Madhya Pradesh High Court
Daulat Singh vs State Of Madhya Pradesh on 30 September, 2005
Equivalent citations: 2005(4)MPHT471
JUDGMENT A.K. Gohil, J.
1. In this appeal filed under Section 374 of the Code of Criminal Procedure the appellant has challenged his conviction under Section 376(1), IPC and sentence of seven years RI with fine of Rs. 100/-, in default of payment of fine one month's further R.I.; conviction under Section 325, IPC and sentence of two years RI and fine of Rs. 100/-, in default of payment of fine one month's further RI; and, conviction under Section 323, IPC and sentence of one year RI, vide judgment dated 26-9-2003 passed by Additional Sessions Judge, Ganj Basoda in Sessions Trial No. 16/2002.
2. As per prosecution story, on 9-6-2001 at about 8 o'clock in the morning prosecutrix along with her mother Kesharbai had gone on a hilly track of Village Dhansinghpur for cutting woods. Prosecutrix was coming back with the woods. She was ahead of her mother. In the way one blackman pushed Kesharbai. She alongwith bundle of woods fell down. He pressed her neck and said "if you will cry, I will kill you". When prosecutrix tried to save her mother, that man gave one axe blow on the head of her mother. She started bleeding and became unconscious. Thereafter that man caught hold the prosecutrix, pressed her mouth, took her near the Tendu tree, put her on the earth and committed rape twice. Thereafter, prosecutrix came near her mother and tried to cry. That man came near the prosecutrix and said "he will kill her" and gave one axe blow on the head of the prosecutrix. She also started bleeding and thereafter he fled away from the spot. When complainant regained consciousness, she found that her mother was not there and had reached in the village. Prosecutrix also went in the village and narrated the story to Hukumsingh, Amarsingh, Dhansingh and Ramsingh and thereafter in the tractor of Nandlal prosecutrix and her mother both were taken to Police Station, Gyaraspur where report was lodged and after investigation charge-sheet was filed. The Trial Court after recording the evidence of the prosecution witnesses found the appellant guilty, convicted and sentenced him as aforesaid, against which the appellant has filed this appeal.
3. In this appeal, I have heard Shri R.D. Agarwal, learned Counsel for the appellant and Shri M.P.S. Bhadoriya, learned Government Advocate, for the respondent-State. Shri Agarwal pointed out various infirmities in the prosecution evidence and submitted that there is no evidence of identification of the appellant. Identification Parade was arranged after 1-1/2 months and the delay has not been explained by the prosecution. The accused was already shown to the prosecutrix and witnesses and the appellant has been implicated falsely on the basis of suspicion. There is no reliable evidence against him, therefore, the appellant is liable to be acquitted. In reply, learned Counsel for the State has supported the judgment.
4. After considering the rival contentions of the learned Counsel for the parties, I have perused the evidence on record. Primarily it is to be considered whether any legal evidence relating to the identification of the appellant is on record or not. As per the evidence of the prosecutrix (P.W. 1), Hariram (P. W. 2), who is the father of the prosecutrix and husband of injured Kesharbai, and Kesharbai (P.W. 3), who is the mother of the prosecutrix, admittedly the appellant was not known to them from earlier. They had seen the appellant first time on that very day. In the cross-examination prosecutrix states that the face of that man was covered by clothe. Kesharbai (P.W. 3) stated that his face was painted as black. The prosecutrix has further admitted that when the appellant was arrested, she, her mother and father were called at the Police Station and appellant was shown to them. Even in the jail appellant was called and was shown to them and it was stated to them that he is the person who had assaulted them by police. Kesharbai (P.W. 3) has further admitted that the name of the appellant was told to her by police at Vidisha and at the time of identification parade there were total seven persons; the appellant was in Lungi and Baniyan and rest six others were wearing pant and shirt and their faces were covered. She has admitted that the appellant was arrested after 3-1/2 months. Hariram (P.W. 2) has deposed that he was having finger of suspicion on appellant, as he is residing in the forest and passing time of absconsion. He had seen the appellant in the forest and he is involved in such type of activities and he has shown his suspicion to the police and thereafter he was arrested. This witness has also not stated anything about the commission of rape with his daughter. They have also made exaggerated statements about giving of axe blows and there is also omission in the report Ex. P-1 about causing injuries on the back, cheek and wrist of the prosecutrix. At the time of cross-examination appellant was shown to them and he was not found as black as she has stated. In the cross-examination she has clarified about the colour that because he was sitting in sunlight and looking like black and at the time of incident colour of the appellant was dark black. Kesharbai (P.W. 3) has also not explained that on regaining consciousness why she left the place leaving her daughter alone in the forest. She was not having any personal knowledge about the commission of rape with her daughter. She gave statement as her daughter had told her after some days that the appellant had also outraged her modesty and had done bad work with her.
5. Chhuttu (P.W. 5) and Hukumsingh (P.W. 6) have refused to identify the appellant. Jeewan Kachhi (P.W. 9) and Thansingh (P.W. 11) were also declared hostile. Kalyansingh (P.W. 12), who is the husband of the prosecutrix, has also refused to identify the appellant. He was also declared hostile, as he had not supported his case-diary statement Ex. P-16. As per the medical evidence of Dr. Kanta Madwaiya (P.W. 7), injured Kesharbai had received injuries by hard and blunt object and they were contused laceration injuries on the left parietal bone. Prosecutrix (P.W. 1) had also not received any injury caused by sharp-edged weapon. She received injuries of contused laceration on the right parietal bone. There were no other injuries on the other parts of the body or on the private part. Labia majora and minora were normal. There was no discharge. Hymen was found torn. Vagina was normal. She has only complained about white discharge.
6. Alok Pare, Naib Tehsildar (P.W. 15) had performed Test Identification Parade. In the cross-examination he admits that both had identified him in the first attempt by touching him and showing his name. Mirja Asif Beg (P.W. 16) was the Incharge of Police Station, Tyonda. He has admitted in his cross-examination that none of the witnesses has told him that the appellant has committed any crime with the ladies. Only villagers had suspected about him and Ghasiram Baretha has told him about the appellant, whereas Ghasiram Baretha has not been examined in this case.
7. After considering the evidence on record I find that there is no legal or proper evidence on record about the identification of the appellant by the witnesses. This admission of the prosecutrix that the appellant was shown to her at Police Station is sufficient to demolish the evidence of identification. Hariram and Kesharbai both have not stated anything about the commission of rape with her daughter. Kesharbai was informed lateron by her daughter. This evidence of the prosecutrix that he was a black man and his face was covered by clothe and the evidence of Kesharbai that his face was painted as black and the evidence of Hariram (P.W. 2) that he was having only suspicion against the appellant looking to his activities, show that the evidence of the aforesaid witnesses is not trustworthy about the identification of the appellant. The identification is further doubtful from the evidence of Kesharbai that at the time of identification appellant Daulatsingh was wearing Lungi and Baniyan and rest six other persons those who were mixed were wearing pant and shirt and their faces were covered. From this statement it is clear that the appellant was kept in a different dress at the time of identification. He was also shown to the witnesses by the police even in the jail before conducting the identification parade and they were told that he is the person, who has assaulted them. The evidence of Alok Pare, who has assaulted them. The evidence of Alok Pare, Naib Tehsildar (P.W. 15) further corroborates the conduct of the police that the appellant was already shown to the witnesses as he says that in the first attempt, both had identified him by touching him and showing his name. It was only possible when they were knowing the name of the person and he was shown to them. The evidence of Mirja Asif Beg (P.W. 16), who was the Incharge of Police Station Tyonda, is also material, who has admitted that the appellant was arrested on the basis of suspicion at the instance of Ghasiram Baretha and the prosecution has not examined Ghasiram Baretha in the case. Thus, from the aforesaid evidence, it is clear that the appellant was arrested on the basis of suspicion and there is no positive evidence on record that he was the same person, who has committed the crime.
8. There is also delay in conducting the identification parade. The appellant was arrested on 23-9-2001 but the identification parade was arranged on 12-11-2001. The prosecution has not furnished any valid explanation for such a delay in conducting the identification parade. During the course of argument learned Counsel for the appellant vehemently submitted that the delay in conducting the identification parade is fatal and can not be relied upon.
9. In the cases of Muthuswami v. State of Madras ; Vakil Singh v. State of Bihar and Manzoor v. State of V.P. , the delay of more than two months and three months and half was considered to be fatal to the prosecution case. Even in the case of Hasib v. State of Bihar , 17 days' delay was again considered to be unreasonably long and identification was considered to be a nullity.
10. In the case of Harinath v. State of U.P. [(1988) 1 SCJ 541], the Supreme Court has held that value depends on promptitude in point of time with which suspected persons are put up for test identification. The effect of unexplained and unreasonable delay raises serious doubt in the prosecution story. In the case of Budhsen v. State of U.P. the Supreme Court has again considered this question of delay in holding the identification parade and held that since human memory is apt to get dulled with the passage of time, it is desirable both in the interest of the honest witness and of suspect himself that the latter should be put for identification without delay. Consequently, if an identification parade is not held within a reasonable short period from the date of incidents, it can not be relied upon.
11. The delay may not be fatal in every case; however, the Court will have to be extremely cautious when such evidence is relied upon. After considering the aforesaid law laid down by the Apex Court in various cases on the question of identification, I find that in this case the prosecution has not explained unreasonable delay in holding the identification parade and looking to this evidence of the prosecutrix herself that the appellant was shown to her at the police station and even in the jail before holding the identification parade, the entire evidence of identification loses its value and in the light of the totality of the evidence the same is not reliable and can not be considered for affirming the conviction. The conviction can not be based on such type of weak evidence where identification is tainted and in view of the above, the conviction of the appellant can not be upheld.
12. In the light of the aforesaid discussion, the finding recorded by the Trial Court does not appear to be correct and can not be said to be based on appreciation of correct evidence, therefore, the same is liable to be set aside. Consequently, this appeal is allowed. Conviction of the appellant is set aside and he is acquitted from the charges. He is in jail, he be released forthwith if not required in any other case.