Madhya Pradesh High Court
The State Of Madhya Pradesh vs Lakhan Morya on 14 May, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 15575 of 2023
(THE STATE OF MADHYA PRADESH Vs LAKHAN MORYA AND OTHERS)
Dated : 14-05-2024
Shri G S Chouhan - Dy. Advocate General for the appellant/State.
Heard on I.A. No. 18880/2023, which is an application under Section
378(3) of Cr.P.C seeking leave to appeal arising out of judgment dated
28.08.2023 delivered in ST No.22/2022 by Second Additional Sessions Judge,
Bagli District Dewas whereby the respondent No.1 Lakhan Morya have been
acquitted from the charges under Section 376 D, 323 read with Section 34 and
Section 506-II of the IPC and respondent No.2 Santosh, respondent No.3 Ajay
@ Chummuk, respondent No.4 Kalu @ Radheshyam, respondent No.5
Prahalad, respondent No.6 Rajkumar have been acquitted from charges under
Section 376(1), 376 D, 323, readwith 34 and Section 506-II of IPC.
2. Facts in brief are that in a case arising out of Crime No.66/2022
registered at Police Station, Bagli regarding gang rape, voluntary causing injury
and criminal intimidation towards victim (PW-2) on 28.01.2022 at 11:30 pm, all
respondents were prosecuted under Section 376(1), 376 D, 323 readwith 34 and
Section 506 (part-II) of the IPC. Appreciating the evidence trial Court convicted
the respondent No.1 under Section 376(1) of IPC but acquitted from Section
376 D, 323 readwith 34 and Section 506-II of IPC and acquitted rest of the
respondents from all the charges.
3. Challenging the acquittal of the respondents, leave of this Court have
been sought to entertain appeal under Section 378(3) of the Cr.P.C submitting
that despite corroboration of the victim (PW-2), by father (PW-3) & mother
(PW-4) of the prosecutrix, the trial Court committed an error in acquitting rest
of the respondents. It is also submitted that on the set of evidence, trial Court
has convicted the respondent No.1 under Section 376(1) of the IPC but
committed an error in acquitting the respondent No.1 from rest of the charges
and acquitting rest of the respondents from all the charges. Trial Court also
committed an error in appreciating the fact that the women will not level charges
involving her reputation against the respondents without substantial reasons.
4. The principle to be considered at the time of considering the
application under Section 378(3) of the Cr.P.C have been dealt with in State of
Maharashtra Vs. Sujay Mangesh Poyarelar AIR 2008 (9) SCC 475, the
relevant para 27 is reproduced as below:-
"We may hasten to clarify that we may not be understood to have laid
down an inviolable rule that no leave should be refused by the appellate
Court against an order of acquittal recorded by the trial Court. We only
state that in such cases, the appellate Court must consider the relevant
material, sworn testimonies of prosecution witnesses and record reasons
why leave sought by the State should not be granted and the order of
acquittal recorded by the trial Court should not be disturbed. Where there
is application of mind by the appellate Court and reasons (may be in
brief) in support of such view are recorded, the order of the Court may
not be said to be illegal or objectionable. At the same time, however, if
arguable points have been raised, if the material on record discloses
deeper scrutiny and re-appreciation, review or reconsideration of
evidence, the appellate Court must grant leave as sought and decide the
appeal on merits."
5. Now, we are considering the case in hand. Trial Court has based his
findings of acquittal recording the finding that no mark of injury by sharp edged
weapon at or near the private parts of the victim was not found (para 9 & 12).
DNA profiling report (Ex.P-22) has reported that Y chromosomal, STR, DNA
profile found on the source material of victim is low un-interpretable. The
narration of Ex.P-2 FIR does not mention the fact of sexual intercourse by
respondents Santosh, Ajay @ Chummuk, Kalu @ Radheshyam and it does not
contain mention of respondent Prahalad and Rajkumar. In the CD prepared at
the time of recording the statement of the victim under Section 161 of the
Cr.P.C, victim does not appear under fear and the brother of the victim is a
Police Officer and her statement under Section 164 of the Cr.P.C is the
outcome of tutoring and the presence of the respondents Santosh, Ajay @
Chummuk, Kalu @ Radheshyam near the place of incident does not satisfy the
ingredients of prior meeting of mind with the accused Lakhan falling within the
category of gang rape.
7. Considering that trial Court has recorded the finding that respondent
No.1 Lakhan committed penetrative sexual assault towards the victim on
28.01.2022 and victim (PW-2) has stated the involvement of all the respondents
in the offence not only in the statement before Court but also in statement
recorded under Section 164 of the Cr.P.C. & in Veerendra Vs. State of M.P
2022 livelaw SC (480), it is held that inconclusiveness of the DNA finger
printing report is not the ground for acquittal and considering the definition of
Section 376 D of the IPC defining gang rape, arguable points arises and the
material on record discloses the deeper scrutiny and re-appreciation of
evidence. Accordingly, it is a fit case to grant the leave to appeal under Section
378(3) of the Cr.P.C. The case has been registered as criminal appeal.
Respondent Lakhan is already in custody. Office is directed to issue Bailable
Warrants of Rs.50,000/- against rest of respondents.
9. The respondent No.2 Santosh, No.3 Ajay @ Chummuk, No.4 Kalu @
Radheshyam, No.5 Prahalad and No.6 Rajkumar are directed to furnish a bail
bond in the sum of Rs.50,000/-(Rupees Fifty Thousand Only) each with
separate solvent surety in the like amount to the satisfaction of the trial Court for
their appearance before this registry on 14.10.2024 and on subsequent dated
as maybe fixed by this registry.
10. List the matter for final hearing in due course.
C.C as per Rules.
(S. A. DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
akanksha
