Madhya Pradesh High Court
Kailash vs The State Of Madhya Pradesh on 21 April, 2026
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2026:MPHC-JBP:30891
1 CRA-1235-2012
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 21st OF APRIL, 2026
CRIMINAL APPEAL No. 1235 of 2012
KAILASH
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Smt. Renu Gupta - Advocate for the appellant.
Shri Ajay Shukla - Government Advocate for the respondents/State.
ORDER
Per: Justice Vivek Agarwal This Criminal Appeal is filed by the appellant Kailash Soni being aggrieved of the judgment dated 12.04.2012 passed by learned Sessions Judge, Katni in Sessions Trial No. 203 of 2010, whereby the learned trial Court has convicted the appellant and sentenced him as under:
Conviction Sentence
Section Act Imprisonment Fine if Imprisonment
deposited in lieu of fine
363 IPC R.I. for 03 years Rs.500/- RI for 01
month
366 IPC R.I. for 03 years Rs.500/- RI for 01
month
376(2)(f) IPC R.I. for Life Rs.2000/- RI for 02
months
(All the sentences to run concurrently)
Signature Not Verified
Signed by: AMITABH
RANJAN
Signing time: 21-04-2026
17:25:31
NEUTRAL CITATION NO. 2026:MPHC-JBP:30891
2 CRA-1235-2012
2. Smt. Renu Gupta, learned counsel for the appellant submits that, present is the case of false implication. Dock identification carried out by the victim in the Court after more than 06 months of the incident is of no evidentiary value. It is submitted that, said dock identification is adversely affected on account of the question which was put by the trial Court to the victim (PW-4), namely " : सा ी से इशारा करते हुए पूछा क इन म से कौन सा य ले गया था, जा कर कटघरे म छू कर बताओ ".
Thus, it is submitted that, learned Presiding Officer herself gave a hint to the child victim that she has to go and touch the appellant who was standing in the Dock.
3. Similarly, it is pointed out that Shri Umesh Kumar Choubey (PW-3) is not a reliable witness. Shri Umesh Kumar Chaubey stated that on 24.05.2010 at about 11:00 p.m. he was returning to his home from the shop of Shri Mahendra Jain, then in front of Vidhichand Jain School, he had seen a 37-38 years old man, wearing blue colour jeans and full sleeve shirt taking the victim in his lap towards the powerhouse. This witness had gone towards his house. Next day, when he got up in the morning at about 08:00 a.m. he had gone to the tea shop situated in the corner of his house, where he had seen the grand-mother of the victim crying with the victim saying that, wrong was done with the victim.
4. Thereafter, it is pointed out that, testimony of this witness is not reliable. Firstly, arrest of the present present appellant was carried out on 06.06.2010 vide arrest memo (Ex.P-11), whereas dock Signature Not Verified Signed by: AMITABH RANJAN Signing time: 21-04-2026 17:25:31 NEUTRAL CITATION NO. 2026:MPHC-JBP:30891 3 CRA-1235-2012 identification as contained in Ex.P-3 was carried out on 27.08.2010, therefore, that identification has no evidentiary value.
5. It is also submitted that, FSL Report is negative. Therefore, on all these grounds, it is submitted that, present is a case of false implication of the appellant inasmuch as, police had arrested him in connection with another case and has been falsely implicated in the present case.
6. Shri Ajay Shukla, learned Government Advocate in his turn supports the impugned judgment and submits that there is not only dock identification by the victim but also TIP was carried out and therefore, there is no iota of doubt in regard to identification of the appellant.
7. After hearing learned counsel for the parties and going through the records, as far as Test Identification Parade (TIP) is concerned, Hon'ble Supreme Court in the case of Sheikh Hasib Alias Tabarak vs The State Of Bihar (AIR 1972 SC 283) has noted whenever, there is delay in holding the TIP, the prosecution should explain it and the absence of a reasonable explanation will distract the value of the test.
8. Similarly, Hon'ble Supreme Court in the case of Mulla & another Vs. State of Uttar Pradesh (2010)3 SCC 508 in para-45 has noted that, the TIP soon after arrest eliminates the possibility of the accused being shown to the witnesses prior to the TIP.
9. In the case of Shabad Pulla Reddy Vs. State of A.P. AIR 1997 Signature Not Verified Signed by: AMITABH RANJAN Signing time: 21-04-2026 17:25:31 NEUTRAL CITATION NO. 2026:MPHC-JBP:30891 4 CRA-1235-2012 SC 3087, Hon'ble Supreme Court has held that, where the Test Identification Parade was held after about 03-04 months of arrest of the accused persons and no explanation was given for the inordinate delay, identification evidence of such TIP is held to be unreliable.
10. When these facts are taken into consideration and the evidence of Shri Umesh Kumar Choubey (PW-3) and the victim (PW-4) is examined, it emerges that if the appellant was known to the last-seen witness, namely Umesh Kumar Choubey (PW-3), it was incumbent upon him to inform the victim's family, particularly her grandmother, whom he met while taking tea on 25.05.2010, that he had seen the victim in the company of a man aged about 37-38 years, wearing blue-coloured jeans and a full-sleeved shirt. However, no such specific disclosure or description was given by this witness at that time. As noted above, the Test Identification Parade (TIP) conducted vide Ex.P-3 after more than two and a half months from the date of arrest of the appellant loses its evidentiary value and is of no consequence.
11. Further, the identification of the accused by the victim (PW-
4) in the dock is also inconsequential. Firstly, such identification was carried out after a lapse of more than six months from the date of the incident. Secondly, the learned Sessions Judge did not exercise due caution in framing the question put to the victim. The proper course would have been to ask the victim to identify the accused present in the courtroom, rather than directing her to go to the dock and touch the Signature Not Verified Signed by: AMITABH RANJAN Signing time: 21-04-2026 17:25:31 NEUTRAL CITATION NO. 2026:MPHC-JBP:30891 5 CRA-1235-2012 accused. Further, the order-sheet dated 06.12.2010 does not record that the accused was standing in the dock along with several other persons, from among whom the victim was required to identify the actual culprit. In the absence of such a safeguard, the evidentiary value of the dock identification stands significantly diminished.
12. Thus, when the identification itself is faulty, it cannot form the sole basis of conviction, particularly when the FSL report is negative. Furthermore, no DNA report has been produced, despite the fact that the articles were forwarded for DNA examination, as is evident from Ex.P- 26 issued by the Forensic Science Laboratory, Sagar.
13. When these facts are cumulatively taken into consideration, we are conscious that it is unfortunate that victim is a girl aged about 05 years was subjected to violation of privacy, but violator was the present appellant could have been proved only by the prosecution, but in our opinion, prosecution has failed to discharge its burden, therefore, impugned judgment of conviction cannot be sustained in the eyes of law and is hereby set-aside.
14. Accordingly, the criminal appeal filed by the appellant is hereby allowed and disposed of.
15. The impugned judgment dated 12.04.2012 passed by the learned Sessions Judge, Katni in Sessions Trial No. 203 of 2010 is hereby set aside. The appellant is in jail, he be released forthwith, if not required in any other case. The fine amount, if any, deposited before the Signature Not Verified Signed by: AMITABH RANJAN Signing time: 21-04-2026 17:25:31 NEUTRAL CITATION NO. 2026:MPHC-JBP:30891 6 CRA-1235-2012 trial Court, be refunded through account payee cheque or RTGS in favour of the appellant only. The record of the trial Court be sent back immediately. Pending application(s), if any, also stand disposed of.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
AR
Signature Not Verified
Signed by: AMITABH
RANJAN
Signing time: 21-04-2026
17:25:31