1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 641 of 2015 Judgment Reserved on 23.09.2025 Judgment Delivered on 09.10.2025 1 - Aafis Kumar Gond S/o Sahdev Aged About 27 Years R/o Village - Basin Pali, Thana, Kasdol, Revenue / Civil Distt. Balauda Bazar - Bhatapara Chhattisgarh , Chhattisgarh ... Appellant versus 1 - State Of Chhattisgarh S/o Through Police Station Kasdol, Distt, Balauda Bazar - Bhatapara Chhattisgarh, Chhattisgarh ... Respondent For Appellant : Mr. Rishi Rahul Soni, Advocate For Respondent/State : Ms. Nand Kumari Kashyap, P.L. Division Bench Hon'ble Smt. Justice Rajani Dubey, J. & Hon'ble Shri Justice Amitendra Kishore Prasad, J. C A V Judgment Per, Amitendra Kishore Prasad, J. VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR 2 1.In this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973, the appellant has challenged the legality, validity, and propriety of the judgment of conviction and order of sentence dated 07.05.2015, passed by the Court of Second Additional Sessions Judge, Baloda-Bazar, Chhattisgarh, in Special Sessions Case No. 14/2014. By the said judgment, the appellant has been convicted for the offences punishable under Sections 363 and 376 of the Indian Penal Code, 1860 (for short, “IPC”) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, “POCSO Act, 2012”). Further, in view of the provisions contained in Section 42 of the POCSO Act, 2012, the appellant has been convicted and sentenced as under:–– Conviction Sentence Under Section 363 of IPC Rigorous Imprisonment for seven years and fine of Rs.2,000/- and in default of payment of fine amount to undergo additional rigorous imprisonment for six months. Under Section 4 of the POCSO Act, 2012 Imprisonment for life and fine of Rs.5,000/- and in default of payment of fine amount to undergo additional rigorous imprisonment for one year. (Both sentences were directed to run concurrently) 3 2. Case of the prosecution, in brief, is that on 11.05.2014 at about 3:00 am, appellant firstly abducted the minor prosecutrix, aged about 10 years from her lawful guardianship and committed forcible sexual intercourse with her. Further, case of the prosecution is that on 11.05.2014, the prosecutrix, a minor girl aged about 10 years, had gone with her parents to village Devtarai to attend the marriage of her maternal uncle- Anil Chauhan. In the intervening night of 10th/11th May 2014, at about 3:00 a.m., while she was sleeping on a cot in the courtyard of the house, the accused- Aafis Kumar Gond allegedly took her by force to a nearby forest situated about one kilometer away and committed sexual intercourse with her against her will. On hearing the shouts of her parents, the accused fled from the spot, leaving the prosecutrix there. The prosecutrix, thereafter, narrated the incident to her parents and the village Kotwar. After that, a written report was lodged at Police Station Kasdol, on the basis of which, FIR (Ex.P-1) was registered against the accused under Sections 363, 376, 511 of the IPC and Section 4 of the POCSO Act, 2012. 3.During investigation, spot map was prepared vide Ex.P-2 and consent of the prosecutrix and her parents were obtained vide Exs.P-9 to 11 and after that, prosecutrix was sent for medical examination where PW-10 Dr. Rakhi Jain examined the prosecutrix and found prosecutrix was subjected to sexual intercourse and gave her MLC report vide Ex.P-12. Vide Ex.P-15, two vaginal slides 4 of prosecutrix were seized. Accused/appellant was taken into custody vide Ex.P-13 and he was sent for medical examination where PW-8 Dr. Amit Kumar Jangde examined him and found that he was capable of performing sexual intercourse and gave his report vide Ex.P-7. Vide Exs.P-3 & P-4 respectively, undergarments of prosecutrix and appellant were seized. Seized articles were sent to FSL for chemical examination vide Ex.P-18, but no FSL report has been report has been brought on record. 4. After due investigation, statements of the witnesses were recorded under Section 161 of Cr.P.C. The accused/appellant was charge- sheeted before the jurisdictional criminal Court and the case was committed to the trial Court, in which, accused/appellant abjured the guilt and entered into defence by stating that he has not committed the offence. 5.The prosecution, in order to prove its case, examined as many as 10 witnesses and exhibited 20 documents. In defence, the accused/appellant has examined one witnesses i.e. DW-1 Dev Kumar Sahu and exhibited 3 documents i.e. Exs.D-1 to D-3. The statement of the accused/appellant was recorded under Section 313 of Cr.P.C., in which, he denied circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. 5 6.The learned trial Court, after appreciating the oral and documentary evidence available on record, convicted and sentenced the accused/appellant for the offence as mentioned in the opening paragraph of the judgment, against which, this appeal has been preferred by the appellant herein, questioning the impugned judgment of conviction and order of sentence. 7.Learned counsel for the appellant would submit that the trial Court erred in convicting appellant for the offence in question. He would argue that the prosecution's case is weak and fraught with inconsistencies and contradictions. He would further submit that the prosecution utterly failed to prove the age of the prosecutrix by adducing cogent and clinching evidence. He would also submit that the Kotwari register entry, relied upon by the prosecution, was not proved by any competent witness nor supported by school or birth records. He would also submit that no Test Identification Parade (TIP) was conducted by the prosecution and the prosecutrix allegedly identified the appellant only on the basis of certain clothes, which is a highly unsafe mode of identification. He would further contend that Medical evidence (PW-10 Dr. Rakhi Jain) may suggest sexual assault, but in absence of proof of age and proper identification, conviction cannot stand. Thus, it is prayed by counsel for the appellant that the impugned judgment of conviction and order of sentence passed by the trial Court be set aside and the appellant be acquitted of the charges leveled against him. Reliance 6 has been placed upon the decisions of Supreme Court in the matters of Alamelu and another vs State represented by Inspector of Police reported in (2011) 2 SCC 385 , P. Sasikumar vs State represented by the Inspector of Police reported in (2024) 8 SCC 600, Devinder Singh and others vs. State of Himachal Pradesh reported in (2003) 11 SCC 488, State of H.P. vs Lekh Raj & Another reported in (2000) 1 SCC 247, Jafar vs State of Kerala reported in 2024 SCC Online SC 310 , Nirmal Premkumar and Another vs. State rep. by Inspector of Police reported in 2024 SCC Online SC 260 & Krishna Kumar Malik vs State of Haryana reported in (2011) 7 SCC 130. 8.On the other hand, the learned State Counsel supported the impugned judgment and submitted that the prosecution successfully proved the offences beyond reasonable doubt. Therefore, the trial court rightly convicted and sentenced the appellant for the said offence, and the present appeal deserves to be dismissed. The State Counsel further submitted that, while the absence of a DNA test may be a lacuna, it does not entirely discredit the prosecution’s case. It was also contended that the victim's statement, corroborated by medical evidence, is sufficient to sustain the conviction of the appellant. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records with utmost circumspection. 7 10.The first question that arises for consideration before this Court is whether the finding recorded by the trial court, holding the victim to be minor/below 18 years of age on the date of the incident, is correct. 11.To ascertain the age of the victim, although PW-2 (mother of the prosecutrix) and PW-4 (father of the prosecutrix) stated that at the time of the incident, their daughter/ prosecutrix was about 10 years old and studying in Class 6, but no school admission records, municipal birth certificate, or other official documents were produced by the prosecution. Furthermore, the Kotwari register was neither produced nor proved by its author or by any competent official. No other documentary evidence was brought on record by the prosecution to establish the date of birth of the prosecutrix. Therefore, in the absence of any reliable or primary documentary evidence regarding the exact date of birth, it is difficult to conclusively hold that the prosecutrix was a minor at the time of the incident. 12. In case of Alamelu and Another (supra), the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the victim in the absence of any material on the basis of which the age was 8 recorded. The Hon'ble Supreme Court held that the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person who made the entry or who gave the date of birth is examined. 13.In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu (Supra), the Supreme Court has observed as under : “40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:- 9 "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined….Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta 10 Vs. Birendra Kumar Jaiswal, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the 11 ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the victim although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 14. According to Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 in order to prove the age of the juvenile, the following documents can be taken into consideration – (i) the matriculation or equivalent certificate(s), if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a Panchayat and in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly 12 constituted Medical Board to declare the age of the juvenile or child. 15.In the instant case, the prosecution has neither furnished any school records nor produced a birth certificate from a competent authority. Further, there is no reliable medical evidence on record to conclusively determine the age of the victim. Mere oral assertions, either by the victim or other witnesses, without being corroborated by cogent and admissible evidence, are insufficient to conclusively establish minority. In view of the above and considering the totality of the evidence on record, we are of the considered opinion that the prosecution has not been able to discharge its burden of proving beyond reasonable doubt that the victim was below 18 years of age on the date of the incident. Accordingly, the finding of the learned trial Court, which held the victim to be a minor at the relevant time, is liable to be and is hereby set aside. 16.Now, the next question would be, whether the appellant is the author of the crime in question or not? 17.Prosecutrix (PW-3), in her deposition, has stated that on the date of the incident, while she was sleeping on a cot, at that time, the accused/appellant came there, took her to Basinpali Road and committed forcible sexual intercourse with her. Upon hearing the shouts of her parents, the accused/appellant fled from the spot, leaving her there. Thereafter, she narrated the incident to her 13 parents and reported the matter at Police Station Kasdol. However, during her cross-examination, she admitted that at the time of the alleged abduction, it was dark and she could not recognize the person who took her away. She further admitted that upon returning to her mother, she disclosed the name of the person who committed the wrongful act as Ramesh. She also admitted that she had mentioned the same name ‘Ramesh’ to other villagers, but had not named the present appellant. Additionally, she also admitted that she could not identify either Ramesh Kumar or the appellant by their voices and had identified the appellant only on the basis of his clothes, belt, and shoes. Furthermore, prosecutrix’s father (PW-4) corroborated this version, admitting that when the prosecutrix was initially questioned, she named Ramesh Gond as the person who had abducted her. He also admitted that, in the presence of the villagers, the prosecutrix first disclosed the name of Ramesh Gond. 18.Moreover, PW-5- Sahasram Chouhan (Kotwar), also admitted in his cross-examination that on 10.05.2014, during the marriage ceremony of Mahesh Gada’s son, he did not see the accused- Aafis Kumar, present at the event. He further admitted that the prosecutrix had initially named Ramesh Gond as the person who had abducted her and that, on the following day, during a village meeting attended by approximately 30 persons including the prosecutrix and her parents, she again stated before the Panchayat 14 that Ramesh Gond had abducted her and committed the wrongful acts. 19.PW-6 Kumar Singh admitted in his cross-examination that when the prosecutrix was questioned during the village meeting, she could not identify anyone. He further admitted that during the meeting, both the accused/appellant and Ramesh Gond were made to stand before the gathering as the persons named by the prosecutrix, and even after being asked to speak, she was unable to identify either of them. He also admitted that initially, when neither of them had been called to the meeting, the prosecutrix had stated that a person named Ramesh had taken her away. Furthermore, he admitted that when the appellant was later dressed in Ramratan’s clothes, the prosecutrix claimed that the man wearing those clothes had abducted her on the date of the incident. He also admitted that in his presence, the prosecutrix did not state that the appellant had committed sexual intercourse with her. 20. PW-7 Ramesh admitted in his cross-examination that when the village Sarpanch asked the prosecutrix to identify the person involved, she recognized the accused/appellant by stating that he was wearing brown shoes, a white belt, and bangles. He further admitted that prior to the meeting, the prosecutrix had named him (Ramesh) before the villagers stating that he had taken her away. He also admitted that the appellant was later dressed in Ramratan’s 15 clothes. Additionally, he admitted that he and the appellant are friends and live opposite each other in the village. He further admitted that on the date of the incident, he, the appellant, and other villagers had gone to Ramratan’s house to play musical instruments and that, after the performance, they returned together to their village, Basinpali, with the appellant. 21.Thus, from perusal of the above statements of prosecution witnesses i.e. PW-3, PW-5, PW-6 & PW-7, it clearly emerges that there are significant contradictions and inconsistencies with respect to the identity of the accused/appellant. The prosecutrix (PW-3), in her cross-examination, categorically admitted that at the time of the incident, she could not recognize the person who abducted her due to darkness. She further admitted that she had initially named one Ramesh Gond as the perpetrator, both before her parents and the village Panchayat. This version was corroborated by PW-5, PW-6, and PW-7, who also confirmed that in the village meeting, the prosecutrix could not identify either the accused/appellant or Ramesh even after hearing their voices. It is also evident that the prosecutrix claimed to identify the appellant only after he was dressed in someone else's clothes (Ramratan's), which renders the identification highly suggestive and unreliable. Moreover, no Test Identification Parade (TIP) was conducted in this case, and no forensic or medical evidence has been brought on record to link the accused/appellant to the alleged offence. The medical evidence 16 only establishes that prosecutrix was subjected to rape, but does not attribute the same to the appellant. 22.In the matter of P. Sasikumar (supra) , Hon'ble Apex Court, in paras-12, 14, 17, 21 to 24 has observed as under:- “12. But the one who is before us today and whose conviction stands confirmed by the High Court is not Accused 1 but Accused 2. The entire question before us here is of identification of Accused 2. From all available evidences which the prosecution has placed before the trial court, inter alia, in the form of PW 1 and PW 5 have stated that Accused 2 i.e. the present appellant was seen by them wearing a "green-coloured monkey cap". When this accused had entered the premises, when he knocked at the door of the house of the deceased, when he was coming down from the stairs along with Accused 1 and at all other relevant times the witnesses who have seen and identified Accused 2 i.e. the present appellant, had seen the appellant for the first time on 13-11-2014 d while he was wearing a green-coloured monkey cap. None of them had seen him earlier. xxxx xxxx xxxx 14. PW 5 is said to have identified the accused later when both the accused 17 were apprehended by the police and were in the hospital. In other words, while h these two accused persons were in the custody of the police this particular witness PW 5 was taken to the hospital where he had identified the two accused. This so-called identification, on which much reliance has been placed by the prosecution, was made by PW 5 in the hospital by way of a statement to the police, and it can only be read as a statement under Section 162 of the Criminal Procedure Code which can only be used for the limited purpose as provided under Section 162 CrPC itself. xxxx xxxx xxxx 17. The admitted position in this case is that the test identification parade (hereinafter referred to as "TIP") was not conducted. All the prosecution witnesses who identified the accused in the Court such as PW 1 and PW 5 were not known to the present appellant i.e. Accused 2. They had not seen the present appellant prior to the said incident. He was a stranger to both of them. More importantly, both of them have seen the appellant/Accused 2 on the date of the crime while he was wearing a "green- coloured monkey cap"! xxxx xxxx xxxx 18 21. It is well settled that TIP is only a part of police investigation. The identification in TIP of an accused is not a substantive piece of evidence. The substantive piece of evidence, or what can be called evidence is only dock identification that is identification made by witness in court during trial. This identification has been made in court by PW 1 and PW 5. The High Court rightly dismisses the identification made by PW 1 for the reason that the appellant i.e. Accused 2 was a stranger to PW 1 and PW I had seen the appellant for the first time when he was wearing a monkey cap, and in the absence of TIP to admit the identification by PW 1 made for the first time in the court was not proper. 22. However, the High Court has believed the testimony of PW 5 who has identified Accused 2 under similar circumstances! The appellant was also stranger to PW 5 and PW 5 had also seen the accused i.e. the present appellant d for the first time on that fateful day i.e. on 13-11-2014 while he was wearing a green-coloured monkey cap. The only reason assigned for believing the testimony of PW 5 is that he is after all an independent witness and has no grudge to falsely implicate the appellant. This is the entire reasoning. 19 23. We are afraid the High Court has gone completely wrong in believing the testimony of PW 5 as to the identification of the appellant. In cases where accused is a stranger to a witness and there has been no TIP, the trial court should be very cautious while accepting the dock identification by such a witness (see: Kunjumon v. State of Kerala, (2012) 13 SCC 750). 24. After considering the peculiar facts of the present case, we are of the opinion that not conducting a TIP in this case was a fatal flaw in the f police investigation and in the absence of TIP in the present case the dock identification of the present appellant will always remain doubtful. Doubt always belongs to the accused. The prosecution has not been able to prove the identity of the present appellant i.e. A-2 beyond a reasonable doubt……” 23. Furthermore, in the matter of Devinder Singh (supra), the Supreme Court has held in paras 20 to 23 which read as under:- “20. There is another reason for suspecting the case of the prosecution. Though the appellants were arrested within a few days of the incident, they were never put up for identification in a 20 test identification parade. While it is true that in every case the holding of a test identification parade may not be necessary, but that depends on the facts and circumstances of each case. In the instant case the prosecutrix had not said in the course of her deposition that she had personally known all the appellants by name or otherwise. She also does not claim that she had other reasons to know them as to be able to d identify them. In her first information report, she had stated that some unknown persons were knocking at her door, but she identified the appellants in court after about two years of the incident. The question is whether in the facts and circumstances of this case, holding of a test identification parade was necessary. Since there is no evidence to show that the prosecutrix was acquainted with the appellants, or had reasons to know them from before the e occurrence, it must be held that the prosecutrix had only a fleeting glimpse of the culprits on the night of the occurrence. Even this appears to be doubtful because of the very unconvincing story narrated by the prosecutrix about her having an opportunity to identify the appellants. In the first information report she stated that after the appellants entered the room they asked her to switch on the 21 light but when she said there was no light, they lighted a f matchstick and took out a torch from her almirah, put cells in it and then lighted the same and started seeing each other. This gave her an opportunity to identify them by face. Thereafter they switched off the torch. In her deposition also she has deposed to the same effect, except that lighting of the matchstick and torch took place after she was raped by them, and just before they departed. The story appears to be highly improbable and unworthy of 9 belief. In the first instance it is difficult to believe that the appellants knew that the prosecutrix had kept a torch in her almirah. Moreover, after discovering the torch they also found cells to be put into the torch and thereafter they switched on the torch. The lighting of the torch and flashing it on the faces of the appellant was, as if only to give an opportunity to the prosecutrix to see their faces. Thereafter the torch was switched off. Thus, h according to the first information report, the prosecutrix had only a glimpse of the appellants when they lighted the torch with a view to see each other’s fact. 21. In the course of her deposition though the prosecutrix stated that she had seen their faces in the torchlight after they had raped her, and had 22 narrated the manner in which they discovered the torch and the battery cells, more or less in the same manner as in the first information report, from her deposition it appears that the torch was lighted only for a short duration. In the course of her b could not give particulars of the persons who put her on the cot or the person her cross- examination she admitted that for want of light she who raped her first. Reading of the deposition of this witness leaves no room for doubt that while the appellants committed the offence, there was no light in the room. In view of these circumstances even if it is accepted that the prosecutrix had a fleeting glimpse of the appellants when they lighted the torch in her room, in the absence of any other evidence to show that the prosecutrix had occasion to see the appellants earlier, or to know them, it was incumbent on the prosecution to hold a test identification parade. This is not a case where an occurrence took place in broad daylight and the prosecutrix had ample opportunity of noticing the features of the appellants. This apart, her naming some of the accused persons in the first information report and not naming them in the course of deposition casts a serious doubt on the veracity of this witness. 23 Further, she named two other persons, and not two of the accused, in her report, and failed to name the accused whom she claimed to know from before as stated in her deposition. 22. Even the recovery of torch at the instance of Jai Kumar is not free from doubt. PW 3 denies the fact that a torch was recovered pursuant to a disclosure statement made by appellant Jai Kumar. He asserted that the torch was recovered from the room of the prosecutrix. Moreover, the prosecutrix herself admitted that such torches are sold in the market. In the absence of any identifying mark on the torch, it is difficult to place much reliance on the recovery of the torch, which is said to have been produced by appellant Jai Kumar. Moreover, as noticed earlier, though the prosecutrix claimed to know Jai Kumar, he had not been named in the first information report by her, even though she named four of the culprits, two of whom are admittedly not accused in the case. 23. Taking into account these features of the prosecution case, we are of the view that it is not safe to rely upon the testimony of PW 1. We, therefore, allow these appeals and acquit the appellants of the charges levelled against them….” 24 24. Likewise, in the matter of Lekh Raj (supra), the Supreme Court has held in para 3 which reads as under:- “3. Respondent- 2 has been acquitted by the High Court on the ground that his identity could not be established by the prosecution at the trial. The admitted position is that the name of Respondent 2 was not known to the prosecutrix and thus his name not mentioned in the FIR. She had, in the written report lodged with the Superintendent of Police, Mandi on 11-10- 1993, stated that Respondent 1 "with another person whose name is not known to the complainant intercepted the complainant from her back and gagged her mouth. They pounced upon her and made her lie down on the road and had forcible sexual intercourse with her". In her statement before the trial court the prosecutrix admitted that she had not known Respondent 29 earlier and further that no identification parade was conducted by the investigating agency. She further admitted having seen Respondent 2 in the Court only after the day of occurrence. How Respondent 2 was named as an accused person is a mystery shrouded with doubts which has not been properly and sufficiently explained by the prosecution. During the investigation of a crime the police agency is required to hold identification parade for the purposes of 25 enabling the witness to identify the person alleged to have committed the offence particularly when such person was not previously known to the witness or the informant. The absence of test identification may not be fatal if the accused is known or sufficiently described in the complaint leaving no doubt in the mind of the court regarding his involvement. Identification parade may also not be necessary in a case where the accused persons are arrested at the spot. The evidence of identifying the accused person at the trial for the first time is, from its very nature, inherently of a weak character. This Court in Budhsen v. State of U.P, (1970) 2 SCC 128, held that the evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances the complainant or the witness came to pick out the particular accused person and the details of the part which he allegedly played in the crime in question with reasonable particularity. In such cases test identification is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them. There may, however, be exceptions to this general rule, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration. Though the holding of identification proceedings are not 26 substantive evidence, yet they are used for corroboration purposes for believing that the person brought before the court was the real person involved in the commission of the crime. The identification parade even if held, cannot, in all cases, be considered as safe, sole and trustworthy evidence on which the conviction of the accused could be sustained. It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant…” 25. Similarly, in the matter of Jafar (supra), the Supreme Court has held in paras 7 to 9 which read as under:- “7. With the assistance of the learned counsel for the parties, we have scrutinized the evidence. The conviction of the appellant herein is basically based on the deposition of Babu Puttan (PW-1), who was working as a security guard and was sitting in a chair in front of the said room. No doubt that he narrates the version, as per the prosecution case. He has also identified accused No. 2- Jafar, appellant herein and accused no. 3- Saneesh in the Court. However, he has clearly admitted that police had shown him these two people and as such, he has identified them. 8. Anil Kumar (PW-8), who is the Investigating Officer (10), has also admitted that PW-1 identified the accused persons by seeing them at the police station. He has 27 further admitted that no identification parade was conducted. As such, it can be seen that the identification of the appellant herein by PW-1 is quite doubtful as no identification parade has been conducted. PW-1 clearly states that he has identified the accused persons since the police had shown him those two people. 9. In the absence of proper identification parade being conducted, the identification for the first time in the Court cannot be said to be free from doubt. We find that the other circumstance that the Courts relied for resting the order of conviction is with regard to the recovery of an iron rod. An iron rod is an article which could be found anywhere. It is not the case of the prosecution that any stolen article was recovered from the appellant herein….” 26. Moreover, in the matter of Nirmal Premkumar and Anr. (supra), the Supreme Court has held in para 13 & 15 which reads as under:- “13. This Court was tasked to adjudicate a matter involving gang rape allegations under section 376(2) (g), I.P.C in Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21. The Court found totally conflicting versions of the prosecutrix, from what was stated in the complaint and what was 28 deposed before Court, resulting in material inconsistencies. Reversing the conviction and holding that the prosecutrix cannot be held to be a 'sterling witness', the Court opined as under: "22. In our considered opinion, the 'sterling witness' should be of a very high quality and calibre whose version should. therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end. namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should 29 give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co- relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied. can it be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version 30 in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged." xxxx xxxx xxxx 15. What flows from the aforesaid decisions is that in cases where witnesses are neither wholly reliable nor wholly unreliable, the Court should strive to find out the true genesis of the incident. The Court can rely on the victim as a "sterling witness" without further corroboration, but the quality and credibility must be exceptionally high. The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistences excepted), from the initial statement to the oral testimony, without creating any doubt qua the prosecution's case. While a victim's testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded…” 31 27. Besides, in the case of Krishan Kumar Malik (supra), Hon'ble Apex Court in para-44 has held as under: “44. 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 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. the 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.” 28. Reverting to the facts of the present case in the light of the aforesaid legal principles, it is evident that the prosecution has failed to establish the guilt of the accused/appellant beyond reasonable doubt. The testimony of the prosecutrix (PW-3), which forms the foundation of the prosecution's case, is riddled with serious inconsistencies and material contradictions. While she implicated the appellant in her examination-in-chief, but during cross-examination she specifically admitted that it was dark at the 32 time of the alleged abduction and she could not recognize the person who took her away. Notably, she also admitted that after the incident, she named one Ramesh as the person responsible and repeated this name before her mother, other villagers, and again in a Panchayat meeting attended by about 30 people, including her parents. At no point during these initial disclosures did she name the present appellant. Her subsequent identification of the appellant was not based on facial recognition or voice, but solely on external features such as shoes, belt, and clothes, which significantly undermines the reliability of such identification. Moreover, she identified the appellant only after he was dressed in another person's clothes, further casting serious doubt on the credibility of the identification process. Additionally, PW-7 Ramesh, who was initially named by the prosecutrix, confirmed that she had accused him prior to the meeting, and also stated that the appellant was identified only later on the basis of clothing. Furthermore, there is no forensic or scientific evidence on record to link the appellant with the alleged offence. Although the medical examination confirms that the prosecutrix was subjected to rape, but no FSL report or other corroborative scientific evidence has been produced to implicate the appellant. Most significantly, the prosecution has failed to conduct a DNA test to establish any link between the appellant and the prosecutrix. This omission is significant, especially in a rape case, and the prosecution has not provided any satisfactory 33 explanation for this failure, which clearly weakens the prosecution's case. 29. In view of the inconsistent and uncorroborated testimony of the prosecutrix, the flawed identification process and the absence of supporting forensic evidence, this Court is of the considered opinion that the prosecution has failed to produce any reliable and conclusive evidence to prove that the appellant is the perpetrator of the crime in question. Accordingly, the appellant is entitled for acquittal and the learned trial Court was not justified in convicting and sentencing the appellant for the aforesaid offences. 30. Accordingly, the impugned judgment of conviction and order of sentence dated 07.05.2015, passed by the learned trial Court, is hereby set aside and the appeal stands allowed. 31.The appellant is reported to be on bail. Keeping in view the provision of Section 437-A of Cr.P.C., the appellant is directed to forthwith furnish personal bond in terms of Form No.45 prescribed in the Cr.P.C. of sum of Rs.25,000/- with one surety in the like amount before the trial Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 34 32.Registry is directed to transmit the lower Court record along with a copy of this judgment to the concerned Trial Court forthwith for information and necessary compliance. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Vishakha