The incident having occurred prior to amendment, the pre­amended provision will have to be taken note: Supreme Court
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, it appears that there is no reason to apprehend that the appellant would indulgence similar acts in future as held by the Hon’ble Supreme Court through the learned bench lead by Justice A.S. Bopanna in the case of Manoj Mishra @ Chhotkau v. The State of Uttar Pradesh [CRIMINAL APPEAL NO.1167 OF 2021] (Arising out of SLP(Criminal) No. 7828/2019)   The brief facts leading to the conviction and sentence of the appellant is that the father of the prosecutrix filed a written report before the police alleging therein that one Ramasre 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 under Sections 363 and 366 IPC. The prosecutrix was found by the police and brought back for medical examination. The case was investigated and a charge sheet was filed under Sections 363, 366, 376 and 506 of IPC and sections 3 and 4 of POCSO Act. The trial court having analysed the said evidence which was tendered before it, arrived at the conclusion that the charge alleged against the accused was proved. Accordingly, the accused were sentenced to punishment for the offences under Section 363, 366, 376­D, 506 IPC along with Section 4 of POCSO Act. 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 and had arrived at the conclusion that the appellant had raped the prosecutrix number of times after being enticed away by him. The appellant therefore claiming to be aggrieved by the judgment passed by the learnedJudge of the High Court is before this Court in this appeal. The learned counsel for the appellant while seeking to contend that the trial court and the High Court had committed an error in convicting and upholding the conviction seeked to refer to the contradictions in the very manner in which the complaint was initiated and the various statements made by the prosecutrix herself with regard to the nature of the incident as also her age. He further submits, 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. The learned standing counsel for the State of Uttar Pradesh contends though there may be certain discrepancies in the various statements but 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. 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. After hearing the learned counsel on behalf of the respective parties at length, the Hon’ble Court held “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 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. 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.”
dated 14.03.2018 passed by the High Court of Judicature at the appellant by the Additional Sessions Court and Special report dated 09.08.2013 at 22:35 hours before the police alleging therein that one Ramasre alias Siri had enticed his her away. In the said complaint it was further alleged that the appellant herein had cooperated with him in the alleged incident. An FIR was lodged in Crime No.625 2013 under and a charge sheet was filed under Sections 363 366 376 and of Protection of Children from Sexual Offences Act 5 years rigorous imprisonment with fine of Rs.5 000 ­ for the offence under of Rs.25 000 ­ for the offence under Section 376­D IPC 2 years rigorous imprisonment with fine of Rs.2 000 ­ under Section 506 IPC and 7 years rigorous imprisonment with fine of Rs.7 000 ­ for the offence under Section 4 of POCSO imposed and the sentence for the offence under the said provisions were ordered to run concurrently through the the accused Raksharam was acquitted on holding that the High Court in Criminal Appeal No.1102 2017. The learned 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 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 5. We have heard Mr. Anoop Prakash Awasthi learned counsel appearing for the appellant Mr. Parmanand Pandey learned standing counsel for the State of Uttar Pradesh and The learned counsel for the appellant while seeking to contend that the trial court as also the High Court had made by the prosecutrix herself. It is contended that the statement was recorded on 10.08.2013 he has alleged that Ramasre alias Siri had enticed his minor daughter and his that even the prosecutrix has made contradicting statements having gone with Ramasre alias Siri it only indicates that it was consensual and in any event the appellant has been stated with regard to the incident in her cross­examination nor the evidence tendered by the prosecutrix as PW­3 was examination report has stated about the prosecutrix being pregnant and the foetus being of 20­23 weeks that by itself contention. Alternatively it is contended that even if the and when she herself has stated that she was 20 years and also when PW­4 the doctor in her cross­examination has would not be sustainable. Even otherwise in the facts and circumstance the conviction under Section 376­D IPC is not The learned standing counsel for the State of Uttar may be certain discrepancies in the various statements the incident in support of the prosecution and when there is was pregnant the charge would stand established. It is contended that in such circumstance when the father of the also has indicated the age to be around 16 years the In the light of the above we have taken note of the framed against the accused more particularly against the appellant the parents of the prosecutrix and the prosecutrix regard to the same. Though reference was made to the to Mumbai as per the very statement recorded by the 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 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 evidence tendered by the prosecutrix as PW­3 is essentially with regard to the physical relationship she had with the her to be pregnant. She has further stated that in that co­accused and got her married to Ramasre alias Siri by In that background the fact that the appellant had physical relationship with the prosecutrix on more than one parents when it had happened for the first time about four months earlier but was brought to their notice when her 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 to that they having assisted the appellant in enticing and 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 11. From the evidence tendered by PW­2 to PW­3 more 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 pregnancy. The medical report was exhibited as K­2. The K­4. In the cross­examination she has referred to the age of could be 17 to18 years as per general variations no definite opinion to that effect has been given by her. In the cross­ marginal variation with regard to the number of weeks the same is kept in the backdrop the statement of the first time four months earlier which is an approximate to the statement made under Section 164 Cr.PC and the contact with her against her will. In such circumstance the evidence of the prosecutrix and the medical evidence would 12. The question which would however arise for our same. The evidence of PW­3 i.e. the prosecutrix is not parking his vehicle besides the road and asked for 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 taken away by all the accused. In that regard except stating that she was carried to the home of a lady who they were is alleged to have aided has either been apprehended or by the prosecution is against the appellant and the other such the truthfulness of the incident is highly present accused­appellant only and that too four This also gives a reason for enticing her away and 26. To conclude the prosecutrix was raped by the away by him and also before the incident the truthfulness or reliability of her statement is acceptance of her testimony. In the instance the commission of alleged crime against the prosecutrix circumstances in which the charge of rape and enticement against the accused­appellant cannot be levelled. The reason given by the trial court for 14. Further when the prosecutrix was traced based on the already noted that the incident of rape alleged had been Section 376 of IPC. However the conviction handed down by punishable under Section 506 IPC. In respect of the said charge we do not find that there is any supporting evidence that view we are or of the opinion that the conviction and sentence under Section 506 imposed by the trial court and 16. On arriving at the conclusion that the appellant is liable 376 D IPC the appropriate sentence to be imposed needs consideration. The incident in question is based on the noted that Section 376 has been amended w.e.f. 21.04.2018 hand is of 2013 and the conviction of the appellant was on provides that a person committed of rape shall be punished record to indicate that the appellant has any criminal 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 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 more than 8 years which shall be his period of sentence. As such he has served the sentence imposed by us except The conviction under Section 506 IPC is set D IPC is modified. The appellant is instead convicted under Section 376 IPC and is sentenced for the period undergone. The fine and default sentence as imposed by the trial Since the custody certificate dated 20.09.2013 indicates that the appellant has undergone Pending application if any shall stand disposed