Dhanraj vs State of Rajasthan

323 of IPC – The said judgment of conviction and sentence was assailed by the accused-appellant before the High Court, which was rejected by the Division Bench – Correctness: Held: There are significant omissions in the contents of FIR – The FIR neither discloses the identity of the accused nor does it refer to any particular features of the accused which could have assisted the victim to identify the accused in the TIP – The identity of assailant was admittedly not known at the time when the FIR was lodged – The two witnesses, PW-4 and PW-5 who first came into contact with the victim after she had been assaulted, did not support the prosecution case and were declared hostile –The Investigating Officer (PW-8) admitted that the complaints were made on behalf of the accused and his family members regarding false implication of the accused, but he did not make any inquiry into such complaints – Once such complaints were admittedly received during the course of investigation, the Investigating Officer was expected to undertake at least some verification before completely discarding the same – A sketch was prepared for the purpose of identifying the accused, however, the said sketch was not available with PW-8 and had not been produced before the trial Court – Hence, it is safe to conclude that the Investigating Officer had no reliable evidence which could point the finger of suspicion towards the accused-appellant as being the perpetrator of the crime – PW-7-Doctor, examined the victim two days after the incident and stated that she noticed a wound admeasuring one inch starting from the perianal region and extending till the vagina, from which foul-smelling pus was oozing and maggots were also present – The Doctor gave a pertinent opinion that these injuries were between 5 to 7 days old – The prosecution’s own theory, the age of the injuries does not match with the time and date of the incident as alleged in the FIR and in the deposition of the prosecution witnesses – The prosecution did not lead any corroborative scientific evidence in the form of any serological report, DNA profiling or any other forensic evidence which could corroborate the testimony of the child victim – The victim (PW-2) in her examination-in-chief stated that she knew the accused and that his name – However, in her cross-examination, she categorically admitted that the police had told her the name of the accused – The prosecution failed to lead substantive evidence establishing that the person standing trial was indeed the person whom the victim claimed to have seen – Further, no effort was made to have the accused-appellant identified by the victim during her deposition, so as to confirm the fact that the person standing trial was indeed the assailant – The deficiencies noted above go to the root of the matter – The fatal flaw on the aspect of identification cannot be cured at this belated stage – The trial Court as well as the High Court fell in grave error in convicting and affirming the conviction of the accused-appellant – The appellant is acquitted of the charges. [Paras 25, 26, 28, 29, 31-35, 39, 44, 48, 56, 57, 59] Evidence – Test Identification Parade – Substantive evidence – Identity of accused person:

Held: Law is well-settled by a catena of decisions of this Court that the substantive evidence for establishing the identity would be that of identification of the accused by the witness in the Court and test identification proceedings conducted during investigation are merely corroborative in nature – TIP is intended to test the memory and capacity of a witness to identify a person whom the witness claims to have seen during the occurrence and to lend corroboration to the identification subsequently made before the Court – The test identification proceedings undertaken during investigation cannot be treated as substantive proof of identity – Substantive proof would be the identification of the accused by the witnesses while testifying on oath or dock identification in common parlance. [Paras 41, 43]