•^^ ^. <%> HIGH COURT OF CHHATTISaARH AT BILASPUR Criroiaal Appeal No. 899 of 2004 APPBLLANT Chandrapal Chik Vs. RESPONDBNT State ofChhattisgarh APPBLLANT C^iminal Aoiieal No. 917 of 2004 Maagleshwar Uraon RBSPONDENT Vs. State ofChhatdsgarh Judgments post for^-10-2007 Sd/- Dhirendra Mishra Judge ^' ^. HIGH CQURT OF CHHATTI8GARH AT BILASPUR APPBLLANT ffa iaill Criaaiaal Awpeal No. 899 of 2004 Chandrapal Chik, Son of Mohan Chik, aged 19 years, Occupation Mazdoorip resident of Village Ratiya, Chowki Lodaai, P,S. Jashpur, District Jashpur (Chhatdsgarh) Vs. RESPONDENT State of Chhattisgarh, Through Station Incharge, Chowki Lodam, Police Statiou Jashpur, District Jashpur (CIihattisgarh) PRBSEHT: Ku, Sangeeta Mishra, Advocate for fhe appellant. Shri Sandeep Yadav, Dy. Govt. Advocate, for fhe State. HIGH COVRT OF CHHATTISGARH AT BILASPUR APPBLLANT ACCUSBD (inJaill RESPONDBNT Crimfaud Aooeal llo. 917 of 2Q04 Mangleshwar Uraon, S/o Bihanu Ram, aged about 20 years Qccupation: Student R/o Vill. TetertoU, P.S. Raidih, Distt. G^umla (Jharkha&d) Vs. State of Chhattisgarh Through Station House Officer, Out Post: Lodan^ P.S. Jashpur, Distt. Jashpur Nagar {Chliattisgarh) PRESENT: Ku. Sharmila Singhal, Advocate for the appellant. Shri Saadeep Yadav, Dy. Govt, Advocate, for the State. JUDGMBHT (\^-10-200'7) Dhlreadra Mlsfara, J Criminal Appeal No. 899/2004 filed by appeDant Chandrapal Chik and Criminal Appeal No. 917/2004 fflcd by appeUant Maagleshwar Uraon are being disposed of by this conunon judgxaent as these appeals are directed a^auist the judgment of coiiviction aad order of sentence dated 30-9-2004 passed in S.T. No. 80/2004 whereby leanied Additional Sessions Judge, Jashpur has convicted the appeUants under Sectioas 458/34, 395 aad 376(2)(^ of I.P.C. aiid sentenced each of them to undergo 10 years wlfh fine of Rs,1000/-, m default of paymient of fine, to undergo additional R,L for 6 monfhs; to undergo R.I. for 10 years wifh fiiie of Rs.2000/- aiid in default ofpayment offine to fiirther undergo additional R.I. for ooe year; and to undergo RJ. for 10 years with fine of Rs.3000/- aad ia •^ .^ ll@18jii8MSK defaiilt ofpa^^ vear :resi^ -CCySWWTS^B^^^^^^ 2. Ca^ <^1toe^^p^ 10.00 i^mfcwt^Kali^^alsd^ were^ prcpfi^^ agpdaboiit I^^ One <^<ite^ w^ biiIfey^^^^T^ ^bcy entercd^^^^^^^ jx^?m, opeaied ttie ba^ ai^^^^a^^ arti<^s^^^^^^ boys eiiAered iii aod asl^ fhe cilme, lli^^^^^^^^^ told faer lliat f^ xnoiiiiagmpol^ 3. Duilng^^^ <)f1±^PIOS€^U13^ slid^s ofttie^^^^P^ plaawasgotprc^^ were ax^ste^^^^^^^^^^^^ Gaiffladrapaly jfhre^ ^ posse^3ii^^^ tatea iiito ^ssessioriv^ were tal^n iD|t6 possessi^ for aiiedical e?^^ P-18wfaereI^(S^ gave lierreportofEx^^^^^^^^ by P.W. 7 Ud%r Raj Sm^h wtoere fhe Taoseeuteix (KW. 2^ ®idKaMsta Lah^(P^ ^^^^ 5 anxi Chai^ cdbarge sh€^j1<^^ Ja^lpiir a^i|nst^^^^^^^ accused SuLktivmde Justice B<>ard as tlie^ Smgh GIiamabscondmg, ^R^^%^^^^^R^B^BR^^^^^^^^^^^^^^S /', 4. During trial the prosecution examiaed 9 witaesses in all thereafter statements of accused persons were recorded in which fhey pleaded innocence and false mipHcation. 5, After hearing the counsel for fhe parties, fhie trial Court convicted aad sentenced fhe appellaats as laentioned above. 6. Leamed counsel for fhe appellaiits submits that eonvictton of fhe appellants is based on statement of fhe prosecutrix (P.W, 2) and KaUsta Lakda (P.W, 3). The same is also based on idqntification offhe appellants by fhe complamaat aad the prosecutrix ia the test identtficatton parade conducted by P.W. 7 Uday Raj Siagh. Refemiig to the witnesses P.W, 2 fhe prosecutrix and P.W. 3 KaUsta Lakda, it is ai^ued tliat both fhe witoaesses have stated m their deposltion fhat the accused persons covercd their faces wifh niasks and therefore, they coiild not identify fhem, however fhis aspect has been totally ignored by the trial Court, In fhe F.1.R. as weU as diary statexnent, P,W. 3 KaMsta Lakda has made allegations that one person has committed ra^pe whereas fhe prosecutrix (P-W, 2) has alleged comxnission of rape by fhree persons, Apart from ffae pxosecutrix and KaUsta Lakda, Sudhraiai also rcsides in fhe house where fhe incident occurrcd, however he was neither mterrogated diiring mvestigation nor he has beea examiaed as a witaess. ReliaD^ce is placed m tlie matter of Ravl (% Ravichaxidran -v- State1, Raabir & otliers --v- State ofM.P.2. Hari Hath and another -v- Chhabi Matfa3* aad Glrja Shankar Misra -v- State of U.P.4. 7, On fhe ofher haad, learaed counsel for fhe State has supported the imipugned judgment. 8. I have heard learaed counsel for the parties, I have perused the impugned judgnient as also fhe evidence available on record. 9. Conviction of fhe appellant is based on statement ofP.W. 2 fhe prosecutrix aad P.W. 3 Kalista Lakda, fhe complaiaaiit The trial Court has reUed upon the test identi&cation parade conducted by P.W. 7 Uday Raj Singh wherem the prosecutrix and fhe complabiaiit identified fhe appeUaiits Mantgleshwar aad Chaadrapal. 10. In fhe matter of Ravi ;% Ravicliandran1 it has been held that substantive evidence of identificatlon of an accused is the one made 12007(5&6)SBR473 2 2006(1) Crnnes 719 3AIR1988SC345 4AIR 1993 SC 2618 tiJiSIB%^8SB0iRIJS3!S8SBBSSlilMlj^ll^i^ ms^M^S S^iSS.S:: m the Court and fhe same can be ba^d even if no test identification parade has been held, however where the report is lodged agaiast unknown persons, a test identification parade is held for fhe purpose of testmg fhe veracity of the witaess ia regard to his capability of identifyiag persons who were unknown to him. In para 18 <if fhe judgmenty it has been held that m the case of fhis naturc, it was iacumbent upon fhe prosecution to arraage a test identification parade. Such identi&cation parade should be held as early as possible so as to exclude tlie poss&ility of the acciised being identified either ia poUce station or at sonie ofher place by the concemed witaesses or wifh refereace to fhe photographs publishad ia fhe newspaper and conviction should not be based on a v^ue identt&cation. 11. In the matter of Raabir aad otliers2, the Division Bexich of this Court has held ffciat where fhe accused was not previousty kaown to fhe victim and mcident took place m dark in night, identifying features of culprit ixiust be mentioned ia FIR or in statement given before police before identily of culprit is estabMshed on test identi&cation parade. 12. In the matter ofHarinatfa3 also, it has been held that where the witaesses did not know fhe accused persons before ihe occiirrence^ fheir identification of fhe accused persons for fhe first time m tfae dock after a long lapse oftime would have been improbable. 13. In the matter of dlrja Shaakar Mlsra4 also, considermg the delay in conductibag test identification parade, it has been held fhat fhe saine affects fhe evidence oftiie witaesses who participated ui the test identification and fhe possibility ofthe witoesses havmg seen ffae accused persons caauot be ruled out. 14. In the light of fhe principles of law laid down m tlie aforesaid judgment, I propose to consider the fact offhe iastant case, 15. P.W, 2 the prosecutrix ia para 1 of her statement has stated fhat she does not recognize fhe accused. She never saw them anywhere, The accused persons raped her. Bofh fhe accused persons prcsent ia Court aad one more accused rai»d her. At that time, it was 10.30 in the night. Her matenial-graad-inotiier KaUsta Lakda was present ia fhe honie aad she was studyiag, Accused persons entered from ffae kitchen side and caiae to her n»m, put knife agaiast her chest aad fhreatened her to niurder and Chaadrapal 31^ threw her on the bed, Other two accused were also with this accused. Accused Chaadra.pal put his haad on her mouth whereupon she felt giddiaess aad fhereafter he raped her. After commission of rape by accused Chaiidrapal, the offaier accused present ia Court Maagleshwar also raped her aad ffaereafter fhird accused also raped her who is not present ia Court. Blood started ooziag j&om her vagma. After beiag raped, she felt like loosmg consciousness aiid she does not know where she weiit fhereafter and she fell ia a well, In paragraph 8, she has stated fhat fhe poUce took her Ambikapiir for identifynig fhe accused. The identification was conducted in jail where she identified bofh the accused persons. In cross-examiaation, she has denied fhie suggestioii fhat she saw fhe accused persons m Jashpur poUce station. In para 15 of her statenienty she has stated fhat all fhe 5 accused persons who entered ia her hoixse hgri put on miask over fheir faces andy therefore, they were not Kientifiable, Heighte of all fhe five were smular, In para 18, she has further admitted tiiat on tiie date of mcident, fhe face of Mangleshwar was covered and on fhe date of identi&cation, lower part ofhis body below tiie neck was covered, 16. P.W. 3 Kalista Lakda has also stated that on fhe date of incident at 10 P,M. she and her graad-daughter were present ia fhe hoine, The prosecutrix was studyiag. At fhat ttxne, she was sittiaig near fhe front door of her house, At fiiat tinie, 5 acoused persons entered from the kitchen side. They claimed to be persons belongmg to MCC aad fhey had shown Bomb aad Pistol, They stopped her j5x>m shoutmg on the kmfe poiat aad thereafter fhey took her to fhe near room where paddy is placed aud fhey got her opened the lock. Thereafter fhey took out about Rs, 3000/- from the suitease aad solar plate. The prosecutrix told her that she has been raped by fhree persons. She has also stated fhat poUce called her to Jashpur where she identified accused Maagleshwar. In paragraph 7, she has admitted fhat all fhe persons had covered fheir faces and fhey were not identifiable. She went to lodge report wifh her husbaod and fhe prosecufcrix where she sat out side of the police station aad rcport was lodged by her husband aad she put her s^nature in the rcport. She has further slated fhat she had mentioned fhis fact fhat afi fhe accused persons had covered tiieir faces aad if fhia fact m not inentioned ia fhe diaxy stateinent, she cannot give the reason. She has stated fhat if Ex, D-1 nientions fhat onfy fhree persons covered fheir faces, fhen fhe saine is wrong, In paragraph 20, she has stated fhat only eyes and upper portion of the body of the persons who had entered ia her house were visible, it is corrcct to say tihat she ideiitified by guessiag. The accused persons were arrested on 15-2" 2004, however fhey were put for identification only on 26-3-2004, Uday Ra| Siagh (P.W, 7) who has conducted test identificatioa parade has stated fhat he conducted the identification m Jashpurjail, In fhe said identification, KaUsta Lakda could not identify Chandrapal. P.W, 2 tiie prosecutrix aad P.W. 3 Kalista Lakda identified Maagleshwar whereas fhe appellant Chandrapal was identfcfied by fhe prosecutrix but KaUsta could not identtfy Nm. 17. If the statements of P.W. 2 ihe prosecutrix and P.W. 3 KaUsta Lakda are mmutely scrutmized, it would be evident fhat fhe complamaat did not give aay descriptioH of the accused ia the FIR, There is evidence available on record fhat ail fhe accused persons had covered tiieir faces when thev entered fhe house where the mcident occurred. There is no evidence that fhe witaesses who pardcipated ia fhe test identification parade or who identified the accused persons during trial saw fhe faces offhe accusal at the tiine of iacident Therc is no explaiiation by fhe prosecution for not conductmg fhe test identi&cation parade immediately after arrest of fhe accused who were arrested on 15-2-2004 whereas the test identification parade was held on 26-3-2004. Thereforc, therc is substaace m tlie argument of the leamed counsel for fhe appeUants mat fhe witnesses had an opportunity ofseeing fiie accused persons ia this period while fhey were beiag taken to the Court for rexnaD^d proceeding. In ffaese circumstances, iaipMcit reliaace on the statem.ents of the prosecutrix and her inatemal graiid-mofher KaMsta Lakda regardiag identification of fhe accused persons caEinot be placed, The prosecutrix aad fhe complainant have made material iBiprovenient in fheir stateineHts regardiag conimission of rape by fhe accused persons, F,i,R. mentions fhat fhe prosecutrbc mformed the coxnplauiaat that one person coxnxaitted ra^ with her iii her rooni, whereas ia fheir statement beforc the Court, both the witnesses have stated that fhe prosecutnx was lavished by 3 persons, 18, It is already held fhat fhe identification by the prosecutrix and fhe complamaoit does not inspire confidence, the veiy foundation of ^ %^ the conviction oftfae appellants based on identificatbn ofthe accused persons by the two witaesses is shaken, 19. For fhe aforesaid discussion, the conviction of the appeflaiits by the trial Court under Sections 458/34, 395 and 376(2)(^ ofI.P.C. cannot be sustained. In the result, fhe appeals preferred by fhe appeUants are allowed, Their convictions under Sectibns 458/34, 395 and 376(2)(^ of I.P.C. and sentences impo^d under fhose sections are set aside. The appeUaats be set at libcrty forthwifh ifnot required m aav other case. Sd/- Dhirendra Mishra Judge --'