Dhanraj v. State of Rajasthan
[2026] 9 S.C.R. 523 : 2026 INSC 958
Dhanraj
v.
State of Rajasthan
(Criminal Appeal No. 135 of 2026)
07 September 2026
[Sandeep Mehta* and Manmohan, JJ.]
Issue for Consideration
Accused-appellant was convicted u/ss.376, 376(2)(i)(j), 363, 323
of IPC. Whether the High Court fell in grave error in convicting
and affirming the conviction of the accused-appellant.
Headnotes†
Penal Code, 1860 – ss.376, 376(2)(i)(j), 363, 323 – Protection
of Children from Sexual Offences (POCSO) Act, 2012 – A child
went missing – Announcement regarding the child having gone
missing was made – PW-4 and PW-5 came to complainant’s
house with child – It was noticed that child was bleeding from
private parts – Victim stated that a boy lured and pushed
her into the bushes where the boy removed her clothes and
subjected her to sexual assault – Thereafter, that boy ran
away from the spot – FIR was registered against an unknown
person for the offences punishable u/s.376 of the IPC and
ss.3, 4 of the POCSO Act and investigation was commenced –
Accused-appellant was arrested – Victim identified him in
Test Identification Parade (TIP) – Chargesheet was filed – The
Trial Court convicted the accused u/ss.376, 376(2)(i)(j), 363,
323 of IPC – The said judgment of conviction and sentence
was assailed by the accused-appellant before the High Court,
which was rejected by the Division Bench – Correctness:
Held: There are significant omissions in the contents of FIR –
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 – The two witnesses, PW-4 and 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 –The
Investigating Officer (PW-8) admitted that the complaints were
* Author
524 [2026] 9 S.C.R.
Supreme Court Reports
made on behalf of the accused and his family members regarding
false implication of the accused, but he did not make any inquiry
into such complaints – 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 – A sketch was prepared for the
purpose of identifying the accused, however, the said sketch was
not available with PW-8 and had not been produced before the
trial Court – 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 – PW-7-Doctor, examined the victim two days after
the incident and 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 – 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 – 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 – The victim (PW-2) in
her examination-in-chief stated that she knew the accused and that
his name – However, in her cross-examination, she categorically
admitted that the police had told her the name of the accused –
The prosecution failed to lead substantive evidence establishing
that the person standing trial was indeed the person whom the
victim claimed to have seen – Further, 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 deficiencies noted above go to the
root of the matter – The fatal flaw on the aspect of identification
cannot be cured at this belated stage – The trial Court as well as
the High Court fell in grave error in convicting and affirming the
conviction of the accused-appellant – The appellant is acquitted of
the charges. [Paras 25, 26, 28, 29, 31-35, 39, 44, 48, 56, 57, 59]
Evidence – Test Identification Parade – Substantive
evidence – Identity of accused person:
Held: 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
[2026] 9 S.C.R. 525
Dhanraj v. State of Rajasthan
identification proceedings conducted during investigation are merely
corroborative in nature – TIP is intended to test the memory and
capacity of a witness to identify a person whom the witness claims
to have seen during 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. [Paras 41, 43]
Case Law Cited
Rameshwar Singh v. State of J&K [1972] 1 SCR 627 : (1971) 2
SCC 715 – relied on.
Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors.
[2004] 3 SCR 1050 : (2004) 4 SCC 158 – referred to.
List of Acts
Penal Code, 1860; Protection of Children from Sexual Offences
Act, 2012; Code of Criminal Procedure, 1973; Constitution of
India; Evidence Act, 1872; Bharatiya Sakshya Adhiniyam, 2023;
Bharatiya Nagarika Suraksha Sanhita, 2023.
List of Keywords
Sexual assault; Minor; Test Identification Parade; Dock
identification; Substantive evidence; Corroborative evidence;
Non-production of sketch; Medical evidence.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 135 of 2026
From the Judgment and Order dated 20.08.2025 of the High Court
of Judicature for Rajasthan at Jaipur in DBCRA(Db) No. 338 of 2019
Appearances for Parties
Adv. for the Appellant(s):
Namit Saxena.
Advs. for the Respondent(s):
Kartikeya Asthana, Ms. Nidhi Jaswal, Ms. Urvashi Raj,
Ms. Siddhidatri Jha.
526 [2026] 9 S.C.R.
Supreme Court Reports
Judgment / Order of the Supreme Court
Judgment
Mehta, J.
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 from Sexual Offences Act, 2012 and the Commission for
Protection of Child Rights Act, 2005 No. 2, Ajmer 3 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 7 th December,
2016 alleging inter alia that on 5 th December, 2016, his wife ‘M’
(PW-1) and his two children, son aged about 11 years and daughter
(victim) aged about 5 years, had gone to the house of his aunt-in-
1 Hereinafter referred to as “accused-appellant”.
2 Hereinafter referred to as “High Court”.
3 Hereinafter, referred to as “trial Court”.
4 For short, “IPC”.
[2026] 9 S.C.R. 527
Dhanraj v. State of Rajasthan
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, 2012 5 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
him to be the assailant. Upon conclusion of the investigation, a
chargesheet came to be filed against the accused-appellant for
5 For short, “POCSO Act”.
6 Fort short, “TIP”.
528 [2026] 9 S.C.R.
Supreme Court Reports
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.
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 supra 8.
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 20 th 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-
7 For short, “CrPC”.
8 Para 2.
[2026] 9 S.C.R. 529
Dhanraj v. State of Rajasthan
appellant was admittedly at enmity. He submitted that the victim 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
530 [2026] 9 S.C.R.
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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,
[2026] 9 S.C.R. 531
Dhanraj v. State of Rajasthan
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 5 th
December, 2016 came to be lodged by the victim’s father (PW-3)
on 7th December, 2016, with a plausible explanation for delay that
532 [2026] 9 S.C.R.
Supreme Court Reports
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
[2026] 9 S.C.R. 533
Dhanraj v. State of Rajasthan
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.
534 [2026] 9 S.C.R.
Supreme Court Reports
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. 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 accused-appellant 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 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
[2026] 9 S.C.R. 535
Dhanraj v. State of Rajasthan
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 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.
536 [2026] 9 S.C.R.
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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
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 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
9 (1971) 2 SCC 715.
[2026] 9 S.C.R. 537
Dhanraj v. State of Rajasthan
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 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
538 [2026] 9 S.C.R.
Supreme Court Reports
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.
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 Gujarat 10, 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
10 (2004) 4 SCC 158.
[2026] 9 S.C.R. 539
Dhanraj v. State of Rajasthan
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
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
540 [2026] 9 S.C.R.
Supreme Court Reports
were 5-7 days old. The medical jurist examined the victim on 7 th
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 accused-appellant 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
[2026] 9 S.C.R. 541
Dhanraj v. State of Rajasthan
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.
61. Pending application(s), if any, shall stand disposed of.
Result of the case: Appeal allowed.
†Headnotes prepared by: Ankit Gyan