Mohammad Saleem vs State (Delhi Administration)
1991 Latest Caselaw 587 Del

JUDGMENT

A.B. Saharya, J.

(1) By this judgment I proceed to record the reasons pursuant to the following order passed by me on 13th August, 1991 - "THE appellant is in Jail. Hearing the appeal has concluded today. For reason to follow, the appeal is allowed. The appellants should be released forthwith. if be be not required to be detained for any other cause."

(2) This appeal is directed against the judgment and order, both dated 29th November, 1988, made by Additional Sessions Judge, New Delhi convicting the appellant under Sections 366 and 376 of the Indian Penal Code and sentencing him to undergo R I. for three years and to pay fine of Rs. 200.00 and in default to undergo simple imprisonment for one month under Section 366 of the Indian Penal Code, and to concurrently undergo rigorous imprisonment for 7 years and to pay a fine of Rs .200.00 and in default to undergo simple imprisonment for one month under Section 376 of the Indian Penal Code.

(3) The prosecution case in brief is that on 15th June, 1987, Kiran aged 11-1/2 years, who was residing at Delhi Cantt, had gone to the market at about 3 p.m. to purchase vegetables. While she was standing at bus stop Nangal Rai to board a bus to get back home, she felt giddy and asked for water. Saleem was also standing there. He gave her a glass of water. After drinking it, she felt uneasy Saleem told her that be would take her to her mother's house. Thereafter, she became unconscious. Saleem took her to the place where he was himself residing at Shahdara, and kept her there up to 22nd June, 1987. In between 15th June to 22nd June, 1987, be raped her. Kiran, on her own, came back to her mother's place on the 22nd June, 1987, 8 at p m.

(4) Further, according to the prosecution, on 16th June, 1987, Kiran's mother Asha Devi, Public Witness -6 lodged a report at police station Delhi Cantt. She reported that on the previous day, when she was herself away on duty, her minor daughter had gone out to purchase vegetables but had not returned home, that all efforts to trace her had failed, and that she suspected foul play by some anti-social elements. On this information, First-First Information Report Exhibited Public Witness -3/B was registered under Section 363 of the Indian Penal Code.

(5) It is also alleged that on 22nd June, 1987, when Kiran returned home, she narrated the whole story to her mother. Next day, Public Witness -3 Asha Devi together with her husband and one his cousins Ramu, Public Witness -2 took her to the police station. After their statements were recorded, Kiran led the police party headed by the Investigating Officer, S I Darshan Lal. Public Witness - 9, Along with her uncle Ramu and mother Asha Devi, to the house of one Munna Lal at Shahdara, where the accused Saleem was apprehended "on the pointing out of Kiran". The Investigating Officer seized certain articles from the house of Munna Lal where Saleem was residing, and took his personal search. The underwear of Saleem was taken into possession. The Investigating Officer also got Kiran medically examined and seized her slawar. Saleem's underwear, Kiran's salwar and her vaginal swab taken by the doctor, among other articles, were sent to the C.F.S.L. for examination. On analysis, human semen was detected on these articles. C.F.S.L. reports are Exhibit P. A. and Exhibit P.B.

(6) At the trial, Saleem was charged under Sections 363, 366 and 376 of the Indian Penal Code, on the allegation that he kidnapped and raped Kiran. The prosecution examined nine witnesses Kiran Public Witness -1 is the main witness. Ramu, Public Witness -2 is the uncle of Kiran, who along with Asha Devi bad accompanied her to the police station and then to Shahdara on the 23rd June, 1987. Public Witness -3 S.I Deep Chand had received the information from Asha Devi, on the basis of which be had recorded the formal F.I.R. Exhibit PW-3/B on 16th June, 1957 Public Witness 4 Constable Pradeep Kumar had accompanied the Investigating Officer and the others to Shahdara from where certain articles were seized by recovery memo Exhibit Public Witness 4/A under his signatures. The underwear of the accused was also taken into possession by him vide memo Exhibit Public Witness -4/B. Public Witness -5 Dr.Y.Singh of the Safdarjang Hospital, New Delhi proved the medical report given by Dr. D.D. Gangoli, Exhibit Public Witness -5/A, which shows that the accused Saleem was aged 21 years and that he was capable of performing sexual act. Public Witness -6, as earlier mentioned, is Kiran's mother Asha Devi Public Witness -7 Dr. (Mrs.) Mala Kalia bad examined Kiran on 23rd June. 1987. She proved her report Exhibit Public Witness -7/A and affirmed that on medical examination on Kiran she found that her breasts were well developed, there were no marks of bruises or injuries on her person, hymen was torn (old tears) and introit us admitted two fingers easily She further stated that Kiran bad not menstruated for the last three months and that she bad advised urine left to ascertain pregnancy as the size of the uterus was bulky. Public Witness -8 Constable Raj Kumar bad carried the parcel containing the vaginal swab of Kiran from Safdarjang Hospital for analysis. PW-9 S I. Darshan Lal is the Investigating Officer. He explained the steps taken in investigation and proved, inter alia, the school leaving certificate from Government Girls Higher Secondary School, Delhi Cantt. Exhibit PW-9/A, which established that Kiran was aged about 11-1/2 years at the relevant time. In his statement under Section 313 of the Criminal Procedure Code, the accused denied the correctness of the entire prosecution case.

(7) In the trial court in view of the fact that the prosecutrix was a minor at the relevant time and the question of her consent was immaterial, the main question raised was whether it was the accused who had kidnapped and raped the prosecutrix. On behalf of the accused, it was contended that for want of identification parade the trial was vitiated; that there was nothing on record to connect the accused with the commission of the offence and therefore, he was entitled to be acquitted.

(8) By the impugned judgment, the plea regarding identification parade has been turned down by the trial court, holding :    "IN this case the prosecutrix lived with accused for about six days in his house where be had sexual intercourse with her and, therefore, the question of mistaken identity does no arise in this case. Relying upon the deposition of the prosecutrix alone, the trial court has convicted the accused.  

(9) Mr. Sanjeev Kumar, Advocate, who ably assisted the Court as amices curiae, has advanced the same pleas that were taken at the stage of trial. He has urged that no reliance at all can be placed upon the statement of the prosecutrix, as she has completely contradicted the prosecution story in her cross examination; that in the facts and circumstances of this case, failure of the prosecution to hold identification parade is fatal; and that there is nothing on record to prove that the appellant is the person who committed the alleged offences.  

(10) It is self-evident that the case against the accused rests entirely upon the testimony of the prosecutrix alone. In her examination-in-chief, she deposed on the lines on which the prosecution story runs; but, on cross examination, she gave completely contradictory answers on every aspect of the vital stage i.e. when she is alleged to have become unconscious at the bus stand on 15th June. 3987 till she reached her mother's house on 22nd June, 1987 at 8 p.m. She affirmed that she did not know the accused prior to the alleged incident. Interestingly, she stated, inter alia, that she became an conscious at the bus stand on 15th June, 1987, that she did not know bad removed her from there, that she did not complain to anyone about anything while she was at Shahdara despite the fact that there were four rooms in the house where she was kept and the same were occupied by different persons and that she come back to her mother's house on her own "when she regained, consciousness". Even in her examination-in-chief, she categorically stated:    "Returned to my house when I regained counsciousness. I remained in the house of the accused till 22nd June, 1987 and gained consciousness on 32nd June, 1987".  

With regard to the arrest of the accused, she categorically stated that when the police bad taken her to Shahdara, the accused was not present at his house and that be was arrested later on by the police and "I was not prevent at the time of apprehension of the accused".   

(11) In this background, the question which arises for consideration is whether any reliance at all can be placed on the testimony of the prosecutrix She specifically stated that she became unconscious at the bus stop on 15th June, 1987 and did not know who carried her away from there. Then at one place, she said that she regained consciousness on 16th June, 1987, but immediately resited; and she categorically stated even in her examination in-chief that she regained consciousness only on 22nd June, 1987 when she left Shahdara and came back to mothnr's house. If it were so, her statement that the accused kidnapped her on 15th June, 1987 and raped her in between 15th June to 22nd June 1987 can hardly be relied upon. On the other hand, if it were to be taken that she bad regained consciousness on the 16th June, 1987, it would be too much to believe that a person kidnapped and subjected to rape, as alleged in this case, would submit herself to such acts for as many as six days without making any complaint to anyone despite the availability of several other persons within the house where she is alleged to have been kept and even in the vicinity of the house, which is located in a congested area at Shahdara. In this view of the matter, coupled with the fact that the prosecutrix was a girl of easy virtue, as established by the medical evidence on record, I think it would not be advisable to place any reliance at all upon testimony so as to rest upon it conviction of the accused.

(12) Even with regard to identification of the accused, it appeal that the approach adopted by the trial court is erroneous. P. W. 9 S.I. Darshan Lal stated that the accused was apprehended: "On the pointing out of Kiran". In his cross examination, be admitted as correct the suggestion that the accused was not produced for identification before any court. He volunteered, however, that the accused was identified by the prosecutrix before him None of the other members of the police parly who accompanied S. I. Darshan Lal to Shahdara have said a. word on this aspect The other witnesses, namely, P. W. Ramu and Public Witness 6 Asha Devi as well as the prosecutrix herself have deposed to the countrary P. W I, the prosecutrix asserted that the accused was not found at his house at Shahdara when the police party took her there: that he was arrested later on by the police and that she Was not present at that time. P W. 2 Ramu also stated that the accused was not present at his house when they reached there with the police parly and that they had all come back to their house thereafter P W. 6 Asha Devi also stated that when they reached the house of the accused he was not available there. Further, she said that the police arrested him at night. She went on to explain: "WE were not there at the time of apprehension of the accused One policeman told us that the accused Salim was arrested by police"

(13) From the above discussion, it appears that the identification parade was dispensed with on the stand taken by the Investigating Officer that the accused was arrested at the point oat of the prosecutrix, and that she knew him well enough. From the evidence adduced in the course of the trial, however, it is clear that neither the prosecutrix nor any of the other witnesses knew the accused previously and that none of them was present when the police arrested the accused. As such the stand taken by the Investigating Officer falls through.

(14) The Legal position regarding test identification of accused has been explained by Sikri, J. in Jadunath Singh v. State of U .P. , thus: "IT seems to us that it has been clearly laid down by this Court in Criminal Appeal No. 92 of 1956, D/15.1-1957 (SC) that the absence of test identification in all cases if not fatal and if the accused person if well known by sight it would be waste of time to put him up for identification Of course if the prosecution fails to hold an identification on the plea that the witnesses already knew the accused well and it transpires in the course of the trial that the witnesses did not know the accused previously. the prosecution would run the risk of losing its case. It seems to us that if there is and doubt in the matter the prosecution should hold an identification parade............"

(15) Obviously, for determination of the question whether failure to hold test identification parade is fatal, the material available at the stage of investigation or the opinion of the Investigating Officer arc irrelevant. The result would depend upon the facts and circumstances that emerge during the course of the trial on the basis of the evidence on record of the case.

(16) In the present case, from the evidence that bag come on record during the course of the trial, it is clear that the accused was not named in the First Information Report; that he waa Jiving at a place miles away from the house of the prosecutrix; that be was not arrested from the spot in the presence of the witnesses; and that the accused was not known to the witnesses previously. In such a case, it cannot be said that the matter regarding the identification of the accused waa beyond any doubt, In any event, in view of the persistent stand taken by Public Witness -1 that she remained unconscious up to 22nd June, 1987, the finding of the trial court regarding the need for holding the identification parade cannot be sustained.

(17) Lastly, even on be basis of the C.F.S.L.reports Exhibits Pa and Pb, showing that Ab Group human semen waa detected on the underwear of the accused as well as on the salwar and vaginal swab of the prosecutrix, it cannot be definitely said that the semen on these articles was of the very same person. Ab grouping of the semen is to general to be taken by itself to incriminate the accused in commission of sexual intercourse with the prosecutrix in this case.

(18) Consequently, it is found that the prosecution failed to establish beyond doubt the case set up against the appellant.It cannot be said that the appellant was the person who kidnapped and/or raped the prosecutrix so as to carry his conviction and sentence under Sections 366 and 376 of the Indian Penal Code. The impugned judgment and order are, therefore, set aside and the appellant is acquitted.