.s' -^' ;lf .f •/ ;: .^" HIGH COURT OF CHHATTISGARH, BILASPUR /"r??^ ) (Sinale Bench: Hon'ble Shri Sunil Kumar Sinha, J ) APPELLANT RESPONDENT Criminal Appeal No. 1077 of 1992 Dinesh Markam son of Devnarayan Markam, aged about 21 years, resident of Nehru Nagar, House No. 13/4 East L.I.G. Area Bhilai Nagar, District Durg Versus State of Madhya Pradesh (Now State of Chhattisgarh) Through Police Station BhilaiBhatti, District Durg And APPELLANT RESPONDENT Crjminal AppealJlo. 1131 of 1992 Bubby alias Gurmit Singh, son of Mahendra-Singh, Sikh, aged about 22 years, resident of Sector 4, Street No.7, House No. 3-D, Bhilainagar, District Durg Versus State of Madhya Pradesh (Now State of Chhattisgarh) Through Police Station Bhilai Bhatti, District Durg (Criminal ADpealsunder Section374 (2) of The Code of Criminal Procedure, 19731 Appearance: Ms. Sudha Agrawal, Advocate for the appellant in Cr.A. No. 1077/92. Mr. Bharat Rajput, Advocate for the appellant in Cr.A. No. 1131/92 Mr. Akhil Mishra, Dy. Govt. Advocatefor the State \n both the appeals. Cr.A. No. 1077 of 1992 & Cr.A. No. 1131 of 1992 JUDGMENT (Zl.09.2010) Sunil Kumar Sinha. J. (1) These appeals are directed against the judgment dated 4 of November, 1992 passed in Sessions Trial No. 235/90 by the First Additional Sessions Judge Durg. (2) By the impugned judgment, the two appellants have been convicted u/s 376 (2) (g) IPC and sentenced to undergo R.l. for 10 years and the third accused namely Kake @ Nirmal Singh has been acquitted of the charges framed against him. (3) The facts, briefly stated, are as under:- The prosecutrix (PW-1) was a married lady. She was residing in a rented premise near Saraswati Vihar Primary School, Sector-4 Bhilai. Her husband- Pawan Kumar (PW-2) was working as a clerk in Saraswati Sishu Mandir. On 10.2.88, the husband of the prosecutrix had gone on his duty. The allegations are that at about 3.00 p.m., the accused persons came to the house of the prosecutrix; accused No;'3 Kake @ Nirmal Singh remained outside the house and the two appellants entered into the house of the prosecutrix and removed her cloths; and thereafter they committed forcible intercourse against her. The prosecutrixwent to her husband, narrated the story, and then, the First Information Report (Ex.- P/1) was lodged at about 4.45 p.m. The accused persons were not known to the prosecutrix. Therefore, they were not named in the F.1.R. The prosecutrix was examined by Dr.(Smt) P. Dani (PW-4). The medical report is'Ex.-P/3. She Cr.A. No. 1077 of 1992 &CT.A.NO. 1131 of 1992 found a little abrasion of 7z cmx 1/S cm on her right toe. There were no injuries on the genital organs. No abnormality was detected and no definite opinion was given about the rape. In further investigation, the accused persons were arrested and were put to identification on 17.2.88. The identification parade was conducted by ExecutiveMagistrate K.K. Bakshi (PW-7). The test identification memo is Ex.-P/14. The prosecutrix identified the two appellant namely Dinesh Kumar and Bubby @ GurmitSingh, however, she could not identify the third accused namely Kake @Nirmal Singh. The accused persons were also sent for their medical examination and their MLC reports were collected. After completion of the usual investigation, the charge- sheet was filed in the Court of Chief Judicial Magistrate, Durg, who in turn committed the matter to the concerned Sessions Court, from where, it was received on transfer by the First Additional Sessions Judge, who conducted the trial and convicted and sentenced the appellants as aforementioned. (4) The conviction of the appellants is mainly based on test identification parade held on 17.2.88 vide test identification memo Ex.-P/14. (5) Ms. Sudha Agrawal & Mr. Bharat Rajput, learned counsel appearing on behalf of the appellants, argued that the appellants were unknown to the prosecutrix; they were not named in the F.1.R. (Ex.-P/1); there is evidence to this effect that after taking into custody, the appellants were shown to the prosecutrix in the police station before test identification parade; therefore, the test "'"-•^.. Cr.A. No.J077 of 1992 & Cr.A^Na lBl_ofl992 identification parade held on 17.2.88 was of no use to the prosecution. They relied on the judgment of Shaikh UmarAhmed Shaikh and another -Vs- State of JWaharashtra, 1998 Cri.L.J. 2534. (6) On the other hand, Mr. Akhil Mishra, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and submitted that the prosecutrix identified the appellants in test iclentification parade and she also identified them during her evidence before the Court, therefore, conviction based on identification was fullyjustified. (7) I have heard the learned counsel for the parties at length and have also perused the records of the sessions case. Admittedly, the prosecutrix was a married lady, aged about 20 years. Shelodged the F.1.R. (Ex.-P/1) in which the accused persons were not named, as according to the prosecutrix they were not known to her. While her Court evidence on 8.7.91, she deposed that on the fateful day, she was inside her house, When the door was knocked, she opened the door. She saw that two boys were standing near the door. One of them entered into her house and the other remained outside the house. She identified appellant Gurmit Singh who entered into her house. She further identified appellant Dinesh Markam who was standing outside her house. About third accused, she deposed that when she cried, he ran away from the Cr.A. No. 1077 of 1992 & Cr.A. No. 1131 of 1992 place of occurrence, therefore, she could not identify him. She further deposed that these two appellants came inside her room, and thereafter they committed forcible sexual intercourse against her. She admitted to lodge the report in the police station as Ex.P/1. In Para-11 of her examination-in-chief, she deposed that after the incident, the police brought other boys for 2-3 times and they were shown to her and when they were not identified by her, they used to leave them. Thereafter on one day the accused persons were brought by the police and she identified them. In Para-12 in her examination-in-chief, she deposedthat a test identification parade was organized, in which, she also identified the two appellants. In Para-19 of her cross-examination, she deposed that the police used to call her to the police station for identification of the boys. She had gone to the police station 3 days continuously. On the last day, the police personnel brought the three accused persons, out of them, she identified the two in the police station itself. She categorically admitted that she had identified the accused persons in the police station. The above evidence of the prosecutrix shows that before conducting the test identification parade on 17.2.88, she was called in the police station and when on 3-4 occasion she identified the appellants in the police station and said that they were the culprits, thereafter the test identification parade was conducted on 17.2.88 by the concerned Magistrate. It is on the above evidence, it was argued that the test identification was of no value and in such Cr.A. No. 1077 of 1992 & Cr.A. No. 1131 of 1992 situation the conviction cannot be awarded even on the dock- identification of the appellants by the prosecutrix. (9) tn Shaikh UmarAhmed Shaikh (supra), dealing with the matter of identification, the Supreme Court held vide Para-8 as under:- "8. The Designated Court having rejected the evidence of identification parade on the ground that the suspects were possibly shown to the witnesses, relied upon the evidence of identification of the accused in theCourt by the two witnesses and on that evidence recorded conviction against the appellants. No doubt, the evidence of identification parade is not a substantiveevidence, but its utility is for purposes of corroboration. In other words, it is utilized for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them. The real and substantive evidence of the identity of the accused comes when witnesses give statement in the Court, identifying the accused. It is true that in the present case, PW-2 and PW-11 identified the two accused who are the appellants before us in the Court. But, the question arises; what value could be attached to the evidence of identity of accused by the witnesses in the Court when the accused were possiblyshown to the witnesses before the identification parade in the police station. The Designated Court has already recorded a finding that there was strong possibility that the suspects were shown to the witnesses. Under such circumstances, when the accused were already shown to the witnesses, their identification in the Court by the witnesses was meaningless. The statement of witnesses in the Court identifying the accused in the Court lost all its value and could not be made basis for recording conviction against the accused. The reliance of evidence of idehtification of the accused in the Court by PW-2 and PW- 11 by the Designated Court, was an erroneous way of dealing with the evidence of identificationof the accused in the Court by the two eye-witnesses and had caused failure of justice. Since convictfon of the appellants have been recorded by the Designated Court on wholly unreliable evidence, the same deserves to be set aside. We accordingly set aside the judgme.nt and order dated 14.10.1997 passed by the Additional Judge. Designated Court for Greater Bombay in T.S.C. No. 21 of 1994, convicting the appellants. The appellantsare acquitted of charges. The appeal is allowed. The appellants are entitled to be released forthwith. We order accordingly." Cr.A. No. 1077 of 1992 & Cr.A. No. 1131 of 1992 (10) On the above principles, if we examine the case on hand, it would be clear that the appellants were shown to the prosecutrix in the police station prior to the test identification parade and when she identified them in the police station, then only a test identification parade was organized, which was a mere formality and in such situation, the identification of the appellants in the Court by the prosecutrix was meaningless. This is what the Supreme Court said in Shaikh Umar (supra) that in this situation, the statement of witnesses in the Court identifying the accused in the Court loses all its value and could not be made basis for recording conviction against the accused. In the facts and circumstances of the case, the reliance on the evidence of the prosecutrix by the Court was an erroneous way of dealing with the evidence of identification of the appellants in the Court by the prosecutrix and the conviction based on such evidence alone cannot be sustained. Apart from the above, we do not find any other incriminating evidence against the appellants in this case. For the foregoing reasons, the appeals are allowed. The conviction and sentenees awarded to the appellants u/s 376 (2) (g) IPC are set-aside. The appellants are acquitted of the charges framed against them. The appellants are on bail. Their bail bonds are cancelled and sureties stand discharged. __^_^.-^- Sd/- Sunil Kumar Sinha Judge vatti