Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 615 (MP)

Shankar Dhobi v. State of M. P.

2013-05-08

B.D.Rathi, U.C.Maheshwari

body2013
ORDER (Oral) Maheshwari, J. -- 1. The appellants-accused have filed this appeal under section 374(2) CrPC, being aggrieved by the judgment dated 2.9.1999 by Special Judge [constituted under the provision of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (in short “the Act”)], and Sessions Judge, Shivpuri in Special Case No.80/95, whereby the appellant No.1 Shankar has been convicted and sentenced under section 376(1) of the IPC, r/w section 3(2)(v) of the Act with a direction to undergo for life imprisonment with fine of Rs.5,000/-. In default of depositing the same, for further six months RI has been award, while appellants No.2 and 3 Dabbe @ Damodar and Raghuveer Singh have been convicted and sentenced under section 376/114 of IPC, r/w section 3(2)(v) of the Act with a direction to suffer the same punishment, as awarded against the appellant No.1. 2. The facts giving rise to this appeal in short are that on dated 1.10.1995 at about 7 O’clock in the morning, the prosecutrix Ramvati (PW7) lodged the FIR at P.S. Pohri contending that in the midnight of 30.9.1995 and 1.10.1995, she was all alone at her residence while her husband had gone to the Hanuman Temple of the village to participate in some prayer. In the evening of 30.9.1995 after taking her meals, she went to sleep. At about 12 O’clock in the night the appellants Shankar Dhobi, Dabbe @ Damodar and Raghuveer Singh entered in her house. Out of them, the appellant No.1, Shankar started doing masaj of her breasts while the accompanied appellant No.2 Dabbe @ Damodar and appellant No.3, Raghuveer were standing there near the cot. The prosecutrix tried to run away from such place but she was caught hold by the appellant No.2, Raghuveer. After catching her legs, he pressed her on the cot. Thereafter appellant No.1 Shankar committed sexual intercourse on her contrary to her wish. The prosecutrix cried. At the same time, her husband, Gendalal (PW8) and brother-in-law Jankee Lal came there from Hanuman Temple. Then the appellants tried to run away from such place. Out of them, her husband caught hold the appellant No.1, Shankar but later on he also fled away. On such report, the offence of section 376/34 of IPC was registered against all the three appellants. The prosecutrix was sent to the hospital where after carrying out her medical examination, the MLC report was prepared. Out of them, her husband caught hold the appellant No.1, Shankar but later on he also fled away. On such report, the offence of section 376/34 of IPC was registered against all the three appellants. The prosecutrix was sent to the hospital where after carrying out her medical examination, the MLC report was prepared. The investigation was carried out. On completion of the same, on establishing charges of sections 376/34 of IPC and 3(1)(xii) of the Act, the appellants were charge-sheeted for the same. 3. After committing the case to the Sessions Court, on evaluation of the charge-sheet, charge of section 376 of IPC and section 3(2)(v) of the Act were framed against the appellant No.1, Shankar while charge of section 376/114 of IPC and section 3(2)(v) of the Act were framed against appellants No.2 and 3. They abjured their guilt, on which trial was held. After recording the evidence, on appreciation of the same, the appellants were held guilty and punished as mentioned above. Being dissatisfied with such conviction and sentence, the appellants have come to this Court with this appeal. 4. We have heard Shri N.P. Dwivedi and Shri S.K. Tiwari, appearing counsel for the appellants as well as Shri B.K. Sharma, learned Government Advocate for the respondent-State at length. Keeping in view their arguments, on perusing the record in the following circumstances, we deem fit to remand the matter after setting aside the impugned judgment of the trial Court to decide the case afresh. 5. It is apparent from the averments of the FIR that all the appellants entered in the house of the prosecutrix, Ramvati Bai when she was all alone in her residence and after entering her house, the appellants No.2 and 3 remained inside her house while the appellant No.1, Shankar started masaj of the breasts of the prosecutrix and in continuation of the same, he committed sexual intercourse on her without her consent. While performing such sexual intercourse as per available evidence, she was caught hold by the appellants No.2 and 3 from the upper side and lower side and in such premises, the appellants No.2 and 3 assisted and facilitated the appellant No.1 in committing the aforesaid alleged sexual intercourse on the prosecutrix without her consent and wish. While performing such sexual intercourse as per available evidence, she was caught hold by the appellants No.2 and 3 from the upper side and lower side and in such premises, the appellants No.2 and 3 assisted and facilitated the appellant No.1 in committing the aforesaid alleged sexual intercourse on the prosecutrix without her consent and wish. After holding the investigation, prima facie such circumstance was found to be established on which the police report, under section 173 of CrPC, charge-sheet was filed under section 173 of the CrPC for prosecution of the appellants under the above mentioned sections. 6. It is apparent from the record tht subsequent to the committal of the case to the Sessions Court, on evaluation and preparing the papers of the charge-sheet and police report filed under sections 173 of CrPC, the charge of section 376 of IPC, r/w section 3(2)(v) of the Act were framed against the appellant No.1, Shankar, while charge of section 376/114 of IPC, r/w section 3(2)(v) of the Act were framed against the remaining appellants. It appears that while framing such charge, the provision of section 376 of IPC was not perused by the trial Court in its entirety, if the same was seen or perused by the trial Court, then in the available circumstances, the trial Court ought to have been framed the charge against the appellants for the offence of section 376(2)(g) of IPC along with above mentioned sections of the Act. 7. Before proceeding further, we deem fit to reproduce the concerning part of sub-section (2) of section 376 along with its Explanation No.1 of IPC. The same is read as under : “376. Punishment of rape. -- (1) ..... (2) Whoever : (a) ...... (b) ...... (c) ...... (d) ...... (e) ...... (f) ...... (g) Commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable for fine. Provided ..... Explanation 1 : Where a woman is raped by one or more in a group of persons acting of furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.” 8. Provided ..... Explanation 1 : Where a woman is raped by one or more in a group of persons acting of furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.” 8. In view of aforesaid language of the provision, if the case at hand is examined only on the basis of charge-sheet, then it is apparent that all three appellants had entered in the house of the prosecutrix with intention to commit rape on her and after entering in her house, out of them, appellant No.1, Shankar after doing masaj of the breasts of prosecutrix had committed rape on her while the remaining appellants were present inside her house and remained active to assist and facilitate the appellant No.1, Shankar with their act to commit such sexual intercourse on the prosecutrix. So in such premises, the trial Court, instead to frame the charge of section 376(1) or section 376(1)/114 of IPC, was bound to frame the charge of section 376(2)(g) of IPC against each of the appellants because such provision was in force on the date of the incident and lodging the FIR. So in such premises, it is apparent that the trial of the impugned case was not held by the trial Court by framing the appropriate and proper charge on the basis of police report and the charge-sheet. Subsequent stage of trial, at any point of time such mistake was not pointed out before the trial Court by the prosecution or on behalf of the defence. In such premises, the trial was held only with respect of the offence made punishable under section 376(1) and 376/114 relating to the abatement of the offence and for the offence under section 3(2)(v) of IPC. 9. It is apparent from the provision that under section 376(1), the accused of the rape (if it is not gang rape or other types of rape), described under sub-section (2) of section 376 of IPC may be punished by the Court with the minimum punishment of seven years which may be extended upto the life imprisonment but under section 376(2)(g) of IPC. Minimum punishment upto ten years which may extend upto life imprisonment has been prescribed. Minimum punishment upto ten years which may extend upto life imprisonment has been prescribed. So in such premises, this case was the case of framing the charge of section 376(2)(g) of the IPC, in which, in comparison of section 376(1) of IPC, some higher punishment has been prescribed, but the trial Court has proceeded in the matter after framing the charge of minor punishment of section 376(1) and section 376(1)/114 of IPC. In the aforesaid premises, this Court has to answer the question that on the basis of aforesaid framed charge by the trial Court, in the light of the available evidence, whether this Court can consider the matter, keeping in view the provision of section 376(2)(g) of IPC, when such charge of section 376(2)(g) have not been framed against the appellants unless such question is answered, this Court cannot consider the question for extending the acquittal or to affirm the impugned conviction of the appellants. In such a situation, Court has to consider whether section 386 of CrPC, the case should be remanded back to the trial Court with a direction to frame the charge of section 376(2)(g) of IPC at the place of section 376(1) and section 376/114 of IPC against the appellants and decide the case afresh after extending additional opportunity to the parties to adduce their evidence on the aforesaid amended charge. 10. It is settled proposition of law based on the spirit of section 222 of CrPC that on appreciation of the evidence either the trial Court or the appellate Court comes to the conclusion that the accused like appellants have committed the offence of the same cognate, in which some lesser punishment is provided and the charge of major section of such cognate was framed then without modifying the existing charge of framing the charge of the section of lesser punishment, accused could be convicted under the section of lesser punishment because the ingredients of such section of lesser punishment is included in the section of major punishment. For example, if the charge of section 376(2)(g) is framed and after trial, on appreciation, the offence is found to be committed of section 376(1) of IPC, then without framing the charge of such section 376(1) of IPC on the basis of same charge of section 376(2)(g) of IPC, the accused could be convicted under section 376(1) of IPC. For example, if the charge of section 376(2)(g) is framed and after trial, on appreciation, the offence is found to be committed of section 376(1) of IPC, then without framing the charge of such section 376(1) of IPC on the basis of same charge of section 376(2)(g) of IPC, the accused could be convicted under section 376(1) of IPC. As such no modification in the existing charge is required and pursuant to it, fresh trial is also not required. But if the charge is framed by ignoring the material circumstance of the FIR as well as other papers of the charge-sheet filed with the police report under section 173 of CrPC for the offence of the section, in which the lesser punishment is provided, then at any subsequent stage of the case even in the appeal, if it is found that the correct charge was not framed in the matter and if the Court also comes to conclusion that after framing the correct charge, the case should be decided afresh, then there is no option with the Court except to set aside the impugned judgment and remanded the matter to the trial Court with the direction to replace the framed charge by framing correct charge against the accused like the appellants and decide the same afresh. 11. True it is that the impugned judgment was passed long before, i.e., in the year 1999 and the alleged incident had occurred in the year 1995 but mere on the basis of such delay by ignoring the aforesaid illegality of the trial Court the case of the accused like appellants could neither be taken into consideration for extending the acquittal or to affirm their conviction. 12. In view of aforesaid discussion, without expressing any opinion on the available evidence of record or giving any findings on merits on the facts of the case, by allowing this appeal in part, the impugned judgment is set aside and the case is remitted back to the trial Court with a direction to frame the charge of section 376(2)(g) of IPC against the appellants at the place of section 376(1) and 376(1)/114 of IPC respectively, keeping the charge of section 3(2)(v) of the Act for the trial against them and after extending the opportunity to the parties to adduce their additional evidence on such modified charge and decide the matter afresh. The trial Court is further directed to decide the matter afresh on its own merits without influencing from any observation or the findings given by such Court in the impugned judgment or by this Court in the present order. It is specifically observed that the trial Court shall also be at liberty to decide the question relating to the charge of section 3(2)(v) of the Act afresh without influencing from any observation or the findings given by such Court in the impugned judgment or by this Court in this order. It being the old case, the trial Court is directed to decide the matter in compliance of the aforesaid direction within six months from the date of receiving the record of the case along with copy of this order. Office is directed to send back the record along with copy of this order immediately to the trial Court. 13. At the request of the counsel present, the parties are directed to appear before the trial Court, i.e., before the Special Court (constituted under the Act), Shivpuri. If such Court is not functioning their, then before Sessions Court of Shivpuri on 20.6.2013, so also on other dates as are fixed by such Court in this regard till disposal of the trial. The bail bonds of the appellants are continued till 20.6.2013 and pursuant to it, each of the appellants is directed to furnish his personal bond of Rs.20,000/- along with one surety of the like amount to the satisfaction of the aforesaid trial Court in accordance with the terms and the provision of section 437 and 439 of CrPC. 14. The appeal is allowed in part as indicated above. ............