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HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
MICHAEL ZOTHANKHUMA, SANJEEV KUMAR SHARMA, JJ.
Sukur Ali And Anr S/o Md. Kasem Ali - Appellant
Vs.
The State Of Assam Represented By PP Assam - Respondent
Crl.A. No. 60 of 2022
Decided On : 25-05-2026
(A) Protection of Children from Sexual Offences Act, 2012 - Section 6 and Section 29 - Penal Code, 1860 - Section 376D and 120(B) - Code of Criminal Procedure - Section 313 and 164 - Evidence Act, 1872 - Section 9.
(B) Test Identification Parade - Necessity and evidentiary value - When the identity of the accused is unknown during investigation, holding a Test Identification Parade is a rule of prudence to ensure the veracity of witness testimony; failure to conduct such a procedure risks the credibility of subsequent court identification. (Paras 59-60)
(C) Dock Identification - Identification for the first time in court without a prior Test Identification Parade or where the identification procedure was tainted by prior exposure under police influence, is inherently of a weak character and generally insufficient to sustain conviction. (Paras 62, 64)
(D) Presumption of Guilt - The statutory presumption regarding the commission of an offense only arises after the prosecution establishes the foundational facts of the crime, including the definite identification of the accused as the perpetrators. (Paras 67-68)
Facts of the case:
Two appellants were convicted for the offense of gang rape and sentenced to rigorous imprisonment. The prosecution alleged that a minor was abducted and raped in a building at night. The defense challenged the identification of the accused, arguing that no formal identification parade was conducted, and the victim had identified the accused at the police station under the direction of law enforcement authorities after the event.
Findings of Court:
The court determined that the evidence regarding identity was unreliable as the victim had no prior acquaintance with the accused and the incident occurred in darkness. The court observed that the identification was severely compromised by the procedural failure of the investigation to conduct a robust identification process, rendering subsequent dock identification unreliable.
Issues: Whether the identification of the accused in the absence of a formal Test Identification Parade, coupled with evidence of prior exposure at a police station, constitutes sufficient basis for conviction.
Ratio Decidendi: The court held that in cases where the accused are strangers and the opportunity to observe features is limited by environmental conditions like darkness, a formal identification parade is essential. Because the investigation failed to establish the foundational identity of the perpetrators through a reliable process, the prosecution failed to prove its case, precluding the application of the statutory presumption of guilt.
Result: Appeal allowed; conviction and sentence set aside.
| Table of Content |
|---|
| 1. procedural overview of conviction under pocso and ipc. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. evaluation of evidentiary reliability and witness testimony contradictions. (Para 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56) |
| 3. necessity and evidentiary impact of test identification parades (tip). (Para 57 , 58 , 59 , 60 , 61 , 62) |
| 4. reliability of victim identification in absence of prior identification or light. (Para 63 , 64 , 65 , 66) |
| 5. application of pocso section 29 presumption requires establishing foundational facts. (Para 67 , 68 , 69) |
| 6. acquittal due to failure to prove foundational identity facts. (Para 70 , 71 , 72) |
JUDGMENT & ORDER :
(Sanjeev Kumar Sharma, J.)
Heard Mr. A. Ahmed, learned counsel for the appellant. Also heard Ms. A. Begum, learned Addl. Public Prosecutor, for the State respondent. None appears for the respondent No. 2.
2. This appeal has been preferred against the impugned Judgment and Order dated 11.03.2022 passed by the learned Special Jude (POCSO) Kokrajhar in Special Case No. 08/2018 convicting the appellants, namely, 1. Sukur Ali 2. Najir Hussain, under Section 6 of the POCSO Act and under Section 376 D of IPC and sentencing them to undergo rigorous imprisonment for 20 years each with further sentence to pay a fine of Rs. 50000/- each in default to undergo further imprisonment for 2 years.
3. The facts leading to the present case is that one xxx, father of the victim lodged an FIR at Patgaon O.P, alleging that while his daughter had gone to bring her younger brother from the house of her maternal grandmother, accused (declared as CCL), Sukur Ali and Atowar Rahman (declared absconder) dragged his daughter to the Samabay Samiti Office and raped her one by one. She was found in a unconscious state in Samabay Samiti Office.
4. On receipt of the FIR, a case under Section 120(B)/376(g) of IPC, read with Section 4 of POCSO Act was registered and after completion of the investigation, a charge sheet was laid against the accused persons A1 A2, CCL and one Atowar Rahman for commission of offence under Section 120 (B)/376(g) of , R/W Sec.4 of . Atowar Rahman was chargesheeted as absconder and since his presence could not be secured despite coercive processes, he was declared as absconder. In the course of inquiry, one xxx (named withheld) was found to be a child in conflict with law and hence the case against was made over to Juvenile Justice Board, Kokrajhar.
5. Upon hearing both sides, charge under Section 376D of IPC, read with Section 6 of POCSO Act were framed against the accused persons Al and A2 (present appellants) to which they pleaded not guilty and claimed trial.
6. In the course of trial, prosecution examined 16 (sixteen) witnesses. At the closure of prosecution evidence, the accused persons were examined under Section 313 of the Cr.P.C. The defence plea is of total denial and the accused persons declined to adduce any evidence.
7. At this stage, the evidence of the case may be discussed.
8. PW-1 xxx, victim's mother deposed that her son, aged about 2 years, had gone to the house of her mother located near her house. At about 6-30 PM, she asked her daughter xxx, the victim, aged about 13 years, to bring her son. She went to bring her son but did not return. After a while, they started searching for the victim. They found her at about 1-30 AM (night) in the office of Co- operative Society. Her body was covered with a plastic paper. She was unconscious. They brought her home and after pouring some water on her face, she regained her senses. She told them that one of the accused dragged her and committed rape on her. Later, that accused brought the other two accused person and then the other two accused also committed rape on her. After hearing this, in the morning hours, they took their daughter to Jh
The court ruled that proper identification of the accused is essential for conviction, especially when the victim does not know the accused beforehand.
The prosecution's case can be established through circumstantial evidence and witness demeanor despite inconsistencies in testimonies regarding identification, affirming the conviction under relevant....
Where a victim identifies an assailant and the court is satisfied with a child witness's competency through direct assessment, the absence of a test identification parade or formal voir dire does not....
In cases of rape, inconsistencies and lack of corroborative evidence, particularly regarding victim identification and age, undermine prosecution's case, necessitating acquittal.
The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and is entitled to great weight. The delay in the test identification parade was not fatal to t....
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