JAKIRversusSTATE OF M.P.

                        [2009] 8 S.C.R. 276


A                             JAKIR
                                v.
                          STATE OF M.P.
                (Criminal Appeal No. 189 of 2003)

                           MAY 6, 2009
B
           [DR. ARIJIT PASAYAT AND ASOK KUMAR
                        GANGULY, JJ.]                              "'
          Penal Code, 1860 - ss. 366 A and 376 (2) - Abduction
c   and rape - By five persons - Appellant accused convicted
    with two co-accused, the other two having absconded - Held:
    Since the victim in her statement in the court categorically
    stated that she did not recognize the appellant-accused, he
    is liable to be acquitted.
D       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 189 of 2003.

      From the Judgment and Order dated 04.03.2002 of the
  High Court of Madhya Pradesh, Jabalpur in Criminal Appeal
E No. 2750 of 1998.

        M. Qamaruddin, for the Appellant.

        C.D. Singh for the Respondent.

F       The Judgment of the Court was delivered by

        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
G
  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

H                               276
           JAKIR v. STATE OF M.P. [DR. ARIJIT PASAYAT, J.]             277
_,
         persons tried, two absconded and the rest three were convicted       A
         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       B
         before the Trial Court and the High Court was that the
         prosecutrix having not identified him to be one of the persons
 y
     •   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
                                                                              c
         in the examination in chief itself the victim (PW-6) stated as
         follows:-

              'I recognise the accused Raju and Pancham Present in the
'y
              Court. The witness after seeing the accused Jakir states        D
              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        E
         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.
                                                                        F
              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.                                                    G
 ~

         K.K.T.                                          Appeal allowed.