Failure To Get Identification Of Accused Done By Victim Is Fatal Flow: Supreme Court Grants Acquittal In 5 Year Old Girl's Rape Case

The Apex Court was considering an appeal challenging the judgment rendered by the Division Bench of the Rajasthan High Court whereby the appeal preferred by the accused-appellant was dismissed and the judgment passed by the Special Judge, Protection of Children from Sexual Offences Act, 2012 and the Commission for Protection of Child Rights Act, 2005 convicting and sentencing the accused-appellant was affirmed.

The Division Bench of Justice Sandeep Mehta and Justice Manmohan held, “Law is well-settled by a catena of decisions of this Court that the substantive evidence for establishing the identity would be that of identification of the accused by the witness in the Court and test identification proceedings conducted during investigation are merely corroborative in nature.”

"Secondly, and more importantly, there is a fatal flaw in the prosecution case on account of the failure to get identification of the accused done by the victim during her deposition before the trial Court", it added.

AOR Namit Saxena represented the Appellant while AOR Nidhi Jaswal represented the Respondent.

Factual Background

The complainant lodged a written report alleging that his wife and his two children, son aged about 11 years and daughter (victim) aged about 5 years, had gone to the house of his aunt-in-law for attending some programme. The wife raised a concern that the daughter was not traceable. The complainant immediately rushed back to the village and started searching for his daughter along with Bhopal Singh. After some time, two persons, namely, Kailash and Prahlad came to his house with the child. His wife was present at that time and noticed that the victim was bleeding from her private parts. The victim was taken to the hospital, however, feeling embarrassed and concerned due to societal backlash, they chose not to inform the police.

The victim told her parents that she had gone outside for buying toffee and when she was returning, a boy approached her and lured her towards the side of higher secondary school. She was pushed into the bushes where the boy subjected her to sexual assault. When she tried to shout, the boy threatened to kill her. She started bleeding from her genitals owing to the assault, upon which the boy ran away from the spot. She noticed illumination in the distance and proceeded towards that direction, where Prahlad met her. She was thereafter taken to the house of Kailash. Upon disclosing her father’s name, the said two persons brought her back home.

The accused-appellant was arrested. He was subjected to Test Identification Parade in which the victim identified him to be the assailant. A chargesheet came to be filed against the accused-appellant for the offences punishable under Sections 363, 366A, 323, 376, 376(2)(i)(j) of IPC and Sections 3, 4 and 5(m), 6 of the POCSO Act, in the Special Court (POCSO). The Ttrial Court sentence the appellant and the accused-appellant’s appeal before the High Court stood rejected by the Division Bench. Aggrieved thereby, the accused-appellant approached the Apex Court. The accused-appellant remained incarcerated in prison ever since the date of arrest, i.e. February 5, 2017.

Reasoning

On a perusal of the facts of the case, the Bench noted that the FIR neither disclosed the identity of the accused nor did it refer to any particular features of the accused which could have assisted the victim to identify the accused in the TIP. The identity of assailant was admittedly not known at the time when the FIR was lodged. The Bench took note of the fact that the Investigating Officer admitted that the victim and her father were taken to Jaipur, and a sketch was prepared for the purpose of identifying the accused. However, he admitted that the said sketch was not available with him and had not been produced before the trial Court.

The Bench held that the Investigating Officer had no reliable evidence which could point the finger of suspicion towards the accused-appellant as being the perpetrator of the crime. “Thus, there remains a serious doubt regarding the basis on which the accused-appellant came to be arrested and his subsequent identification as the assailant”, it added.

As per the Bench, the the lackadaisical effort in identification of the accused created a significant doubt regarding the genuineness of the prosecution version. It was further noticed that the accused was admittedly not named in the FIR and the victim herself admitted that his name had been disclosed to her by the police.

The Bench was of the view that the Trial Court convicted the accused-appellant, on the basis of the identification made by the victim during the TIP, totally ignoring the fact that no effort was made to get dock identification of the accused-appellant by the victim. The Bench also explained that Section 165 of the Indian Evidence Act, 1872 (Corresponding to Section 168 of the Bharatiya Sakshya Adhiniyam, 2023) confers wide powers upon the Court to put questions to witnesses and to direct production of documents or things in order to discover or obtain proper proof of relevant facts.

The Bench further took note of the sheer negligence on the part of the Public Prosecutor and the gross ignorance exhibited by the Presiding Officer in putting no effort to have the accused-appellant identified by the victim during her deposition, so as to confirm the fact that the person standing trial was indeed the assailant. “The omission was neither occasioned by any unavoidable circumstance nor beyond the control of the Court. It was a simple step that could readily have been undertaken in the course of recording the substantive evidence, particularly when the identity of the accused was itself a crucial issue in the case”, it held.

The Bench thus concluded that there was a material discrepancy in the medical evidence and the deposition of the witnesses regarding the time of the incident which went to the root of the matter affecting the veracity of the prosecution case. “The prosecution case thus suffers from serious infirmities regarding the identification of the accused; grave contradiction between the medical evidence pertaining to the age of the injuries and the alleged time of the incident as set out in the FIR and the depositions of the prosecution witnesses”, it mentioned.

Setting aside the impugned judgments of the Trial Court and the High Court, the Bench allowed the appeal and acquitted the appellant of the charges.

Cause Title: Dhanraj v. State of Rajasthan (Neutral Citation: 2026 INSC 958)

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