RAJAB KHANDAKAR v. STATE OF KERALA

residing near the house of the victim. The prosecution case is that, on 23.10.2019, at about 2p.m, while the victim girl was washing clothes in a stream near her house, the appellant/accused took her to a nearby abandoned and dilapidated building by catching hold of her hands and committed rape on her and thereby, committed the aforementioned offences.

4. PW1, the victim, lodged Ext.P1 FIS on 07.11.2019 to PW9, a women police officer of Vazhakkulam Police Station. On the basis of Ext.P1 FIS, Ext.P11 FIR was registered by PW12, the Sub Inspector of Police. PW14 conducted the investigation. The victim was subjected to medical examination and her statement was caused to be recorded under Section 164 of Cr.PC. The accused was arrested on 08.11.2019. After completion of the investigation, final report was filed before the Special Court under the POCSO Act, Ernakulam. Thereafter, the matter was transferred to the Special Court, Perumbavoor for trial and disposal.

5. The trial court framed charge for the offences punishable under Section 376(3) of the IPC and Section 3(a) r/w 4 of the POCSO Act. The said charge was read over and explained to the accused, to which he pleaded not guilty. On the side of prosecution, PWs.1 to 16 were examined,

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Exts.P1 to P15 were marked. MOs.1 and 2 series were identified and marked. After closing the prosecution evidence, the accused was examined under Section 313(1)(b) of Cr.PC. He denied all the incriminating circumstances levelled against him.

6. No defence evidence was adduced. The learned Special Judge, after a full fledged trial, found the accused guilty, convicted, and sentenced him as aforesaid.

7. The learned Public Prosecutor supported the judgment of the trial court. The learned Public Prosecutor submitted that the impugned judgment is legally sustainable and no interference is warranted.

8. On the other hand, Adv.Saipooja, the learned counsel for the appellant, submitted that the impugned judgment of the Fast Track Special Court, Perumbavoor is unsustainable. The prosecution has miserably failed to allege and prove the charge against the appellant/accused beyond reasonable doubt. The trial court convicted the appellant on the basis of surmises and conjectures, presumptions and assumptions. She submitted that the penal provisions are to be interpreted strictly within the four corners of the Statute. Suspicion, however strong it may be, cannot be considered as a substitute for proof.

9. Adv.Saipooja submitted that the prosecution has miserably failed to aver and prove that the accused has committed rape on the victim girl. The identity of the accused in this case is doubtful and therefore, the entire prosecution story is to be discarded on that ground alone.

10. Even according to the material witnesses, the alleged sexual abuse was done by a migrant labourer, speaking Hindi (Hindikkaran). No witness has mentioned the name of the accused either to the police or before the Court. Adv.Saipooja submitted that, if the assailant or culprit is not identified by his name, the investigating officer ought to have conducted a Test Identification Parade (TIP) to ascertain the identity of the real culprit. In the instant case, no such step was taken by the prosecution. The non-conduct of Test Identification Parade is fatal in this case.

11. The second submission of the learned counsel for the accused is that, FIS was lodged by the victim with a delay of two weeks and thereby great prejudice is caused to the accused. The unexplained delay of two weeks in lodging the FIS casts serious doubts in the prosecution story.

12. Adv.Saipooja further submitted that the prosecution has failed to prove the foundational facts of the alleged crime and therefore, the presumptions under Section 29 of the POCSO Act cannot be invoked in this

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case. The learned counsel further submitted that the prosecution has a bounden duty to prove that the age of the victim is less than 18 years. The age of the victim has not been properly proved through authoritative records.

13. PW1, the victim in chief examination would say that, she does not know her date of birth. She sated that, when she went to a stream near her house, a person who speaks Hindi, caught hold of her and took her to a dilapidated house nearby and after removing her clothes, committed rape on her. That man penetrated his sexual organ into her vagina. When she cried out, an old man came there and asked the assailant what he was doing. The assailant ran away from the scene. She went to the hospital after a month. During that incident, she had bitten on the hand of the accused. She further stated that she is acquainted, as he resides near the house. The name of the old man who came to the scene of occurrence is Kanakaraj and he is running a shop.

14. After the incident, the victim went to her house. CW2/Kanakaraj narrated the incident to her elder sister. She narrated the incident to her mother. Victim's FI statement was recorded by a Women

Police Officer and she identified her signature in the FI statement. The victim further stated that she spoke about the incident to the doctor when she was taken to the hospital. The victim also identified the relevant portions in Section 164 statement. According to the victim, the incident was on 23.10.2019 at about 12 noon. She went to hospital on 06.11.2019. According to the victim, she was taken to a house nearby, which has no doors. Mr.Kanakaraj told her to lodge a complaint before the police. She does not know why the complaint was not filed immediately. The victim identified the accused through video conferencing. She identified the dresses worn by her as MO1 series during the alleged time of occurrence.

15. PW2 is the mother of the victim. She stated that the accused is her neighbour residing in a line building. PW2 stated that the incident was on 23.10.2019. When she reached her house at about 2 pm, her elder daughter told her that, one Kanakaraj told her that he saw the sexual abuse of the victim. When PW2 made enquiries to her daughter (PW1), she stated that a Hindi speaking person assaulted her. PW2 narrated the incident to her husband - PW3, who in turn said that the complaint could be lodged later, after the arrival of the accused from Calcutta. Thereafter, when the victim suffered stomach pain and pain over her vagina, was taken

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to hospital on 06.11.2019. The doctor intimated the matter to the police. PW2 further stated that the accused is known to her for the past one year. In cross examination, she would admit that she had lodged a complaint against her husband for causing hurt to PW1. PW2 further stated that Mr.Kanakaraj (CW2) told her that a complaint is to be filed before police. There is no reason for not lodging the complaint immediately before the police. She denied the suggestion that the complaint was not filed since the incident was false.

16. PW3, the father of the victim, stated that he came to know about the incident when his wife narrated the incident to him. Thereafter, he went to the room of the accused and enquired. The enquiry would reveal that the accused went to his native place. He further stated that he thought that the complaint could be lodged after the return of the accused from Calcutta. He put his signature in Ext.P3 - scene mahazar. In cross examination, PW3 stated that he enquired about the incident through CW2, Kanakarajan.

17. PW4 is an attesting witness to Ext.P4 scene mahazar. PW5 is Dr.Unnikrishnan who examined the accused and issued Ext.P5 potency certificate. PW6 was the Secretary Vazhakkulam Grama Panchayath who

issued Ext.P6 Ownership Certificate. As per Ext.P6, the building bearing No.V/259 is owned by one Fr.Varghese Nambiar Parambil,

18. PW7 is the Village Officer who prepared Ext.P7 site plan. PW8 is Dr.Ayisha who examined the victim on 08.11.2019 and issued Ext.P8 medical certificate. According to PW8, the victim told her that, while she was taking a bath in a nearby stream, a north Indian took her to the house nearby and assaulted her. In Ext.P8 certificate, PW8 noted that, victim's father refused to file a complaint before police.

19. PW9 is the Women Police Officer who recorded the FI statement of the victim. She also put her signature in Ext.P4 scene mahazar. PW9 identified MO1 series dress worn by the victim. PW11 is the Nyayadhikari who recorded Section 164 statement of the victim on 08.11.2019. PW13 is the Headmistress of the Government School, wherein the victim studied. She produced the relevant extract of the admission register, whereby the victim had joined the school in 2013. As per Ext.P12 school admission register, the date of birth of the victim is 15.03.2007. According to this witness, the victim took admission in the 1st standard, but dropped out in that year itself.

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20. PW14 conducted the investigation and filed the final report. He obtained Ext.P12, extract of Birth Certificate from the school wherein, the victim studied. He also obtained Ext.P6 Ownership Certificate of the room of the alleged place of occurrence. He also produced Ext.P13 extract of birth certificates from the Registrar of Births and Deaths. He would further say that, CW2, Kanakaraj, died on 02.05.2020 and produced a photocopy of his Death Certificate, which was marked as Ext.P15 subject to proof. PW15, Jince Cyriac, testified that he issued Ext.P13 Birth Certificate of the victim. She would say that, in Ext.P13, the names of parents were not shown. PW16, Dr.Tessiyamma Sebastin, examined the victim on 06.11.2019. She found an infection in the victim's private part. The victim told her that she was abused by a migrant labourer. PW16 gave a written complaint to the police. She could not recollect whether there were any injuries on the victim's body.

21. The first submission of the learned counsel for the appellant is that the identity of the accused in this case is highly doubtful. The prosecution alleges that the accused has committed sexual abuse of the victim girl. Adv. Saipooja submitted that the accused is not properly identified either at the crime stage or during the trial stage. Admittedly, no

Test Identification Parade was conducted in this case. The material witnesses in this case ie., PWs.1 to 3 would never say that the alleged offence has been committed by a named person. In order to fortify the contentions, learned counsel placed reliance on the judgment in

Rameshwar Singh v. State of J and K

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. In Rameshwar Singh's case (supra), the Honourable Apex Court emphasized the importance of the Test Identification Parade when the accused was not known to the witness by his name. Paragraph 6 of the judgment is extracted hereunder:

"6 Before dealing with the evidence relating to identification of the appellant it may be remembered that the substantive evidence of a witness is his evidence in court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the former's arrest is of vital importance because it furnish to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing a corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it is a matter of great importance both for the investigation agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and that all the necessary precautions and safeguards are effectively taken so that the investigation proceeds on correct lines for punishing the real culprit. It would, in addition, be fair to the witness concerned who was

1 1971(2) SCC 715 : AIR 1972 SC 102

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a stranger to the accused because in that event the chances of his memory fading are reduced and he is required to identify the alleged culprit at the earliest possible opportunity after the occurrence. It is thus and thus alone that justice and fairplay can be assured both to the accused and to the prosecution. The identification during police investigation, it may be recalled, is not substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given in court. The identification proceedings, therefore, must be so conducted that evidence with regard to them when given at the trial, enables the court safely to form appropriate judicial opinion about its evidentiary value for the purpose of corroborating or contradicting the statement in court of the identifying witness."

22. In Mukesh Singh v. State (Nct Of Delhi))², the Apex Court observed that, compelling the attendance of an accused in a Test Identification Parade cannot be regarded as violation under Article 20(3) of the Constitution of India. Paragraphs 40 and 41 of Mukesh's case (supra) reads thus:

40. During the investigation of a crime committed by persons unknown to the witnesses, the persons arrested on suspicion of their complicity in the crime have got to be confronted by the investigating authority with the witnesses so that they can find out whether they are the persons who

committed the crime or not. Before the investigating authorities send up a case to Court, they must be satisfied that the persons arrested by them are the persons accused of having committed the crime.

41. If they were known to the witnesses, the witnesses would have given their names and that would have established their identity, but when they were not known, their identity could be established only if the witnesses on seeing them say that they are the offenders. Since it would be very easy for a witness who has little regard for truth, to say that the person arrested on suspicion was the offender, he is confronted with the suspect mixed with innocent men. If he picks him out, That would add to the credibility of his statement that he was the offender. This is the primary object of identification proceeding."

(underline supplied)

23. The learned counsel for the appellant/accused invited the attention of this Court to the judgment in Biju @ Ernakulam Biju v. State of Kerala

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where it is held that, conviction of accused solely based on the identification made by victim after a period of about 16 years in Court, which was not corroborated by a previous identification procedure, is unsustainable in law and is liable to be set at naught. Paragraphs 13 and 14 reads as follows:

3 2024 KHC OnLine 1198

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"13. During the investigation of a crime committed by persons unknown to witnesses, the persons arrested on suspicion of their complicity in the crime by the investigating agency have to be confronted with the witnesses, so that they can find out whether they are the persons who committed the crime, for, before the investigating agency sends up a case to the Court, they must be satisfied that the persons arrested by them are the persons accused of having committed the crime. If they were known to the witnesses, the witnesses would have certainly given their names and established their identity, but when they are not known, their identity could be established only if the witnesses, on seeing them, say that they are the offenders. It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless, unless there has been a previous identification proceedings to lend support to the identification made by the witness in court. It is all the more so when identification of accused is made after several years (See Kanan v. State of Kerala, 1979 (3)

SCC 319).

14. If the investigating agency brings before the witnesses those persons arrested by them on suspicion and if the witnesses are not in a position to assert on their own that the shown persons are not the real culprits, there would be a tendency on the part of the witnesses to merely agree that the arrested persons are the real culprits. Such tendencies would be more, if the witnesses belong to the lower strata of the society. Likewise, if the witnesses are shown the persons arrested on suspicion after a long lapse of time, the possibility of witnesses committing mistakes as to the identity also cannot be ruled out, especially in the case of twin brothers and persons who have close similarities etc. If the investigating agency proceeds on the

basis of such affirmation by the victim, the consequences would be disastrous, for, if the apprehended persons are not the real culprits, the real culprits would escape from the clutches of law and innocent persons would face the ordeal of trial. At the same time, instead of showing suspected persons apprehended by the police to witnesses, if the witnesses are confronted with the suspects mixed along with other innocent men and if the witnesses then pick the real culprits out of the group, that would add to the credibility of their statement that they were the offenders. This is the primary object of the test identification parade (See Mukesh Singh v. State (Nct Of Delhi)), 2023 KHC OnLine 6804)."

In Biju's case (supra), the Division Bench of this Court has set aside the conviction and sentence of the accused which was solely based on the identification of the assailant by the victim in Court after about 16 years.

24. In the instant case, the material witnesses are PWs.l to 3. According to PW1, victim aged 13 years, while she went to a stream for washing her clothes, one Hindikkaran (a Hindi speaking person) took her to a nearby room and committed rape on her. PW1, victim, never stated the name of the assailant. She identified the accused through video conferencing.

25. The mother of the victim, PW2, would say that her elder daughter told her that a Hindi speaking person sexually abused PW1. Even

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though she would say that the accused is known to her for the past one year, she did not identify him in the dock.

26. PW3, father of the victim, would also say that, when he enquired about the person who allegedly abused his daughter, he got information that the said Hindi speaking person left to his native place. PW14, the investigating officer never stated that, during the investigating stage, the accused was shown to the victim and identified by her.

27. On perusal of the evidence of the material witnesses in this case, it could be seen that the accused was identified by the victim for the first time in the dock. Adv.Saipooja would submit that, first time identification of the accused in the dock, without a Test Identification Parade is insufficient to fasten penal liability on the accused, that too, through video conferencing.

28. Yet another interesting aspect in this case is that the arrest of the accused is not properly proved by the prosecution.

29. It is pertinent to note that, even though the accused was arrested in this case, the contemporaneous documents to prove the arrest such as arrest memo, attest intimation and inspection memo were not prepared in this case. In D.K. Basu,Ashok K. Johri vs State Of West

Bengal,State Of U.P

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, the Apex Court has issued detailed guidelines to be observed by the police while arresting a person. The relevant paragraphs of

D. K. Basu's case (supra) are extracted hereunder:

"(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by atleast one witness. who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

4 AIR 1997 SC 610

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(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The

"Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest

and at the police control room it should be displayed on a conspicuous notice board."

30. Adv.Saipooja submitted that, identity of the accused, his involvement in the crime and the arrest were not at all proved by the prosecution beyond reasonable doubt.

31. The learned Public Prosecutor resisted this argument contending that the accused is a neighbour of the victim and is known to the witnesses for the past one year.

32. On going through the evidence let in by the prosecution, it could be seen that no material is brought on record regarding the whereabouts of the accused. No evidence, oral or documentary, is forthcoming to prove that where the accused is residing, where he is employed and under whom, from which State he has come from, such other details.

33. Adv.Saipooja further submitted that, there is an unexplained delay of two weeks in lodging the FIS . In Mohd. Ali Alias Guddu v. State Of Uttar Pradesh .

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, the Hon'ble Supreme Court observed that, even though in rape cases

5 2015(7) SCC 272

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the delay in filing the FIR is not significant, the facts and circumstances of the said delay is to be considered and the said delay is to be properly explained. Paragraph 27 of the said judgment reads thus:

"27. Be it clearly stated here that delay in lodging FIR in cases under Section 376 IPC would depend upon facts of each case and this Court has given immense allowance to such delay, regard being had to the trauma suffered by the prosecutrix and various other factors, but a significant one, in the present case, it has to be appreciated from a different perspective. The prosecutrix was missing from home. In such a situation, it was a normal expectation that either the mother or the brother would have lodged a missing report at the police station. The same was not done. This action of PW2 really throws a great challenge to common sense. No explanation has been offered for such delay. The learned trial Judge has adverted to this facet on an unacceptable backdrop by referring to the principle that prosecutrix suffered from trauma and the constraint of the social stigma. The prosecutrix at that time was nowhere on the scene. It is the mother who was required to inform the police about missing of her grown-up daughter. In the absence of any explanation, it gives rise to a sense of doubt."

34. In Rajesh Patel v. State of Jhakhand⁶Apex Court observed that if there is delay in lodging the FIR and the same is not satisfactorily explained, which is fatal to the prosecution. Paragraph 16 of the aforesaid judgment reads thus:

"16. Further, there is an inordinate delay of nearly 11 days in lodging the FIR with the jurisdictional police. The explanation given by the prosecutrix in not lodging the complaint within the reasonable period after the alleged offence committed by the appellant is that she went to her house and narrated the offence committed by the appellant to her mother and on the assurance of Purnendu Babu, PW 3, the mother remained silent for two to four days on the assurance that he will take action in the matter. Further, the explanation given by the prosecutrix regarding the delay is that at the time of commission of offence the appellant had threatened her that in case she lodges any complaint against him, she would be killed. The said explanation is once again not a tenable explanation. Further, in the reason assigned by the High Court regarding not lodging the complaint immediately or within a reasonable period, it has observed that in case of rape, the victim girl hardly dares to go to the police station and make the matter open to all out of fear of stigma which will be attached with the girls who are ravished. Also, the reason assigned by the trial court which justifies the explanation offered by the prosecution regarding the delay in lodging the complaint against the appellant has been erroneously accepted by the High Court in the impugned judgment [ Criminal Appeal No. 58 of 1999, decided on 14-11-2006 (Jhar)] . In addition to that, further observation made by the High Court regarding the delay is that the prosecutrix as well as her mother tried to get justice by interference of PW 3, who is a common friend of both of them and PW 4, the doctor with whom the prosecutrix was working as a nurse. When the same did not materialise, after a lapse of 11 days, the FIR was lodged with the jurisdictional police for the offence said to have been committed by the appellant. Further, the High Court has also proceeded to record the reason that the prosecutrix had every

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opportunity to give different date of occurrence instead of 14-2-1993 but she did not do it which reason is not tenable in law. Further, the High Court accepted the observation made by the learned trial Judge wherein the explanation given by the prosecutrix in her evidence about being terrorised to be killed by the appellant in case of reporting the matter to the police, is wholly untenable in law. The same is not only unnatural but also improbable. Therefore, the inordinate delay of 11 days in lodging the FIR against the appellant is fatal to the prosecution case. This vital aspect regarding inordinate delay in lodging the FIR not only makes the prosecution case improbable to accept but the reasons and observations made by the trial court as well as the High Court in the impugned judgments are wholly untenable in law and the same cannot be accepted. Therefore, the findings and observations made by the courts below in accepting delay in lodging the FIR by assigning unsatisfactory reasons cannot be accepted by this Court as the findings and reasons are erroneous in law."

35. The same view has been reiterated in Tulshidas Kanolkar

v. State of Goa

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. Paragraph 5 reads thus:

"We shall first deal with the question of delay. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging the first information report cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the court is to only see whether it is satisfactory or not. In case if the

7 (2003)8 SCC 590

prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of the prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of the first information report does not in any way render the prosecution version brittle."

36. In State (GNCT of Delhi) v. Vipin @ Lalla⁸, the Apex Court observed that if the delay in lodging the FIR is not reasonably explained, it contributes to doubts regarding the credibility of the claim and ultimately impacts the prosecution's case. In xxxx v. State of Kerala and Others

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, this Court observed that, in a case alleging the rape of a 10 year old girl, delay of almost 10 months in lodging FIS is fatal to the prosecution's case, as the delay was not properly explained, upon evaluating the facts and circumstances of the case.

37. In the instant case, the alleged incident was on 23.10.2019. The parents of the victim got information about the incident on that day itself. But no complaint was lodged before the police. The SI of Police,

9 2022(2) KHC 725

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Vazhakkulam Police Station registered the FIR on 07.11.2019 on the basis of Ext.P1 FIS. No explanation, whatsoever, is offered for the delay of two weeks in lodging the FIS. On 06.11.2019, the victim was taken to PW16, Dr.Tessiyamma Sebastian. It is pertinent to note that, PW16, the doctor, who examined the victim, gave information to the police.

38. Adv.Saipooja submits that the foundational facts leading to the alleged crime were not proved by the prosecution beyond reasonable doubt and therefore, trial court has committed grave error in invoking the presumption under Section 29 of the POCSO Act. She further submitted that there is no authentic proof with regard to the age of the victim at the time of the alleged incident. The prosecution mainly relied on the evidence of PWs.13, 14 and 15 for proving the age of the victim.

39. PW13, Sanuja A. Shawn is the Headmistress of GHSS, Kongorppilly. As per Ext.P12 extract of admission register, victim was admitted to the school in 2013 in 1st standard as admission no.10433. As per which, the date of birth of the victim is 15.03.2007. In cross examination, PW13 stated that the victim dropped out in the 1st standard itself. She has not produced any authentic document to prove the age of the victim. PW15, Jince Cyriac, is the Registrar of Births and Deaths who

issued ExtP13 Birth Certificate. In Ext.P13, the name of the parents, house name and the place of birth are not seen stated.

40. The next submission of the learned counsel for the appellant is that the eye witness who allegedly saw the incident, Kanakaraj (CW2) was not examined. The said Kanakaraj died prior to the trial of this case. Even though the copy of the death certificate (Ext.P15) is produced by the prosecution, it was marked subject to proof. According to Adv.Saipooja, non-examination of CW2 is fatal in this case.

41. Yet another interesting aspect pointed out by the learned counsel for the accused is that, according to the victim, she had bitten the hands of the accused during the incident. But, the doctor who examined the accused has not noted a corresponding bite mark, if any, on the hands of the accused.

42. Adv.Saipooja submitted that the voir dire test conducted by the Special Judge in this case is insufficient and the learned Special Judge had failed to note his satisfaction that the victim was aware of his duty to speak the truth in the Court. Learned counsel placed reliance on a judgment in Pradeep v. State of Haryana

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. In Pradeep's case (supra) 10 2023 SCC OnLine SC 777

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the Apex Court observed that the conviction solely on the basis of the testimony of a child witness is unsafe.

43. On the entire reassessment and judicial evaluation of the evidence on record, both oral and documentary, we are of the considered opinion that the prosecution has failed to allege and prove the charge against the accused beyond reasonable doubt. Admittedly, the name of the accused has not been stated by any of the material witnesses, including the victim. The accused was identified through video conferencing and not in the dock by the victim. No Test Identification Parade was conducted in this case. The arrest of the accused is not properly proved by preparing the contemporaneous documents like arrest memo, arrest intimation and inspection memo violating the directive of the Hon'ble Apex Court in D. K. Basu's case (supra).

The unexplained delay of 15 days in lodging the FIS would also cast serious doubts in the prosecution story. The trial court, while convicting the accused, has overlooked vital illegalities and infirmities which cuts the very root of the prosecution story. We are of the firm view that the accused is entitled to get the benefit of doubt in this case. The involvement of the accused in the alleged crime is not proved by the prosecution beyond

reasonable doubt. The conviction entered and the sentence imposed by the trial court are legally unsustainable in our view. In the result,

(i) Criminal Appeal is allowed.

(ii) The impugned judgment of the learned Special Judge in S.C.No.284/2020 is set aside.

(iii) The appellant/accused is acquitted and he is set at liberty.

(iv) The bail bond, if any, executed by the accused stands cancelled.

(v) Fine, if any, paid by him shall be refunded. Sd/-

RAJA VIJAYARAGHAVAN V,

JUDGE

Sd/-

K.V. JAYAKUMAR,

JUDGE

Sbna/-

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