Dashrathpuri alias Luktapuri vs State of Madhya Pradesh

Hon''ble Shri Justice A.K. Shrivastava

The judgment passed in this appeal shall also govern the disposal of connected Criminal Appeal No. 1399/1995 (Vishnupuri v. State of M.P.) since both the appeals have arisen out of the common judgment of conviction and order of sentence. Feeling aggrieved by the judgment of conviction and order of sentence dated 30.8.1995 passed by learned Sixth Additional Sessions Judge, Jabalpur in Sessions Trial No. 288/1994 convicting the appellant of this appeal, Dashrathpuri, u/s 341 and 354 IPC and further convicting co-accused Vishnupuri (appellant of connected Criminal Appeal No. 1399/1995) for the offence punishable under Sections 341, 354 and 376 read with Section 511 IPC and thereby sentencing them to suffer imprisonment as mentioned in para-20 of the impugned judgment, this appeal and connected criminal appeal has been filed u/s 374(2) of the Code of Criminal Procedure, 1973.

In brief the case of the prosecution is that on the date of incident when the prosecutrix had gone for evacuation, at that juncture, accused persons met her on the way. It is said that on seeing the prosecutrix, accused Vishnupuri asked the co-accused Dashrathpuri to catch hold her, as a result of which both of them caught her. Eventually, the prosecutrix fell on the ground. In the incident, the buttons of the blouse of the prosecutrix were broken and she received injuries. It is said that accused Dashrathpuri pressed her breasts and also gagged her mouth. Thereafter, other co-accused Vishnupuri uplifted her sari and also put off his own clothes and thereafter, Vishnupuri committed rape over the prosecutrix, as a result of which the petticoat of the prosecutrix was smeared with the sperms of the accused.

It is the further case of the prosecution that when the prosecutrix started shouting, at that juncture, both the accused persons fled from the place of occurrence. On hearing the shriek of the prosecutrix, Phagu and Sunderpuri arrived there and thereafter, her mother Vaijayanti Bai, and brother Kailashpuri also arrived there, to whom the prosecutrix narrated the entire incident.

The first information report was lodged by the prosecutrix on the basis of which a case was registered u/s 376 IPC. The prosecutrix was sent for medical examination. After the arrest of the accused persons they were also sent for medical examination.

After the investigation was over, a charge-sheet was submitted in the committal Court which committed the case to the Court of Session and from where it was received by the Trial Court for trial.

Learned Trial Judge framed the charges punishable under Sections 341, 354 and 376 IPC against co-accused Vishnupuri (appellant of connected criminal appeal No. 1399/1995) while appellant of this appeal, Dashrathpuri, was charged for the offence punishable u/s 341, 354 and 376/34 IPC. Needless to say that both the accused persons abjured their guilt and requested for the trial.

In order to bring home the charges the prosecution examined as many as seven witnesses and also placed Ex.P-1 to P-18 the documents on record. The defence of the accused persons is of false implication and same defence they set forth in their statements recorded u/s 313 Cr.P.C. However, in support of their defence they did not choose to examine any witness.

Learned Trial Judge on the basis of the evidence placed on record came to hold that the charges under Sections 341 and 354 IPC are proved against the present appellant while the charges under Sections 341 and 376 read with Section 511 IPC are proved against co-accused Vishnupuri (appellant of connected criminal appeal No. 1399/1995) and eventually convicted them and passed the sentence as mentioned in para-20 of the impugned judgment.

In this manner this appeal and connected criminal appeal has been filed by the accused persons assailing their judgment of conviction and order of sentence.

Having heard learned counsel for the parties and after going through the record of the learned Trial Court I am of the view that this appeal as well as the connected criminal appeal deserve to be allowed.

In the present case, the prosecutrix did not support the case of the prosecution initially as a result of which she was declared hostile. However, in the cross-examination nothing has been stated by her that sexual intercourse was committed by accused Vishnupuri. On the contrary, it has been stated by her that only attempt was made by him. The entire case of the prosecution is that accused Vishnupuri committed rape over the prosecutrix while the appellant of this appeal helped co-accused Vishnupuri in committing the rape and he was throughout catching hold the prosecutrix when rape was being committed by co-accused Vishnupuri. Hence, according to me, the testimony of the prosecutrix does not inspire any confidence and corroboration is needed.

Before this Court examines the statements of other witnesses it would be relevant to mention here that it is not proved by the prosecution that the age of the prosecutrix was below 16 years. On the other hand, on bare perusal of the MLC report of the prosecutrix, her age 17 years has been mentioned. The prosecutrix herself has stated in her testimony that her age is 18 years.

In the cross-examination of the prosecutrix made by learned Public Prosecutor she has stated that accused Vishnupuri did not commit any sexual intercourse but he made attempt to commit rape. In cross-examination made by the counsel for the accused in para-14 she has specifically admitted that she went to lodge a report in the police station along with her brother but who lodged the report she do not know and she simply signed the report and that too at the instance of the police persons. Thus, according to me, whatever has been stated in the FIR (Ex.P-1) which is said to have been lodged by the prosecutrix herself cannot be said to be the true version because specifically the prosecutrix is saying that who lodged the report she cannot say and she simply signed the FIR on the direction given by the police persons.

Vaijayanti Bai (PW-2) is mother of the prosecutrix and she has stated that the prosecutrix simply told her that scuffle took place between her and the accused persons. This witness was also declared hostile but in the cross-examination also simply it has been carved out that except the scuffle which took place between the accused persons and the prosecutrix nothing more happened.

The other witness Phagu (PW-3) is the resident of the same village and to whom it is said that the prosecutrix narrated the incident. But, this witness was also declared hostile and did not support the case of the prosecution and similarly, Sunderpuri (PW-7) also was declared hostile.

Since the statement of the prosecutrix does not inspire any confidence and it cannot be said to be trustworthy and in absence of any corroboration, according to me, the accused persons are entitled for the benefit of doubt. In these state of affairs, I am of the view that appellant is entitled for the benefit of doubt. Resultantly, this appeal and connected Criminal Appeal No. 1399/1995 are allowed. The impugned judgment of conviction and order of sentence passed by learned Trial Court against these two appellants is hereby set aside and they are acquitted from all the charges. The appellant of this appeal as well as the appellant of connected criminal appeal are on bail, their bail bonds shall stand discharged.