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PETITIONER:

PRAHLAD SINGH

Vs.

RESPONDENT:

STATE OF MADHYA PRADESH

DATE OF JUDGMENT: 13/08/1997

BENCH:

G. N. RAY, G. B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:

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,

J U D G M E N T

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

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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

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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.