ORAL JUDGMENT

1. The present application is filed at the instance of the original accused, under section 397 read with section 401 of the Code of Criminal Procedure, 1973, against the judgment and order dated 17th January, 2019, passed by the learned Addl. Sessions Judge, Rajkot at Jetpur in Criminal Appeal no.11 of 2014 and the judgment and order dated 23rd July, 2014, passed by the learned Judicial Magistrate First Class, Jetpur, District Rajkot, in Criminal Case no.360 of 2009. By the said impugned judgment and order, the learned Sessions Judge, has, though reduced the sentence of two years rigorous imprisonment to one year simple imprisonment however has confirmed the conviction of the present applicant, under section 354 read with section 114 of Indian Penal Code. At the same time, the learned Sessions Judge has enhanced the amount of fine, as awarded by the learned Magistrate from Rs.1,000/- to be deposited by each applicant to Rs.10,000/- each. Hence, the present application, at the instance of the original accused.

2. Considering the grounds raised in the revision application, and upon hearing the learned advocate for the applicant, the learned Single Judge of this Court, vide an oral order dated 24th January, 2019, had admitted the revision application and has granted interim relief in terms of Para-7C, thereby staying the implementation, execution and operation of the aforesaid impugned orders of conviction and sentence, pending hearing and final disposal of this revision application.

3. The matter was notified for final hearing under special assignment of old matters, and the registry was directed to call for record and proceedings of the criminal case as well as criminal appeal from the concerned Court. With the able assistance of learned advocates on record, the matter was peremptorily heard.

4. Mr. Rutvij S. Oza, learned advocate has appeared with Mr. Umang R. Vyas, learned advocate for the applicants, and has assailed the impugned judgment and order of conviction passed by the Courts below.

4.1 It was submitted that there are material contradictions about the identity of the accused, indisputably, the accused were not known to the complainant. Admittedly, the test identification parade has not been carried- out by the Investigating Officer. It was also pointed-out that there was delay in lodging of the FIR, in as much as the incident took place on 27th December, 2008, at around 8:00 a.m., whereas the FIR was registered on the same day, but around 15:40 hours. It was further pointed-out that though test identification parade the original complaint was lodged by the victim herself, however, it has transpired in the evidence that such complaint was actually narrated by the father of the victim. It was therefore submitted that the correct facts have not been brought on record, which has led to great injustice to the applicants.

4.2 The attention of this Court was invited to the place of incident as alleged in the complaint and the Panchnama drawn. It is apparent from the appreciation of the aforesaid evidence that the incident has taken place hardly 1500 meters away from Gaushala. The defense counsel has been successful in bringing on record the fact that, on the opposite side of the river, there are residential houses and the bus stop is also located nearby. In such circumstances, the Courts below ought to have appreciated the fact that except for the evidence of two victims, and the father and mother of the victim being examined as witnesses, no independent witnesses have been examined by the prosecution.

Considering the material contradictions brought on record by the defense counsel in their cross-examination with regard to the place of incident alleged, the manner in which incident had taken place, the involvement of the accused were required to be verified by seeking higher standard of proof. In absence of any test identification parade being carri