IMPORTANT POINTS
1. 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.
2. In rape case if the prosecutrix is believed to be truthful witness, in her deposition, in further corroboration may be insisted.
3. Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution s case doubtful.

Headnote:Indian Penal Code, 1860-Section 376(2)(g) and 323-Gang rape-Appeal against acquitted-Accused respondents name not known to prosecutrix-Name not mentioned in FIR-No identification parade conducted - Identification could not be established by prosecutrix at time of trial-No unimpeachable, reliable and satisfactory evidence regarding involvement of accused in question-Acquittal order of High Court could not be interfered with. (Paras 3, 4 & 5)
       (ii) Identification parade-When necessary-Absence of test identification parade when would be fatal.
       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 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. (Para 3)
       In the instant case 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 investing 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 mystry shrouded with doubts which has not been properly and sufficiently explained by the prosecution. The holding of identification parade in the instant case would have been irrelevant, had the name of respondent No. 2 been mentioned in the FIR. The identity of the respondent No. 2 was, admittedly, not established during the investigation and it is not clear as to how the said respondent was put on trial along with respondent No. 1. Therefore, the respondent 2 could not be held guilty as no unimpeachable, reliable and satisfactory evidence was produced regarding his involvement in the commission of the crime. (Paras 3 & 4)
       (iii) Indian Penal Code, 1860-Section 376 and 323-Rape-Appeal against acquittal-High Court s finding that absencer of dead or momito spermatozoa ruled out possibility of prosecutrix having been subjected to sexual intercourse-High Court s conclusion not referable to evidence on record-No medical authority referred to in support of conclusion-Deposition of prosecutrix truthful-No further corroboration could be insited-Injuries on prosecutrix sufficient to land corroboration to testimony of prosecutrix-Salwar of prosecutrix had stains of blood and semen on it-Acquittal order set aside-Trial Court s judgment convicting accused restored.
       The presence of spermatozoa, dead or alive, would differ from person to person and its positive presence depend upon variuos circumstances. Otherwise also the presence or absence of spermatozoa is ascertained for the purposes of corroboration of the statement of the prosecutrix. If the prosecutrix is believed to be truthful witness, in her deposition, in further corroboration may be insisted. (Para 5)
       To hold that the prosecution had not proved the case against the respondent No. 1 also. To hold that the prosecution had not proved the case against the respondent, beyond reasonable doubt, the High Court mainly relied upon the medical evidence and finding that "no dead or alive spermatozoa were seen. Absence of such deed or mobile spermatozoa either in the vagina or in the cervix of the prosecutrix rules out the possibility of the prosecutrix having been subjected to sexual intercourse on the date and time adfeged by the prosecution". Such a conclusion is not referable to any evidence on record. No such suggesstion was put to the doctor nor any medical authority referred to in support of the conclusions arrived at by the High Court. It is not denied that the seized Salwar had stains of blood and semen on it. The mere fact that some different marks were noted on the sealed packet was by itself no ground to discard the otherwise reliable evidence of the prosecutrix. The High Court appears to have completely ignored the medical evidence specifying the injuries on the person of the prosecutrix which proved and established the struggle and resistance shown by her at the time of commission of the offence of rape. These injuries were sufficient to lend corroboration to the testimony of the prosecutrix particularly when no motive is attributed to her for falsely involving the respondent No. 1 in the commission of the crime. The fact that the prosecutrix was a widow of about 55 years of age having two grown up children was a circumstance to be taken note of for the purposes of satisfying the Court that there was no ulterior motive of roping the accused in the commission of crime. The conviction and sentence awarded by the Sessions Judge to respondent No. 1 is upheld. The prosecution has proved its case beyond reasonable doubt the statement of the witnesses and have come to a conclusion that the prosecution had proved its case against the respondent No. 1 beyond all reasonable doubts. (Paras 5 & 11)
       (iv) Criminal trial-Appreciation of evidence-Discrepancy and contradiction-Distinction-Minor discrepancy or variance in evidence would not make prosecution s case doubtful
       Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution s case doubtful. The normal course of the human conduct would be that while narrating a particular incidence there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. (Para 6)
       The Criminal tria cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt or innocence of the accused arraigned. In arriving at a conclusion about the truth, the Courts are required to adopt rational appraoch and judge the evidence by its intrinsic worth and the animus of the witnesses. The hypertechanicalities or figment of imagination should not be allowed to divest the court of its responsibilith of sifting and weighing the evidene to arrive at the conclusion regarding the existence or otherwise of a particular circumstances keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interest of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a Utopian thought but have to be considered as part and parcel of the human civilization and the realities of life. The Courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and the mankind. (Para 9)
       In the instant case one of the discrepancies which persuaded the High Court to disbelieve the prosecution evidence is alleged shifting of the place of occurrence from the main road to 20 feet away from it. The prosecutrix has categorically stated that she was dragged from the road down the path which was about 20 feet away from the road and raped there. The discrepancy or contradiction pointed out is that in the FIR which was submitted in writing and was in English language, the place of occurence was mentioned as road. Such mention was based upon recording of the complaint by Shri S.P. Parmar, Advocate, after hearing the narration of the prosecutrix whom he found at that time to be scared, nervous and hesitant. Such a discrepancy cannot be held to be a major discrepancy amounting to contradiction under the circumstances of this case. (Para 8)

JUDGMENT

Sethi, J.-Leave granted.

2. The prosecutrix, a widow of 55 years of age was criminally assaulted and subjected to forcibel sexual intercourse by the respondents on 10.11.1993 near her village Baadi in Gumanu Nalia District Mandi, Himachal Pradesh when she was coming back to her house after attending the marriage of the daughter of her husband d brother. The First Information Report was submitted by her on the next date against teh 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 to 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 Jugde, Mandi convicted the appellants under Sections 376(2)(g) and 323 of the Indian Penal Code and sentenced them to undego rigorous imprisonment for five years and to pay a fine of Rs. 5,000/- each under Section 376 IPC and six months rigorous imprisonment under Section 323 with fine of Rs. 500/- each. In default of the payment of fine, the appellants were to undergo futhre rigorous imprisonment specified in the judgment. In appeal filed by the appellants the High Court vide order impugned in this appeal set aside the oder of the Sessions Judge and acquitted 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 responden No. 2 has been acquitted by the High Court on the ground that his identify 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 repot lodged with the Superindent 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 investing 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 mystry 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 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 & Anr. v. State of U.P.1 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 consideer

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1999 Supreme(SC) 1301

Cases Referred (12)