Hearsay evidence when becomes admissible-Res gestae witness

Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130

S. 154 - FIR - Discrepancies/Omissions in FIR - Non-mentioning of name of accused, even though there was
awareness of - Effect - Rape case - Prosecutrix lodging FIR promptly, but not mentioning name of appellant-accused in it
even though she was aware of his name, but instead describing him as gitta (short-statured) with a beard - No
explanation offered by her in regard thereto - Held, such omission shakes her credibility - Conviction set aside, (2011) 7
SCC 130-D


Identification
Dock identification - When meaningless - Rape case - Prosecutrix already shown appellant-accused and other accused
at police station, after they were arrested - Her dock identification in court, thus, held, meaningless, (2011) 7 SCC 130-H
Evidence Act, 1872
S. 6 - Purpose of - Hearsay evidence when becomes admissible - Res gestae witness -
Rape case - Held, purpose of
incorporating S. 6 in Evidence Act, is to complete missing links in chain of evidence of solitary witness - S. 6 is an
exception to general rule, whereunder hearsay evidence becomes admissible - But, for bringing such hearsay evidence
within ambit of S. 6, it must be almost contemporaneous with the acts and there should not be an interval which would
allow fabrication - Statements said to be admitted as forming part of res gestae, must have been made
contemporaneously with the act or immediately thereafter - Herein, admittedly, prosecutrix had met her mother and sister
soon after she allegedly escaped from clutches of her rapists - Thus, her mother and sister could have been the best res
gestae witnesses - Still, prosecution did not think it proper to get their statements recorded - This shows negligent and
casual manner in which prosecution conducted investigation and then trial - This lacuna was not explained by
prosecution - Prosecution did not try to complete this missing link so as to prove it beyond any shadow of doubt that it
was appellant-accused who committed offence of abduction and rape of prosecutrix - Conviction set aside, (2011) 7
SCC 130-B
Criminal Procedure Code, 1973
Ss. 161 and 164 - Statements made under - Proper procedure of recording of - What is - Rape case - Herein,
prosecution adopted a peculiar mode as first statement of prosecutrix was recorded under S. 164 before Judicial
Magistrate, and only thereafter her further statement under S. 161 was recorded - Held, procedure should have been
otherwise - This further shows that right from beginning, prosecution was doubtful of trustworthiness of prosecutrix
herself - That was precisely the reason that she was first sought to be bound down by her statement under S. 164,

S. 53-A - DNA test of rape accused - Necessity of - Held, after incorporation of S. 53-A in CrPC w.e.f. 23-6-2006 it has
become necessary for prosecution to go in for DNA test in such cases, facilitating prosecution to prove its case against
accused - Prior to 2006 (instant incident of rape of prosecutrix allegedly taking place on 23-6-1994), even without
aforesaid specific provision in CrPC, prosecution could still have resorted to this procedure of getting DNA test or
analysis done and matching of semen of appellant-accused with that found on undergarments of prosecutrix, to make it a
foolproof case, (2011) 7 SCC 130-A

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