2009 (8 )  SCR 276 JAKIR v.

STATE OF M.P. (Criminal Appeal No. 189 of 2003)

MAY 6, 2009 [DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY, JJ.]

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to the  correctness of the Judgment rendered by a Learned Single Judge  

of the Madhya Pradesh High Court dismissing the appeal filed by  

the present appellant who was appellant in Criminal Appeal No.  

2750/98  before  the  High  Court.  The  present  appellant  was  

convicted after alleged commission of rape and abduction in terms  

of  Section  366  A and  376 (2)  of  the  Indian  Penal  Code,  1860  

(IPC). Out of the five accused persons tried, two absconded and  

the  rest  three  were  convicted  by  the  Trial  Court.  Trial  Court  

imposed  sentence  of  10  years  for  each  of  the  concerned,  he  

preferred an appeal, as also two co-accused who were convicted  

by the Trial Court.

2.  So  far  as  the  appellant  is  concerned  his  primary  stand  

before the Trial Court and the High Court was that the prosecutrix  

having not identified him to be one of the persons who subjected  

her to rape, his conviction cannot be maintained. The High Court  

did  not  deal  with  this  aspect  but  confirmed  the  conviction  and  

sentences as imposed by the Trial Court. In support of the learned  

counsel for the appellant submitted that in the examination in chief  

itself the victim (PW-6) stated as follows :-

‘I  recognise the accused Raju and Pancham Present  in  the  

Court. The witness after seeing the accused Jakir states that “I  

do not recognise him because I have never been him”

3. Learned counsel for the State referred to letter parte of the  

evidence where in generalised manner the role of the five accused  

persons was described.

4.  Both  the  Trial  Court  and  the  High  Court  ignored  the  

statement of the victim who in court categorically stated that she  

did not recognise him as she had never seen him.

5. That being so the conviction so far as the present appellant  

is concerned cannot be maintained. The appeal is allowed. The  

bail warrant executed to give effect to the order of bail in terms of  

the order of 10.2.2003 shall stand discharged.