JUDGMENT
1. The accused appeals.
2. The appellant was charged and tried for the offence punishable under Sections 302, 376 and 379 of the IPC. The allegation against him before the trial Court is that after he committed rape on Palo Devi, the sister of PW 1, Syamlal Karmali and after snatching away a silver chain she was murdered by assaulting her. The learned trail Judge, finding the appellant guilty as charged, while sentencing him to imprisonment for life under Section 302 IPC, directed him to suffer rigorous imprisonment for seven years under Section 376, IPC and one year under Section 379 IPC. The present appeal is against the said conviction and sentence.
3. The facts are as follows:
PW 1, Shyam Lal Karmali is the brother of the deceased, Palo Devi, On 10.4.1981, PW 1 and the deceased, Palo Devi left the village for the husband’s house of Palo Devi which was at village Ichatu. While they were proceeding to village Ichatu and reached a lonely place at Didgi field near village Chotki Lari a person who was short with fair complexion (according to the prosecution it is the appellant) appeared before them and caught hold of polo Devi. He molested Palo Devi to which PW 1 objected but he was threatened and assaulted. Therefore, PW 1 ran away from the place and that the appellant dragged the deceased, Palo Devi to a nearby field PW 1 reached the village Ukri D where and informed PW 2, Shibu Karmali, PW 8, Libu Karmali and PW 3, Dinu Mahto about the occurrence. PW 1 accompanied by the above mentioned three persons returned to the place and found the deceased lying on the ground. She told PW 1 and the other witnesses that she was raped by the person who misbehaved with her. Immediately thereafter she was taken to the village and at 10.30 p.m. Palo Devi breathed her last. On the next day, PW 1 went to the police station and gave Ext. 2, fardbeyan, on the basis of which a crime was registered. The investigation in the crime was taken up and inquest was conducted by PW 6. The inquest report is Ext. 8. After the inquest the body was sent for post-mortem.
4. On receipt of the requisition PW 9, Dr. Bedbrata conducted autopsy on the dead body of Palo Devi and he found the body to be in a highly decomposed stage. On dissection he found bleeding and also noticed fracture of the body of sternum, right chamber of heart full of blood. He also found lyrinx and treachea conjested. He found foetus. He could not give any opinion as regards rape as the body was in a highly decomposed stage. He issued Ext. 7, the post-mortem certificate with his opinion that the death could be on account of asphyxia.
5. After completion of investigation the final report was filed against the appellant and when questioned under Section 313, Cr PC on the incriminating circumstances appearing against him he denied them.
6. The learned Counsel appearing for the appellant submits that PW 1 could not have been present along with the deceased at the time of occurrence and his evidence that the deceased was raped and that she was murdered by the appellant cannot be believed since, according to the counsel, the prosecution failed to establish the identity of the person who committed the offence.
7. We have heard Mr. Sumir Prasad, learned Counsel appearing for the State.
8. Though there can be no dispute that Palo Devi died on account of homicidal violence we find that the prosecution has not established the case against the appellant beyond all reasonable doubt. The prosecution came out with a version before the trial Court that PW 1 and his sister, Palo Devi left for the village Ichatu where she was living with her husband and that on the way a short man appeared and molested Palo Devi. The further evidence of PW 1 is that he ran away from the place to inform PWs. 2, 3 and 8 and later when they returned to the place they found the deceased, Palo Devi lying with injuries and that she informed them that she was raped by a person who molested her. Admittedly, the appellant was a total stranger to PW 1 and the deceased. Therefore, PW 1 did not know the name of the appellant. After the investigation was taken up the Investigating Officer did not take any steps to have a Test Identification Parade conducted by a Magistrate so as to enable PW 1 to identify the appellant as the person who waylaid them and molested Palo Devi. There is also no explanation from the prosecution side as to why no Test Identification Parade was conducted for enabling PW 1 to identify the appellant. The prosecution also did not examine the investigating officer and had he been examined he would have given the particulars and materials on the basis of which he came to the conclusion that the appellant committed the offences. The non-examination of the investigating officer, in the circumstances, is also fatal to the prosecution. The fact that the appellant was identified by PW 1 in Court which was six years after the incident cannot be taken in favour of the prosecution to hold that PW 1 was able to identify the appellant in Court and therefore, he must have been the person who committed rape and murdered the deceased. When a person is produced as an accused in Court in a given case the witness who had no opportunity to identify him in the Test Identification Parade will presume that the police officer has correctly arrested the accused and in the circumstances will identify him to be the person who committed the offence and this identification is not because of the fact that he knew the identity of the person but because of his faith on the police officer that the person who has been arrested is the person who committed the offence. In the above circumstances, no strong reliance can be placed on the identification of the appellant in Court by PW 1. In the absence of any material and in absence of other circumstances connecting the appellant with the crime we cannot but, acquit the appellant. He is accordingly acquitted.
9. The appeal is allowed. It is reported that the appellant is on bail. He is discharged from his bail bonds.