- (1.) M. C. Jain, J. Four appellants, namely, Gokula Prasad Tiwari, Shitla Prasad Tiwari, Dwarika Prasad Tiwari and Mubarak Ali filed this appeal against the judgment and order dated 30-9-1981 passed by Sri J. B. Singh I, the then IV Additional Sessions Judge, Allahabad in S. T. No. 498 of 1980. Each of them has been convicted under Section 376 IPC and sentenced to seven years' rigorous imprisonment. As per the report of the CJM Allahabad dated 24-10-2002 the appellant Gokula Prasad Tiwari died five years' back. Therefore, the appeal abates, so far as he is concerned.
(2.) THE relevant facts may be taken note of. THE appellants allegedly committed rape on the person of Smt. Makhana wife of Tahir, tailor at about 11. 30 p. m. in between the night of 2nd/3rd May, 1980 in her house situate in village Pasana, Police Station- Koraon, District Allahabad. THE report was lodged by her at the concerned police station the following morning at 6. 10 a. m. THE distance was three miles. THE appellants Gokula Prasad Tiwari, Shitla Prasad Tiwari and Dwarika Tiwari were real brothers. THE husband of the prosecutrix was a tailor-cum-rural dancer. THE appellants as well as the prosecutrix resided in the same village. THE husband of the prosecutrix had gone out for dancing in village Gaura. She was sleeping inside her house along with her children. An oil lamp was kept alight in the house. At about 11. 30 p. m. all the appellants managed to enter her house by breaking Tattar (Bamboo sticks joined together to serve as door ). Each of them committed rape on her person one after another when she was lying on a cot. Her daughter raised alarm. As a result, Shaukat Ali P. W. 3 and Mohd. Shafi, then present at the nearby pond arrived there along with one Abdul Kabir and they all saw the accused persons running away from inside the house. Hakimunnisha P. W. 2 also arrived there. While leaving, the accused had also threatened her. But being night, she could not venture out to lodge the FIR immediately. THE report, as stated above, was lodged by her after it had dawned at 6. 10 a. m. She was medically examined by Dr. Vina Nigam, P. W. 6 on 3-5-1980 at 3. 00 p. m. She was hospitalized also. THE investigation was taken up by Chunna Lal Gautam, the then Station Officer of Police Station Koraon, P. W. 5. THE accused Dwarika Prasad Tiwari and Mubarak Ali were taken into custody on 4-5-1980. THE other two surrendered in the Court. After conclusion of the investigation, all the four were booked for trial which ended up in their conviction as stated above. THE defence was of denial. The accused Mubarak Ali also came up with the story that husband of the prosecutrix had purchased one Biswa of land from him for Rs. 5,000 for constructing house and he had promised to pay the said amount within one month. Hakimunnisha P. W. 2 advised him not to make payment. A Panchayat was conducted and thereafter, he had tried to occupy the land. On the instigation of Hakimunnisha P. W. 2, Shauakt Ali P. W. 3, Shafi Mohammad, Murad Ali and Munnawar had assaulted him and handed him over to the police. The present case had been concocted due to said assault. The remaining three accused pleaded false implication as they were present in the aforesaid Panchayat and further because an altercation had taken place between them on the one hand and the husband of the prosecutrix on the other in respect of causing of nuisance by his hens in their crop bearing plot. The prosecution in all examined eight witnesses. Prosecutrix Makhana P. W. 1 was the star witness who narrated the prosecution case, proving the FIR too.
(3.) I have heard Sri D. S. Tiwari, learned Counsel for the appellants in support of the appeal and learned AGA from the side of the State in opposition thereof. It has been urged that the conviction has been recorded on insufficient and untrustworthy evidence and further that it was illogical that three real brothers (Gokula Prasad Tiwari, Shitla Prasad Tiwari and Dwarika Prasad Tiwari) would go to commit rape on the same lady together. On consideration of the matter, I am of the opinion that the argument carries weight that three real brothers would not go to commit rape on the same lady together. The record shows that out of these appellants (Gokula Prasad Tiwari, Shitla Prasad Tiwari and Dwarika Prasad Tiwari), Dwarika Prasad Tiwari was of 28 years of age, Gokula Prasad Tiwari was of 24 years of age and Shitla Prasad Tiwari was of 18 years of age as per their statements under Section 313 Cr. P. C. recorded on 25-9-1981. Thus, Dwarika Prasad Tiwari was the eldest of the three. Obviously, it sounds to be improbable that the eldest brother would take his younger brothers, too, with him to commit rape on the same lady and at the same time or the two younger brothers would accompany the eldest brother for such nocturnal sexual adventure. Unless one is wholly depraved and debauch in the extremity, he would not take his younger brothers to participate with him in such an activity. Therefore, it leads to justifiable inference that it was only the eldest brother Dwarika Prasad Tiwari who was involved in this incident and not his two younger brothers, namely, Gokula Prasad Tiwari and Shitla Prasad Tiwari out of whom Gokula Prasad Tiwari has since died also. Benefit of doubt should have been afforded to these two. It being the duty of the Court to separate the chalf from the grain and to find out the truth, the result would be that the appeal having abated in respect of deceased appellant Gokula Prasad Tiwari the appellant, Shitla Prasad Tiwari would also be absolved of the charge, giving him the benefit of doubt.;