State of Maharashtra v. Nakul Trimbak Bhangare & Ors.

14 The evidence of the prosecutrix /PW[5] then shows that, at about 1.00 a.m., fifteen persons came. The girls from Vartha family raised shouts and somebody was throwing / pelting stones. She woke up by the shouts and saw about ten persons standing near her while five persons near Shri. Narendra Shet. Those persons started beating Narendra Shet and her husband. Since avk 9/28 they were beating her husband, she stood in between her husband and those persons. Narendra Shet and her husband then ran away after getting opportunity. Those persons then caught her. They also ensured that the persons from Vartha family should be made to run away before her husband and Narendra Shet ran away. Those persons had started pelting stones towards the tamarind tree because of which Vartha family people ran away.

15 Deposing further, she stated that, after her husband and Narendra Shet had gone / ran away, those culprits took her to a mango tree, removed her clothes and forcibly laid her on the ground. One of them took hold of her hands, other one of her head, the third one of her legs and ensured that she became immobile. The fourth person then committed rape. It is her further evidence that all the four accused then forcibly committed sexual intercourse with her, one after another. Thereafter, she became unconscious. avk 10/28

16 Her evidence then shows that she regained consciousness at about 6 to 7 a.m. and found her person covered with a chaddar and her husband and Narendra Shet were standing beside her.

17 According to her, from amongst those who committed illicit work, one was Prashant Bhanushali (A-4) and other was his brother (A-2). They used to come in wadi (farm) and therefore, she knew them before hand. The culprits were calling the third person as Surya. They were so calling when the culprits were taking her from near the bore room to the tree. She had seen said Surya in the light which was burning just outside the door of the bore room. She had seen Prashant Bhanushali (A-4) and his brother (A-2) in the burning electricity light at the boring room. She expressed her inability to tell the name of the fourth accused person but identified him by pointing finger at Nakul Trambak Bhangare (A-1) and stated that he was the fourth culprit. She also identified rest of the accused before the court. avk 11/28

18 Lastly, her evidence shows that she was carried from the tree to the other farm by her husband along with Narendra Shet. She took bath and rest for about four to five hours. In the evening, at about 7 to 8 p.m., she and her husband went to Wadi Police Station and lodged the report. She then proved the report at 19 If the substantive evidence of the prosecutrix/PW[5] is juxtaposed to the contents of the FIR, then the inconsistencies and infirmities galore. To begin with, the semblance from the substantive evidence of the prosecutrix/PW[5] is that she was atleast knowing A-2 and A-4, as according to her they used to come to wadi (farm). Disturbingly enough, if the FIR is read carefully, then it would be seen that nowhere she has revealed that she was knowing A-2 and A-4 from any point of time. Rather, it would be seen that it was Narendra Shet (PW[6]) who revealed names of A-2, A-4 and A-3. Now, as far as A-3 is concerned, according to the prosecutrix / PW[5], the culprits were calling the third person as “Surya Surya” and therefore, she could know that avk 12/28 one of them was Surya. But then, again this material fact is conspicuously absent in the FIR.

20 Next important and tangible aspect emerging from the testimony of the prosecutrix / PW[5] is that she was able to see all these accused in the light of a bulb, but again the prosecution has not come out with such a specific case in the FIR. It is quite apparent from the bare reading of the FIR that the prosecutrix / PW[5], at the first place, had not noticed the physical features of the accused and, secondly, was also not knowing them either by their face or by their respective names. What is precisely clear from the FIR is that it was PW[6] Narendra Shet who was knowing the accused.

21 But then again there is a serious question in the light of cross-examination where as PW[6] Narendra Shet himself had seen all the appellants/accused, as is claimed by the prosecutrix / PW[5] in her FIR. The prosecutrix / PW[5] in her cross-examination admitted that there is jungle all around Mehta farm. She further avk 13/28 admitted that there were no lights on that day in the open land of compound of Mehta farm. She further admitted that at the time of lodging of complaint, she had not revealed the names of accused persons. From the above sorry state of affairs, it does not take much prescience to note that, not only the prosecutrix / PW[5] was unaware of the accused persons, but the said Mehta Shet also could not have seen them as there was total darkness. How the names of accused find their way to the FIR is quite intriguing, in the light of admission given by the prosecutrix / PW[5] that she had not revealed or disclosed the names of accused at the time of lodging of the FIR. Needless to say, this introduces an element of doubt in her testimony.

22 There are other convincing and discernible reasons as well to cloud the testimony of the prosecutrix / PW[5] with suspicion. The prosecutrix / PW[5] in her cross-examination stated that when she was being dragged up to the mango tree, she was lying on the ground facing sky. She was trying to extricate herself from the clutches of those persons. Her skin was somewhat peeled at the avk 14/28 backside of buttocks and legs due to dragging. She then admitted that blood was coming because of that and that the earth from bore room to the mango tree was stained with blood.

23 If the above piece of evidence is to be believed, then one can imagine the nature of injuries sustained by the prosecutrix /PW[5] because of the dragging, right from the bore room to the mango tree. It may be immediately noted here that before dragging the prosecutrix / PW[5] by those persons up to the mango tree, she was completely undressed and that means she was dragged nakedly throughout, right from the bore room to the mango tree. In her own words, not only there were bleeding injuries on her back, buttocks and legs but also there were trail of bloods from the bore room to the mango tree. We are sheerly disappointed when we do not find medical evidence to that effect. It seriously casts doubt to the version of the prosecutrix/ PW[5]. In her own words, on the next day, she did not go to hospital, and rather, she, her husband and Narendra Shet went to Tansa farm by car. Had there been such serious injuries sustained by her because of the dragging, she avk 15/28 ought to have gone to hospital immediately, or atleast, to the Police station. But nothing of that sort was done. Therefore, the doubt persists.

24 The version of the prosecutrix/PW[5] regarding she suffering bleeding injuries on the back portion of her body, as also trail of blood, spreading right from the place where she was sleeping uptill the mango tree, does not find corroboration from the mouth of PW[7] Nilesh Mainkar, Investigating Officer, and rather, it appears that her lies stood exposed when PW[7] Nilesh Mainkar, Investigating Officer, stated in the cross examination that the prosecutrix/PW[5] did not tell him that she suffered bleeding injuries at the time of the incident. She even did not tell him that the place, where she slept and the place where she was dragged upto, was smeard throughout with blood. He did not collect sample of blood as she had not stated anywhere that blood was oozing from her body. Even the Spot panchnama in this regard i.e. lying of blood from the place where she had slept up to the mango tree is totally silent. avk 16/28

25 In her further cross-examination, she admitted that she had become unconscious while she was being dragged to the mango tree. If she became unconscious during the course of dragging, then there was no occasion for her to see which accused did what. We say so, because in the examination-in-chief she has clearly pointed out the role played by all the accused persons. This is not enough. Quite surprisingly, the examination-in-chief shows that after she was carried, she was made to lie on the ground and one of them took hold of her hands, other her head, the third one of her legs and the fourth one committed rape on her. This is absolutely missing from the complaint, as she herself stated that at the time of dragging itself she became unconscious, and as has already been noted by us, there was no occasion for her to attribute the role played by the accused, there was no reason for her to describe the incident of rape so vividly.

26 In Budhsen and another vs. State of Uttar Pradesh[3], the Hon’ble Apex Court has held that facts which establish the identity of an accused person are relevant under Sec. 9. As a general rule, 3 AIR 1970 SUPREME COURT 1321 (SC) avk 17/28 the substantive evidence of a witness is a statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior test identification, therefore, seems to be to test and strengthen the trustworthiness of that evidence. It is accordingly 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, in the form of earlier identification proceeding. 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. The identification parades belong to the investigation stage. They are generally held during the course of investigation with the primary object of enabling the witnesses to avk 18/28 identify persons concerned in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in Court. Identification proceedings in their legal effect amount simply to this: that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognise as having been concerned in the crime. They do not constitute substantive evidence. These parades are essentially governed by Section 162, Cr.P.C.

27 In Kanan and Others vs. State of Kerala[4] it has been held by the Hon’ble Apex Court that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous Test Identification Parade to test his powers of observations. The idea of holding Test Identification Parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question avk 19/28 of his capability to identify an unknown person whom the witness may have seen only once. If no Test Identification Parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court.

28 In the present case, it appears to us that the investigation has been done in a slipshod manner. We are sorry to note that though the Test Identification Parade was carried out by PW[3] JaiBharat Laxman Mali, Executive Magistrate, but to our dismay, we notice that the informant did not take part in the said Test Identification Parade, for the best reasons known to the investigation machinery. No explanation, much less, the plausible explanation, is forthcoming from the side of the prosecution. We also fail to understand as to why a thought or two was not spared on this count by the Investigating Officer by withholding the prosecutrix /PW[5] and keeping her away from the exercise of Test Identification Parade, prosecution has caused serious damage to its case. avk 20/28

29 In the obtaining situation of the present case, we, therefore, feel that it was incumbent on the prosecution to have arranged the Test Identification Parade and get the identification made, before the prosecutrix/PW[5] was called upon to identify the appellants/accused in the Court. On this ground alone, leaving apart the other very serious infirmities and inconsistencies noted by us during the course of re-appreciation of evidence, the testimony of the prosecutrix/PW[5] becomes unworthy of credence and must be excluded from consideration.

30 Although the prosecution has examined PW[8] Dr.Jamil Shaikh (Exhibit 160) to substantiate that on the day of the alleged incident the prosecutrix/PW[5] was ravished, but as we have noted in the preceding paragraphs as to how the credibility of the prosecutrix/PW[5] is not reliable and, therefore, though the evidence of the Medical Officer suggests that the prosecutrix/PW[5] was subjected to forcible intercourse, the same will not be useful to the prosecution. avk 21/28 31 PW[6] Narendra Mehta is another important witness from the prosecution point of view. He has stated in his evidence (Exhibit

110) that on 17th May 1994, at about 3 p.m., he had gone to his farm house. In the night, he slept in front of the room of the farm house, on a cot. Shabbir (husband of the prosecutrix/PW[5]) and the prosecutrix/PW[5] had slept at some distance. At about 1.00 a.m. of 18th May 1994, twelve to thirteen persons came in the farm house and four to five persons out of them started beating him. Some of them also started beating Shabbir i.e. husband of the prosecutrix/PW[5]. According to him, out of twelve / thirteen persons, A-4, A-2, A-3, A-5 and A-1 were there. He also identified those persons before the court. According to him, A-3 and A-4 reside in front of his farm house, and therefore, he knows them by their names. A-1 resides by the side of Gaurapur and A-5 at Village Gaurapur. It is his further evidence that he and Shabbir then ran away from the farm house. At about 5.00 a.m., both of them returned and found the prosecutrix/PW[5] lying unconscious below a mango tree. She was naked and, therefore, he put a chaddar on her person. On regaining conscious, she told them avk 22/28 that she was raped by accused persons and others. It is his further evidence that he had kept Rs.10,000/- in the farm house room which was stolen. Lastly, he stated that he was called by the police for Test Identification Parade and he identified all the accused.

32 It is also seen from the record that the Test Identification Parade was carried out by PW[3] Jaibharat Laxman Mali, Executive Magistrate (Exhibit 64). It is also seen from his evidence that in the said Test Identification Parade, PW[6] Narendra Mehta identified the accused persons. A moot question before us is that if PW[6] Narendra Mehta was knowing all the accused since beginning of the incident, which is quite clear from his examination-in-chief, then, in our considered opinion, why PW[6] Narendra Mehta was summoned to join the Test Identification Parade, is something which is very baffling. Since all the accused persons were known to PW[6] Narendra Mehta, he could not have attended the Test Identification Parade conducted by the prosecuting agency. Therefore, in such circumstances, the whole avk 23/28 exercise involving PW[6] Narendra Mehta in the Test Identification Parade, appears to us, to be futile.

33 While discussing the evidence of the prosecutrix/PW[5], we have noted with caution from her evidence that at the time of the alleged incident, there was total darkness, and therefore, neither the prosecutrix/PW[5] nor for that matter PW[6] Narendra Mehta, could have been in a position to identify the accused persons.

34 Interestingly, this witness also contradicted the very contents of the FIR when he stated that he does not know whether the prosecutrix/PW[5] was knowing any of the accused persons and then denied that he had told the names of the accused persons to the prosecutrix/PW[5]. On the contrary, the FIR gives a semblance that it was this witness who had revealed the names of accused persons and on the basis of it, the FIR came to be lodged by the prosecutrix/PW[5] against the present appellants/accused and other persons. It is another matter that the prosecutrix/PW[5], in her substantive evidence, has also gone contrary to the contents of the avk 24/28 FIR, which is already discussed by us. Suffice to say, the evidence of this witness takes nowhere the case of the prosecution and as noted, the evidence of this witness cannot be read with a sense of satisfaction.

35 There is one more serious and questionable aspect – delay in lodgment of FIR. In the matter of State of Himachal Pradesh vs. it is held thus in paragraph 18 by the Hon'ble Apex Court:

36 Reverting back to the examination-in-chief of the prosecutrix /PW[5], it is seen that as she did not have strength to move, she went to the police station only in the evening (of 18th May 1994) at about 7.00 p.m., but no such explanation or reason is forthcoming in the FIR. What is explained in the FIR is that as she was frightened, there was delay in lodging the FIR, which is again not substantiated in the substantive evidence. Thus, what is stated in the FIR is not deposed in the substantive evidence and vice versa. On the contrary, in the cross-examination in paragraph 13, she admitted that in the morning, she, her husband and PW[6] Narendra Shet had gone to Tansa farm by a car and she took rest there from morning till evening. If she was not in a position to avk 26/28 move, which is clear from her examination-in-chief and as noted above, then how she went to Tansa is beyond apprehension. It is also not her specific case that her husband and PW[6] Narendra Shet put her in the car and instead of going to the police station, they all thought it proper to go to Tansa farm and take rest.

37 We have very clearly noted the conduct of the prosecutrix/ PW[5] throughout and have suitably put our remarks to that effect. If the conduct of the prosecutrix / PW[5] is anything to go by, then, in all fairness, the delay in lodging the FIR does matter and affect the prosecution case. Delay, certainly, is not in consonance with the natural human conduct. Having regard to the factual scenario and the catastrophe which had befallen to her, it was expected of her to immediately or within a reasonable time approach the police station, but that was not to be. Therefore, there is a blow to the prosecution theory.

38 Evidence of the prosecutrix/PW[5] in a case of offence of rape, as held in the judgments referred supra, does not inspire avk 27/28 confidence, for the reasons enumerated hereinabove. Looking from any angle, the evidence which has been adduced by the prosecution, is not cogent and acceptable, so as to bring home the guilt of the accused. It is settled proposition of law that if the trial court, after careful and cautious consideration of the evidence and material placed on record, has exercised its discretionary power and has acquitted the accused, the Appellate court should be slow in interfering in such orders. Such orders can be interfered or taken exception to, only if there is any illegality or perversity in the findings of judgment of the trial court. On close reading of the impugned judgment, it is neither perverse nor illegal, so interference at our hands is unwarranted.

39 Keeping in view all the above facts and circumstances, the appeal sans merit is liable to be dismissed. Hence, the order: ORDER The appeal is dismissed. (V. G. BISHT, J.) (PRASANNA B. VARALE, J.) avk 28/28 Arti V. Khatate