High Court allowed criminal appeals against conviction for gang rape under IPC 376-D and POCSO Act. Court set aside convictions due to serious doubts regarding identity evidence caused by delays in FIR and TI parade, lack of corroborative statements, and unreasonable identification testimony.
Impugned judgment set aside; appellants released forthwith.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HIGH COURT OF TRIPURA A G A R T A L A
1. Criminal Appeal (Jail) No.08/2015 2. Criminal Appeal (Jail) No.16/2015
In Criminal Appeal (J) No.08/2015:
Sri Surjya Mohan Jamatia alias Sansa alias Sunaka , S/O. Rati Mohan Jamatia, Resident of Krishna Bhakta Para, P.S.- R.K. Pur, District:- Gomati, Udaipur.
.…. Appellant.
-: V E R S U S:-
The State of Tripura , To be represented by the Public Prosecutor, High Court of Tripura, Agartala.
….. Respondent.
In Criminal Appeal (J) No.16/2015:
Sri Hriday Jamatia , S/O. Kanistha Jamatia, Resident of Village Krishna Bhakta Para, P.O.-South Maharani, P.S.- Radha Kishorepur, Udaipur, District:- Gomati Tripura.
.…. Appellant.
-: V E R S U S:-
The State of Tripura , Represented by the Public Prosecutor, High Court of Tripura, Agartala.
….. Respondent.
B E F O R E
HON’BLE THE CHIEF JUSTICE MR. T. VAIPHEI HON’BLE MR. JUSTICE S. TALAPATRA
In Crl.A(J) No.08/2015:
Counsel for the appellant : Mr. Samarjit Bhattacharjee, Advocate.
Counsel for the respondent : Mr. R.C. Debnath, Addl. Public Prosecutor.
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In Crl.A(J) No.16/2015:
Counsel for the appellant : Mr. Indrajit Chakraborty, Advocate. Counsel for the respondent : Mr. R.C. Debnath, Addl. Public Prosecutor. Date of hearing : 07.11.2017. Date of Judgment & Order : 20-12-2017.
JUDGMENT & ORDER
[ T. Vaiphei, CJ ]
In this batch of two appeals, the appellants are questioning the legality of the common judgment dated 11-11-2014 passed by the learned Sessions Judge, Gomati District, Udaipur in ST No. 25(ST/U) of 2014 (Type 1) convicting both of them under Section 341/376-D IPC read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act” for short) and sentencing them to suffer 20 years of rigorous imprisonment with fine for commission of the offence punishable U/s 376D IPC, to pay a fine of ₹500/- for commission of the offence punishable U/s 341 IPC and to undergo 7 years of rigorous imprisonment with a fine for commission of the offence punishable U/s 4 of the POCSO Act. The sentences are, however, to run concurrently. The remaining accuseds were acquitted for lack of evidence.
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incident to her mother, Smt. Raj Kumari Jamatia (PW-1). On 2-11-2013 at 2.30 PM, PW-1 lodged the FIR with Udaipur Women Police Station, which registered it as Case No. 134/13 U/s 341/376-D IPC. The Officer-in-Charge of the Police Station took up the investigation and, after completion of the investigation, charge-sheeted the accused U/s 341/376(2)(g)/506 IPC and under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) by showing one of the accused, namely, Binoy Jamatia, as absconder. Two other persons, namely, Dilip Jamatia and Mangal Jamatia were also charge-sheeted for harboring offenders U/s 212 IPC.
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matter, cannot be sustained in law. They further argued that the victim did not know the appellants before, and there was absolutely no basis for implicating the appellants in the crime. It was also contended that as the incident took place when it was already dark, PW-5 and PW-6, who fled from the scene the occurrence, could not have possibly seen the faces of the culprits in the absence of proof of source of light; not even the torchlight alleged to have been carried by one of the appellants was seized by the police. It was further argued that no credible evidence was led by the prosecution to show as to how the identities of the appellants were established by them. On the other hand, Mr. R.C. Debnath, the learned Addl. Public Prosecutor appearing for the State, supports the impugned convictions and sentences, which are based on solid evidence. He, therefore, submits that the appeal is devoid of merits and is, therefore, liable to be dismissed.
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could not say. In the dock, she, however, identified Karna Sadhan Jamatia (non-appellant), the appellant No. 2 and the appellant No. 1, but she could not identify two others, namely, Dilip Jamatia and Bahar Jamatia (who were acquitted). She went on to testify that she lost her sense and when she regained her sense, the rapists took her towards her house and left her near her house and that after the rape, they slapped and asked her what she would tell her parents, to which she replied that she would tell her parents that she took liquor as otherwise, they would kill her. She had told her friends, who accompanied her, to inform her parents, but they did not do so. She was sent to Udaipur Hospital and was treated by a doctor. She was brought before the Magistrate, who recorded her statement and she signed the statement after it was read over to her. She identified her signature as Ext.P-5/1. She also deposed that during the investigation, she had gone to the District Jail and she identified the rapist in the T.I. parade; she signed on the TI parade form, which she identified as Ext.-P-7/1 series. On recall also, her deposition is also to the same effect, that too, mostly about the accused, Binoy, who was acquitted, it is not necessary to refer to it.
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could identify the appellants. This aspect of the matter will be discussed shortly.
“28. The next question is whether the prosecution has proved beyond reasonable doubt that the appellants are the real culprits. The value to be attached to a test identification parade depends on the facts and circumstances of each case and no hard-and-fast rule can be laid down. The court has to examine the facts of the case to find out whether there was sufficient opportunity for the witnesses to identify the accused. The court has also to rule out the possibility of their having been shown to the witnesses before holding a test identification parade. Where there is an inordinate delay in holding a test identification parade, the court must adopt a cautious approach so as to prevent miscarriage of justice. In cases of inordinate delay, it may be that the witnesses may forget the features of the accused put up for identification in the test identification parade. This, however, is not an absolute rule because it depends upon the facts of each case and the opportunity which the witnesses had to notice the
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features of the accused and the circumstances in which they had seen the accused committing the offence. Where the witness had only a fleeting glimpse of the accused at the time of occurrence, delay in holding a test identification parade has to be viewed seriously. Where, however, the court is satisfied that the witnesses had ample opportunity of seeing the accused at the time of the commission of the offence and there is no chance of mistaken identity, delay in holding the test identification parade may not be held to be fatal. It all depends upon the facts and circumstances of each case.”
The law is now clear that TI parade should be conducted as soon as the accused is arrested. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. Moreover, if the prosecution is sure that the prosecution witnesses already knew the appellants, TI parade is meaningless.─ See R. Shaji v. State of Kerala, (2013) 14 SCC 266.
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PW-5 and PW-6 corroborate PW-16 that they disclosed the identity of the appellants to him. PW-13 is the father of victim, who deposed that PW-5 and PW-6 told him the name of the rapists. He further testified that the victim first went to the house of her uncle and was weeping. She had asked her two friends to inform her parents but they did not do so. At this stage, we may examine the testimonies of PW-5 and PW-6 whether they corroborated the story of PW-1, PW-2 and PW-13. According to PW-5, who accompanied the victim to the market, on returning home at 6 PM, they saw five youths following them when they reached near Balwari School and PW-6 and herself were driven away and PW-2 was caught hold of by them. She further deposed that she could identify 3 accused i.e. A-2, Sangsa A-1 and another, whom she did not name. However, while giving her testimony, PW-5 never corroborated the statement of PW-13 that she had told PW-13 that it was the appellants who raped her daughter. That apart, it is worth noticing that PW-2, in her evidence, clearly stated that PW-5 and PW-6 were ahead of her, and that she saw five persons following them suddenly catching hold of her and thereafter raping her. Now, if PW-5 and PW-6 had really gone ahead of her and fled away in the dark, how did they manage to identify the appellants, that too, in the night, is a question quite incomprehensible to us. This gaping hole in the case of the prosecution has remained unexplained. Moreover, according to the victim, she had requested PW-5 and PW-6 to inform her parents, but they did not do so. Neither PW-5 nor PW-6, in their testimonies, said anything about this. This is another missing link in the case of the prosecution.
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never testified that she disclosed the identity of the appellants to PW-13. She deposed that when they crossed Balwari centre, five boys, who followed them, restrained them, but PW-5 and she ran away while the appellants caught hold of the victim. She then testified that when the miscreants switched on the torchlight, she could identify, among others, the appellants and Sial. Now, if what this witness narrated about the way in which she identified the appellants is to be believed, one of the unnamed miscreants who is supposed to carry the torchlight, must have been the most stupid person inasmuch as he, about to assault somebody in the night, chose to focus the torchlight towards his face and that of his colleagues. This reminds us of the following observations of the Apex Court in Tamilselvan v. State, (2008) 7 SCC 755 on identification at night:
“8. Before dealing with these glaring inconsistencies it may be pointed out that the incident occurred at 10.30 p.m. on 27-1-1996. It is alleged by the prosecution witnesses that they identified the accused in moonlight. We find it difficult to accept this version of the prosecution witnesses that they could have identified any of the accused merely by the moonlight. In the evidence of the prosecution witnesses it is stated that the accused were carrying torches, but there is no indication whether the victims, including the Forest Guard Swaminathan (the deceased) and Raju, the gardener, who sustained fire injuries, carried torches.
9. Since it was the accused who allegedly carried torches, we find it difficult to believe how the prosecution witnesses could have identified the assailants. The position would have been different if the forest guards had been carrying torches and had been pointing them at the assailants, but here the position is just the reverse. In fact due to the torches of the assailants the prosecution witnesses
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would have been partially blinded by the light of the
torchlight, and would not have been able to identify anybody.”
(Underlined for emphasis)
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consultation. It is, therefore, essential that the delay in lodging of the FIR should be satisfactorily explained. When the FIR was lodged, as in the instant case, and the delay in lodging of the FIR had not been explained it would be unsafe to base conviction of the appellants upon the evidence produced by the prosecution, as there were deliberations as to who should be made the accused in the case. An analogy can be taken from the extract of the decision of the Apex Court in Awadesh & another v. State of MP, (1988) 2 SCC 557 :
“5. The first information report Exhibit P-12 shows that the occurrence took place at 14.15 hours while the report was lodged at 15.10 hours that is to say within 55 minutes of the occurrence. The evidence on record and the attending circumstances indicate that the first information report was not lodged at 15.10 hours instead it was lodged at about 17.00 hours. Rajendra Singh, PW 14 stated before the trial court that from the place of occurrence he had accompanied the police to Panna Kotwali where he lodged the report and signed the Ex. P-12. In cross-examination he stated that he had gone to the Kotwali for lodging report in a police van. He further stated that the report had been written by the police clerk on his dictation, and that the police arrived at the scene of occurrence after an hour of his lodging the first information report. At an earlier stage he had stated that the police had arrived at the place of occurrence at about 3.30 p.m. and thereafter he had accompanied the police to Kotwali for lodging the report. His testimony regarding lodging of the first information report is contradictory. V.P. Pathak, PW 20 SubInspector of Police, the investigating officer, stated that it was wrong to say that the first information report Ex. P-12 was made by Rajendra Singh at Kotwali. According to him he was on duty at Collectorate and there he got the news at about
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2.30 or 3.00 p.m. that gunshots were fired at Toll barrier on the Ajaigarh Road; he reached there within few minutes along with Lakhan Singh, Constable. On reaching the spot he wrote Marg intimation, drew up panchanama of the dead body and sent the dead body for post-mortem examination and thereafter he recorded Dehati Nalishi Ex. P-12. He asserted that first information report had been recorded at the place of occurrence. He further stated that Dehati Nalishi was recorded by him after the dead body of the deceased had been sent by him for post-mortem examination which according to the document (Ex. P-8) was sent at 5.00 p.m. His statement clearly indicates that the first information report was written after 17.00 hours and it was not recorded at the time it purports to have been lodged. There are material contradictions in the testimony of Rajendra Singh PW 14 and the investigating officer. Since the Sub-Inspector, the District Magistrate and the Superintendent of Police had reached the place of occurrence within few minutes of the incident, the delay in lodging the first information report is highly suspicious. Why this delay when all officers were present, and eyewitnesses were present at the spot and the police station was at a distance of two furlongs? The obvious reason appears to be that the names of the assailants were not known as most likely the alleged two eyewitnesses had not seen the assailants and they were not present at the scene of occurrence, at the time the shooting took place; in all likelihood, they like others arrived at the scene after the incident. Since names of the assailants were not known, the FIR was lodged with delay after deliberation.”
(Italics and underlines supplied for emphasis)
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doubt, and the impugned judgment cannot be sustained in law and is, therefore, liable to be set aside.
JUDGE CHIEF JUSTICE
Pulak
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3 issues framed by the court
Whether the delay in lodging the FIR and conducting the TI parade, absence of seizure of alleged torchlight, and contradictory identification evidence prove the identity of appellants beyond reasonabl
Whether the prosecution witnesses sufficiently established the identity of the accused despite the dark conditions at the time of the alleged offence.
Whether the suspension of conviction orders is warranted when the prosecution fails to prove the guilt of the accused beyond reasonable doubt.
Colour shows how this judgement treated each authority
Lal Singh & others v. State of UPExplained¶39
Lal Singh & others v. State of UP, (2003) 12 SCC 554 · Who else cites this
R. Shaji v. State of KeralaExplained¶43
R. Shaji v. State of Kerala, (2013) 14 SCC 266 · Who else cites this
Tamilselvan v. StateExplained¶49
Tamilselvan v. State, (2008) 7 SCC 755 · Who else cites this
Awadesh & another v. State of MPExplained¶59
Awadesh & another v. State of MP, (1988) 2 SCC 557 · Who else cites this
Narendra Singh & another v. State of MPExplained¶65
Narendra Singh & another v. State of MP, (2004) 10 SCC 699 · Who else cites this
3 provisions across 3 enactments
Sri Surjya Mohan Jamatia alias Sansa alias Sunaka
Sri Hriday Jamatia
The State of Tripura
T. Vaiphei
S. Talapatra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
