State v. Mohd Parvez

13. Counsel for the respondent submits that mistake in identification of the respondent cannot be ruled out in the present case as Test Identification Parade of the respondent has not been conducted and the testimonies of Ashu PW-7 and Vishal PW-8 cannot be relied upon as they have made substantial improvements in their depositions and there exists material contradictions in their testimonies. Thus the learned trial court rightly acquitted the respondent of all the charges framed against him by the prosecution.

14. We have heard the learned counsel for the State and have perused the impugned judgment and the testimonies of the material witnesses relied upon by the State. In order to appreciate the submission of learned counsel for the state with regard to eye witnesses, it would be useful to refer to the evidence of the material witnesses, Ashu PW-7, and Vishal PW-8. The trial court has recorded this finding in Para 21 of the judgment which reads as under:- “21. PW[7] & PW[8] are also star witnesses of the prosecution case. PW[7] in his examination-in-chief deposed that accused was doing ups and down the victim in his lap and at that time, accused had removed his pant half and also down the salwar of the victim. Similarly, PW[8] in his examination-in-chief deposed that accused was kissing the victim and caressing the girl (victim) and further deposed that accused had removed the penty of the girl. However, in their cross-examination, the said testimony was got duly confronted. PW[7] in his crossexamination deposed that police had recorded his statement and he did not state to the police that accused had put down the salwar of the girl and accused had put down his pant half and further deposed that he had not stated to the police that accused was doing the girl ups and down in his lap. Thus, it becomes clear that PW[7] had made substantial improvements in his deposition. Similarly, PW[8] in his cross-examination deposed that police had recorded his statement Ex. PW8/DA and he had stated to the police that accused had removed the penty of the girl but the same is not recited in his statement Ex. PW8/DA, thus it becomes clear that he had also made substantial improvements in his deposition.”

15. The learned Trial Court observed that there were contradictions in the testimonies of PW[7] and PW[8] on material points and the witnesses had made improvements to the initial version of their testimonies, hence the depositions made by them cannot be relied upon.

16. After careful examination of the contradictions in the testimonies of the above witnesses we are of the view that the learned trial court has given valid and substantial reasons for disbelieving the depositions of the above two material witnesses. A bare perusal of the above testimonies of Ashu PW-7 and Vishal PW-8 clearly goes to show that they have made substantial improvement in their deposition without giving a reasonable explanation for the same. Hence we are of the opinion that no reliance can be placed on the testimonies of Ashu PW[7] and Vishal PW[8].

17. Our view is fortified by the law laid down by the Apex Court in Shaymal Ghosh v. State of West Bengal, reported at (2012) 7 SCC 646, where it was held that every variation may not be enough to adversely affect the case of the prosecution and the Court must ascertain whether the variations are material and would affect the case substantially.

18. In case of Mritunjoy Biswas Vs. Pranab @ Kuti Biswas and anr., reported at (2013) 12 SCC 796, the Apex Court held as under: “As is evincible, the High Court has also taken note of certain omissions and discrepancies treating them to be material omissions and irreconcilable discrepancies. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission (See Leela Ram vs. State of Haryana and another, Rammi alias Rameshwar v. State of M.P. and Shyamal Ghosh v. State of West Bengal).”

19. In another case of State of Gujarat vs. Kishanbhai etc, reported at (2014) 5 SCC 108, it was held that glaring inconsistencies and infirmities in statement of witnesses render their statements unreliable. Hence benefit of doubt must be given to the accused.

20. In light of the above discussion, we are of the considered opinion that no reliance can be placed on the testimonies of Ashu PW[7] and Vishal PW[8]. Also their testimonies do not get support from the testimony of the victim PW10 who deposed that the wrongdoer had inserted his finger in her vagina and not his penis. Thus the testimony of material witness, Victim PW10 does not corroborate the testimonies of PW[7] and PW[8]. Further the FSL report suggests that no semen was found on the exhibits of the victim which further contradicts the testimonies of the PW[7] and PW[8].

21. Another submission of the counsel for the state is that the respondent had lifted the victim in his lap and committed an offence under section 363 of IPC. Victim PW-10 in her testimony deposed that the respondent had lifted her in his lap. As per the prosecution version, the alleged incident had taken place in the presence of Vishal PW-8 and Vijender PW-9. However as per the evidence produced, both PW- 8 and PW-9 have no where deposed that they had seen the respondent taking the victim anywhere. They only deposed that they saw the victim with the respondent. In this regard, we are of the opinion that considering the present facts of the case, the act of only lifting the victim falls considerably short of attracting the offence punishable under section 363 of IPC.

22. In case of re Khalandar Sahab AIR 1955 Andhra 59 (I) Subba Rao, C.J. stated that the word „take‟ in S. 361 meant to cause to go, to escort, or to get into possession.

23. Similarly in the case of Abdul Sathar v. Emperor AIR 1928 Mad 585 (E) Srinivasa Ayyangar J. gave the meaning of the relevant words thus: “The expression „taking out of the keeping of the lawful guardian” must therefore signify some act done by the accused which may be regarded as the proximate cause of the person going out of the keeping of the guardian or in other words, an act but for which the person would not have gone out of the keeping of the guardian as he or she did”.

24. In Davalasab 1977 Cri LJ 1255 (Kant); Sachindra Nath Muzumder vs. Bistupada Das 1978 Cri LJ 1494 (Cal), it was observed that merely because the minor girl was seen in the company of the accused it is not sufficient for his conviction unless some evidence is forthcoming as to the taking or enticing by the accused out of the keeping of her lawful guardianship.

25. In State of Himachal Pradesh vs. Rajesh Kumar and anr., reported at 2011(3)ShimLC22, the court while dealing with the essentials of kidnapping observed in para24 which reads as under:

26. Thus, in the light of the above discussion, we are of the view that in the absence of any cogent evidence, mere lifting of a minor child in arm without any further evidence is not sufficient to bring home the act of the respondent within the four corners of Section 363 of IPC. Thus, we are in alignment with the view taken by the learned Trial Court in para29, which is extracted hereunder: “29.To my mind “taking” is something more than lifting a minor girl in the lap. If we stretch the 'taking' to such an extent. In that eventuality if a person innocently lifts a minor child just due to affection, love etc. and thereafter leave the child even in that eventuality, the said person can be held liable for the offence kidnapping. In the instant case, as per the prosecution version while the victim was coming back to her home, accused met her on the way and he had outraged her modesty. It may amount that accused had wrongfully restrained the victim but by no stretch of imagination the said act can fall within the four corners of kidnapping. Further, PW-10 in her testimony nowhere deposed that that boy had taken her even at a distance of 1-2 paces”.

27. Regarding the identity of the respondent, the submission of the counsel for the state that the respondent was arrested at the instance of the victim and other eye witnesses and that there is no doubt about the identity of the respondent is without force and it would be useful to refer to the evidence of some of the material witnesses, as noticed by the trial Court: “Father of the Victim PW[2] in his examination in chief deposed that Ashu PW[7] did not tell the name of the respondent but identified him when he was apprehended by the police. To the contrary Ashu PW[7] in his cross examination deposed that he had seen the respondent first time on the day of incident and he did not know him previously. Vishal PW[8] in his cross examination deposed that due to darkness respondent was not visible and he did not know the respondent previously and he saw the respondent first time at the time of incident. PW[8] further deposed that when he saw the respondent with the victim he was wearing black color shirt having white lines and black color pant and when he was apprehended he was wearing T-shirt and pant. SI Rajbir Singh, IO PW11, in his testimony categorically deposed that when the respondent was apprehended, he was wearing black color shirt having white lines.”

28. In our opinion, from the examination of the testimony of Father of the victim PW[2], it is clear that there is material contradiction to the extent that he deposed in his testimony that Ashu PW[7] had identified the respondent after his arrest, which is not corroborated by PW[7] in his deposition. Further there is contradiction in the testimony of Vishal PW[8] and SI Rajbir Singh, IO PW11 regarding the clothes worn by the respondent when he was apprehended, and because of the glaring discrepancies and material contradictions in the testimonies of the above mentioned material witnesses of the prosecution, mistake in identification of the respondent cannot be ruled out. Further it is pertinent to note that Ashu PW[7], Vishal PW[8] and Victim PW10 did not know the respondent prior to the incident and were all children at the time of commission of offence. Victim PW10 was merely four years old, Ashu PW[7] was about 11-12 years old and Vishal PW[8] was about 8-9 years old and hence they are susceptible to tutoring.

29. In Hari Nath v. State of U.P. 1988 Cr.L.J. 422, it was held by the Hon'ble Supreme Court that in a case where eye witnesses did not know the appellant before the occurrence, identification of the accused for the first time in the dock after a long lapse of time, would have been improper. The following passage from Halsbury's Law of England was recalled: “It is undesirable that witnesses should be asked to identify a defendant for the first time in the dock at his trial; and as a general practice it is preferable that he should have been placed previously on a parade with other persons, so that potential witness can be asked to pick him out.”

30. In Vasu Deo vs. State of Madhya Pradesh, reported at (2005)2MPJR372, it was held that if there is doubt in respect to identity of accused persons then benefit of reasonable doubt shall be given in favor of accused persons.

31. In view of the above judicial precedents, we are of the view that the identity of the respondent has not been proved. Hence the argument raised by the learned counsel for the State with regard to invoking of section 377 of IPC cannot be sustained.

32. It is well settled that the High Court interferes in an order of acquittal when there are substantial and compelling reasons or there is grave miscarriage of justice. What are substantial and compelling reasons were enumerated by the Supreme Court in Chandrappa & Others v. State of Karnataka,: (2007) 4 SCC 415 as follows: -

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:

(i) The trial court's conclusion with regard to the facts is palpably wrong;

(ii) The trial court's decision was based on an erroneous view of law;

(iii) The trial court's judgment is likely to result in "grave miscarriage of justice";

(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

(v) The trial court's judgment was manifestly unjust and unreasonable;

(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the Ballistic expert, etc.

(vii) This list is intended to be illustrative, not exhaustive.

2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.

3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.

33. For the reasons stated above we do not find any substantial and compelling reasons to interfere in the order of acquittal. Even if two views are possible, it is not permissible for this court to interfere in the order of acquittal. The court must take into account the presumption of innocence of the accused and the acquittal by trial court adds to the presumption of his innocence. Since there is no infirmity in the judgment under appeal, the appeal is without any merit and the same is dismissed.

SANGITA DHINGRA SEHGAL, J. G. S. SISTANI, J. 18th MARCH, 2015 gr