Rewa Ram Sahu and Another vs State of C.G.

Sunil Kumar Sinha, J.—These appeals are directed against the judgment dated 31st March, 2008, passed in Sessions Trial No. 03/2007 by the 2nd Additional Sessions Judge, Baloda Bazar, District Raipur. By the impugned judgment, the appellants have been convicted u/s 376(2)(g) IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 50,000/- with default sentence of R.I. for 5 years. The facts, briefly stated, are as under:--

Prosecutrix (PW-1) was aged about 19 years. On 3.2.2007, at about 4.30 pm, the prosecutrix and her friend-Chaiti Bai (PW-9) had gone to visit a Mela. In Mela, they met 2 boys of their village namely-Rajju (PW-10) and Vimal (PW-3). The case of the prosecution is the at about 8.00 pm, when they were returning from the Mela, 5 accused persons namely-Tulsidas (A-1), Jairam Sahu (A-2), Dhaneshwar Sahu (A-3), Rewaram Sahu (A-4) and Prakash Sharma (A-5) met them on the way near Pump House. Tulsidas (A-1) caught the hand of prosecutrix (PW-1) and forcibly dragged her to a nearby field. At that time, Jairam Sahu (A-2), Dhaneshwar Sahu (A-3), Rewaram Sahu (A-4) and Prakash Sharma (A-5) had restrained Rajju (PW-10), Vimal (PW-3) and Chaiti Bai (PW-9). Tulsidas (A-1) committed forcible sexual intercourse against the prosecutrix by throwing her in a field. Thereafter, Jairam Sahu (A-2) and Dhaneshwar Sahu (A-3) also came there, threw the prosecutrix in the field and they also committed sexual intercourse against her. By that time, Rajju (PW-10) and Vimal (PW-3) went to a nearby Dhaba and Munna Yadav (PW-4), Ashish and Kripashankar (PW-7) came there. The accused persons, seeing them, ran away from the place of occurrence. Further case of the prosecution is that Rajju (PW-10) and Munna Yadav (PW-4) then went to the Mela place and they caught Prakash Sharma (A-5) and thereafter, other accused persons were also caught. Prosecutrix (PW-1) lodged First Information Report (FIR) (Ex. P/1) in concerned Police Station at about 2.00 am on 4.2.2007. Though the accused were unknown to the prosecutrix, the FIR contains their names. On 5.2.2007 Test Identification Parades (TIPs) vide Exs. P/18, P/19, P/20 and P/21, were conducted by the Executive Magistrate-A.S. Paikara (PW-11). In the TIPs, prosecutrix (PW-1), Chaiti Bai (PW-9), Rajju (PW-10) and Vimal (PW-3) identified all the accused persons. Prosecutrix (PW-1) was sent for medical examination and was examined by a lady Doctor of District Hospital, Raipur, who noticed 2 - scratch marks, one on left forearm and another on right ankle joint. No injury was seen over external genital and thigh. Hymen was found old ruptured and healed. 2 slides from the vaginal swab were prepared and handed over to the concerned Constable. The lady Doctor mentioned in the report that no definite opinion could be given about rape and no positive finding of recent sexual intercourse could be given. The clothes of the prosecutrix were also seized and pubic hairs of Tulsidas (A-1), Jairam Sahu (A-2) and Dhaneshwar Sahu (A-3) were also collected. The seized articles were sent for chemical examination to Forensic Science Laboratory (FSL), Raipur, from where, a report was received. According to the FSL report, human spermatozoa were found over the articles and slides of the prosecutrix, but no human spermatozoa were found over the pubic hairs of the above accused persons. Further examination like DNA test etc. was not performed.

The case of the prosecution was mainly based on the evidence of prosecutrix (PW-1), Rajju (PW-10), Vimal (PW-3) and Chaiti Bai (PW-9), who identified the accused in Test Identification Parades (TIPs). Out of the above witnesses, Rajju (PW-10) and Vimal (PW-3) turned hostile. The learned Sessions Judge relied on the testimonies of prosecutrix (PW-1) and Chaiti Bai (PW-9) and held that it was proved beyond all reasonable doubts that the above 3 accused persons-Tulsidas (A-1), Jairam Sahu (A-2) and Dhaneshwar Sahu (A-3), committed forcible sexual intercourse against prosecutrix (PW-1) and other 2 accused persons facilitated them to commit the sexual intercourse, therefore, all the accused persons were liable for punishment u/s 376 (2)(g) IPC. The accused persons, thus, were convicted and sentenced as above.

Learned counsel for the appellants have argued that the accused persons were falsely implicated in this case; none of them had participated in the crime; the prosecutrix, in fact, could not identify the assailants; the version of the prosecutrix was not reliable; the accused persons were shown to the prosecutrix and other witnesses, therefore, the Test Identification Parades (TIPs) vitiate; the Investigating Officer was not examined; the lady Doctor was also not examined; therefore, the conviction cannot be sustained.

On the other hand, learned Dy. Government Advocate appearing on behalf of the State opposed these arguments and supported the judgment passed by the Sessions Court.

We have heard learned counsel for the parties at length and have also perused the records of the Sessions case.

Before arriving at any decision in a case like present one, let us look into the settled legal principles, which we shall apply to judge the veracity of the evidence of the prosecutrix.

In State of Punjab Vs. Gurmit Singh and Others, the Supreme Court held that "in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience".

In State of Orissa Vs. Thakara Besra and Another, the Supreme Court held that ''rape is not mere physical assault, rather it often destroys the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence''.

In State of Himachal Pradesh Vs. Raghubir Singh, , the Supreme Court held that ''there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity''. (Also see: Wahid Khan Vs. State of Madhya Pradesh, and Rameshwar Vs. The State of Rajasthan,

Further, in Krishan Kumar Malik Vs. State of Haryana, , the Supreme Court held that ''no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality''.

Therefore, the law is well settled that if the evidence of the prosecutrix inspires confidence of the Court and her evidence is absolutely trustworthy, unblemished and is of sterling quality, her solitary evidence would be sufficient to hold the accused guilty for commission of offence of rape. It is on these principles, now, we shall proceed to examine the evidence of the prosecutrix.

Prosecutrix (PW-1) firstly deposed that she does not know the accused persons. This is the first sentence of her examination-in-chief. In the second sentence, she immediately deposed that she knew the accused persons and she had mentioned their names in the FIR. The reason she assigned is that since the accused persons were telling their names at the time of lodging the First Information Report (FIR), she mentioned their names. About the incident, she deposed that on the fateful day, she had gone to see Mela along with her friend-Chaiti Bai (PW-9) to village Dama Kheda. She had left her house at about 4.30 pm. Rajju (PW-10) and Vimal (PW-3), the 2 boys of their village, met them in Mela. They all were returning from the Mela at about 8.00 pm. They were returning through Pagdandi. When they reached near a Pakka house, 5 accused persons came there. One of them (Prakash Sharma A-5) said that he is a Police Officer. He threatened Rajju (PW-10) and Vimal (PW-3) saying that he will falsely implicate them in rape case of an 8 years old girl. Prakash Sharma (A-5) took out the handkerchief of Rajju (PW-10), torn it to 2 pieces and tied the hands of Rajju. He also tied his handkerchief over his eyes. Thereafter, Tulsidas (A-1) caught her hand and took her to a nearby field. At that time, other 4 boys (Jairam Sahu-A-2, Dhaneshwar Sahu-A-3, Rewaram Sahu-A-4 and Prakash Sharma-A-5) had restrained Rajju (PW-10), Vimal (PW-3) and Chaiti Bai (PW-9). Tulsidas (A-1) caught her, lay down on the field and thereafter, committed sexual intercourse against her. Then Jairam (A-2) and Dhaneshwar (A-3) also committed forcible sexual intercourse against her. By that time, Chaiti Bai (PW-9) ran away to her house. Rajju (PW-10) and Vimal (PW-3) both ran away towards ''Munna Dhaba'' and called Dhaba persons. Thereafter, Munna Yadav (PW-4), Ashish Yadav and Kripashankar (PW-7), Dularam and Rajju (PW-10) came towards the field and chased the running accused persons. When they reached near the field, at that time, she was wearing her under-wear and salwar. She narrated the incident of rape by 3 persons to the above persons. They sent her to her house. Thereafter, she came to her house. All the above persons then went to Dama Kheda Mela, there Rajju (PW-10) identified one accused, he was Prakash Sharma (A-5). When she reached to her house in the night, she did not disclose the incident to her parents. Munna Yadav (PW-4) and Rajju (PW-10) then came to her house and told the incident to her father and brother. Thereafter, her mother, father and brother asked about the incident, then she narrated the incident to them. She further deposed that she went to the Police Station in the night and then lodged FIR (Ex. P/1). She further admitted that she was sent for medical examination.

Chaiti Bai (PW-9) also deposed in similar fashion. She deposed that she had gone with the prosecutrix to visit Mela. Rajju (PW-10) and Vimal (PW-3) met them in the Mela. They all were returning to their village at about 8.00 pm. On the way, 2 persons came on a motorcycle, thereafter, they telephoned to somebody. One of them said that he is a Police man; he will falsely implicate Vimal and Rajju in rape case of an 8 years old girl. After telephone, 3 other accused persons also came there. One of them caught the hand of the prosecutrix and took her to a nearby field. The 4th accused said her to take out her clothes, but she resisted. She was also assaulted by one of them. When they were restrained, one of the accused said that some persons are coming from village side, on this, the accused persons ran away from that place. She also ran away towards Rajju, whose eyes were tied by clothes. At that time, the tallest accused had caught Rajju (PW-10). Rajju (PW-10) said her to run away and thereafter, she ran away. At about 9.00 pm, Munna Yadav (PW-4) came to her house, thereafter, he along with prosecutrix (PW-1), Rajju (PW-10) and father of the prosecutrix namely-Tiharu (PW-5) went to village Dama Kheda. By that time, Police persons had caught that tall accused. He was kept in a School.

Vimal (PW-3) and Rajju (PW-10) have also narrated about the incident. But, on account of certain important features, they were declared hostile by the Public Prosecutor.

In appreciation of evidence of these witnesses, we find that according to prosecutrix (PW-1), as also the above 3 witnesses, who were accompanying the prosecutrix, the accused persons were not known to them and they were totally strangers. It is for this reason, the TIPs were conducted on 5.2.2007 and in the TIPs, the above 4 witnesses had identified the assailants. If the accused persons were unknown to prosecutrix (PW-1), how she could mention their names in the FIR ? The prosecutrix admitted in her cross-examination in para 26 that one of the accused was caught by the Police, who was kept in Police Station in the night. In her examination-in-chief itself, in para 1, she deposed that the accused persons were telling their names in the Police Station while she was lodging the report, therefore, she named them in the FIR. The case of the prosecution was that 5 unknown persons restrained the above 4 persons and 3 of them committed sexual intercourse against the prosecutrix, who were arrested and were put for identification then it was ascertained that they were the assailants. In such situation, their names would not have appeared in the FIR and if the FIR contains their names and the prosecutrix also came to know about their names in the Police Station at the time of lodging the FIR and then she lodged the FIR, and then the TIPs, further conducted by the prosecution were of no use. Chaiti Bai (PW-9) in para 16 of her cross-examination, deposed that her diary statement was recorded on 5th. Before that date, her statement was not recorded. She also admitted that she did not know the names of the assailants prior to the incident. On 5th, the Police personnel said her to go and ask the names of the accused persons, who were also present there, then she went to them and they disclosed their names to her, and thereafter, she mentioned their names in her statement. She further admitted in para 17 that at the time of lodging the first information report, the accused persons were present inside the Police Station.

To appreciate the evidence of prosecutrix (PW-1) and Chaiti Bai (PW-9), let us see the evidence of Tiharu (PW-5). Tiharu (PW-5) is father of the prosecutrix. He deposed that in the fateful night at about 9.00 pm, Munna Yadav (PW-4) and Rajju (PW-10) came to his house and told him that some incident had taken place while they were returning from Mela and one of the 5 thieves has been caught. Later on, he added that they had told that 3 persons had committed rape against his daughter. He deposed that he had accompanied the prosecutrix to the Police Station. In para 9 of his cross-examination, he deposed that the Police persons had told him that the boy wearing blue shirt was Dhaneshwar (A-3). He further admitted that the accused persons were present in the Police Station when they had gone to the Police Station in the early morning. Prosecutrix (PW-1), Chaiti Bai (PW-9), Rajju (PW-10), Vimal (PW-3) and he himself, altogether, had reached the Police Station in the morning. He admitted that at that time, Police had shown them all the 5 accused persons and they had told the names of all the accused persons and then his daughter could come to know about their names and then only, she lodged the FIR mentioning the names of the accused persons. We would like to quote the portion of para 9 of his evidence.

Tiharu (PW-5) is father of the prosecutrix. His evidence is very important. We have no reason to disbelieve his testimony. It is proved from his evidence that Police had caught 5 persons in the night even prior to the FIR and then those 5 persons were shown to all the witnesses and then their names were mentioned in the FIR by the prosecutrix.

The case of the prosecution was mainly based on Test Identification Parades (TIPs). Before the TIP, nobody was able to identify the assailants. The principles relating to Test Identification Parades (TIPs), their evidentiary value, the affect of not conducting the TIPs and delay etc. and the principles relating to dock-identification have been elaborately discussed by the Supreme Court in Mulla and Another Vs. State of Uttar Pradesh, . We would like to quote the relevant paragraphs of the above judgment to renerate the principles on the above points:

Now, let us consider the arguments of the learned amicus curiae on the delay in conducting the test identification parade. The evidence of test identification is admissible u/s 9 of the Evidence Act, 1872. The identification parade belongs to the stage of investigation by the police. The question whether a witness has or has not identified the accused during the investigation is not one which is in itself relevant at the trial. The actual evidence regarding identification is that which is given by witnesses in court. There is no provision in CrPC entitling the accused to demand that an identification parade should be held at or before the inquiry of the trial. The fact that a particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in court.

Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law. Where identification of an accused by a witness is made for the first time in court, it should not form the basis of conviction.

As was observed by this Court in Matru alias Girish Chandra Vs. The State of Uttar Pradesh, identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroboration of the statement in court. (Vide Santokh Singh Vs. Izhar Hussain and Another,

The necessity for holding an identification parade can arise only when the accused persons are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime.

The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Evidence Act, 1872. It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.

In Subash and Shiv Shankar Vs. State of U.P., the parade was held about three weeks after the arrest of the accused. Therefore, there was some room for doubt if the delay was in order to enable the identifying witnesses to see him in jail premises or police lock-up and thus make a note of his features. Moreover, four months had elapsed between the date of occurrence and the date of holding of the test identification parade. The descriptive particulars of the appellant were not given when the report was lodged, but while deposing before the Sessions Judge, the witnesses said that the accused was a tall person with shallow (sic sallow) complexion. The Court noted that if on account of these features the witnesses were able to identify the appellant Shiv Shankar at the identification parade, they would have certainly mentioned about them at the earliest point of time when his face was fresh in their memory.

It is important to note that since the conviction of the accused was based only on the identification at the test identification parade, the Court in Subash case gave him the benefit of doubt while upholding the conviction of the co-accused. This is also a case where the conviction of the appellant was based solely on the evidence of identification. There being a delay in holding the test identification parade and in the absence of corroborative evidence, this Court found it unsafe to uphold his conviction.

In State of Andhra Pradesh Vs. Dr. M.V. Ramana Reddy and others, the Court found a delay in holding the test parade for which there was no valid explanation. It, held that in the absence of a valid explanation for the delay, the approach of the High Court could be said to be manifestly wrong calling for intervention.

In Brij Mohan and others Vs. State of Rajasthan, the test identification parade was held after three months. The argument was that it was not possible for the witnesses to remember, after a lapse of such time, the facial expressions of the accused. It was held that generally with lapse of time memory of witnesses would get dimmer and therefore the earlier the test identification parade is held it inspires more faith. It was held that no time-limit could be fixed for holding a test identification parade. It was held that sometimes the crime itself is such that it would create a deep impression on the minds of the witnesses who had an occasion to see the culprits. It was held that this impression would include the facial impression of the culprits. It was held that such a deep impression would not be erased within a period of three months.

In Rajesh Govind Jagesha Vs. State of Maharashtra, the accused was apprehended on 20-1-1993, while the identification parade was held on 13-2-1993. It was also not disputed that at the time of identification parade the appellant was not having a beard and long hair as mentioned at the time of lodging of the first information report. It was also not disputed that no person with a beard and long hair was included in the parade. The witnesses were alleged to have identified the accused at the first sight despite the fact that he had removed the long hair and beard. This Court held that the Magistrate should have associated 1-2 persons having resemblance with the persons described in the FIR and why it was not done was a mystery shrouded with doubts and not cleared by the prosecution. In these circumstances, the Court observed that the possibility of the witnesses having seen the accused between the date of arrest and the test identification parade cannot be ruled out. This case also rests on its own facts, and mere delay in holding the test identification parade was not the sole reason for rejecting the identification.

In Daya Singh Vs. State of Haryana, the test identification parade was held after a period of almost eight years inasmuch as he accused could not be arrested for a period of 714 years and after the arrest the test identification parade was held after a period of six months. It was pointed out that the purpose of test identification parade is to have the corroboration of the evidence of the eyewitnesses in the form of earlier identification. It was held that the substantive evidence is the evidence given by the witness in the court and if that evidence is found to be reliable then the absence of corroboration by the test identification is not material. It was further held that the fact that the injured witnesses had lost their son and daughter-in-law showed that there were reasons for an enduring impression of the identity on the mind and memory of the witnesses.

This Court in Lal Singh and Others Vs. State of Uttar Pradesh, while discussing all the cases germane to the question of identification parades and the effect of delay in conducting them held that (SCC p.571, para 43):

It will thus be seen that the evidence of identification has to be considered in the peculiar facts and circumstances of each case. Though it is desirable to hold the test identification parade at the earliest possible opportunity, no hard-and-fast rule can be laid down in this regard. If the delay is inordinate and there is evidence probabilising the possibility of the accused having been shown to the witnesses, the court may not act on the basis of such evidence. Moreover, cases where the conviction is based not solely on the basis of identification in court, but on the basis of other corroborative evidence, such as recovery of looted articles, stand on a different footing and the court has to consider the evidence in its entirety.

In Anil Kumar Vs. State of U.P., this Court observed as under (Para-9):

9.......... It is to be seen that apart from stating that delay throws a doubt on the genuineness of the identification parade and observing that after lapse of such a long time it would be difficult for the witnesses to remember the facial expressions, no other reasoning is given why such a small delay would be fatal.

A mere lapse of some days is not enough to erase the facial expressions of assailants from the memory of father and mother who have seen them killing their son.

In another case of Pramod Mandal Vs. State of Bihar, placing reliance on Anil Kumar this Court observed that (Pramod case, Para-20):

It is neither possible nor prudent to lay down any invariable rule as to the period within which a test identification parade must be held, or the number of witnesses who must correctly identify the accused, to sustain his conviction. These matters must be left to the courts of fact to decide in the facts and circumstances of each case. If a rule is laid down prescribing a period within which the test identification parade must be held, it would only benefit the professional criminals in whose cases the arrests are delayed as the police have no clear clue about their identity, they being persons unknown to the victims. They, therefore, have only to avoid their arrest for the prescribed period to avoid conviction. Similarly, there may be offences which by their very nature may be witnessed by a single witness, such as rape. The offender may be unknown to the victim and the case depends solely on the identification by the victim, who is otherwise found to be truthful and reliable. What justification can be pleaded to contend that such cases must necessarily result in acquittal because of there being only one identifying witness ? Prudence therefore demands that these matters must be left to the wisdom of the courts of fact which must consider all aspects of the matter in the tight of the evidence on record before pronouncing upon the acceptability or rejection of such identification.

The identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. Therefore, the following principles regarding identification parade emerge:

(1) an identification parade ideally must be conducted as soon as possible to avoid any mistake on the part of witnesses;

(2) this condition can be revoked if proper explanation justifying the delay is provided; and

(3) the authorities must make sure that the delay does not result in exposure of the accused which may lead to mistakes on the part of the witnesses.

In the instant case, the TIPs were conducted on 5.2.2007 and TIP memos (Exs. P/18 to P/21) were prepared by the Executive Magistrate-A.S. Paikara (PW-11). The TIP memos would show that the 1st Parade, in which, prosecutrix (PW-1) identified the assailants was conducted at 11.45 am; the 2nd parade, in which, Chaiti Bai (PW-9) identified the assailants was conducted at 11.50 am; the 3rd parade, in which, Rajju (PW-10) identified the assailants was conducted at 11.55 am; and the 4th parade, in which, Vimal (PW-3) identified the assailants was conducted at 12.00 noon. This shows that 4 TIPs were conducted at the intervals of 5 minutes and 4 charts were prepared and were filled-in by the Executive Magistrate. The witnesses of TIPs namely-Rajkumar s/o. Mohanlal and Amritlal were not examined by the prosecution. There is no signature of the witness identifying the assailants in the TIP memos. Even the TIP memos do not bear signature of the accused persons. The Executive Magistrate admitted in para 15 of his evidence that he had not prepared the TIP memos (Exs. P/18 to P/21) in his own hand-writing. He admitted in clear words that the TIP memos were prepared by Patwari, who was posted in village Simga. The Patwari was accompanying him. He told his name as Paleshwar Singh. The TIP memos also do not bear signature of Paleshwar Singh. Paleshwar Singh has also not been examined by the prosecution. The Executive Magistrate has not deposed that firstly, he arranged 4 TIPs and then after completion of all TIPs (4 TIPs), he prepared the TIP memos. 4 TIPs conducted and memos prepared thereof within the intervals of 5 minutes, does not appear to be reasonable. Moreover, as we have already stated that all the accused persons were shown to the prosecutrix, her father Tiharu (PW-5), Chaiti Bai (PW-9), Vimal (PW-3) and Rajju (PW-10) at the time of lodging of the FIR, therefore, the TIPs also vitiate on that account. Therefore, the very basis of the prosecution case i.e. the identification, vitiates and it creates doubt on the veracity of the evidence of prosecution witnesses mainly, the evidence of the prosecutrix.

Apart from the above inherent infirmities in the evidence of identification of the appellants by the prosecutrix and other prosecution witnesses, we note that there are many exaggerations in the evidence of the prosecutrix (PW-1). The prosecutrix developed a new story of taking out of handkerchief and torning it by the assailants and tying the hands and covering the eyes of Rajju (PW-10) by the cloths of handkerchief. This story is complete omission in the F.I.R. When the prosecutrix was asked about all this, she could not explain the above omissions in the F.I.R.

Learned counsel for the appellants have also argued that the lady Doctor, who had examined the prosecutrix, has not been examined by the prosecution. They contended that since there were no injuries on the back and private parts of the prosecutrix and the report was not supporting the prosecution, therefore, the prosecution did not examine her. In State of M.P. Vs. Dayal Sahu, the Supreme Court has held that non-examination of the Doctor and non-production of Doctor''s report, automatically would not be fatal to the prosecution if evidence of the prosecutrix and other prosecution witnesses inspire confidence.

Investigating Officer has also not been examined. In light of the judgment of AIR 2001 2842 (SC) the above fact would assume importance, if it appears on record that non-examination of I.O. has caused prejudice to the accused. In the instant case, there are many material contradictions in the evidence of the prosecutrix and other prosecution witnesses. Conduct of the I.O. of showing the accused persons before lodging the F.I.R. and conducting the TIPs, and telling their names to the prosecutrix is also apparent on record. Therefore non-examination of I.O. would assume importance because veracity of the evidence of the prosecutrix and the entire prosecution case, which was based on the evidence of TIPs, would have also been tested on the evidence of the I.O. We, therefore, take it as an important circumstance against the prosecution in this case as it has caused prejudice to the accused.

Learned State counsel has argued that human spermatozoa were found in the slides of the vaginal swab of the prosecutrix, therefore, it was a connecting evidence. We find that human spermatozoa were not found over the pubic hairs of the above three accused, whereas, they were immediately arrested in the night. The defence of the accused persons was that they were not involved in the incident and the evidence of their identification was shaky and not that the prosecutrix was not at all subjected to sexual intercourse. Moreover, after incorporation of S. 53(A) in the Code of Criminal Procedure it has become necessary for the prosecution to go in for DNA test and matching the semen of the accused with that found on slides of the prosecutrix, which evidence is lacking in this case (Vide Krishan Kumar Malik Vs. State of Haryana,

After going through the entire evidence available on record, we find that the evidence of the prosecutrix as also the other witnesses, does not inspire confidence. We are of the view that the learned Sessions Judge fell into error by convicting the appellants u/s 376 (2)(g) IPC on the evidence of the prosecutrix, Chaiti Bai (PW-9) and Rajju (PW-10), which was not absolutely trustworthy, unblemished and of sterling quality. For the foregoing reasons, the appeals are allowed. The conviction and sentences awarded to the appellants u/s 376 (2)(g) IPC are set-aside. The appellants are acquitted of the charges framed against them. Appellants-Tulsidas (A-1), Jairam Sahu (A-2) and Dhaneshwar Sahu (A-3) are in jail since 6.2.2007 and appellant-Prakash Sharma (A-5) is in jail since 31.3.2008. They be released, forthwith, if not required in any other case. Appellant-Rewaram Sahu (A-4) is on bail. His bail bonds are cancelled and sureties stand discharged.