Prahlad
Singh Vs. State of Madhya Pradesh [1997] INSC 663 (13 August 1997)
G. N.
RAY, G. B. PATTANAIK
ACT:
HEADNOTE:
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,
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 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 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.
Back