Secondly, and more importantly, there is a fatal
flaw in the prosecution case on account of the failure
to get identification of the accused done by the victim
during her deposition before the trial Court. {Para 53}
54. We feel that the presiding officer of the trial
Court as well as the Public Prosecutor were equally
responsible for this fatal omission. The significance
of this omission is further amplified by the fact that
the accused was not named in the FIR; the victim
categorically stated that the police had disclosed his
name to her and; the prosecution merely relied upon
the TIP to establish the identity of the accused.
55. The prosecution case thus suffers from serious
infirmities regarding the identification of the accused;
grave contradiction between the medical evidence
pertaining to the age of the injuries and the alleged
time of the incident as set out in the FIR and the
depositions of the prosecution witnesses.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 135 OF 2026
DHANRAJ Vs STATE OF RAJASTHAN
Author: Mehta, J.
Dated: SEPTEMBER 07, 2026.
1. Heard.
2. The appellant-Dhanraj1 seeks to assail the
judgment dated 20th August, 2025 rendered by the
Division Bench of the Rajasthan High Court2 in D.B.
Criminal Appeal No. 338 of 2019 whereby the appeal
preferred by the accused-appellant was dismissed
and the judgment dated 5th September, 2019 passed
by the learned Special Judge, Protection of Children
1 Hereinafter referred to as “accused-appellant”.
2 Hereinafter referred to as “High Court”.
from Sexual Offences Act, 2012 and the Commission
for Protection of Child Rights Act, 2005 No. 2, Ajmer3
convicting and sentencing the accused-appellant as
below, was affirmed:
Offences Sentence Fine
Section 376 and
376(2)(i)(j) of the
Indian Penal
Code, 18604
Life Imprisonment
(which means rest
of the period of his
natural life)
To pay a fine of Rs.
50,000/-; in default
thereof to further
undergo 1 month’s
R.I.
Section 363 IPC 7 years Rigorous
Imprisonment
To pay a fine of Rs.
5,000/-; in default
thereof to further
undergo 1 months’
R.I.
Section 323 IPC 1 years Simple
Imprisonment
To pay a fine of Rs.
1,000/-; in default
thereof to further
undergo 15 days’
Additional
Imprisonment
Brief Facts
3. The complainant, ‘B’ (PW-3) lodged a written
report (Exh. P/1) with the SHO, Police Station Kekri,
Ajmer on 7th December, 2016 alleging inter alia that
on 5th December, 2016, his wife ‘M’ (PW-1) and his
3 Hereinafter, referred to as “trial Court”.
4 For short, “IPC”.
two children, son aged about 11 years and daughter
(victim) aged about 5 years, had gone to the house of
his aunt-in-law (Bhua Saas) for attending some
programme. His wife called him at his workplace and
enquired whether their daughter was with him. Upon
the complainant answering in negative, his wife
raised a concern that the child was not traceable. The
complainant immediately rushed back to the village
and started searching for his daughter along with
Bhopal Singh. Announcement regarding the child
having gone missing was made through loudspeaker
of the Masjid, pursuant to which the villagers joined
the search for the child. After some time, two persons,
namely, Kailash Keer (PW-4) and Prahlad Khati (PW-
5) came to his house with the child. His wife was
present at that time and noticed that the victim was
bleeding from her private parts. The victim was taken
to the hospital at Juniya, however, feeling
embarrassed and concerned due to societal backlash,
they chose not to inform the police.
4. The victim told her parents that she had gone
with Devraj and Khushi for buying toffee and when
she was returning, a boy approached her and lured
her towards the side of higher secondary school. She
was pushed into the bushes where the boy removed
her clothes and subjected her to sexual assault.
When she tried to shout, the boy gagged her mouth
and threatened to kill her. She started bleeding from
her genitals owing to the assault, upon which the boy
ran away from the spot. She noticed illumination in
the distance and proceeded towards that direction,
where Prahlad Khati met her. She was thereafter
taken to the house of Kailash Keer and inquiries were
made from her. Upon disclosing her father’s name,
the said two persons brought her back home.
5. On the basis of the aforesaid report, FIR No. 848
of 2016 (Exh. P/3) came to be registered at the Police
Station Kekri, District Ajmer, on 7th December, 2016
against an unknown person for the offences
punishable under Section 376 of the IPC and
Sections 3/4 of the Protection of Children from
Sexual Offences Act, 20125 and investigation was
commenced.
6. The accused-appellant was arrested on 5th
February, 2017. He was subjected to Test
Identification Parade6 in which the victim identified
5 For short, “POCSO Act”.
6 Fort short, “TIP”.
him to be the assailant. Upon conclusion of the
investigation, a chargesheet came to be filed against
the accused-appellant for the offences punishable
under Sections 363, 366A, 323, 376, 376(2)(i)(j) of
IPC and Sections 3/ 4 and 5(m)/6 of the POCSO Act,
in the Special Court (POCSO).
7. The Special Judge framed charges against the
accused-appellant for the aforesaid offences. The
accused-appellant abjured his guilt and claimed trial.
The prosecution examined 10 witnesses and
exhibited 21 documents in order to prove its case.
The accused-appellant was questioned under Section
313 of the Code of Criminal Procedure, 19737 and,
upon being confronted with the circumstances
appearing against him in the prosecution case, he
denied the same, claimed to be innocent and further
stated that on the date of incident i.e. 5th December,
2016, he was not in the village and had gone with his
wife to a place called Gangoj. 5 witnesses were
examined and 9 documents were exhibited in defence
to support his plea of alibi and false implication.
7 For short, “CrPC”.
8. After considering the submissions advanced by
the learned public prosecutor and learned defence
counsel and upon analysis of the evidence available
on record, the trial Court proceeded to convict and
sentence the appellant as noted supra8.
9. The aforesaid judgment of conviction and
sentence was assailed by the accused-appellant
before the High Court in Criminal Appeal No. 338 of
2019, which stands rejected by the Division Bench
vide impugned judgment dated 20th August, 2025.
10. Being aggrieved, the accused-appellant is before
us by way of the instant appeal with special leave.
11. We may note that as per the custody certificate
available on record, the accused-appellant has
remained incarcerated in prison ever since the date
of arrest, i.e. 5th February, 2017.
Submissions on behalf of the accused-appellant
12. Shri Namit Saxena, learned counsel appearing
on behalf of the accused-appellant, urged that the
appellant has been falsely implicated at the behest of
the local MLA, with whom the accused-appellant was
admittedly at enmity. He submitted that the victim
8 Para 2.
had not furnished any description or identifying
features of the assailant in her earliest statements to
the police. It was further submitted that the accused appellant
was a permanent resident of the same
village, remained available throughout and did not
evade arrest; therefore, the fact that he came to be
apprehended only after a period of nearly two months
without any basis for identification casts a grave
doubt on the prosecution case.
13. Learned counsel submitted that the prosecution
case is completely demolished by a bare look at the
testimony of the victim (PW-2), who, though claimed
that she could identify the accused if he came before
her, did not actually identify the accused-appellant
during her sworn testimony before the trial Court. It
was urged that the prosecution has, thus, failed to
establish the identity of the perpetrator through
substantive evidence of identification.
14. Learned counsel further submitted that the
prosecution cannot seek to overcome this
fundamental deficiency merely by placing reliance
upon the TIP, particularly when the victim and her
mother admitted that the police had earlier disclosed
the name of Dhanraj to them and that the accused
appellant was present when an identification exercise
was conducted at the police station. It was further
contended that the prosecution version regarding
identification is rendered even more suspect by the
earlier identification exercise conducted in the
village, wherein, according to the defence, the victim
failed to identify the accused-appellant. Learned
counsel submitted that this circumstance was
specifically stated by mother of the victim (PW-1) in
her testimony and was not properly considered by
either of the Courts below. The subsequent TIP,
therefore, could not have been treated as a credible
corroborative circumstance for establishing the
identity of the accused-appellant.
15. Shri Saxena contended that the prosecution
itself withheld a material piece of evidence, namely,
the sketch of the alleged assailant prepared at Jaipur
with the assistance of the victim. The victim (PW-2)
stated in her deposition that the police had taken her
to Jaipur and had a sketch of the accused prepared,
while PW-1 also referred to the preparation of such
sketch. Yet, the said sketch being a crucial piece of
corroborative evidence was neither made part of the
chargesheet nor produced before the trial Court. It
was urged that the non-production of this vital piece
of primary evidence in the hands of prosecution
assumes significance because the description
allegedly furnished by the victim at the earliest stage
could have afforded an objective means of testing the
subsequent identification of the accused-appellant in
the TIP.
16. Shri Saxena further contended that the medical
and forensic evidence does not furnish any nexus
between the accused-appellant and the alleged
offence. Though the forensic examination is stated to
have detected sperm in the victim’s sample, no DNA
examination or other scientific evidence was collected
establishing that the biological material was that of
the accused-appellant. Thus, even assuming that the
medical evidence established that the victim had
suffered the alleged assault, it does not establish that
the accused-appellant was the perpetrator.
17. Shri Saxena lastly submitted that the accused appellant
had led substantial defence evidence in
trial in support of his plea of false implication and
alibi, which was not properly appreciated by the
Courts below. According to him, the cumulative effect
of the doubtful identification, non-production of the
sketch, prior disclosure of the appellant’s name by
the police, the failure of the victim to identify the
appellant in Court and absence of any DNA
corroboration, creates a grave doubt regarding the
appellant’s involvement in the crime. He, therefore,
urged that the conviction of the accused-appellant
cannot be sustained and that he deserves to be
acquitted by extending the benefit of doubt.
Submissions on behalf of the respondent
18. Per contra, Mr. Kartikeya Asthana, learned
counsel appearing on behalf of the State of
Rajasthan, supported the impugned judgment and
submitted that the prosecution has succeeded in
establishing the guilt of the accused-appellant
beyond reasonable doubt.
19. Learned counsel submitted that the victim had
no reason whatsoever to falsely implicate the
accused-appellant and that her testimony, read as a
whole, inspires confidence. He contended that the
victim had correctly identified the accused-appellant
in the TIP conducted during the course of
investigation and that such identification, coupled
with her vivid account of the incident and the
surrounding circumstances, establish the identity of
the accused-appellant beyond reasonable doubt. The
mere fact that the child could not specifically point
out the accused-appellant from the witness box
during her deposition, according to learned counsel,
is at best an omission of a trivial nature and cannot
outweigh the identification made during the TIP or
render the otherwise consistent prosecution case
doubtful.
20. It was further submitted that the victim was a
tender aged child of about 5 years at the time of the
incident and hence, minor discrepancies were bound
to appear in her evidence. The fact regarding the
victim having been subjected to grave sexual assault
has been well-established by cogent testimony of the
child and thoroughly corroborated by the medical
jurist (PW-7). It was urged that the medical evidence,
read with the testimony of the victim and the
testimony of other prosecution witnesses, establishes
that the victim had been subjected to grave sexual
assault and materially corroborates the prosecution
case.
21. Learned counsel further urged that the absence
of DNA evidence cannot by itself discredit the
otherwise reliable prosecution case, particularly
when the ocular and medical evidence is sufficient to
establish the commission of the crime and the
involvement of the accused. He urged that the
prosecution is not required to establish its case by
scientific evidence in every case where trustworthy
direct evidence is available.
22. Learned counsel lastly submitted that the
alleged contradictions regarding the delay in the FIR,
preparation of the sketch, TIP and other peripheral
aspects are trivial and do not affect the core of the
prosecution case, and that the Courts below have
appreciated the evidence in an apropos manner and
recorded concurrent findings of guilt which do not
warrant interference by this Court in the exercise of
jurisdiction under Article 136 of the Constitution of
India. Thus, he implored the Court to dismiss the
appeal and affirm the judgments of the Courts below.
Analysis
23. We have given our thoughtful consideration to
the submissions advanced at bar and have gone
through the impugned judgment. We have, also
carefully scrutinised the evidence available on record.
Infirmities in the investigation
24. Suffice it to say that the FIR pertaining to the
incident dated 5th December, 2016 came to be lodged
by the victim’s father (PW-3) on 7th December, 2016,
with a plausible explanation for delay that the family
was apprehensive of public humiliation which
prevented them from immediately approaching the
police. The said explanation for delay is justified
considering the fact that the parties hail from a rural
background. We, therefore, do not consider the delay
of about two days in lodging the FIR, by itself, as
having any adverse consequence on the prosecution
case.
25. However, the significance of the contents of the
FIR, to be specific, the omissions therein, cannot be
overlooked while examining the subsequent theory
about identification of the accused-appellant. The
FIR neither discloses the identity of the accused nor
does it refer to any particular features of the accused
which could have assisted the victim to identify the
accused in the TIP. The identity of assailant was
admittedly not known at the time when the FIR was
lodged. Consequently, the manner in which the
identity of the accused-appellant came to be
ascertained subsequently assumes considerable
importance.
26. The two witnesses, namely, Kailash Keer (PW-4)
and Prahlad Khati (PW-5) who first came into contact
with the victim after she had been assaulted, did not
support the prosecution case and were declared
hostile.
27. The accused-appellant was arrested on 5th
February 2017, i.e. nearly two months after the
alleged incident. The circumstances leading to his
arrest are themselves not free from doubt.
28. The Investigating Officer (PW-8) was cross examined
on behalf of the defence, and a specific
suggestion was put to him with reference to the
complaints made by the accused-appellant and his
family members regarding false implication of the
accused-appellant at the behest of the local MLA. The
Investigating Officer admitted that the complaints
made on behalf of the accused and his family
members, supported by affidavits, had been received
by him, but he did not make any inquiry into such
complaints.
29. This omission assumes significance because the
defence was not merely putting forth a bare
suggestion of false implication. It had specifically
brought to the notice of the Investigating Officer that
the accused-appellant and his family members had
approached the authorities alleging that the
appellant was being falsely implicated and targeted
on account of political rivalry. Once such complaints
were admittedly received during the course of
investigation, the Investigating Officer was expected
to undertake at least some verification before
completely discarding the same. His failure to
conduct any inquiry on these complaints deprives the
Court of an important circumstance which could
have either fortified or dispelled the defence plea.
30. As the identity of the assailant was not known,
a pertinent question was put to the Investigating
Officer as to how he could confirm the fact regarding
the accused-appellant being the assailant, to which,
he replied that the accused-appellant was arrested on
the basis of source informer’s report, but there was
no foundation for this assumption.
31. The Investigating Officer further admitted that
the victim and her father were taken to Jaipur, and
that a sketch was prepared for the purpose of
identifying the accused. However, he admitted that
the said sketch was not available with him and had
not been produced before the trial Court. This
circumstance assumes considerable significance, as
the sketch, having been prepared with the assistance
of the victim at an early stage of the investigation,
constituted an important corroborative material for
ascertaining the identity and physical features of the
then unknown assailant. The non-production of the
said sketch deprives the Court of an opportunity to
examine whether the description furnished by the
victim at the earliest stage was consistent with the
physical features of the accused-appellant.
32. Hence, it is safe to conclude that the
Investigating Officer had no reliable evidence which
could point the finger of suspicion towards the
accused-appellant as being the perpetrator of the
crime. Thus, there remains a serious doubt regarding
the basis on which the accused-appellant came to be
arrested and his subsequent identification as the
assailant.
Medical evidence and absence of scientific
corroboration
33. Dr. Archana Mithal (PW-7) examined the victim
on 7th December, 2016 i.e., after two days of the
incident as alleged by the prosecution and took note
of some injuries on her body. The Doctor stated that
she noticed a wound admeasuring one inch starting
from the perianal region and extending till the vagina,
from which foul-smelling pus was oozing and
maggots were also present. The Doctor gave a
pertinent opinion that these injuries were between 5
to 7 days old.
34. The duration of the injuries was stated by the
doctor (PW-7) in her examination-in-chief itself.
Hence, even as per the prosecution’s own theory, the
age of the injuries does not match with the time and
date of the incident as alleged in the FIR and in the
deposition of the prosecution witnesses. This
significant gap between the age of the injuries and
the time of the incident alleged in the FIR and the
deposition of the witnesses cannot be reconciled and
creates a significant dent in the prosecution case.
35. It is also relevant to note that the prosecution
did not lead any corroborative scientific evidence in
the form of any serological report, DNA profiling or
any other forensic evidence which could corroborate
the testimony of the child victim and establish a
nexus between the accused-appellant and the crime.
18
CRIMINAL APPEAL NO(S). 135 OF 2026
The medical evidence may establish the factum of
injuries associated with sexual assault, but it does
not help in establishing the identity of the person who
caused such injuries. In the absence of any DNA
profiling or other serological evidence connecting the
biological material recovered from the victim with the
accused-appellant, the prosecution has failed to
establish the necessary link between the crime
committed and the involvement of the accusedappellant
therein.
36. The aforesaid circumstances assume
significance when considered alongside the other
infirmities in the investigation and, more
importantly, the lackadaisical effort in identification
of the accused, and thereby create a significant doubt
regarding the genuineness of the prosecution version.
Non-identification of the accused-appellant
37. The most significant, and, in our view, fatal flaw
in the prosecution case emerges from the deposition
of the child victim (PW-2) herself. The entire
deposition of the child victim (PW-2) is reproduced
hereinbelow: -
“Examination-in-chief
We are two siblings. My brother’s name is Axxx.
My father drops the children off at school. He
19
CRIMINAL APPEAL NO(S). 135 OF 2026
takes them in a van. We went to my aunt's house
two years ago. A DJ was playing there. Then, my
aunt's son, Dxxx, and my maternal
grandmother's sons went to the store to buy
something. We were returning when Dxxxx said,
a ghost has come, I said there are no ghosts.
Thereafter, Dxxxx and he left. Then a boy took
me behind the big school. He removed my clothes
and started giving on my stomach and cheeks.
He started having intercourse with me. The
witness touched her private parts and said it
hurted a lot here. Then he ran away. His mobile
phone was left there which he came back to get.
I know the accused. His name is Dhanraj. A
report was filed against him, which is Exhibit P1,
on which I have my signatures from C to D. The
FIR exhibit is P-3 on which my signatures are
from C to D. The site map is exhibit P-4 on which
my signatures are from A to B. The site map is
exhibit P-5 on which my signatures are from A to
B. The police took my clothes for which a report
was made which is exhibit P-2 on which my
signatures are from C to D. My medical
examination was done which is exhibit P-6 on
which my signatures are from A to B. My injuries
were also medically examined. My statement was
taken by the judge. I study in Balaji school. The
police had got the face of accused Dhanraj made.
I can identify accused Dhanraj if he comes in
front of me.
Cross-examination
After the incident, we went to Kekri police
station. The police had gathered several men and
Dhanraj at the police station and asked me to
identify them. I described the wrong done to me
in statements given to Judge in (Exhibit D-4) and
to police in (Exhibit D-3). It is correct to say that
we went to the hospital on the day of the
incident, and the doctor examined me, made a
prescription, and prescribed medication. It is
20
CRIMINAL APPEAL NO(S). 135 OF 2026
correct to say that when the police took me, I
described the boy’s appearance to the police. It
is correct that the police told me Dhanraj's
name. The suggestion that I mentioned
Dhanraj’s name in my chief examination is
false.”
(Emphasis supplied)
38. A careful reading of the aforesaid testimony
reveals a material infirmity bearing directly upon the
identification of the accused-appellant.
39. The victim (PW-2) in her examination-in-chief
stated that she knew the accused and that his name
was Dhanraj. She further stated that she could
identify Dhanraj if he came before her. However, in
her cross-examination, she stated that after the
incident, the police had gathered several persons,
including Dhanraj, at the police station and asked
her to identify them. More significantly, in response
to a pertinent question put by the defence, she
categorically admitted that the police had told her the
name of Dhanraj.
40. The accused was admittedly not named in the
FIR and the victim herself admitted that his name
had been disclosed to her by the police. In this
backdrop, the evidentiary worth of the identification
21
CRIMINAL APPEAL NO(S). 135 OF 2026
made by the victim during the TIP has to be examined
in light of the settled legal position governing the
distinction between substantive and corroborative
identification. We may note that the trial Court as
well as the High Court seem to have been significantly
swayed by the fact that the child victim (PW-2)
correctly identified the accused in the TIP.
41. Law is well-settled by a catena of decisions of
this Court that the substantive evidence for
establishing the identity would be that of
identification of the accused by the witness in the
Court and test identification proceedings conducted
during investigation are merely corroborative in
nature.
42. In this regard we may gainfully refer to the
following observations made by a 3-Judge Bench of
this Court in Rameshwar Singh v. State of J&K9
wherein this Court observed as follows: -
“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 furnishes to
9 (1971) 2 SCC 715.
22
CRIMINAL APPEAL NO(S). 135 OF 2026
the investigating agency an assurance that the
investigation is proceeding on right lines in
addition to furnishing 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 investigating 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 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.”
(Emphasis supplied)
43. The principle assumes particular significance in
the facts of the present case. TIP is intended to test
the memory and capacity of a witness to identify a
person whom the witness claims to have seen during
23
CRIMINAL APPEAL NO(S). 135 OF 2026
the occurrence and to lend corroboration to the
identification subsequently made before the Court.
The test identification proceedings undertaken
during investigation cannot be treated as substantive
proof of identity. Substantive proof would be the
identification of the accused by the witnesses while
testifying on oath or dock identification in common
parlance.
44. In the instant case, the trial Court convicted the
accused-appellant, inter alia, on the basis of the
identification made by the victim during the TIP,
totally ignoring the fact that no effort was made to get
dock identification of the accused-appellant by the
victim. This omission assumes even greater
significance in the peculiar facts of the present case.
The accused was not named in the FIR; the victim
had admittedly been told his name by the police; the
sketch allegedly prepared with the assistance of the
victim was not produced on record; and the
prosecution’s primary thrust for connecting the
accused-appellant with the offence was the
identification made by the victim during the TIP. In
these circumstances, the absence of dock
identification cannot be treated as a mere technical
or insignificant omission. The prosecution was under
an obligation to lead substantive evidence
establishing that the person standing trial was
indeed the person whom the victim claimed to have
seen and identified as her assailant. Failure to
undertake this exercise during recording of
substantive evidence would completely demolish the
prosecution case which is based on the sole
testimony of the victim (PW-2).
Duty of the Court to ensure a fair and effective
examination
45. A criminal trial is not merely an adversarial
contest between the prosecution and the accused.
The ultimate obligation of the Court is to discover the
truth and ensure that the finding of guilt rests upon
legally admissible and reliable evidence. The Court is
not expected to remain a mute spectator where an
aspect of evidence bearing directly upon the guilt or
innocence of the accused is left unattended. The role
of the Court is not confined to passively recording the
evidence as presented by the parties; it is required to
ensure that the material evidence necessary for a just
adjudication is properly brought on record.
25
CRIMINAL APPEAL NO(S). 135 OF 2026
46. Section 165 of the Indian Evidence Act, 1872
(Corresponding to Section 168 of the Bharatiya
Sakshya Adhiniyam, 2023) confers wide powers upon
the Court to put questions to witnesses and to direct
production of documents or things in order to
discover or obtain proper proof of relevant facts. In
Zahira Habibulla H. Sheikh v. State of Gujarat10,
this Court held that Section 311 of the CrPC
(Corresponding to Section 348 of the Bharatiya
Nagarika Suraksha Sanhita, 2023) and Section 165
of the Evidence Act, 1872 confer vast and wide
powers upon the Presiding Officer and that the
Courts are not expected to function as mere recording
machines, passively receiving whatever the parties
choose to place before them. The Court is required to
take a participatory role in the trial, evince active
interest and elicit all material necessary for arriving
at the truth.
47. The need for such intervention was particularly
manifested in the present case. We have perused the
proceeding sheet of the trial Court dated 2nd
November, 2018, on which date, the depositions of
10 (2004) 4 SCC 158.
26
CRIMINAL APPEAL NO(S). 135 OF 2026
the victim’s mother (PW-1) and the victim (PW-2) were
recorded. From the said proceedings, we find that the
accused-appellant was produced in Court from
judicial custody on that day and was accordingly
present in the Court when the victim (PW-2) entered
the witness box and specifically stated, in her
examination-in-chief, that she could identify Dhanraj
if he came before her.
48. Yet, owing to the sheer negligence on the part of
the Public Prosecutor concerned and the gross
ignorance exhibited by the learned Presiding Officer,
no effort was made to have the accused-appellant
identified by the victim during her deposition, so as
to confirm the fact that the person standing trial was
indeed the assailant. The omission was neither
occasioned by any unavoidable circumstance nor
beyond the control of the Court. It was a simple step
that could readily have been undertaken in the
course of recording the substantive evidence,
particularly when the identity of the accused was
itself a crucial issue in the case.
49. In the peculiar facts of the present case, the
failure to undertake this exercise assumes serious
significance, as the prosecution ultimately sought to
rely upon the identification made during the TIP to
connect the accused-appellant with the crime.
Cumulative effect of the infirmities
50. In this background, we are of the firm opinion
that the case of prosecution has to fail on the
following grounds:
51. Firstly, there is a material discrepancy in the
medical evidence and the deposition of the witnesses
regarding the time of the incident which goes to the
root of the matter affecting the veracity of the
prosecution case.
52. At the cost of repetition, we may mention that
as per the deposition of the medical jurist (PW-7), the
injuries on the body of the victim were 5-7 days old.
The medical jurist examined the victim on 7th
December, 2016. Hence, the incident could not have
taken place on 5th December, 2016 as alleged in the
FIR and must have taken place at least 2-3 days
earlier. The presence of pus and maggots in the
wound noticed by the doctor on the perianal region of
the victim, is also indicative of the fact that the
injuries were at least 5-7 days old.
53. Secondly, and more importantly, there is a fatal
flaw in the prosecution case on account of the failure
to get identification of the accused done by the victim
during her deposition before the trial Court.
54. We feel that the presiding officer of the trial
Court as well as the Public Prosecutor were equally
responsible for this fatal omission. The significance
of this omission is further amplified by the fact that
the accused was not named in the FIR; the victim
categorically stated that the police had disclosed his
name to her and; the prosecution merely relied upon
the TIP to establish the identity of the accused.
55. The prosecution case thus suffers from serious
infirmities regarding the identification of the accused;
grave contradiction between the medical evidence
pertaining to the age of the injuries and the alleged
time of the incident as set out in the FIR and the
depositions of the prosecution witnesses.
56. We also take note of the fact that the accusedappellant
has remained in custody for more than
nine years. In the peculiar facts and circumstances
of the case, no useful purpose would be served by
remanding the matter to the trial Court for recording
the testimony of the victim afresh. The fatal flaw on
the aspect of identification cannot be cured at this
belated stage even if we were to consider remanding
the case for de novo trial. The material evidence and
deposition of key witnesses is already before us and,
upon a careful examination thereof, we are of the firm
opinion that the deficiencies noted above go to the
root of the matter and the prosecution has failed to
prove its case beyond reasonable doubt so as to bring
home the charges against the accused-appellant.
Conclusion
57. As a consequence of the above discussion, we
are of the firm opinion that the trial Court as well as
the High Court fell in grave error in convicting and
affirming the conviction of the accused-appellant.
The findings recorded by the trial Court and affirmed
by the High Court holding that the prosecution case
stands on credible and reliable evidence are ex facie
untenable in facts and in law.
58. The judgment dated 5th September, 2019
passed by the trial Court and impugned judgment
dated 20th August, 2025 passed by the High Court do
not stand to scrutiny and are hereby set aside.
59. The appellant is acquitted of the charges. He is
in custody and shall be released from prison
forthwith, if not wanted in any other case.
60. The appeal is allowed in these terms.
CRIMINAL APPEAL NO(S). 135 OF 2026
61. Pending application(s), if any, shall stand
disposed of.
.….……………………J.
(SANDEEP MEHTA)
....…………………….J.
(MANMOHAN)
NEW DELHI;
SEPTEMBER 07, 2026.
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