Case: Prahlad Singh Vs. State Of Madhya Pradesh

This appeal is directed against the judgment of the Madhya Pradesh High Court dated 7th September, 1992 in Criminal Appeal No. 34 of 1986. The High Court by the impugned judgment set aside the order of acquittal of the appellant passed by the 2nd Additional Sessions Judge, Sagar (MP), in Sessions Trial No. 185 of 1984 and convicted the appellant under Section 376IPC and sanctioned to undergo rigorous imprisonment for 10 years.2. The appellant stood charged of the offence of committing rape on the allegation that on 26th May, 1984 he committed rape on a minor girl Kumari Sarvesh, PW-5 when the girl was playing outside her house in the company of her two younger sisters. The prosecution alleged that while the prosecutrix PW-5 was playing, the appellant induced her and then took her outside the military camp and subjected her to sexual assault on account of which the girl started profusely bleeding. Her father, Siyaram, PW-9 went in search of the girl and found her standing on the road and crying, as the accused had left her near that place. The girl then narrated the incident to her father who lodged a report which was treated as FIR and police thereafter started investigation. The further prosecution case is that on suspicion the appellant who was also any army jawan was arrested and his identification parade was held on 23.7.1984 by PW-2 wherein the appellant was identified by the prosecutrix. On completion of investigation the charge-sheet was submitted and the accused stood the trial. The learned Sessions Judge relying upon the evidence of Doctor-PW-4, prosecutrix-PW-5 and her parents PWs 7 and 9 came to the conclusion that on the relevant date of occurrence the prosecutrix was raped. But so far as the complicity of the appellant with the incident is concerned, the learned Sessions Judge could not find any reliable evidence and acquitted him of the charge. On an appeal being carried, the High Court by the impugned judgment interfered with the order of acquittal and relying upon the evidence of the prosecutrix, more particularly the identification of the appellant by the prosecutrix convicted the appellant as already stated.

Reasoning:
4. It may be stated that though the prosecution had sought to establish a case that the accused had been identified even prior to the test identification-parade before one Major Raizada but no evidence was laid in that regard and even Major Raizada was not examined as a witness. The identification was supposed to have been made also in the presence of one Subedar Harphool Singh but said Harphool Singh also was not examined by the prosecution. In the aforesaid circumstances, in our opinion no credence can be given to the identification said to have been made before the test identification-parade on 23.7.1984.In view of the aforesaid evidence of the prosecutrix, in our opinion the learned counsel for the appellant is wholly justified in making his submission that the substantive evidence of the prosecutrix in court identifying the accused is absolutely of no relevance and is wholly unacceptable and no conviction can be based on theare, however, unable to accept this contention since until and unless there is reliable and acceptable evidence to come to a conclusion that it is accused- appellant who committed rape he cannot be convicted even if the factum of rape on the prosecutrix is established beyond reasonable doubt. In our considered opinion, therefore, the High Court interfered with an order of acquittal on mere surmises and conjectures without having an iota of acceptable evidence bringing complicity of the accused and as such the said conviction and sentence cannot be sustained in law.