SONU KUMAR versus STATE OF H.P.

Citation: [2008] 14 S.C.R. 1019 · Decided: 22-10-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

., . 
[2008] 14 S.C.R. 1019 
SONU KUMAR 
v. 
STATE OF H.P. 
(Criminal Appeal No. 1660 of 2008) 
OCTOBER 22, 2008 
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM 
SHARMA, JJ.] 
A 
B 
Penal Code, 1860/Scheduled Castes and Scheduled 
Tribes (Prevention of Atrocities) Act, 1989 - ss. 452 and 323 r/ C 
w s. 34 and s. 376 (2) (g)I s. 3 (x) - Commission of rape of 
woman belonging to Scheduled Caste - Offence committed 
by six accused -In Test Identification Parade, prosecutrix iden-
tifying five of the accused - The five accused convicted by 
courts below - However, courts holding that Tl Parade was not 0 
conforming to the requirement of Law - Appeal by one of the 
accused - Held: Presence of the appellant-accused at the 
spot of occurrence or his participation in crime not proved -
Hence acquitted. 
, 
Appellant-accused alongwith five other accused was , E 
·prosecuted for offences punishable u/ss. 452, 323 r/w s. 
34 and s. 376 (2) (g) IPC and u/ s. 3 (x) of Scheduled Castes 
and Scheduled Tribes (Prevention of Atrocities) Act,1989. 
Prosecution case was that the prosecutrix was sitting in 
the room with her 11 years old son (PW3), three of the ac-
F 
cused came and forcibly dragged her out of the room. 
Thereafter three of the other accused joined them and 
forcibly carried the prosecutrix to a nearby forest. One 
old lady (PW 4) unsuccessfully tried to rescue her. On 
being telephonically informed, the Police reached the for-
G 
est and overpowered three of the accused. In Test Identi-
fication Parade, the Prosecutrix identified appellant-ac..; 
cused and other four accused. 
Trial Court held that the Test Identification was non-
1019 
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1020 
SUPREME COURT REPORTS 
[2008] 14 S.C.R. 
I 
A 
existent in the eye of law, because it WpS accepted by the 
prosecutrix that she had been shown the accused be-
...... 
fore the Tl Parade. However, relying on the evidence of 
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Prosecutrix (PW1), PW3 and PW4, trial court convicted 
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five of the six accused (including the appellant-accused) 
f= 
B for the offences charged. High Court confirmed the trial 
court judgment dismissing the appeal filed by the appel-
·lant: 
:.__ 
In appeal to this Court, appelJant contended that he 
y 
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was not liable to be convicted as Tl Parade was not exis-
t 
c tent in the eye of law; that he was not caught by the po-
lice from the place of occurrence; and that it could not be 
the ground to hold the appellant guilty merely because 
accused were addressing each other by names, without 
showing that he was the person whose name was uttered 
D by the co-accused. 
r
Allowing the appeal, the Court 
)( 
<--
HELD: 1.1 No evidence was led to show the pres-
..,,_ L
ence of the appellant at the spot of occurrence or to have 
E 
participated in the crime. That being so, the prosecution 
has miserably failed to prove the accusations so far as 
the appellant is con.cerned. He is acquitted of the charges. 
[Para 8] (1025-A) 
1.2 It is not disputed by the State that unlike some 
F 
other accused, 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. There-
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fore, identification of the appellant for the first time in court 
was really of no consequence. Added to that, the only 
r-
G evidence pressed into service by the prosecution so far 
~
as the appellant is concerned, was that his name was simi-
lar to one of the names which the accused persons were 
"i'"" 
addressing each other, as stated by the prosecutrix. That 
cannot be, by any stretch of imagination, an incriminat-
H ing material. [Para 7] (1024-F, G, H) 
.. 
SONU KUM?.R v. STATE OF H.P. 
1021 
CRlMINALAPPELLATE JURISDICTION: Criminal Appeal A 
No. 1660 of 2008 
From the final Judgment and Order dated 29.3.2007 of 
the High Court of Himachal Pradesh at Shimla in Crl. Appeal 
No. 413 of 2003 
B 
Jagjit Singh Chhabra (A.C.) Tatini Basu and Sudhir 
Nandrajog for the Appellant. 
y 
Naresh K. Sharma for the Respondent. 
. The Judgment of the Court was delivered by 
c 
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-
peal filed by the appellant questioning the conviction for offence D 
punishable under Sections 452, 323 read with Section 34 and 
,;. 
Section 376(2)(9) of the Indian Penal Code, 1860 (in short the 
'IPC'). 
3. By a common judgment five appeals preferred by the 
accuse

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