REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.     1660        OF 2008 (Arising out of SLP (Crl.) No.1313 of 2008)

Sonu Kumar    ...Appellant

Versus

 State of Himachal Pradesh ...Respondent

  J U D G M E N T    

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

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 Section 376(2)(g) of the Indian Penal Code, 1860

(in short the ‘IPC’).

2. 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.  

3. The prosecution versions during trial is as follows:

The  prosecutrix,  aged  32  years,  was  married  to  a  man,  who  was

employed  at  a  butcher’s  shop  at  Baijnath.  Her  husband  fell  ill  and  was

perhaps  rendered  incapable  of  doing  the  job  with  the  butcher.   The

prosecutrix approached 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

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

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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 Kumar went there.  They forcibly dragged the prosecutrix

out of that room and when they reached the ground floor of the structure,

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 forcibly carried to a near  forest.   She

cried for help. One old lady, living nearby intervened, but she could not get

her released.  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 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 seeing the police.  Statement

of the prosecutrix was recorded by HC Pawan Sharma, heading 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

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forest  in  the  manner  as  summarized  hereinabove,  stated  that  those  who

committed 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 offences punishable

under Sections 452 read with Section 34, 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 to try the

case and ultimately convicted  and sentenced the  five accused persons  as

aforesaid, but acquitted their sixth accomplice.

Appellants’  plea was that  they were not  involved in the crime and

have been implicated just on suspicion.  Learned counsel, representing the

appellants,  argued  that  there  is  no  evidence  on  record  establishing  the

identity of the appellants as the perpetrators of the crime.

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Prosecution examined the prosecutrix as PW-1, her son Onkar Chand

as PW-3, an old woman, named Gitan Devi, PW-4, who allegedly tried to

get the prosecutrix rescued from the 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 receipt

of telephonic information at the police station about the incident went to the

spot and over-powered three of the alleged rapists on the spot and recorded

the statement of the prosecutrix, under Section 154 of the Code of Criminal

Procedure, 1973 (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 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  intercourse.   All  the

accused persons took the plea of denial simpliciter and claimed that they

were innocent and had been falsely implicated at the behest of 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 PW-4.  The Trial Court,

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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

witness box had stated that she had identified five boys at the police station

on 4.6.2002. It was accepted by her that she had been shown the accused

persons by the police before identification.

Primary stand before the High Court taken by the appellant was that

there was no evidence so far as his involvement is 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.  The

High  Court  did  not  find  any substance  in  this  plea  and  as  noted  above

dismissed the appellants’ appeal along with other appeals.

4. Learned  counsel  for  the  appellant  submitted  that  there  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 and this view

was  affirmed  by  the  High  Court.   Merely  because  the  accused  persons

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purportedly addressing each other by names that cannot be a ground to hold

the appellant  guilty without  any material  to show that  he was the person

whose name was being uttered by the co-accused persons.

5. Learned  counsel  for  the  State  on  the  other  hand  supported  the

judgment of the Trial Court and the High Court.

6. It is not disputed by learned counsel for the State that unlike some

others the appellant was not caught at the place of occurrence.  The Trial

Court had itself held that there was no test identification parade in the eye of

law.  Therefore, identification of the appellant for the first time in 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 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.    

7. 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  prove  the  accusations  so  far  as  the

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appellant is concerned.  He is acquitted of the charges.  He shall be released

forthwith from custody unless required to be in custody in connection with

any other case.

8. The appeal is allowed.      

……………...................................J. (Dr. ARIJIT PASAYAT)  

……. .............................................J.      (Dr. MUKUNDAKAM SHARMA)

New Delhi  October 22, 2008

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