Akhter Hussain Vs. State of J&K and Ors. - (High Court of Jammu and Kashmir) (30 Aug 2018)

When accused is not known to victim, then identification parade is necessary

MANU/JK/0676/2018

Criminal

Instant conviction appeal has been filed by Ahktar Hussain, which is directed against judgment passed by learned Sessions Judge, whereby Appellant/accused has been convicted under Sections 451, 506 and 376 read with 109 of Ranbir Penal Code (RPC). Accordingly, Court below has sentenced the Appellant/accused for rigorous imprisonment for three years for offence under Section 376/109 of RPC and fine of Rs. 500, in default of payment of fine, rigorous imprisonment for two months; rigorous imprisonment for one year under Section 506 of RPC and fine of Rs. 500, in default of payment of fine, rigorous imprisonment for two months and rigorous imprisonment for one year under Section 451 of RPC and fine of Rs. 500, in default of payment of fine, rigorous imprisonment for two months.

Law with regard to appreciation of evidence in rape cases or cases against women are concerned, the evidence of victim/prosecutrix carries value. The conviction can be based on solitary statement of victim/prosecutrix, provided it inspires confidence of Court. The written report lodged by victim upon which FIR was lodged does not bear the name of Appellant, but it has been stated that, another person was with accused Gulzar Ahmed. In her statement under Section 161 of Code of Criminal Procedure, 1973 (Cr.PC), victim has not named accused/Appellant.

No identification parade was got conducted by I/O during investigation of this accused. Law is clear that when accused is not known to victim, then identification parade is necessary. Section 9 of the Indian Evidence Act, makes the identification of proper accused and properties admissible and relevant facts in a court of Law. The identification is always a matter of opinion or belief. With regard to criminal offence, identification has two-fold object; firstly to satisfy the investigating authorities, before sending a case for trial to court, that the person arrested was not previously known to the witnesses and is among those who have committed the crime, or the property concerned was subject of such crime. Secondly, to satisfy the Court that the accused was the real offender or the article was concerned with the crime which is being tried.

Further, one more fact is required to be noted that, I/O has categorically stated that the occurrence took place during night; there was no electricity in the house of the prosecutrix, so identification parade of Appellant/accused was necessary. There is also no proof as to whether the nick name of present Appellant was NIKA as narrated by PW Farooq Ahmed.

Law is clear that, prosecution has to prove its case beyond reasonable doubts. Burden to prove prosecution version is wholly upon the prosecution. The Courts while appreciating the evidence in criminal cases have to see that, the degree of proof is maximum than that of civil case. The evidence produced by prosecution should be legally admissible. If there come the slightest doubts regarding the involvement of accused then Court should not go on convicting the accused.

In arriving at conclusion about guilt of accused charged with heinous crime, the Court has to judge the evidence by yardsticks of probabilities. Every case has its own facts. The law does not permit the Court to punish the accused on basis of moral conviction or suspicion. The burden of proof never shift, it is always on prosecution. Prosecution has not established its case beyond reasonable doubt against Appellant. The conviction and the sentence passed by the Court below are set aside. Appeal is allowed.

Tags : CONVICTION IDENTIFICATION PARADE NECESSITY