1. Minor enticed away — Allegations of rape and kidnapping — Conviction under Sections 363, 366, 376-D, 506 IPC and Section 4 POCSO Act. (Para 2 , 3 )
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2021 Supreme(SC) 609
SUPREME COURT OF INDIA
M.R. SHAH, A.S. BOPANNA, JJ.
Manoj Mishra @ Chhotkau – Appellant
Versus
The State of Uttar Pradesh – Respondent
Criminal Appeal No. 1167 of 2021, SLP (Criminal) No. 7828 of 2019
Decided On : 08-10-2021
Advocates appeared:
For the Appellant(s) : Mr. Anoop Prakash Awasthi, AOR
For the Respondent(s): Mr. Parmanand Pandey, AOR Mr. Utkarsh Pandey, Adv.
For the Appellant(s) : Mr. Anoop Prakash Awasthi, AOR
For the Respondent(s): Mr. Parmanand Pandey, AOR Mr. Utkarsh Pandey, Adv.
IMPORTANT POINT
Charge of gang rape has to be established with convincing evidence.
Headnote:
Protection of Children from Sexual Offences Act, 2012 – Sections 3 and 4 – Indian Penal Code, 1860 – Sections 363, 366, 376D and 506 – Kidnapping, rape and criminal intimidation of minor girl – Conviction and sentence – Evidence of prosecutrix is not categorical – Insofar as incident of rape attributed to appellant it does not disclose that all accused had committed rape on her or had common intention and aided the commission – It is also not established that all of them were seen together or aided with common intention – Very conclusion reached by High Court itself would indicate that allegation of rape as established by prosecution is against appellant and other accused are not involved in such act – Charge of gang rape has not been established with convincing evidence – However, incident of rape alleged having been established, it would be a case to convict appellant under Section 376 of IPC – Conviction handed down by trial court and confirmed by High Court under Sections 363, 366 and under Section 4 of POCSO Act and sentence as ordered thereunder would not call for interference – There is no other statement or evidence relating to the incident or manner in which threat in its true sense was put forth – In that view, conviction and sentence under Section 506 imposed by trial court and affirmed by High Court is not sustainable and is liable to be set aside – On arriving at conclusion that appellant is liable to be convicted under Section 376 IPC and not under Section 376 D IPC, appropriate sentence to be imposed needs consideration – Conviction and sentence under Sections 363, 366, and Section 4 of POCSO Act is confirmed – Conviction under Section 506 IPC set aside – Conviction order made by trial court and confirmed by High Court under Section 376D IPC modified – Taking into consideration all facts including that no material is available on record to indicate that appellant has any criminal antecedents and that he is also a father of five children and eldest son is more than 18 years, there is no reason to apprehend that appellant would indulge in similar acts in future – Sentence of 7 years would have been sufficient deterrent to serve ends of justice – Fine and default sentence as imposed by trial court maintained. (Paras 12 to 17)
Facts of the case:
Appellant is before this Court assailing the judgment dated 14.03.2018 passed by the High Court of Judicature at Allahabad, Lucknow Bench in Criminal Appeal No.1102/2017. Through the said judgment, the High Court has dismissed appeal and confirmed the conviction and sentence ordered to appellant by the Additional Sessions Court and Special Judge POCSO Act, Bahraich in C.C. No.18/2014. The appellant herein was arrayed as Accused No.4 in the said case.
Findings of Court:
Since the custody certificate dated 20.09.2013 indicates that the appellant has undergone sentence for more than 8 years, the appellant is ordered to be released on payment of fine as all the sentences have run concurrently and if he is not required to be detained in any other case.
Result : Appeal allowed in part.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. Reliability of prosecutrix's testimony — Age of victim — Consensual nature of relationship — Applicability of gang rape charges under Section 376-D IPC. (Para 6 , 7 , 8 )
3. Medical evidence of pregnancy corroborates prosecutrix's testimony — Lack of evidence regarding common intention or joint participation to sustain gang rape charges. (Para 9 , 10 , 11 , 12 , 13 , 14 , 15 )
4. Conviction for gang rape requires evidence of common intention or joint participation in the sexual act; medical evidence corroborating testimony establishes rape. (Para 10 , 11 , 12 )
5. Convictions under Sections 363, 366 IPC and Section 4 POCSO Act confirmed — Section 376-D modified to Section 376 IPC — Section 506 IPC set aside. (Para 17 )
6. When is a charge of gang rape under Section 376-D IPC unsustainable despite a conviction for rape?
A charge of gang rape is unsustainable when there is no specific evidence that multiple accused participated in the sexual act or acted with a common intention to commit sexual assault, even if other accused aided in enticing the victim away. (Para 10 , 12 )
7. How does medical evidence regarding pregnancy support a charge of rape?
Medical evidence of pregnancy that coincides with the timeline of the victim's testimony regarding physical relations against her will serves to establish the charge of rape. (Para 11 )
8. What level of evidence is required to sustain a conviction under Section 506 IPC for criminal intimidation?
Vague statements by the victim without supporting evidence or specific details regarding the manner in which the threat was put forth are insufficient to sustain a conviction under Section 506 IPC. (Para 15 )
9. Which version of the law applies to sentencing when the law is amended after the crime but before the final appeal?
The pre-amended provisions in force at the time of the incident and the original conviction are taken into account for sentencing. (Para 16 )
JUDGMENT :
A.S. BOPANNA, J.
1. The appellant is before this Court assailing the judgment dated 14.03.2018 passed by the High Court of Judicature at Allahabad, Lucknow Bench in Criminal Appeal No. 1102/2017. Through the said judgment, the High Court has dismissed the appeal and confirmed the conviction and sentence ordered to the appellant by the Additional Sessions Court and Special Judge POCSO Act, Bahraich in C.C. No. 18/2014. The appellant herein was arrayed as Accused No. 4 in the said case.
2. The brief facts leading to the conviction and sentence of the appellant is that the father of the prosecutrix filed a written report dated 09.08.2013 at 22:35 hours before the police alleging therein that one Ramasre alias Siri had enticed his daughter aged about 14 years on 02.08.2013 and had taken her away. In the said complaint, it was further alleged that Raksharam, Nangodiya and Manoj Kumar alias Chhotkau i.e. the appellant herein had cooperated with him in the alleged incident. An FIR was lodged in Crime No. 625/2013 under Sections 363 and 366 IPC. The prosecutrix was found by the police along with Ramasre alias Siri. She was brought back and subjected to medical examination. The case was investigated and a charge sheet was filed under Sections 363, 366, 376 and 506 Indian Penal Code (for short ‘IPC’) as also sections 3 and 4 of Protection of Children from Sexual Offences Act (for short ‘POCSO Act’). The Court had thereafter framed the charges against the accused. On the accused denying the charge, trial was conducted. The father and mother of the prosecutrix were examined as PW-1 and PW-2 respectively, while the prosecutrix herself was examined as PW-3. Dr. Rabia Sultan who had conducted the medical examination on the prosecutrix was examined as PW-4. The Constable Pramod Kumar Shah who had carried the FIR was examined as PW-5 and the Sub-Inspector Tara Prasad Pandey who had investigated the case was examined as PW-6.
3. The trial court having analysed the said evidence which was tendered before it, also taking into consideration the denial put forth by the accused while recording the statement under Section 313 of Criminal Procedure Code (for short ‘Cr.P.C.’) had arrived at the conclusion that the charge alleged against the accused was proved. Accordingly the accused were sentenced to (i) 3 years rigorous imprisonment with fine of Rs. 3,000/- for the offence under Section 363 IPC; (ii) 5 years rigorous imprisonment with fine of Rs. 5,000/- for the offence under Section 366 IPC; (iii) 20 years rigorous imprisonment with fine of Rs. 25,000/- for the offence under Section 376-D IPC; (iv) 2 years rigorous imprisonment with fine of Rs. 2,000/- under Section 506 IPC and (v) 7 years rigorous imprisonment with fine of Rs. 7,000/- for the offence under Section 4 of POCSO Act. The default sentence for nonpayment of the fine was also imposed and the sentence for the offence under the said provisions were ordered to run concurrently through the judgment dated 20.05.2015. Through the said judgment one of the accused Raksharam was acquitted on holding that the charges against him were not proved.
4. The appellant had assailed the said judgment before the High Court in Criminal Appeal No. 1102/2017. The learned Judge while adverting to the evidence tendered before the trial court had reappraised the same in the background of the contentions that were urged and, in that light, had arrived at the conclusion that the appellant had raped the prosecutrix number of times after being enticed away by him. In that view of the matter the learned Judge was of the opinion that the trial court had rightly arrived at the conclusion on the basis of the prosecution evidence that the appellant was involved in the commission of the crime. The judgment of conviction and sentence was accordingly confirmed. The appellant therefore claiming to be aggrieved by the judgment passed by the learned Judge of the High Court is before this Court in this appeal.
5. We have he
