STATE OF MADHYA PRADESH Vs. HUSSAIN ALIAS HUSSAIN

JUDGEMENT

(1.) The judgment in this appeal shall also dispose of Criminal Revision No. 326 of 1980 (Bhaiyalal v. Hussaini alias Hussain and 8 others) and Criminal Appeal No. 1181 of 1986 (The State of M.P. v. Bhola and others).

(2.) All the respondents/accused were prosecuted for committing rape upon Ku. Asha bai, the minor girl then aged about 15 years at night between 27th and 28th of August, 1979 beneath the Shastri Bridge, Jabalpur. They were also charged for criminal intimidation and for wrongful confinement. The learned AddI. Sessions Judge who tried them, on the basis of evidence, found that she was subjected to rape and was also intimidated. Learned Judge, however, found that the respondents could not be identified as the persons who committed the sexual assault on Ku. Asha. For this finding the learned Sessions Judge has assigned reasons in Para 13, 14 and 15 of the impugned judgment. We are of the opinion that it cannot be said that the opinion formed by the trial Court could not have been so found on the basis of evidence on the record. That being so, it will not be possible for us to interfere against the judgment of acquittal which is impugned in this appeal and also in the connected appeal and revision.

(3.) Ku. Asha (P.W. 2) herself stated that it was a dark night and that she had not known any of the accused from before. In the first information report recorded by her she has not described any of them except saying that one of them was tall boy aged about 23-24 years. It was, therefore, obligatory on the part of the prosecution to have a test identification parade, which it did. The identification memo is Ex. P.4 and the identification was conducted by P.W. 3. However, the prosecutrix herself hag absolutely wiped out this test identification it is only evidence that she had all opportunity to see all the accused persons when they were brought to the police station house and again they were taken to the place of identification in a nearby school. She deposed that she followed them upto the school and that no care was taken by any of the accused to hide their faces. She categorically stated that at the police station house she had seen the faces of all the accused. Not only this she had further stated that the persons who were mixed with the accused at the time of identification were also seen by her working outside the police station. Although in examination-in-chief she claimed to have seen the faces of the accused at the time when they were with her, yet in her cross-examination she deposed that she could identify them by their complexion. It is significant that in the first information report she has not mentioned complexion of any of the accused. The learned Sessions Judge also seems to be right in saying that, the prosecution was guilty of not taking proper care - to conceal the accused from the prosecutrix before the test identification was conducted. Under these circumstances, the learned AddI. Sessions Judge has no option but to reject the test identification. With that the dock identification is of little consequence and in absence of any other evidence could not be mind the basis of holding the respondents guilty. The learned AddI. Sessions Judge, has, therefore rightly found that the prosecution could not establish that respondents committed the sexual assault on Ku. Asha. The order of acquittal, therefore, has to be maintained.