Deepak vs The State Of Madhya Pradesh
2023 Latest Caselaw 21347 MP

Madhya Pradesh High Court

Deepak vs The State Of Madhya Pradesh on 14 December, 2023

Author: Vivek Rusia

Bench: Vivek Rusia, Anil Verma

                                                         1


                             IN THE HIGH COURT OF MADHYA PRADESH AT
                                             INDORE
                                                    BEFORE
                                      HON'BLE SHRI JUSTICE VIVEK RUSIA
                                                       &
                                      HON'BLE SHRI JUSTICE ANIL VERMA
                                        ON THE 14th OF DECEMBER, 2023


                                        CRIMINAL APPEAL No. 804 of 2016

                           BETWEEN:-
                           RUKHDIYA S/O ASHARAM, AGED ABOUT 19 YEARS, OCCUPATION:
                           AGRICULTURE GRAM INDERPUR MOHANPURA FALYA (MADHYA
                           PRADESH)
                                                                         .....APPELLANT
                           (BY MS. SHARMILA SHARMA APPEARING ON BEHALF OF SHRI MANISH
                           KUMAR SHARMA, ADVOCATE)

                           AND
                           THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER
                           THRU.P.S.BARWANI (MADHYA PRADESH)
                                                                       .....RESPONDENTS
                           (BY SHRI AMIT RAWAL, GOVERNMENT ADVOCATE)


                                        CRIMINAL APPEAL No. 810 of 2016

                           BETWEEN:-
                           DEEPAK S/O KAILASH KEWAT, AGED ABOUT 22 YEARS, OCCUPATION:
                           SERVICE RAJGHAT, POLICE BARWANI, DISTT. BARWANI (MADHYA
                           PRADESH)
                                                                         .....APPELLANT




Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 12/18/2023
2:40:20 PM
                                                              2


                           (BY SHRI CHANDRA PRAKASH PUROHIT, ADVOCATE)

                           AND
                           THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER THRU.
                           P.S. BARWANI, DISTT. BARWANI (MADHYA PRADESH)
                                                                            .....RESPONDENTS
                           (BY SHRI AMIT RAWAL, GOVERNMENT ADVOCATE)


                                  This appeal coming on for final hearing this day, JUSTICE
                           VIVEK RUSIA passed the following:
                                                    JUDGMENT

Both the appeals are filed under Section 374 of the Code of Criminal Procedure, 1973 being aggrieved by the judgment of conviction and sentence dated 22.04.2016 passed by the Special Sessions Judge, Barwani in Sessions Trial No.40/2014, whereby appellant - Rukhdia has been convicted for the offences punishable under Sections 363, 366, 376(2)(n), 376(D) of the Indian Penal Code & Section 5(L)/6 of the Protection of Children from Sexual Offences Act and sentenced to undergo 07 years' rigorous imprisonment along with fine of Rs.200/-, 10' years rigorous imprisonment along with fine of Rs.200/-, 10 years' rigorous imprisonment along with fine of Rs.5,000/-, Life Imprisonment along with fine of Rs.5,000/- & 10 years' rigorous imprisonment along with fine of Rs.5,000/- and appellant - Deepak has been convicted for the offences punishable under Sections 363, 366, 376(D) of the IPC & 5(L)/6 of the POCSO Act and sentenced to undergo 07 years' rigorous imprisonment along with fine of Rs.200/-, 10' years rigorous imprisonment along with fine of Rs.200/-, Life Imprisonment along with fine of Rs.5,000/- &

10 years' rigorous imprisonment along with fine of Rs.5,000/- respectively with default stipulation.

02. As per prosecution story, Yashwant Singh lodged a missing person report at Police Station - Barwani that on 09.06.2014 he along with his wife went to his agricultural field and his daughter, aged about 17 years 02 months was alone in the house. When he and his wife came back to their house at 2:00 pm, they did not find her daughter in the house. He searched in the nearby villages and in the house of relatives but could not find her. He was having apprehension that Deepak Kewat eloped her, who was trying to develop affair with her since last 1 ½ years. She took golden earring, two pair of anklet, golden marriage string (mangalsutra) and Rs.10,000/- from the house.

03. On the aforesaid information, a report was registered under Section 363 of the IPC. The prosecutrix was recovered on 17.07.2014 and she was sent for medical examination which was conducted by Dr. Ujjwala Nagle on 17.07.2014. Thereafter, the statement of prosecutrix was recorded, in which she disclosed that she was having affair with Deepak and they used to talk on mobile. On 09.06.2014, Deepak called her near Hotel Sai Plaza. She reached there and thereafter, on the pretext of marriage, he took her on his motorcycle to Government Hospital, Barwani. In front of Ward No.16, Rukhdiya resident of Inderpur was standing there. Deepak told that he will come back within 1 - 2 days and marry to her. Thereafter, she went along with Rukhdiya, who took her at Pati and kept her in a room. Rukhdiya told her that if Deepak would not marry her, he would marry her and made physical relationship with her against her wishes.

Thereafter, he took her to Inderpur and kept for 4 - 5 days and committed rape upon her repeatedly. She got mobile to talk to Deepak but he refused to come. The prosecutrix anyhow manages to rescue from the clutches of Rukhdiya and came back to her village.

04. Appellant - Deepak was arrested vide Ex-P/6 and appellant - Rukhdiya was arrested vide Ex-P/20. Both of them were medically examined by Dr. Prasanna Kumar Sahu. Thereafter, statement of prosecutrix under Section 164 of the Cr.P.C. was record. To ascertain the age of the prosecutrix, scholar register (Ex-P/1) was obtained from the Government Girls College, Barwani. A certificate in respect of age of the prosecutrix was obtained vide Ex-P/2. Charge-sheet was filed under Sections 363, 366, 376(2)(m)/34, 376(D) of the IPC & Section 5(L)/6 of POCSO Act. Thereafter, the trial was committed before the Sessions Court, where the charges have been framed under Sections 363, 366, 376(2)(m) of the IPC & Section 5(L)/6 of the POCSO Act. The appellants denied the charges and pleaded for trial.

05. The prosecution has examined 15 witnesses and exhibited 24 witnesses. In defense, the appellants examined Mahendra Kewat (D.W-1) and Kailash (D.W-2) and exhibited 10 documents. After evaluating the evidence came on record, the Sessions Court has convicted the appellants for the aforementioned offences,

06. Learned counsel for the appellants jointly submit that these appellants have wrongly been convicted for "gang rape" under Section 376(D) of the IPC and sentence to undergo Life Imprisonment without there being any allegations. They have already undergone 10 years of jail sentence in respect of conviction in other

sections, therefore, they are assailing the impugned judgment only on the limited ground that the conviction under Section 376(d) is not made out against them.

07. We have heard learned counsel for the parties at length and perused the record.

08. Section 376 (D) of the IPC is reproduced below:-

"376D. Gang rape. - Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this sections shall be paid to the victim."

[Emphasis Supplied]

09. As per the aforesaid provision of law, where a woman is raped by one or more persons constituting a group or acting in furtherance of common intention, each of those shall be deemed to have committed the offence of rape.

10. As per the statement of prosecutrix (P.W-2) recorded before the Court, Deepak called her from mobile on 09.06.2014 and she went and met with him, thereafter, both of them went to the Government Hospital, Barwani. Thereafter, Deepak left by leaving the prosecutrix with Rukhdiya. Thereafter, she remained with Rukhdiya who committed rape upon her repeatedly. Hence, when

Rukhdiya committed rape upon the prosecutrix, appellant - Deepak was not present to form a group. There is no allegation or charge against them that by way of conspiracy, appellants - Deepak and Rukhdiya abducted the prosecutrix with a common intention to commit rape upon her. Deepak left the prosecutrix with Rukhdiya in Government Hospital and thereafter, he did not contact the prosecutrix. She escaped from the custody of Rukhdiya. In cross- examination, she admitted that when she went along with Rukhdiya, Deepak was not with them. She also admits that for the first time, she made statement against Deepak about commission of rape upon her in front of the Court, for which he never made complaint. Therefore, conviction of the both the appellants under Section 376(D) of the IPC is unsustainable.

11. In view of the above, conviction of both the appellants Rukhdiya & Deepak under Section 376(D) of the IPC is set aside. So far as conviction under remaining sections are concerned, the same is liable to be affirmed. The judgment of conviction and sentence is modified hereunder:-

Conviction of appellant - Rukhdiya CONVICTION SENTENCE Section Act Imprisonment Fine if deposited details Imprisonment in lieu of fine 363 IPC 07 years' R.I. Rs.200/- 01 year's R.I. 366 IPC 10 years' R.I. Rs.200/- 01 year's R.I. 376(2) IPC 10 years' R.I. Rs.5,000/- 02 years' R.I.

(n) 5(L)/6 POCSO Act 10 years' R.I. Rs.5,000/- 02 years' R.I.

Conviction of appellant - Deepak CONVICTION SENTENCE Section Act Imprisonment Fine if deposited details Imprisonment in lieu of fine 363 IPC 07 years' R.I. Rs.200/- 01 year's R.I. 366 IPC 10 years' R.I. Rs.200/- 01 year's R.I. 5(L)/6 POCSO Act 10 years' R.I. Rs.5,000/- 02 years' R.I.

12. With the aforesaid, Criminal Appeals stand allowed in part.

                             (VIVEK RUSIA)                                       (ANIL VERMA)
                               JUDGE                                               JUDGE
                           Ravi