Durgesh Rai vs The State Of Madhya Pradesh
2023 Latest Caselaw 7295 MP

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR CRA No. 7 of 2020 (DURGESH RAI Vs THE STATE OF MADHYA PRADESH)

Dated : 04-05-2023 Shri Manish Datt - Senior Advocate assisted by Shri Mayank Sharma -

Advocate for the appellant.

Shri Manas Mani Verma - Public Prosecutor.

Heard on I.A. No.7976/2022, an application under Section 389(1) of the Code of Criminal Procedure, 1973 on behalf of the appellant Durgesh Rai s/o

Shri Shiv Kumar Rai.

It is submitted that first application was withdrawn vide order dated 09.11.2021 bearing I.A. No.9693/2020 before a different set of Division Bench.

This case is listed before the Division Bench on account of departure of both the members of the earlier constitution.

It is submitted that the present appellant is convicted under Section 376 D and has been sentenced to undergo Rigorous Imprisonment for 20 years with fine of Rs.5,000/-, in default of payment of fine further rigorous imprisonment for 2 months and under Section 506 Part -II appellant was convicted and has

been sentenced to undergo Rigorous Imprisonment for 2 years.

It is submitted that FIR, Ex.P-4, reveals that present appellant is innocent. He did not commit any act of violation of privacy of the prosecutrix. It is further submitted that prosecutrix was a major. Prosecutrix appears to be a consenting party, inasmuch as, she had agreed to visit hotel along with co-

Signature Not Verified accused Pappu Dongre (now deceased). She was taken by Pappu Dongre to SAN

Digitally signed by MOHD TABISH KHAN room No.105. She did not object to her being taken to room No.105 at Supriya Date: 2023.05.09 19:32:55 IST

Lodge, Narsinghpur.

It is submitted that even the FIR is read as it is, than the allegation is that after about half an hour Pappu, who had locked the door from outside came back to Lodge with two more persons out of which one was Akram and another the present appellant Durgesh. Thereafter allegation is on Akram of violating privacy of the prosecutrix and thereafter on Pappu, there is no allegation on Durgesh so to constitute an offence under Section 375 IPC.

It is submitted that mere presence of the appellant is not a sufficient circumstance to convict him under Section 376 D of IPC.

Reliance is placed on the judgment of Supreme Court in Om Prakash Vs. State of Haryana, (2011) 14 SCC 309 wherein reading from para 21

onward it is submitted that Supreme Court dealt with the provision of Section 376(2)(g) which are paramateria to the current provisions contained in 376 D wherein it is held that as per explanation 1 where a woman is raped by one or more of a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of Section 376(2)(g) IPC. Thus, it is submitted that prosecution was required to demonstrate for act to have been committed in furtherance of common intention.

Reading from the statements of the appellant under Section 313 Cr.P.C. it is pointed out that he had given some money to co-accused Pappu and Pappu had called him to take back that money, he had gone to Supriya Lodge to collect that money and he has been falsely implicated.

It is further submitted that in 313 statement, appellant has stated that in Signature Not Verified SAN fact police demanded Rs.20,000/- from him and when he refused then he has Digitally signed by MOHD TABISH KHAN Date: 2023.05.09 19:32:55 IST been made an accused.

Reliance is also placed on judgment of Supreme Court in Hanuman Prasad and Others Vs. State of Rajasthan, (2009) 1 SCC 507, wherein reading from para 10, it is submitted that "the important expression to attract Section 376(2)(g) is 'common intention'. The essence of the liability in terms of Section 376(2)(g) is the existence of common intention. In animating the accused to do the criminal act in furtherance of such intention, the principles of Section 34 IPC have clear application. In order to bring in the concept of common intention it is to be established that there was simultaneously consensus of the mind of the persons participating in the act to bring about a particular result. Common intention is not the same or similar intention. It presupposes a prior meeting and prearranged plan."

Similarly reliance is placed on the judgment of Supreme Court in Ashok Kumar Vs. State of Haryana, (2003) 2 SCC 143, where reading from para No.9 onward, it is submitted that to convict a person with the aid of explanation below Section 376(2)(g), it is to be seen that whether there are circumstances to indicate concert between the appellant and Anil Kumar in committing rape on the prosecutrix.

Reading from the evidence of the prosecutrix, it is submitted that there was no consent or meeting of mind and thus conviction is liable to be set aside, there are good chances of success in appeal, suspension of sentence be

allowed specially looking to the fact that appeallnt Durgesh was on bail during trial.

It is also submitted that an application is already filed on behalf of the

Signature Not Verified SAN prosecutrix to compromise the matter and therefore, it appears that there are

Digitally signed by MOHD TABISH KHAN good chances of appellant be released and, therefore, application for Date: 2023.05.09 19:32:55 IST

suspension of sentence be allowed.

Shri Manas Mani Verma, learned Public Prosecutor opposes the prayer. After hearing learned counsel for the parties and going through the record, it is evident that chronology of the events reveal that Pappu who had taken the prosecutrix to the Lodge on the pretext of dropping her at Itwara Bazar had left the prosecutrix in room No.105, he had locked the room from outside. Therafter, as per the prosecution story which has largely remain undented, three persons namely, Pappu (now deceased), Akram and Durgesh reached room No.105 after prosecutrix was locked by Pappu. Akram first violated the privacy of the prosecutrix then Pappu, in the meanwhile police had reached room No.105 and knocked the door, along with the prosecutrix all the three accused persons were recovered. They were taken to police station when proceedings were recorded. Thus, it is evident that Durgesh accompanied Pappu and Akram to room No.105. Room No.105 was not a public happening place where they had gone to watch some public function, it was a private place inside a public premises namely a Lodge. When they all three reached together and appellant Durgesh stayed back to watch the act of Akram and Pappu then it cannot be said that he had not gone to the Lodge in room No.105 without any common intention.

Thus, when these aspects are taken into consideration then the portion of judgments which have been specifically highlighted by learned Senior Counsel Shri Manish Datt are distinguishable on their own facts. When ingredients of common intention appears to be available and is writ large then subsequent development of the prosecutrix submitting an application for compromise Signature Not Verified SAN cannot be taken into consideration while considering an application for Digitally signed by MOHD TABISH KHAN Date: 2023.05.09 19:32:55 IST suspension of sentence which is to be considered strictly in accordance with

the evidence which was adduced before the trial Court.

In view of the aforesaid facts and circumstances, for the present this Court is of the opinion that there is no ground to extend benefits of suspension of sentence to the appellant Durgesh Rai.

I.A. No.7976/2022 fails and is hereby dismissed.

                                          (VIVEK AGARWAL)                                (DINESH KUMAR PALIWAL)
                                               JUDGE                                              JUDGE

                                       Tabish




Signature Not Verified
  SAN




Digitally signed by MOHD TABISH KHAN
Date: 2023.05.09 19:32:55 IST