Om Prakash Vs. State of U.P [2006] Insc
297 (11 May 2006)
Arijit
Pasayat & S.H. Kapadia
(Arising
out of SLP (Crl.) No. 6111 of 2005) ARIJIT PASAYAT, J.
Leave
granted.
Appellant
calls in question legality of the judgment rendered by a learned Single Judge
of the Allahabad High Court, Lucknow Bench upholding the appellant's conviction
for offence punishable under Section 376(2)(e) of the Indian Penal Code, 1860
(in short the 'IPC') as recorded by learned VI Additional Sessions Judge, Hardoi
and the sentence of 10 years imprisonment as awarded.
We do
not propose to mention name of the victim. Section 228-A IPC makes disclosure
of identity of victim of certain offences punishable. Printing or publishing
name of any matter which may make known the identity of any person against whom
an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found
to have been committed can be punished. True it is, the restriction does not
relate to printing or publication of judgment by High Court or Supreme Court.
But keeping in view the social object of preventing social victimisation or
ostracism of the victim of a sexual offence for which Section 228-A has been
enacted, it would be appropriate that in the judgments, be it of this Court.
High Court or lower Court, the name of the victim should not be indicated, we
have chosen to describe her as 'victim' in the judgment. The above position was
highlighted in State of Karnataka v. Puttaraja (2004 (1) SCC 475).
Prosecution
version as unfolded during trial is essentially as follows:
One
day prior to the occurrence i.e. 9.3.1985 the police of Sursa arrested Ram
Saran, husband of the informant (PW-1) and the challan was brought to the
concerned Court on the day of the occurrence. Om Prakash @ Chhotey (hereinafter
referred to as the 'accused') who was related to the parents of the informant,
met then in the Court premises. Jaipal (PW-2) brother of Ram Saran was also
there along with the informant and she was talking to him about bail of her
husband. After sometime, accused Om Prakash sent PW-2 to find out whether the challan
had come or not. Then at about 3.00 p.m.
accused overpowered the informant and he started raping her in the veranda of Zila
Parishad near the Court. When the informant raised alarm, PW-2 and one Ram Lal
came there and they assaulted Om Prakash who was raping her and they
apprehended him and the accused was taken to the police station. The informant
gave oral information and then Chik number 126 Exhibit A-1 was recorded and the
entry was made in the general diary and the case was registered. Internal
examination of the body of the informant was done by Dr. Purnima Srivastava
(PW-3) and the medical report is Exhibit A-2 and the supplementary report is
Exhibit A-3. The medical examination of the accused was done by Dr. P.K. Gangwar
(PW-4) and the report is Exhibit A-4. The underwear of accused was seized in
the police station and the seizure memo is Exhibit A-6 and the petticoat of the
informant was seized and the seizure memo is Exhibit A-7. The charge of
investigation of the case was given to Shri Mahesh Lal Vadhuria (PW-6), who
prepared the site plan of the place of occurrence (Exhibit A-8). The underwear
of the accused and the petticoat of Ramwati were sent for chemical examination
and the report is Exhibit A-21. After completion of investigation, charge sheet
was filed against the accused and cognizance of the offence was taken and
thereafter the case was committed to the Sessions Court by the Chief Judicial
Magistrate, Hardoi. Charge was framed against accused Om Prakash @ Chhotey
under Section 376 IPC. The accused did not admit the charge and demanded trial.
To
substantiate its version, prosecution examined the victim (informant),
eye-witness Jaipal (PW-2), Dr. Smt. Purnima Srivastava (PW-3), Dr. P.K. Gangwar
(PW-4), Shri Uttam Kumar (PW-5), Shri Mahesh Lal Vadhuria (PW-6) and head
constable Shri Jitendra Singh (PW-7).
The
statement of accused Om Prakash was recorded under Section 313 of the Criminal
Procedure Code, 1973 (in short 'Cr.P.C.'). The accused alleged that he was
implicated due to the enmity. It was stated by him that he had come from the
village along with the brother of the victim and other persons for taking
steps. He even made some attempts in the police station in the night. He had taken
some money for the purpose. When the challan came, they got down at Bilgram Chungi
and then a quarrel took place amongst the accused, PW-2 and father of the
victim on the question of refund of the money. They assaulted him and he was
implicated in the criminal case.
Considering
the evidence more particularly that of the victim (PW-1) and PW-2 the
brother-in-law of the victim and the evidence of the doctor PW-3, the Trial
Court held that the accusations have been established. Taking note of the
evidence of PW-3, it was held that accused must have known, and that there is
full possibility that victim is pregnant.
Accordingly,
by applying the provisions of Section 376(2)(e) accused was convicted and
sentenced to undergo RI for 10 years which is the minimum sentence prescribed.
The Trial Court held that there was no reason to reduce the minimum prescribed
sentence.
In
appeal before the High Court it was submitted that the prosecution version is
incredible and the trial Court should not have convicted the accused. The High
Court by the impugned judgment affirmed the conviction and sentence. It noted
that the FIR was lodged immediately, without any delay.
The
evidence of the victim was credible and cogent. That itself was sufficient to
record conviction. In addition was the evidence of PW-2 an eye-witness. It was,
therefore, held that the prosecution has clearly established that the offence
was committed by the accused. With reference to the background facts, it was
noted that the accused was in a position to dominate will of the prosecutrix.
Therefore, the conviction as recorded was maintained and the appeal was
dismissed.
In
support of the appeal, learned counsel for the appellant submitted that the
prosecution version is clearly unbelievable. It is not believable that the
accused who had gone to help the victim's husband to be released on bail would
commit rape on her, that too in broad day light. In any event, it was submitted
that the requirements of Section 376(2)(e) were not proved.
Per
contra, learned counsel for the State submitted that prosecution version has
been clearly established by the cogent evidence not only by prosecution but
also by PW-2 an eye- witness. It is to be noted that the appellant was caught
red- handed and was taken to police station where immediately FIR was lodged.
So far
as the applicability of Section 376(2)(e) is concerned, it is submitted that
the doctor has clearly stated that the victim was six months pregnant, and it
could be known from the external appearance. The Trial Court had rightly
observed that the accused must have known the victim was pregnant and there is
full possibility in that regard.
Though
the High Court has not dealt with this aspect, it has clearly noted that the
accused was in a position to dominate the will of the victim.
It is
settled law that the victim of sexual assault is not treated as accomplice and
as such, her evidence does not require corroboration from any other evidence
including the evidence of a doctor. In a given case even if the doctor who
examined the victim does not find sign of rape, it is no ground to disbelieve
the sole testimony of the prosecutrix. In normal course a victim of sexual
assault does not like to disclose such offence even before her family members
much less before public or before the police. The Indian women has tendency to
conceal such offence because it involves her prestige as well as prestige of
her family. Only in few cases, the victim girl or the family members has
courage to go before the police station and lodge a case. In the instant case
the suggestion given on behalf of the defence that the victim has falsely
implicated the accused does not appeal to reasoning. There was no apparent
reason for a married woman to falsely implicate the accused after scatting her
own prestige and honour.
Of
late, crime against women in general and rape in particular is on the increase.
It is an irony that while we are celebrating women's rights in all spheres, we
show little or no concern for her honour. It is a sad reflection on the
attitude of indifference of the society towards the violation of human dignity
of the victims of sex crimes. We must remember that a rapist not only violates
the victim's privacy and personal integrity, but inevitably causes serious
psychological as well as physical harm in the process. Rape is not merely a
physical assault -- it is often destructive of the whole personality of the
victim. A murderer destroys the physical body of his victim, a rapist degrades
the very soul of the helpless female. The Court, therefore, shoulder a great
responsibility while trying an accused on charges of rape. They must deal with
such cases with utmost sensitivity. The Courts should examine the broader
probabilities of a case and not get swayed by minor contradictions or
insignificant discrepencies in the statement of the prosecutrix, which are not
of a fatal nature, to throw out an otherwise reliable prosecution case. If
evidence of the prosecutrix inspires confidence, it must be relied upon without
seeking corroboration of her statement in material particulars.
If for
some reason the Court finds it difficult to place implicit reliance on her
testimony, it may look for evidence which may lend assurance to her testimony,
short of corroboration required in the case of an accomplice. The testimony of
the prosecutrix must be appreciated in the background of the entire case and
the trial Court must be alive to its responsibility and be sensitive while
dealing with cases involving sexual molestations. This position was highlighted
in State of Punjab v. Gurmeet Singh (1996 (2) SCC
384).
A prosecutrix
of a sex-offence cannot be put on par with an accomplice. She is in fact a
victim of the crime. The Evidence Act nowhere says that her evidence cannot be
accepted unless it is corroborated in material particulars. She is undoubtedly
a competent witness under Section 118 and her evidence must receive the same
weight as is attached to an injured in cases of physical violence. The same
degree of care and caution must attach in the evaluation of her evidence as in
the case of an injured complainant or witness and no more.
What
is necessary is that the Court must be conscious of the fact that it is dealing
with the evidence of a person who is interested in the outcome of the charge levelled
by her. If the Court keeps this in mind and feels satisfied that it can act on
the evidence of the prosecutrix. There is no rule of law or practice
incorporated in the Indian Evidence Act, 1872 (in short 'Evidence Act') similar
to illustration (b) to Section 114 which requires it to look for corroboration.
If for some reason the Court is hesitant to place implicit reliance on the
testimony of the prosecutrix it may look for evidence which may lend assurance
to her testimony short of corroboration required in the case of an accomplice.
The nature of evidence required to lend assurance to the testimony of the prosecutrix
must necessarily depend on the facts and circumstances of each case. But if a prosecutrix
is an adult and of full understanding the Court is entitled to base a
conviction on her evidence unless the same is own to be infirm and not
trustworthy. If the totality of the circumstances appearing on the record of
the case discloses that the prosecutrix does not have a strong motive to
falsely involve the person charged, the Court should ordinarily have no
hesitation in accepting her evidence. This position was highlighted in State of
Maharashtra v. Chandraprakash Kewalchand Jain
(1990 (1) SCC 550).
Sub-section
(2) of Section 376 makes some special case of rape punishable with more
stringent punishment. Sub- section (2) Section 376 reads as follows:
376 (2)
"Whoever,--
-
being a police
officer commits rape
-
within the
limits of the police station to which he is appointed; or
-
in the premises
of any station house whether or not situated in the police station to which he
is appointed; or
-
on a woman in
his custody or in me custody of a police officer subordinate to him; or
-
being a public
servant, takes advantage of his official position and commits rape on a woman
in his custody as such public servant or in the custody of a public servant
subordinate to him; or
-
being on the
management or on the staff of a jail, remand home or other place of custody
established by or under any law for the time being in force or of a woman's or
children's institution lakes advantage of his official position and commits
rape on any inmate of such jail, remand home, place or institution; or
-
being on the
management or on the staff of a hospital, takes advantage of his official position
and commits rape on a woman in that hospital; or
-
commits rape on
a woman knowing her to be pregnant; or
-
commits rape on
a woman when she is under twelve years of age; or
-
commits gang
rape, shall be punished with rigorous imprisonment for a term which shall not
be less than ten years but which may be for life and shall also be liable to
fine." One of the categories which attracts more stringent punishment is
the rape on a woman who is pregnant. In such cases where commission of rape is
established for operation of Section 376(2)(e) the prosecution has to further
establish that accused knew the victim to be pregnant. In the instant case
there was no such evidence led. The Trial Court came to the conclusion that
there was "full possibility" of the accused knowing it. There is a
gulf of difference between possibility and certainty. While considering the
case covered by Section 376(2)(e) what is needed to be seen is whether evidence
establishes knowledge of the accused. Mere possibility of knowledge is not
sufficient. When a case relates to one where because of the serious nature of
the offence, as statutorily prescribed, more stringent sentence is provided, it
must be established and not a possibility is to be inferred. The language of
Section 376(2)(e) is clear. It requires prosecution to establish that the
accused knew her to be pregnant. This is clear from the use of the expression
"knowing her to be pregnant". This is conceptually different that
there is a possibility of his knowledge or that probably he knew it.
Positive
evidence has to be adduced by the prosecution about the knowledge. In the
absence of any material brought on record to show that the accused knew the
victim to be pregnant Section 376(2)(e) IPC cannot be pressed into service.
To
that extent the judgment of the Courts below are unsustainable. However,
minimum sentence prescribed under Section 376(1) IPC is clearly applicable.
With
the modification of sentence by reduction from 10 years to 7 years, the appeal
is dismissed.
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