Vivek Agarwal, J.
1. This Criminal Appeal is filed being aggrieved of the judgment dated 23.12.2024 passed by learned Special Judge (POCSO Act, 2012)/ 3rd Addl. Sessions Judge, Damoh in SCATR No. 87 of 2022, whereby learned trial Court has convicted the present appellant Bhura @ Mohan Singh S/o Angad Singh Lodhi aged about 33 years under Sections 363, 366 of Indian Penal Code, 5(ड )/6 of POCSO Act, 2012 and under Section 3(2)(v) of the SC/ST (Prevention of Atrocities Act, 1989 and has sentenced as under:
| Conviction | Sentence | |||
| Section | Act | Imprisonment | Fine if deposited | Imprisonment in lieu of fine |
| 363 | IPC | R.I. for 03 years | Rs.1000/- | R.I. for 01 month |
| 366 | IPC | R.I. for 07 years | Rs.1000/- | R.I for 01 months |
| 376(क) (ख) | IPC | No separate sentence has been awarded. | ||
| 5(ड) read with Section 6 | POCSO Act, | R.I. for Life | Rs.5,000/- | R.I. for 06 months |
| 3(2)(v) | SC/ST (PoA) Act, 1989 | R.I. for life | Rs.5000/- | R.I. for 06 months |
3. On the basis of said narration, Crime No. 106 of 2022 was registered against unknown person under Section 363, 376 & 376A, B of IPC and Section 3, 4, 5m, & 6 of POCSO Act, 2012. Matter was investigated. Statements of the victim were recorded under Section 161 Cr.P.C. She was subjected to MLC then her statements under Section 164 Cr.P.C. were recorded. Upon completion of investigation, charge- sheet was filed under Section 363, 376, 376DB, 506 IPC, under Section 3, 4, 5M, 6 & 5(g)(झ ) of POCSO Act, 2012 so also under Section 3(1) (w)(i), 3(1)(w)(ii), 3(2)(v) and 3(2)(va) of SC/ST (Prevention of Atrocities) Act, 1989. Appellant abjured his guilt. Co-accused died during trial, but appellant has been convicted as above.
4. Learned counsel for the appellant submits that Test Identification Parade (TIP) is negative qua the present appellant. It is pointed out that in Ex.P-6 which is Test Identification Parade (TIP) pertaining to present appellant Bhura @ Mohan Singh, in Column 11, it is mentioned that juvenile victim had not identified the accused i.e. present appellant. This TIP was carried out by PW-1 but it was subjected by concerned Niab Tehsildar namely Ms. Ranjana Yadav (PW-17) who even did not deem it proper to refer to Ex.P-6. She only exhibited Ex.P-5 which is TIP in relation to the co-accused (Now deceased).
5. It is further submitted that in the statement of the victim (PW- 1) recorded under Section 164 Cr.P.C. (Ex.P-1) which were recorded on 28.03.2022, victim stated that the boy who had violated her privacy was seen by her on 23.03.2022 when she was returning home after appearing in a paper at Bichhiya Colony and if she will see that boy again, she will be able to identify him. Later on in her statements again recorded under Section 164 Cr.P.C. on 05.05.2022, contained in Ex.P-2, victim stated that Bhura Lodhi had picked her up and had taken her behind Manoranjan Bhawan, where her privacy was violated. She further stated that, accused was working on the Harvester Machine at her village and used to visit their shop also. Thus, it is pointed out that, again after stating in Ex.P-2 on 05.05.2022 that if she happens to meet the accused then she will be able to identify him but there is no identification as is evident from Ex.P-6. Even identification of Hallam @ Hanumat @ Bajrang is also as contained in Ex.P-5 is incorrect.
6. Thereafter, it is mentioned that, even the DNA Report (Ex.P- 58A) reveals that the soil (Ex.-A) recovered from the place of incident revealed 'Y' DNA Profile but it is different from the 'Y' DNA Profile obtained from the blood samples of accused Hallan @ Hanumat Choudhary and Bhura @ Mohan Lodhi. Similarly, it is mentioned that the 'Y' DNA Profile as was obtained from the laggie (Ex.-E) of the victim did not match with the blood sample of appellant Bhura @ Mohan Lodhi so also that of Hallan @ Hanumat Choudhary.
7. Thus, it is submitted that, mere finding of the Doctor that victim was bleeding per vagina and it was a case of penetrative sexual assault, in absence of identification and also in absence of matching of DNA Profile, it is a clear case of false implication on the part of the prosecution and trial Court has failed to appreciate this aspect, despite specific denial by the appellant & statement that he was falsely implicated. Therefore, it is prayed that the appellant be acquitted from the charges levelled against him.
8. Ms. Sweta Yadav, learned Dy. Advocate General in her turn submits that in para-76 of the impugned judgment it is mentioned that, when the accused was presented through Video Conferencing then victim (PW-1) had identified him. She had given his name as Bhura Lodhi.
9. After hearing learned counsel for the parties and going through the records. It is mentioned that in the identification memo (Ex.P-5) dated 03.04.2022 [which in our opinion is wrongly mentioned and actually it appears to be 13.04.2022 as is evident from the date on memo (Ex.P-5)] victim stated that she had signed from 'A' to 'A' part. The then SDOP Ashok Chaurasia (PW-5) gave the chronology that how he had written a letter to the Executive Magistrate on 18.05.2022 and thereafter, Executive Magistrate was given another letter (Ex.P-58-A) and victim had identified the appellant, is factually incorrect and reflects gross indifference on the part of the learned Presiding Officer manning the post of Special Judge (POCSO Act), because these facts are contrary to the record, in Ex.P-6 which is pertaining to Bhura @ Mohan in column 11 it is mentioned that "juvenile victim did not identify the accused". Thereafter, in column 12 it is mentioned as under:
“IMAGE” (Note: Though names of the victim and her mother are mentioned but with a view to protect their identity, they are depicted as ).
10. The Executive Magistrate has put his signatures and it is categorically mentioned that "Juvenile had not identified the accused". Therefore, in para 76 of the impugned judgment, learned trial Court making a mention of incorrect facts, reflects poor intellectual capacity, because what is mentioned in paragraph 76 of the impugned judgment and which we deem it as part of our duty to reproduce for ready reference and is reproduced as under:
“IMAGE”
11. This fact is contrary to the report (Ex.P-6). Even Exhibits Numbers have been wrongly mentioned. Ex.P-58 is a letter for identification of the accused but Ex.P58-A is the DNA report issued by the Forensic Science Laboratory, Bhopal dated 28.07.2022. In fact the letter sent by the SDOP to the concerned SDM is Ex.P-58 and not Ex.P58-A. Therefore, recording incorrect facts, incorrect findings have recorded which cannot be sustained in the eyes of law.
12. In fact, when evidence of victim (PW-1) was recorded before the trial Court on 20.07.2022 then in para-1 she stated that, the person with black color shirt is known to her and his name is Bhura Lodhi, but this Dock Identification after four months of the incident is of no relevance and learned trial Judge has failed to make it clear in Para-76 of the impugned judgment that it was not the TIP but Dock Identification in which victim had identified Bhura, and that Dock Identification after completion of TIP and availability of the accused before the trial Court through video conferencing even on 08.07.2022 as is mentioned by the learned 3rd Addl. Sessions Judge, there was no justification left in relying on the so called Dock Identification carried out by the victim on 20.07.2022 when appellant was already shown to her on 08.07.2022.
13. It has also come on record that in Ex.P-8 which are script statements of the victim which were recorded on 27.03.2022 wherein victim stated that the person who had abducted her was wearing white T- shirt and black pant. He had a long face and slight beard and mustache. She had seen that boy and then she states that the photographs which were shown on the mobile was of the concerned boy then the victim replied in 'Yes' and then further stated that the name of the person whose photograph was shown to her was Hallan and Hanumat.
14. Thereafter, another script statement was recorded on 05.05.2022 wherein she named the present appellant Bhura Lodhi but after having said that there was another boy present she stated that she had not seen as to who had violated her privacy. When she was asked that Police had shown her photographs at the hospital and asked the victim that she had identified them, then she replied in affirmative. Thereafter, she stated that she had identified Hallan of Bichhiya Colony, thereafter, she was asked that when she had identified one of the boys then why she has not stated that there was another boy at the time of the incident then victim replied that she was not keeping good health, then she admitted that she had informed her father about another boy, when they were coming to the hospital. Thereafter, she stated that the name of another boy was informed to her by her father. Her father had given her name of that boy as Bhura Lodhi and then she stated that she will identify both the boys. But the fact of the matter is that after having so many opportunities, firstly victim did not identified the present appellant Bhura Lodhi in the TIP conducted vide Ex.P-6 secondly name of Bhura Lodhi was given to her by her father and then there is material variation in script statement (Ex.P-8) taken on 27.03.2022, where she stated that she had identified the person shown in the photographs on Mobile as Hallan, whereas in subsequent statement recorded on 05.05.2022 she stated that it was Bhura who had violated her privacy, whereas she admitted that name of second boy was informed by her father while she was being taken to the Hospital.
15. In the case of Mulla Vs. State of Uttar Pradesh (2010)3 SCC 508, it is held that "The identification parades are not primarily meant for the Court. They are meant for investigation purposes. The object of conducting a test identification parade is two- fold. First is to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. Therefore, the following principles regarding identification parade emerge:
(1) an identification parade ideally must be conducted as soon as possible to avoid any mistake on the part of witnesses;
(2) this condition can be revoked if proper explanation justifying the delay is provided; and,
(3) the authorities must make sure that the delay does not result in exposure of the accused which may lead to mistakes on the part of the witnesses."
16. In the case of Rambabu Vs. State of Uttar Pradesh (2010)5 SCC 63 (Para 14) it is held that "Identification Parade belongs to investigation stage and if adequate precautions are ensured, the evidence with regard to test identification parade may be used by the court for the purpose of corroboration. The purpose of test identification parade is to test and strengthen trustworthiness of the substantive evidence of a witness in court. It is for that reason that test identification parade is held under the supervision of a magistrate to eliminate any suspicion or unfairness and to reduce the chances of testimonial error as the Magistrate is expected to take all possible precautions.
17. But in the present case, learned trial Court misunderstood the Dock Identification with test identification parade while recording facts in para-76 of the impugned judgment. That confusion being contrary to the record, and there being proper test identification parade in which victim had not identified the appellant, coupled with the facts that she admits that name of Bhura Lodhi was given to her by her father and there being negative DNA reporting qua the present appellant Bhura @ Mohan Singh are important facts to be taken into consideration.
18. MLC of the victim is available on record as Ex.P-27. It was carried out on 24.03.2022, wherein her hymen was found to be torn, vaginal slide etc. were prepared. But no where it is mentioned that violators of her privacy were Bhura and Hanmat, contrary to her statement as contained in Ex.P-10 that her father had already informed her about the name of Bhura and Hanmat. This MLC was carried out at 10:00 a.m. whereas FIR was lodged on 24.03.2022 at 09:31 a.m. against unknown persons.
19. In the FIR (Ex.P-29) time of incident is mentioned as between 03:00 a.m. to 04:30 a.m. and information was received at Police Station at 08:40 a.m. In the FIR (Ex.P-29) itself it is mentioned that victim was taken to the Jabera Hospital from where she was referred to the District Hospital, Damoh and victim shall identify the accused on meeting. When this FIR is read in conjunction with MLC at District Hospital, Damoh and there is no prescription from Jabera, then it is evident that the victim had already informed about the presence of two persons and her father had already given her names of both the accused persons yet the FIR has been lodged against an unknown person.
20. Admittedly, there is no identification of the accused. TIP was delayed for about 02 months and thirdly even the DNA Report (Ex.P- 58A) is negative qua the present appellant, therefore, conviction being based on recording of incorrect facts and in para-76 of the impugned judgment there being reference to only Ex.P-5 & Ex.P-6 in pursuance of communication (Ex.P-58) which was carried out on 20.05.2022 has wrongly mentioned the findings contrary to the record, in our opinion, impugned judgment of conviction being based on incorrect mentioning of facts and incorrect appreciation of evidence needs to be and is hereby discarded.
21. In view of the aforesaid enunciation of facts and circumstances of the case, impugned judgment of conviction cannot be maintained and is accordingly set aside.
22. Accordingly, this appeal is allowed. Impugned judgment of conviction and order of sentence is hereby set aside and the appellant is acquitted of all the charges.
23. Appellant is in jail, he be released immediately, if not required in any other case.
24. Record of the trial Court be sent back immediately.