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Judgment
In this batch of two appeals, the appellants are questioning the legality of the common judgment dated 11-11-2014 passed by the learned Sessions Judge, Gomati District, Udaipur in ST No. 25(ST/U) of 2014 (Type 1) convicting both of them under Section 341/376-D IPC read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 ("POCSO Act" for short) and sentencing them to suffer 20 years of rigorous imprisonment with fine for commission of the offence punishable U/s 376-D IPC, to pay a fine of Rs. 500/- for commission of the offence punishable U/s 341 IPC and to undergo 7 years of rigorous imprisonment with a fine for commission of the offence punishable U/s 4 of the POCSO Act. The sentences are, however, to run concurrently. The remaining accuseds were acquitted for lack of evidence.
The case of the prosecution is that on 1-11-2013 at about 6.30 PM, the victim, a minor girl, of 12 years old, along with her two friends, namely, Ms. Sadhana Jamatia (PW-5) and Ms. Rabi Kanya Jamatia alias Laxmi (PW-6) went to Krishna Bhakta market to purchase some articles and were returning home after the purchase when five persons followed and restrained them near Krishna Bhakta Anganwadi Centre and dragged away the victim (PW-2) inside the roadside jungle and committed gang rape upon her. PW-5 and PW-6, however, managed to escape and fled from the scene. After committing the rape, the appellants left the victim near her house in serious condition. On regaining her consciousness, she disclosed the incident to her mother, Smt. Raj Kumari Jamatia (PW-1). On 2-11-2013 at 2.30 PM, PW-1 lodged the FIR with Udaipur Women Police Station, which registered it as Case No. 134/13 U/s 341/376-D IPC. The Officer-in-Charge of the Police Station took up the investigation and, after completion of the investigation, charge-sheeted the accused U/s 341/376(2)(g)/506 IPC and under Section 4 of the Protection of Children from Sexual Offences Act, 2012 ("POCSO Act") by showing one of the accused, namely, Binoy Jamatia, as absconder. Two other persons, namely, Dilip Jamatia and Mangal Jamatia were also charge-sheeted for harboring offenders U/s 212 IPC.
After commitment, the learned Sessions Judge framed the charge against Hriday Jamatia (the appellant in Crl. Appeal (J) No. 16 of 2015, who, for the sake of convenience, is hereinafter referred to as "A-2"), Surjya Mohan Jamatia @ Sansa @ Sunaka (the appellant in Crl. Appeal (J) No. 8 of 2015, who, for the sake of convenience, is herafter referred to as "A-1") and Karna Sadhan Jamatia @ Seyal @ Lambu Jamatia (A-3) U/s 341/376-D/506 IPC and Section 4 of POCSO Act. All of them pleaded not guilty to the charge and claimed to be tried. Charge was also framed against two other accused, namely, Dilip Jamatia and Bahar Jamatia U/s 212 IPC for harboring offenders, and they also pleaded not guilty to the charge and claimed to be tried. In the course of trial, the prosecution examined as many as 23 witnesses and exhibited 12 documents to prove their case. No evidence was, however, adduced by the defence. From the tone and tenor of their defence, their case is found to be that of denial. At the conclusion of the trial, the trial court passed the impugned judgment of conviction and sentence.
Mr. S. Bhattacharjee, the learned counsel for A-1 and Mr. I. Chakraborty, the learned counsel for A-2, have urged that there was an inordinate and unexplained delay in conducting the TI parade and a delay of about 20 hours in lodging the FIR, and the prosecution is, therefore, highly suspect and the conviction of both the appellants, in that view of the matter, cannot be sustained in law. They further argued that the victim did not know the appellants before, and there was absolutely no basis for implicating the appellants in the crime. It was also contended that as the incident took place when it was already dark, PW-5 and PW-6, who fled from the scene the occurrence, could not have possibly seen the faces of the culprits in the absence of proof of source of light; not even the torchlight alleged to have been carried by one of the appellants was seized by the police. It was further argued that no credible evidence was led by the prosecution to show as to how the identities of the appellants were established by them. On the other hand, Mr. R.C. Debnath, the learned Addl. Public Prosecutor appearing for the State, supports the impugned convictions and sentences, which are based on solid evidence. He, therefore, submits that the appeal is devoid of merits and is, therefore, liable to be dismissed.
Since the appellants have vehemently attacked the findings of the trial court with respect to the identity of the assailants, we proceed to straightaway refer to the evidence of the prosecution to satisfy ourselves that it was none but the appellants, who gang raped the victim. PW-2 is the victim, and was recorded to be aged about 12 years at the time of giving her evidence. Though she was a child witness at the time of her examination, the trial court, having satisfied that she was matured, was capable of understanding the questions put to her and could give rational replies to such questions, proceeded to record her evidence. PW-2 thus deposed that on 2-11-2013, i.e. on the eve of Diwali, she had gone for shopping to Krishnabhaktapara market accompanied by PW-6 and PW-5 and on returning home, they passed through the upper road of Balwari School and reached the bagan after crossing the school. PW-5 and PW-6 went ahead of her and she saw five persons following her and they suddenly caught her; PW-5 and PW-6 ran away. According to her, the said five people took her to the paddy land and thereafter raped her. She identified them to be the appellant No. 2, Binoy, Sial (both non-appellants) and other names she could not say. In the dock, she, however, identified Karna Sadhan Jamatia (non-appellant), the appellant No. 2 and the appellant No. 1, but she could not identify two others, namely, Dilip Jamatia and Bahar Jamatia (who were acquitted). She went on to testify that she lost her sense and when she regained her sense, the rapists took her towards her house and left her near her house and that after the rape, they slapped and asked her what she would tell her parents, to which she replied that she would tell her parents that she took liquor as otherwise, they would kill her. She had told her friends, who accompanied her, to inform her parents, but they did not do so. She was sent to Udaipur Hospital and was treated by a doctor. She was brought before the Magistrate, who recorded her statement and she signed the statement after it was read over to her. She identified her signature as Ext.P-5/1. She also deposed that during the investigation, she had gone to the District Jail and she identified the rapist in the T.I. parade; she signed on the TI parade form, which she identified as Ext.-P-7/1 series. On recall also, her deposition is also to the same effect, that too, mostly about the accused, Binoy, who was acquitted, it is not necessary to refer to it.
Though PW-2 suggested that she could identify the appellants at the time of the occurrence, which was about 6.30 PM in the month of November and it would be dark by that time, she did not explain as to how she identified them at night. Moreover, in her statement recorded by the Judicial Magistrate First Class, Udaipur (PW-10) on 30-11-2013, she could not even name the appellants even after some 29 days of the incident. Incidentally, the statements of PW-5 and PW-6 were also recorded only on 8-11-2013, i.e. some 7 days after the alleged incident. In fact, the IO of the case PW-22, in her cross-examination, admitted that the victim could not identify the rapists and that she did not tell her that the appellants assaulted her. As the incident occurred at night, the question of identification at night also assumed considerable importance. It was PW-6, who stated that when the miscreants switched on the torchlight, then she could identify the appellants. This aspect of the matter will be discussed shortly.
Furthermore, the manner in which T.I. parade was conducted by the police also requires closer scrutiny; the exercise was undertaken only on 4-12-2013, i.e. about one month later. Moreover, from the evidence of PW-2, PW-5, PW-6 and PW-13, all of them admitted that the appellants were shown to them at R.K. Pur Police Station. In any case, what is the need for TI parade about one month after the occurrence if the appellants were sure about the identity of the appellants at the time of the incident? In any case, the inordinate delay in holding the TI parade assumed considerable importance in this case. In this context, the decision of the Apex Court in Lal Singh & others v. State of UP, (2003) 12 SCC 554 is instructive and the same reads thus:
"28. The next question is whether the prosecution has proved beyond reasonable doubt that the appellants are the real culprits. The value to be attached to a test identification parade depends on the facts and circumstances of each case and no hard-and-fast rule can be laid down. The court has to examine the facts of the case to find out whether there was sufficient opportunity for the witnesses to identify the accused. The court has also to rule out the possibility of their having been shown to the witnesses before holding a test identification parade. Where there is an inordinate delay in holding a test identification parade, the court must adopt a cautious approach so as to prevent miscarriage of justice. In cases of inordinate delay, it may be that the witnesses may forget the features of the accused put up for identification in the test identification parade. This, however, is not an absolute rule because it depends upon the facts of each case and the opportunity which the witnesses had to notice the features of the accused and the circumstances in which they had seen the accused committing the offence. Where the witness had only a fleeting glimpse of the accused at the time of occurrence, delay in holding a test identification parade has to be viewed seriously. Where, however, the court is satisfied that the witnesses had ample opportunity of seeing the accused at the time of the commission of the offence and there is no chance of mistaken identity, delay in holding the test identification parade may not be held to be fatal. It all depends upon the facts and circumstances of each case."
The law is now clear that TI parade should be conducted as soon as the accused is arrested. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. Moreover, if the prosecution is sure that the prosecution witnesses already knew the appellants, TI parade is meaningless.- See R. Shaji v. State of Kerala, (2013) 14 SCC 266.
PW-1 is the mother of the victim and the one who lodged the FIR. In her evidence, she testified that the victim, on regaining her consciousness, told her that the five rapists committed rape upon her while her friends managed to escape from the scene. This statement is not at all corroborated by PW-2, who never stated that she had revealed the identity of the appellants to her (PW-1). PW-1, on recall, further deposed that PW-16 told her the name of the rapists and that it was PW-16, who brought the victim in a senseless condition. However, PW-16 did not say anything about this. This statement of PW-1 that PW-16 told her about the identity of the appellants or the statement of PW-16 that PW-5 and PW-6 told him the name of the rapists, do not come within the purview of Section 32(1), Evidence Act and are in the nature of hearsay evidence, which are not admissible. Moreover, PW-16 never corroborated the statement of PW-1 that it was him who revealed the identity of the appellants to her nor did PW-5 and PW-6 corroborate PW-16 that they disclosed the identity of the appellants to him. PW-13 is the father of victim, who deposed that PW-5 and PW-6 told him the name of the rapists. He further testified that the victim first went to the house of her uncle and was weeping. She had asked her two friends to inform her parents but they did not do so. At this stage, we may examine the testimonies of PW-5 and PW-6 whether they corroborated the story of PW-1, PW-2 and PW-13. According to PW-5, who accompanied the victim to the market, on returning home at 6 PM, they saw five youths following them when they reached near Balwari School and PW-6 and herself were driven away and PW-2 was caught hold of by them. She further deposed that she could identify 3 accused i.e. A-2, Sangsa A-1 and another, whom she did not name. However, while giving her testimony, PW-5 never corroborated the statement of PW-13 that she had told PW-13 that it was the appellants who raped her daughter. That apart, it is worth noticing that PW-2, in her evidence, clearly stated that PW-5 and PW-6 were ahead of her, and that she saw five persons following them suddenly catching hold of her and thereafter raping her. Now, if PW-5 and PW-6 had really gone ahead of her and fled away in the dark, how did they manage to identify the appellants, that too, in the night, is a question quite incomprehensible to us. This gaping hole in the case of the prosecution has remained unexplained. Moreover, according to the victim, she had requested PW-5 and PW-6 to inform her parents, but they did not do so. Neither PW-5 nor PW-6, in their testimonies, said anything about this. This is another missing link in the case of the prosecution.
TI parade was still conducted in which PW-5 was alleged to have identified the appellants, but, as noted earlier, the TI parade was held only on 4-12-2013, i.e. some one month after the incident. From her cross-examination also, it is revealed that the appellants were already shown at the police station before the TI parade. PW-6, in her cross-examination, also disclosed that she had gone to Police Station along with the victim where she saw the appellants at R.K. Pur Police Station. That apart, she never testified that she disclosed the identity of the appellants to PW-13. She deposed that when they crossed Balwari centre, five boys, who followed them, restrained them, but PW-5 and she ran away while the appellants caught hold of the victim. She then testified that when the miscreants switched on the torchlight, she could identify, among others, the appellants and Sial. Now, if what this witness narrated about the way in which she identified the appellants is to be believed, one of the unnamed miscreants who is supposed to carry the torchlight, must have been the most stupid person inasmuch as he, about to assault somebody in the night, chose to focus the torchlight towards his face and that of his colleagues. This reminds us of the following observations of the Apex Court in Tamilselvan v. State, (2008) 7 SCC 755 on identification at night:
"8. Before dealing with these glaring inconsistencies it may be pointed out that the incident occurred at 10.30 p.m. on 27-1-1996. It is alleged by the prosecution witnesses that they identified the accused in moonlight. We find it difficult to accept this version of the prosecution witnesses that they could have identified any of the accused merely by the moonlight. In the evidence of the prosecution witnesses it is stated that the accused were carrying torches, but there is no indication whether the victims, including the Forest Guard Swaminathan (the deceased) and Raju, the gardener, who sustained fire injuries, carried torches.
Since it was the accused who allegedly carried torches, we find it difficult to believe how the prosecution witnesses could have identified the assailants. The position would have been different if the forest guards had been carrying torches and had been pointing them at the assailants, but here the position is just the reverse. In fact due to the torches of the assailants the prosecution witnesses would have been partially blinded by the light of the torchlight, and would not have been able to identify anybody."
(Underlined for emphasis)
The fact that the incident occurred when it was already dark is reinforced by PW-6 by introducing the need for torchlight for the purpose of identification of the appellants. Though both PW-5 and PW-6, in the statements U/s 164(5) CrPC recorded on 8-11-2013, had disclosed the names of the appellants, yet did not describe the manner in which they could identify them. There is thus no clinching evidence to show as to how PW-1, PW-13, PW-16 came to know about the identity of the appellants. That apart, the police never seized the torchlight alleged to have been used by one of the appellants upon which PW-6 is said to have identified them.
There is another circumstance, which cannot be lost sight of. The FIR was lodged by PW-1 on 2-11-2013 at about 2.30 PM though the incident occurred at 6.30 PM of 1-11-2013. No explanation, much less satisfactory explanation, was given by the prosecution regarding the delay of about 20 hours in lodging the FIR even though the police station is apparently located not far from the residence of the informant. FIR in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced during the trial. The importance of the report can hardly be overestimated from the stand point of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of offence is to obtain early information regarding the circumstance in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the place of occurrence. Delay in lodging the FIR quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets benefit of the advantage of spontaneity, dangers creeps in of the introduction of coloured version, exaggerated account or concocted story is a result of deliberation and consultation. It is, therefore, essential that the delay in lodging of the FIR should be satisfactorily explained. When the FIR was lodged, as in the instant case, and the delay in lodging of the FIR had not been explained it would be unsafe to base conviction of the appellants upon the evidence produced by the prosecution, as there were deliberations as to who should be made the accused in the case. An analogy can be taken from the extract of the decision of the Apex Court in Awadesh & another v. State of MP, (1988) 2 SCC 557:
"5. The first information report Exhibit P-12 shows that the occurrence took place at 14.15 hours while the report was lodged at 15.10 hours that is to say within 55 minutes of the occurrence. The evidence on record and the attending circumstances indicate that the first information report was not lodged at 15.10 hours instead it was lodged at about 17.00 hours. Rajendra Singh, PW 14 stated before the trial court that from the place of occurrence he had accompanied the police to Panna Kotwali where he lodged the report and signed the Ex. P-12. In cross-examination he stated that he had gone to the Kotwali for lodging report in a police van. He further stated that the report had been written by the police clerk on his dictation, and that the police arrived at the scene of occurrence after an hour of his lodging the first information report. At an earlier stage he had stated that the police had arrived at the place of occurrence at about 3.30 p.m. and thereafter he had accompanied the police to Kotwali for lodging the report. His testimony regarding lodging of the first information report is contradictory. V.P. Pathak, PW 20 Sub-Inspector of Police, the investigating officer, stated that it was wrong to say that the first information report Ex. P-12 was made by Rajendra Singh at Kotwali. According to him he was on duty at Collectorate and there he got the news at about 2.30 or 3.00 p.m. that gunshots were fired at Toll barrier on the Ajaigarh Road; he reached there within few minutes along with Lakhan Singh, Constable. On reaching the spot he wrote Marg intimation, drew up panchanama of the dead body and sent the dead body for post-mortem examination and thereafter he recorded Dehati Nalishi Ex. P-12. He asserted that first information report had been recorded at the place of occurrence. He further stated that Dehati Nalishi was recorded by him after the dead body of the deceased had been sent by him for post-mortem examination which according to the document (Ex. P-8) was sent at 5.00 p.m. His statement clearly indicates that the first information report was written after 17.00 hours and it was not recorded at the time it purports to have been lodged. There are material contradictions in the testimony of Rajendra Singh PW 14 and the investigating officer. Since the Sub-Inspector, the District Magistrate and the Superintendent of Police had reached the place of occurrence within few minutes of the incident, the delay in lodging the first information report is highly suspicious. Why this delay when all officers were present, and eyewitnesses were present at the spot and the police station was at a distance of two furlongs? The obvious reason appears to be that the names of the assailants were not known as most likely the alleged two eyewitnesses had not seen the assailants and they were not present at the scene of occurrence, at the time the shooting took place; in all likelihood, they like others arrived at the scene after the incident. Since names of the assailants were not known, the FIR was lodged with delay after deliberation."
(Italics and underlines supplied for emphasis)
In the context of the present case, what is all the more glaring is that not even a semblance of explanation was offered by the prosecution for the delay of about 20 hours in lodging the FIR. True, it cannot be said that the case of the prosecution which has been duly proved has to fail merely on the ground that there was no explanation for a little delay or the explanation for such delay is found to be unsatisfactory. All that can be said is that in such an eventuality, the Courts have to be on guard in evaluating the entire evidence on record; this is precisely what is done by us in this case. In our opinion, the cumulative effect of the vague and contradictory statements of the prosecution witnesses found in the evidence brought on record with respect to the delay in recording of the statements of PW-2, PW-5 and PW-6 under Section 164 CrPC or the delay in conducting TI parade or the delay in lodging the FIR is that the prosecution was not sure of the identity of the actual culprits and these exercises were undertaken by them belatedly after much deliberation to rope in the wrong guys. For all these reasons, we have no hesitation to say that serious doubts have thus been created in the case of the prosecution about the involvement of the appellants in the crime charged against them. In fairness, it could be said that there are reasonable grounds for suspicion that the appellants are the true culprits, but then unless the prosecution can prove their guilt to the hilt, we cannot return a verdict of guilt upon them. As observed by the Apex Court in Narendra Singh & another v. State of MP, (2004) 10 SCC 699, it is now well-settled that benefit of doubt belonged to the accused. It is further trite that suspicion, howsoever grave they may be, cannot take the place of proof. It is equally well settled that there is a long distance between "may be" and "must be". As the prosecution could not prove the identity of any of the appellants, the remaining issues raised by the learned counsel for the appellants and the learned Public Prosecutor do not survive for consideration; Courts do not discuss more than what is necessary for disposal of a case. In the view that we hold that the prosecution have not proved their case beyond reasonable doubt, and the impugned judgment cannot be sustained in law and is, therefore, liable to be set aside.
The offshoot of the foregoing discussion is that these two appeals are allowed. The impugned judgment is hereby set aside. The appellants are, therefore, set at liberty forthwith. Prepare the release orders. Transmit the L.C. records.