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2011 Supreme(UK) 52
2011 (1) N.C.C. 637
SUPREME COURT OF INDIA
Hon’ble Mr. Justice Aftab Alam and Hon’ble Mr. Justice R.M. Lodha
Criminal Appeal No. 769 of 2006
STATE OF U.P. – Appellant
Versus
CHHOTEY LAL – Respondent
Decided on : 14.01.2011
For the Appellant : Mr. S.K. Dwivedi, AAG, Mr. S.N. Pandey, Mr. M.K. Dwivedi, Ms. Vandana Mishra, Mr. Ashutosh Sharma, Mr. Aviral Shukla (for Gunnam Venkateswara Rao), Advs. with him.
For the Respondent:Mr. Vishal Arun (for Abhijit Sengupta), Advocate
Headnote:(A) Indian Penal Code, 1860, Sec. 376 — Offence of rape — Age of victim — As per medical examination age of prosecutrix found to be 17 yrs — Adding two years to the age opined and conjecturing the age to be 19 years by High Court — Not justified. (Paras 10 to 12)
(B) Indian Penal Code, 1860, Sec. 375, Clauses First and Secondly and Sec. 90 — Whether attracted — Consideration of expression 'against her will' and 'without her consent' may overlap sometimes but surely the two expressions in clause First and clause Secondly have different connotation and dimension — The expression 'against her will' would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition — On the other hand, the expression 'without her consent' would comprehend an act of reason accompanied by deliberation — The concept of 'consent' had been given wider meaning in the context of sexual offences — In case of (2003) 4 SCC 46, Apex Court had put a word of caution that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it was given under a misconception of fact. (Paras 13 to 18)
(C) Indian Penal Code, 1860, Sec. 376 — Evidence of prosecutrix — Needs to be analysed and examined carefully — Held that a woman who is victim of sexual assault is not an accomplice to the crime — Her evidence cannot be tested with suspicion as that of an accomplice — As a matter of fact, the evidence of the prosecutrix is similar to the evidence of an injured complainant or witness — The testimony of prosecutrix, if found to be reliable, by itself, may be sufficient to convict the culprit no corroboration of her evidence is necessary — In prosecutions of rape, the law does not require corroboration — The evidence of the prosecutrix may sustain a conviction. (Para 19)
(D) Indian Penal Code, 1860, Sec. 376 — Offence of Rape — Appreciation of evidence — Non-raising of alarm by prosecutrix at the bus stand and other public places — Absence of alarm by her at the public place cannot lead to an inference that she had willingly accommpanied the accused — She had no free act of the mind during her stay with the accused as she was under constant fear. (Para 23)
(E) Indian Penal Code, 1860, Sec. 376 — Rape — Absence of injury on the external or internal part of body of prosecutrix — Doesn't make the testimony of the prosecutrix unreliable — As signs of forcible intercourse would not persist for 3 weeks — Absence of injuries on the person of the victim of sexual assault, not sufficient to discredit her evidence. (Para 25)
(F) Jurisdiction — Powers of High Court — Interfernce — Judgment of High Court being vitiated by non-consideration of material evidence and relevant factors eloquently emerging from the prosecution evidence — Reversal, by High Court in a sketchy manner, of the judgment of trial Court without discussing the deposition of prosecution witnesses — And the relevant points considered and touched upon by the trial Court — Judgment of High Court being unsustainable set aside and that of trial Court restored. (Para 27)
(G) Indian Penal Code, 1860, Sec. 376 — Rape — Conviction and sentence for — Soft option on — Incident being of 1989 prosecutrix married after the incident also the accused had a family of his own sentencing him imprisonment may disturb his family life — Held that none of those factors individually or collectively found to be sufficient to take a soft option — Rape is a heinous crime and once it is established against a person charged of the offence — Justice must be done to the victim of crime by awarding suitable punishment to the crime doer — Respondent to surrender within two months from today — And serve out the remaining sentence as awarded by the trial court. (Para 28)
¼v½ Hkkjrh; n.M lafgrk] 1860] /kkjk 376 & cykRdkj dk vijk/k & fpfdRlh; ijh{k.k ds vk/kkj ij ihfM+rk dh vk;q 17 o"kZ ikbZ xbZ & mPp U;k;ky; }kjk] fuèkkZfjr vk;q esa nks o"kZ tksM+dj 19 o"kZ ekuk tkuk U;k;ksfpr ugha FkkA
¼izLrj 10 ls 12½
¼c½ Hkkjrh; n.M lafgrk] 1860] /kkjk 375 Dykt (i) vkSj (ii) vkSj /kkjk 90 & ykxw gksus dk iz'u & vH;qfDr ^mldh bPNk ds fo#)* vkSj ^mldh lgefr ds fcuk* ij fopkj djus ij ;g fofnr gksrk gS fd ;s nksuksa dHkh dHkh ,d tSlh yxrh gSa ijUrq fuf'pr :i ls nksuksa vH;qfDR;k¡ Dykt (i) vkSj Dykt (ii) i`Fkd i`Fkd gSa & vH;qfDr ^mldh bPNk ds fo#)* dk lkekU; :i ls ;g vFkZ gS fd fdlh iq#"k }kjk fdlh L=h ds lkFk mlds fojks/k vkSj jksdus ds ckotwn eSFkqu fd;k x;k Fkk & nwljh vksj vH;qfDr ^mldh lgefr ds fcuk* dk rkRi;Z ,sls dR; ls gksxk tks tksj tcjnLrh ds lkFk gksxk & ^lgefr* ds Hkko dk eSFkqukRed vijk/k esa o`gn rkRi;Z gksrk gS & mPpre U;k;ky; ds dsl la[;k (2003) 4 SCC 46 esa ,d 'kCn ^lko/kkuh* ds :i esa fn;k x;k gS fd dksbZ ,slk lh/kk lPpk lw= ugha gS ftlls ;g lqfuf'pr fd;k tk lds fd ihfM+rk }kjk eSFkqu ds fy, lgefr LosPNk ls nh xbZ Fkh vFkok ;g rF;ksa ds uk le>us ds vUrxZr nh xbZ FkhA ¼izLrj 13 ls 18½
¼l½ Hkkjrh; n.M lafgrk] 1860] /kkjk 376 & ihfM+rk dk lk{; & lko/kkuh iwoZd ijh{k.k vkSj fo'ys"k.k fd;s tkus ;ksX; gS & fu.kZ; esa dgk x;k fd ,d efgyk tks ySafxd geys ls ihfM+r gS og vijk/k esa lgvfHk;qDr ugha gS & mlds lk{; dks lansg ds vk/kkj ij ijhf{kr ugha fd;k tk ldrk tSlk fd ,d lgvfHk;qDr ds lkFk fd;k tkrk gS & okLro esa ihfM+rk dk lk{; ml tSlk gh gksrk tSlk fd pksfVy lk{kh vFkok f'kdk;rdrkZ dk & ihfM+rk dk lk{; ;fn Lor% gh fo'oluh; ik;k tk, rks vkjksih dh nks"kflf) ds okLrs i;kZIr gS & mlds lk{; dh laiqf"V dh vko';drk ugha gS cykRdkj ds vfHk;ksx esa dkuwu laiqf"V ugha ekaxrk & ihfM+rk dk lk{; gh nks"kflf) dks dk;e j[k ldrk gSA ¼izLrj 19½
¼n½ Hkkjrh; n.M lafgrk] 1860] /kkjk 376 & cykRdkj dk vijk/k & lk{; dk ewY;kadu & ihfM++rk dk cl LVS.M vFkok vU; lkoZtfud LFkku ij uk fpYykuk & fu.kZ; esa dgk x;k fd ihfM+rk }kjk lkoZtfud LFkku ij uk fpYykus dk ;g vFkZ ugha fudkyk tk ldrk fd og LosPNk ls vfHk;qDr ds lkFk tk jgh Fkh & mlds }kjk vius efLr"d ls dksbZ dk;Z vfHk;qDr ds lkFk jgus ds nkSjku ugha fd;k x;k Fkk ih MCY;w fd og yxkrkj Hk; ds vUnj jg jgh FkhA ¼izLrj 23½
¼;½ Hkkjrh; n.M lafgrk] 1860] /kkjk 376 & cykRdkj & ihfM+rk ds xqIrkax esa fdlh pksV ds gksus dk vHkko & blls mldk lk{; vfo'oluh; ugha cu tkrk & ih MCY;w fd tcju fd;k x;k eSFkqu dk fpUg 3 lIrkg rd ugha Bgjsxk rks ihfM+rk ds xqIrkax esa pksVksa ds fu'kku uk gksuk mlds lk{; dks >qBykus ds okLrs i;kZIr ugha gSA
¼izLrj 25½
¼j½ {ks=kf/kdkj & mPp U;k;ky; ds vf/kdkj & gLr{ksi & mPp U;k;ky; dk fu.kZ; fu"Qy gksus dh otg ls ftlesa Bksl lk{; ij fopkj ugha fd;k x;k Fkk vkSj vfHk;kstu ds lk{; ls lqlaxr rF;ksa ij Hkh fopkj ugha fd;k x;k Fkk & mPp U;k;ky; }kjk fopkj.k U;k;ky; ds fu.kZ; dks vfHk;kstu i{k ds 'kiFk i=ksa ij fopkj fd;s fcuk gh fu.kZ; cny fn;k x;k Fkk vkSj fopkj.k U;k;ky; }kjk lqlaxr rF;ksa vkSj mu ij nh xbZ izfrfd;k dks fcuk voyksfdr fd;s fu.kZ; cny fn;k x;k & vr% mPp U;k;ky; dk fu.kZ; fVdkÅ uk gksus ds dkj.k fujLr fd;k x;k vkSj fopkj.k U;k;ky; ds fu.kZ; dks cgky j[kk x;kA ¼izLrj 27½
¼y½ Hkkjrh; n.M lafgrk] 1860] /kkjk 376 & cykRdkj ds vijk/k esa nks"kflf) vkSj dkjkokl & lu~ 1989 dh ?kVuk ds vuqlkj ihfM+rk dh 'kknh mDr ?kVuk ds i'pkr gqbZ Fkh vkSj vfHk;qDr dk Hkh viuk ifjokj Fkk & yphyk n`f"Vdks.k ysus ij mls dkjkokl dh ltk nsus ls mldk ifjokj fNUu fHkUu gks ldrk Fkk & fu.kZ; esa dgk x;k fd O;fDrxr :i ls vkSj lkewfgd :i ls dksbZ Hkh ,slk rF; ugha ik;k x;k tks yphyk n`f"Vdks.k viukus ds fy, i;kZIr gks & cykRdkj ,d t?kU; vijk/k gS vkSj ,d ckj ;g fl) gks tkrk gS rks ihfM+rk ds lkFk U;k; vo'; fd;k tkuk pkfg, ftl esa mfpr ltk vfHk;qDr dks nh tkuh visf{kr gS & mRrjnkrk nks ekg ds Hkhrj vkRe leiZ.k djs vkSj ckdh cph gqbZ ltk tks fopkj.k U;k;ky; }kjk nh xbZ Fkh mls HkqxrsA
¼izLrj 28½
R.M. Lodha, J. — The State of Uttar Pradesh is in appeal, by special leave, because the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow reversed the judgment of the trial court and acquitted the respondent.
2. The prosecution case in brief is this : On September 19, 1989 the prosecutrix (name withheld by us) had gone to relieve herself in the evening. Ram Kali (A-3) followed her on the way. While she was returning and reached near the plot of one Vijai Bahadur, Chhotey Lal (A-1) and Ramdas (A-2) came from behind; A-1 caught hold of her and when she raised alarm, A-1 showed fire-arm to her and gagged her mouth. A-1 along with A-2 and A-3 brought the prosecutrix upto the road. There, A-3 parted company with A-1 and A-2. A-1 and A-2 then took the prosecutrix to Village Sahora. On the night of September 19, 1989, the prosecutrix was kept in the house of Girish and Saroj Pandit in Village Sahora. On the next day i.e., September 20, 1989, in the wee hours, A-1 and A-2 took the prosecutrix in a bus to Shahajahanpur where she was kept in a rented room for few days. During their stay in Shahajahanpur, A-1 allegedly committed forcible intercourse with the prosecutrix. Whenever prosecutrix asked for return to her house, A-1 would gag her mouth and threaten her. In the meanwhile, Rampal – brother of the prosecutrix made a complaint to the Superintendent of Police, Hardoi on September 28, 1989 that A-1, A-2 and A-3 have kidnapped her sister (prosecutrix) on September 19, 1989. Based on this complaint, the First Information Report (FIR) was registred on September 30, 1939. The prosecutrix was recovered by the police on October 13, 1989 from Shahabad – Pihani Road near Jalalpur culvert. On that day itself, the prosecutrix was sent for medical examination to the Women Hospital, Hardoi where she was examined by Dr. Shakuntala Reddy. Ram Manohar Misra to whom the investigation of the case was entrusted then took steps for determination of the age of the prosecutrix as advised by the doctor and sent her for X-ray examination.
3. On October 17, 1989, the prosecutrix was produced before the Judicial Magistrate I, Hardoi, where her statement under Section 164 Cr.P.C. was recorded by the Judicial Magistate.
4. A-1 was arrested on December 2, 1989. On completion of investigation, A-1 was chargesheeted for the offences punishable under Sections 363, 366, 368 and 376 of the Indian Penal Code (IPC); A-2 was chargesheeted under Sections 363, 366 and 368, IPC and A-3 under Sections 363 and 366, IPC.
5. The prosecution in support of its case examined five witnesses, namely, complainant – Rampal (PW-1), prosecutrix (PW-2), Investigating Officer Ram Manohar Misra (PW-3), Subhash Chandra Misra Head Constable (PW-4) and Dr. Shakuntala Reddy (PW-5).
6. A-2 had died and the trial abated as against him. The III Additional Sessions Judge, Hardoi vide his judgment dated September 5, 1990 acquitted A-3 as the prosecution was not able to establish any case against her. However, on the basis of the prosecution evidence, the III Additional Sessions Judge held that the prosecutrix was about 17½ years of age at the time of occurrence of crime and found A-1 guilty under Sections 363, 366, 368 and 376, IPC and sentenced him to undergo 7 years’ rigorous imprisonment under Section 376 IPC and the different sentences for other offences which were ordered to run concurrently.
7. A-1 challenged the judgment passed by the III Additional Sessions Judge, Hardoi before the Allahabad High Court, Lucknow Bench, Lucknow. The High Court vide its judgment dated March 11, 2003 reversed the judgment of the trial court and acquitted A-1. While acquitting A-1, the High Court gave three reasons, namely; (one) kidnapping took place on September 19, 1989 whereas the report of the occurrence was lodged after ten days and there was no reasonable and plausible explanation as to why the report could not be lodged promptly and why it had been delayed for ten days; (two) acco
