IMPORTANT POINT
In absence of anything to show appellant’s participation in the crime, he cannot be convicted merely because his name was similar to one of the names which the accused persons were addressing each other.

JUDGMENT

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 appeal filed by the appellant questioning the conviction for offence punishable under Sections 452, 323 read with Section 34 and Section 376(2)(g) of the Indian Penal Code, 1860 (in short the ‘IPC’).

2. By a common judgment five appeals preferred by the accused persons were disposed of. The accused persons were found guilty of offence punishable under the aforesaid offences by learned Sessions Judge, Kangra at Dharamshala.

3. The prosecution versions during trial is as follows :

The prosecutrix, aged 32 years, was married to a man, who was employed at a butcher’s shop at Baijnath. Her husband fell ill and was perhaps rendered incapable of doing the job with the butcher. The prosecutrix approached the butcher for employing her son, who was then aged just eleven years, for doing odd jobs. The butcher offered to employ her son for grazing his sheep and goats on monthly salary of Rs.700/-. On 3.6.2002 the prosecutrix took her son to the butcher’s shop at Baijnath with the intention of leaving him there. Her son was required to take the sheep and goats to the forest, by the employer, immediately after they reached. The prosecutrix accompanied her son to the forest. They returned with the herd in the evening. By then the last bus going towards the village of the prosecutrix, had already left. The butcher offered that she could stay with her son in the upper storey of the shop for the night. She accepted the offer. Around 9.30 p.m., when the prosecutrix and her son were sitting in the room on the upper storey of the shop of the butcher, accused Kamlesh, Arjun Singh and Suresh Kumar went there. They forcibly dragged the prosecutrix out of that room and when they reached the ground floor of the structure, two other persons, appellants, Bal Kishan and Sonu joined them. One more person, named Chuni Lal, who too was tried along with the appellants, also joined them. The prosecutrix was forcibly carried to a near forest. She cried for help. One old lady, living nearby intervened, but she could not get her released. The son of the prosecutrix got so scared that he climbed a truck parked nearby and hid himself in the tool-box. Someone informed the police telephonically. Soon the police reached the forest and over-powered two of the appellants, namely, Kamlesh and Suresh and the sixth accomplice of the appellants, named Chuni lal (who stands acquitted by the Trial Court), when they tried to flee from the spot on seeing the police. Statement of the prosecutrix was recorded by HC Pawan Sharma, heading the police party that reached the spot. The prosecutrix besides narrating the details about her visit to Baijnath and having gone to the upper storey of the shop of the butcher for night stay and having then been dragged and taken to the forest in the manner as summarized hereinabove, stated that those who committed the rape, were calling each other by the names of Bal Kishan, Arjun, Sonu, Kamlesh etc.

Police investigated the matter and filed the case against the six accused persons. The trial Court charged all the six for offences punishable under Sections 452 read with Section 34, 323 read with Secftion 34, 376(2) (g) of IPC and Section 3(x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act........(in short ‘SC.ST Act’) because the prosecutrix was alleged to belong to a scheduled caste. All the accused pleaded not guilty to the charge. The Trial Court then proceeded to try the case and ultimately convicted and sentenced the five accused persons as aforesaid, but acquitted their sixth accomplice.

Appellants’ plea was that they were not involved in the crime and have been implicated just on suspicion. Learned counsel, representing the appellants, argued that there is no evidence on record establishing the identity of the appellants as the perpetrators of the