[2008] 14 S.C.R. 1013

ARJUN SINGH A

STATE OF HIMACHAL PRADESH (Criminal Appeal No. 1661 of 2008)

OCTOBER 22, 2008

[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM

SHARMA, JJ]

Penal Code, 1860:

ss. 376(2)(g}, 323134, and 452134 - Prosecutrix named c appellant-accused on the ground that during commission of the crime miscreants were addressing each other by their names - Conviction by trial Court - Upheld by High Court - HELD: Unlike other accused, appellant was not apprehended

;, l, at the spot - Trial court itself held that there was no test identi- D

-) fication parade in the eye of law as accused persons had been shown earlier to prosecutrix - There being no evidence to show the presence of appellant at the place of occurrence or his participation in the crime, appellant acquitted - Test ldentification Parade - Evidence.

Six persons were prosecuted for commission of offences punishable u/ss. 452/34, 323/34 and 376(2)(g) IPC.

The trial Court found the evidence of the prosecutrix (PW _,, 1 ), her son (PW-3) and an old woman who tried but failed ,. . to rescue the prosecutrix, reliable and convicted five of F the accused including the appellant. The appeal filed by the appellant was dismissed by the High Court.

In the instant appeal it was contended for the appellant that unlike the other accused he was not appre- G r' hended at the spot; that the prosecutrix did not know him but only stated that the miscreants were addressing each other by their names and on that basis she claimed to have come to know his name; and that in the absence of

1013 H

A any material to show that the appellant was the person whose name was being uttered by tle co-accused, he could not be held guilty.

Allowing the appeal, the Court

B HELD: 1.1 It is not disputed that unlike some others the appellant was not caught at the place of occurrence.

The trial court itself held that there was no test identification parade in the eye of law. The prosecutrix accepted in the witness box that she had been shown the accused C before identification. Therefore, identification of the appellant for the first time in the court was really of no consequence. Added to that, the only evidence pressed into service by the prosecution so far as the appellant is concerned, was, as stated by the prosecutrix, that his name

0 was similar to one of the names which the accused persons uttered while addressing each other. That cannot be, by any stretch of imagination, an incriminating material. [para 7] (1018-D, E)

1.2 No evidence was led to show the presence of E the appellant at the spot of occurrence or his participation in the crime. That being so, the prosecution has miserably failed to prove the accusations so far as the appellant is concerned. He is acquitted of the charges. [para 8]

(1018-F)

F CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 1661 of 2008

From the final Judgment and Order dated 29.3.2007 of the High Court of Himachal Pradesh at Shimla in Crl. Appeal G No. 455 of 2003

Jagjit Singh, Chhabra (A.C.), Tatini Basu and Sudhir Nandrajog for the Appellant.

Naresh K. Sharma for the Respondent.

H The Judgment of the Court was delivered by

....

ARJUN SINGH v. STATE OF HIMACHAL 1015

PRADESH

DR. ARIJIT PASAYAT, J. 1. Leave granted.

A -I

2. Challenge in this appeal is to the judgment of a Division Bench of the Himachal Pradesh High Court dismissing the appeal filed by the appellant questioning the conviction for offence punishable under Sections 452, 323 read with Section 34 and B' Section 376(2)(g) of the Indian Penal Code, 1860 (in short the

'IPC').

--y

3. By a common judgment five appeals preferred by the accused persons were disposed of. The accused persons were found guilty of offence punishable under the aforesaid offences by learned Sessions Judge, Kangra at Dharamshala. c

4. The prosecution versions during rial is as follows:

The prosecutrix, aged 32 years, was married to a man, who was employed at a butcher's shop at Baijnath. Her hus- D band fell ill and was perhaps rendered incapable of doing the

;.!, job with the butcher. The prosecutrix approacned the butcher for employing her son, who was then aged just eleven years, for ......,, doing odd jobs. The butcher offered to employ her son for grazing his sheep and goats on monthly salary of Rs. 700/-. On E 3.6.2002 the prosecutrix took her son to the butcher's shop at Baijnath with the intention of leaving him there. Her son was required to take the sheep and goats to the forest, by the employer, immediately after they reached. The prosecutrix accompanied her son to the forest. They returned with the herd in the evening. By then the last bus going towards the village of the F f prosecutrix, had already left. The butcher offered that she could "' . stay with her son in the upper storey of the shop for the night.

She accepted the offer. Around 9.30 p.m., when the prosecutrix and her son were sitting in the room on the upper storey of the shop of the butcher, accused Kamlesh, Arjun Singh and Suresh G Kumar went the.re. They forcibly dragged the prosecutrix out of

l' that room and when they reached the ground floor of the structu re, two other persons, appellants, Bal Kishan and Sonu joined them. One more person, named Chuni Lal, who too was tried along with the appellants, also joined them. The prosecutrix was H

A forcibly carried to a near forest. She cried for help. One old lady, living nearby intervened, but she could not get her released. r--

The son of the prosecutrix got so scared that he climbed a truck parked nearby and hid himself in the tool-box. Someone informed the police telephonically. Soon the police reached the

B forest and over-powered two of the appellants, namely, Kamlesh and Suresh and the sixth accomplice of the appellants, named Chuni lal (who stands acquitted by the Trial Court), when they tried to flee from the spot on seeking the police. Statement of y the prosecutrix was recorded by HC Pawan Sharma, heading ' c , the police party that reached the spot. The prosecutrix besides narrating the details about her visit to Baijnath and having gone to the upper storey of the shop of the butcher for night stay and having then been dragged and taken to the forest in the manner as summarized hereinabove, stated that those who committed

D the rape, were calling each other by the names of Bal Kishan, Arjun, Sonu, Kamlesh etc.

Police investigated the matter and filed the case against ).:, the six accused persons. The trial Court charged all the six for 'toffences punishable under Sections 452 read with Section 34,

E 323 read with Secftion 34, 376(2)(g) of IPC and Section 3(x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act ........ (in short 'SC.ST Act') because the prosecutrix was alleged to belong to a scheduled caste. All the accused pleaded not guilty to the charge. The Trial Court then proceeded

F to try the case and ultimately convicted and sentenced the five accused persons as aforesaid, but acquitted their sixth accom-

~ plice. . ...

Appellants' plea was that they were not involved in the crime and have been implicated just on suspicion. Learned counsel, G representing the appellants, argued that there is no evidence on record establishing the identity of the appellants as the perpetrators of the crime.

Prosecution examined the prosecutrix as PW-1, her son

Onkar Chand as PW-3, an old woman, nar; ned Gitan Devi, PW-

ARJUN SINGH v. STATE OF HIMACHAL 1017

PRADESH [DR. ARIJIT PASAYAT, J]

4, who allegedly tried to get the prosecutrix rescued from the A -1 accused persons, D.R. Thakur, PW-7, the then Judicial Magistrate Baijnath, who conducted the test identification parade,

( police Head Constable Pawan Sharma, PW-15, who on the j

receipt of telephonic information at the police station about the incident went to the spot and over-powered three of the alleged !3 rapists on the spot and recorded the statement of the prosecutrix, under Section 154 of the Code of Criminal Procedure, 1973

'f" (in short 'Cr.P.C.'), and ASI Chain Lal, PW-16 and Dy. S.P.

Prittam Singh, PW-18, who conducted the investigation of the case. The police also examined lady doctor named, Bindu c Sood, PW-19, who conducted the medico legal examination of the prosecutrix and Dr. S.K. Sood, PW-2, who medically examined the accused persons with a view to ascertaining whether there were any injury marks on their persons and whether they were capable of performing sexual i11tt:rc::>urse. All the accused D persons took the plea of denial simpliciter and claimed that they were innocent and had been falsely implicated at the behest of .A the police.

The Trial Court placed reliance on the evidence of the witnesses i.e. prosecutrix PW-1, her son PW-3 and an old women E PW-4. The Trial Court, however, found that the so called test identification parade conducted by the then Judicial Magistrate, Baijnath PW-7 did not meet the requirements of law and had no evidentiary value. It was noted that the prosecutrix in the wit- , ness box had stated that she had identified five boys at the F ..

police station on 4.6.2002. It was accepted by her that she had been shown the accused persons by the police before identifi- ,., . cation.

Primary stand before the High Court taken by the appellant was that there was no evidence so far as his involvement is G concerned. He was not apprehended at the spot unlike some

other accused persons. The prosecutrix did not know him and • had clearly accepted this fact. She only stated that the accused persons were addressing each other by some names and that is how she claimed to know the names of the accused persons.

~ A The High Court did not find any substance in this plea and as noted above dismissed the appellants' appeal along with other Iappeals. r

5. Learned counsel for the appellant submitted that there

B was no material to link the accused with the alleged crime. The Trial Court held that there was no test identification parade in the eye of law a'nd this view was affirmed by the High Court.

Merely because the accused persons purportedly addressing each other by names that cannot be a ground to hold the appel- y

c lant guilty without any material to show that he was the person whose name was being uttered by the co-accused persons. t-

6. Learned counsel for the State on the other hand supported the judgment of the Trial Court an~ the High Court.

.....

7. It is not disputed by learned counseUor the State that !

D unlike some others the appellant was not caught at the place of occurrence. The Trial Court had itself held that there was no r

test identification parade in the eye of law. Therefore, identifi- )(

cation of the appellant for the first time in court was really of no

I conequence. Added to that, the only evidence pressed into t E service by the prosecutior so far as the appellant is concerned, was that his name was similar to one of the names which the accused persons were addressing each other, as stated by the prosecutrix. That cannot be by any stretch of imagination an incriminating material.

8. No evidence was led to show the presence of the appellant at the spot of occurrence or to have participated in the )

...... crime. That being so, the prosecution has miserably failed to 1

prove the accusations so far as the appellant is concerned. He I G is acquitted of the charges. He shall be released forthwith from I custody unless required to be in custody in connection with any other case. \

9. The appeal is allowed.

R.P.

Appeal allowed.

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