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2004 DIGILAW 989 (MP)

Mangaliya @ Mangalsingh v. State of M. P.

2004-12-07

A.K.GOHIL

body2004
JUDGMENT Appellant has filed this appeal challenging his conviction under section 376(1), IPC and sentence to undergo 7 years' RI and fine of Rs. 500/- and in default of payment of fine, to further undergo 6 months' RI, and conviction under section 323, IPC (on three counts) and sentence to undergo 3 months' RI on each count, by judgment dated 3.7.2001 in Sessions Trial No. 256/2000 by Sessions Judge, Shivpuri. As per prosecution story, on 30.8.2000 at about 12 O'clock in the noon, prosecutrix, alongwith her sisters-in-law Vidya and Asha, had gone to forest for taking firewood. In the forest, one young person came there. He was wearing brown pant and light brown lining Shirt. Prosecutrix was not knowing his name, he caught hold of her hand. Both sisters-in-law objected then he assaulted them by latlzi and he forcibly took her to some distant place and thereafter put her on earth and unfolded her undergarments and committed rape and after committing rape, ran away from the spot. He also shoved lathi in her mouth. Thereafter her sisters-in-law went to the village and informed Jassu and Sanehi and thereafter the prosecutrix went to lodge the report. On the report of the prosecutrix, crime was registered, matter was investigated. The prosecutrix was referred for medical examination. Two slides, were prepared by the doctor and her undergarments were also seized and they were referred for chemical examination. The accused was arrested after 19 days of the incident on 18.9.2000. Thereafter test identification parade was arrange on 19.10.2000 and the appellant was identified by the prosecutrix as well as by her two sisters-in-law. In the chemical examination report, on the slides human spermatozoa and semen smear was found on the clothes. After investigation, charge-sheet was filed. The trial Court, placing reliance on the identification parade as well as medical evidence coupled with chemical examination report, found the appellant guilty of the commission of crime and convicted and sentenced him as aforesaid, against which the appellant has filed this appeal. I have heard Shri R.K. Sharma, learned Advocate for the appellant and Shri V.S. Chaturvedi, learned Public Prosecutor for the respondent State and perused the evidence on record. Shri Sharma has vehemently submitted that the test identification parade was arranged after a month of the incident. The FIR does not disclose the proper identification of the appellant-accused. I have heard Shri R.K. Sharma, learned Advocate for the appellant and Shri V.S. Chaturvedi, learned Public Prosecutor for the respondent State and perused the evidence on record. Shri Sharma has vehemently submitted that the test identification parade was arranged after a month of the incident. The FIR does not disclose the proper identification of the appellant-accused. The prosecutrix and her two sisters-in-law, all the three have admitted that before the identification parade the appellant was shown to them in police custody in police station and thereafter he was identified, therefore, the test identification parade is illegal and is of no value; the other evidence is not of any importance and the conviction of the 'appellant is totally bad in law. To support his contention, he cited various decisions of the apex Court as well as of this Court. In reply, Shri Chaturvedi supported the judgment as well as the findings recorded by the trial Court and submitted that the test identification parade is proper. Admittedly, the appellant was not known to the prosecutrix or to her sisters-in-law. In the FIR, it has been mentioned that he was a young man and was wearing brown pant and light brown lining shirt. No other marks of identification were disclosed in the FIR. Tile prosecutrix (PW 5) in the cross-examination has admitted that the accused was not known to her. She has further admitted that later on, villagers of village Gajigarh as well as police personnel gave the name of the accused to them. When accused was in custody at police station, she was called there and accused was shown to her. She had identified the accused at the police station. Thereafter, the test identification parade 'was arranged in the jail where she had identified the accused. Similar is the statement of her sisters-in-law Asha (PW 6) and Vidya (PW 7). In para 4 of the cross-examination, Ashabai (PW 6) has admitted that before the test identification parade in Shivpuri Jail, she had seen the accused at the police station and police personnel had also informed that he is the person who has committed rape with the prosecutrix and after a month, identification parade was arranged in Shivpuri Jail where she has identified the accused. In para 4 she has clearly stated that first she had identified the accused at the police station and thereafter in the jail. In para 4 she has clearly stated that first she had identified the accused at the police station and thereafter in the jail. Vidyabai (PW 7), in para 3 of her cross-examination has also admitted that initially police had shown them the accused at the police station and thereafter the identification parade was arranged in Shivpuri Jail. In the cross-examination she improved her version and has stated that she was knowing the name of the accused before lodging the report and had informed the police about the name of the accused but why his name is not mentioned in the FIR, she cannot give any reason. Test identification parade was conducted by Ramshankar Shri vastava, Naib Tehsildar (PW 4). In the cross-examination he has admitted that he has not written the names, descriptions and age of the persons, those who were mixed for the purpose of identification. He has admitted that persons of similar face and similar stature of the accused were not available in the jail, therefore, they were not mixed. He has admitted that all the four witnesses before whom the test identification parade was conducted were brought by police. He has further admitted that on the identification memo (Ex. P-10) some police officer has also signed. He has further admitted that the identification parade was conducted on 19.10.2000 but police personnel had signed on 24.10.2000. He has further admitted that all other 10 persons those who were mixed with the accused, were wearing the jail dress. He has further admitted that in the wrist of appellant, his name is tattooed as Mangalsingh. From the evidence of PW 5 to PW 7, it is clear that before arranging the test identification parade in the jail, police had shown the appellant to the prosecutrix as well as her sisters-in-law at police station and thereafter test identification parade was arranged in the jail, that too after a month, and in the jail similar persons of the same face and same stature as that of the accused were not mixed as no such persons were available in the jail and an the witnesses of identification were brought by the police personnel and the test identification parade was not conducted in presence of the independent witnesses. In the light of the aforesaid evidence, the sole question in this case is what is the value of the aforesaid evidence and whether the test identification parade is legal and admissible and the conviction can be based thereon. In the case of Mohanlal Gangaram Gehani v. State of Maharashtra [ AIR 1982 SC 839 ], the Hon'ble Supreme Court has held that "as Shetty did not know the appellant, no test identification parade was held to test his power of identification and he was also shown by the police before he identified the appellant in the Court, his evidence becomes absolutely valueless on the question of identification. On this ground alone, the appellant is entitled to be acquitted." In the case of State of Maharashtra v. Sukhdeo Singh [ AIR 1992 SC 2100 ], it has been held that the test identification parade, if held promptly and after taking the necessary precautions to ensure its credibility, would lend the required assurance which the Court ordinarily seeks to act on it. In the absence of such test identification parade, it would be extremely risky to place implicit reliance on identification made for the first time in Court after a long lapse of time and that too of persons who had changed their appearance. In the case of Kanan v. State of Kerala [1979 SCC (Cr.) 621 = AIR 1979 SC 1127 ], the Hon'ble Supreme Court speaking through Murtaza Fazal Ali, J., observed -"It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous TI parade to test his powers of observations. The idea of holding TI parade under section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. The idea of holding TI parade under section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no TI parade is held then it will be wholly unsafe to rely on his testimony regarding the identification of an accused for the first time in Court." In the case of Ahmed Bin Salam v. State of Andhra Pradesh [ AIR 1999 SC 1617 ], the Hon'ble Supreme Court has held that "the so-called identification is also of a peculiar nature and the witness in his evidence stated that the police asked him whether he could identify the persons who were on the scooter, to which he replied in affirmative and then the two accused persons were shown for the purpose of identification and he identified them. We fail to understand as to how the so-called identification done in the aforesaid manner will assist the prosecution in any way and this cannot be held to be a test identification parade," and the Hon'ble Supreme Court has not relied on such identification and has not sustained the conviction of the appellant and the conviction was set aside. In view of the aforesaid decisions, it is clear that the identification would lose its value when the unknown person said to be the culprit had been seen by the identifying witnesses prior to the identification in the police custody and in view of the admission of PW 5 to PW 7 that the accused was shown to them in the police custody at .the police station before identification, this is sufficient to discard the whole prosecution case about the identification of the accused. The identification of the accused in the police custody has no value and cannot be relied upon. In this case; the trial Court has committed error in discarding the aforesaid evidence of the main prosecution witnesses PW 5 to PW 7. The test identification parade became more doubtful when the persons of similar stature and similar faces as that of accused were not mixed as has been admitted by Naib Tehsildar (PW 4) in his statement. In this case; the trial Court has committed error in discarding the aforesaid evidence of the main prosecution witnesses PW 5 to PW 7. The test identification parade became more doubtful when the persons of similar stature and similar faces as that of accused were not mixed as has been admitted by Naib Tehsildar (PW 4) in his statement. Therefore, from the evidence on record it is clear that the prosecution has failed to prove that it was the appellant who committed offence of rape with the prosecutrix, has beaten two witnesses, or they had identified the accused. Thus, in view of the aforesaid clear-cut evidence available on record, the appellant cannot be convicted. Though in para 30 of the judgment the trial Court has considered the aforesaid evidence but has ended in discarding the same and placing reliance on the evidence of PW 5 to PW 7 for the purpose of identification. The identification is not proper and there is nothing on record to show that he was kept baparda at the police station till the holding of test identification parade in jail; there is an inordinate delay in holding the test identification parade, therefore, the identification is doubtful and is not free from reasonable doubt to sustain the conviction of appellant. In the result, I find that there is strong suspicion against the appellant being involved in the alleged crime. The prosecution has not proved the charge beyond reasonable doubt. Hence, this appeal is allowed. Conviction and sentence of appellant is set aside and the appellant is acquitted from the charges. Appellant is in jail. He be released forthwith if not required in any other offence.