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Madhya Pradesh High Court · body

2014 DIGILAW 1530 (MP)

Deepak Sharma v. Pramod Tiwari

2014-11-25

SUBHASH KAKADE

body2014
JUDGMENT : Subhash Kakade, J. 1. Arguments were heard on I.A. No.4083/2014, an application for condonation of delay. 2. For the reasons stated in the application, the same is allowed. Delay in filing this revision petition is hereby condoned. 3. This revision under Section 397/401 of Cr.P.C. has been filed against the order dated 25.06.2012, passed in Sessions Trial No.299/2012, by the learned Additional Sessions Judge, Special Court No.2, Bhopal, by which the learned trial Court discharged the respondents no. 1 to 3 from the charges punishable under Sections 376/34 and 506-B/34 of IPC. 4. Following are the admitted facts of relationship between the parties:- (i) A resident of Tahsil Ganj Basoda, District Vidisha, the applicant Deepak Sharma is husband of respondent No.3 Smt. Sandhya Sharma.. (ii) This couple blessed with daughters D and A. These victims girls were aged 8 and 6 years respectively at the time of incident. (iii) Respondent No.1 Pramod Tiwari and respondent No.2 Smt. Kanta Tiwari are brother and mother of respondent No.3 that way brother- in-law and mother-in-law of the applicant respectively. (iv) In October, 2011, respondent no.3 took children D and A to her matrimonial home at Bhopal where she used to visit frequently. (v) Juvenile delinquent Goldy is son of respondent no.1 and grandson of respondent no.2. 5. Further case of the prosecution is that Juvenile Goldy committed the offence of rape against both the girls on number of occasions whenever there was an opportunity for him to do so at matrimonial home of respondent No.3. The girls disclosed this fact to the respondents no. 1 to 3 so many times. Instead of controlling juvenile Goldy or punishing him for the guilt the respondents no.1 to 3 scolded and threatened the victim girls and asked them to keep quiet and refrain them from disclosing this fact to anyone. The respondents threatened the girls to their life if they told anyone about this offence. The girls when returned to their parental home at Ganj Basoda did not disclose the mis- happening to applicant father because of fear of respondent no.1 maternal uncle of the victim girls, who was with them. After few days, respondent no.3 again decided to go to her maternal home along with the victim girls but they refused to go with her, therefore, respondent no.3 left them alone for Bhopal. After few days, respondent no.3 again decided to go to her maternal home along with the victim girls but they refused to go with her, therefore, respondent no.3 left them alone for Bhopal. Taking opportunity of this loneliness the victim girls explained entire episode to the applicant about the commission of offence against them by juvenile Goldy at Bhopal. The applicant was shocked and immediately lodged an FIR and on basis of it after due investigation the applicants were charge-sheeted. 6. The learned trial Court appreciated the material available on record discharged the accused persons for the offence punishable under Sections 376/34 and 506-B/34 of IPC, against which this revision is being filed. 7. Shri Manish Datt, learned senior counsel for the applicant/the father of the minor victim girls submits that the learned trial Court failed to consider that the offence was committed against two minor girls at different times and places but the investigating officer had made only one map and file common charge-sheets which clearly shows that the investigation done by him was merely a paper formality. There was clear evidence against the respondents no.1 to 3 to that when the victim girls informed them about the offence committed by juvenile Goldy they did not pay any heed and on the contrary tried to suppress the offence by threatening these minor girls for not disclosing the incident it to anybody. The victims girls D and A in their statement before the learned trial Court have specifically stated and detailed the miss happening with them separately and had narrated the role of respondent no.1, 2 and 3 even the learned trial Court discharged the respondents no.1 to 3 ignoring the direct evidence against the alleged respondents. The medical examination of the victims also corroborate with the statements of victims, hence, there is no place of any suspicion and the respondents, who have been acquitted by the learned trial Court are equally guilty of the offence by virtue of providing shelter to the accused, in any case it not be said to be guilty of 376, IPC but at least they are guilty for the offence punishable under Section 120-B/34, 504-B and 354 of IPC. 8. Learned counsel for the respondents no.1 to 3 vehemently opposed the contention as advanced by the learned counsel for the applicant and prays for dismissal of this revision. 9. 8. Learned counsel for the respondents no.1 to 3 vehemently opposed the contention as advanced by the learned counsel for the applicant and prays for dismissal of this revision. 9. Learned Panel Lawyer for the respondent State stated that the State does not adopt any legal course against discharge of the respondent Nos. 1 to 3 by the impugned order. 10. Heard learned counsel appearing on behalf of the parties and perused the record. 11. Section 34 of IPC recognizes the principle of vicarious liability in criminal justice delivery system. It makes a person liable for commission of an offence not committed by him, but by another person with whom he shared the common intention. This rule of evidence does not create a substantive offence. The section gives statutory recognition to the common sense principle that if more than two persons intentionally do a thing jointly, it just the same as if each of them has done individually. Common intention essentially being an state of mind. It is very difficult to produce the evidence to prove such intention, therefore, in most of the cases it has to be inferred from the act; like the conduct of the accused, other relative circumstances of the case, the interference can be gathered from the manner in which the accused behaved. 12. In order to bring home the charge of common intention, the prosecution has to show prima facie by collected evidence whether direct or circumstantial that they planed or meeting of minds of all the accused person to commit the offence for which they are charged with the aid of Section 34 of the IPC. 13. In case in hand, the allegations against the respondent Nos. 1 to 3 are that being the relatives of the victims D & A, they did not control the juvenile delinquent or punished him, on the other hand respondent Nos. 1 to 3 scolded and threatened the victims D & A. 14. The presence of the respondent Nos. 1 & 3 in the house where the incident to be taken place at Bhopal is a natural phenomena because, this house belongs to respondent Nos. 1 & 2 being the owner of the house. 15. On the complaint of the victims D & A, if the respondent No.3, mother of these victims and respondent Nos. 1 & 3 in the house where the incident to be taken place at Bhopal is a natural phenomena because, this house belongs to respondent Nos. 1 & 2 being the owner of the house. 15. On the complaint of the victims D & A, if the respondent No.3, mother of these victims and respondent Nos. 1 & 2 did not give any heed, on this sole ground, it cannot be gathered that the respondent Nos.1 to 3 having a common intention with the act of juvenile delinquent. At the most, the respondent nos. 1 to 3 did not act to control the juvenile delinquent Goldy or punished him for his wrong act, but this omission on the part of the respondent Nos. 1 to 3, cannot be indicated the sharing of common intention. 16. After perusal of the case diary, available record, prima facie, it is not found that respondent Nos. 1 to 3 are liable for doing any criminal act. The prosecution has not prima facie succeed to show that there was any prearranged plan or meeting of minds of respondent Nos. 1 to 3 with the juvenile delinquent Goldy to commit the offence of rape with the prosecutrix D & A. 17. The offence punishable under Section 506-B of IPC has following essentials: - (1) Threatening a person with any injury- (a) to his person, reputation, or property; or (b) to the person or reputation of anyone in whom that person is interested. (2) Threat must be with intent- (a) to cause alarm to that person, or (b) to cause the person to do any act which is not legally bound to do as the means of avoiding the execution of such threat, or (c) to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat. 18. In the light of above ingredients, it is clear that respondent Nos. 1 to 3 rightly discharged by the learned trial Court because whatever evidence is collected by the prosecution is mere expression of words without any intention. It is also well settled that mere threat is no offence. 19. Looking to the totality of above facts and circumstances of the case and taken into consideration the evidence collected by the prosecution against the respondent Nos. It is also well settled that mere threat is no offence. 19. Looking to the totality of above facts and circumstances of the case and taken into consideration the evidence collected by the prosecution against the respondent Nos. 1 to 3 presumed to be as gospel truth, even then finding arrived at by learned trial Court by impugned order that respondent Nos. 1 to 3 had no common intention to commit an offence or intentionally deed things jointly with juvenile delinquent Goldy, does not warrant any interference. 20. Hence, this revision petition being devoid of any merit is hereby dismissed.