REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1167 OF 2021
(Arising out of SLP(Criminal) No. 7828/2019)
Manoj Mishra @ Chhotkau .…Appellant(s)
Versus
The State of Uttar Pradesh ….Respondent(s)
J U D G M E N T
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.
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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 PW1 and PW2 respectively, while the prosecutrix
herself was examined as PW3. Dr. Rabia Sultan who had
conducted the medical examination on the prosecutrix was
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examined as PW4. The Constable Pramod Kumar Shah who
had carried the FIR was examined as PW5 and the SubInspector Tara Prasad Pandey who had investigated the case
was examined as PW6.
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.PC’) 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.3000/ 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 376D 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
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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 heard Mr. Anoop Prakash Awasthi learned
counsel appearing for the appellant, Mr. Parmanand Pandey
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learned standing counsel for the State of Uttar Pradesh and
perused the appeal papers.
6. The learned counsel for the appellant while seeking to
contend that the trial court as also the High Court had
committed an error in convicting and upholding the conviction
would seek to refer to the contradictions in the very manner in
which the complaint was initiated and the various statements
made by the prosecutrix herself. It is contended that the
criminal proceedings was set in motion by the complaint dated
09.08.2013 wherein it has been stated that his daughter has
been tricked and enticed, therefore eloped somewhere. When a
statement was recorded on 10.08.2013, he has alleged that
Ramasre alias Siri had enticed his minor daughter and his
statements had been varying from time to time. It is his case
that even the prosecutrix has made contradicting statements
with regard to the nature of the incident as also her age. In that
light, it is contended that the entire theory of the prosecutrix
being kidnapped, enticed or being raped in the manner as has
been put forth is not reliable. It is contended that even with
regard to the manner in which the prosecutrix had stated of
having gone with Ramasre alias Siri, it only indicates that it
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was consensual and in any event the appellant has been
named only thereafter when a statement was recorded under
Section 164 Cr.PC. Though in her evidence as PW3 she has
stated, with regard to the incident; in her crossexamination
she has stated, with regard to the physical relation she had for
the first time which had been told by her to the family but has
again stated that she disclosed the same when she was four
months’ pregnant and the family members enquired her about
the same.
7. The learned counsel therefore contends that neither the
evidence of the parents who were examined as PW1 and PW2
nor the evidence tendered by the prosecutrix as PW3 was
reliable and the trial court as well as the High Court ought not
to have passed the conviction and sentence on such evidence.
Though PW4 in her evidence and with reference to the medical
examination report has stated about the prosecutrix being
pregnant and the foetus being of 2023 weeks, that by itself
cannot establish the charge made against the appellant is his
contention. Alternatively, it is contended that even if the
statement of the prosecutrix about the physical relations of the
appellant with her and that she has filed the complaint when
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the appellant had refused to marry her despite she becoming
pregnant is accepted, it only indicates that it was consensual
and when she herself has stated that she was 20 years and
also when PW4 the doctor in her crossexamination has
indicated that due to the development of her body even if she is
stated to be 1617 years there could be variation and it can be
1718 years as per general variations. In such event, the charge
would not be sustainable. Even otherwise, in the facts and
circumstance, the conviction under Section 376D IPC is not
justified and said provision ought not to have been invoked as
it does not qualify to be a gang rape. For all the said reasons,
he contends that the judgment is liable to be set aside.
8. The learned standing counsel for the State of Uttar
Pradesh contends that the trial court as also the High Court
has referred to the evidence available on record. Though there
may be certain discrepancies in the various statements the
same cannot qualify as contradictions and in that circumstance
when PW1, PW2 and PW3 have all stated with regard to the
incident in support of the prosecution and when there is
categorical medical examination to indicate that the prosecutrix
was pregnant, the charge would stand established. It is
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contended that in such circumstance when the father of the
prosecutrix has indicated the age as 14 years and the doctor
also has indicated the age to be around 16 years, the
contention of the consensual sex will not be acceptable. In that
view he contends that the judgment passed by the trial court as
also the High Court does not call for interference.
9. In the light of the above, we have taken note of the
nature of consideration made by the trial court as also the High
Court. In so far as the incident based on which the charge was
framed against the accused, more particularly against the
appellant, the parents of the prosecutrix and the prosecutrix
herself were examined as PW1 to PW3 who have spoken with
regard to the same. Though reference was made to the
complaint and the statement of PW1 and at the first instance
the complainant having named Ramasre alias Siri, it was in the
circumstance when he had noticed that the prosecutrix, i.e. his
daughter was not in the house and had accordingly lodged the
complaint on suspicion. It is pursuant to the complaint when
the police took action, the prosecutrix and the said Ramasre
alias Siri were retrieved by the police when they were travelling
to Mumbai as per the very statement recorded by the
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prosecutrix under Section 164 Cr.PC. In that circumstance
what would be relevant is the statement and the evidence
tendered by the prosecutrix as PW3 before the trial court
which described the events prior thereto and the circumstance
which forced her to be with Ramasre alias Siri at that point.
Though certain discrepancies were referred to by the learned
counsel for the appellant in the manner the prosecutrix had
described the incident to contend that as per her own
statement the thatched hut was open from all sides and the act
was alleged to be committed during the day time which cannot
be probable, it is noticed that the sum and substance of the
evidence tendered by the prosecutrix as PW3 is essentially
with regard to the physical relationship she had with the
appellant due to which she had become pregnant and this was
disclosed to her family members only when they had noticed
her to be pregnant. She has further stated that in that
situation when she had insisted on the appellant marrying her,
he had refused, threatened and he had taken the help of the
coaccused and got her married to Ramasre alias Siri, by
enticing and taking her away.
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10. In that background, the fact that the appellant had
physical relationship with the prosecutrix on more than one
occasion and the prosecutrix had not disclosed the same to her
parents when it had happened for the first time about four
months earlier but was brought to their notice when her
pregnancy was noticed will have to be viewed from the stand
point as to whether the charges as framed would stand
established. It is no doubt true that the prosecutrix in her
deposition has stated that on the day of the incident the
appellant, Ramasre alias Siri, Nangodiya etc. had caught hold
of her. However, there is no specific indication as to whether
the other accused and the appellant had indulged in sexual act
along with the appellant herein or the reference is with regard
to that they having assisted the appellant in enticing and
taking her away on the date of the complaint so as to marry her
of to Ramasre alias Siri. What is also to be taken note of, is
that the said Ramasre alias Siri and Nangodiya are siblings
being the sons of Raksharam who was acquitted by the trial
court. To establish common intention on their part in
furthering the sexual assault committed by the appellant, there
is convincing evidence to that effect.
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11. From the evidence tendered by PW2 to PW3, more
particularly the evidence of PW4 i.e., the doctor who examined
the prosecutrix it would disclose that she had examined the
prosecutrix at 7 pm on 19.08.2013. She has stated that the
victim who was unmarried was fully grown up and on
conducting the necessary tests it was seen that the rupture of
the hymen was old and she was found to be 24 weeks into her
pregnancy. The medical report was exhibited as K2. The
complementary report dated 24.08.2013 was marked as exhibit
K4. In the crossexamination she has referred to the age of
prosecutrix as 16 to 17 years. Though she has stated that it
could be 17 to18 years as per general variations, no definite
opinion to that effect has been given by her. In the crossexamination she has however stated that the pregnancy was of
23 weeks. The report of the doctor indicates it to be 23 weeks
while the pathology report gives the status of the single alive
foetus of 20 weeks 2 days as on 20.08.2013. Though there is
marginal variation with regard to the number of weeks
mentioned, the pregnancy was not less than 20 weeks and if
the same is kept in the backdrop, the statement of the
prosecutrix that the appellant had intercourse with her for the
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first time, four months earlier, which is an approximate
indication and that she became pregnant would coincide with
the period. Though there are minor discrepancies with regard
to the statement made under Section 164 Cr.PC and the
evidence tendered by the prosecutrix as PW3, the thrust of the
allegation has been that the appellant had committed physical
contact with her against her will. In such circumstance, the
evidence of the prosecutrix and the medical evidence would
establish the charge of rape.
12. The question which would however arise for our
consideration is as to whether the charge framed against the
accused under Section 376 D IPC would be justified and as to
whether the case would qualify to be one of gang rape. On this
aspect, the evidence of PW1 and PW2 does not establish the
same. The evidence of PW3 i.e., the prosecutrix is not
categorical in as much as the prosecutrix has alleged that when
she was sitting in her thatched hut, the appellant came after
parking his vehicle (tractor) besides the road and asked for
water. At that time, he asked where her father was and after
she told that he had gone out, the appellant had forced himself
upon her. She has further alleged that he kept doing the wrong
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act with her for four months and she became pregnant. When
she disclosed the pregnancy and asked the appellant to marry
her, he did not yield. Therefore, insofar as the incident of rape
attributed to the appellant it does not disclose that all the
accused had committed rape on her or had the common
intention and aided the commission. It is no doubt true that
she refers to the incident on the day she was said to have been
taken away by all the accused. In that regard except stating
that she was carried to the home of a lady who they were
calling as Aunty, and at her place committed sexual act there is
no other evidence available on record to indicate that the spot
was visited in the course of the investigation and the lady who
is alleged to have aided has either been apprehended or
examined. It is also not established that all of them were seen
together or aided with common intention.
13. In fact, the very conclusion reached by the High Court
itself would indicate that the allegation of rape as established
by the prosecution is against the appellant and the other
accused are not involved in such act. The relevant conclusions
read as hereunder:
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“23. It has also been placed before the court that the
other coaccused were real brothers and their father, as
such the truthfulness of the incident is highly
improbable. The main cooperation of other coaccused
appears to be in enticing the prosecutrix away but the
allegation of specific rape has been levelled against the
present accusedappellant only and that too four
months prior to the incident on one threat or the other.
This also gives a reason for enticing her away and
getting her married to Ram Asrey alias Sirri.
26. To conclude, the prosecutrix was raped by the
accusedappellant number of times after being enticed
away by him and also before the incident the
truthfulness or reliability of her statement is
undoubtful and there is nothing which may negate the
acceptance of her testimony. In the instance, the
commission of alleged crime against the prosecutrix
cannot be ruled out.
27. In view of above, it is difficult to comprehend the
circumstances in which the charge of rape and
enticement against the accusedappellant cannot be
levelled. The reason given by the trial court for
conviction of the appellant are sufficient enough to hold
him guilty.”
14. Further, when the prosecutrix was traced based on the
complaint lodged by her father all of them were not with her
but she was found only with Ramasre @ Siri. That apart, as
noted the other three accused apart from the appellant are the
siblings and their father Raksharam has been acquitted by the
trial court. In that circumstance, the charge of gang rape has
not been established with convincing evidence. However, having
already noted that the incident of rape alleged had been
established, it would be a case to convict the appellant under
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Section 376 of IPC. However, the conviction handed down by
the trial court and confirmed by the High Court under Section
363, 366 and under Section 4 of POCSO Act and the sentence
as ordered thereunder would not call for interference.
15. Insofar as the charge alleged against the appellant under
Section 506 of IPC, it is noticed that the charge alleged against
the appellant is that on the date referred to i.e 02.08.2013, the
appellant threatened to kill the prosecutrix, the daughter of the
complainant and therefore had committed the offence which is
punishable under Section 506 IPC. In respect of the said
charge we do not find that there is any supporting evidence
except the vague statement of the prosecutrix in her evidence
as PW3 that whenever she shouted when he had attempted to
have sexual acts with her, the appellant had threatened her not
to say anything to anyone as otherwise he would kill her. There
is no other statement or evidence relating to the incident or the
manner in which the threat in its true sense was put forth. In
that view, we are or of the opinion that the conviction and
sentence under Section 506 imposed by the trial court and
affirmed by the High Court is not sustainable and is liable to be
set aside.
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16. On arriving at the conclusion that the appellant is liable
to be convicted under Section 376 IPC and not under Section
376 D IPC, the appropriate sentence to be imposed needs
consideration. The incident in question is based on the
complaint dated 09.08.2013. In this circumstance, though it is
noted that Section 376 has been amended w.e.f. 21.04.2018
providing for the minimum sentence of 10 years, the case on
hand is of 2013 and the conviction of the appellant was on
20.05.2015. The incident having occurred prior to amendment,
the preamended provision will have to be taken note. The same
provides that a person committed of rape shall be punished
with rigorous imprisonment for a term which shall not be less
than seven years but which may extend to imprisonment for life
and shall also be liable to fine. In the instant case, taking into
consideration all facts including that no material is available on
record to indicate that the appellant has any criminal
antecedents and that he is also a father of five children and the
eldest son is more than 18 years, it appears that there is no
reason to apprehend that the appellant would indulgence
similar acts in future. In that circumstance, we deem it
appropriate that the sentence of 7 years would have been
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sufficient deterrent to serve the ends of justice. From the
custody certificate dated 05.12.2017 issued by the Jail
Superintendent, District Jail, Bahraich, it is noticed that the
appellant has been in custody from 20.09.2013. If that be the
position, he has been in custody and served the sentence for
more than 8 years which shall be his period of sentence. As
such he has served the sentence imposed by us except
payment of fine. The fine and default sentence as imposed by
the trial court is maintained.
17. In the result we make the following order:
(i) The conviction and sentence under Section 363,
366, and Section 4 of POCSO Act is confirmed.
The conviction under Section 506 IPC is set
aside.
(ii) The conviction order made by the trial court and
confirmed by the High Court under Section 376
D IPC is modified. The appellant is instead
convicted under Section 376 IPC and is
sentenced, for the period undergone. The fine
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and default sentence as imposed by the trial
court shall remain unaltered.
(iii) 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.
(iv) The appeal is accordingly allowed in part.
(v) Pending application, if any, shall stand disposed
of.
……………………….J.
(M.R. SHAH)
……………………….J.
(A.S. BOPANNA)
New Delhi,
October 08, 2021
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