LexBAL KISHAN versus STATE. OF HIMACHAL PRADESH
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[2008] 14 S.C.R. 1026 A BAL KISHAN r v. STATE. OF HIMACHAL PRADESH (Criminal Appeal No. 1659 of 2008) B OCTOBER 22, 2008 [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 D of occurrence or to have participated in the crime - Test iden- 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- G mitted the offence. Investigation was carried out. Trial 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 A 1028 SUPREME COURT REPORTS [2008] 14 S.C.R. 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 1029 - PRADESH [DR. ARIJIT PA.SAYAT, J] _., them. One more person, named Chuni Lal, who too was tried 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 s
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