Radheshyam and Others Vs State of Chhattisgarh

1 Since these three criminal appeals have arisen out of the same impugned judgment and the question of law and facts also being similar in these appeals, they have been clubbed together, heard together and are being disposed of by this common judgment.

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2 A1 Amir Sai & A4 Vishnath Singh Gond have jointly preferred CRA No.1039/2019, A2 Radheshyam, A3 Shiv Kumar & A6 Motilal have jointly preferred CRA No.1040/2019 and A5 Sukhsai Panika has preferred CRA No.857/2019, under Section 374(2) of the Code of Criminal Procedure, calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 25.03.2019 passed by Special Judge {Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act} Surajpur, Chhattisgarh in Special Case No. 21/2017, whereby these six appellants have been convicted and sentenced in the following manner :-

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Name	Conviction	Sente	nce
A1 Amir Sai	u/s 341/34 IPC	Simple imprison month	ment for 1
	u/s 323/34 IPC	Rigorous Impris 1 month	onment for
	u/s 366/34 IPC	Rigorous Impris 5 years and Rs.500/-, in payment of fine, R.I. for 1 month.	onment for fine of default of additional
	u/s 376(D)	Rigorous Impris	onment for
	IPC	20 years and Rs.1,000/-, in payment of fine, R.I. for 1 month.	fine of default of additional

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		u/s IPC	506	Rigorous 1 month	Impris	onment for
A2	Radheshyam &	u/s IPC	341/34	Simple im month	prison	ment for 1
A3	Shiv Kumar	u/s IPC	366/34	Rigorous 5 years Rs.500/-, payment R.I. for 1	Impris and in of fine, month.	onment for fine of default of additional
		u/s	376(D)	Rigorous	Impris	onment for
		IPC		20 year Rs.1,000 payment R.I. for 1	s and /-, in of fine, month.	fine of default of additional
		u/s IPC	506	Rigorous 1 month	Impris	onment for
A4	Vishnath	u/s	366/34	Rigorous	Impris	onment for
	Singh Gond,	IPC		5 years Rs.500/-,	and in	fine of default of
A5	Sukhsai Panika			payment R.I. for 1	of fine, month.	additional
A6	& Motilal	u/s IPC	376(D)	Rigorous 20 year Rs.1,000 payment R.I. for 1	Impris s and /-, in of fine, month.	onment for fine of default of additional

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All the sentences are directed to run concurrently.

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3 The case of prosecution, in nutshell, is that on 15.01.2017 at about 6:30 p.m. near Hatpatka turn of village Pawanpur, Police Station Ramanujnagar, District Surajpur, the appellants herein along with juvenile co-accused Ram Chander Singh, in furtherance of their common intention, restrained Janevlal (PW-2) and his wife (the victim) who were going from Ramtirth to Keshavpur on bicycle, took the victim (PW-1) forcefully towards the field and committed gang rape on her; thereby committed the offence. The husband of the victim, Janevlal (PW-2) made a written complaint (Ex.P-9) at PS Ramanujnagar pursuant to which

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FIR (Ex.P-10) was registered against unknown persons. The victim (PW-1) was subjected to medical examination by Dr. Seema Gupta (PW-20) and her MLC report is Ex. P-60, according to which, scratch marks were found on both her knee joints and back but no external injury was found on her genitals. Slides were prepared from the vaginal swabs/discharge of the victim which were sent to FSL for chemical examination along with her undergarments and as per FSL report Ex.P-58, human sperm was found on the said vaginal slides. TIP was conducted by Tahsildar T. R. Chouhan (PW-8) vide Ex. P-1 wherein all the 6 appellants were identified by the Victim.

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4 The blood samples of the victim as well as the appellants were collected on 25.03.2017 which were sent by the Superintendent of Police, District - Surajpur vide Ex.P-61 on 27/03/2017 to the State Judiciary Science Laboratory (DNA Unit), Raipur for DNA testing, which were received on 12.04.2017. Again on 08.02.2018, the blood samples of A1 Amir Sai and A4 Vishnath Singh Gond were collected as their first blood samples were found unsuitable for DNA testing which were received at the State Forensic Science Laboratory (DNA Unit), Raipur on 12.02.2018. As per the DNA test report Ex.P-63, the DNA profile of the Victim matches with the DNA profiles of A1 Amir Sai and A4 Vishnath Singh Gond. After due investigation, appellants were charge-sheeted for the aforesaid offence before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law.

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5 During the course of trial, in order to bring home the offence, prosecution examined as many as 24 witnesses

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and exhibited 74 documents in support of its case. The statements of the appellants were recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, the appellants in support of their defence have not examined any witness but exhibited 3 documents.

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6 Learned trial Court, after appreciating the oral and documentary evidence available on record, convicted and sentenced the appellants as mentioned in the second paragraph of the judgment, against which these 3 appeals have been preferred by the appellants questioning the legality, validity and correctness of the impugned judgment.

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7 Ms. Hamida Siddiqui and Mr. Ashok Swarnkar, learned counsel for the appellants, would submit that the TIP has not been conducted in accordance with law as before conducting the identification parade the appellants were shown to the victim in the Police Station by the police personnel and therefore TIP is not admissible in evidence. They submit that the medical evidence also does not support the case of prosecution. According to the FSL report, human sperm was found on the vaginal slides of the victim but it has not been proved that the same belong to any of the appellants. They submit that the blood samples of A1 & A4 were taken on 08.02.2018 which received at the State Forensic Science Laboratory (DNA Unit), Raipur for DNA testing on 12.02.2018 and there is no evidence regarding where and how the blood samples were kept in safe custody from 08.02.2018 to 12.02.2018. Even otherwise, the DNA report is only an opinion evidence and

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only on that basis the appellants cannot be convicted for the said offence. As such, the prosecution has not been able to prove its case beyond reasonable doubt. Therefore, the impugned judgment is not sustainable and deserves to be set aside and the appellants are entitled for acquittal on the basis of benefit of doubt.

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8 Per contra, Mr. Rahul Tamaskar, learned State Counsel, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt, and therefore the trial Court has rightly convicted the appellants for the said offence, as such, the appeals deserve to be dismissed.

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9 We have heard learned counsel for parties, considered their rival submissions made herein-above and have also gone through the records with utmost circumspection.

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10 All the six appellants herein have been convicted basically under Sections 366/34 & 376(D) of IPC. The incident took place on 15.01.2017 at about 6:30 p.m. and the matter was reported to the Police by the husband of the victim, Janevlal (PW-2) on 16.01.2017 based on which FIR was registered at 4.30 p.m. against unknown persons. The victim was a major lady on the date of offence. Since the victim could not identify the accused persons at the time of commission of offence, TIP was conducted by Tahsildar T. R. Chouhan (PW-8) vide Ex.P-1 in 3 stages wherein firstly the victim identified A2 Radheshyam, A3 Shiv Kumar & A5 Sukhsai Panika, in the second stage she identified A1 Amir Sai, A4 Vishnath Singh Gond & A6 Motilal and in the third stage she identified juvenile co-accused Ram Chander Singh. However, in para-25 of her cross-examination, the victim has stated that at the time of offence it was dark night therefore she could not identify the accused persons.

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The victim (PW-1), in para-21 of her cross-examination, has clearly stated that she, her brother and mother also came to the Women Cell of Police Station Surajpur where the Police personnel showed her all the 7 accused. After a week thereafter, the accused persons were again shown to her in the Sub Jail of Surajpur during TIP and she identified the accused. In para-28 of her cross-examination, she has stated that the police personnel used to take her to the village and catch people from there and show them to her and this continued for about a week. From the evidence of the victim (PW-1) herself it is clear that before subject identification parade, the accused persons were shown to her. In this regard, the Hon’ble Supreme Court in the case of Gireesan Nair & Others v. State of Kerala¹ , in paragraphs-32 & 33 observed as under:

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“32. If identification in the TIP has taken place after the accused is shown to the witnesses, then not only is the evidence of TIP inadmissible, even an identification in a court during trial is meaningless (Shaikh Umar Ahmed Shaikh and Anr. v. State of Maharashtra, (1998) 5 SCC 103 29). Even a TIP conducted in the presence of a police officer is inadmissible in light of Section 162 of the Code of Criminal Procedure, 1973 (Chunthuram v. State of Chhattisgarh, (2020) 10 SCC 733) and (Ramkishan Mithanlal Sharma v. State of Bombay, AIR 1955 SC 104).

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It is significant to maintain a healthy ratio between suspects and non suspects during a TIP. If rules to that effect are provided in Prison Manuals or if an appropriate authority has issued guidelines regarding the ratio to be maintained, then such rules/guidelines shall be followed. The officer conducting the TIP is under a compelling obligation to mandatorily maintain the prescribed ratio. While

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1 2023 (1) SCC 180

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conducting a TIP, it is a sine qua non that the non suspects should be of the same age group and should also have similar physical features (size, weight, color, beard, scars, marks, bodily injuries etc.) to that of the suspects. The concerned officer overseeing the TIP should also record such physical features before commencing the TIP proceeding. This gives credibility to the TIP and ensures that the TIP is not just an empty formality (Rajesh Govind Jagesha v. State of Maharashtra² and Ravi v. State³ )

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11 In the light of the principle of law laid down by their Lordships of the Supreme Court in the above mentioned judgment, it is quite vivid from paragraphs - 21, 22, 28 & 29 of the statement of the victim (PW-1), it is absolutely clear that before conducting identification parade, the police personnel had shown the accused persons to the victim and therefore, TIP is completely vitiated and it cannot be accepted as a reliable piece of evidence against the appellants herein.

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12 Furthermore, the victim (PW-1) was medically examined by Dr. Seema Gupta (PW-20) and her MLC report is Ex. P-60, according to which, no external injury was found on her private part except scratch marks on her knee joints and back. As per FSL report Ex. P-58, human sperm was found on the vaginal slides of the victim but the prosecution could not have matched it with the semen of the Appellants to make out a fool proof case. In this regard, the Hon’ble Supreme Court in the matter of Krishan Kumar Malik v. State of Haryana⁴ in paragraphs – 43 & 44 observed as under:

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2 (1999) 8 SCC 428

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3 (2007) 15 SCC 372

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4 (2011) 7 SCC 130

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“43. With regard to the matching of the semen, we find it from Taylor's Principles and Practice of Medical Jurisprudence, 2^nd Edn.(1965) as under:-

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"Spermatozoa may retain vitality (or free motion) in the body of a woman for a long period, and movement should always be looked for in wet specimens. The actual time that spermatozoa may remain alive after ejaculation cannot be precisely defined, but is usually a matter of hours. Seymour claimed to have seen movement in a fluid as much as 5 days old. The detection of dead spermatozoa in stains may be made at long periods after emission, when the fluid has been allowed to dry. Sharpe found identifiable spermatozoa often after 12 months and once after a period of 5 years. Non-motile spermatozoa were found in the vagina after a lapse of time which must have been 3 and could have been 4 months.

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Now, after the incorporation of Section 53 (A) in the Criminal Procedure Code, w.e.f. 23.06.2006, brought to our notice by learned counsel for the Respondent-State, it has become necessary for the prosecution to go in for DNA test in such type of Crl. A. @S.L.P. (Crl.) No.8021 of 2009 cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in the Cr.P.C. prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the Appellant with that found on the undergarments of the prosecutrix to make it a fool proof case, but they did not do so, thus they must face the consequences. "

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13 In the light of the above cited judgment, in the absence of matching of semen, it could not be established that the human sperm found in the vaginal slides of the victim was that of the appellants and thus it goes against the prosecution. Another important point is that the victim is a married woman and it was possible that she was in contact with her husband before or after the alleged incident. Since

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it is not proved whose sperm was found in the vaginal slides, the case against the appellants becomes doubtful.

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14 The last piece of evidence is that as per DNA test report Ex. P-63, the DNA profile of the Victim matches with the DNA profiles of A1 Amir Sai and A4 Vishnath Singh Gond. From the evidence it is evident that on 08.02.2018, the blood samples of A1 Amir Sai and A4 Vishnath Singh Gond were again collected as their first blood samples were found unsuitable for DNA testing and which were received at the State Forensic Science Laboratory (DNA Unit), Raipur on 12.02.2018. But there is no evidence on record as to whether the samples were kept in safe custody between 08.02.2018 to 12.02.2018 as the chances of manipulation/fabrication cannot be ruled out. In this regard, the Supreme Court in the case of Rahul v. State of Delhi, Ministry of Home Affairs and Another⁵ , in para-38 held as under:

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“38. It is true that PW-23 Dr. B.K. Mohapatra, Senior Scientific Officer (Biology) of CFSL, New Delhi had stepped into the witness box and his report regarding DNA profiling was exhibited as Ex. PW-23/A, however mere exhibiting a document, would not prove its contents. The record shows that all the samples relating to the accused and relating to the deceased were seized by the Investigating Officer on 14.02.2012 and 16.02.2012; and they were sent to CFSL for examination on 27.02.2012. During this period, they remained in the Malkhana of the Police Station. Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out. Neither the Trial Court nor the High Court has examined the underlying basis of the findings in the DNA reports nor have they

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5 (2023) 1 SCC 83

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examined the fact whether the techniques were reliably applied by the expert. In absence of such evidence on record, all the reports with regard to the DNA profiling become highly vulnerable, more particularly when the collection and sealing of the samples sent for examination were also not free from suspicion.”

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15 In the present case, no evidence has been presented by the prosecution regarding where and how the blood samples of A1 & A4 were kept in safe custody from the date of collection on 08/02/2018 till the date of deposition to the Laboratory on 12/02/2018. No satisfactory explanation has been brought on record for the delay of 4-5 days from the time of collecting the samples to depositing the same in the laboratory. In such a situation, the DNA test report (Ex.P63) cannot be accepted as valid piece of evidence as the possibility of tampering with the samples cannot be ruled out. Even otherwise, as per the decision of the Supreme Court in the case of Rahul (supra), the DNA evidence is in the nature of opinion evidence as envisaged under Section 45 of the Indian Evidence Act and like any other opinion evidence, its probative value varies from case to case. Thus, the conviction on the basis of the DNA test report cannot be said to be justified.

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16 Concludingly, we find that the TIP (Ex.P-1) by which the appellants have been identified by the victim has not been conducted in accordance with law therefore it is not admissible in evidence. The medical evidence is partly supporting the case of prosecution. I n absence of matching of semen, the finding of human sperm on the vaginal slides is of no use in the light of the decision of the Supreme Court in the case of Krishan Kumar Malik (supra) . Furthermore, the DNA evidence is only in the nature of

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opinion evidence as no other incriminating circumstance has been brought on record.

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17 In that view of the matter, we find that the prosecution has not been able to prove its case beyond reasonable doubt as there is a lack of clear, reliable and sufficient evidence for conviction of the appellants. In such a situation, the impugned judgment is not found to be sustainable.

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18 Accordingly, t he impugned judgment of conviction and the order of sentence dated 25.03.2019 passed by the Trial is hereby set aside/quashed on the basis of benefit of doubt and the appellants are acquitted of the said charges. The appellants are reported to be in jail. They be released from jail forthwith, if their detention is not required in connection with any other offence.

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19 All the three criminal appeals, accordingly, stand allowed .

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20 Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned trial Court for necessary information & action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellants are suffering the jail sentence.

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Sd/Sd/-

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(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Khatai

Radheshyam and Others v. State of Chhattisgarh

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Radheshyam and Others v. State of Chhattisgarh

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