1

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No. 1651 of 2017

Judgment Reserved on 15.04.2024

Judgment Delivered on 25.04.2024

1. Lalit, S/o Shri Ramayan Kenwat, Aged About 30 Years,

2. Kishan Turkane, S/o Shri Dukalu Ram Turkane, Aged About 19

Years,

3. Vinnu (Binnu) Kenwat, S/o Desram Kenwat, Aged Abou t 19

Years,

4. Ramkumar, S/o Shri Lodhi Ram Kenwat, Aged About 25 Years,

All are R/o Village Dewarghata, Police Station Shivrinarayan,

District Janjgir - Champa Chhattisgarh.

---- Appellants

Versus

State of Chhattisgarh Through Station House Officer, Police

Station Sheorinarayan, District Janjgir - Champa Chhattisgarh.

---- Respondent

----------------------------------------------------------------------------------------------

For Appellants : Mr. Ajeet Kumar Yadav, Advocate

For Respondent/State : Mr. H.A.P.S. Bhatia, P.L.

-----------------------------------------------------------------------------------------------

Division Bench

Hon’ble Shri Justice Sanjay K. Agrawal

Hon'ble Shri Justice Sanjay Kumar Jaiswal

CAV Judgment

Sanjay Kumar Jaiswal, J.

1.This criminal appeal filed by the appellants under Section 374(2)

of the Code of Criminal Procedure, 1973 (hereinafter referred to

as “Cr.P.C.”) is directed against the impugned judgment of

conviction and order of sentence dated 24.08.2017 passed by

the Additional Sessions Judge, F.T.C. Janjgir, District Janjgir- 2024:CGHC:14661-DB

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Champa, Chhattisgarh in Sessions Trial No.181 of 2015,

whereby the appellants have been convicted under Section

376D of the Indian Penal Code, 1860 (hereinafter referred to as

“IPC”) and sentenced to undergo rigorous imprisonment for 20

years with fine of Rs.20,000/- to each of the appellants, in default

of payment of fine, additional rigorous imprisonment for 6

months to each of the appellants.

2.Under the impugned judgment in question, appellants were

acquitted by the trial Court for the offence punishable under

Section 67A of the Information Technology Act, 2000 (hereinafter

referred to as “I.T. Act”).

3.The allegations against the present appellants are that, on

10.07.2015, at about 2:15 PM in Village Devarghata within the

ambit of Police Station Shivrinarayan, District Janjgir-Champa,

they have committed gang-rape with the prosecutrix without her

wish and consent and also published/distributed obscene

pictures of the said incident through electronic devices.

4.The case of the prosecution, in a nutshell, is that the prosecutrix

(PW-12), aged about 12 years, who worked in NGO, had gone to

village Devarghata with her former acquaintance friend

Tinkeshwar Tandon (PW-5) and after visiting the temple, they

went to the river side. While they were sitting on the sand, 2024:CGHC:14661-DB

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appellants came along with a delinquent child, abused

Tinkeshwar Tandon (PW-5), beat him up, drove him away and

after pushing the prosecutrix (PW-12) on the ground, they

removed her clothes and forcibly committed gang-rape with her.

The video of one of the incidents was also prepared from a

mobile phone. Later, Tinkeshwar Tandon (PW-5) came there, as

marriage of prosecutrix was fixed. They were scared as the

appellants had threatened to make the obscene video viral and

due to the said fear, they neither reported to the police nor

narrated the incident to their home. After few days, prosecutrix

(PW-12) got information from her friends about the obscene

video going viral, then she informed her family about the

incident. Thereafter, a named written report was lodged on

25.07.2015 at Police Station Shivrinarayan vide Ex.P/10 against

the appellants, upon which, First Information Report was

registered vide Ex.P/17 and medical examination of prosecutrix

(PW-12) was conducted. Dr. Anvita Dhruv (PW-11) conducted

the medical examination of prosecutrix and in her report

(Ex.P/8), no definite opinion was given regarding forceful

intercourse/rape. Statements of witnesses were recorded and

spot map was prepared vide Ex.P/3. Undergarments of both the

parties were seized and sent for its chemical examination to the

FSL. In the FSL report (Ex.P/39), semen stains and human

sperm were found on the underwear of appellants Kishan 2024:CGHC:14661-DB

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Turkane and Lalit respectively. No semen stains and human

sperm were found on the underwear of prosecutrix. On

31.07.2015, Dinesh Kumar Chincholkar, Tehsildar (PW-15) has

conducted test identification parade of the accused along with

other persons, which was done by the prosecutrix (PW-12) in

District Jail, Janjgir, for which, identification memo was prepared

vide Ex.P/15. Thereafter, appellants were arrested vide Ex.P/20

to Ex.P/22 & Ex.P/36. After completion of the investigation,

charge-sheet was filed against the appellants.

5.During the course of trial, in order to bring home the offence,

prosecution has examined as many as 17 witnesses and

exhibited 41 documents. Statements of the appellants were

recorded under Section 313 of Cr.P.C., in which, they denied the

circumstances appearing against them in the evidence brought

on record by the prosecution, pleaded innocence and false

implication. However, in defence, appellants have not examined

any witness, but exhibited two documents.

6.After conclusion of the trial, the learned trial Court, by impugned

judgment dated 24.08.2017, on appreciation of the oral and

documentary evidence available on record, has convicted and

sentenced the appellants as mentioned herein-above, against

which, this appeal has been preferred by the appellants calling in

question the legality, validity and correctness of the impugned 2024:CGHC:14661-DB

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judgment.

7.Mr. Ajeet Kumar Yadav, learned counsel for the appellants

submits that incident was happened on 10.07.2015, but its report

was lodged after 15 days i.e., on 25.07.2015, for which no

satisfactory explanation was given, therefore, entire case of

prosecution has been doubtful. He further submits that

Tinkeshwar Tandon (PW-5) was a friend of prosecutrix (PW-12)

whom the villagers had seen in an objectionable position as also

protested against commission of such acts near the temple and

at the tourist spot of Devarghata, due to which, she got irritated

and subsequently lodged a report with inordinate delay. In the

written report, she has named the appellants, but no explanation

has been given as to how prosecutrix would know the name of

appellants. If the prosecutrix (PW-12) already knew the accused,

then there was no need for the Police to conduct identification

parade. It is contended that identification parade (Ex.P/15) which

has been conducted is not in accordance with the law as

according to the guidelines given by Hon’ble Supreme Court, at

least 6 people should have been identified along with one

person, which has not been followed as well as their order has

also not been changed. It is further contended that prosecutrix

had already seen the appellants in the Police Station and got

them identified. The independent witnesses of identification 2024:CGHC:14661-DB

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proceedings have not been examined. It is argued that

statement of prosecutrix is not supported by medical and FSL

report. Thus, the conviction of the appellants is not based on

proper, reliable and valid evidence. Therefore, he should be

acquitted by setting aside the conviction and sentence.

Therefore, conviction and sentence of the appellants were not

based on reliable and clear evidence, as such, it should be set

aside and appellants be acquitted of the charges levelled against

them.

8.Per contra, Mr. H.A.P.S. Bhatia, learned State counsel supported

the impugned judgment of conviction and order of sentence and

submits that the prosecution has proved the offence beyond

reasonable doubt by leading evidence of clinching nature. The

learned trial Court has rightly convicted the appellants for the

offence punishable under Section 376D of the IPC, thus, the

present appeal deserves to be dismissed.

9.We have heard learned counsel for the parties, considered their

rival submissions made herein-above and gone through the

records with utmost circumspection.

10.It is clear from entire prosecution case that incident had

happened on 10.07.2015, but a named written report was lodged

after 15 days i.e., on 25.07.2011 against the appellants and 2024:CGHC:14661-DB

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prosecutrix has not given any explanation as to how she knew

the name of appellants. It has been further stated that on

31.07.2015, i.e., after about 21 days of the incident, identification

parade was conduced and identification memo was prepared

vide Ex.P/15. The independent witnesses of Ex.P/15 have not

been examined by the prosecution.

11.The conviction of the appellants is basically based on the

statement of prosecutrix (PW-12) and her friend Tinkeshwar

(PW-5). It is clear from the statements of Kiran Tandon (PW-7),

Sushila Joshi (PW-8) and Gange Dinkar (PW-9) that after the

video went viral on the mobile phone, prosecutrix (PW-12)

narrated the incident to her family members and afte r

consultation with her family and with the help of her colleagues

of the N.G.O., where she worked, she went to the Police Station

and lodged a written report. The said video, which had gone viral

has been seized and produced, but on the basis of not having a

certificate under Section 65 of the Evidence Act and CD not

being marked as an article, the trial Court has found that

prosecution has not been able to prove the case under Section

67A of the I.T. Act, and accordingly acquitted the appellants for

the offence punishable under Section 67A of the I.T. Act. Thus,

the fact has not come on record as to who was in the so-called

video, which had gone viral and what was the sequence of 2024:CGHC:14661-DB

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events.

12.The prosecutrix (PW-12) in her Court statement has admitted the

sequence of events as per prosecution case and her statement

has been corroborated by her friend Tinkeshwar Tandon (PW-5),

but there are some contradictions in her Court statement and

Police statement. In fact, there is a doubt as to whether the

appellants had committed aforesaid incident with the prosecutrix

(PW-12) or not and as per defence of appellants, it was only her

friend Tinkeshwar Tandon (PW-5) who was found in an

objectionable position with prosecutrix. The situation has been

existing. The main reason for doubt is delay in lodging the report

by 15 days. The second major reason is that statements of

prosecutrix herself (PW-12) and her friend Tinkeshwar (PW-5) as

well as mother Tulsi Mishra (PW-1) and father Narmada Prasad

(PW-4) of prosecutrix are important. It has been established that

prosecutrix (PW-12) was in friendship with Tinkeshwar Tandon

(PW-5) even though they neither worked together nor studied

together and on the day of incident, prosecutrix (PW-12) had

informed at her home that she had gone to visit Devarghata

tourist place with Tinkeshwar Tandon (PW-5). On the basis of the

situation which is being reflected in the case, it would not be

appropriate to believe the statement of prosecutrix (PW-12) and

her friend Tinkeshwar Tandon (PW-5) beyond reasonable doubt 2024:CGHC:14661-DB

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because prosecutrix (PW-12) neither lodged report of the

incident promptly nor her statement is corroborated with medical

evidence and FSL report.

13.The basic question is that how did the prosecutrix (PW-12)

lodged a named written report (Ex.P/10) against the appellants

after 15 days of incident, when she did not even know them

before the date of incident. Thereafter, identification parade

(Ex.P/15) was also conducted by the prosecutrix (PW-12). If the

prosecutrix (PW-12) already knew the appellants, then there was

no need to conduct the identification parade. In such a situation,

a named report become doubtful and there is a need for

interference in identification parade (Ex.P/15). Identification

proceeding was conducted by Dinesh Kumar Chincholkar,

Tehsildar (PW-15) in the District Jail, Janjgir, who has prepared

identification memo vide Ex.P/15, for which witnesses namely,

Satanand and Badri Vishal Patel were not examined by the

prosecution. According to identification memo, a total of 12

persons, 4 appellants were included in the TIP. 8 persons were

made to stand with 4 appellants and out of them, 4 appellants

were identified by the prosecutrix (PW-12) by touching them.

The appellants were placed at Sl. Nos.2, 5, 8 and 10.

14.It is well settled law that the necessity for holding an identification

parade can arise only when the accused are not previously 2024:CGHC:14661-DB

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known to the witnesses. The whole idea of a TIP is that

witnesses who claim to have seen the culprits at the time of

occurrence are to identify them from the midst of other persons

without any aid or any other source. The test is done to check

upon their veracity. (See: Heera & Anr. v. State of Rajasthan

1

).

15.The identification test is not substantive evidence, such tests are

meant for the purpose of helping the investigating agency with

an assurance that their progress with the investigation into the

offence is proceeding on right lines. (See : Musheer Khan @

Badshah Khan & Anr. v. State of Madhya Pradesh

2

).

16.Recently, the Supreme Court in the matter of Rajesh Alias

Sarkari @ Anr. v. State of Haryana

3

considering the object of

conducting TIP, laid down the principles to be followed for proper

conduct of TIP and in para 43 & 44 held as under :

“43. The prosecution has submitted that an

adverse inference should be drawn against the

appellants for refusing to submit themselves to a

TIP. Before we deal with the circumstances in

which the appellants declined a TIP, it becomes

essential to scrutinize the precedent from this

Court bearing on the subject. A line of precedent

of this Court has dwelt on the purpose of

conducting a TIP, the source of the authority of

the investigator to do so, the manner in which

1 AIR 2007 SC 2425

2 (2010) 2 SCC 748

3 (2021) 1 SCC 118 2024:CGHC:14661-DB

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these proceedings should be conducted, the

weight to be ascribed to identification in the

course of a TIP and the circumstances in which

an adverse inference can be drawn against the

accused who refuses to undergo the process.

The principles which have emerged from the

precedents of this Court can be summarized as

follows:

43.1. The purpose of conducting a TIP is that

persons who claim to have seen the offender at

the time of the occurrence identify them from

amongst the other individuals without tutoring or

aid from any source. An identification parade, in

other words, tests the memory of the witnesses,

in order for the prosecution to determine whether

any or all of them can be cited as eye- witness to

the crime;

43.2. There is no specific provision either in the

CrPC or the Indian Evidence Act, 1872, which

lends statutory authority to an identification

parade. Identification parades belong to the

stage of the investigation of crime and there is no

provision which compels the investigating

agency to hold or confers a right on the accused

to claim a TIP.

43.3. Identification parades are governed in that

context by the provision of Section 162 of CrPC.

43.4. A TIP should ordinarily be conducted soon

after the arrest of the accused, so as to preclude

a possibility of the accused being shown to the

witnesses before it is held.

43.5. The identification of the accused in court

constitutes substantive evidence. 2024:CGHC:14661-DB

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43.6. Facts which establish the identity of the

accused person are treated to be relevant under

Section 9 of the Evidence Act.

43.7. A TIP may lend corroboration to the

identification of the witness in court, if so

required.

43.8. As a rule of prudence, the court would,

generally speaking, look for corroboration of the

witness’ identification of the accused in court, in

the form of earlier identification proceedings. The

rule of prudence is subject to the exception when

the court considers it safe to rely upon the

evidence of a particular witness without such, or

other corroboration.

43.9. Since a TIP does not constitute substantive

evidence, the failure to hold it does not ipso facto

make the evidence of identification inadmissible.

43.10. The weight that is attached to such

identification is a matter to be determined by the

court in the circumstances of that particular case.

43.11. Identification of the accused in a TIP or in

court is not essential in every case where guilt is

established on the basis of circumstances which

lend assurance to the nature and the quality of

the evidence.

43.12. The court of fact may, in the context and

circumstances of each case, determine whether

an adverse inference should be drawn against

the accused for refusing to participate in a TIP.

However, the court would look for corroborating

material of a substantial nature before it enters a

finding in regard to the guilt of the accused. 2024:CGHC:14661-DB

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44. These principles have evolved over a period

of time and emanate from the following

decisions:

1. Matru v. State of U.P. [(1971) 2 SCC 75 :

1971 SCC (Cri) 391]

2. Santokh Singh v. Izhar Hussain [(1973) 2

SCC 406 : 1973 SCC (Cri) 828]

3. Malkhansingh v. State of M.P. [(2003) 5 SCC

746 : 2003 SCC (Cri) 1247]

4. Visveswaran v. State [(2003) 6 SCC 73 : 2003

SCC (Cri) 1270]

5. Munshi Singh Gautam v. State of M.P.

[(2005) 9 SCC 631 : 2005 SCC (Cri) 1269]

6. Manu Sharma v. State (NCT of Delhi) [(2010)

6 SCC 1 : (2010) 2 SCC (Cri) 1385]

7. Ashwani Kumar v. State of Punjab [(2015) 6

SCC 308 : (2015) 4 SCC (Cri) 171]

8. Mukesh and Ors. v. State (NCT of Delhi)

[(2017) 6 SCC 1 : (2017) 2 SCC (Cri) 673]”

As such, it is quite vivid that the facts which establish the

identity of the accused person are treated to be relevant under

Section 9 of the Evidence Act.”

17.The best way to test the evidence of the witnesses regarding the

identity of the accused is to mix the latter with other persons and

to give the witnesses an opportunity of picking them out. Where

this procedure is not adopted either by the Police or by the

Magistrate who conducted the commitment proceedings and no

explanation is forthcoming as to the omission, it is very serious 2024:CGHC:14661-DB

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defect both in the investigation and the conduct of the case.

(See: (1947) 48 Cri LJ 522 (529) (DB) (Lah) {Amandchand v.

The Crown}.

18.The Allahabad High Court in the matter of Anwar & Another v.

State

4

, it has been held that first rule relates to number of under-

trials to be mixed with the suspect to eliminate reasonable

possibilities of chance identification and to make results of the

identification acceptable. It has been further held one of the rules

laid down for testing the observation and memory of identifying

witnesses relates to the number of under-trials to be mixed with

a suspect in order to eliminate the reasonable possibilities of a

chance identification and to make the results of identification

acceptable. Further, it has been held that the second rule

stresses that the performance of the witnesses in other parades

is also relevant in assessing his power of observation. Each

suspect should be put up separately for identification mixed with

nine or more under-trials. The ratio of 7 : 1 in the case of one or

two suspects ipso facto considerably diminishes the value of

identification and unless the investigation is absolutely above

board, it would not be prudent to place any reliance on such

identification.

19.Further, it has been held in Dal Chand & Anr. v. State

5

that as a

4 AIR 1961 All 50

5 AIR 1953 All 123 2024:CGHC:14661-DB

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safe rule of prudence, a fair proportion of outsiders mixed with

the suspects, considering the circumstances of the case should

always be insisted upon by every Magistrate who is charged with

the duty of conducting identification proceedings.

20.Similarly, in State v. Wahid Bux & Others

6

, in identification

parades, it is always better to have as large a number of persons

mixed up with the accused as possible. If five times the number

of the accused persons are mixed with them, it cannot be said

that there is any flaw in the identification proceedings.

21.In the matter of Budhsen & Anr. v. State of U.P.

7

their Lordships

of the Supreme Court laid down the principles of law where

conviction based solely on identification of witnesses by test

identification parade and laid down the principles for conducting

the TIP and held that the number of persons mixed up with the

accused should be reasonably large and their bearing and

general appearance should not glaringly dissimilar and held in

para 7 as under :

“7. Now, facts which establish the identity of an

accused person are relevant under Section 9 of

the Indian Evidence Act. As a general rule, the

substantive evidence of a witness is a statement

made in court. The evidence of mere

identification of the accused person at the trial for

6 AIR 1953 All 314

7 1970 (2) SCC 128 2024:CGHC:14661-DB

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the first time is from its very nature inherently of

a weak character. The evidence in order to carry

conviction should ordinarily clarify as to how and

under what circumstances he came to pick out

the particular accused person and the details of

the part which the accused played in the crime in

question with reasonable particularity. The

purpose of a prior test identification, therefore,

seems to be to test and strengthen the

trustworthiness of that evidence. It is accordingly

considered a safe rule of prudence to generally

look for corroboration of the sworn testimony of

witnesses in court as to the identity of the

accused who are strangers to them, in the form

of earlier identification proceeding. There may,

however, be exceptions to this general rule,

when, for example, the court is impressed by a

particular witness, on whose testimony it can

safely rely, without such or other corroboration.

The identification parades belong to the

investigation stage. They are generally held

during the course of investigation with the

primary object of enabling the witnesses to

identify persons concerned in the offence, who

were not previously known to them. This serves

to satisfy the investigating officers of the bona

fides of the prosecution witnesses and also to

furnish evidence to corroborate their testimony in

court. Identification proceedings in their legal

effect amount simply to this : that certain persons

are brought to jail or some other place and make

statements either express or implied that certain

individuals whom they point out are persons

whom they recognise as having been concerned 2024:CGHC:14661-DB

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in the crime. They do not constitute substantive

evidence. These parades are essentially

governed by Section 162, Cr. P.C. It is for this

reason that the identification parades in this case

seem to have been held under the supervision of

a Magistrate. Keeping in view the purpose of

identification parades the Magistrates holding

them are expected to take all possible

precautions to eliminate any suspicion of

unfairness and to reduce the chance of

testimonial error. They must, therefore, take

intelligent interest in the proceedings, bearing in

mind two considerations : (i) that the life and

liberty of an accused may depend on their

vigilance and caution and (ii) that justice should

be done an the identification. Those proceedings

should not make it impossible for the identifiers

who, after all, have, as a rule, only fleeting

glimpses of the person they are supposed to

identify. Generally speaking, the Magistrate must

make a note of every objection raised by an

accused at the time of identification and the

steps taken by them to ensure fairness to the

accused, so that the court which is to judge the

value of the identification evidence may take

them into consideration in the appreciation of

that evidence. The power to identify, it may be

kept in view, varies according to the power of

observation and memory of the person

identifying and each case depends on its own

facts, but there are two factors which seems to

be of basic importance in the evaluation of

identification. The persons required to identify an

accused should have bad no, opportunity of 2024:CGHC:14661-DB

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seeing him after the commission of the crime and

before identification and secondly that no

mistakes are made by them or the mistakes

made are negligible. The identification to be of

value should also be held without much delay.

The number of persons mixed up with the

accused should be reasonably large and their

bearing and general appearance not glaringly

dissimilar. The evidence as to identification

deserves, therefore, to be subjected to a close

and careful scrutiny by the Court. Shri Pratap

Singh, Magistrate, who conducted the

identification, has appeared at the trial as P.W.

20. The identification memo in respect of Naubat,

appellant, is Ex. Ka 20, dated October 21, 1967

and in respect of Budhsen is Ex. Ka 21, dated

October 28, 1967.”

22.Recently, in the matter of Gireesan Nair & Others v. State of

Kerala

8

, Their Lordships of the Supreme Court held as under :-

“33. It is significant to maintain a healthy ratio

between suspects and non-suspects during a

TIP. If rules to that effect are provided in Prison

Manuals or if an appropriate authority has issued

guidelines regarding the ratio to be maintained,

then such rules/guidelines shall be followed. The

officer conducting the TIP is under a compelling

obligation to mandatorily maintain the prescribed

ratio. While conducting a TIP, it is a sine qua non

that the non-suspects should be of the same

age-group and should also have similar physical

features (size, weight, color, beard, scars, marks,

bodily injuries etc.) to that of the suspects. The

8 (2023) 1 SCC 180 2024:CGHC:14661-DB

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officer concerned overseeing the TIP should also

record such physical features before

commencing the TIP proceeding. This gives

credibility to the TIP and ensures that the TIP is

not just an empty formality (Rajesh Govind

Jagesha v. State of Maharashtra

9

and Ravi v.

State

10

).”

23.If we consider the identification parade in light of the above-

stated principles of law laid down by their Lordships of the

Supreme Court, it is important to first see the statement of

Dinesh Kumar Chincholkar, Tehsildar (PW-15) who has clearly

stated in his cross-examination that the persons who were mixed

with the appellants were the persons detained in jail. He has not

mentioned in identification memo (Ex.P/15) that what was the

appearance and height of the persons included.

24.The prosecutrix (PW-12) has proved the identification process in

her statement and also identified the accused in the Court, but in

her cross-examination, she has stated that after arresting the

accused persons, police personnel used to call her to the Police

Station for identification. First of all, they brought a boy to Police

Station whom she recognized as the same boy who had made

the video. Later, after arresting the appellants, they were

identified by showing them at Police Station on different dates

one by one. In this way, it is clear that even before the alleged

9 (1999) 8 SCC 428

10 (2007) 15 SCC 372 2024:CGHC:14661-DB

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identification parade (Ex.P/15) in District Jail, Janjgir, policemen

called the prosecutrix to Police Station, where she identified the

accused.

25.As an Investigator, Savita Das (PW-16), Inspector, has admitted

that after arresting the accused persons, bringing them to Police

Station and before the identification proceeding (Ex.P/15), no

such document was produced in the case that appellants were

kept in secrecy. She has expressed ignorance of the fact that

after the arrest of appellants, their name was appeared in

newspapers and TV channels. She has also expressed

ignorance as to who had told the name of appellants to the

prosecutrix (PW-12). She has admitted that she does not know

the name of any person to whom Tinkeshwar (PW-5) was asked

to call from the village and she has not taken the statement of

any such person. Thus, the investigator has also failed to explain

as to how the prosecutrix (PW-12) had named the appellants in

written report (Ex.P/10) despite they being unknown to her.

26.In the light of above judicial precedents, the question of identity

of the appellants is found to be completely doubtful because the

prosecutrix (PW-1) had got the opportunity to see the appellants

in Police Station even before the identification proceeding. Only

the inmates of alleged jail were included in the identification

parade. No details have been given about the clothes they were 2024:CGHC:14661-DB

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wearing at the time of identification, their appearance and height.

The identification parade has been conducted and it does not

reflect that order of appellants has been changed to identify

them. According to the guidelines for identification parade given

by Hon’ble Supreme Court in above-mentioned case laws,

sufficient proportion of persons have not been brought together

for identification of four appellants.

27.Concludingly, it is held that the identification parade, which has

been conducted by the prosecution vide Ex.P/15 is not in

accordance with law and, as such, the identity of appellants for

authors of the crime have not been proved by the prosecution

beyond reasonable doubt and therefore, all the appellants are

entitled for acquittal on the basis of benefit of doubt.

28.In view of the above, we are of the considered opinion that the

appellants herein are entitled for acquittal on the ground of

benefit of doubt. Accordingly, the impugned judgment of

conviction and order of sentence dated 24.08.2017 is hereby set

aside. The appellants are acquitted of the charges levelled

against them under Section 376D of the IPC. All the appellants

shall be forthwith set at liberty, unless they are required in

connection with any other offence.

29.In the result, the appeal is allowed. 2024:CGHC:14661-DB

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22

30.Let a certified copy of this judgment along-with the original

record be transmitted to the trial Court and the concerned

Superintendent of Jail be also supplied with a copy of this

judgment for information and necessary action, if any, at the

earliest.

Sd/- Sd/-

(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal)

Judge Judge

Yogesh 2024:CGHC:14661-DB

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