Madhya Pradesh High Court
The State Of M.P. vs Dabbu @ Ayub Khan & Ors. on 13 August, 2018
Author: Akhil Kumar Srivastava
Bench: Akhil Kumar Srivastava
(1)
HIGH COURT OF MADHYA PRADESH
Division Bench : Hon'ble Shri Justice J.K.Maheshwari &
Hon'ble Shri Justice Akhil Kumar Srivastava
**
Criminal Appeal No. 639/1997
State of Madhya Pradesh
-Versus-
Dabbu @ Ayub Khan & others
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Ms. Manjeet Chuckal, Panel Lawyer for the appellant/State.
Shri Rakesh Kaushal, Advocate for the respondents as Amicus
Curiae.
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JUDGMENT
(Jabalpur, Dated 16/8/2018) Per : J.K. Maheshwari, J.
1. This appeal under Section 378(1) of the Code of Criminal Procedure (hereinafter to be referred as the Cr.P.C.) has been filed by the State being aggrieved by the judgment of acquittal dated 18.9.1996 passed by Second Additional Sessions Judge, Rewa in Sessions Trial No. 25/1994 whereby respondent Nos. 2 to 7 have been acquitted from the charge under Sections 363, 366, 376 read with Section 148 of the Indian Penal Code and respondent No. 1 has been convicted for the charge under Section 376 read with Section 511 of the Indian Penal Code and sentenced for the period already undergone i.e. 3 years and 5 months.
(2)
2. As per prosecution's case, on 12.4.1993 when the prosecutrix was going to college, near Ramleela Maidan, Rewa 5-6 persons came in a Fiat Car, kidnapped her showing Katta (a firearm) and knife and kept her in a house in front of a Petrol Pump near Sirmour Chouraha where accused Dabbu committed rape upon her. Thereafter she was taken to Padra on a Scooter where from she was taken to Jawa in a Jeep by 3-4 persons where accused Rocky stayed with her and rest of the co- accused persons came back. The prosecutrix was recovered from the house of Chhottelal by the Police on which offence was registered and medical examination was conducted.
3. After completion of the investigation, challan was filed before the competent Magistrate and because the case was triable by the Court of Session, therefore, it was committed to the competent Court for trial. The trial Court vide impugned judgment referring the statement of the prosecutrix (PW-2) in detail in Para-15 pointed out various omissions and contradictions with respect to co-accused persons except Dabbu @ Ayub Khan regarding attempt to commit rape, however, relying upon the said testimony and also considering the statement of Prem Lal Verma (PW-15), who has seen them, acquitted all other accused persons while co-accused Dabbu was convicted for attempt to commit rape and directed to undergo the sentence as described hereinabove. (3)
4. Learned Panel Lawyer representing the State has strenuously urged that testimony of the prosecutrix has been relied only with respect to Dabbu while as per her statement, the presence of other co-accused persons cannot be doubted. More so, another witness Prem Lal Verma (PW-15) has also said that 5-6 persons came along with the girl in the Farm House, therefore, for the presence of those persons cogent evidence is available and in case one of accused has been convicted for attempt to commit rape, the other are also liable to be be dealt with in same manner, therefore, finding as recorded by the trial Court is perverse which may be set aside and rest of the accused persons may be convicted and sentence appropriately.
5. On the other hand learned Amicus Curiae representing the respondents/accused has referred the testimony of the prosecutrix and the omissions and contradictions as pointed out by the trial Court in Para 15 in her statement. It is his contention that after going through the said testimony and the finding as recorded by the Court, the statement of the prosecutrix is not of the sterling character, which can be relied upon to convict the accused, therefore, the trial Court has rightly acquitted the other co-accused persons. It is further his contention that so far as co-accused Dabbu is concerned, who has been convicted for attempt to commit rape, against him also the said testimony cannot be relied upon. Though, no appeal against the said judgment has been filed but merely because Dabbu has been convicted, it would not be a ground (4) to convict the other co-accused persons. In that view of the matter, it is urged that the appeal filed by the State may be dismissed.
6. After hearing learned counsel for both the parties and on perusal of the statement of the prosecutrix (PW-2), it is apparent that she named four persons namely Dabbu @ Ayub Khan, Rocky @ Atiq Ahmad, Saeed Khan and Shakeel Khan in her statement recorded under Section 161 of the Code of Criminal Procedure while in Court statement, she named two persons i.e. Dabbu @ Ayub Khan and Rocky @ Atiq. In the Court statement, she stated that she was going in a Rikshaw but that Rikshaw pilot has not been brought in the witness box and the said testimony is also having omission from her statement recorded under Section 161 of the Code of Criminal Procedure. In the Court statement, it was said that the said Rikshaw pilot was stopped giving threat and she was kidnapped while as per prosecution's case, kidnapping took place near Ramleela Maidan without indicating that she was going by Rikshaw.
7. In addition to the aforesaid, it is quite surprising that 5-6 persons are alleged to have kidnapped a girl in the broad day light at about 2:30 PM near Ramleela Maidan and nobody heard any noise. This is one of the important aspects though it has not been taken into consideration thereafter she was shifted by a Scooter at Padra without any alarm, therefore, in our considered opinion the trial Court has considered the statement of the prosecutrix in the right perspective and rightly acquitted (5) the accused persons except Dabbu. Because there is no appeal on behalf of Dabbu, therefore, this Court is not inclined to make any observation regarding his conviction. However, after due appreciation of the evidence as discussed hereinabove and on perusal of the statement of the Doctor, we are of the considered opinion that the finding as recorded by the trial Court is neither perverse nor illegal warranting interference in this appeal.
8. In addition to the aforesaid, the scope of interference in the appeal against acquittal is very limited. Until any inescapable conclusion of guilt can be arrived at by the testimony and the material brought on record, the interference against the judgment of acquittal may not be made. The Apex Court has reiterated the principles in this regard in the case of T. Subramanian Versus State of Tamil Nadu reported in (2006) 1 SCC
401. In the case of K. Prakashan Versus P.K. Surenderan reported in (2008) 1 SCC 258, it has been held by the Apex Court that if two views are possible, the appellate Court shall not reverse the judgment of acquittal only because another view is possible to be taken. The appellate Court's jurisdiction to interfere in an appeal against acquittal is limited. In that view of the matter, we are of the considered view that the view taken by the trial Court is plausible after appreciating the evidence brought on record, therefore, the judgment of acquittal passed by the trial Court do not warrant any interference.
(6)
9. Accordingly, this appeal filed by the State fails and is hereby dismissed. The impugned judgment passed by the trial Court is hereby affirmed.
10. At the end, it our duty to record the words of appreciation in favour of the Amicus Curiae, who assisted this Court in the disposal of this case, which was pending for last more than 20 years. His assistance is acknowledged.
(J.K. Maheshwari) (Akhil Kumar Srivastava)
Judge Judge
PB
Digitally signed by
PRADYUMNA BARVE
Date: 2018.08.20
10:50:55 +05'30'