Holding

The prosecution failed to prove the accused’s presence or participation, and the invalid test identification parade could not support a conviction, leading to acquittal.

Summary

The prosecution alleged that Bal Kishan, along with others, forcibly dragged the prosecutrix to a forest and raped her. The trial court convicted the accused based on the testimonies of the prosecutrix, her son and an elderly neighbour, despite finding that the test identification parade conducted by the magistrate did not meet legal requirements. On appeal, the accused contended that no material linked him to the crime, noting that he was not apprehended at the scene and that the only identification was the prosecutrix’s recollection of names being spoken. The Supreme Court held that the prosecution failed to prove the accused’s presence or participation and that the improper identification parade could not be used to sustain a conviction. Consequently, the Court acquitted Bal Kishan and allowed the appeal.

Issues considered

Whether a conviction can be sustained in the absence of a valid test identification parade.
Whether the prosecution proved the accused's presence at the scene of the alleged rape.
Whether the statements of the prosecutrix regarding names spoken by co‑accused constitute sufficient evidence of identity.
Applicability of Section 34 IPC (common intention) when individual participation is not established.

Legislation cited

Code of Criminal Procedure, 1973s. 154
Indian Penal Code, 1860s. 323, s. 34, s. 376(2)(g), s. 452

Subjects

rapeidentification paradeevidenceacquittalIPCSection 34criminal lawcircumstantial evidencescheduled caste atrocity

Judgment

[2008] 14 S.C.R. 1026

A BAL KISHAN r
v.
STATE. OF HIMACHAL PRADESH
(Criminal Appeal No. 1659 of 2008)
OCTOBER 22, 2008
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
..
SHARMA, JJ.] 'y

Penal Code, 1860- ss. 452, 323 rlw s. 34 ands. 376(2)(g)
c - Conviction under - Prosecution case that accused along
with others committed rape on prosecutrix - Conviction by
courts below - Challenge to, by accused - Held: Prosecution
failed to prove accusations as regard the accused - It did not
lead any evidence to show presence of accused at the place
of occurrence or to have participated in the crime - Test iden-
D
tification parade did not meet requirements of law - Hence, x
accused is acquitted - Evidence.
According to the prosecution case, on the fateful day,
the appellant along with others forcibly dragged the pros-
E ecutrix to the forest and committed rape on her. PW 4-old
lady who was living nearby, tried to intervene but could
not save the prosecutrix. PW 3-son of prosecutrix aged
11 years, got so scared that he hid himself. Someone in-
formed the police. The police reached the place of inci-
F dent and over-powered two of the appellants and the sixth ·~
accomplice on the spot. The statement of the prosecutrix ....
was recorded. She narrated the incident and stated that
the accused persons were calling each other by names
and that is how she knew names of persons who com-
mitted the offence. Investigation was carried out. Trial
G
court relying on the evidence of PW 1-prosecutrix, PW 3
and PW 4 convicted all the accused for offence punish- -r-
able u/ss. 452, 323 r/w s. 34 and s. 376(2)(g) IPC, though it
found that the test identification parade conducted by the

H 1026
1028 SUPREME COURT REPORTS [2008] 14 S.C.R.

A The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division
bench of the Himachal Pradesh High Court dismissing the ap-
B peal filed by the appellant questioning the conviction for offence
punishable under Sections 452, 323 read with Section 34 and
Section 376(2)(g) of the Indian Penal Code, 1860 (in short the y
'IPC').
3. By a common judgment five appeals preferred by the
C accused persons were disposed of. The accused persons were
found guilty of offence punishable under the aforesaid offences
by learned Sessions Judge, Kangra at Dharamshala ..
4. The prosecution versions during trial is as follows:
D The prosecutrix, aged 32 years, was married to a man,
who was employed at a butcher's shop at Baijnath. Her hus-
band fell ill and was perhaps rendered incapable of doing the
job with the butcher. The prosecutrix approached the butcher
for employing her son, who was then aged just eleven years, for
E doing odd jobs. The butcher offered to employ her son for graz-
ing his sheep and goats on monthly salary of Rs.700/-. On
3.6.2002 the prosecutrix took her son to the butcher's shop at
Baijnath with the intention of leaving him there. Her son was
required to take the sheep and goats to the.forest, by the em-
F player, immediately after they reached. The prosecutrix accom-
panied her son to the forest. They returned with the herd in the
evening. By then the last bus going towards the village of the
prosecutrix, had already left. The butcher offered that she could
stay with her son in the upper storey of the shop for the night.
G She accepted the offer.Around 9.30 p.m., when the prosecutrix
and her son were sitting in the room on the upper storey of th~
shop of the butcher, accused Kamlesh, Arjun Singh and Suresh
Kumar went there. They forcibly dragged the prosecutrix out of
that room and when they reached the ground floor of the struc-
H tu re, two other persons, appellants, Bal Kishan and Sonu joined ,
>
- _.,
BAL KISHAN v. STATE OF HIMACHAL
PRADESH [DR. ARIJIT PA.SAYAT, J]

them. One more person, named Chuni Lal, who too was tried
1029

A
along with the appellants, also joined them. The prosecutrix was
forcibly carried to a near forest. She cried for help. One old
lady, living nearby inteNened, but she could not get her released.
The son of the prosecutrix got so scared that he climbed a truck
parked nearby and hid himself in the tool-box. Someone in- B
formed the police telephonically. Soon the police reached the
y forest and over-powered two of the appellants, namely, Kamlesh
and Suresh and the sixth accomplice of the appellants, named
Chuni lal (who stands acquitted by the Trial Court), when they
tried to flee from the spot on seeing the police. Statement of the
c
prosecutrix was recorded by HC Pawan Sharma, heading the
police party that reached the spot. The prosecutrix besides nar-
rating the details about her visit to Baijnath and having gone to
the upper storey of the shop of the butcher for night stay and
~· having then been dragged and taken to the forest in the manner
D
'"f as summarized hereinabove, stated that those who committed
the rape, were calling each other by the names of Bal Kishan,
Arjun, Sonu, Kamlesh etc.
Police investigated the matter and filed the case against
the six accused persons. The trial Court charged all the six for E
offences punishable under Sections 452 read with Section 34,
323 read with Secftion 34, 376(2)(g) of IPC and Section 3(x) of
the Scheduled Castes & Scheduled Tribes (Prevention of Atrbci-
ties) Act. ....... (in shqrt 'SC.ST Act') because the prosecutrix
j was alleged to belong to a scheduled caste. All the accused
~
F
pleaded not guilty to the charge. The Trial Court then proceeded
to try the case and ultimately convicted and sentenced the five
accused persons as aforesaid, but acquitted their sixth accom-
pl ice.

Appellants' plea was that they were not involved in the crime G
and have been implicated just on suspicion. Learned counsel,
representing the appellants, argued that there is no evidence
on record establishing the identity of the appellants as the per-
petrators of the crime.
H
1030 SUPREME COURT REPORTS [2008] 14 S.C.R.

A Prosecution examined the prosecutrix as PW-1, her son
Onkar Chand as PW-3, an old woman, named Gitan Devi, PW-
4, who allegedly tried to get the prosecutrix rescued from the
accused persons, D.R. Thakur, PW-7, the then Judicial Magis-
trate Baijnath, who conducted the test identification parade,
B police Head Constable Pawan Sharma, PW-15, who on the
receipt of telephonic information at the police station about the
incident went to the spot and over-powered three of the alleged
rapists on the spot and recorded the statement of the prosecu-
trix, under Section 154 of the Code of Criminal Procedure, 1973
C (in short 'Cr.P.C.'}, and ASI Chain Lal, PW-16 and Dy. S.P.
Prittam Singh, PW-18, who conducted the investigation of the
case. The police also examined lady doctor named, Bindu
Sood, PW-19, who conducted the medico legal examination of
the prosecutrix and Dr. S.K. Sood, PW-2, who medically exam-
D ined the accused persons with a view to ascertaining whether
there were any injury marks on their persons and whether they
were capable of performing sexual intercourse. All the accused
persons took the plea of denial simpliciter and claimed that they
were innocent and had been falsely implicated at the behest of
the police.
E
The Trial Court placed reliance on the evidence of the wit-
nesses i.e. prosecutrix PW-1, her son PW-3 and an old women
PW-4. The Trial Court, however, found that the so called test iden-
tification parade conducted by the then Judicial Magistrate,
F Baijnath PW-7 did not meet the requirements of law and had no \
evidentiary value. It was noted that the prosecutrix in the witness
box had stated that she had identified five boys at the police sta-
tion on 4.6.2002. It was accepted by her that she had been shown
the accused persons by the police before identification.
G Primary stand before the High Court taken by the appel- .
lant was that there was no evidence so far as his involvement is
concerned. He was not apprehended at the spot unlike some
other accused persons. The prosecutrix did not know him and
had clearly accepted this fact. She only stated that the accused
H persons were addressing each other by some names and that
BAL KISHAN v. STATE OF HIMACHAL . 1031
PRADESH [DR ARIJIT PASAYAT, J]

is how she claimed to know the names of the accused persons. A
The High Court did not find any substance in this plea and as
noted above dismissed the appellants' appeal along with other
appeals.
5. Learned counsel for the appellant submitted that
there was no material to link the accused with the alleged crime. B
The Trial Court held that there was no test identification parade
in the eye of law and this view was affirmed by the High Court.
Merely because the accused persons purportedly addressing
each other by names that cannot be a ground to hold the appel-
lant guilty without any material to show that he was the person C
whose name was being uttered by the co-accused persons.
6. Learned counsel for the State on the other hand sup-
ported the judgment of the Trial Court and the High Court.
7. It is not disputed by learned counsel for the State that D
unlike some others the appellant was not caught at the place of
occurrence. The Trial Court had itself held that there was no
test identification parade in the eye of law. Therefore, identifi-
cation of the appellant for the first time in court was really of no
consequence. Added to that, the only evidence pressed into E
service by the prosecution so far as the appellant is concerned,
was that his name was similar to one of the names which' the
accused persons were addressing each other, as stated by the
prosecutrix. That cannot be by any stretch of imagination an
incriminating material. F
f 8. No evidence was led to show the presence of the ap-
pellant at the spot of occurrence or to have participated in the
crime. That being so, the prosecution has miserably failed to
prove the accusations so far as the appellant is concerned. He
is acquitted of the charges. He shall be releas-ed forthwith from G
custody unless required to be in custody in connection with any
other case.

9. The appeal is allowed.
N.J. Appeal allowed. H