STATE OF HIMACHAL PRADESH Vs. LEKH RAJ

JUDGEMENT

(1.) Leave granted.

(2.) The prosecutrix, a widow of 55 years of age was criminally assaulted and subjected to forcible intercourse by the respondents on 10-11-1993 near her village Baadi in Gumanu Nalla District Mandi, Himachal Pradesh when she was coming back to her house after attending the marriage of the daughter of her husband's brother. The First Information Report was submitted by her on the next date against the respondents. She was medically examined and her torn Salwar was sent for chemical analysis. On medical examination various injuries were found on her person. As the prosecutrix was found habituated in sexual intercourse, being an elderly woman and mother of two grown up children, no opinion was possible about the last date of sexual act. However the Doctor upon examination of the injuries, mentioned in the medico-legal certificate, was of the opinion that the injuries reflected the signs of struggle. The trial Court of Sessions Judge, Mandi convicted the appellants under Ss. 376(2)(g) and 323 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for five years and to pay a fine of Rs. 5,000/- each under S. 376, IPC and six months rigorous imprisonment under S. 323 with fine of Rs. 500/- each. In default of the payment of fine, the appellants were to undergo further rigorous imprisonment specified in the judgment. In appeal filed by the appellants the High Court vide order impugned in this appeal set aside the order of the Sessions Judge and acquitted the respondents of the charges framed against them. Alleging that the judgment of the High Court was against law and facts, the State has preferred this acquittal appeal.

(3.) The respondent No. 2 has been acquitted by the High Court on the ground that his identity could not be established by the prosecution at the trial. The admitted position is that the name of respondent No. 2 was not known to the prosecutrix and thus his name not mentioned in the FIR. She had, in the written report lodged with the Superintendent of Police, Mandi on 11-10-1993, stated that respondent No. 1 "with another person whose name is not known to the complainant interrupted the complainant from her back and gagged her mouth. They pounced upon her and made her to lay down on the road and had forcible sexual intercourse with her". In her statement before the Trial Court the prosecutrix admitted that she had not known the respondent No. 2 earlier and further that no Identification Parade was conducted by the investigating agency. She further admitted having seen the respondent No. 2 in the Court only after the day of occurrence. How the respondent No. 2 was named as an accused person is a mystery shrouded with doubts which has not been properly and sufficiently explained by the prosecution. During the investigation of a crime the police agency is required to hold Identification Parade for the purposes of enabling the witness to identify the person alleged to have committed the offence particularly when such person was not previously known to the witness or the informant. The absence of Test Identification may not be fatal if the accused is known or sufficiently described in the complaint leaving no doubt in the mind of the Court regarding his involvement. Identification Parade may also not be necessary in a case where the accused persons are arrested at the spot. The evidence of Identifying the accused person at the trial for the first time is, from its very nature, inherently of a weak character. This Court in Budhsen v. State of U.P. (1970) 2 SCC 128 held that the evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances the complainant or the witness came to pick out the particular accused person and the details of the part which he allegedly played in the crime in question with reasonable particularity. In such cases test identification is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the Identity of the accused who are strangers to them. There may, however, be exceptions to this general rule, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration. Though the holding of identification proceedings are not substantive evidence, yet they are used for corroboration purposes for believing that the person brought before the Court was the real person involved in the commission of the crime. The identification parade even if held, cannot, in all cases, be considered as safe, sole and trustworthy evidence on which the conviction of the accused could be sustained. It is a rule of prudence which is required to be followed in cases where accused is not known to the witness or the complainant.