Criminal | (2009) 6 SCC 646
IN THE SUPREME COURT OF INDIA
Justice Dr.Arijit Pasayat and Justice Asok Kumar Ganguly
Crl.A. No. 189 of 2003
J U D G M E N T
DR. ARIJIT PASAYAT, J.1. Challenge in this appeal is to the
correctness of the Judgment rendered by a Learned Single Judge
of the Madhya Pradesh High Court dismissing the appeal filed by
the present appellant who was appellant in Criminal Appeal No.
2750/98 before the High Court. The present appellant was
convicted after alleged commission of rape and abduction in terms
of Section 366 A and 376 (2) of the Indian Penal Code, 1860
(IPC). Out of the five accused persons tried, two absconded and
the rest three were convicted by the Trial Court. Trial Court
imposed sentence of 10 years for each of the concerned, he
preferred an appeal, as also two co-accused who were convicted
by the Trial Court.
2. So far as the appellant is concerned his primary stand
before the Trial Court and the High Court was that the prosecutrix
having not identified him to be one of the persons who subjected
her to rape, his conviction cannot be maintained. The High Court
did not deal with this aspect but confirmed the conviction and
sentences as imposed by the Trial Court. In support of the learned
counsel for the appellant submitted that in the examination in chief
itself the victim (PW-6) stated as follows :-
‘I recognise the accused Raju and Pancham Present in the
Court. The witness after seeing the accused Jakir states that “I
do not recognise him because I have never been him”
3. Learned counsel for the State referred to letter parte of the
evidence where in generalised manner the role of the five accused
persons was described.
4. Both the Trial Court and the High Court ignored the
statement of the victim who in court categorically stated that she
did not recognise him as she had never seen him.
5. That being so the conviction so far as the present appellant
is concerned cannot be maintained. The appeal is allowed. The
bail warrant executed to give effect to the order of bail in terms of
the order of 10.2.2003 shall stand discharged.