 read with Section 34 of the Code for theft of the torchlight in the possession of P. W. 6 and sentenced to undergo rigorous imprisonment for a period of two months. The appellant Madhab has been convicted under Section 323 of the Code for voluntarily causing hurt to P. Ws. 1 and 6 and has been sentenced to undergo rigorous imprisonment for a period of one month. A direction has been given that the sentences of imprisonment would run concurrently.

5. While the learned counsel for the appellants has taken me through the evidence and the findings of the trial Court have submitted that none of the charges has been established against any of the appellants, it has been submitted on behalf of the State that there is no reason to discard the evidence of the prosecution witnesses and in particular, that of P. Ws. 1 and 6, with regard to the identification of the appellants and the fact that the appellants had sustained injuries on their persons would strongly corroborate the evidence of P. Ws. 1 and 6 and therefore, the orders of conviction in respect of different offences are well-founded.

6. Cases of such monstrous acts of rape have been rampant. The prosecution has presented a case of gang rape on a defenceless public servant. The evidence of the victim (P. W. 6) can be accepted and made the foundation of an order of conviction, if it is found that her evidence is so true and trustworthy that it can be accepted without independent corroboration. As held by the Supreme Court in AIR 1983 S. C. 753 : 1983 Cri. L. J. 1096 : Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, if the evidence of the victim in a case of rape does not suffer from any basic infirmities and the probabilities-factor does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following: Corroboration may be insisted upon when a victim, having attained majority, is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation or when the probabilities-factor is found to be out of tune. In the instant case, while according to the prosecution, P. W. 6 was ravished by the five appellants first on the verandah of the stockman centre and later by four of them on a stony place near a tank without her consent and against her will for which she had sustained a number of injuries as noticed by the Lady Doctor (P. W. 8) on her private and other parts which could be caused while she was being ravished forcibly and without her consent, the case of the defence was that P. W. 5 had illicit relationship with P. W. 1 and both of them had been seen by D. W. 2 while they were indulging in sexual intercourse during the night of occurrence and the injuries might have been caused in that process. The defence had examined a doctor (D. W. 1) in their defence The story put forward by the defence would' appear to be too unreal and fantastic to be accepted. If, as sought to be established by the defence, P. Ws. 1 and 6 were on visiting terms and had illicit relationship and they had sexual intercourse during the night with each other's consent, P. W. 6 would not have sustained a number of injuries which she had on her person, as noticed by P. W. 8. Apart from the evidence of P. W. 2 uncorroborated by any other evidence, there was no evidence of any illicit relationship between P. Ws. 1 and 6. The defence had certainly put forth a grotesque , story which could not be accepted. That would not, however, relieve the prosecution of its burden to establish its case by clear, cogent and trustworthy evidence. A false defence may be an additional link if there be other legal and cogent evidence establishing the charge. It cannot, by itself suffice to sustain a charge if the prosecution does not establish its case by acceptable evidence.

7. As has been submitted at the Bar at the hearing of the appeals, regard being had to the evidence of P. W. 6, coupled with the medical evidence, there can be no doubt that P. W. 6 had been raped although from the evidence to be discussed hereinafter, it would be seen that she was not quite sure even about the number of the culprits and her evidence with regard to the commission of rape on her at two places, in the manner deposed to by her, does not appear to be probable.

8. P. W. 6 has testified that while she was returning from the quarters of P. W. 1 and was about to enter her quarters, one person came and took away her torchlight and a cloth like a lungi or napkin was thrown on her face and when she shouted saying 'Maa', her mouth was closed by somebody's hand and she was lifted and carried away to some distance whereafter she was made to walk. She has testified :

'...After I had walked a little while I was again carried to the Stockman Centre. There they made me naked. There they removed my saree and blouse from my body. I had the saya. When I struggled with them and protested not to allow them to have intercourse with them they threatened me saying that I should not shout and protest as there were many others. My hands and legs were caught. Then one after another in turn raped me. They repeatedly cohabited with me by force. After sometime I became senseless. By the time I got my senses, I found that they were blowing wind to my ears and rose and trying to bring me to sense. I wanted water to drink. I wore my blouse and saree. Then they took me to nearby tank.

They brought me to the tank by holding my hands and I came on my own foot. On a stony place I was made to seat (sit). Then one brought the napkin making wet and asked me to drink the water that was squeezed from the napkin. I refused to drink that water. Then one brought water in half folded hands. I also refused to drink that water. Then I was taken inside the tank to the water. I drank water. One bad taken me to the water. At that time one called Giri to come nearer (GIRI PAKHAKU AAA). The person who bad taken me to the water brought me to the place where I had been made to sit earlier. They again made me sleep lying down on the ground and raped me one after another. By that time moon had risen.

At that time I found that 5 persons were there. There when they wanted to again rape me I had protested. They threatened me to assault. One of them brought a stone and gave blows on my waist. I had received injuries. That boy had drunk and liquor smell was coming from his mouth. The boy who had assaulted me with the stone is the boy whom I identify (the accused Madhab Kama is identified). Besides Madhab Kama the other accused persons who are in the dock were there, Four accused persons had raped me there one after another for the second time near the tank. The accused (identifies to) Surendra Kumar Pradhan had not raped me 2nd time. Other four accused persons raped me there for the second time.'

It may be stated here that at the test identification parade, P. W. 6 had made a statement to the Magistrate (P. W. 12) that she had been able to identify the appellant Surendra as he had raped her for the second time near the tank, while in the Court, she has stated to the contrary as would appear from her evidence extracted above. This witness had stated to her mother as testified by the latter, that six persons had committed rape on her and rape had been committed, at three places while in her evidence, she has stated that she had been raped by five persons at one place and by four persons at another place,'

9. According to her, her saree and blouse had been removed from her person when rape was committed by the five culprits on the verandah of the stockman centre which would mean that the upper part of her body was completely left bare. If this had really happened, in the normal course of events, there would be some injuries on her back and there was none. As regards the second act of rape by four of the appellants on a stony place near the tank, P. W, 6 has testified that one of them, namely, Madhab Karua, had assaulted her by means of a stone. According to her, this was a stony place and stones had touched her body when she had been made to lie down and those were rough stones. The size of the stone with which she had been hit by one of the appellants on her waist was about 3'x4' in diameter and she had been given 4 to 5 blows, as stated by her. If this was the state of affairs, when four persons had forcibly committed rape on her, P. W. 6 would certainly have sustained some injuries on her back and waist. P. W. 8 had noticed injuries on the left cheek, right side chest, right breast, right iliac crest, ulna bones and right thigh of P. W. 6. On an examination of the genitals, she had noticed dried clotted blood on the margins of the labia minora which had been lacerated on both the sides with signs of inflammation and there had been their small tears of the mucus membrane on the right side and one small tear of the mucus membrane on the left side of labia minora. According to the doctor, the hymen had been ruptured and the vaginal cavity was full of blood-stained discharge and the vaginal mucus membrane had been injured at a number of places and had been inflamed. No injury had been noticed on the back or waist of P. W. 6, although according to the doctor, the bruise on the right side chest, the bruise on the right iliac crest and the abrasion on the ulna bone could be caused by hard and blunt object like a stone or hard ground. It would thus appear from the evidence of P. W. 6 that it suffered from developments and exaggerations and P. W. 6 was not sure about the number of culprits. There can, however, be no doubt from her evidence supported by the medical evidence that she had been raped against her will and without her consent by some persons.

10. The next question for consideration would be as to who the culprits were and this is the main question involved. As has been submitted by the learned counsel for both the sides, the acceptance of *the prosecution story would depend on the acceptance of the evidence of P. Ws. 1 and 6 with regard to the identification of the culprits.

11. As would be seen from the evidence of P. Ws. 1 and 6, they were returning together from the quartets of P. W. 1 aft about 10 to 10. 30 p. m. The evidence of P. W, 1 is that he was proceeding ahead and P. W. 5 was coming behind. His evidence is that while they were so coming, the appellant Madhab Karua dealt a push to him as result of which he fell down. He has claimed to have identified this appellant by flashing his torchlight and according to him, he had seep by the same light that the other four appellants threw a towel and covered the face of P. W. 6 and somebody gagged her mouth and she was dragged to the western side. He has deposed that all the five appellants took away P.W. 6 in that direction. He then went and woke up P.W. 11, Kalakar Karua and Kajura Karua who were sleeping in his quartets and he and the other persons went in search of P. W. 6 and not finding her, returned. He has further testified that at about 2 A. M , P. W. 6 came back alone from the western side and gave out that five persons raped her.

12. P. W. 1 has stated in his evidence that he knew the appellants and their names prior to the date of occurrence, and had also known their guardians. He has claimed to have good acquaintance with the guardians of the appellants. If this was the state of affairs, in the normal and natural course of human conduct, P. W. 1 must have given out the names of the appellants to P. Ws. 10 and 11 and informed the guardians of the appellants about what had happened As would clearly appear from the prosecution evidence, he had not done so. He has stated in his evidence that he informed P. W. 10, the mother of P. W. 6., that P. W. 6 had been carried away by four to five persons. Thus on his own showing, he was not sure about the number of culprits. While he has claimed to have gone in search of P. W. 6, the evidence of P. W. 10 is that this witness (P. W. 1) had not himself gone in search and had sent P. W. 11 and others. If in his presence and within his view, P. W. 6 was lifted and carried away, P. W. 1 must have raised a hue and cry inviting the attention of the villagers. Although he has claimed to have shouted and asked P. W. 11 to come out, this is not the evidence of P. W. 1 and there is no other evidence that any cry had been raised by P. W. 1- The evidence of P. W. I that he had named the appellants while he shouted has not been supported by any other evidence. P. W. 1 has claimed to have given out the names of the appellants before P. W. 11 and before Kalakar Karua and Majura Kama (not examined). P. W. 11 has not stated about it. After Anita returned, P. W.1, as stated by him in his cross-examination, did not tell her the names of the persons who had carried her away and whom he had seen by the light of his torchlight and he has explained away by saying that he did not give out the names as P. W, 6 was not in a position to be told about that at that stage. There is no evidence that even , subsequently, he gave out the names of the culprits to P. W. 6. He had neither given the names of the culprits to the mother of P. W. 6 during the night nor to the doctor (.P. W. 7) on the day following. This witness has stated in his cross-examination :

' I had not told the names of the persons who had taken away Anita to the mother of Anita. I knew the accused persons before the date of occurrence. I also knew their guardians. I had not gone and told to the guardians of the accused persons that the accused persons had committed Tape on Anita in that night. I had good acquaintance with the guardians of the accused persons. Before I had told the names of the accused persons to the Police I had not told about their names to anybody else. '

Thus as would appear from the aforesaid evidence and the conduct of P. W. 1, he had not properly identified the culprits and was not sure even about their number and he had not disclosed their names either to P. W. 6 or to her mother (P. W. 10) or to P. W. 11 during the night and to the doctor (P. W. 7) on the day following. As would appear from his statements, a belated statement had been made by him in the course of investigation implicating the appellants as the authors of the crime and no reasonable explanation has been offered by P. W. 1 as to why he had not disclosed the names of the culprits earlier.

13. The theory set up by P. W. 1 in his evidence that he had been dealt a push by one of the appellants would appear to be but a myth in view of his own statements. According to him, when he was given the push, he fell down and saved himself by putting his hands on the ground. He had sustained injuries on his palms, as claimed by him, but he has admitted that he had not shown those injuries either to the police officer or to the doctor. There was no evidence other than that of P. W. 1 that he had sustained injuries on his person. If he had, he would normally have shown the injuries to the investigating police officer or to the doctor and he would have been medically examined. This would falsify his theory that he had sustained injuries as a result of the push dealt by one of the appellants.

14. It would not be out of place to mention here that in the court.e of investigation, steps had been taken to have the statement of P. W. 1 recorded by a Magistrate under Section 164 of the Code of Criminal Procedure. It would thus be seen that at the stage of investigation, no implicit reliance was placed on the testimony of P. W. 1 and the statement of a public servant was got recorded under ' Sec, 164. The evidence of such a witness is to be examined with great care before its acceptance. ( See AIR 1974 S. C. 2165 : Belak Ram and another v. State of U. P.)

15. On a consideration of the evidence of P. W. 1.I find that it suffers from serious infirmities and improbabilities as discussed above and it would 'be extremely unsafe and hazardous to accept his evidence of identification of the five appellants as the persons who waylaid, lifted and carried away P. W. 6 after dealing a push to him.

16. There remains for consideration the evidence of P. W. 6 with regard to the identification of the appellants. As would appear from her. evidence, and had no acquaintance with the appellants from before although she might have seen them in the village. She had not known their name. Admittedly the night was dark and according to her, the torchlight she had, had been taken away from her possession. As her evidence would show, at the time of the commission of first rape on her on the verandah of the stockman centre, the place was dark and she was not in a position to see the faces of the culprits and identify them. She had neither told her mother not P. W. 1 on returning to her quarters that she had known the culprits and that she could identify them nor had she asked P. W. 1 as to whether he had been able to recognise the persons who had carried her away. According to her, since the time she was lifted away till she was left near her residence after commission of rape, she had found flashing of the torchlight only three to four times and that the torchlight had been flashed not on the verandah of the stockman centre, but where she had been raped for the second time near the tank. She has stated :

'.........Prior to the rising of moon and flashing of torch near the tank I had not seen the face of any of the accused persons..........'

She has testified that she had told the doctor ( P. W. 7 ) that she had seen the persons who had raped her and that she would be able to identify them. This is not the evidence of P. W. 7 and no such statement of P- W. 6 had been recorded in the report sent by him to the police authorities. She has claimed to have identified the culprits because of the flashing of the torchlight three to four times and by the light of the moon which had arisen by the time of the second commission of rape near the tank. There is no evidence of any other witness that P. W. 6 had informed him that she had been able to identify the culprits by the light of the moon and by the flashing of the torchlight except the belated statement made by her at the rest identification parade that she had been able to identify the culprits by the moon light. She had not stated even at that stage that she had been able to identify the culprits by the flashing of the torchlight.

17. According to the almanac, the date of occurrence was the ninth day of the dark fortnight and the moon would rise on the horizon at about 1.00 A. M. Evidence has been led by the prosecution through P. Ws. 1 and 6 that P. W. 6 returned home at about 2.00 A. M. But as their evidence would show, this was the approximate time given by them. P.W. 6 had been taken away at about 10 to 10, 30 P.M. & ravished at two places, by five persons at one place and by four persons at the other and thereafter she was brought and left near her quarters, as deposed to by her. It was, therefore, highly unlikely that by the time she was left near her quarters, it would be as late as 2 A.M. That apart, P. W. I has stated in his cross-examination that P..W. 6 returned home in the night when the moon was rising and the moonlight was just spreading and by guess, he has stated that it was about 2 A.M. then and he had no watch with him. The same timing had been given by P. W. 6 evidently by approximation. According to P. W. 6, about one and a half hours after she was raped for the second time near the tank, she was left near her quarters. If, as deposed to by P. W. 1, moon was just rising in the sky when P. W. 6 returned home, P. W. 6 could not have identified the rapists near the tank by the light of the moon, as claimed by her and as earlier stated, she had not been able to identify the culprits who had committed rape on her on the verandah of the stockman centre.

18. The aforesaid evidence would give a clear indication that although P. W. 6 had been raped by some persons, she was not in a position to identify the culprits or give their descriptions. As a matter of fact, there was no evidence that after she returned home or even on the day following, she bad told anyone that she would be able to identify the culprits or that she had given their descriptions. This would seriously affect the testimony of P. W. 6 with regard to the identification of the culprits.

19. Apart from the aforesaid infirmities in the evidence of P. W. 6 with regard to the identification of the culprits, the trial Court ought to have, but has not, taken serious notice of a highly suspicious feature in the evidence with regard to the identification of the culprits. The occurrence had allegedly taken place during the night of October 11/12, 1982. The test identification parade had been conducted four days thereafter on the 16th by the Sub divisional Magistrate (P. W. 12) and P. W. 6 had identified the five appellants, as deposed to by P. W. 12 and this is the evidence of P. W. 6. Evidence of identification at the trial is substantive evidence while the statement made by a witness identifying a suspect at the test identification parade is not and the latter can only corroborate the former. In a case of this nature where the culprits are to be identified and steps are taken for a test identification parade, adequate steps must be taken by the investigating agency to see that the identifying person has no opportunity of seeing the culprits prior to the test identification parade. In the instant case, there has been gross violation of this salutary principle. Although P. W. 6 has denied to have seen the five appellants on the 13th at the Dak Bungalow or at the police station and to have travelled together with them in the jeep before the test identification parade was held three days thereafter, P. W. 1 has deposed thus :

'......On 13-10-1982 at about 9 or 10 A.M. I had been called to the Dak-bungalow. Ghasinath Pradhan had also been called there. The Police Circle Inspector, the Police S. I. and all the accused persons ware present. After my going there, Anita reached there. Anita came from Padmapur in a jeep. We all came to Raiguan Police Station, including Anita, accused persons and myself. I do not remember if Ghasinath had come with us or not. I was detained at the P. S. for 3 days.......'

P. W. 11 has testified thus :

'On Tuesday and Wednesday the I. O. had interrogated me about the incident. On Wednesday I had been called to the I. B. by the Police. At that time Misra Babu, Didi and all the accused persons were present in the. 1. B. By Didi I mean Anita Mahapatra. In one room of the I. B. when I went I found the Police Babu, Mishra Babu, Anita Mahapatra and the accused persons. From the I. B. the police brought all to the police station. I cannot say if Mishra Babu had been detained at the P. S. for 4 to 5 days'

It would undoubtedly appear from the evidence of P. Ws. 1 and 11 that P. W. 6, the sole identifying witness at the test identification parade, had been afforded full opportunities of seeing the suspects and marking their features at the Dak Bungalow, at the police station and while travelling in the jeep. The evidence of identification of a witness of this nature in the Court and her previous identification of the suspects at the test identification parade lose all value when the witness had the opportunity of seeing the suspects from close quarters and marking their features. In a case of this nature, adequate steps should have been taken by the investigating agency to guard against this aspect which would demolish the evidence of the identifying witness. Instead, full opportunity had been afforded to P. W. 6 to see and mark the culprits three days before the test identification parade.' This was a highly unsatisfactory state of affairs and must not have been resorted to. If an accused is unknown, evidence of identification in the Court without a prior test identification parade loses its value and if the accused has been shown to the victim before identification, identification in the Court is also valueless [See AIR 1980 S. C. 1382 State (Delhi Administration) v. V. C. Shukla and AIR 1982 S C. 839 ( Mohanlal Gangaram Gahani v. State of Maharashtra)]. If at the earliest opportunity, the identifying features have not been mentioned by the identifying witness and the descriptions have not been given, the evidence of identification in the Court would seriously be affected, irrespective of whether there has or has not been a test identification parade. [See AIR 1983 S. C. 295 ; Suleman v. State of Uttar Pradesh and 1983 (1) S. C. C 143 ; Mohd. Abdul Hafeez v. State of U. P.]. Judged in the light of the aforesaid principles, it would be seen that the evidence of identification of the appellants by as hat sexual assailants and the persons who had lifted her away and P. W. 6 wrongfully confined her cannot be accepted. Keeping in mind the importance of a case of this nature, I have heard and re-heard the learned counsel for both the sides and have carefully read and re-read the evidence. In my view, the learned trial Judge went wrong in placing reliance on the evidence of P. Ws. 1 and 6 with regard to the identification of the appellants without properly noticing the highly suspicious features and infirmities in their evidence.

20. If the evidence of P. Ws. 1 and 6 with regard to the identification of the appellants is not accepted and it has not been, there is no other evidence to connect the appellants with the commission of any of the crimes except that all the five appellants had some injuries on their persons and four of them had injuries on their private parts. As has rightly been submitted on behalf of the appellants, if the evidence of P. Ws. 1 and 6 is not accepted, the presence of injuries on that persons of the appellants would give rise to a strong suspicion regarding their complicity, but would not be adequate proof of the commission of the crime. There may be a moral conviction about the complicity of the appellants from this circumstance, but in the absence of legal proof of the commission of a crime, there can be no legal criminality.

21. For the foregoing reasons, the orders of conviction recorded by the trial Court against the appellants in respect of the offences mentioned in the earlier part of this judgment cannot be sustained.

22. I would allow the appeals and set aside the orders of conviction and sentences passed against the appellants who shall be set at liberty forthwith.


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