http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: PRAHLAD SINGH

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       13/08/1997

BENCH: G. N. RAY, G. B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT: Present:                 Hon’ble Mr Justice G.N. Ray                 Hon’ble Mr. Justice G.B. Pattanaik                 Manoj Prasad, Adv. for the appellant K.N. Shukla, Sr. Adv.,  Mrs. Shushila Shukla  and  Uma  Nath Singh Advs. with him for the Respondent,                       J U D G M E N T The following Judgment of the Court was delivered: PATTANAIK, J.      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 376  I.P.C and sentenced to undergo rigorous imprisonment for 10 years.      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  F.l.R. and  Police thereafter started investigation. The  further  prosecution  case  is  that  on suspicion  the   appellant  prosecution   case  is  that  on suspicion the  appellant who  was also  an  army  jawan  was arrested and  his identification parade was held on 23.71984 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

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.      The learned  counsel for  the appellant  contended that there is not an iota of acceptable evidence before the Court which can  be said  to have  brought home the charge against the appellant  and the  High Court  committed  an  error  in altering an  order to acquittal to one of conviction by mere surmises and  conjectures. The learned counsel urged that so far as the so-called identification parade which was held on 23.7.1984 is  concerned no credence can be given to the same as inasmuch  as the  same identification-parade was held two months after  the incident and that the accuse was shown  to the prosecutrix  earlier to the identification in  question. According to  the learned counsel the Sessions Judge rightly did not  give any  credence to  the identification.  In this Court also  the counsel  appearing, for the appellant stated that  no   credence  can   be   given   to   the   so-called identification that was held two months after the occurrence wherein   the prosecutrix  is alleged to have identified the accused. It may be appropriate to extract in this connection the  statement  of  the  prosecutrix  in  crosss-examination wherein she stated:      "The accused was kept in custody in      the Quarter  Guard, where my father      had taken  me and Major Raizada was      also present  there. Thereafter, my      father had  taken me  again to  the      camp for  re-identification of  the      accused. My  father had  told me to      move to the place of identification      and to identify the accused."      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 our opinion no credence can be given to the identification said to have been made before the test identification-parade on 23.7.1984.      The learned  counsel for  the appellant  further  urged that the only other item of evidence to prove the complicity of  the  appellant  with  the  offence  is  the  substantive evidence of  the prosecutrix in the Court as inasmuch as she identified the  appellant to be the person who committed the sexual assault  on her  on the  date of occurrence. But that evidence  is   also  wholly  unacceptable  in  view  of  the statement  of  the  prosecutrix  in  the  cross  examination wherein she stated:       "Today,  I have  come alongwith my      father. The  Police uncle  was also      with  me   outside.  Now  when  the      accused  entered  into  the  court,      then the  Policewala and  my father      had told  me that he is the accused      and that  is why that I have stated

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

    that  he   is  the   accused.   The      Policewala  uncle  had  tutored  my      statement   outside    today    and      accordingly I  am deposing  my same      tutored statement."      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 the same Mr. Shukla,  the   learned  senior  counsel  appearing  for  the respondent, however,  submitted that  the accused  belong an army Jawan  and a colleague of the father of the prosecutrix and  prosecutrix  having  been  sexually  assaulted  by  the accused,  there   is  no   reason  for  the  prosecutrix  to unnecessarily involve  an innocent man and since the fact of rape  on   the  prosecutrix   has  been  established  beyond reasonable  doubt  the  High  Court  rightly  convicted  the appellant. We are. 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 he 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. Accordingly we set aside the conviction and sentence passed by  the High  Court of  Madhya Pradesh and acquit the appellant of  the charges  leveled against him. The criminal appeal is  allowed. The bail bond furnished by the appellant shall stand discharged.