The Rajasthan High Court ordered acquittal in a rape case and directed the Director General of Police, Jaipur and the Principal Secretary, Department of Home, Jaipur to issue proper instructions to all the Police Investigation Officers of the State to conduct the Test Identification Parade of the accused with the victim in those cases where the accused is not known to the victim.

The High Court was considering an appeal challenging the validity of the impugned judgment passed by the Sessions Judge whereby the appellants were convicted for the offence under Section 376 IPC and were sentenced to undergo 10 years rigorous imprisonment.

The Single Bench of Justice Anoop Kumar Dhand asserted, “Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected.”

Advocate Rinesh Gupta appeared for the Appellants while Public Prosecutor Manvendra Singh appeared for the Respondents.

Factual Background

It was alleged in a written report submitted by PW-1 "S" that three persons caught hold of her when her husband went to answer nature's call. It was alleged that they took her to another house, threw her on the ground, closed her mouth, held her hands and thereafter, they committed rape with her one by one. A criminal case came to be registered for the offences under Section 376(2), 379 and 34 IPC. After completion of the investigation, a charge sheet was submitted against the appellants for the offence under Section 376 IPC. The Trial Judge convicted and sentenced the appellants. Aggrieved thereby, the appellants approached the High Court.

Reasoning

On a perusal of the cross-examination of the prosecutrix PW-1 'S', the Bench found that the appellants were not known to her at the time of the commission of the offence. Her brother-in-law told her the names of the accused. At the same time, she stated that her mother-in-law told her the names of the accused 3-4 days before the occurrence. This meant that she was not knowing the appellants and their names. As per the Bench, under such circumstances, the Investigating Agency was supposed to conduct the Test Identification of the appellants with the prosecutrix.

“The idea of holding test identification parade under Section 9 of the Indian Evidence Act is to test the veracity of the witness on the question of capability to identify an unknown person whom the witness may not have seen. If no test identification parade is held, then it will be wholly unsafe to rely on his/her bare testimony regarding identification of the accused”, the Bench said. “When the victim was not aware about the names of the appellants, then how she figured their names in her statements, such factual aspect of the matter is fatal to the case of the prosecution”, it added.

The Bench also explained, “However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond a reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence.”

Highlighting the fact that the purpose of cross-examination under Section 138 of the Indian Evidence Act is to elicit the suppressed fact in discovering the truth and to impeach the credit of a witness, the Bench held that the defence had shaken the credibility of the prosecutrix in her cross-examination that she was not aware about the names and identity of the accused before and at the time of the commission of the offence. The Bench also found that there were material contradictions in her testimony about her knowing the accused persons before and at the time of the commission of the offence. Hence, her version was not believable.

The Bench also took note of the fact that in order to pacify the public opinion which may revolt against the Police for non-detection of such crimes, the Investigating Agency avoids the embarrassing situation by implicating a person who cannot be connected with the crime by legally acceptable evidence. In the instant case, it appeared that the prosecuting agency has miserably failed to apprehend or book the real culprits.

“Taking a serious note of the situation it is expected from the Police Investigating Agencies of the State to conduct the Test Identification Parade of the alleged accused from the victim with whom the occurrence has taken place. Let a copy of the judgment be sent to the Director General of Police, Jaipur and the Principal Secretary, Department of Home, Jaipur for issuing necessary and proper instructions, standing order or guidelines to all the Police Investigation Officers of the State to conduct the Test Identification Parade of the accused with the victim in those cases where the accused is not known to the victim”, the Bench ordered.

Thus, allowing the appeal, the Bench acquitted the appellants while directing them to furnish bail bonds in the sum of Rs 1 Lakh each.

Cause Title: Madan & Ors. v. The State of Rajasthan (Case No.:S.B. Criminal Appeal No. 209/1991)

Appearance:

Appellants: Advocates Rinesh Gupta, Sarwat Alam

Respondent: Public Prosecutor Manvendra Singh

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