ORDER
V.K. Barde, J.
1. Criminal Appeal No. 284/1995 is a jail appeal filed by the two convicts, Baban and Shaikh Sikandar. While, Criminal Appeal No. 288/1995 is filed by convict Shaikh Iliyas. These two appeals are arising out of the order of conviction and sentence passed by the Additional Sessions Judge, Parbhani, in Sessions Case No. 122/1993, for offence punishable under sections 376(2)(g), 448 read with section 34 and section 354 of Indian Penal Code. Hence, these two appeals are being disposed of by the common judgment.
2. The prosecution case is as follows :
(a) On 13-11-1992, at about 10-30 p.m., Radhabai was sleeping in her hut in Zopadpatti area at Parbhani. Her son of 10-12 years of age, Rama, was also sleeping in the hut. There was knock at the door and Radhabai opened the door. Iliyas was standing in the door and he demanded sexual intercourse with Radhabai. Immediately, Iliyas and two persons who were with him entered into the hut. They caught her. Radhabai was wearing saree. It was removed. She was made naked and was made to lie down on the cot. Radhabai was shouting. Her son, Rama, also started shouting.
(b) Then Iliyas asked one of his accomplice to catch hold of Rama. Iliyas then spread thighs of Radhabai and sat on her thighs. The other accomplice, Baban, had caught both hands of Radhabai. Iliyas committed rape on Radhabai and then he asked Baban to have intercourse. Iliyas then caught hands of Radhabai and then Baban committed rape on Radhabai.
(c) Thereafter, Baban asked the third person Khatik to have intercourse. Khatik declined to have intercourse with Radhabai, but said that, he would only press her breast and he pressed her breast. On hearing shouts of Radhabai, two neighbours, Balu Aabhure and Baban Uphale, reached there. On seeing them, all three accused ran away. Radhabai then immediately went to the Police Station and lodged the report. Crime No. 242/92 was registered and the Police took up the investigation.
3. At about 5 a.m. Radhabai was sent to Government Hospital at Parbhani for medical examination. At about 7 a.m., P.S.I. Nandedkar arrested accused Iliyas. Accused Iliyas was also sent for medical examination to the Government Hospital at Parbhani. The P.S.I. then prepared panchanama of the place of incident and seized saree and blouse of Radhabai from that place. On returning to the Police Station, the trouser worn by Iliyas was also seized by the police under panchanama. The further investigation was carried out. But the other two accused could not be arrested till 10th March 1993. After the arrest of the other two accused, samples of the blood and semen were collected and the same were sent to Chemical Analyser for examination.
Earlier the saree of Radhabai and trouser of Iliyas were also sent to Chemical Analyser for examination and report. So also, the samples of blood and semen of Shaikh Iliyas were sent for examination and report to Chemical Analyser.
4. The charge sheet was submitted against the three accused before Judicial Magistrate (F.C.), Parbhani, for offence punishable under sections 376(2)(g), 448, read with section 34 of Indian Penal Code, and section 3(1)(ii) of the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Judicial Magistrate (F.C.) committed the case to the Court of Sessions at Parbhani.
5. The learned Sessions Judge, Parbhani, framed charge against the accused for offence punishable under section 448 read with section 34, section 376 read with section 34, and section 354, all under Indian Penal Code, as per Exhibit 1, but did not frame charge for offence punishable under section 3(1)(ii) of the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989.
6. The Additional Sessions Judge, Parbhani thereafter conducted the trial against the three accused. He recorded deposition of the prosecution witnesses, statements of the accused under section 313 of Cr.P.C., and then came to the conclusion that the prosecution proved the case against the accused for offence punishable under section 376(2)(g) and section 448 read with section 34 of Indian Penal Code. So far as accused Shaikh Sikander is concerned, he was further held guilty for offence punishable under section 354 of Indian Penal Code. All the three accused are sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 1,000/-, in default of payment of fine, rigorous imprisonment for 6 months, for offence punishable under section 376(2)(g) of Indian Penal Code, and no separate sentences are passed for offence punishable under section 448 read with section 34, and section 354 of Indian Penal Code.
7. Heard Mr. B.A. Darak, appointed Counsel for the appellants in Criminal Appeal No. 284/ 1995; Mr. R.R. Jethlia. Counsel for the appellant in Criminal Appeal No. 288/1995; and Mr. K.M. Babulgaonkar, Additional Public Prosecutor, for the respondent-State.
8. From the record and proceedings, it appears that after framing charge against the three accused, accused Iliyas had absconded. So, learned Additional Sessions Judge separated his case and proceeded with trial against the two accused, Baban and Shaikh Sikandar. When this trial was in process, accused Iliyas was arrested by the Police and brought before the Court. It appears that the learned Additional Sessions Judge recalled all the prosecution witnesses for further examination and cross-examination and then recorded deposition of the Investigating Officer and this has caused certain difficulties with respect to appreciation of evidence, especially, as against accused Iliyas. However, that is not going to have any effect on final decision in the matter. We will point out how the evidence which is recorded in the presence of accused Iliyas is to be appreciated in the present matter.
9. The deposition of prosecutrix Radhabai is at Exhibit 23 and she has narrated the story as stated above, in the examination in chief. The F.I.R. is at Exhibit 24 and it corroborates deposition of Radhabai.
10. In her deposition, with respect to the identity of the accused, she has stated that she was not knowing name of the third accused but he is Khatik by caste and she identified both, accused Shaikh Sikander and Baban, before the Court. However, when she was recalled after arrest of accused Iliyas, only one statement in her examination in-chief is recorded, that is, she was not able to identify accused Iliyas, stating that, the incident had taken place more than two and half years back and, therefore, she was not able to identify the accused.
11. In the cross-examination, Radhabai has clearly admitted that she was not knowing either of the accused prior to the incident. It clearly means that she had seen these accused for the first time, as per her case, at the time of incident. In the F.I.R., she has given the names of Iliyas and Baban, and the third person she has referred as Khatik. So, she has not given name of Shaikh Sikander in the F.I.R.
12. The learned Additional Public Prosecutor has argued that the deposition of Radhabai indicates that these three accused were calling each other during the course of incident and, therefore, she came to know their names and, therefore, she had given their names in the F.I.R.
13. This is the most important circumstance that Radhabai was not knowing these persons even by name prior to the incident. She learnt the names of the persons who assaulted her only because they were calling each other at the time of incident. It means that she was not knowing the names of the persons who had committed assault on her, otherwise than her statement, that they were calling each other and, therefore, she learnt their names. She was also not acquainted with them in any other capacity prior to the incident. In the F.I.R., she had not given description of any of the assailants. So, Police had no information except that one of the assailants was Iliyas, second was Baban and third was a Khatik person. On the basis of this much information, the three accused were arrested by the Police and are charge-sheeted.
14. It is worth noting that the accused Iliyas was arrested on the very next day of the incident early in the morning at 7. a.m. He was in the Police station on that day and further he was in Police custody for some period and thereafter, in magisterial custody. But no identification parade was held by the Investigating Officer with respect to Iliyas to establish his identity as one of the rapist.
15. The other two accused were arrested long time after the incident. But with respect to them also, no identification parade was held by the Investigating Officer. In such circumstances, the identification of the accused before the Court by Radhabai, at the time of giving deposition, is very weak evidence. So far as accused Iliyas is concerned, even that much identification is not there.
16. The learned Additional Sessions Judge, in his judgment, has observed that Radhabai had given names of the assailants in the F.I.R. and, therefore, even if no identification parade is held, that will not adversely affect the prosecution case. But he has forgotten the circumstance that Radhabai otherwise was not knowing the assailants. She gave their names, as per the prosecution case, only because the assailants were calling each other by that name.
17. In such circumstances, giving the names of the assailants in the F.I.R. does not mean that the informant was knowing the assailants at the time of incident because she was previously acquainted with them or because there was some definite circumstance which gave the knowledge about the assailants. Merely giving the first names or the caste in the F.I.R. is not sufficient to hold that the prosecutrix was knowing the assailants since before the incident and therefore, identification of the assailants before the Court was sufficient. The prosecution has utterly failed to prove that the three accused were properly identified by Radhabai as the assailants.
18. The prosecution is relying on the evidence of Rama, son of Radhabai. His deposition is at Exhibit 28. He has stated that there were three persons in the house. One boy of Khatik gaged his mouth and turned his face to other side. Sometime thereafter, Baban gaged his mouth. He has stated that his mother was naked and she was shouting. Obviously, Rama is not saying anything about actual commission of rape on his mother Radhabai. He has identified Shaikh Sikandar and Baban before
the Court as the persons who had gaged him. But when he was recalled, he failed to identify accused lliyas before the Court.
19. When the evidence of this witness indicates that he was not previously acquainted with any of the accused, identification of Baban and Shaikh Sikandar by this witness before the Court suffers from the same defects which we have pointed out above regarding identification by Radhabai. In the absence of identification parade, identification of two accused by Rama is meaningless.
20. The third witness who is examined by the prosecution to prove the incident is Baban Uphade (PW2). His deposition is at Exhibit 25. He states that he heard shouts of Radhabai. Therefore, he ran to the house of Radhabai. When he was entering into the house of Radhabai, two persons had caught him. He has further stated that those persons were Baban, Shaikh Sikandar and Iliyas. He has stated that all the three persons ran away. He has stated that Radhabai told him that Iliyas committed rape on her.
21. In the cross-examination, Baban (PW 2) has stated that on hearing shouts of Radhabai, he immediately came out of his house and then he saw 2-3 persons running away in dark. He has further stated that he was not knowing the names of those 2-3 persons. It is very difficult to reconcile this statement made in examination-in-chief and then in cross-examination. He has stated that two persons had caught him when he was entering into the house of Radhabai and then gave names of three persons as the persons who had caught him. In the cross-examination, he has stated that he came out of the house and then he saw 2-3 persons running away in the dark. If those persons had already run away, how they could have caught him when he was entering into the house of Radhabai. He has further stated that he was not knowing their names. When he was not knowing their names, how he could state their names in the examination-in-chief.
22. Thus, Baban(PW 2) is a got up witness. He is near relative of Radhabi and, therefore, he has given evidence against the accused, but that too, in such a way, that no heads or tails can be made out from his evidence. No identification parade was held for this witness Baban to identify any of the three accused during the course of investigation and, therefore, even if he has identified any of the accused before the Court, that would have been meaningless. But it is worth noting that no question was asked to him while recording his examination-in-chief, as to whether he was able to identify accused Baban and Shaikh Sikandar. When Iliyas was brought before the Court, he answered that he was not able to identify Iliyas.
23. So, evidence of Baban (PW 2) is of no use to establish identity of any of the accused in the alleged incident. The prosecution cannot establish that the three accused who were brought before the Court had actually entered in the house of Radhabai at that night, assaulted Radhabai and then two of the three accused, Iliyas and Baban, committed rape on Radhabai. It appears that merely because there is similarity in the names, these accused are prosecuted.
24. The prosecution has brought on record other evidence regarding medical examination of Radhabai. Dr. Mawalge is the prosecution witness No.3. Her deposition is at Exhibit 26 and the certificate issued by her is at Exhibit 27. Her evidence only indicates that Radhabai was accustomed to sexual intercourse. But there was no injury on the person of private part of Radhabai. Simple injuries were seen by her. An abrasion over right elbow and laceration over left knee joint of Radhabai were found. She also has stated that she took vaginal smear and on microscopic examination, she found 2-4 dead spermatozoa and on that basis, she has opined that Radhabai had sexual intercourse during last 24 hours prior to examination.
25. The learned Counsel for the appellant have argued that if two persons had committed rape forcibly on Radhabai, then there should have been injuries of some sort on her private part. But the report of the Doctor clearly indicates that there is not even tenderness on the private part. The two minor injuries seen on her body could have been caused by any reason and it cannot be said that those were caused because of rape committed on her. From this evidence, at the most, it can be said that Radhabai had sexual intercourse within 24 hours prior to her medical examination at about 5 a.m. on 14-11-1992. But that is not at all sufficient to hold that the accused are responsible for rape. If the prosecution had brought on record other convincing evidence to hold that the accused had committed rape on Radhabai, then this evidence of Doctor would have been a corroborative evidence for the prosecution. Otherwise, this evidence is of no use.
26. The prosecution has produced on record, reports of the Chemical Analyser. Those reports are at Exhibits 41,42 and 43. The report at Exhibit 41 is regarding the blood and semen sample of Shaikh lliyas, and the Chemical Analyser has reported that both were of blood group “B”. The report at Exhibit 42 is regarding stains found on saree and full pant, and the Chemical Analyser has reported that there were stains of semen of blood group “B” on both, saree and full pant. While the report at Exhibit 43 is regarding the samples of blood and semen of accused Shaikh Sikandar and Baban. The Chemical Analyser has reported that all the samples were of blood group “B”. The learned Additional Sessions Judge has relied upon these reports of the Chemical Analyser to hold the accused guilty for the alleged offence.
27. The saree was seized from the place of incident as per panchanama Exhibit 30. This panchanama is proved through the witness Prabhakar and P.S.I. Nandekar has also corroborated the evidence regarding seizure of saree from the place of incident. So, from this evidence, at the most, it can be said that a saree was seized from the hut of the prosecutrix. It was sent to Chemical Analyser for examination and report and the Chemical Analyser reported that there were stains of semen of blood group “B” on the saree.
28. The prosecution case is that the trouser worn by accused lliyas was seized after his arrest. The panchanama is at Exhibit 36. The panch, Gopal, is examined by the prosecution. But he turned hostile and he has not supported the contention of the prosecution that the trouser was seized from the person of accused lliyas. It is worth noting that the statement of panch, Gopal, was recorded in the absence of accused lliyas. He was recalled after the arrest of accused lliyas. But, at that time, learned Additional Public Prosecutor did not record his examination-in-chief in the presence of accused lliyas. So, whatever examination-in-chief and the cross-examination of panch witness has taken place in the absence of accused Itiyas is of no use for the prosecution to make out any case against accused Iliyas.This cross-examination by the learned Additional Public Prosecutor of panch witness, Gopal, taken when accused lliyas was not before the Court, cannot be used by the prosecution against accused lliyas because it was not taken in the presence of accused lliyas.
29. Furthermore, the evidence of P.S.I. Nandedkar is not sufficient to hold that the prosecution has established link between the report of the Chemical Analyser and the accused. The prosecution has not examined the Doctor who had taken the sample of blood and semen of the accused. The prosecution has also not examined the carrier who had taken the samples to the Chemical Analyser. The prosecution, thus, has failed to establish beyond reasonable doubt that the blood and semen of these very accused were collected and those were securely and properly handed over to Chemical Analyser for examination and report. The learned Additional Sessions Judge erred in relying on reports of the Chemical Analyser to hold that they are vital link in prosecution case. The
reports of the Chemical Analyser are of no use to the prosecution to establish that the accused were responsible for the sexual assault on the prosecutrix. Hence, that evidence has to be excluded.
30. Hence, it will be seen that the prosecution is not able to establish that the three accused before the Court were the very persons who had committed rape on prosecutrix. When the prosecutrix was not acquainted with any of the accused prior to the incident, the prosecution ought to have established identity of the accused with very strong evidence. In such circumstances, benefit of doubt must be given to all the accused.
31. The learned Additional Sessions Judge has committed grave error by relying on the evidence to convict accused No. Iliyas which was not recorded in his presence. The record and proceedings shows that the accused Iliyas was absconding. So, on 6-3-1995, the learned Additional Sessions Judge had directed that his case be separated from the remaining two accused and thereafter the matter proceeded with respect to the accused Nos. 2 and 3. As already pointed out, during the course of this trial, accused Iliyas was produced before the Court on 14-6-1995. The learned Additional Sessions Judge has observed that the trial as against accused Iliyas was already split up under section 317(2) of Cr.PC. But he further observed that as the trial was not yet concluded, the case as against accused Iliyas can be united with other two accused and he further directed to issue witness summons to all the witnesses who were already examined but with the rider only for cross examination from accused Iliyas.
32. The basic principle of the criminal trial is that the evidence must be recorded in the presence of the accused. Section 273 of the Code of Criminal Procedure, reads as follows:
“Except as otherwise expressly provided, all evidence taken in the course of trial
or other proceeding shall be taken in the presence of the accused, or, when
his personal attendance is dispensed with, in the presence of his pleader.”
It is important to note that the section provides that all evidence must be recorded in the
presence of the accused that means, examination-in-chief as well as cross-examination.
The only exception provided is under section 317(1) of the Cr.P.C. But when the order is
passed under section 317(2) of the Cr.P.C., separating the trial of one or some of the
accused, then the evidence which is recorded in the presence of the accused who are
actually before the Court cannot be used against the accused even if he is produced
before the Court in the same trial at latter stage.
33. In the present matter, all the prosecution witnesses were recalled and the record shows that the learned Additional Public Prosecutor put questions to some of the witnesses by way of examination-in-chief and then the witness was offered for cross-examination on behalf of accused No.1. Taking into consideration the provisions of section 273 of the Code of Criminal Procedure, only that part of examination-in-chief which was recorded in the presence of accused Iliyas can be taken into consideration to decide the case of accused Iliyas. However, the learned Additional Sessions Judge has taken into consideration all that evidence which was recorded in the absence of accused Iliyas to convict him. It appears that the learned Additional Sessions Judge was under the impression that once the witness is offered for cross-examination, it may be presumed that the evidence which was recorded in the absence of accused goes on record against him. The conviction of accused Iliyas on the basis of evidence which was not recorded in his presence is absolutely illegal.
34. Here, it should be noted that even under section 299(1) of the Code of Criminal Procedure, the evidence can be recorded in the absence of the accused. But it can be used against him when he is brought before the Court during the course of enquiry or
trial in his presence only in the circumstance that the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable. So, the normal rule is that the evidence must be recorded in the presence of the accused which is fully accepted under section 299 of the Cr.P.C. and only in exceptional circumstances mentioned in the section, evidence which is recorded in the absence of the accused can be used against him. In the present case, no such exceptional circumstances were prevailing. The witnesses were available. The witnesses were called in the Court. It was, therefore, necessary to record the entire evidence of those witnesses, examination in-chief as well as cross-examination, with respect to all matters on which the prosecution wanted to rely upon in the presence of accused Iliyas and then that evidence could have been used against him. The procedure followed by the learned Additional Sessions Judge has definitely caused grave prejudice to the accused.
35. Hence, Criminal Appeal Nos. 284/1995 and 288/1995, both, are allowed. The order of conviction and sentence passed by the learned Additional Sessions Judge, Parbhani, in Sessions Case No. 122/1993, on 17-8-1995, for offence punishable under sections 376(2)(g) and 448, read with section 34 of Indian Penal Code, against appellants, and section 354 of Indian Penal Code, against appellant Shaikh Sikander, is set aside. The appellants are acquitted of the said offences. Appellant No.1 in Criminal Appeal No. 284/1995, Baban, who is undergoing imprisonment, be released forthwith, if not required in any other case. The bail bonds of other appellants stand cancelled. Fine, if paid, be refunded to the appellants.
36. Mr. B.A. Darak, Counsel appointed for the appellants in Criminal Appeal No. 284/1995 has argued the matter before us. Hence, we quantify his fees at Rs. 500/- (Rupees five hundred).
37. Appeals allowed.