The importance of victim testimony, identification of accused, and the relevance of Test Identification Parade in criminal cases.

JUDGMENT

Mukta Gupta, J.

1. By these three appeals, the three appellants Ramjan @ Pagla, Nasiruddin @ Boba and Sheikh Jahangir challenge the impugned judgment dated 10th December, 2019 convicting them for offences punishable under Sections 458/34 and 376(2)(g) IPC and appellant Nasiruddin @ Boba and Sheikh Jahangir having been convicted for offence punishable under Section 395 IPC and appellant Ramjan @ Pagla having been convicted for offence punishable under Section 397 IPC. Challenge is also laid to the order on sentence dated 12th December, 2019 whereby the appellants were directed to undergo 7 years rigorous imprisonment and a fine of Rs.10,000/- each for offence punishable under Section 458/34 IPC, rigorous imprisonment for a period of 10 years and a fine of Rs.20,000/- each for offence punishable under Section 376(2)(g) IPC. Nasiruddin @ Boba and Sheikh Jahangir were directed to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs.10,000/- each for offence punishable under Section 395/34 IPC and appellant Ramjan @ Pagla was directed to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.15,000/- for offence punishable under Section 397 IPC. Sentences were directed to run concurrently and benefit of Section 428 was also granted.

2. Besides the three appellants one Shah Alam was also convicted by the impugned judgment for offences punishable under Section 458/34 and 376(2)(g) IPC as also offence punishable under Section 395 IPC. Vide the order dated 9th July, 2021 in CRL.A. 399/2020 this Court directed the Registry to trace the appeal filed by Shah Alam. However, it was reported that no appeal was filed by Shah Alam. Thus, though vide the impugned judgment of conviction four accused were convicted, however the appeals have been filed by the three appellants herein.

3. Briefly case of the prosecution is that on the intervening night of 1st & 2nd May, 2010 at about 3.30 AM when the prosecutrix was sleeping in her house along with her son aged 12 years and daughter aged 10 years, four boys aged about 20 years entered her bedroom. One of the boys put knife on her neck while the other boy put knife on the neck of her son and daughter and thereafter took cash, gold, silver jewellery and other documents. It is further alleged that three of the boys, who were later identified were Sheikh Jahangir, Shal Alam and Nasiruddin, took her to another room and the fourth boy i.e. Ramjan put knife on neck of her son whereafter three boys committed rape upon her. At around 3.30 AM the prosecutrix informed her tenant that her house on the ground floor has been ransacked, who in turn informed the Police resulting in the registration of FIR No. 153/2010 at PS Jahangirpuri for offences punishable under Section 458/392/395/397/376(2)(g) IPC and Section 25 Arms Act.

4. In her subsequent statement the prosecutrix also stated that a fifth person who was aged around 16 to 17 years was standing outside the door who was later identified as one `SS' and on whose apprehension on 9th May, 2010 the appellants were arrested on 8th June, 2010; 12th June, 2010 and 31st August, 2010 respectively. Co-convict Shah Alam was arrested on 8th October, 2010 in another case after he was declared a proclaimed offender in this FIR. The appellants herein refused to undergo the Test Identification Parade on 11th June, 2010, 25th June, 2010 and 1st September, 2010 where after the prosecutrix identified them in the Police Station.

5. Learned counsel for the appellant Sheikh Jahangir who has opened the arguments contends that though the claim of the prosecution is that on the underwear of the prosecutrix semen stains were found, however the same did not tally with any of the accused. The finger prints recovered from the spot did not tally with that of the appellants. No proper investigation was carried out by collecting the CCTV footages from the vicinity or tracing the location of the appellants at the relevant time. Despite the