IMPORTANT POINT
Neither prosecution Court should remain a silent spectator in such situations where a witness gives wrong evidence.

JUDGMENT

Fakkir Mohamed Ibrahim Kalifulla, J.

1. Leave granted.

2. This appeal is directed against the order of the High Court of Cuttack in Criminal Miscellaneous Case No.1746 of 2011 dated 05.01.2012. The informant is the appellant before us. The informant is stated to be a Catholic Nun and according to her she was brutally assaulted, molested and also gang raped by the assailants who have been arrayed as accused in the session’s case which is being tried by the District & Sessions Judge in S.T. No.243 of 2010.

3. Briefly noting the contents in the charge-sheet, we find that one Swamy Laxmananda Saraswati was killed in Kandhamal District, which led to a communal violence in the entire district. The appellant and another Jesuit father by name Thomas Chellan and some others who were residents of Jesuit Home called ‘Divyajyoti Pastoral Centre’, Kanjamendi of district Kandhamal, fearing attack by the unruly mob took shelter in the house of one Prahallad Pradhan of village Kanjamendi on 24.08.2008.

4. On 25.08.2008, according to the appellant, around 1 p.m. a mob of about 40 to 50 persons came to the residence of the said Prahallad Pradhan, dragged her and other priests to the road while some of the members of the mob molested her and also brutally assaulted her. The appellant was stated to have been dragged to a nearby building called ‘Jana Vikash’ where the 8th accused, respondent No.9 herein, alleged to have raped her while the other accused aided for the commission of the said offence apart from molesting her.

5. The appellant was stated to have been subsequently handed over to the Block Development Officer of K. Nuagaon who in turn produced the appellant and the Jesuit father Chellan to the Inspector In-charge of Baliguda Police Station for necessary action. Thereafter, the appellant filed her complaint on 26.08.2008, whereafter she was medically examined at Baliguda Sub-Divisional Hospital and that her wearing apparels were sealed and sent to State FSL, Bhubneswar along with the exhibits collected by the medical officer. Those materials were stated to have been subsequently sent to CFSL Kolkata for DNA Profiling Test.

6. Appellant in her complaint stated that she would be in a position to identify the assailants though she was not knowing their names.

7. The issue with which we are now concerned relates to an alleged incorrect version stated by PW-18 before whom the Test Identification Parade was held on 05.01.2009. PW-18 was the Sub-Divisional Judicial Magistrate, Cuttack on that date. In the course of examination of PW-18, the prescribed format of Schedule XLVII of Cr.P.C. along with the proceedings recorded by him were marked as Exhibit-8. The signatures of the witnesses were marked as Exhibits-8/1 to 8/5. The description of test identification parade, conducted by him, was marked as Exhibit- 8/6.

8. It was pointed out by Mr. Colin Gonsalves, learned senior counsel appearing for the appellant, that in Exhibit-8 either in the note or in the various columns of the format or in the proceedings recorded by PW-18 on 05.01.2009, there was no reference to any statement made by the appellant as regards the behaviour of respondent No.9 except mere identification of the suspects, namely, respondents No.3 and 9 and wrong identification of an under trial prisoner by name Santosh Kumar Swain. The learned senior counsel then brought to our notice a specific statement made by PW-18 in the course of the chief-examination which reads as under:

“Sister Mina Baruwa identified accused Santosh Patnaik as the said suspect gave her a slap, pulled her wearing Saree, squeezed her breasts and did not commit any other overt act.”

9. The grievance of the appellant is that while such an incorrect version was spoken to by PW-18 as an authorized officer who conducted the test identification parade, there was not even a suggestion put to PW-18 by the prosecution and thereby the said statement remained uncontroverted in so far as it related to the evidenc