Arjun Singh vs State Of H.P

Arjun Singh ...Appellant

Versus

State of Himachal Pradesh ...Respondent

JUDGMENT

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

2 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 seeking 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

3 to the 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.

4 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,

5 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

6 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

7 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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