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Madhya Pradesh High Court · body

2009 DIGILAW 261 (MP)

Bharosa v. State of M. P.

2009-02-24

S.S.DWIVEDI

body2009
JUDGMENT 1. The appellants have preferred this appeal aggrieved by the impugned judgment of conviction and sentence dated 20.2.2003 passed by Special Judge, Guna, in Special Case No. 68/2001, whereby held the present appellants guilty for the offence punishable under sections 363, 366 and 376 (2) (g) of IPC and sentenced each of them to three years RI with a fine of Rs. 500/-, five years RI with a fine of Rs. 500/- and ten years RI with a fine of Rs. 1,000/- on each count. All the sentences are ordered to run concurrently. 2. Brief facts of the case are, on 20.11.1999 at village Ruthiai the complainant-prosecutrix (PW 18) went for her natural call in the forest, at that time it is alleged that both the appellants together with two other co-accused persons came there and forcibly kidnapped the complainant prosecutrix from the forest and took her to some village and thereafter it is alleged that both the present appellants had committed rape on her. After some time the complainant-prosecutrix came out from the house concerned and narrated the incident to her father and thereafter went to the Police Outpost Ruthiai, on the basis of this FIR the police had registered a case under sections 363, 366 and 376 (2) (g) of IPC; sent the complainant-prosecutrix for medical examination to the Government Hospital where the concerning Dr. Lekha Tiwari (PW 7) examined the prosecutrix and proved the report Ex. P-5, also prepared the slide of vaginal discharge and after sealing handed over to the Constable for chemical examination. Dr. R. K. Jain (PW 11) took the X-ray of the right wrist joint and elbow joint of the complainant-prosecutrix for ossification examination, on the basis of which opined her age in between 16 to 18 years and proved the report Ex. P-20. After arrest all the four accused were put for identification by the complainant-prosecutrix before the Executive Magistrate and the complainant-prosecutrix identified the present appellants together with two other co-accused persons as the persons who kidnapped her, for which the identification memo Ex. P-22 has been prepared. After due investigation the charge sheet has been filed against all the four accused persons. 3.+4. All the four accused persons abjured the guilt and their defence is of false implication in this case. P-22 has been prepared. After due investigation the charge sheet has been filed against all the four accused persons. 3.+4. All the four accused persons abjured the guilt and their defence is of false implication in this case. The learned trial Court after due appreciation of the entire evidence on record held the present appellants Bharat and Bharose guilty for the offence under sections 363, 366 and 376 (2) (g) of IPC and acquitted the other co-accused Parwat and Kanhaiya from the aforesaid offence, and sentenced the present appellants as stated herein above; aggrieved by which the appellants have preferred this appeal. 5. Having heard the learned counsel for the appellants and Government Advocate for the State and perused the record. 6. It is submitted by the counsel for the appellants that on ossification test examination the age of the prosecutrix is found to be 16 to 18 years, by adding two years from either side the age of the prosecutrix is proved to be more than 18 years and she is a major girl. Similarly, in her statement she has not named the present appellants as the persons who committed rape on her; The appellants-accused have been made accused in this case only on the basis of the identification by the complainant before the' Executive Magistrate but the complainant-prosecutrix herself admitted the fact that before the identification parade performed before the Executive Magistrate both these appellants had been shown to her in the Police Station itself and Police had stated to her that these are the persons who committed this offence, and if that being so, the identification of the accused persons by the complainant is having no evidenciary value and on the basis of such identification these appellants cannot be held guilty for the aforesaid offence. 7. 7. Learned counsel for the appellants has also placed reliance on the decision of this Court reported in Mangaliya alias Mangal Singh v. State of M.P. [ 2005 (I) MPWN 118 = 2005 (1) MPHT 469 ], wherein it is held that "in a rape case if the accused has been identified by the complainant prosecutrix in Police Station itself then the alleged identification before the Executive Magistrate is having no evidenciary value." Therefore, on the basis of the aforesaid submission it is prayed that the learned trial Court has wrongly held the appellants guilty for the aforesaid offence, hence prayed for setting aside of the impugned judgment of conviction and sentence passed by the trial Court and also prayed for acquittal of the accused persons. 8. In reply, learned Government Advocate for the State supported the impugned judgment and submits that if the statement of prosecutrix complainant in a rape case is found to be believable then no further corroboration is necessary in her statement and the trial Court has rightly believed the statement of the complainant-prosecutrix and rightly held the appellants guilty for the aforesaid offence and no grounds are available for any interference in the impugned judgment of conviction passed by the trial Court. Hence, prayed for dismissal of the appeal. 9. To bring home the charge as levelled against the appellant the main star witness in the case is the complainant-prosecutrix (PW 18). She stated her age to be of 18 years. She clearly stated that some four-five persons came in the forest on the date of incident, caused injuries to her and all the persons had covered their mouth by means of some cotton clothe, they took her forcibly to some other viilage and thereafter out of them, two persons committed rape on her and thereafter they took her to village Khajuri and tried to sell her to some persons. In her examination in chief she specifically stated that all the four persons had covered their faces by means of some cotton clothe. In cross-examination she had admitted that the co-accused Parwat and Kanhaiya present in the Court had not committed any rape on her and due to this admission of the complainant prosecutrix both these co-accused Parwat and Kanhaiya have been acquitted by the trial Court. 10. In cross-examination she had admitted that the co-accused Parwat and Kanhaiya present in the Court had not committed any rape on her and due to this admission of the complainant prosecutrix both these co-accused Parwat and Kanhaiya have been acquitted by the trial Court. 10. Similarly, in cross-examination the complainant-prosecutrix admitted in para 18 that two persons had been brought before her in the Police Station for identification and police had informed that these are the two persons, who committed rape on her and thereafter at jail the same two persons had been identified by her before the Executive Magistrate also. If this statement ought to be believed then certainly before the test identification of these appellants the complainant-prosecutrix had got an opportunity to see the appellants-accused in the Police Station itself and then certainly the test identification parade performed by Executive Magistrate is having no evidenciary value and on the basis of such test idetification parade the appellants-accused cannot be held guilty for the alleged offence. For this proposition reliance can be placed on a decision of the Hon'ble apex Court in case of Ahmed Bin Salam v. State of Andhra Pradesh, reported in AIR 1999 SC 1617 , wherein the Hon'ble apex Court has held here as under: "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." 11. Same view has been taken by this Court also in the case of Mangaliya @ Mangal Singh (supra), wherein this Court has held that "if the complainant-prosecutrix had got an opportunity to see the accused in the Police custody at Police Station then the alleged test identification parade before the Executive Magistrate becomes doubtful." 12. Same view has been taken by this Court also in the case of Mangaliya @ Mangal Singh (supra), wherein this Court has held that "if the complainant-prosecutrix had got an opportunity to see the accused in the Police custody at Police Station then the alleged test identification parade before the Executive Magistrate becomes doubtful." 12. It is also pertinent to note that the accused persons have been arrested by the police on 22.12.1999 and the alleged test identification parade took place in the jail on 29.12.1999 and if for this delay in identification no explanation has been put forth properly by the prosecution then the delay in identification is also fatal for the prosecution as held by the Hon 'ble apex Court in the case of State of Maharashtra v. Sukhdev Singh, reported in AIR 1992 SC 2100 , wherein the Hon'ble apex Court held that "if the test identification parade is not held promptly and after taking necessary precaution to ensure its credibility, would lend the required assurance which the Court ordinarily seeks to act on it." 13. In view of the aforesaid case law on the point, the alleged identification of the appellants by the complainant-prosecutrix appears to be doubtful and on which basis alone the appellants cannot be held guilty for the alleged offence. 14. The other witnesses examined by the prosecution are Mangilal (PW 1), who had also not stated anything against the appellants; Shantibai (PW 2), who is the sister of complainant-prosecutrix, had also not identified the present appellants as the persons who took forcibly her sister - the complainant-prosecutrix from the forest cocerned; Banshilal (PW 3) had also not stated anything against the appellants that they are the persons, who kidnapped the complainant-prosecutrix; Raju (PW 4) and Sunil (PW 5), had also not identified the appellants as the persons, who took the complainant-prosecutrix forcibly from the forest. Phool Singh (PW 6) is only the witness of Panchnama Ex. P-3; Dr. Lekha Tiwari (PW 7) examined the complainant-prosecutrix and opined that no definite opinion can be given with regard to the alleged rape on the prosecutrix. Dr. S.K. Jain (PW 8) examined the accused persons and proved the report respectively; Siddhanath Singh (PW 9) had recorded the statements of some witnesses; G.A. Khan (PW 10) proved the investigating part of the incident; Dr. Dr. S.K. Jain (PW 8) examined the accused persons and proved the report respectively; Siddhanath Singh (PW 9) had recorded the statements of some witnesses; G.A. Khan (PW 10) proved the investigating part of the incident; Dr. R.K. Jain (PW 11) proved the identification test examination of the complainant-prosecutrix; Rashid Khan (PW 12) proved the registration of the offence as per Ex. P-21; Lalaram (PW 13) proved the seizure of the clothes as per Ex. P-18; Sanjeev Saxena (PW 14) the Executive Magistrate proved the test identification memo Ex. P-22. 15. Ramvilas (PW 15) and M ohanlal (PW 16) had also not identified the present appellants as the persons, who brought the complainantprosecutrix at village Khajuri. Both these witnesses had been declared hostile by the prosecution. Rodulal (PW 17) proved the memo Ex. P-17. Vipat (PW 19), Bharat Singh (PW 20) and Ratan Singh (PW 22) had also not proved anything against the appellants. These three witnesses had also been declared hostile by the prosecution. G.S. Jadone (PW 21) is the Investigating Officer of the case. 16. Thus, on overall re-appreciation of the entire evidence on record, in my considered opinion, the identification of the appellants by the complainant-prosecutrix as the persons who kidnapped her and committed rape on her, is not proved beyond reasonable doubt and the learned trial Court has wrongly held the appellant-accused guilty for the aforesaid offence, therefore, the judgment of conviction passed by the trial Court is liable to be set aside. 17. Resultantly, the appeal preferred by the appellants succeeds and is allowed. The impugned judgment of conviction of the appellants for the offence under sections 363, 366 and 376 (2) (g) of IPC and sentence thereof are set aside and the appellants-accused are acquitted from the aforesaid offence. The fine amount if any deposited by the appellants be refunded to them. The appellants are on bail, their bail bonds stand discharged forthwith.